author: JUSTICE LINDBERG

text:
    NATHANIEL YORKE, Trustee of the Bankrupt Estate of Vinylclad, Inc., Plaintiff-Appellant, v. THE B.F. GOODRICH COMPANY, Defendant-Appellee.
    Second District
    No. 84—193
    Opinion filed January 23, 1985.
    James H. Knippen II, of Huck & Walsh, and R. Craig Loveless, both of Wheaton, for appellant.
    Rodney W. Equi, of Donovan & Roberts, P.C., of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Nathaniel Yorke, as trustee of the bankrupt estate of Vinylclad, Inc. (plaintiff), sued defendant B.E Goodrich Company (defendant) in a complaint filed in the circuit court of Du Page County on June 21, 1982. The complaint alleged that defendant breached an oral contract entered into between the parties more than six years earlier on April 7, 1976, wherein defendant agreed to provide technical assistance in the plaintiff’s operation of certain extruders. Plaintiff alleges that as a result of the breach, plaintiff’s extruders were damaged and it was unable to meet its production quota of good quality vinyl siding.

The case was originally dismissed without prejudice for want of prosecution. Plaintiff then amended count I of the complaint by adding to the second paragraph that the “case was filed pursuant to provisions of section 24 of the Limitations Act. Ill. Rev. Stat. 1979, ch. 83, par. 24(a).”

After taking the discovery depositions of plaintiff’s president, Robert P. Holtz, and Leonard Sansone, plaintiff’s expert witness, defendant filed a motion for summary judgment. Defendant maintained in its motion that the technical assistance described in plaintiff’s complaint was provided only as a part of the sale of product and that, therefore, the contract action was governed by the four-year statute of limitations of section 2—725 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2—725). The motion was not supported by affidavits. In response, plaintiff maintained that the applicable period of limitations was that contained in the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16). Plaintiff also provided an affidavit of Robert T. Holtz and a memorandum of law in support of its position.

Although Mr. Holtz was president of plaintiff, he had been an employee of defendant for over 18 years and stated that the scope of the customary technical assistance provided by defendant to its customers was limited to initial meetings with the customer’s technical personnel followed by continuing advice in the form of the distribution of periodic technical bulletins to the customer. In paragraphs 6 and 7 of Mr. Holtz’ affidavit he alleges that an agreement existed between defendant and plaintiff wherein defendant agreed to provide extraordinary technical assistance beyond that which was customary. He stated that defendant was to provide personnel to set up conditions of operation of plaintiff’s equipment and to train plaintiff’s personnel on all shifts as to the operation and maintenance of the equipment, thus acting in the role of production and maintenance manager. Paragraph 8 of Mr. Holtz’ affidavit stated:

“That the consideration for Defendant’s providing that type of extraordinary assistance was Plaintiff’s continued purchase of materials from Defendant and Plaintiff’s production of vinyl siding at a level necessary to keep Alcoa’s and U.S. Gypsum’s requirements satisfied and to keep them committed to the sale and distribution of vinyl products.”

Mr. Holtz further averred that he knew of no other instance where defendant had provided the same type of extraordinary assistance to any other customer. Defendant’s commitment was unique to plaintiff.

Defendant filed no counteraffidavits. Its answer to Holtz’ affidavit and plaintiff’s memorandum of law was a document excerpting the deposition testimony of Holtz and Leonard Sansone, plaintiff’s expert, as well as citation of law.

After submission of the memoranda of law, portions of the depositions of Holtz and Sansone, the affidavit of Holtz, and after oral argument, the trial court concluded that the contract between the parties appeared to be a contract for the sale of goods and that therefore an action for its breach must be commenced within four years pursuant to section 2—725 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2—725). The trial court granted defendant’s motion for summary judgment inasmuch as the complaint had been filed after the four-year statute of limitations of the Uniform Commercial Code.

Plaintiff asserts on appeal that there is a genuine dispute as to whether the contract is one for the sale of goods or for services. Plaintiff further contends that there was an oral contract for services with defendant and that the consideration for the contract was plaintiff’s purchase of vinyl pellets from defendant.

Defendant contends that the action is barred by the period of limitations under the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2—725). In particular, defendant contends that there was no consideration given for the alleged technical assistance. Rather, assistance was provided only as a part of the sale of defendant’s product, and, therefore, the action is governed by the Uniform Commercial Code’s period of limitations. Additionally, defendant asserts that Mr. Holtz’ affidavit contains only conclusory allegations, which do not create an issue of material fact.

Summary judgment is properly entered when the pleadings, depositions and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (See, e.g., Schmolke v. Highland Butterfield, Inc. (1984), 128 Ill. App. 3d 710, 712, 471 N.E.2d 227, 229; Yusef v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 540-41, 458 N.E.2d 575, 581; Fuller v. Justice (1983), 117 Ill. App. 3d 933, 938-39, 453 N.E.2d 1133, 1136; Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 900-01, 446 N.E.2d 896, 902.) The function of the reviewing court is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised, and if not, whether judgment was correctly entered as a matter of law. Schmolke v. Highland Butterfield, Inc. (1984), 128 Ill. App. 3d 710, 712-13, 471 N.E.2d 227, 229.

In addressing the first criterion, we conclude that the trial court correctly determined that there was no genuine issue of material fact raised by the pleadings, affidavits or depositions. While it is true, as plaintiff contends, that ordinarily the existence, terms and conditions of an oral contract and the intent of the parties are questions to be determined by the trier of fact (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 427, 431 N.E.2d 738, 742), these questions may become questions of law if the facts are undisputed and there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053, 1057, 291 N.E.2d 202, 205.) In the present case, there is no dispute as to the existence of the oral contract or its terms. Moreover, the question of construction of a contract, where material facts are not disputed, is a question of law. (Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 359, 380 N.E.2d 1089, 1092.) We find, therefore, that the present case involves a question of law and not a question of fact.

The remaining issue is whether defendant is entitled to summary judgment as a matter of law. The test of the applicability of the Uniform Commercial Code to the instant transaction is whether the predominant purpose of the contract is for services or for the sale of goods. Executive Centers of America, Inc. v. Bannon (1978), 62 Ill. App. 3d 738, 742, 379 N.E.2d 364, 367. See also Pittsburgh-Des Moines Steel Co. v. Brookhaven Manor Water Co. (7th Cir. 1976), 532 F.2d 572.

In the instant case, it is apparent that the transaction is predominantly one for the sale of goods. The transaction involved the sale of defendant’s vinyl pellets to plaintiff for its production of vinyl siding. In particular, Mr. Holtz’ affidavit establishes that the consideration for defendant’s providing that type of extraordinary assistance was plaintiff’s continued purchase of materials from defendant. On the other hand, there is nothing in the record to indicate that the transaction was predominantly a sale of services with the sale of goods only incidental thereto. See, e.g., Carroll v. Grabavoy (1979), 77 Ill. App. 3d 895, 396 N.E.2d 836; see also Annot., 4 A.L.R.4th 85 (1981); see also Annot., 5 A.L.R.4th 501 (1981).

Concluding as we do that the transaction was one predominantly for the sale of goods, it follows that the contract is controlled by the limitations period contained in the Uniform Commercial Code. (Ill. Rev. Stat. 1979, ch. 26, par. 2—725.) Plaintiff’s complaint is barred by the statute of limitations. We affirm the order of the circuit court of Du Page County granting summary judgment in favor of defendant.

Affirmed.

NASH, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE NASH

license: Public Domain

text:
    PETER HANCON, Plaintiff-Appellant, v. BOARD OF EDUCATION OF BARRINGTON COMMUNITY UNIT SCHOOL DISTRICT NO. 220, LAKE COUNTY, Defendant-Appellee.
    Second District
    No. 83—1077
    Opinion filed January 17, 1985.
    Rehearing denied February 27, 1985.

      Lawrence Jay Weiner, Fredric Bryan Lesser, and Joan M. Eagle, all of Weiner, Neuman & Spak, of Chicago, for appellant.
    Andrea R. Waintroob and Wesley A. Wildman, both of Vedder, Price, Kaufman & Kammhold, of Chicago, for appellee.
   PRESIDING JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Peter Hancon, appeals from a summary judgment entered in favor of defendant, Board of Education of Barrington Community Unit School District No. 220 (the board), and a mandamus action brought by him seeking reinstatement of his employment as a school teacher. Hancon contends that when honorably dismissed he was legally qualified for positions held by other teachers with less seniority to which he should have been assigned; that other teachers with less seniority than Hancon should have been reassigned in order to create a vacancy in positions he was qualified to fill; that there were disputed questions of material fact precluding summary judgment; and that the trial court erred in denying his motion to strike portions of defendant’s supporting affidavit to its motion for summary judgment.

The Teacher Tenure Act (the Act) provides, inter alia:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first ***. If the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions. ***.” (Ill. Rev. Stat. 1981, ch. 122, par. 24—12.)

Also pertinent to this case are the standards set forth in the Illinois program for Education, Supervision and Recognition of Schools (State Board of Education Document No. 1). Section 7—2, entitled “Minimum Requirements for Teachers of Junior High and Departmentalized Upper Elementary Grades,” requires:

“18 semester hours in the area of major teaching assignment, including at least 5 semester hours in each course where subject matter areas are divided into two or more specific courses. This requirement also applies to teachers of the 6th, 7th, and/or 8th grade where the organizational pattern is a junior high or the instructional pattern is in part or entirely departmentalized. When departmentalized in part, the requirement only applies to departmentalized teachers.”

The pleadings, motion for summary judgment and response thereto, together with the supporting affidavits and exhibits of the parties, disclose these uncontroverted facts:

Hancon’s employment by the board was honorably terminated, effective at the end of the 1981-82 school year, due to a reduction of teachers after the closing of a school; his position was taken by a more senior teacher. Hancon had been a tenured teacher in the school system since 1977 and held an Illinois teaching certificate for grades six through 12; he had taught seventh grade history for the board for seven years at that time. During his employment by the board, Han-con filed transcripts of course credits he had earned in institutions attended by him, as is required by the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24—23). These reflected Hancon had received a bachelor of arts degree in 1974 from the University of Illinois at Chicago Circle in the teaching of history and a master’s degree in history in 1980 from the same institution. The transcripts also noted the transfer of credit for 12 quarter hours completed at Triton College for a course described as “Humanities in Western Culture.”

■ Section 24—12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24—12) requires that written notice be given at least 60 days before the end of the school term to a teacher in contractual continued service; such notice had to be given to Hancon by April 11, and was given on April 1, 1982. He met with Assistant Superintendent Frederic Vorlop on April 5, and they reviewed Hancon’s transcripts. Han-con inquired whether the courses he had taken would qualify him to teach language arts in grades six through eight, and he told Vorlop that he was qualified to teach sixth grade social studies. Vorlop was unable to make these determinations from the transcripts and suggested to Hancon that he have them evaluated by the State Board of Education to determine whether he was legally qualified to teach any subject other than history.

On May 12, 1982, Vorlop received a letter from Hancon, who advised that he had spoken to the certification office of the State Board of Education and was told he was qualified to teach a sixth grade class which is 50% social studies. Hancon’s letter further noted that the certification office would “recognize an English component” in the humanities credits from Triton College, but first required a letter from Triton College specifying the number of hours of that course considered to be language arts. On May 11, Vorlop had also received a letter from Triton College which confirmed that the credit hours Han-con earned for humanities courses qualified as language arts credits. On June 16, 1982, Vorlop received a letter from the State Board of Education stating that its evaluation of Hancon’s transcripts established that he had earned in excess of 18 semester hours of credit in language arts and was legally qualified to teach such courses.

The board declined to reverse its decision of April 1, 1982, to dismiss Hancon after the State Board of Education notified it on June 16, 1982, that he was legally qualified to teach language arts in addition to history courses. The board stated that it could not have been certain earlier that the State Board of Education would accept the humanities credits towards language arts and that its acceptance came too late on June 16 to allow the board to dismiss another less senior teacher with the requisite 60-day notice so as to give Hancon a position. The board also stated that there was no “50% social studies” position in its schools.

I

Hancon contends first that at the time he was dismissed on April 1, 1982, he was, in fact, legally qualified to teach one of several middle school language arts positions held by tenured teachers who had less seniority and who were retained in the next school year. He argues that although his transcripts may not have explicitly shown he had completed the requisite 18 credit hours of language arts, the board should have investigated and clarified the transcripts prior to the deadline for teacher dismissal or consulted Hancon in sufficient time for him to do so. The board responded that at the time it dismissed Hancon, shortly before the 60-day notice deadline, it had no basis from the information contained in his educational transcripts to determine he had sufficient credits in language arts to legally qualify him to teach that subject. The board asserts that it was too late to timely dismiss another teacher to make a place for Hancon when it was notified by the State Board of Education that the humanities credits were accepted as language arts and legally qualified him for teaching that subject. The board argues that it was Hancon’s responsibility, not the board’s, to take extraordinary measures, as was required here, to determine if he was legally qualified to teach another subject.

If, when he was dismissed, Hancon was legally qualified to teach middle school language arts, then the board was required to retain him and dismiss one of the less senior tenured teachers who taught middle school language arts. Under the Act, a more senior tenured teacher has the right to “bump” a less senior tenured teacher, and thus avoid dismissal, if he is qualified for the position held by the less senior teacher. (Ill. Rev. Stat. 1981, ch. 122, par. 24—12; Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 894, 419 N.E.2d 456, appeal denied (1981), 85 Ill. 2d 565.) To be qualified under State Board of Education requirements to teach language arts in grades six through eight at a junior high or middle school where classes are departmentalized according to subject, a teacher not only must be certified by the State to teach those grades, but also must have completed 18 semester hours of college courses in language arts. (Subsection 7— 2.1, State Board of Education Document No. 1.) That requirement is incorporated into the meaning of the phrase “legally qualified” as it appears in the Act. Walter v. Board of Education (1982), 93 Ill. 2d 101, 111, 442 N.E.2d 870.

Hancon did file his transcripts with the superintendent of schools as is required by the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24—23); however, the local school authorities were unable to determine from them whether he was qualified to teach other than history courses. The legislature has vested authority to determine “legal qualifications” necessary to teach in the State Board of Education (Walter v. Board of Education (1982), 93 Ill. 2d 101, 114, 442 N.E.2d 870; Ill. Rev. Stat. 1981, ch. 122, par. 2—3.25) and Assistant Superintendent Vorlop referred Hancon to the State Board’s certification office for evaluation of his transcripts. Ultimately, apparently after receiving further information from Triton College describing the content of the questioned humanities credits, the State Board did accept them for language arts qualification purposes. By this time, however, the board had necessarily already sent out the requisite 60-day notices to those teachers who would be dismissed and could not timely do so to others.

The court considered a similar question in Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 372 N.E.2d 990, and its reasoning persuades us that to sustain Hancon’s argument on this issue would impose a responsibility not required by the School Code and place an intolerable burden on local school boards. In Hagopian, a tenured teacher who had always taught in an elementary school received a notice of dismissal because of a reduction in elementary school teaching positions. The teacher then requested the State Teacher Certification Board to reevaluate his credentials and it issued to him a teaching certificate for grades six through 12. As in the present case, Hagopian had the requisite college credits to hold the high school certificate when he was dismissed, but he had not taken the necessary steps to secure it until after his dismissal notice. The court noted that the mandatory notice provision of the Act required the local school board to determine which teachers to dismiss prior to 60 days before the end of the school year and held that receipt of a teaching certificate after the dismissal deadline may not relate back to render a dismissed teacher qualified. Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 945, 372 N.E.2d 990; see also Lenard v. Board of Education (1979), 74 Ill. 2d 260, 384 N.E.2d 1321; Board of Education v. Schmidt (1978), 64 Ill. App. 3d 513, 381 N.E.2d 400.

Hancon seeks to distinguish Hagopian, arguing that he was always qualified to teach language arts and it just took an evaluation of his transcripts to confirm it, whereas in Hagopian the teacher was not legally qualified until he received his high school teaching certificate. We see no difference; in Hagopian the teacher always had the requisite credits for high school certification, and, as in the present case, his transcripts required evaluation by a body other than the local school board before it could be ascertained what were his additional teaching qualifications.

Hancon also contends that if the board could not itself ascertain his additional teaching qualifications, it should have earlier sought clarification or so advised Hancon in advance of the dismissal deadline so he could have done so.

The Act, however, only requires the board to determine which teachers are to be dismissed at some time before the 60-day notice must be issued. (Ill. Rev. Stat. 1981, ch. 122, par. 24—12; Lenard v. Board of Education (1979), 74 Ill. 2d 260, 267, 384 N.E.2d 1321; Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 945, 372 N.E.2d 990.) The board did so based upon its review of Hancon’s transcripts as filed by him without any clarification of the humanities credits noted therein. Hancon fails to point to any guidelines then available to the board as to how to apply or interpret the 18 semester hours’ requirement of the State Board of Education when courses listed in a transcript are not clearly identified as constituting a particular area of study. We deem it to have been reasonable of the board to limit its evaluation of Hancon’s qualifications to what was evident from the transcripts, and agree it was not clearly evident the humanities credits could be deemed language arts coursework. Just as in Hagopian, the burden of assuring all teaching qualifications are clearly presented to a school board fairly rests upon the teacher. Requiring otherwise, especially in a large school system, would place a heavy and time-consuming research burden on local school boards, whereas the teacher who has completed college courses which are ambiguously listed on his transcript is in the best position to provide timely clarification in his own self-interest so as to avoid the unfortunate circumstances of the present case.

We conclude that the trial court correctly entered summary judgment in favor of the board insofar as Hancon sought reinstatement to language arts positions held by less senior teachers who were retained for the 1982-83 school year.

II

Hancon also contends the summary judgment was improperly entered, as the board rehired a teacher in the summer of 1982 to fill a vacant position for the 1982-83 term teaching high school language arts who was less senior than was Hancon. He does not dispute the fact that he was not legally qualified to teach high school language arts, but asserts that a middle school language arts teacher who was so qualified should have been transferred to the high school position and Hancon then reinstated in the transferred teacher’s former position.

It has been held that a dismissed teacher who is not legally qualified to fill the position held by a probationary or less senior tenured teacher has no right to have a school board create a position he could fill by taking only some of the different courses taught by other teachers in established teaching positions and combining them into one position comprised of several areas of instruction, all of which the dismissed teacher is qualified to teach. (Peters v. Board of Education (1983), 97 Ill. 2d 166, 172-73, 454 N.E.2d 310; Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 1008, 428 N.E.2d 1126, appeal denied (1982), 91 Ill. 2d 552.) However, Hancon argues that what is at issue here is not the creation of a position, but a mere transfer of a teacher so there is a vacant position which he is fully qualified to hold as it originally existed. He asserts that given the Act’s goal of protecting those teachers who have served a school district the longest, the exercise of the board’s discretionary power to transfer tenured teachers based upon the school system’s needs was required so that he could fill the position which would then become vacant.

It seems apparent that the Act does not require the machinations suggested by Hancon. Section 24—12 permits a school board to dismiss a tenured teacher only after first dismissing probationary and less senior tenured teachers who hold positions which the senior tenured teacher is qualified to teach. It also provides:

“If the board has any vacancies for the following school term or within one calendar year from the beginning of the following school term, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 122, par. 24—12.)

Since the high school position at issue was a vacancy which occurred after Hancon was dismissed, and it is not disputed he was not qualified to teach high school language arts, the Act gave Hancon no right of reinstatement in it. The legislature did not require the type of teacher transfer Hancon urges in order to create a new vacancy which he would be qualified to fill. In this regard we note Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456, appeal denied (1981), 85 Ill. 2d 565. While Herbach did not rely upon the same provision of the Act, as the dismissed teacher was not challenging refusal to reinstate her in a position which became vacant after her dismissal, the court rejected the claim that other teachers should have been transferred so that a position would exist which was not held by a teacher having greater seniority and which the plaintiff would be qualified to hold. (Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456, appeal denied (1981), 85 Ill. 2d 565.) We therefore affirm the summary judgment entered as to this issue.

Ill

We next consider Hancon’s assertion that when dismissed he was legally qualified to teach a sixth grade social studies class then being taught by another tenured teacher, Kim Gordon, who had less seniority. He argues that she should have been dismissed from that position and Hancon retained either in it or in the combined position to which Gordon was subsequently assigned for the 1982-83 school year.

Hancon was given his notice of honorable dismissal in April 1982, at least 60 days prior to the end of the 1981-82 school term, as is required by the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24—12), but he retained his employment as a history teacher to the end of that term. There is, therefore, no occasion to consider whether Hancon had any right to “bump” Gordon during that school term.

Hancon also asserts that he should have been reinstated in the social studies position to which Kim Gordon was assigned for the 1982-83 school year. He argues that, when dismissed, he was qualified to teach a sixth grade position which is comprised of 50% social studies and the balance of language arts classes.

We do not agree. As earlier discussed, Hancon’s qualifications to teach language arts were not established by the State Board of Education until June 16, 1982, when it so notified the local board. Gordon was appointed to the social studies position for the new term on June 10, and the board was not required to offer it to Hancon at that time.

Nor did Hancon’s affidavit raise a genuine issue of fact as to his qualifications to hold the position to which Kim Gordon was appointed for the 1982-83 school year. He there stated only that “he believes he was legally qualified to hold the position assigned to Mrs. Gordon.” On appeal, for the first time, Hancon argues that the reading, penmanship and spelling areas of that position could be characterized as “language arts” and, together with his qualification to teach a position of 50% social studies, he met the formal training requirements of the State Board of Education. We find that Hancon’s bare allegation of his belief that he was qualified for this position was insufficient to contradict the positive statements of the Board’s supporting affidavit which described that position and stated Hancon was not qualified to hold it. The new matters raised for the first time on appeal in this regard may not be considered as a basis upon which to overrule the trial court. See Marynczak v. D & L Transport Co. (1981), 94 Ill. App. 3d 381, 418 N.E.2d 972.

In view of our resolution of the issues discussed we need not consider whether the trial court erred in denying Hancon’s motion to strike portions of the Board’s supporting affidavit.

Accordingly, the summary judgment of the circuit court will be affirmed.

Affirmed.

HOPF and UNVERZAGT, JJ., concur.


author: JUSTICE SCHNAKE

text:
    WILLIAM A. LESTER, ESQ., Trustee, Plaintiff-Appellant, v. ARLINGTON HEIGHTS FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellee.
    Second District
    No. 84—37
    Opinion filed January 24, 1985.

      Aldo E. Botti and Walter P. Maksym, Jr., both of Botti, Marinaccio & Maksym, of Oak Brook, for appellant.
    Vincent F. Lucchese, of Lucchese, McNish, Wognum & Koeppel, of Chicago, and R. Terence Kalina, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court;

This is an appeal by the plaintiff, William A. Lester, Esq., acting as the trustee for the bankrupt estate of Daniel E. Harper, from a judgment dismissing his two-count complaint against the defendant, Arlington Heights Federal Savings & Loan Association, on the grounds of collateral estoppel.

The trial court held that the issue of whether the defendant had breached its loan commitment agreement with Daniel Harper had been previously adjudicated in a foreclosure action where Harper and the defendant were codefendants. The issue on appeal is whether the trial court erred in applying the doctrine of collateral estoppel under the facts of this case.

On September 2, 1981, the plaintiff filed a two-count complaint against the defendant in the circuit court of DuPage County. The complaint alleged that on or about July 29, 1974, Harper and the defendant entered into a loan commitment agreement which the defendant breached by refusing to fund the loan. Count II was based on the same breach of contract, but alleged the breach was wilful, intentional and vexatious and asked for punitive damages. On October 1, 1981, the defendant filed a motion to dismiss the plaintiff’s complaint on the basis that the issue of breach of contract had been previously adjudicated in a foreclosure action.

The prior foreclosure action was filed on March 7, 1975, by McElvain-Reynolds Co., a Delaware corporation, in the circuit court of Lake County, against numerous defendants who allegedly held interests junior to McElvain-Reynolds’ mortgage. The property foreclosed upon was the same property that Harper had pledged as security under the July 29, 1974, loan commitment with the defendant.

In its foreclosure complaint, McElvain-Reynolds named the present defendant, Arlington Heights Federal Savings & Loan, as a codefendant alleging that it held:

“a claim to right, title or interest in the mortgaged premises as a beneficiary, as mortgagee in the mortgage recorded as Document No. 1674970, as assignee under Assignment of Rents recorded as Document No. 1674971 and as holder of the indebtedness secured by Trust Deeds recorded as Documents 1674972, 1674973, 1674974 and 1674975.”

and:

“as Trustee under Trust Deeds recorded as Documents 1674972, 1674973, 1674974 and 1674975.”

Harper, as a codefendant in the prior foreclosure action, filed an answer to this allegation, stating:

“That Defendant admits that ARLINGTON HEIGHTS FEDERAL SAYINGS AND LOAN ASSOCIATION *** has a claim to right, title or interest in the mortgaged premises as a beneficiary; as mortgagee in the mortgage recorded as Document No. 1674970; as assignee under Assignment of Rents recorded as Document No. 1674971; as holder of indebtedness secured by Trust Deeds recorded as Documents Nos. 1674977, 1674973, and 1674975; and as Trustee under Trust Deeds recorded as Documents 1674972, 1674973 and 1674975.”

The defendant, Arlington Heights Federal Savings & Loan, then filed a reply to Harper’s answer which stated:

“ARLINGTON hereby alleges that it recorded the Trust Deeds and (mortgage) as described therein as a preliminary step with reference to a certain loan commitment entered into by and between DANIEL E. HARPER and ARLINGTON; that the conditions contained in said commitment have to this date never been complied with, and, accordingly it has not paid out any funds pursuant thereto. The loan commitment by its terms expires July 26,1975.”

On September 16, 1976, the defendant filed a motion for summary judgment in the prior foreclosure action stating:

“Count I is for Foreclosure. Count I applies to your Movant in that it has recorded Trust Deeds on the subject premises as a preliminary step with reference to a certain loan commitment which to date the conditions therein have never been complied with by the borrower and therefore it has not paid out any funds pursuant thereto. Counts II and III are on Note(s) which were secured by said Trust Deeds, and do not apply to your Movant, who will execute Release Deeds of the Trust Deeds it has recorded.
2. DANIEL HARPER individually and D/B/A LAND-SMITH ENTERPRISE, a sole proprietorship, in his pleading on this file in this cause seeks no relief from your Movant.
WHEREFORE your Movant prays as follows:
(1) Your Movant be dismissed "with prejudice and without costs from this cause and within fourteen (14) days from said dismissal to:
(a) Deliver to Plaintiff its Release Deeds for Trust Deeds described as follows: ***.”

The court granted the defendant’s motion for summary judgment on September 16, 1976, and filed a written judgment, drafted by defense counsel, stating:

“the Court having jurisdiction of the parties and subject matter, the Court having heard evidence and/or argument of counsel and being fully advised in the premises does find:
2. ARLINGTON HEIGHTS FEDERAL SAYINGS & LOAN ASSOCIATION, has unfunded Trust Deeds of record on the property described in the Complaint on file in this cause, which it is not obligated to fund because DANIEL HARPER has not complied with the conditions therein contained in its letter of commitment to him.
THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:
2. All pending matters on file in this cause against Arlington Heights Federal Savings & Loan Association *** are hereby dismissed from this cause with prejudice and without costs.
3. Arlington Heights Federal Savings & Loan Association *** shall within 35 days from date hereof execute Release Deeds for the following: [Documents Nos. 1674970-1674975] ,
and deliver the same to the Plaintiff.”

On October 14, 1976, Harper filed a motion to vacate the September 16, 1976, dismissal order on the basis that it purported to operate as an adjudication of the substantive rights between Harper and the defendant when in fact no issue between them had been presented to the court for determination. The defendant objected to this motion as inadequate in that the certificate of service had not been properly signed under Supreme Court Rules 12 and 104 (58 Ill. 2d Rules 12, 104), and that the defendant had not been served with a notice of motion within 30 days as required under the decision in Vlahakis v. Parker (1971), 3 Ill. App. 3d 126 (abstract). On November 5, 1976, the court sustained the defendant’s objections and struck the motion.

On December 6, 1976, Harper filed a motion to extend the time for filing a notice of appeal on the basis that he was filing a section 72 petition. (Ill. Rev. Stat. 1975, ch. 110, par. 72, now Ill. Rev. Stat. 1983, ch. 110, par. 2—1401.) The section 72 petition raised the same argument as the earlier motion to vacate. The defendant argued that this was not a proper ground for relief under section 72, and on February 18, 1977, the court denied both the section 72 petition and the motion for extended time.

Four and a half years later the plaintiff, as trustee for the bankrupt estate of Harper, filed his two-count complaint for breach of the loan commitment agreement. The defendant argues that the complaint is precluded by the prior finding that Harper breached the contract, since that finding was a prerequisite to the court’s dismissal of the defendant from the foreclosure action. The trial court below, while stating that the defendant could have been dismissed from the prior action without such a finding, held that the finding did preclude the present action because the prior court had to have had some basis for its judgment and since Harper’s breach was the only basis given, the finding was “necessary” for the judgment. We disagree.

“A prior judgment may have preclusive effects in a subsequent action under both res judicata and collateral estoppel. The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ (Emphasis added.) [Citation.] When res judicata is established ‘as a bar against the prosecution of a second action between the same parties upon the same claim or demand *** it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose. [Citations.]’ [Citation.]

The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. [Citation.] The adjudication of the fact or question ‘in the first cause will, if properly presented, be conclusive of the same question in the later suit’ [citation], but ‘the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined.’ [Citations.]” Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52.

For the broader doctrine of res judicata to apply, both actions must involve the same cause of action. In comparing two actions to determine whether they are based on the same cause of action, the test is whether the facts are identical or whether the same evidence would sustain both actions. (Renner v. Greathouse (1957), 12 Ill. App. 2d 338, 341.) The evidence required in the prior foreclosure action was that the mortgagor, Michigan Avenue National Bank of Chicago, was in default on its September 27, 1973, mortgage loan agreement with the mortgagee, McElvain-Reynolds. The present action, however, alleges the breach of a completely different loan agreement between Harper and the defendant and requires proof that the defendant wrongfully refused to fund the loan. Therefore, the two suits do not involve the same cause of action, and the doctrine of res judicata is not applicable.

The narrower doctrine of collateral estoppel is applicable when the same parties or their privies are involved with the same issue which was actually or necessarily finally determined by a court of competent jurisdiction in an earlier, but different, cause of action. (O’Neill v. De Laney (1980), 92 Ill. App. 3d 292, 296; Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 898; Hoffman v. Hoffman (1928), 330 Ill. 413, 417-18.) “However, collateral estoppel does not apply to issues that might have been decided but were not, nor to matters incidentally decided that were not essential to support the judgment in the prior action. [Citations.]” Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 50.

The issue sought to be precluded in this case is who, if anyone, breached the July 29, 1974, loan commitment agreement between Harper and the defendant. While the prior judgment purported to make the finding that Harper had failed to comply with the conditions of the agreement, we do not find this issue was actually litigated.

The burden of establishing the defense of collateral estoppel, by clear and convincing evidence, is upon the party invoking it. (O’Neill v. De Laney (1980), 92 Ill. App. 3d 292, 296.) The defendant, however, has presented no evidence, other than the wording of the prior judgment itself, drafted by defense counsel, which shows that the issue of the breach of the loan commitment agreement was actually litigated in the prior action. Nothing in the record on appeal indicates that the prior trial court ever held a hearing or heard evidence on the breach of loan commitment. The defendant, therefore, has failed to meet its burden of establishing the defense of collateral estoppel because it has failed to demonstrate that the breach of contract issue was actually litigated in the prior action.

The defendant argues that recitals of findings of fact in a judgment or decree are binding in subsequent proceedings. The defendant’s cited case, Ingwersen v. Buchholz (1899), 88 Ill. App. 73, however, states:

“The judgment of that court recites that the cause came on to be heard upon the pleadings and the evidence, and from such recital it is fair to presume, in the absence of an allegation in the bill to the contrary, that appellants’ claim was considered by the court.” (Emphasis added.) (88 Ill. App. 73, 78.)

The appellant in this case did allege in the pleadings that no evidentiary hearing was conducted before the prior judgment was entered.

Our holding requires us to disregard the prior court’s explicit finding on the issue. “It is a basic rule of our judicial system [however,] that findings not supported by any evidence are a nullity and must be vacated by the reviewing court. [Citation.]” (In re Estates of Rice (1979), 77 Ill. App. 3d 641, 658.) Since it is the defendant’s burden to establish the defense of collateral estoppel by clear and convincing evidence, and because he has failed to show that the prior court actually heard any evidence on this issue, we hold that it is proper to disregard the prior court’s finding.

Additionally, even if the first court did have a proper basis for its finding that Harper had breached the loan agreement, its finding would not bar this action because such a finding was unnecessary and only incidental to its decision. The defendant was named as a codefendant in that action because it held recorded interests in the property being foreclosed upon. In its September 16, 1976, motion for summary judgment, the defendant requested to be dismissed from the suit if it released to the mortgagee its recorded interests in the property. In releasing these alleged interests, the defendant gave up all claim or interest it allegedly held in the property and was no longer a necessary party. This was the only basis necessary for dismissing the defendant.

The defendant argues that the court had to determine the validity of its interest in the property before the court could dismiss it from the foreclosure action and that required the court to determine whether Harper had breached the agreement. This is precisely the issue that was avoided when the defendant moved to be dismissed from the foreclosure action on the basis that it would voluntarily release its alleged interest in the property. The defendant was not ordered against its will to release its interest; rather, the record indicates that the defendant voluntarily released its interest in the property in order to be dismissed from the suit. Since the defendant volunteered to release its interest, the court did not have to determine what interest, if any, the defendant had in the property.

For the reasons stated, the judgment of the circuit court of Du Page County is reversed and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

NASH, P.J., and REINHARD, J., concur.


author: JUSTICE MILLS JUSTICE MILLS

text:
    JOHN E. BALLWEG, Adm’r of the Estate of Donna Ballweg, Deceased, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD et al., Defendants (The Coleman Company, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. The City of Springfield et al., Third-Party Defendants; Philip Henrici, Third-Party Defendant-Appellee).
    Fourth District
    No. 4—83—0836
    Opinion filed December 13, 1984.
    Supplemental opinion filed on denial of rehearing February 8, 1985.

      John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., and Grady E. Holley, of Holley, Keith & Mehlick, both of Springfield, for appellants.
    Charles J. Gramlich and Eric A. Artman, both of Gramlich & Morse, of Springfield, for appellee Philip Henrici.
    Londrigan, Potter & Randle, P.C., of Springfield, for appellee John E. Ballweg.
   JUSTICE MILLS

delivered the opinion of the court:

Hobie Cat II.

A new trial must take place.

A boating accident on Lake Springfield resulted in the electrocution deaths of Donna Ballweg and Jana Welch. The administrator of Ballweg’s estate brought the present action against the manufacturer of the boat, Coast Catamaran Corporation (Coast), and Coast’s parent company, the Coleman Company (Coleman).

Judgment was entered on a jury verdict in favor of Ballweg for $304,388.35 compensatory damages and $1,021,833 punitive damages. Coast and Coleman appeal.

The evidence relating to the circumstances of the accident was essentially the same as that set forth in Ogg v. City of Springfield (1984), 121 Ill. App. 3d 25, 458 N.E.2d 1331, a suit brought by the administrator of Jana Welch’s estate against the city of Springfield (city) and Coleman. We recount the evidence here only to the extent necessary for our disposition.

Ballweg, Welch, and Philip Henrici were sailing a Hobie Cat catamaran on Lake Springfield near Springfield. Henrici manned the tiller and controlled the mainsail, while Welch operated the jib sail.

As the boat passed through a channel of the lake, its mainmast came into contact with an overhead power line spanning the channel. The rear end of the boat momentarily dipped and Henrici received an electrical shock when his legs became immersed in water. The boat began rocking, causing repeated contact between the mast and the power lines. Flames flashed from the mast and from beneath the boat. Ballweg and Welch jumped into the water and, as the mast contacted the power lines again, the two women went limp in the water and sank. Their bodies were subsequently recovered by divers. Henrici, who had remained on the boat, was rescued.

Because of errors in the admission of evidence we must reverse and remand for a new trial. We also shall address defendants’ allegations of error respecting the damages, jury instructions, and pleadings in order to afford guidance to the trial court upon retrial.

I

Over defendants’ objections, plaintiff introduced into evidence several charts listing accidents involving Hobie Cats and power lines over a 10-year period. The charts show the date of the accident, the State in which it occurred, and the number of resulting deaths and injuries. The injuries total 15 and the deaths total 21. There were two accidents with unknown injuries and deaths. The nature of each accident is not described other than by the charts’ titles which state, “Hobie Cat Power Line Accidents.” Defendants argue that this evidence should not have been introduced because plaintiff failed to show that the prior accidents were similar to the accident in the present case.

The supreme court held in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534, that evidence of prior occurrences may be admissible to establish the dangerousness of a product. The prior accidents must, however, be “substantially similar” to the accident in question. Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608.

In the present case, plaintiff alleged that the Hobie Cat was unreasonably dangerous because of its design, which provided an electrical path from the power lines to the water, electrifying the water surrounding the boat. To admit evidence of prior accidents, plaintiffs were required to show that the injuries and deaths of the prior accidents were caused by a design defect substantially similar to that alleged in the present case. No such showing was made, and, therefore, the introduction of the evidence of prior accidents was improper. Moreover, the nature of this evidence was sufficiently prejudicial to require reversal.

Defendants argue that, even if some of the prior accidents can be shown to be substantially similar to this case, plaintiff must also prove that defendants received notice of these accidents prior to Ballweg’s accident. No authority is cited by defendants for this proposition. Illinois courts have only required, as a prerequisite to the admission of prior accidents, that they be substantially similar to the accident in question. See Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608.

II

Over defendants’ objections, plaintiff presented testimony that the city of Springfield (city) had taken precautionary measures with respect to the power lines crossing Lake Springfield which included placing warnings in the area of the lines and eventually running some of the lines under water. Defendants argue that this evidence was irrelevant and immaterial.

In support of the admission of this evidence, plaintiff cites Sutkowski v. Universal Marion Corp. (1972), 5 Ill. App. 3d 313, 281 N.E.2d 749, wherein the court held that, in a products liability case, evidence that a product has been changed after the occurrence of an accident is relevant and material in determining that an alternative design is feasible. Sutkowski is inapposite to the present case. Evidence of the city’s remedial acts may have been relevant in a suit against the city, but it clearly has no relevance in determining an alternative design of defendants’ Hobie Cat. Nor can we see the relevance of this evidence to any other issue in this case. The trial court’s failure to sustain defendants’ objections to this evidence was erroneous.

Ill

Defendants next challenge the award of punitive damages, arguing that the pleadings provided no basis for the imposition of punitive damages.

Plaintiff’s second amended complaint sought punitive damages only under the Survival Act (Ill. Rev. Stat. 1981, ch. 1101/2, par. 27— 6). After the jury returned its verdict, plaintiff was allowed to amend his complaint to add counts for punitive damages under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2) and under a common law action for funeral and medical expenses.

Plaintiff concedes that he was not entitled to punitive damages under the Survival Act or the Wrongful Death Act. (See Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 456 N.E.2d 131; National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919; Howe v. Clark Equipment Co. (1982), 104 Ill. App. 3d 45, 432 N.E.2d 621; Winter v. Schneider Tank Lines, Inc. (1982), 107 Ill. App. 3d 767, 438 N.E.2d 462.) Plaintiff argues, however, that punitive damages could be awarded on his common law claim for medical and funeral expenses.

The supreme court has recognized a common law cause of action in which the spouse of the deceased or the estate’s administrator may recover medical and funeral expenses which are not recoverable under the Wrongful Death Act. In Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163, the court held that the decedent’s spouse—who had become personally liable for funeral expenses under “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1955, ch. 68, par. 15)—could bring an action individually at common law to recover pecuniary losses which were not recoverable under the Wrongful Death Act. By way of dicta, the court extended this cause of action to administrators as well, stating: “[W]e believe that the common law should be construed to permit the recovery of such funeral and medical expenses in an action either by the decedent’s estate, or, as in the instant case where no such claim was made, by the surviving spouse.” Saunders v. Schultz (1960), 20 Ill. 2d 301, 310, 170 N.E.2d 163, 168.

The injury which provides the basis for a Saunders-type action is derivative of the injury to the decedent. An analogous situation would be that of a spouse seeking medical expenses in a loss of consortium action. Although the spouse sues in his own name on his own behalf, the damages sued for are incurred through the injury to the other spouse. (See Hammond v. North American Asbestos Corp. (1982), 105 Ill. App. 3d 1033, 435 N.E.2d 540.) In the same manner, a spouse or administrator suing for medical or funeral expenses in a Saunders-type action is seeking damages incurred by an injury to the decedent. The supreme court has denied punitive damages in consortium actions on the theory that such actions are indirect or derivative in nature and recovery is intended only as compensation. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) For the same reason, we hold that punitive damages are not recoverable in a Saunders-type action for medical and funeral expenses.

IV

Defendants next argue that the jury’s $5,000 award for decedent’s pain and suffering was against the manifest weight of the evidence because there was no evidence that decedent sustained any physical injury.

The only evidence cited by plaintiff in support of the award is testimony by Philip Henrici, wherein he stated: “[When the back of the boat went down] I received a shock, like a shock you get from putting your finger in a light socket. *** I looked at Jana and Donna, and they were both very surprised. Apparently, they had also been shocked.”

Defendants stated that Henrici was shocked because, when the boat dipped, his legs were immersed in lake water which had become electrified, whereas decedent and Welch were at the other end of the boat and there was no evidence that they had touched the water or received a shock while on the boat.

We find that the testimony of Philip Henrici, standing alone, was insufficient to establish pain and suffering by the decedent. On remand, the jury shall not be instructed to consider pain and suffering as an element of damages.

V

Defendants next argue that the trial court erred in instructing the jury with regard to decedent’s lost earnings and loss of society.

The jury was given a damage instruction which stated in part:

“Where a decedent leaves parents the law recognizes the presumption that they sustained some substantial pecuniary loss by reason of the death. ***
In determining pecuniary loss to the parents and brothers and the weight to be given to the presumption of pecuniary loss to the parents, you may consider what benefits of pecuniary value, including money, goods, society, companionship and services the decedent might have been expected to contribute to the parents and brothers had the decedent lived.”

Defendants acknowledge that plaintiff was entitled to an instruction of lost earnings and loss of society but argue that the instruction given was erroneous insofar as it contained presumptions of lost earnings and loss of society.

The supreme court in Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228, specifically abolished the presumption of lost earnings in wrongful death cases. In addition, the majority recognized loss of society as an element of damages and held that there was a presumption of lost society where the decedent was a minor child. The majority stated, however, “This case does not present, and we therefore need not decide, the question of whether the loss-of-society presumption applies to children who have reached the age of majority.” (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) In his special concurrence, Justice Clark stated that the loss of society presumption should apply to children who have reached the age of majority.

Because Donna Ballweg was not a minor at the time of the accident, we must decide whether a presumption of loss of society should pertain to cases where the defendant has reached the age of majority.

In Bullard, the supreme court defined “presumption” as “an inference which common sense draws from the known course of events.” (102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) Because of the obvious disparity from family to family in the relationships between parents and their adult children, we find it reasonable to require a plaintiff to prove loss of society, where it exists, rather than to presume such a loss in all cases.

We conclude, therefore, that the jury should not have been instructed to presume either a loss of earnings or a loss of society.

VI

Defendants next argue that the trial court erred in failing to instruct the jury with the second paragraph of Illinois Pattern Jury Instructions (IPI), Civil, No. 12.04 (2d ed. 1971). The instruction states in whole:

“More than one person may be to blame for causing an injury. If you decide that a [the] defendants] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]”

The trial court gave the jury a modified version of IPI Civil No. 12.04 which omitted the second paragraph. Defendants had tendered a modified version of No. 12.04 which contained the second paragraph, but this instruction was not given. The notes on use to IPI Civil No. 12.04 state: “The second paragraph should be used only where there is evidence tending to show that the sole proximate cause of the occurrence was the conduct of a third person.” (IPI Civil No. 12.04, at 75.) Defendants argue they raised as a defense that decedent’s injury was proximately caused by the conduct of Henrici (who was piloting the boat when it struck the power lines), and the city (which maintained the power lines in a dangerous condition).

All that is required to justify the giving of an instruction is that there be some evidence in the record to justify the theory of the instruction. (Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) We believe there was some evidence in the record to support defendants’ theory that the conduct of Henrici and the city was the sole proximate cause of decedent’s death. The trial court erred in failing to instruct the jury with the second paragraph of IPI Civil No. 12.04.

YII

Defendants next argue that the trial court erred in striking their defense based on decedent’s contributory negligence. In their answer to plaintiff’s amended complaint, defendants alleged:

«*** plaintiff’s decedent, at the time and place alleged, was guilty of contributory negligence, which contributory negligence was a proximate cause of death and the ensuing damages claimed and that, in the event any judgment is entered against this Defendant, that said comparative fault should act to reduce any judgment in fávor of the Plaintiff commensurate with the degree of fault attributable to Plaintiff’s decedent.”

In Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197, the supreme court held that the doctrines of misuse and assumption of the risk would no longer bar a plaintiff’s recovery but that such misconduct would be compared in the apportionment of damages. A plaintiff’s recovery would be reduced by the amount which the trier of fact found his misconduct contributed to cause the damages. The court stated, however, that a plaintiff’s unobservant, inattentive, ignorant or awkward failure to discover or guard against a defect should not be compared as a damage-reducing factor. In applying Coney, the appellate court has held that a plaintiff’s ordinary contributory negligence is not a damage-reducing factor in a strict liability action. Simpson v. General Motors Corp. (1983), 118 Ill. App. 3d 479, 455 N.E.2d 137; Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858.

Defendants merely alleged that decedent was contributorily negligent and there was no allegation of fact amounting to misuse or assumption of the risk. Moreover, upon reviewing the record, we find no evidence constituting misuse or assumption of the risk on decedent’s part. Consequently, the dismissal of this portion of defendants’ answer was not prejudicial to them.

VIII

Finally, defendants argue that the trial court erred in dismissing their counterclaims against the city of Springfield and Philip Henrici. Both the city and Henrici had settled with the plaintiff. The counterclaims against them were dismissed pursuant to “An Act in relation to contribution among joint tortfeasors” (Contribution Act), which provides that a tortfeasor who obtains a settlement in good faith from the plaintiff is discharged from all liability for contribution to any other tortfeasor. (Ill. Rev. Stat. 1981, ch. 70, par. 302(c), (d); see Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) Defendants argue that the settlements were not made in good faith and, therefore, do not discharge the city or Henrici from liability for contribution.

A. Plaintiff’s Settlement With The City

The city obtained a covenant not to sue from the plaintiff for the sum of $37,500. Defendants argue that this sum illustrates the bad faith of the settlement because the city’s liability to plaintiff was, according to defendants, much greater than this. Defendants state that in Ogg the jury awarded Welch’s administrator $100,000 in compensatory damages. Defendants claim that the city’s share of this judgment was $60,000, while theirs was $40,000. Defendants then conclude that the city’s settlement with plaintiff for $37,500 was “substantially less than the amount for which the city was found responsible in the Ogg case.”

The only authority cited by defendants which even remotely supports this type of analysis for determining good faith is LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 442 N.E.2d 1367. In LeMaster, the court stated that the ratio of the settlement to the final verdict was one measure of good faith. We adopt the rationale of Lowe, which rejected this type of test for the reason that “[i]t is virtually impossible to use an unknown factor, i.e., the jury’s verdict, to test good faith prior to trial.” Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 94, 463 N.E.2d 792, 803.

Defendants’ attempt to distinguish Lowe by arguing that they are not comparing the settlement in this case with an unknown factor— the verdict in this case—but rather with a known factor—the verdict in Ogg. We find such a comparison inapposite, for as was stated in Lowe, albeit in a different context, “No case has a brother.” (124 Ill. App. 3d 80, 119, 463 N.E.2d 792, 819.) Moreover, even if the verdict in Ogg were to be used as a basis for comparison, one would be hard pressed to conclude that a payment of $37,500 to settle a potential liability of $60,000 is evidence of bad faith.

The dismissal of the counterclaim against the city of Springfield is affirmed.

B. Plaintiff’s Settlement With Philip Henrici

Defendants argue that the settlement between plaintiff and Henrici was in bad faith because plaintiff’s cause of action against Henrici was barred by the statute of limitations at the time the settlement was entered into. Henrici acknowledges that the statute of limitations had expired on plaintiff’s claim against him. However, he maintains that the release settled a “potential outstanding liability” resulting from plaintiff’s settlement with the city.

The covenant not to sue between plaintiff and the city contains an assignment of the city’s contribution rights to plaintiff. Henrici apparently argues that his payment to plaintiff was in settlement of the city’s contribution rights which were held by plaintiff. This argument fails, however, because any contribution rights which the city may have possessed prior to its settlement with plaintiff were lost once the city and plaintiff settled. Section 2(e) of the Contribution Act provides: “A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 70, par. 302(e).

It appears, therefore, that plaintiff gave no consideration for his settlement with Henrici. The issue of consideration in settlements, as it bears upon good faith, was raised in LeMaster and we find the case instructive on that point. The plaintiff in LeMaster had given a release to his employer in return for a payment which exceeded the employer’s liability under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.). In addition, the employer agreed to waive its right to seek reimbursement for worker compensation payments previously made to plaintiff. The court stated:

“[T]he settlement and release agreement between the plaintiff and [his employer] did not constitute a good-faith settlement because, effectively, the plaintiff had no rights outside of the Workers’ Compensation Act which he could relinquish in return for the lien waiver and the cash payment. [Citation.] Between the plaintiff and [his employer], an equitable bargain was simply not entered into ***.” LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 736, 442 N.E.2d 1367, 1373.

We agree with LeMaster insofar as it holds that a settlement lacking in consideration does not constitute a good faith settlement. Such an arrangement violates the two-fold purpose of the Contribution Act, which is (1) to encourage the settlement of disputed claims between the parties, and (2) to obtain an equitable sharing of the damages among those responsible for them. See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.

The dismissal of the contribution claim against Henrici is reversed.

Affirmed in part, reversed in part and remanded.

GREEN, P.J., and WEBBER, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MILLS

delivered the supplemental opinion of the court:

I

Ballweg has filed a petition for rehearing, arguing for the first time on appeal that the trial court erred in denying his motion for summary judgment on the grounds that defendants were collaterally estopped from denying liability because of the judgment in Ogg.

We are fully aware that Ballweg raised in his appellee’s brief an estoppel argument relating to the trial court’s ruling on a jury instruction. But, at no time prior to the filing of the petition for rehearing has Ballweg argued that a trial on the issue of liability was precluded because of collateral estoppel. The argument, therefore, is abandoned. See First Granite City National Bank v. Champion (1970), 130 Ill. App. 2d 970, 268 N.E.2d 35.

Moreover, we do not believe Ballweg is entitled to avail himself of collateral estoppel under the circumstances of the present case. Ballweg was not a party in Ogg and, therefore, collateral estoppel would not apply here under the traditional application of the doctrine. But see Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9.

Ballweg’s petition for rehearing is denied.

II

We are disturbed by Henrici’s petition for rehearing. Our original opinion was based on factual representations made by Henrici in his appellee’s brief and undisputed by the parties. Henrici now claims that “[t]he able young lawyer who authored the brief of the Third Party Defendant Henrici was laboring under a misapprehension of the facts ***.” The author of Henrici’s petition for rehearing further claims that, although he reviewed the appellee’s brief, he “did not catch the significance of the language describing the covenant as an assignment nor the language which distorted the way settlement actually occurred.”

Henrici now asserts that the settlement described in his appellee’s brief was never executed and that the actual covenant not to sue— between Ballweg, Henrici, and the city, dated June 27, 1983—con-tained no assignment of contribution rights from the city to Ballweg. Since the putative assignment had been the only basis for Henrici’s argument that Ballweg provided consideration for the settlement with Henrici, it is singularly curious that the author of the petition for rehearing did not “catch the significance of the language describing the covenant as an assignment.”

Nevertheless, we have allowed Henrici to supplement the record on appeal with the covenant not to sue between Ballweg, Henrici, and the city. As noted in the petition for rehearing, this settlement contains no assignment of contribution rights from the city to Ballweg. The covenant states on its face that the sole consideration provided by Ballweg to Henrici was Ballweg’s promise to refrain from asserting any claim against Henrici under section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2) arising out of the accidental death of Donna Ballweg on August 13, 1978.

This covenant not to sue was entered into well after the statute of limitations had run on any wrongful death action which Ballweg had against Henrici. We continue to hold, therefore, that a settlement which is entered into after the limitations period has expired on the plaintiff’s claim against the settling defendant is not in good faith under section 2(c) of the Contribution Act (Ill. Rev. Stat. 1981, ch. 70, par. 302(c)).

Henrici’s petition for rehearing is denied.

GREEN, P. J., and WEBBER, J,, concur.