author: JUSTICE LORENZ

text:
    RAYMOND R. MARTIN, SR., et al., Plaintiffs-Appellants, v. 1727 CORP. et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2104
    Opinion filed December 23, 1983.

      Susan E. Loggans & Associates, of Chicago (Susan E. Loggans and Patrick J. Condron, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Hugh C. Griffin, and Mark A. Kreger, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs Raymond R. Martin, Sr. and Marianne Martin appeal from the granting of a summary judgment in favor of the defendants and they urge that the trial court erred when it held that there were no genuine issues of material fact regarding defendants’ liability for the death of their deceased daughter Laura Martin.

Pertinent to the disposition of this appeal are the following facts.

Defendants John and Anne Portman entered into a licensing agreement with McDonald’s Systems, Inc. (McDonald’s), a wholly owned subsidiary of McDonald’s corporation, for the operation of a McDonald’s restaurant at 5441 West 159th Street, Oak Forest, Illinois.

The building at that address was a rectangular brick structure with three glass doors in the front, a side door leading to the rest rooms, and a rear metal service door off the kitchen area equipped with a fish-eye peephole through which a person could see the area outside the door. It was built in 1970 pursuant to McDonald’s construction department specifications.

The license agreement provided that the restaurant was to be operated pursuant to a McDonald’s restaurant operations manual entitled “Cash Register Procedures and Security” which stated, inter alia, that “there should be a security window in every back and side door of the restaurant.” The manual prohibited use of the back door after dusk and required that all trash be removed only during operating hours and any trash which accumulated after dark could only be removed in the morning by personnel responsible for opening the restaurant.

The restaurant commenced operations in May 1971. In 1974, the Portmans assigned their license to the 1727 Corp., a Delaware corporation, of which John Portman was president and sole shareholder, and the corporation continued to operate the restaurant until October 31, 1979. It was undisputed that contrary to the provisions of the safety manual, defendants required their employees to remove the garbage from the premises every night and the usual practice was for an employee to open the rear door in order to remove the garbage and that Portman received complaints about the safety and the adequacy of the peephole, but when the original door was replaced, an identical door was installed.

However, it is also undisputed that the restaurant was never robbed during the period of time the Portmans operated the business from May 1971 until October 31, 1979.

Defendants entered into an agreement to sell and transfer all their interest in the restaurant to McDonald’s Restaurants of Illinois, Inc. (McDonald’s), a wholly owned subsidiary of McDonald’s Corporation on October 30, 1979. A meeting was held on October 31, 1979, to effectuate the sale and transfer of possession and control of the premises to McDonald’s on the following day. Present at this meeting in addition to Portman, Karl Ferret, the store manager, and other restaurant employees, were McDonald’s representative Stephen Zdunek, the operations manager for 16 other McDonald’s owned restaurants, and Jim Carlson, McDonald’s security supervisor.

During this meeting, both McDonald’s representatives discussed McDonald’s policy against employees leaving the building after closing until they were off-duty, and personally reviewed store closing procedures with Ferret, the store manager. Zdunek also inspected the rear door of the restaurant, determined that it opened and locked properly but that it did not have a security window. New locks were installed on the doors of the restaurant and new keys were distributed to the store manager at this meeting. Sometime during the first 30 days after the transfer of the business to McDonald’s, Carlson made a recommendation that a closable hatch-type security window be installed in the rear door.

Twenty-nine days after McDonald’s took over sole possession and control of the premises from defendants, a man named Peter Guy Logan entered through the rear door when an employee went to remove garbage in the evening, and committed a robbery on the premises during which Laura Martin, a McDonald’s employee and former employee of Portman-1727 Corp., was killed in the presence of the other McDonald’s employees who were on duty that night, including plaintiffs Terese Dudek and Maureen Kincaid.

Plaintiffs brought a wrongful death action on February 8, 1980, which was later consolidated with the two personal injury actions filed by Dudek and Kincaid against defendants McDonald’s Restaurants of Illinois; its parent corporation, McDonald’s Corporation; MCOPCO Service Company, a wholly-owned subsidiary of McDonald’s Corporation; Donald Miller, the restaurant architect; Coleman Fire Proof Door Company, which installed the rear door; Elmer and Sons Locksmith, Inc., which installed the rear-door burglar bar; Walter Daniels Construction Company, the general contractor on the restaurant; and Portman and 1727 Corp., the former licensees of the business.

On February 19, 1982, 1727 Corp. and Portman moved for summary judgment. Following a hearing, the trial court granted defendants’ motion on the basis that, although in some instances a vendor of land may be liable to the vendee for injuries caused by undisclosed defects contained on the land, as a matter of law, the 29-day period which passed between the transfer of possession and the shooting was sufficient for the purchaser to discover and correct all such defects. Plaintiffs appeal from the entry of this order. The case continues below against the remaining defendants.

Opinion

The issue in this case is whether the trial court acted properly in granting defendants’ motion for summary judgment.

Section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005) provides in pertinent part that “[a] defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her. *** The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

It is well established that the summary judgment procedure is an important tool in the administration of justice and its use in a proper case is to be encouraged because its benefits inure not only to the litigants in the saving of time and expenses, but to the community as well as in avoiding congestion of trial calendars and the expenses of unnecessary trials. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055.

However, a summary judgment can only be entered where the pleadings, affidavits, admissions, and depositions demonstrate that no genuine issue of material fact exists which warrants trying the case (Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663) and that the moving party is entitled to judgment as a matter of law. Stambaugh v. Central Illinois Light Co. (1976), 42 Ill. App. 3d 582, 356 N.E.2d 148.

The propriety of awarding summary judgment depends upon whether or not a bona fide issue of material fact exists between the parties to the action. If, upon examination of the pleadings and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. On the other hand, where the pleadings and affidavits show there is no bona fide triable issue of fact, a summary judgment should be granted. Porter v. Miller (1960), 24 Ill. App. 2d 424, 429, 164 N.E.2d 601.

Thus, while plaintiffs are not required to prove their case at the summary judgment stage, they are under a duty to present a factual basis which would arguably entitle them to judgment in their favor. Chisolm v. Stephens (1977), 47 Ill. App. 3d 999,1004, 365 N.E.2d 80.

We now address plaintiff’s primary argument that genuine issues of material fact remain regarding the allegedly latent or concealed conditions which defendants knew would create an unreasonable risk of harm, and that defendants should have realized that the vendee, McDonald’s, would fail to discover or appreciate these risks.

The principles applicable to this case are set forth in sections 352 and 353 of the Restatement (Second) of the Law of Torts, both of which have been acknowledged by our supreme court as stating the law in Illinois. Century Display Manufacturing Corp. v. D. R. Wager Construction Co. (1978), 71 Ill. 2d 428, 376 N.E.2d 993; Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 322 N.E.2d 5.

Section 352 of the Restatement sets forth the general rule that the liability of a landowner for injuries occurring in connection with the property ends with the cessation of ownership, possession, and control of the property (Maisenbach v. Buckner (1971), 133 Ill. App. 2d 53, 272 N.E.2d 851; Kordig v. Grovedale Oleander Homes, Inc. (1958), 18 Ill. App. 2d 48, 151 N.E.2d 470), regardless of whether the person injured is the transferee, or some third person to whom a duty of care is owed. Kordig v. Grovedale Oleander Homes, Inc. (1958), 18 Ill. App. 2d 48, 151 N.E.2d 470.

Section 353 of the Restatement creates an exception to this general rule of nonliability, which is applicable when the vendor conceals or fails to disclose to his vendee a condition which poses an unreasonable risk to persons on the land. It provides:

“Sec. 353. Undisclosed Dangerous Conditions Known to Vendor.
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.
(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.” Restatement (Second) of Torts sec. 353 (1965).

In the instant case, plaintiffs urge that the vendee, McDonald’s did not know or have reason to know of two latent or concealed defects: (1) the “serious extent of the dangerous condition of the door”; or (2) of the improper closing procedures that were in effect as a result of the training of defendant Portman.

However, to come fully within the scope of the definition of a latent defect, the defect must be hidden from the knowledge as well as from the sight and must be one which could not be discovered by the exercise of ordinary and reasonable care. (Smith v. Morrow (1923), 230 Ill. App. 382, 388.) Even assuming arguendo that the closing procedures can be properly characterized as an artificial condition of the property under section 353, plaintiffs have failed to present any factual basis for their contention that either the rear door or the closing procedures were a defective or dangerous condition, or that the vendee did not have any knowledge of these “conditions.”

This is not the ordinary case where the knowing vendor .misleads a naive vendee into believing the premises are safe. The record establishes that vendee-McDonald’s, itself, constructed the restaurant and installed an original peephole door pursuant to plans and specifications furnished by its corporate offices and prepared by its construction department.

With respect to the door, Stephen Zdunek, McDonald’s Operations Manager, stated in his deposition that on October 31, 1979, both he and the McDonald’s security manager, Jim Carlson, “went into the store in the early evening and did a full inventory of all assets *** [and] one of the functions that was performed was Jim Carlson and myself reviewing closing procedures, showing the manager we installed new locks on the doors, and distribution of the keys, changed the safe combination.” He stated that he also inspected the rear door and that “during our first 30 days of operation” Carlson “recommended that we put a closed hatch window on that door.” He was asked on his deposition: “Was it more common than not that the McDonald’s restaurants in [that] area and in the Midwest *** used windows in the back door?” Zdunek replied: “At that time, I would say no. I would say there were more peephole type installations then.” Thus, we do not find that the defendants concealed the condition, and the pleadings, interrogatories and depositions do not establish any concealment.

Similarly, although the depositions indicate that the vendee was not informed of the previous closing procedures, when Zdunek was asked whether a change was made in the closing procedure after the takeover occurred, he responded: “I can’t say I would be aware that it was a change then. I know Jim [Carlson] and I talked to Karl [Ferret, the Store Manger] that night of the ¿1st, and we said, ‘Here is the procedures. After closing, the store doesn’t get opened. Everybody leaves together through the front door.’ That’s the direction that was given.” Irrespective of the former procedure under the licensee we conclude that vendee McDonald’s had a reasonable opportunity over that 29-day period to discover any violation of its own explicit instructions as to the closing policy and to implement any disciplinary measures against such violation.

Finally, plaintiffs urge this court to adopt the “New York rule” which extends the rule in section 353 to permit liability to exist even in the case of a known defect where the vendor’s liability continues until a sufficient time has elapsed to permit the vendee to remedy it. Farragher v. City of New York (1966), 26 App. Div. 2d 494, 275 N.Y.S. 2d 542, aff’d (1968), 21 N.Y.2d 756, 235 N.E.2d 218.

In the seminal case on this issue, Anderson v. Cosmopolitan National Bank (1973), 54 Ill. 2d 504, 301 N.E.2d 296, our supreme court declared that the New York position does not appear to have found acceptance elsewhere and should not be applied generally to exonerate a vendee from liability for a defective condition of which he was aware. (Firestone v. R. H. Lincoln, Inc. (1974), 23 Ill. App. 3d 320, 319 N.E.2d 60.) Hence, we decline the opportunity to extend the New ■ York rule here.

We conclude therefore that there was no triable issue of material fact and that defendants were entitled to judgment as a matter of law. We do not further reflect on the vendee’s liability in the case at bar pending resolution of this issue in the proceedings below.

We note here that we have, in the exercise of our discretion, chosen to consider substantive issues presented by this appeal although appellant failed to include a table of contents in the voluminous record on appeal in the appendix, contrary to Supreme Court Rule 342(a) (87 Ill. 2d R. 342(a); see In re Marriage of Roberts (1980), 84 Ill. App. 3d 538, 406 N.E.2d 1), in the interest of doing substantial justice between the litigants and although it is not the duty of this court to search the record to determine what the real issues are or to seek material for the disposition of such issues. See also Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 385 N.E.2d 63.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

WILSON, RJ., and MEJDA, J., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    CARL LANDINO et al., Plaintiffs-Appellees, v. AMERICAN NATIONAL BANK OF SOUTH CHICAGO HEIGHTS et al., Defendants (American National Bank of South Chicago Heights, Defendant-Appellant).
    First District (2nd Division)
    No. 83—1240
    Opinion filed December 27, 1983.

      Crowley, Barrett & Karaba, of Chicago (Edward W. Barrett, Charles W. Siragusa, and Cynthia M. Hinman, of counsel), for appellant.
    Friedman, Weston, Sternberg & Rakich, of Matteson (Steven D. Rakich, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

This action was brought by plaintiffs Carl Landino, Dorotha M. Landino, Peter Zorica and Barbara Ann Zorica to obtain preliminary and permanent injunctive relief enjoining defendant American National Bank of South Chicago Heights from conducting a Uniform Commercial Code sale of plaintiffs’ beneficial interests in South Holland Trust and Savings Bank Trust Nos. 4699 and 4701. The circuit court entered a preliminary injunction on April 27, 1983, enjoining American National from conducting the sale. American National appeals from the entry of this preliminary injunction.

Early in 1979, plaintiffs applied to American National Bank of South Chicago Heights for a loan through plaintiffs’ land development company, the Ridgefield Development Corporation. On April 18, 1979, American National issued a commitment letter to plaintiffs which provided that American National would make a loan in the amount of $180,000 to Ridgefield. One of the conditions of the loan described in the letter required that plaintiffs deed their residences into land trusts and assign the beneficial interests in the land trusts to American National.

On May 17, 1979, plaintiffs created South Holland Trust and Savings Bank Trust Nos. 4699 and 4701 and transferred their personal residences into the trusts. On June 8, 1979, the beneficial interests in the trusts were pledged as collateral to American National in order to secure the indebtedness.

On June 13, 1979, plaintiffs executed a promissory note in the amount of $150,000 payable to American National. The note provided that the principal amount was payable on September 15, 1981, with interest payable semi-annually beginning on December 15, 1979. Plaintiffs defaulted on the note in September 1981 and on March 1, 1983, American National released a notice of public sale of the beneficial interest under the Illinois Uniform Commercial Code.

Plaintiffs filed suit seeking to enjoin the sale of the beneficial interest. Plaintiffs claimed that the interests constituted a mortgage and that the sale of the beneficial interests defeated plaintiffs’ rights of redemption under the Illinois Mortgage Foreclosure Act.

The trial court entered a preliminary injunction, holding that the proposed sale of the trust beneficial interest violated plaintiffs’ rights of redemption under the Illinois Mortgage Foreclosure Act. American National appeals.

Defendant contends that the trial court erred in granting the preliminary injunction preventing the sale of the property by defendant. Plaintiffs argue that the creation of the land trusts resulted in equitable mortgages, thereby giving plaintiffs a right of redemption.

It is true that under Illinois law the beneficial interest under a land trust is considered to be personal property (Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50, 236 N.E.2d 425), and the assignment of that beneficial interest to secure a note does not convert it into a real estate mortgage so as to permit a right of redemption. (See Horney v. Hayes (1957), 11 Ill. 2d 178, 183, 142 N.E.2d 94.) However, courts look to the substance and not the form of a transaction to determine whether a conveyance absolute in form is in reality a mortgage. (Havana National Bank v. Wiemer (1975), 32 Ill. App. 3d 578, 583, 335 N.E.2d 506.) “Therefore, a trust deed absolute in form will be regarded as a mortgage where the evidence indicates that a conveyance to the trustee was made merely as security for a loan of money and that the parties contemplated that the grantee would reconvey the fee to the grantor upon satisfaction of the debt.” First Federal Savings & Loan Association v. Pogue (1979), 72 Ill. App. 3d 54, 58, 389 N.E.2d 652; see, e.g., DeVoigne v. Chicago Title & Trust Co. (1922), 304 Ill. 177,182-83, 136 N.E. 498.

The record in the instant case clearly shows that the trusts were created in contemplation of their use as security for a loan. In fact, defendant’s commitment letter required the creation of the trusts as a condition of the loan. The trust agreements, the collateral assignments and the promissory note, while not executed simultaneously, were completed in close proximity and apparently for the purpose of providing security for the loan in circumvention of plaintiffs’ rights of redemption under the Illinois Mortgage Foreclosure Act.

A land trust may not be used as a device to circumvent the right of redemption where the creation of the land trust, the borrowing of funds and the pledging and assignment of the beneficial interest are one transaction. Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 405, 240 N.E.2d 791.

In Quinn, the court set forth specific guidelines to be used in analyzing assignments of beneficial interests in land trusts, stating:

“[Where] the trust contains no provision for sale of the real estate subject-matter on default in a debt, where it is set up for purposes other than as a security for a debt, where the pledge of the beneficial interest is subsequent to the creation of the trust, and where the pledge security transaction is of the trust beneficial interest only, the transaction is valid and will not be construed to be a real estate mortgage. Homey v. Hayes, 11 Ill. 2d 178, 142 N.E.2d 94. Otherwise, if these four tests are not complied with, the transaction may constitute a real estate mortgage with the attendant right of redemption. De Voigne v. Chicago Title & Trust Co., 304 Ill. 177, 136 N.E. 498.” 98 Ill. App. 2d 402, 405.

We find that these four tests have not been complied with in the instant case. The record clearly shows that the trusts were created purely for the purpose of serving as security for the debt. Therefore, we find no error in the circuit court’s order holding that an equitable mortgage with the attendant right of redemption existed and enjoining the sale of plaintiffs’ beneficial interests.

The order of the circuit court is affirmed.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.


author: JUSTICE NASH

text:
      In re ESTATE OF CLARA ANNA OLSEN, Deceased (John David Olson et al., Plaintiffs-Appellees, v. Charles K. Olson, Ex’r of the Estate of Clara Anna Olsen, Defendant-Appellant—Lillian F. Nelson et al., Defendants).
    Second District
    No. 83—288
    Opinion filed December 20, 1983.
    Richard A. Palmer, of Ward, Murray, Pace & Johnson, of Sterling, for appellant.
    Stephen C. Pemberton and William P. Fearer II, both of Fearer & Nye, of Oregon, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Charles Olson, as executor of the estate of Clara Anna Olsen, deceased, appeals pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) from an order of the circuit court which denied the executor’s motion to dismiss a petition to contest decedent’s will and granted the motion of plaintiffs wilhcontestants to transfer their petition from the chancery division to the probate division of the circuit court.

Clara Olsen died testate on October 21, 1980; her will was admitted to probate in the probate division of the circuit court of Ogle County on November 20, 1980, and Charles Olson was appointed executor. On April 9, 1981, plaintiffs, John, Glen and Marvin Olson, Melinda Kesler and Leon Erstad filed a petition to contest the validity of decedent’s will in the chancery division of circuit court as a new action, and not in the same proceeding in the probate division of the court where the estate was being administered. The petition alleged decedent lacked testamentary capacity to execute the will and that Charles Olson and his wife, Martha, had exerted undue influence on her. The petition joined Charles Olson as a party in his individual capacity, but not in his capacity as executor of decedent’s estate.

On May 12, 1981, Charles and Martha Olson filed a motion to dismiss the will-contest petition on the ground Charles Olson, as executor of the estate, was a necessary party to the action and had not been joined. (See Ill. Rev. Stat. 1981, ch. 110V2, par. 8 — 1(a).) On June 25, 1981, on plaintiffs’ motion Charles Olson, as executor, was joined as a party-respondent to the petition and on July 23, the executor moved to dismiss the petition contesting decedent’s will on the ground plaintiffs had failed to file their action in the proceeding for the administration of the testator’s estate as is required by section 8 — 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIOV2, par. 8 — 1(a)). For reasons which do not appear of record, the executor’s motion to dismiss was not heard until January 8, 1982. On January 6, plaintiffs moved to transfer the will-contest petition from the chancery division to the probate division of the circuit court for consolidation with the estate proceeding, and both pending motions were heard by the trial court on January 8. The trial court thereafter denied the executor’s motion to dismiss, granted plaintiffs’ motion to transfer and certified the following questions to this court pursuant to Supreme Court Rule 308:

1. Whether plaintiffs’ failure to file their petition to contest the will in the probate proceeding within six months after admission of the will requires its dismissal where the petition was filed in another division of the circuit court within the six-month period and thereafter transferred to the probate division for consolidation with the estate proceeding;

2. Whether the executor waived any objection to the place of filing and subsequent transfer;

3. Whether the consolidation of all Illinois courts of original jurisdiction into one circuit court would operate to authorize the transfer of the petition to the probate proceeding in this case.

Section 8 — 1(a) of the Probate Act of 1975 provides, as pertinent:

“Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6 — 4, or of a foreign will in accordance with the provisions of Article VII, any interested person may file a petition in the proceeding for the administration of the testator’s estate or, if no letters were issued, in the court in which the will was admitted to probate, to contest the validity of the will. The representative, if any, and all heirs and legatees of the testator must be made parties to the proceeding and the petition must state, if known, their names and post office addresses and whether any of them is a minor or disabled person.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. IIOV2, par. 8 — 1(a).

It is well established that the statutorily prescribed six-month period for bringing a will contest is jurisdictional and, if a will is not contested in a direct proceeding within that time, its validity is established. (Robinson v. First State Bank (1983), 97 Ill. 2d 174, 183, 454 N.E.2d 288; Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 416, 243 N.E.2d 236.) In this case we must determine whether the place in which a timely will contest is filed is also jurisdictional.

This court considered similar circumstances in Higgins v. Stockman (1982), 111 Ill. App. 3d 457, 444 N.E.2d 191, appeal denied (1983), 94 III. 2d 552, wherein the will contestants filed their petition within the six-month period, but also did so in a division of the circuit court other than the probate division where the estate was being administered. The court there concluded that the statutory requirement that a will contest be filed in the same proceeding in which the estate was administered was a mandatory prerequisite, but it had been waived by lack of objection by the administrator of that estate for over six years. The court also held in Higgins that while the time of filing a will contest is clearly jurisdictional, because of historical and public policy considerations relating to will contests, the jurisdictional grant of the Illinois Constitution to circuit courts (Ill. Const. 1970, art. VI, sec. 9) would preclude a holding that the statutorily designated place in the circuit court for filing a will contest is also jurisdictional. (Ill Ill. App. 3d 457, 459.) Prior to the effective date of the Judicial Article of 1962, a will contest was a creature of statute and jurisdiction was thus dependent upon strict compliance with its terms. Since then, however, as it is a justiciable matter, the only condition precedent to the exercise of jurisdiction by the circuit court is that a will contest be filed within the time limited by the statute. In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1138, 443 N.E.2d 289, appeal denied (1983), 93 Ill. 2d 541; Watt v. Farmers State Bank & Trust Co. (1979), 71 Ill. App. 3d 455, 458, 389 N.E.2d 947. But see In re Estate of Spaits (1983), 117 Ill. App. 3d 142, 453 N.E.2d 39.

In the present case, the petition to contest decedent’s will was filed in the circuit court of Ogle County within six months after admission of the will to probate in that court. It should have been filed in the probate division in the same proceeding in which the estate was being administered but, instead, a new action was commenced in the chancery division of that court. It follows that plaintiffs failed to comply with the mandatory prerequisite of section 8 — 1(a), as the petition was not filed in the same proceeding as the estate within the requisite six-month period. Nor can we say that the executor waived compliance with this aspect of the statute, as in Higgins v. Stockman, for he sought dismissal of the petition on that grounds less than four months after it was filed.

The essential issue to consider in this case then is whether plaintiffs’ failure to initially comply with the procedural requirement of the statute that the will contest be filed in the proceeding for administration of the estate was cured when the trial court granted plaintiffs’ motion to transfer the petition from chancery to the probate proceeding after expiration of the six-month period. We conclude the procedural error was thus corrected.

The circuit courts have almost unlimited jurisdiction over all justi-ciable matters (Ill. Const. 1970, art. VI, sec. 9) and Supreme Court Rule 132 (87 Ill. 2d R. 132) provides that misdesignation of a case as to circuit court division shall not affect the jurisdiction of the court. Generally, the organization of the court into divisions is for administrative purposes only. (Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 968, 438 N.E.2d 558; In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 966-67, 412 N.E.2d 698.) Where a cause is filed in the wrong division of the circuit court, the appropriate remedy for such misfiling is to transfer the matter to the proper division rather than dismiss the suit. (Jamal v. Jamal (1968), 98 Ill. App. 2d 180, 188-89, 240 N.E.2d 246; Matchett v. Rose (1976), 36 Ill. App. 3d 638, 646-47, 344 N.E.2d 770.) A notable exception to the rule relates to the assertion of a claim against an estate under section 18 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. IIOV2, par. 18 — 1), but we do not consider that to be relevant here. See In re Estate of Worrell (1982), 92 Ill. 2d 412, 419, 442 N.E.2d 211.

As the circuit court of Ogle County acquired jurisdiction over the will contest upon the timely filing of the petition, omitted necessary parties could be joined at any time prior to final judgment (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1138, 443 N.E.2d 289; Watt v. Farmers State Bank & Trust Co. (1979), 71 Ill. App. 3d 455, 458, 389 N.E.2d 947, appeal denied (1979), 79 DI. 2d 619; Ill. Rev. Stat. 1981, ch. 110, par. 2-616; Ill. Rev. Stat. 1981, ch. IIOV2, par. 1-6), and the matter transferred to the proper proceeding in that court in the exercise of its jurisdiction. (Holland Asphalt Paving Co. v. Bank Building & Equipment Corp. (1978), 57 Ill. App. 3d 751, 753, 373 N.E.2d 501.) The executor has not asserted any prejudice would accrue to decedent’s estate or the beneficiaries under the will if the petition contesting it is transferred to the correct proceeding seven months after the expiration of the period within which it should have originally been filed there. (See In re Estate of Breault (1969), 113 Ill. App. 2d 356, 362, 251 N.E.2d 910, appeal denied (1969), 42 Ill. 2d 583.) There is no explanation in the record why the executor’s motion to dismiss was not adjudicated until five months after it was filed, and the will contestants sought transfer prior to resolution of the motion to dismiss their petition. We conclude the trial court did not abuse its discretion in ordering the transfer.

Accordingly, we respond in the negative to certified questions one and two and in the affirmative as to question three. The judgment of the circuit court is affirmed and this cause remanded for further proceedings.

Judgment affirmed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE ROMITI JUSTICE JIGANTI,

text:
    WILLIAM MICHAEL GUNDERSON, Plaintiff, v. GOODALL RUBBER COMPANY et al., Defendants—(Goodall Rubber Company, Third-Party Plaintiff-Appellant, v. Schwerman Trucking Company, Third-Party Defendant-Appellee).
    First District (4th Division)
    No. 82—2140
    Opinion filed December 29, 1983.

      JIGANTI, J., dissenting.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Lloyd E. Williams, Jr., of counsel), for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Richard G. French and Dorothy F. French, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Third-party plaintiff Goodall Rubber Company appeals from the dismissal with prejudice of its third-party action for indemnification against third-party defendant Schwerman Trucking Company. Goodall contends that the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455, overruled a line of appellate court cases which had barred a manufacturer or distributor who had been sued in strict liability from maintaining a “downstream” indemnity action.

Because we find that the holdings of Skinner and its companion cases are not applicable to this cause we affirm the trial court’s dismissal without reaching the merits of Goodall’s construction of those cases.

On August 25, 1977, William Gunderson, an employee of Schwer-man, was severely injured when a rubber hose ruptured, causing a caustic substance to bum his eyes. Gunderson filed a personal injury suit, based on a products liability theory, against, inter alia, the manufacturer of the hose (Goodall Rubber Company of Canada, Limited), the distributor of the hose (third-party plaintiff Goodall), and a broker (Hi-Way Power and Equipment Corporation) which had ordered the hose from Goodall and then sold it to Schwerman.

While that action was pending Goodall filed a third-party action against, inter alia, Schwerman seeking contribution. That contribution action was stricken on the motion of the third-party defendants. Ultimately Gunderson’s products liability action was successful and a verdict assessing damages against all three defendants was returned. The jury also found in a special interrogatory that at the time the hose left defendants’ control it was in an unreasonably dangerous condition that was a proximate cause of the injury to Gunderson.

During the pendency of defendants’ post-trial motions Goodall obtained leave to file a second amended complaint against, inter alia, Schwerman. This complaint added a new count seeking indemnification against Schwerman. In that count Goodall alleged that its liability, if any, was passive and that of Schwerman was “active” in that Schwerman improperly used the hose. The trial court granted Sch-werman’s motion to dismiss and this appeal ensued. Goodall’s notice of appeal also sought review of the dismissal of its contribution counts against Schwerman, but Goodall appears to have abandoned that portion of its appeal by only requesting that this court reverse and remand as to the indemnity action. In any event it is clear that the contribution action was barred because it was based on a cause of action arising before March 1, 1978. Ill. Rev. Stat. 1979, ch. 70, par. 301; Van Slambrouck v. Economy Baler Co. (1983), 120 Ill. App. 3d 843.

Goodall concedes that under the specific holdings of this court in such cases as Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, 301 N.E.2d 41, affirmed on other grounds (1974), 57 Ill. 2d 542, 316 N.E.2d 516, Stanfield v. Medalist Industries, Inc. (1974), 17 Ill. App. 3d 996, 309 N.E.2d 104, and Stevens v. Silver Manufacturing Co. (1976), 41 Ill. App. 3d 483, 355 N.E.2d 145, reversed (1977), 70 Ill. 2d 41, 374 N.E.2d 455, it would be barred from bringing an indemnity action “downstream” against an employer-user such as Schwerman. However Goodall contends that in Stevens and Skinner our supreme court, addressing the issue for the first time, held that such “downstream” indemnity actions, brought under a theory of active/passive negligence, were permissible.

We do not reach the merits of this contention, which has been the subject of a great deal, of discussion and speculation. (We have recently reviewed this controversy in Van Slambrouck v. Economy Baler Co. (1983), 120 Ill. App. 3d 843.) We hold, as we did in Van Slambrouck, that because the holdings of Skinner, Stevens, and the companion case of Robinson v. International Harvester Co. (1978), 70 Ill. 2d 47, 374 N.E.2d 458, were specifically made applicable only to causes of action arising on or after March 1, 1978, Goodall’s indemnity action was properly dismissed as arising from an injury occurring before that date.

Goodall contends in a single footnote to its brief that this prospective application related only to those portions of the opinions relating to contribution. We find no such limitation in the clear language of the court. We also note that this court has previously construed Skin ner in a similar fashion in two cases which also concerned the application of alleged changes in the law of indemnity. Phillips Petroleum Co. v. Norfolk & Western Ry. (1981), 96 Ill. App. 3d 1093, 1096, 422 N.E.2d 138, 141; Old Second National Bank v. Bynal Products, Inc. (1979), 79 Ill. App. 3d 432, 434, 398 N.E.2d 626, 628.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.

JUSTICE JIGANTI,

dissenting:

In a trilogy of cases, the Illinois Supreme Court has clearly decided that the manufacturer of a defective product may proceed downstream to seek contribution from other allegedly culpable defend- j ants. In Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455, and Robinson v. International Harvester Co. (1978), 70 Ill. 2d 47, 374 N.E.2d 458, the court adopted and developed the theory of contribution among joint tort-feasors, thus permitting a manufacturer to maintain an action downstream for contribution. In doing so the court expressly reversed a century of rulings in a substantial body of case law. In my judgment the Illinois Supreme Court also sanctioned such a downstream action for cases involving the historic legal principle of indemnity. For a background discussion of the law of indemnity, see Restatement of Restitution secs. 76-102 (1937).

This case concerns indemnity, not contribution. The Illinois Appellate Court has ruled in a number of cases that a manufacturer may not seek indemnity against a downstream party, such as the employer in the instant case. The appellate court’s rationale is that public policy is contravened if a manufacturer is allowed to bring such a downstream action or that a manufacturer owes a more stringent duty to the injured plaintiff, which in turn prevents such an action. See Kossifos v. Louden Machinery Co. (1974), 22 Ill. App. 3d 587, 317 N.E.2d 749; Stanfield v. Medalist Industries, Inc. (1974), 17 Ill. App. 3d 996, 309 N.E.2d 104; Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, 301 N.E.2d 41, affd (1974), 57 Ill. 2d 542, 316 N.E.2d 516.

The Illinois Supreme Court has never specifically considered whether a manufacturer may proceed downstream against another allegedly culpable party in an indemnity action. The lead case, Skinner, concerned contribution, not indemnity. While the parties in Stevens and Robinson sought indemnity rather than contribution, both cases were reversed and remanded to the circuit court for proceedings consistent with the Skinner opinion. Skinner specifically attacks the rationale advanced in the appellate court cases which prohibit downstream actions for indemnity. Skinner states:

“Citing Texaco, Inc. v. McGrew Lumber Co., 117 Ill. App. 2d 351, Kossifos v. Louden Machinery Co., 22 Ill. App. 3d 587, and Burke v. Sky Climber, Inc., 57 Ill. 2d 542, the employer argues that a defendant held strictly liable in tort is precluded from seeking contribution ‘because public policy requires that its liability to an original plaintiff be considered active’ and that the duty imposed in strict liability is more stringent than in cases involving negligence. We do not agree. The public policy considerations which motivated the adoption of strict liability ' (see Suvada v. White Motor Co., 32 Ill. 2d 612) were that the economic loss suffered by the user should be imposed on the one who created the risk and reaped the profit, including everyone from the manufacturer on through to the seller or any one of them. When the economic loss of the user has been imposed on a defendant in a strict liability action the policy considerations of Suvada are satisfied and the ordinary equitable principles governing the concepts of indemnity or contribution are to be applied.” (70 Ill. 2d 1,14, 374 N.E.2d 437, 442-43.)

When Skinner, Stevens and Robinson are read together, I believe that the supreme court overruled the prior appellate court indemnity cases, thereby allowing downstream actions for indemnity, as well as for contribution.

The next question is whether this ruling should be prospective. In Skinner, the ruling concerning contribution was prospective; the supreme court utilized the rationale adopted in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 27, 163 N.E.2d 87, 97: “[A]n overruling decision should be given only prospective operation whenever injustice or hardship due to reliance on the overruled decisions would thereby be averted.” Both Skinner and Mo-litor concerned supreme court cases which were overturned by subsequent supreme court decisions. No such situation applies in this case. The supreme court was not overruling its own decision; it was overruling the decision of an appellate court. Consequently, prospective application is not appropriate.

For the reasons stated I would reverse the decision of the trial court.


author: JUSTICE CAMPBELL

text:
      In re MICHAEL R. MAC HARG, Jr., a Minor (Michael R. Mac Harg, Sr., Petitioner and Counterrespondent-Appellant, v. Linda Sue Bremer, Respondent and Counterpetitioner-Appellee).
    First District (1st Division)
    No. 83—1077
    Opinion filed December 30, 1983.
    John Roger Brandenburg, of Chicago, for appellant.
    Phillip C. Levatino, of Levatino & Levatino, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The issue presented by this appeal is whether section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)) authorizes an award of attorney fees appurtenant to a child custody petition where the parties are the natural parents of the minor child, but were never married to each other, and hence were never “spouses” within the literal language of section 508(a) of the Act.

The facts relevant to this appeal are not in dispute and may be briefly summarized as follows:

Petitioner-counterrespondent Michael Mac Harg, Sr. (hereinafter referred to as petitioner) and respondent-counterpetitioner Linda Bre-mer (hereinafter referred to as respondent) lived together from August 1977 to April 1981, but were never married to each other. The minor child, Michael Mac Harg, Jr., was born to them in July 1978. In May 1981, petitioner filed a petition for custody of the minor child. (Ill. Rev. Stat. 1981, ch. 40, par. 601(bXn).) The trial court denied the petition, awarded custody to respondent, ordered petitioner to pay child support, and formulated a visitation schedule; the court reserved the question of attorney fees.

Respondent subsequently filed a petition for attorney fees pursuant to section 508 of the Act. Petitioner contested the petition, inter alia, on the ground that section 508(a) of the Act explicitly limited the court’s authority to award attorney fees to cases where the parties were each other’s “spouses.” The trial court entered an order finding that section 508(a) of the Act applied to the instant case even though the parties were never married to each other and were not spouses seeking custody of the minor child.

Petitioner filed a petition for rehearing, which was denied by the trial court in a eight-page order. The trial court’s stated reasons for its ruling were: (1) that if petitioner failed to make court-ordered child-support payments, section 508(b) of the Act (effective January 1, 1982) would authorize an award of attorney fees to respondent arising out of an enforcement proceeding; (2) section 508(a) presumably applied to post-decree proceedings notwithstanding at that time there are no “spouses” but only “former spouses”; and (3) authority to award attorney fees in the case at bar is necessary to provide competent legal representation to respondent in order that she might defend against petitioner’s custody petition and so that respondent’s rights, and those of the minor child, would be protected.

The pertinent segment of section 508(a) of the Act provides:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in contention with the following:
(1) The maintenance or defense of any proceeding under this Act.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 40, par. 508(a).

In Illinois, attorney fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties; the authority of a trial court to decide matters relating to the Illinois Marriage and Dissolution of Marriage Act is limited to its specific statutory grant, especially when the court is asked to award attorney fees. (In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 486, 420 N.E.2d 796.) Thus, in Justema, the Second District Illinois Appellate Court reversed an award of prospective temporary attorney fees to a spouse in view of the language of section 508(a) of the Act which authorizes an award of attorney fees necessarily incurred by the spouse in connection with “[t]he costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under this Act.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(5).) The court in Justema held that the statutory-language had to be given its plain and ordinary meaning and that section 508(a) of the Act authorized attorney fees for legal services rendered, but did not grant specific authority for a court to award prospective attorney fees or costs. 95 Ill. App. 3d 483, 488.

Applying the Justema principles to the instant case, we must give the statutory language “spouse” in section 508(a) of the Act its plain and ordinary meaning. The term “spouse” refers to a legal wife or husband. (Sypien v. State Farm Mutual Automobile Insurance Co. (1982), 111 Ill. App. 3d 19, 22, 443 N.E.2d 706; Black’s Law Dictionary 1574 (4th ed. 1951).) Illinois does not confer that legal status on knowingly unmarried cohabitants (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 394 N.E.2d 1204), as our legislature has declared that common law marriages contracted in this State after June 30, 1905, are invalid. (Ill. Rev. Stat. 1981, ch. 40, par. 214.) Accordingly, we conclude that an award of attorney fees in a child custody proceeding is not authorized by section 508(a) of the Act where the parties were never married to each other. Although the trial court expressed great consternation concerning protection of the minor child’s interests and legal rights, we note that the Act specifically provides for the appointment of an attorney to represent the interests of a minor child with respect to his support, custody and visitation and grants the trial court authority to enter an order for attorney fees against “either or both parents.” Ill. Rev. Stat. 1981, ch. 40, par. 506.

For the- reasons set forth above, that portion of the circuit court’s judgment which ordered petitioner to pay attorney fees incurred by respondent to defend the child custody petition is reversed.

Judgment reversed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE LINDBERG

text:
    HORACIO N. LOPEZ, d/b/a Shorty’s Tap, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    Second District
    No. 82—926
    Opinion filed December 29, 1983.

      Donald H. Geiger, of Waukegan, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Michael J. Cum-mins, of Waukegan (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

The holder of a local liquor license appeals from the revocation of his license, which was affirmed in the circuit court of Lake County. Because much of the evidence of wrongful conduct was not fairly related to the control of liquor, we reverse and remand for the imposition of a sanction, if any, less than revocation.

Plaintiff, Horacio N. Lopez (Lopez), had a city of Waukegan liquor license to operate a tavern known as Shorty’s Tap. At the time of the occurrences at issue here, Lopez’ son Temo was acting as manager of the tavern. On the evening of November 30, 1981, while Temo was beginning to close the tavern, three black men entered with a television set and attempted to sell it to one of the patrons. Temo told them to leave and they argued. Temo and two of his patrons physically fought with the three men to force them out. The three left, leaving the television set behind.

A few minutes later, as Temo continued the process of closing the tavern, he received a telephone call from his father. The three men ejected by Temo had proceeded to Lopez’ home located about a block from the tavern. Temo grabbed a pistol kept inside the bar and, along with two patrons, went to the Lopez home. There, a fight ensued between the three black men and Temo and his friends. The three black men entered their car to drive away. Shots were fired at the fleeing car, both by Temo with the gun from the bar and by Lopez with a gun from the house. The car was later examined by police and found to be damaged by bullet holes and to have blood on one seat.

Temo returned to the tavern. Several policemen then arrived and saw Temo reloading his gun. Temo was in a very agitated state, waving his arms around, yelling and screaming obscenities at the black men. He appeared intoxicated to at least two of the officers. He refused to cooperate with the police and was arrested.

Defendant Waukegan Liquor Control Commission revoked Lopez’ local liquor license on the basis of the recited incidents. That revocation was affirmed by defendant Illinois Liquor Control Commission. Lopez then filed a complaint for administrative review in the circuit court, which also affirmed the revocation. Lopez now appeals to this court, contending that (1) his right to due process was violated in various ways in the proceedings before the local liquor control commission, (2) the decision of that commission was against the manifest weight of the evidence, and (3) the sanction of revocation was too severe under the circumstances of this case.

With regard to the first contention, we note that, although a liquor license constitutes a privilege and not a right, a person is entitled to fair treatment in the granting, denial, suspension or revocation of these licenses. (Jager v. Illinois Liquor Control Com. (1979), 74 Ill. App. 3d 33, 392 N.E.2d 176.) A licensee at a hearing for revocation or suspension of his liquor license must be afforded the basic rights of procedural due process. Golden Egg Club, Inc. v. Illinois Liquor Control Com. (1970), 124 Ill. App. 2d 241, 260 N.E.2d 329.

First, Lopez maintains that his right to due process was violated by the fact that there were no standards of procedure or rules of evidence to be followed in the revocation hearing before the local liquor control commission. As an illustration of the prejudice resulting from this lack of standards, he points to one instance where an out-of-court statement was allowed into evidence over his counsel’s objection that it was hearsay.

Section 5 of article VII of the Liquor Control Act, a/k/a the Dram-shop Act, sets out the procedures required before a local liquor control commissioner may revoke or suspend a local liquor license. (Ill. Rev. Stat. 1979, ch. 43, par. 149.) The provisions of this statute, read together with the case law and the requirement that a licensee must be afforded the basic rights of procedural due process, constitute sufficient procedural and evidentiary standards.

With regard to the alleged use of hearsay evidence, the evidentiary rule against the use of hearsay has been held applicable generally to license revocation hearings before a local liquor control commissioner. (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745; see Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102; Rincon v. License Appeal Com. (1978), 62 Ill. App. 3d 600, 378 N.E.2d 1281.) In admitting the challenged testimony over Lopez’ hearsay objection, the commissioner here did not indicate a belief that hearsay evidence was admissible. Rather, he overruled the objection after the attorney for the local commission argued that the out-of-court statement was offered, not for its truth, but for the fact that the statement was made. Lopez’ assignment of error is not that this particular alleged hearsay was improperly admitted, but rather that his right to due process was violated by the lack of rules barring incompetent evidence such as hearsay. Whether or not this particular alleged hearsay was improperly admitted, the commissioner’s treatment of it does not demonstrate a failure to abide by the rules of evidence so as to violate procedural due process.

Lopez next maintains that he was denied due process in that the notice of charges against him did not adequately advise him of the precise law or ordinance he had allegedly violated. Section 5 of article VII of the Liquor Control Act permits revocation if the licensee has violated any of the provisions of that act or any ordinance of the municipality or any rule of the local liquor control commission. (Ill. Rev. Stat. 1979, ch. 43, par. 149.) Case law has required the specific itemization of the statute, ordinance, rule or regulation the licensee is charged with violating. Beer & Brat, Inc. v. Illinois Liquor Control Com. (1976), 44 Ill. App. 3d 713, 358 N.E.2d 736; Daley v. Resnick (1972), 5 Ill. App. 3d 683, 284 N.E.2d 39.

The local commission’s notice of charges and hearing on suspension or revocation of liquor license addressed to Lopez alleged that certain conduct constituted “a breach of the peace and a menace to the health, safety and welfare of the public in violation of Section 24 — 11—3 and 4 — 27(2) of the City of Waukegan Ordinance and Chapter 43, Illinois Revised Statutes, Section 120(2), 149 and 185 [and] Rule 3 (1(a) and (4)) of the Rules and Regulations of the Illinois Liquor Control Commission.” This specifically itemizes the statutes, ordinances, rules or regulations Lopez was charged with violating by the conduct alleged in the notice. Lopez’ arguments to the effect that the evidence did not support the findings that these laws had been violated go to his sufficiency-of-the-evidence issue. We hold that he was given sufficient notice of the violation charged.

Lopez’ final argument with regard to due process is that he was denied a fair and impartial hearing. Administrative due process requires a full and impartial hearing. (Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745.) Lopez maintains that this requirement was violated here because there was no division among the police, prosecutorial, and adjudicatory functions. He points out that the police chief and the counsel for the commission, who prosecuted him, are answerable to the mayor and the mayor sits in judgment at the revocation hearing as chairman of the local liquor control commission.

However, the combination of the judging and investigating or prosecuting functions in the same agency is not a violation of due process. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42; American Acoustic & Plastering Co. v. Department of Revenue (1982), 107 Ill. App. 3d 616, 437 N.E.2d 419.) Although conferring investigative and adjudicative powers on the same individuals may create the possibility of an unconstitutional risk of bias, one who asserts this contention necessarily carries or assumes a difficult burden of persuasion: he must overcome the presumption of honesty and integrity in those serving as adjudicators and he must convince that, under a realistic appraisal of psychological tendencies and human weaknesses, conferring the dual powers poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 55-56, citing Martin-Trigona v. Underwood (7th Cir. 1975), 529 F.2d 33, 37.

Here, Lopez merely notes one question put by the mayor to the police chief at the. revocation hearing. The mayor asked, in light of the earlier testimony regarding a stolen television set brought to the tavern, whether there had ever been reports that there was a fencing operation at the tavern. Lopez suggests that the “obvious innovation” for this question had to have been prior discussions between the mayor and the police chief. However, the mayor certainly might have thought of the question himself. In any event, we hold that this does not meet the heavy burden described in Scott to establish a due process violation.

Lopez next contends that the decision of the local commission was against the manifest weight of the evidence. For purposes of review, findings of a local liquor control commission are prima facie true and correct. (Crazy Horse, Inc. v. Byrne (1981), 97 Ill. App. 3d 434, 422 N.E.2d 1074.) The trial court and appellate court may not reweigh the evidence but must determine whether the result reached is just and reasonable in light of the evidence presented; the appellate court may set aside the decision of the local liquor control commission only if the manifest weight of the evidence supports the opposite conclusion. Crazy Horse.

Here, the local liquor control commission’s order enumerated its findings of facts as follows:

“1. On November 30, 1981, and for a period of approximately three years prior to that date, Horacio N. Lopez, licensee, had relinquished the control and operation of the licensed premises to his two sons.
2. On the aforesaid date, Temo Lopez, son of the licensee, and in his capacity as an employee and manager of the licensee, by physical force, ejected three individuals from the licensed premises who were attempting to sell, while on the premises, what was suspected to be a stolen television.
3. At that time Temo Lopez consciously knew he was retaining possession of the television set while forcing the three individuals who were in possession of it to leave.
4. The three individuals then proceeded to the licensee’s home to complain about these events at which time a serious altercation occurred, which involved both the licensee and his son, Temo, discharging firearms at the same three individuals as they attempted to leave the home of Horacio N. Lopez. It appears one of the three individuals was wounded by one of the gun shots.
5. The gun used by Temo Lopez was a 25-caliber pistol, which was kept loaded under the counter of the bar at the licensed premises.
6. When police arrived at the licensed premises, Temo had . returned and was found at the bar reloading the weapon.
7. Temo refused to cooperate with the police in investigating the series of events originating inside the tavern and continuing on to the residence of the licensee, Horacio N. Lopez.
8. There has been no testimony offered by the Respondent that the 25-caliber weapon taken from the bar in pursuit of the three individuals was legally registered to either the licensee, Horacio N. Lopez, or the manager, Temo Lopez.
9. As a result of Temo Lopez’ conduct, not only did he disrupt the investigation of the aforesaid incidents, but he struck one of the police officers present.
10. That the action of Temo Lopez and Horacio N. Lopez in reaction to the incident arising out of the operation of the tavern is sufficiently related to the operation of the tavern to be considered as just cause of revocation or suspension of the liq-nor license in question.”

Our examination of the record has shown each of the first nine findings to be sufficiently supported by testimony, with the following exceptions. First, finding no. 3 states that Temo Lopez consciously retained possession of the television set after forcing the three men to leave the tavern. This might be read to imply that Temo intended to wrongfully retain possession of the property of someone else. The only testimony on this point was given by Temo and two patrons of the tavern that evening, David Martinez and Alfredo Casillas. The testimony of all three is consistent: the three black men who entered the tavern to sell the television set left it behind after Temo and others fought them to force them to leave the premises. Temo then instructed Casillas to “get it out of here” before leaving to go to his parents’ home. Casillas testified that Temo wanted him to get the set out of the business in case the police arrived “in case it was hot stuff.” Casillas stated that he put it next door and gave it to the police when they subsequently asked him to get it.

The evidence does not show that Temo had an intention to retain the television set. Rather, he was concerned with forcing the three men to leave and with not letting the police see stolen property in his tavern. The worst that can be said about Temo’s conduct with regard to the television set is that he failed to immediately call the police to pick it up and that he tried to conceal it from them, not to retain it, but for fear of the repercussions of possessing stolen property.

Second, finding no. 8 states that Lopez offered no testimony that the gun kept at the tavern and used by Temo was registered to either Temo or his father. While this is a true statement, it does not alone establish any wrongful conduct. Aside from the question of the burden of proof, the commission does not cite any authority establishing a legal duty upon either Lopez or his son to have the gun registered to his name. The circuit court, in its order affirming the actions of the local commission and the State commission, found that there was sufficient evidence to warrant the revocation “regardless of the questionable charge of possession by defendant [sic] of a non-registered gun behind the bar of the licensed premises.”

Third, finding no. 9 stated that Temo “struck one of the police officers present.” The testimony of the five policemen present, including the officer who was struck, all presented the same version of events: as Temo waved his arms around in a highly agitated manner, his hand struck one of the officers. While Temo was being uncooperative and disorderly, the evidence does not show that Temo struck a policeman with the intent to do bodily harm.

It is with regard to finding no. 10, however, where we make our most significant departure from the local commission. Statutorily, the violation of any statute, ordinance or regulation generally constitutes just cause for revocation of a liquor license. (Ill. Rev. Stat. 1979, ch. 43, pars. 112, 149; see Askew v. Daley (1978), 62 Ill. App. 3d 370, 379 N.E.2d 75.) It has been held, however, that reasonable statutory construction limits this rule to violations of statutes, ordinances, or regulations that are fairly related to the control of liquor. (Askew; Nappi v. License Appeal Com. (1977), 50 Ill. App. 3d 329, 365 N.E.2d 612.) The local liquor control commissioner in determining cause for revocation is vested with broad discretionary power to be exercised reasonably. Askew.

The gravamen of the charges against Lopez is that his manager, Temo, breached the peace and menaced the public safety in violation of Waukegan ordinances by using physical force to eject the three men with the television set, continuing the altercation at his parents’ home, together with Lopez shooting firearms at the men or their automobile, and refusing to cooperate with the police and disrupting their investigation. It is clear that the licensee, Lopez, may be held responsible for the conduct of his employee and manager, Temo, under the Liquor Control Act. (Ill. Rev. Stat. 1979, ch. 43, par. 185; Byrne v. Stern (1981), 103 Ill. App. 3d 601, 431 N.E.2d 1073.) It is also clear that the act by the licensee or his agent of discharging a weapon on the licensed premises at a patron may generally be considered just cause for revocation. (See Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745; Daley v. Richardson (1968), 103 Ill. App. 2d 383, 243 N.E.2d 685; Daley v. Kilbourn Club, Inc. (1965), 64 Ill. App. 2d 235, 211 N.E.2d 778.) This is especially so when the offender fails to notify the police about the altercation. (See Collins v. Daley (1970), 131 Ill. App. 2d 108, 266 N.E.2d 453; Tice v. License Appeal Com. (1971), 3 Ill. App. 3d 125, 278 N.E.2d 540 (abstract).) However, in Nappi v. License Appeal Com. (1977), 50 Ill. App. 3d 329, 365 N.E.2d 612, the firing of a gun at her husband by a barmaid was not cause for revocation where she was not acting within the scope or course of her employment nor in furtherance of the licensee’s business. The Nappi court held that the purely personal act of the barmaid, while constituting the offense of aggravated battery, was not fairly related to liquor control.

The important question here is whether Lopez’ and Temo’s conduct at the former’s home was fairly related to the control of liquor. All of the cases cited in the preceding paragraph involved conduct which took place on the licensed premises. While the dispute here originated at the tavern and Temo returned there, the firing of the weapons took place at Lopez’ home. The dispute originated at the tavern where Temo ejected the men in an attempt to control the activities and patrons of the establishment. He did not, however, immediately pursue them. Rather, he only left the tavern after his father called, at which point Temo believed the personal safety of his parents to be threatened. The altercation that took place at the Lopez home was not only physically removed from the licensed premises, but also removed from the motive of control over the activities and patrons of the tavern. Thus, the conduct of Temo and Lopez off the licensed premises, like that of the barmaid in Nappi, was personal and not fairly related to liquor control.

After noting the bases for “cause” in several liquor license revocation cases, the court in Weinstein v. Daley (1967), 85 Ill. App. 2d 470, 482, 229 N.E.2d 357, 364, summarized that the cases evidence “judicial recognition of the public’s increased susceptibility to vice and corruption in the presence of alcoholic beverages.” While this is not necessarily to say that only conduct taking place on a licensed premises may serve as just cause for liquor license revocation, it does emphasize that the Liquor Control Act will be reasonably construed so that only offenses fairly related to the control of liquor may so serve.

Subtracting the conduct at the Lopez home from the charges against Lopez and keeping in mind our exceptions to the findings of the local commission, we are left essentially with Temo’s forcible ejection of the three men, his failure to immediately notify the police about the television set he believed to be stolen, and his disruptive behavior and lack of cooperation with the police who arrived at the tavern after it was closed. Under the circumstances of this case, we hold that this conduct alone was insufficient to warrant the revocation of Lopez’ license and that the imposition of that sanction was an abuse of discretion by the local commission. See Byrne v. Stern (1981), 103 Ill. App. 3d 601, 431 N.E.2d 1073.

Accordingly, we reverse the order of the circuit court of Lake County and remand to the Waukegan Liquor Control Commission for the imposition of a reasonable sanction, if any, less than revocation and consistent with this opinion.

Reversed and remanded.

NASH and REINHARD, JJ., concur.


author: JUSTICE HARTMAN

text:
      In re ESTATE OF VICTORIA GARBALINSKI, Deceased—(Walter Garbalinski et al., Petitioners-Appellants, v. Florence Bolin, Ex’r of the Estate of Victoria Garbalinski, Respondent-Appellee).
    First District (2nd Division)
    No. 83—924
    Opinion filed December 27, 1983.
    Michael H. Rotman and Julie A. Zaugg, both of Rotman, Medansky & Elovitz, Ltd., of Chicago, for appellants.
    Patrick J. Williams, of Law Offices of Terry A. Ekl, of Chicago, for ap-pellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The will of Victoria Garbalinski (decedent) was admitted to probate in July 1979. An action was brought by Walter Garbalinski and Angeline Sareney, her son and daughter (contestants) to set it aside. Florence Bolin, another daughter and executor of the estate (executor), sought to uphold the will. A motion for summary judgment was granted in favor of the executor. Contestants’ subsequent motion to reconsider was denied, from which order this appeal is taken.

The issues raised on appeal include whether: (1) the existence of a genuine issue of material fact precluded summary judgment; and (2) the circuit court abused its discretion in denying the motion to reconsider.

Decedent’s will was admitted to probate in July 1979. The same month and year contestants filed their petition to set it aside. The petition itself is not included in the record; however, it is uncontradicted that the principal averment contained in the petition is decedent lacked testamentary capacity at the time of the will’s execution because she “was not of sound mind and memory but by reason of extreme age was mentally incapacitated from making a will [sic] or a proper distribution of her property.”

To the executor’s motion for summary judgment was attached a notice to produce and the reply to it. No affidavits were submitted in support of the motion. The notice to produce requested statements of persons having knowledge of the issues of the case, other data and medical reports relating to decedent’s mental capacity; names of expert witnesses and individuals with knowledge of her mental capacity; and, correspondence and documents intended to be used at trial. Contestants’ reply to the notice gave the names of expert witnesses, but answered “no statement exists” or “none exist” to the other requests. Contestants filed a response to the motion for summary judgment, with no attachments, which denied allegations made in the summary judgment motion that no medical reports, other data, diagnoses or correspondence existed or were relied upon as bases for the petition to set aside the will, claiming that the contestants will rely upon “oral evidence at trial of a number of witnesses, whose names were supplied” in contestants’ answer to the notice to produce. The executor filed a reply attaching copies of the transcript of the testimony of the "witnesses to the will and an uncertified copy of two pages of excerpts of testimony from the attorney who prepared the will, both, in support of decedent’s sound mind. No affidavits or any other documents were filed. Based on the aforementioned documentation, the circuit court found no genuine issue of material fact and granted the motion for summary judgment.

Contestants thereafter filed a motion to reconsider the summary judgment, attaching a list of 61 documents and an affidavit of executor’s former attorney in this matter. The pertinent parts of the list included dates of checks, and their amounts; dates of correspondence between executor, contestants and decedent; and, dates of physicians’ statements. The affidavit included statements that: (1) the executor’s former attorney had received from contestants’ attorney numerous letters written by decedent as well as medical reports and doctors’ statements; (2) upon his withdrawal as attorney for the executor, he surrendered some of the documents to the executor herself while retaining the remainder; and (3) he has never been contacted by any other attorney for the executor regarding the existence of the statements. No other documents were included in the motion to reconsider. The executor filed no reply to the motion.

Arguments of counsel on the motion to reconsider revealed that: the executor’s present attorney is the fifth attorney to represent her in this case; 61 exhibits were supplied to a former attorney during a deposition in 1981; in replying to the executor’s present attorney’s motion to produce, contestants’ counsel reviewed his notes, realized 61 documents had already been produced and dictated to his secretary that he had “no other” documents although she typed “none exist” in the reply to the motion; contestants’ counsel did not supply documents to the present attorney assuming that the former attorney would have forwarded them to his successor, but admittedly failed to communicate to contestants’ co-counsel the existence of the documents previously supplied to the former attorney; contestants’ co-counsel had a folder of 150 documents, including the 61 which were copied and given to executor’s former attorney; and executor’s present attorney first became aware of the documents when presented with contestants’ motion to reconsider. The circuit court denied the motion to reconsider.

I

Contestants contend that the summary judgment was based upon the executor’s allegation that no medical reports, data, diagnosis, . memorandum or correspondence exist, yet the existence of those documents was shown to the court, and that their existence raises a genuine issue of material fact. The executor maintains that the absent documents had always been in contestants’ possession and were available when the summary judgment motion was presented. She claims that had contestants deemed the documents relevant to the issue presented in the motion, they should have filed them. The executor notes that the lower court specifically inquired as to additional documents other than those presented and contestants answered there was nothing more to be presented. She also asserts that contestants failed to support their position with any offer of proof and failed to raise any evidentiary facts.

Summary judgment is properly granted when pleadings, depositions, admissions and affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005; Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648; Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 440 N.E.2d 1033.) Although a party is not required to prove his case at summary judgment, some facts must be presented to support the elements of its claim. (Technical Representatives, Inc. v. Richardson-Merrell, Inc. (1982), 107 Ill. App. 3d 830, 438 N.E.2d 599; Prince v. Wolf (1981), 93 Ill. App. 3d 505, 417 N.E.2d 679.) If the party moving for summary judgment supplies evidentiary facts which, if uncontradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint or answer alone to raise issues of material fact. Burks Drywall, Inc. v. Washington Bank & Trust Co.

In her motion for summary judgment, the executor claimed that there was no genuine issue of material fact regarding decedent’s testamentary capacity because the answer to her request for production of documents failed to provide any evidence to support contestants’ claim.

Contestants argue that the uncontradicted pleadings alone presented a question of fact, since the executor filed no affidavits with her summary judgment motion; however, attached to the executor’s reply were transcripts of testimony of witnesses to the will and excerpts from the deposition of the attorney who prepared the will in which they stated they believed decedent was of sound mind at the time of the will’s execution. Contestants’ response to the motion for summary judgment included no facts to support their claim, appearing to rely upon their proposed experts’ testimony to be produced at trial, whose names had been set forth in response to the executor’s notice. Therefore, although the executor’s motion for summary judgment failed to include documentation in support of her motion, her reply did so. Contestants were thereafter otherwise obligated to identify any issue of fact and could not rely upon their petition to set aside the will or their response to the summary judgment motion alone to do so. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; Burks Drywall, Inc. v. Washington Bank & Trust Co.) Summary judgment was properly granted under this posture of the case.

II

Contestants claim the circuit court abused its discretion by failing to consider the. list of documents and an affidavit attached to their motion to reconsider summary judgment, because the additional information had not been brought to the court’s attention previously due to a failure of communication between counsel and co-counsel. They assert that they had also made known the names of four expert witnesses who would be called upon by contestants to show decedent’s testamentary incapacity. The executor maintains that in the interest of finality, a court is not required to consider affidavits filed after the hearing and judgment, yet the court here allowed contestants to file the list of documents and affidavit after judgment, and properly denied the motion to reconsider on the grounds of failure to establish a genuine issue of material fact. She contends that a list of documents without reference to competent factual proof of their contents does not give rise to a factual basis supporting contestants’ claim.

A court has discretion to allow affidavits to be filed after a motion for summary judgment has been decided. (Des Plaines Motor Sales, Inc. v. Whetzal (1965), 58 Ill. App. 2d 143, 148, 206 N.E.2d 806; Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc. (1980), 81 Ill. App. 3d 90, 95, 400 N.E.2d 1072.) In considering such new information, the court must apply the same standards employed when the motion was considered for the first time, and determine the presence or absence of a genuine issue of material fact. (Burks Drywall, Inc. v. Washington Bank & Trust Co.) Although the list of documents and affidavit submitted by contestants on their motion to reconsider do not set forth any facts regarding the decedent’s testamentary capacity, contestants’ counsel advised the court in argument that “*** certain of the exhibits are the doctors’ statements that state that *** [decedent] was totally unable to comprehend what she was doing at a time before the will was drawn. There are many . letters from *** [the executor] to *** [contestants] stating that ‘Mom doesn’t know what the hell she’s doing.’ ” The affidavit submitted in support of the motion to reconsider the summary judgment contained sworn statements of one of executor’s previous attorneys who averred that contestants’ counsel turned over to him copies of letters from executor to her brother, one of the contestants, medical reports and numerous doctors’ statements in compliance with all discovery requests made by executor. Thus, executor and her attorney knew of the documents in early 1982, about one year before summary judgment was granted.

Facts cannot be found in documents when the documents themselves or an attestation as to their contents have not been presented to the court. Under ordinary circumstances, the opposing party has the burden to raise in proper form an issue of material fact supporting his claim. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011, 415 N.E.2d 492; Burks Drywall, Inc. v. Washington Bank & Trust Co.) There is no reason why contestants here could not have filed depositions of persons connected with the documents or copies of the documents themselves authenticated in accordance with Supreme Court Rule 191 (87 Ill. 2d R. 191). Nevertheless, the moving party is not entitled to summary judgment unless the motion has established the right to that judgment as a matter of law (Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544; Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12), free from doubt and clear beyond question. Patel v. Burke (1981), 102 Ill. App. 3d 554, 430 N.E.2d 162; Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 406 N.E.2d 946.

The relationship of an executor or administrator to an estate is fiduciary in character. (In re Estate of Knoes (1983), 114 Ill. App. 3d 257, 264, 448 N.E.2d 935; In re Estate of Kuhn (1967), 87 Ill. App. 2d 411, 419, 231 N.E.2d 97.) Although executor here knew of and possessed copies of the documents questioning decedent’s mental capacity to make a will, she persisted in her claim that no documents existed which raised a material issue of fact as to decedent’s competency to make a will in her motion for summary judgment and in argument opposing the motion for reconsideration of the judgment. Of course, an executor has the duty to defend a proceeding in which the will is being contested, as here. (Ill. Rev. Stat. 1981, ch. llO1^, par. 8 — 1(e).) That duty becomes limited, however, in those instances in which the executor knows of reasonable grounds to believe that the will may be invalid. (See In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 336, 326 N.E.2d 464; In re Estate of James (1956), 10 Ill. App. 2d 232, 134 N.E.2d 638.) As a fiduciary to persons having an interest in the estate, the executor is bound to the highest standard of fair dealing and diligence. (Nonnast v. Northern Trust Co. (1940), 374 Ill. 248, 261, 29 N.E.2d 251; In re Estate of Storer (1971), 131 Ill. App. 2d 1049, 1054, 269 N.E.2d 352.) In the present case, executor did not fulfill that standard in her representation to the court that such documents did not exist when she knew that they did, even though contestants’ attorneys negligently or otherwise failed to make them available to the court in appropriate form.

It is highly commendable to dispose of litigation with celerity and dispatch; however, more important is that justice be done. (Greer v. Checker Taxi Co. (1973), 10 Ill. App. 3d 814, 817, 295 N.E.2d 71.) Under the circumstances of this case, it cannot be said that executor’s right to summary judgment was free from doubt or that executor was entitled to judgment as a matter of law. The order denying the motion to reconsider is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DOWNING, P.J., and PERLIN, J., concur.


author: JUSTICE MEJDA

text:
    JOHN NALIVAIKA et al., Plaintiffs-Appellants, v. KELLY F. MURPHY et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—154
    Opinion filed December 23, 1983.

      Joseph Michael O’Callaghan and Alice E. Dolan, both of O’Callaghan and Waller, of Chicago, for appellants.
    Richard T. Ryan, of Flynn, Galvin & Ryan, of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs appeal from the judgment of the circuit court which denied their post-trial motion to vacate the dismissal of the amended complaint. The amended complaint was in two counts and sought recovery under separate theories for attorney fees expended in successfully defending against a lawsuit brought by third parties allegedly as a result of the actions of the defendants in this case. The issue on appeal is whether the amended complaint states a cause of action for which such attorney fees (the only element of damages claimed in the amended complaint) may be recovered. We affirm as to count II, and reverse and remand as to count I.

The amended complaint alleged that defendants Kelly E Murphy, Stella Murphy, Joseph Nolan and Helen Nolan held legal or equitable interests in a land trust which held title to certain real property. On december 29, 1977, defendants contracted with Worth Bank and Trust on behalf of Leon Que and Amelia Que to sell the legal and beneficial interest in the property to the Ques. Defendants subsequently refused to perform the contract. Thereafter, defendants contracted with plaintiff John Nalivaika to transfer ownership of the real estate. Nalivaika was unaware of the prior contract with the Ques. Edward Vincent Theis, an attorney, whose estate and its administrator are also defendants herein, allegedly represented the other defendants in these negotiations and transactions. During the course of his representation, Theis assertedly told Nalivaika that the contract with the Ques was null and void, and that all differences with and claims by the Ques against the sellers of the property had been compromised, settled and resolved. The amended complaint further alleged that at the time these statements were made, they were false, fraudulent and misleading and made for the purpose of inducing Nalivaika to enter into the contract for the purchase of the land. In reliance on the statements, Nalivaika allegedly contracted to purchase the beneficial interest in the land trust. Subsequently, the Ques sued plaintiffs as owners of the property, alleging that plaintiffs had violated the Ques’ civil rights. Count I of the amended complaint asserted that as a result of the fraudulent misrepresentations to Nalivaika, plaintiffs had incurred legal fees, costs and expenses of $13,940.30, and prayed for damages in that amount.

Count II of the amended complaint was based on the same facts as count I, but alleged a different theory of recovery. Count II alleged that plaintiffs and defendants had entered into a written indemnity agreement which provided that defendants Kelly Murphy, Stella Murphy, Joseph Nolan and Helen Nolan “agree to indemnify John S. Nali-vaika and his heirs from any claim of Worth Trust #2568 & Mrs. Amelia Que.”

As already indicated, the trial court granted the defendants’ motion to dismiss the complaint and subsequently dismissed the Murphys and Nolans with prejudice.

Opinion

The case is before this court on the allowance of defendants’ motion to dismiss the complaint. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615.) “This motion admits all well-pleaded facts in the complaint and they must be taken as true.” (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 509, 439 N.E.2d 60.) “A motion to dismiss is a motion directed at the legal sufficiency of the pleadings. [Citation.] The motion should be granted only if it is clear that plaintiffs can prove no set of facts which will entitle them to relief.” (Alper Services, Inc. v. Wilson (1980), 85 Ill. App. 3d 908, 911, 407 N.E.2d 677.) Our analysis of the amended complaint will be guided by these standards.

Count I of the amended complaint adequately alleges facts constituting the tort of fraudulent misrepresentation (see generally Soules v. General Motors Carp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599), and defendants do not contest the legal sufficiency of these allegations. Accordingly, we proceed to the primary issue on appeal, which is whether attorney fees expended by plaintiffs in defending the action brought by the Ques may be recovered from defendants under the facts alleged in the amended complaint.

Count I alleges that as a result of the fraudulent misrepresentations made by defendants, plaintiffs suffered damages “in that they incurred legal fees, costs and expenses in the amount of *** $13,940.30 *** in an effort to defend against” the Ques’ lawsuit. “The general rule in Illinois is that one who commits an illegal or wrongful act is liable for all of the ordinary and natural consequences of his act.” (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 371, 413 N.E.2d 47.) Defendants assert, however, that absent a statute or contractual agreement, costs and attorney fees are not recoverable. While this statement correctly formulates the “American rule” (see generally Fleischmann Distilling Corp. v. Maier Brewing Co. (1967), 386 U.S. 714, 717-18, 18 L. Ed. 2d 475, 478, 87 S. Ct. 1404, 1406-07; Restatement (Second) of Torts sec. 914, comment a (1979)), that rule has no application in the instant case. Care must be taken to distinguish between the rule prohibiting the recovery of attorney fees from the losing party by the prevailing party in litigation and the rule allowing the recovery of attorney fees incurred in litigation with third parties necessitated by defendants’ wrongful act. (See Restatement (Second) of Torts sec. 914 (1979).) The rule against allowance of attorney fees “only forbids recovery of such fees incurred in litigation with the tortfeasor himself.” (Dobbs, Remedies sec. 9.2, at 599 (1973); see Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 372, -413 N.E.2d 47.) Where the attorney fees sought by the plaintiff are those incurred in actions with third parties brought about by a defendant’s misconduct, the litigation expenses are merely a form of damages and are accordingly recoverable from the defendant. (90 Ill. App. 3d 368, 372; see also Hiss v. Friedberg (1960), 201 Va. 572, 112 S.E.2d-871.) In applying the “no recovery” rule, the supreme court also recognized the distinction between that rule and the ordinary damages rule:

“While it is recognized that where the natural and proximate consequences of a wrongful act have been to involve the plaintiff in litigation with others, there may be a recovery in damages against the author of such act, measured by the reasonable expenses incurred in such litigation, (Choukas v. Severyns, 99 Pac. (2d) 942, 3 Wash. (2d) 91,) yet the rule is equally well established that where an action based on the same wrongful act has been prosecuted by the plaintiff against the defendant to a successful issue, he cannot in a subsequent action recover, as damages, his costs and expenses in the former action.” (Rit-ter v. Ritter (1943), 381 Ill. 549, 554-55, 46 N.E.2d 41.)

In the instant case, plaintiffs seek damages against defendants for litigation expenses incurred in defending a suit brought by third parties. The allegations of the amended complaint are accordingly outside the scope of the “no recovery” rule. Further, because the defense of the Ques’ suit was necessary to protect plaintiffs’ interests, the litigation expenses reasonably incurred in that suit are recoverable. (See Restatement (Second) of Torts sec. 914, comment b, Illustration 2 (1979).) The cases relied upon by defendants are adequately distinguished in Sorenson. (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 373-74, 413 N.E.2d 47.) We hold, therefore, that the trial court erred in dismissing count I of the amended complaint.

Count II of the amended complaint sought recovery under an express indemnity theory for litigation expenses incurred in defending against the Ques’ lawsuit. The indemnity agreement provided that defendants “further agree to indemnify John S. Nalivaika and his heirs from any claim of Worth Trust #2568 & Mrs. Amelia Que.” Attorney fees are recoverable where required by the specific terms of a written contract of indemnity. (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 253, 423 N.E.2d 1170.) In the instant case, the indemnity agreement does not mention attorney fees and the agreement is therefore not specific enough to support the allowance of such fees. The trial court correctly allowed the defendants’ motion with regard to count II.

For the reasons previously indicated, the judgment of dismissal as to count II is affirmed and as to count I is reversed and the cause remanded.

Affirmed in part; reversed in part and remanded.

SULLIVAN and LORENZ, JJ„ concur.