author: PRESIDING JUSTICE ROMITI

text:
    INTAGLIO SERVICE CORPORATION, Plaintiff, v. J. L. WILLIAMS & CO., INC., Defendant and Third-Party Plaintiff. — (McCarty Brothers, Inc., Third-Party Defendants; J. L. Williams & Co., Inc., Petitioner-Appellant; D. Calvin Sincock, Respondent-Appellee.)
    First District (4th Division)
    No. 82—228
    Rehearing denied March 8, 1983.
    Opinion filed January 27, 1983.

      Donald L. Johnson and Marty J. Schwartz, both of Chicago, for appellant.

      D. Calvin Sincock, of Chicago, for appellee, pro se.

   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

D. Calvin Sincock, who had represented J. L. Williams & Co., Inc., in a lawsuit by Intaglio Service Corporation, withdrew from that litigation when he was not paid. Williams, while refusing to pay the fee, has since that time sought to force defendant to turn over his files in that case. Pursuant to that end, it has filed the present petition for a summary proceeding to compel defendant to surrender his files in exchange for such security as the trial court might determine just. The trial court ordered that Williams pay over $67,500 as security, $27,500 to be given directly to Sincock, and the rest to be held in escrow pending determination of the amount of attorney fees owed in an action already filed by the attorney. The order provided that it did not constitute a final determination as to whether there were fees due or the amount of such fees. Williams appealed. We affirm, holding:

(1) the order was final and appealable since it terminated the action filed by Williams;

(2) Williams waived any alleged error in the court’s denial of the motion to dismiss when it failed to mention that order in its notice of appeal. In any event, since Williams failed to give the required 48-hour notice before filing the motion, the court did not abuse its discretion when it refused to dismiss the action unless Williams paid Sin-cock the attorney fees incurred in that 48-hour period;

(3) although by filing a suit to recover attorney fees Sincock became subject to discovery, he did not waive his right to his retaining lien;

(4) the trial court did not err in refusing Williams a jury trial since this is a summary proceeding; furthermore, Williams waived any right since it failed to make a jury demand when it filed its petition;

(5) the trial court did not err when it failed to allow Williams to put on its case since (a) there is nothing in the record indicating Williams sought to present any evidence, (b) there was no objection made at the time, (c) there was no offer of proof, and (d) even on appeal' Williams has failed to suggest any relevant evidence which it might have introduced; and

(6) the evidence supports the judgment of the trial court.

Several years ago Intaglio Service Corporation filed a lawsuit against J. L. Williams & Co., Inc. Williams filed a third-party action against McCarty Brothers, Inc. Williams hired Sincock to represent it in the litigation. Sincock sent Williams bills as his work progressed; Williams at that time neither objected to the amount charged nor paid it. Intaglio’s case was dismissed by the trial court. Intaglio appealed and this court reversed in Intaglio Service Corp. v. J. L. Williams & Co. (1981), 95 Ill. App. 3d 708, 420 N.E.2d 634, and remanded the case for trial. During the pendency of the appeal, Sincock withdrew as counsel because he had not been paid. While still refusing to pay, Williams and his new counsel demanded the files in order to defend Intaglio’s suit. Sincock refused to turn them over. He and his law firm filed a lawsuit entitled Burditt & Calkins v. J. L. Williams & Co. to recover costs advanced and fees for the over 1,350 hours of professional time spent. It appears from the record below that while not challenging the reasonableness of the amount charged per hour, Williams questioned whether the work was reasonable, contending that Sincock “churned” the filed and performed numerous unnecessary services.

While the Burditt case was pending, Williams on November 18, 1981, filed a petition to obtain the files so it could defend Intaglio’s suit; this procedure involves a summary proceeding. (Upgrade Corp. v. Michigan Carton Co. (1980), 87 Ill. App. 3d 662, 410 N.E.2d 159.) Williams did not at that time ask for a jury trial. On November 23, 1981, the court, after hearing arguments of counsel, ruled that Sin-cock had a retaining lien on the files; the firm had advanced $11,471.40 in costs; Sincock had provided necessary legal services and their value was $65,000; Williams should pay $11,471.40 for advanced costs to Burditt and Calkins instanter and a hearing on the method of payment or security for the fees would be heard a week later. At the hearing Williams, through counsel, had admitted that there was no doubt the services were rendered and the expenditures were made. Williams had no witness to testify the fees were unreasonable. A detailed breakdown of all services rendered was admitted into evidence. Ten days later, Williams moved to vacate that part of the order stating that Sincock provided necessary legal fees in the value of $65,000. Sincock agreed to the motion on the condition they could have an immediate hearing or one within a short day. For some reason, not explained in the record, the trial judge vacated not only the paragraph objected to but the rest of the order as well. He also transferred the case to another judge for hearing. On that same day (December 10) the parties appeared before this second judge, but Williams stated it was unprepared for trial. It also expressed concern that any finding of fees would be binding on the trial court in Burditt & Calkins. Sin-cock wanted that issue determined in the present case since Williams had filed the action. He introduced into evidence at that time the verified complaint in Burditt & Calkins which set forth in detail the hours worked and expenditures incurred. The judge indicated at this time he would not go through a useless hearing and his determination would be binding on Williams.

On December 14, 1981, Williams filed a jury demand. The trial court denied the demand since this was a summary proceeding. Williams again reiterated that it wanted a determination that would not be binding on the court in Burditt & Calkins; Sincock objected contending he should not be required to try his case more than once. The trial court said it was merely going to make a summary determination of the value of the services and then do something that would protect the lien. The court then continued the hearing until December 16, 1981.

On December 16, 1981, Williams, after it had made two motions which were denied, moved first orally, and then in writing without any prior notice being given as required by rule, to dismiss the case without prejudice. Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52(1)) provides:

“(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent.”

Since Williams had failed to give the required 48 hour notice and Sin-cock had incurred $2,582.50 attorney and witness fees in this period, the trial court conditioned any dismissal on payment of these fees. Williams instead elected to continue with the case.

On January 6, 1982, the hearing was finally held. A witness for Sincock testified that he was familiar with Sincock’s work in this case and that it was not only necessary but of superlative quality. The depositions taken were skillful and without waste of time and were very valuable in the case. Sincock’s second witness produced various time records and time sheets, none of which appear to be in the record on appeal. The hearing was then adjourned until the afternoon. Instead of recommencing the hearing in the afternoon, however, the parties discussed means of posting security. At that time Williams’ counsel indicated that they did not need any further procedures involving the case. After much discussion the court entered the following order on January 7, 1981:

“1. Mr. D. Calvin Sincock (hereinafter ‘Sincock’) has an existing and valid common law retaining lien on certain files generated in this matter and other matters by Sincock during the course of his representation of J. L. Williams & Co., Inc. The files which J. L. Williams & Co., Inc. seeks from Sincock consist of the fruits of Sincock’s labor and do not include J. L. Williams & Co., Inc.’s property.
2. That as protection and security for payment of fees due Sincock and as a substitute for his retaining lien, the Court hereby orders *** J. L. Williams & Co., Inc. to pay Sincock *** the sum of $27,500.00. ***
3. Within seven days, J. L. Williams & Co., Inc. shall further deposit the sum of $40,000.00 into an escrow account to be established at Chicago Title and Trust Company, Chicago, Illinois. *** Chicago Title and Trust Company, as escrow agent, shall invest the said $40,000.00 and reinvest the income received thereon in such *** investments *** as Sincock may from time to time direct. *** The $40,000 shall be held in escrow pending the final resolution (including all appeals) of a certain lawsuit now pending in the Circuit Court of Cook County, Law Division, entitled Burditt and Calkins, et al. v. J. L. Williams & Co., Inc., Court No. 81 L 26570. After termination of the said litigation (Burditt and Calkins, et al. v. J. L. Williams & Co., Inc.), the escrow agent shall distribute the principal and accumulated interest as follows:
(a) If Sincock receives by judgment, award, settlement or otherwise $67,500.00 or more, the entire principal and accumulated interest shall be paid to Sincock. In the event the principal paid to Sincock plus $27,500.00 is insufficient to pay the amount awarded to Sincock, J. L. Williams & Co., Inc. shall pay to Sincock the full amount of the deficiency.
(b) If Sincock receives by judgment, award, settlement or otherwise less than $67,500.00 but more than $27,500.00, the amount of the judgment award or settlement, reduced by $27,500.00 shall be paid to Sincock from the original $40,000.00 principal with the balance of the original $40,000.00 principal paid to J. L. Williams & Co., Inc. The accumulative interest shall be paid to Sincock and J. L. Williams & Co., Inc. in the same ratio as the principal is paid to Sincock and J. L. Williams & Co., Inc.
(c) If Sincock receives by judgment, award, settlement, or otherwise $27,500.00 or less, the principal and all accumulated interest shall be paid to J. L. Williams & Co., Inc., and Sincock shall pay to J. L. Williams and Co., Inc. the difference between $27,500.00 and the amount of the judgment, award or settlement.
4. Upon making the payments of $27,500.00 and $40,000.00 required by Paragraphs 2 and 3 hereof, J. L. Williams & Co., Inc. shall have the right to inspect and copy the files maintained by Sincock in his possession or in the possession of his counsel, Rooks, Pitts, Fullagar and Poust, on account of Sin-cock’s representation of J. L. Williams & Co., Inc. in this matter. Said copying shall be at the expense of J. L. Williams & Co., Inc. and said inspection shall be at reasonable times to be agreed upon by the parties and shall take place at the offices of Sincock’s counsel. The original of the said files shall at all times remain in the possession of Sincock or his counsel.
5. Entry of this order does not constitute a final determination as to whether there are fees due Sincock or the amount of any such fees, and this order may not be asserted as being res judicata or constituting collateral estoppel in the matter of Burditt and Calkins, et al. v. J. L. Williams & Co., Inc. 81 L 26570 or in any other litigation involving the issues raised here.
6. This Court retains jurisdiction of this matter for the supervision and enforcement of this order.
7. The Court further finds that no just reason exists to delay enforcement of or appeal from this order.”

On January 20, 1982, Williams sought unsuccessfully to have the order modified to allow it to post a letter of credit rather than deposit $40,000 into escrow. Williams at that time made no suggestion it had been denied an opportunity to present evidence.

Williams then appealed. In its notice of appeal it appealed from the order of January 7 providing that Sincock had a retaining lien and ordering Williams to pay Sincock $27,000 and deposit $40,000 in escrow and from the order of January 20. Williams asked that these orders be vacated and the case remanded with instructions that the trial court find there was no retaining lien and require delivery of the files without security or, in the alternative, if Sincock was entitled to security, the order be vacated and the case remanded with instructions to modify its order.

I

Sincock contends that the order is not appealable, despite the entry of a Rule 304(a) order (73 Ill. 2d R. 304(a)), because it leaves unresolved the real controversy, the fees due the lienholder. In making this argument, Sincock overlooks the fact that that was not an issue in this case; that the trial court clearly, deliberately and carefully excluded it as an issue since it was being litigated in the action for fees. The only issues in the present action were those presented in Williams’ petition; whether Sincock had a retaining lien, whether Williams could force him to turn over the files and, if so, under what conditions short of total payment of the fees charged could Sincock be forced to turn these over. The trial court did finally determine these issues. The fact that the final disposition of the funds required to be posted as security must wait until the termination of a completely separate action is immaterial, since that is a mere accounting matter. (Barnhart v. Barnhart (1953), 415 Ill. 303, 114 N.E.2d 378; 2416 Corp. v. First National Bank (1980), 91 Ill. App. 3d 961, 415 N.E.2d 420, appeal denied (1981), 83 Ill. 2d 575.) Nor did the fact that the court retained jurisdiction to supervise enforcement destroy the finality of the order. Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 940, 27 L. Ed. 2d 244, 91 S. Ct. 232; Moss v. Waytz (1955), 4 Ill. App. 2d 296,124 N.E.2d 91.

II

Williams contends on appeal that the trial court erred in denying its motion to dismiss. There was no mention of that order in its notice of appeal and the relief sought in that notice is totally inconsistent with any contention the case should have been dismissed. This court only has jurisdiction of those matters raised in the notice of appeal; thus the order denying the motion to dismiss is not properly before us. (Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 398 N.E.2d 3; Moseley v. Goldstone (1980), 89 Ill. App. 3d 360, 411 N.E.2d 1145; Conley v. Peoples Gas, Light & Coke Co. (1980), 82 Ill. App. 3d 1094, 403 N.E.2d 625; Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 375 N.E.2d 961; Mooring v. Village of Glen Ellyn (1978), 57 Ill. App. 3d 329, 373 N.E.2d 35, appeal denied (1978), 71 Ill. 2d 609.) In any event we note that even if we assume, and we cannot, that despite the trial and order on November 23, 1981, there had been no “trial or hearing” precluding voluntary dismissal as of right under section 52, the trial court did not err in denying the motion since Williams failed to give prior notice of the motion as required by rule. Williams’ reliance on the court’s decision in In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 410 N.E.2d 79, appeal denied (1980), 81 Ill. 2d 590, is misplaced. In that case the trial court granted the petitioner’s motion to dismiss despite the lack of a full five days’ notice. Respondent contended that it was legally impermissible for the trial court to enter the order since the notice was defective. We affirmed the dismissal pointing out that the trial judge had dispelled any prejudice suffered by respondent by continuing the hearing date. In the present cáse Sincock was prejudiced by incurring extraordinary attorney fees in the 48 hour period before the hearing. These expenses would not have been incurred had notice been properly given. The trial court sought to dispel the prejudice by charging these expenses to Williams. Williams elected instead to withdraw the motion. Under the circumstances there was no error.

III

Williams next contends that Sincock waived his retaining lien when he filed his suit for attorney fees, citing Ross v. Wells (1955), 6 Ill. App. 2d 304, 127 N.E.2d 519. But Ross merely held that when an attorney files a suit for fees and the client contests the amount of the fees, the client is entitled to discovery in that action because, consistent with the duty of full and complete disclosure, the attorney has a duty to produce the books and records in that action that directly bear on the claim for fees. The court nowhere held or even suggested that the attorney waived its lien. Except in the action for attorney fees, and as we have already noted that suit is not involved in this litigation, the attorney has a right to his retaining lien until his fee is paid or proper and sufficient security is given. Upgrade Corp. v. Michigan Carton Co. (1980), 87 Ill. App. 3d 662, 410 N.E.2d 159.

IV

Williams next contends that it was denied due process because the judge denied its request for a jury trial. Since a proceeding to post security in lieu of a retaining lien is a summary proceeding (Upgrade Corp. v. Michigan Carton Co. (1980), 87 Ill. App. 3d 662, 410 N.E.2d 159), Williams was not entitled to a jury trial when it elected to pursue this route. But even if it had been entitled to a jury trial, it waived that right when it failed to file a jury demand with the petition. (Ill. Rev. Stat. 1981, ch. 110, par. 64(1).) Williams argues that its belated motion was proper because under section 64(1) if an action is filed seeking equitable relief and the court thereafter determines that one or more of the parties are entitled to trial by jury, the plaintiff within three days thereafter may file a jury demand. But the court never made such a finding so that provision is inapplicable. Williams also contends that it was entitled to a jury trial because the trial court decided to try the issue of the reasonableness of the fees. While under Upgrade the trial court was entitled to make a summary determination of the value of the services, in fact the trial court elected not to do so because that issue was and is awaiting determination in another action. The trial court merely determined those issues set forth in the plaintiff’s petition.

V

Finally, Williams argues that it was denied due process because after hearing two of Sincock’s witnesses the court said it had heard enough to set the amount of security required and did not allow Williams to present its evidence. This court has carefully searched the record but can find no such impropriety. There is nothing in the record showing or even tending to show that the court announced it had heard enough or summarily terminated the hearing or, on the other hand, that Williams tendered any witnesses, made any offer of proof, as required, or made any complaint at the time that it was not allowed to present its case. Accordingly, even assuming Williams had any relevant evidence to produce, its complaint on appeal is untimely.

VI

In its notice of appeal, Williams asked this court to reduce the amount of security. Williams did not repeat that request in its brief so it would appear to be waived. In any event, we conclude that the court’s determination of the amount of security to be posted was supported by sufficient evidence in light of the testimony of Sincock’s witnesses at trial and the record attached to the copy of Sincock’s complaint which was part of the record.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellant, v. JOSEPH D. TESTA, Indiv. and d/b/a Sterling Estates Mobile Home Park et al., Defendant-Appellee.—(Joseph D. Testa, Plaintiff, v. Ernest Glasgow et al., Defendants.)
    First District (4th Division)
    No. 81—2993
    Opinion filed February 10, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (William S. Shapiro, Assistant Attorney General, of counsel), for appellant.
    William G. Phillips, of Park Ridge, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Tyrone C. Fahner, the Illinois Attorney General, appeals an order of the trial court dismissing his first amended complaint against defendant, Joseph Testa, charging him with violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121V2, par. 261 et seq.) and the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). The following issues are raised for review: (1) whether the amended complaint states a cause of action for violations of the consumer fraud and mobile home statutes, and (2) whether the cause of action abated upon Testa’s death.

On May 21, 1980, defendant filed a complaint for forcible entry and detainer against Ernest and Donna Glasgow and Douglas and Tammie Hanson. The Glasgows, tenants of defendant’s mobile home village, had allowed the Hansons to move into their mobile home. On July 3, 1980, the Illinois Attorney General, plaintiff, filed a complaint for injunctive and other relief against defendant. These two causes were consolidated on October 16,1980.

On November 25, 1980, plaintiff filed his first amended complaint for injunctive and other relief against defendant, the owner/operator of Sterling Estates Mobile Home Village. Defendant bought and sold new and used mobile homes as Testa Mobile Home Sales. Both businesses are located in Justice, Illinois. The complaint charged that defendant told certain of his mobile home tenants that they could not sell their homes unless the homes were removed from the village after sale. Defendant offered to buy certain of their homes at prices that were as much as one-half below the prices offered by potential purchasers. Defendant attempted to evict certain tenants and purchasers of the homes of former tenants and denied leases to potential purchasers. There was no comparable mobile home village in the vicinity. Plaintiff alleged that defendant’s acts were unfair or deceptive, in violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121V2, par. 262). Plaintiff asked that the court adjudge defendant’s conduct an unfair practice, that defendant be required to notify tenants of their right to sell their homes and not face eviction, and that defendant be required to inform tenants of the standards for prospective tenants and for having a mobile home remain in the village. Plaintiff asked a penalty of $50,000 and that defendant be enjoined from requiring tenants to sell to him or face eviction.

In count II, plaintiff charged that certain tenants were threatened with eviction after they filed complaints with the consumer protection division of the Office of the Attorney General for violations of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). Plaintiff alleged that requiring tenants to prepay an entire year’s rent for a year-to-year lease was a violation of section 6 of that act (Ill. Rev. Stat. 1979, ch. 80, par. 206). Further, defendant interfered with the tenants’ right to sell their homes by refusing to offer leases to prospective purchasers. Plaintiff asked that the court adjudge defendant’s conduct a violation of the mobile home statute, that he be required to offer leases for a period of not less than 12 months, that he be enjoined from threatening or trying to evict tenants who complain to government agencies of violations of the mobile home statute, and that he not be allowed to interfere with the tenant’s right to sell his mobile home by arbitrarily refusing tenancy to prospective purchasers.

In count III, plaintiff complained that defendant had failed to comply with a subpoena and notice to produce. Plaintiff asked that the court order compliance and enjoin defendant from conducting his business.

On July 23, 1981, Testa’s attorney filed a motion suggesting death and other relief. On June 29, 1981, Testa had died as a result of injuries suffered when a bomb exploded in his car. At a hearing on defendant’s motion to dismiss plaintiff’s amended complaint, held on November 23,1981, the trial court made the following findings:

(1) The complaint does not state a cause of action under either the consumer fraud or mobile home statute.
(2) The tenants are not consumers.
(3) Under the Mobile Home Landlord and Tenant Act there is no right to on-site sale of a mobile home.
(4) Sterling Estates leases are not void or voidable.
(5) The death of Testa abated the cause of action.

The trial court dismissed the complaint with prejudice although it acknowledged that the tenants might have a cause of action at law for damages. Plaintiff appeals.

The first issue raised by this appeal is whether the amended complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121V2, par. 261 et seq.). Section 7 of the Act provides as follows:

“Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by Section 2 of this Act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the State against such person to restrain by temporary or permanent injunction the use of such method, act or practice.” Ill. Rev. Stat. 1979, ch. 12V-k, par. 267.

Section 2 of the Act provides that “[ujnfair methods of competition and unfair or deceptive acts or practices *** in the conduct of any trade or commerce are hereby declared unlawful ***.” (Ill. Rev. Stat. 1979, ch. 12V-k, par. 262.) Section 11a of the Act provides that it shall be liberally construed to effect its purposes. Ill. Rev. Stat. 1979, ch. I2IV2, par. 271a.

In his complaint, plaintiff alleged that defendant’s conduct constituted unfair or deceptive acts or practices in violation of section 2 of the Act. Defendant contends that the conduct complained of was not unfair or deceptive. We disagree. The terms, “unfair practice” and “unfair methods of competition” are inherently not susceptible to precise definition. They must be defined on a case by case basis because of the futility of trying to anticipate all the unfair methods and practices a fertile mind might devise. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 290, 430 N.E.2d 1012, 1018.) Plaintiff alleged as unfair or deceptive the following acts and practices of defendant: requiring tenants to sell their homes directly to him at a lower price and denying a lease to a third party purchaser and threatening eviction. Defendant did not inform tenants of his resale policy, namely, that the mobile homes must be removed after sale, until tenants tried to sell their homes. Upon a motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) We hold that under the circumstances of this case plaintiff sufficiently alleged an unfair or deceptive act or practice under section 2 of the Consumer Fraud and Deceptive Practices Act.

Defendant also contends that the consumer fraud statute is not applicable because tenants are not consumers. Consumer is defined in the Act as “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of trade or business but for his use or that of a member of his household.” (Ill. Rev. Stat. 1979, ch. 121V2, par. 261(e).) Merchandise includes services. (Ill. Rev. Stat. 1979, ch. Í2IV2, par. 261(b).) In his complaint, plaintiff alleged that defendant leased spaces to tenants for their mobile homes. According to the lease agreement, defendant would provide services in exchange for rent.

In People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 88, 438 N.E.2d 924, 928, the court addressed the issue of whether the Consumer Fraud and Deceptive Business Practices Act is applicable to transactions between a mobile home park landlord and tenant. The court stated the following:

“From the evidence at trial it is clear that under the leasing agreement, the tenants contracted for various services to be supplied by the defendant, i.e., maintaining the utilities and road within the complex, providing snow and garbage removal, and allowing for the use of the lot. Therefore, the tenant contracted for the purchase of ‘merchandise’ as defined in section 1(b) and, under section 1(e), is a ‘consumer.’ ” (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 88.)

We conclude that tenants are consumers under the Act and that the trial court erred in holding that the amended complaint did not state a cause of action under the Consumer Fraud and Deceptive Business Practices Act.

Because of this conclusion, we also agree with plaintiff’s contention that the complaint states a cause of action under the consumer fraud statute for subpoena enforcement. Under sections 3, 4 and 6 of the Act (Ill. Rev. Stat. 1979, ch. 1211/2, pars. 263, 264, 266), the Attorney General may examine documents in the course of investigations of unfair practices, issue subpoenas, and request injunctive and other relief to compel obedience to subpoenas.

The next issue raised by plaintiff is whether the amended complaint states a cause of action under the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1979, ch. 80, par. 201 et seq.). In his complaint, plaintiff alleged violations of the Act as follows:

(1) Defendant failed to offer a written lease for a term of not less than 12 months, and required a tenant to prepay the entire year’s rent on a year-to-year lease. This practice constituted a violation of section 6 of the Act which provides the following:
“(a) The park owner shall be required to offer to each present and future tenant a written lease for a term of not less than 12 months, unless the parties agree to a different term subject to existing leases which shall be continued pursuant to their terms.” (Ill. Rev. Stat. 1979, ch. 80, par. 206.)

In his brief, plaintiff concedes that defendant’s leases may have been within the letter of the law but argues that the prepayment requirement for year-to-year leases is not within the spirit of the law.

(2) Defendant threatened and tried to evict tenants who complained to a governmental agency about his violations of the mobile home statute in violation of sections 15 and 16 of the Act. Section 15 provides that statutory grounds for eviction are nonpayment of rent, failure to comply with mobile home park rules, and failure to comply with laws regulating mobile homes (Ill. Rev. Stat. 1979, ch. 80, par. 215). Section 16 provides that an improper ground for eviction is “[a]s a reprisal for the tenant’s good faith complaint to a governmental authority of the park owner’s alleged violation of *** State law ***.” Ill. Rev. Stat. 1979, ch. 80, par. 216(b).
(3) Defendant interfered with tenant’s right to sell his mobile home to a purchaser of his choice, by unreasonably refusing to offer a prospective purchaser a lease or application for a lease.
. This violated section 24 of the Act which provides as follows:
“The park owner shall be enjoined and restrained from prohibiting, limiting, restricting, obstructing or in any manner interfering with the freedom of any mobile home owner to:
(a) Sell his mobile home to a purchaser of his choice, provided that the park owner shall be allowed to promulgate any general qualifications or lawful restrictions on park residents which limit or define the admission of entrants to the park.” Ill. Rev. Stat. 1979, ch. 80, par. 224.

Upon a motion to dismiss a complaint, all facts properly pleaded must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790, 794.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187.) In the instant case, plaintiff is entitled to prove that defendant’s threats and notices of eviction were unlawful reprisals under section 16 of the Act.

The trial court ruled that in Illinois there is no right to on-site sale of a mobile home and that the Sterling Estates leases are not void or voidable. Plaintiff argues that defendant’s unreasonable refusal to grant leases to potential mobile home purchasers, together with his offers to purchase that were substantially less than those of third parties and the unavailability of sites in the vicinity, effectively deprived tenants of their rights to sell homes to persons of their choice. Defendant’s practice of requiring prepayment of rent on year-to-year leases effectively denied such leases to tenants living on fixed incomes. We hold that if plaintiff were allowed to prove these facts, he may be entitled to relief. Therefore, we conclude that the trial court erred in holding that the amended complaint did not state a cause of action under the Mobile Home Landlord and Tenant Act.

The final issue raised by this appeal is whether the cause of action under each statute abated upon defendant’s death. The determination of whether an action abates or survives in Illinois is governed by common law rules and statutory provisions changing the common law. (Shapiro v. Chernoff (1972), 3 Ill. App. 3d 396, 401, 279 N.E.2d 454, 456-57.) The Illinois survival statute provides as follows:

“In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors.’ ” Ill. Rev. Stat. 1979, ch. llOVa, par. 27-6.

In count I of the amended complaint, plaintiff alleged that defendant’s acts were unfair or deceptive. Under the survival statute quoted above, actions for fraud or deceit survive the death of a party and do not abate. As the court stated in Illinois Minerals Co. v. McCarty (1943), 318 Ill. App. 423, 435, 48 N.E.2d 424, 429:

“Fraud may be based on false representation. It may be based on concealment; on fraudulent devices; on a wilful, malevolent act directed to perpetrate a wrong to the rights of others; unlawful appropriation of another’s property by design, or conduct that operates fraudulently on the rights of others, and is so intended. In short, it comprises all acts, of omissions and concealments, including breach of legal or equitable duty, trust or confidence, resulting in injury to another. Deceit is a species of fraud. Sometimes the words are used interchangeably. Deceit is actual fraud and consists of any false representation or contrivance, where one person overreaches another.”

Plaintiff alleged that defendant did not inform tenants of his resale policy when they leased lots from him. They did not know that they would have to remove their homes upon sale because third-party purchasers would be denied leases. Defendant’s acts may be construed as constituting fraud and deceit. Thus, we hold that the cause of action under the Consumer Fraud and Deceptive Business Practices Act survived the death of defendant.

In count II of the amended complaint, plaintiff alleged that defendant interfered with the tenants’ rights to sell their mobile homes and threatened or tried to evict when tenants complained to authorities, in violation of the mobile home statute. As stated above, Illinois law provides for survival of actions based on injury to person or personal property. As stated above, plaintiff alleges such injury in count II. Therefore, we conclude that the cause of action for violations of the Mobile Home Landlord and Tenant Act survives and did not abate upon defendant’s death.

For the foregoing reasons, the order of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

ROMITI, P.J., and JIGANTI, J., concur.


author: JUSTICE JIGANTI

text:
    GLENVIEW CREDIT UNION, Plaintiff-Appellant, v. RICHARD ELROD, Sheriff of Cook County, et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—3025
    Opinion filed February 10, 1983.
    Block, Levy & Becker, of Chicago (Alvin R. Becker, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Susan Condon, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action challenges the authority of the sheriff of Cook County to retain fees charged for mileage “necessarily traveled” to perfect service of an attachment where the sheriff mails a letter to the opposing party rather than physically traveling in order to serve the writ. The individual and class action complaints challenging this practice were filed by the plaintiff, Glenview Credit Union, and were dismissed prior to trial for failure to state a cause of action. It is from that dismissal that the plaintiff appeals to this court.

The plaintiff in this case was also a plaintiff in an unrelated prior action. A judgment was entered in that case in favor of the plaintiff. Subsequently, the defendant in the prior action, not a party to the instant case, failed to appear for an examination after a citation to discover assets was issued against him. After a later order to show cause was issued, the defendant still did not appear and a civil body attachment was issued.

The attachment was delivered for service and execution to Sheriff Richard Elrod, one of the defendants in the instant case. The plaintiff made an advance payment to Elrod in the amount of $7.04 as the mileage fee for service of the attachment. Actual service of the writ was never effectuated because the defendant in the prior action appeared voluntarily after Elrod mailed him a letter advising him of the attachment date. The plaintiff subsequently made a written demand for a refund of the $7.04 mileage fee. Elrod refused to made a refund and the fee was paid over to the defendant Rosewell, Cook County treasurer. The plaintiff then filed its complaint for individual and class action relief, claiming that the statutory provision allowing the sheriff to retain fees collected for mileage “necessarily traveled” can only be employed when actual travel, as opposed to the mailing of a letter, is necessary. (Ill. Rev. Stat. 1981, ch. 53, par. 71.) The complaint was dismissed for failure to state a cause of action.

On appeal, the plaintiff raises three issues. Specifically, the plaintiff contends that it had adequate standing to bring this action in the trial court and consequently has the standing necessary to appeal the trial court’s decision to this court; that its complaint properly stated a cause of action because the sheriff is not entitled to charge and retain mileage fees when no travel has occurred; and that it was necessary to seek equitable relief because no adequate remedy at law existed.

The first issue on appeal concerns whether the plaintiff has the standing necessary to bring this action. Citing no authority for their position, the defendants argue that because the plaintiff had a final, valid judgment against the defendant in the prior action for fees, the ultimate incidents of the mileage fee passed by operation of law to the defendant in the prior action. Therefore, the defendants urge, the plaintiff was divested of the standing necessary to challenge the mileage fee because the economic burden of paying the fee had transferred from the plaintiff to the defendant in the prior action once that judgment became final. We disagree.

Merely because the plaintiff has some right to collect fees from the defendant in the prior action does not necessarily mean that it can and will collect those fees. We believe that it was the plaintiff who in the first instance was required to pay the fee to the sheriff and who therefore shouldered the actual pecuniary burden of the charge. (See generally DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413.) Therefore, we find that the plaintiff has standing to pursue this action and that this court consequently may assess the merits of the plaintiff’s complaint.

The second issue raised by the plaintiff on appeal reaches the substantive matters of the case. The plaintiff argues that the complaint was improperly dismissed for failure to state a cause of action because section 1 of “An Act to provide for the fees of the sheriff ***” forbids the sheriff from charging and retaining mileage fees unless it is necessary for him to actually travel in order to effectuate service. (111. Rev. Stat. 1981, ch. 53, par. 71.) Specifically, the plaintiff contends that the mere mailing of a letter to a defendant does not allow a sheriff to charge and retain mileage fees under this statutory section, which reads:

“The officers herein named, in counties of the third class [counties containing a population exceeding 1,000,000 inhabitants], shall be entitled to receive the fees herein specified, for the services mentioned and such other fees as may be provided by law for such other services not herein designated.
Fees for Sheriff
* * *
Mileage for service of all process, 16$ per mile each way necessarily traveled in making such service computed from the place of holding court.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 53, par. 71.)

The plaintiff believes that the phrase “necessarily traveled” reflects the legislative intent to preclude the sheriff from charging and retaining fees for anything less than actual travel to effectuate service. While at first glance the plaintiff’s argument appears convincing, we cannot accept the plaintiff’s contentions in light of the precedent for this sort of action that has been established by previous Illinois case law.

In Fried v. Danaher (1970), 46 Ill. 2d 475, 263 N.E.2d 820, appeal dismissed (1971), 402 U.S. 902, 28 L. Ed. 2d 643, 91 S. Ct. 1382, the Illinois Supreme Court addressed a similar question where the plaintiff filed a class action complaint to recoup fees paid “for the services of a jury” where a previous case brought by the plaintiff had been disposed of before it was necessary to impanel a jury. (See Ill. Rev. Stat. 1969, ch. 53, par. 51.) The Fried plaintiff made a demand for a refund and the demand was refused by the clerk of the circuit court and treasurer of Cook County. The supreme court found that where the jury fee statute did not include a refund provision, it was proper to infer that the legislature intended the jury-demand fee to defray generally the cost of the jury system and not just the expense of the particular jury services provided to the party paying the fee. Further, the Fried court recognized that the practice of retaining the jury-demand fees was consistent, long continued and reasonable. Thus, the court found the practice to be proper even though the statute at issue merely authorized charging and retaining fees “for the services of a jury.” See also Ali v. Danaher (1970), 47 Ill. 2d 231, 265 N.E.2d 103.

We believe that the facts presented to us in the case at bar are so closely akin to those addressed in the Fried case that we must necessarily recognize the Fried reasoning to be controlling in the instant case. If the three general prerequisites set out in Fried are satisfied here, we think it would be proper for the sheriff to charge and retain mileage fees even if actual travel was unnecessary to effectuate service. Specifically, it must be established that the statute at issue does not include a refund provision, that the complained of practice is reasonable and that the retained costs are used to defray generally the costs of administrating the court system. As we shall discuss below, we believe that all of these requirements are satisfied in the case at bar and therefore, we cannot accept the plaintiff’s interpretation of the statute at issue.

First, as was the case in Fried, there is no explicit refund provision incorporated into the mileage fee statute at issue in this case. (See Ill. Rev. Stat. 1981, ch. 53, par. 71.) We find this factor to be important because had it been the legislative intent to provide for a refund in the event that actual travel was unnecessary, it would appear likely that the legislature would make allowance in the statute for the refunding of fees.

The second reason we find the plaintiff’s argument to be unpersuasive is that the practice complained of here strikes us as being quite reasonable. Specifically, by paying the fee, the plaintiff secured the right to have the sheriff travel in order to attach the defendant if it became necessary to take such extreme action. The plaintiff did in fact receive the benefit of all the services it paid for because as a result of the letter mailed by the sheriff, the defendant in the prior action appeared in court. Therefore, it appears reasonable for the defendants to retain the mileage fee because the result desired by the plaintiff, namely, the appearance of the defendant in the prior action in court, was produced by actions taken by the defendants in this case.

The third and final reason we find that it was proper to retain the mileage fees is because the fees were used to generally support and defray the cost of administrating the court system. We believe it is important to point out the manner in which the sheriffs office operates as a normal course of business. Specifically, if the sheriff is unable to serve a party for some reason on the first attempt, he will make several additional attempts to effectuate service without charging any additional fee to the party requesting service. However, the party requesting service has actually paid a fee only for the sheriff’s first attempt. Therefore, the sheriff’s office incurs these additional costs for the required extra mileage traveled. We do not find it an unreasonable practice to defray these added costs by retaining the mileage fees paid by parties such as the plaintiff in the instant case. Thus, we believe the fee is a reasonable burden upon litigants to generally defray the costs of running the court system.

We therefore believe that the plaintiff’s reliance upon People v. McCord, (1908), 143 Ill. App. 28, is misplaced. In McCord, the court found that a county collector could not recoup mileage fees when he did not physically travel while performing his job, but rather accomplished the same purpose through the mails. However, the statutory fees that would have been recovered by the county collector were in the nature of a personal reimbursement to him and were not used in any manner to support and defray the cost of running a governmental entity. Thus, McCord is distinguishable from the case at bar because the sheriff here did not personally retain the fees, but rather paid them over to Rose-well, the Cook County treasurer, as county funds.

In summary, we believe that under Fried, where no explicit refund provision was included in the statute at issue and where the complained of practice was reasonable, the sheriff may retain the mileage fee in order to defray generally the costs of administrating the court system.

As a final matter, because we find that the plaintiff’s reliance upon the mileage fee statute was misplaced, we need not address the plaintiff’s final contention that the complaint properly set forth a cause of action seeking equitable relief.

For the foregoing reasons, we believe that the trial court properly dismissed the plaintiff’s complaint for failure to state a cause of action.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


text:
    W. E. ERICKSON CONSTRUCTION, INC., et al., Plaintiffs-Appellees, v. CONGRESS-KENILWORTH CORPORATION et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—1488
    Opinion filed February 3, 1983.
    Rehearing denied March 17, 1983.
    Nathan Diamond-Falk, of Chicago, for appellants.
    Tatel & Newlett, P.C., of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

This is an interlocutory appeal from an order appointing a receiver of a corporation that operates a water slide as an amusement business. The defendants, Congress-Kenilworth Corporation, James Adams and John Stafford (collectively Congress-Kenilworth) claim that the trial court was in error when it appointed a receiver on the petition of the plaintiffs, W. E. Erickson Company, Inc., and W. E. Erickson (collectively Erickson).

Erickson filed an action seeking a money judgment for breach of a construction contract. It also sought to impose a constructive trust on the defendants’ interest in the real estate and during the litigation requested that a receiver be appointed or that injunctive relief be granted. The complaint alleged that “Plaintiffs ERICKSON CONSTRUCTION and ERICKSON fear that said monies generated by the project will be diverted ***.” (Emphasis added.) No underlying facts were alleged. This allegation and the finding on the issue are the focal point of this appeal.

The facts relating to Erickson’s alleged fear of diversion were adduced at a four-day evidentiary hearing before the trial court which began on May 26, 1982. The evidence showed that Erickson, a general contractor, was hired to construct a public amusement consisting of a concrete water slide for Congress-Kenilworth for a total cost not to exceed $535,000. Work commenced on April 15, 1981. The contract provided that Erickson was to apply for monthly progress payments and that Congress-Kenilworth was required to pay Erickson within 30 days of application. On June 16, 1981, when the project was 60% completed, Erickson applied for a payment in the amount of $246,958, which it did not receive. Since Congress-Kenilworth was seeking financing, the parties then agreed that Congress-Kenilworth would deliver the deed to the real estate to Erickson and that Erickson would use this deed as security for additional interim financing. CongressKenilworth’s stockholders’ resolution of June 20, 1981, authorizing this deed, stated that the assignment was made to guarantee payment of the indebtedness owed to the plaintiff and to ensure payment and completion of the project for opening on July 3, 1981. The title was placed in a land trust and the beneficial interest was assigned to Elmhurst National Bank as additional security for financing obtained by Erickson.

The season for the use of the water slide runs from approximately the 4th of July to Labor Day. The project was opened to the public on the 4th of July. On July 9, 1981, Adams, Stafford and their attorney, Paul Daugerdas, the three principal stockholders of Congress-Kenilworth, filed articles of incorporation for a separate corporation to be known as Thunder Mountain Rapids Corporation. The designated purposes of Thunder Mountain Rapids Corporation were identical to those set forth in the articles of incorporation of Congress-Kenilworth. In addition, all bank accounts standing in the name of Congress-Kenilworth were closed; all gross revenues were collected by Thunder Mountain Rapids and deposited in its accounts; and a written management contract was entered into between Congress-Kenilworth and Thunder Mountain Rapids. The contract was requested but not produced at trial. There is no further evidence in the record as to the terms of the contract. The record also reveals that Thunder Mountain Rapids owns 80% of Congress-Kenilworth and a church owns the other 20%.

Because no subsequent arrangements had been made to pay Erickson, a meeting between the parties was held on July 14, 1981. A letter drafted by Congress-Kenilworth’s attorney acknowledged Congress-Kenilworth’s indebtedness to Erickson in the amount of $550,000 and informed Erickson that “within 30 days or less we expect to pay you in full.” The letter enclosed a partial payment in the amount of $50,000. Another payment of $85,000 was made to Erickson on August 20, 1981. Both payments were made by Thunder Mountain Rapids Corporation. It is not clear from the record but all of the parties accept the fact that Erickson was paid an additional $15,000 bringing the total paid on its contract to $150,000.

It is at this juncture that an unusual event occurred. Sometime in August, 1981, thé parties learned that the Department of the Army owned the real property conveyed by Congress-Kenilworth to Erickson and that the water slide was an encroachment. Congress-Kenilworth subsequently entered into a lease with the Army.

At the hearing, Erickson’s evidence further established that the gross revenues of the project in 1981 were approximately $224,000. It was stipulated that the books and records of Congress-Kenilworth, which were available to Erickson, correctly reflected the results of the operation. At the time of the hearing, there was nothing remaining of the income from the 1981 operation which concluded on Labor Day of 1981. The 1982 season was just beginning. According to the defendants’ evidence, which was undisputed, the revenue from the slide was given to Erickson. Also, Adams testified that he and Stafford did not take a salary but were reimbursed a total of $25,000 for expenses which they had incurred before the slide was opened. This evidence was also undisputed.

At the conclusion of the hearing, the court took the matter under advisement and several days later read its decision into the record. The court appointed a receiver after finding that the security given to Erickson, the deed to the real estate, was worthless; that the future proceeds from the slide constituted a special fund; and that hundreds of thousands of dollars were passing through Thunder Mountain Rapids Corporation while Congress-Kenilworth alleged that they could not pay because they did not have any assets. The court made no findings specifically relating to diversion, malfeasance or misfeasance on the part of the defendants.

The facts related above must be measured against the stringent legal requirements for the appointment of a receiver and the rationale for such stringency. The requirements are set out in Bagdonas v. Liberty Land & Investment Co. (1923), 309 Ill. 103, 110, 140 N.E. 49, 52:

“Application for the appointment of a receiver is addressed to the sound legal discretion of the court. It is a high and extraordinary remedy. The power is not arbitrary and should be exercised with caution and only where the court is satisfied there is imminent danger of loss if it is not exercised. The general rule is that the applicant must show, first, that he has a clear right to the property itself or has some lien upon it, or that the property constitutes a special fund to which he has a right to resort for the satisfaction of his claim; and, second, that the possession of the property by the defendant was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss from neglect, waste, misconduct or insolvency.” (Emphasis added.)

The rationale as to why a court should only sparingly apply the remedy of a receiver is also enunciated by the supreme court in Bagdonas. The court stated that one of the rights of ownership of property is possession. Thus when a court exercises its equitable powers and appoints a receiver, it deprives the legal owner of possession. Such an exercise of power is in derogation of the owner’s right to possession. Consequently, the court should only exercise its discretion and appoint a receiver “when the necessity therefor [sic\ clearly appears.” 309 Ill. 103, 111, 140 N.E. 49, 52.

Under Bagdonas, as applied in the instant case, there are two requisites for the imposition of a receiver. Erickson had to first prove that there was a special fund. We believe that this requirement was met when Erickson presented evidence to show that it was given a warranty deed as security for additional financing. When this security failed, the court could properly impose an equitable lien on behalf of Erickson because there existed a mutual mistake as to the validity of the deed. Mutual mistake involving improvements on the land of another is a basis for the imposition of an equitable lien. (See Stegeman v. Smith (1966), 67 Ill. App. 2d 451, 214 N.E.2d 597; In re Estate of Holder (1976), 42 Ill. App. 3d 35, 355 N.E.2d 333; Restatement of Restitution sec. 170 (1937).) Thus the equitable lien served as the source for the creation of a special fund.

The second requirement for the extraordinary remedy of the appointment of the receiver is that the income arising from the special fund is in danger of loss from neglect, waste, misconduct or insolvency. To comport with this requirement, the plaintiff alleges a fear of diversion. We believe the evidence does not support the necessary showing to meet the second requirement.

At the hearing, Erickson established the following facts. By way of stipulation, it established that the books and records of the defendants correctly reflected the results of the operation of the business. It established that the books and records showed an income of approximately $224,000 and that Erickson received a payment of $150,000 out of this income. Of the $150,000 payment to Erickson, $135,000 came directly from Thunder Mountain Rapids Corporation. In addition, Erickson neither argued nor attempted to prove that the management agreement could be considered the source of a fear of diversion. The simple fact that such an agreement existed was not sufficient evidence to support such an inference. Because Erickson did not inquire into the reasons for the establishment of the management agreement in the hearing, there is no evidence in the record to support an inference that the management agreement was forged for nefarious purposes or to support an inference that Erickson was, or would be, deprived of any proceeds because of the agreement. Therefore, all that Erickson was able to show at the hearing is what it had alleged in its complaint. Erickson had a speculative fear that the money would be diverted. A speculative fear is not legally sufficient to support the drastic remedy of the appointment of a receiver.

For the above reasons, we reverse and remand the decision of the trial court.

Reversed and remanded.

ROMITI, P.J., and JOHNSON, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
    KENNETH L. KOCHES, Plaintiff-Appellant, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee.
    Fifth District
    No. 82—234
    Opinion filed February 17, 1983.

      Miley, Meyer, Austin & Spears, P.C., of Taylorville (Daniel W. Austin, of counsel), for appellant.
    Graham & Graham, of Springfield (Charles E. Holt, of counsel), for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff Kenneth L. Koches appeals from the granting of defendant’s motion for summary judgment. Defendant Chicago & Illinois Midland Railway Co. moved for a summary judgment of a two-count complaint brought by Koches for personal injury and property damage incurred when his motorcycle struck barricades in front of a large excavation at the intersection of the paved highway and the railroad. The trial court granted the motion and plaintiff appeals. We reverse, holding that defendant was not entitled to summary judgment as a-matter of law.

A letter attached as exhibit to defendant’s motion for summary judgment showed that during the spring of 1980 grade crossing improvements were being made at the intersection of defendant’s railroad track and Business Route 48 West in Taylorville, Illinois, at the request of the Department of Transportation (DOT), in conjunction with a statewide DOT program to standardize railroad grade crossings and provide for the installation of advance warning signs and pavement markings. The program was authorized by the Illinois Commerce Commission (ICC). Defendant submitted two affidavits which confirmed the fact that Chicago & Illinois Midland Railway was making repairs in compliance with the DOT’s request. A copy of the ICC order of authorization was also attached. One affidavit further stated that the defendant preferred to make the necessary improvements itself, “to insure that the quality of the roadbed and crossing was maintained rather than permit unknown workers to perform the work and risk damage to our roadbed and crossing,” and so it petitioned the ICC for permission to perform the work required by the Department of Transportation. Defendant supplied a copy of this petition and a copy of the ICC resolution granting it. Once permission was obtained, the defendant and the DOT executed an agreement allocating the scope of responsibility for the project between them. This agreement was included in defendant’s exhibits. Defendant began repairs in April of 1980 and presented them for final inspection on November 5. A letter from DOT verifying the inspection and approval was a part of the record under consideration. The defendant also submitted ICC General Order No. 138 which governs “construction, maintenance, marking and protection of crossings of Highways and Railroads ***.”

Mr. Koches’ accident occurred on August 13, 1980, at 10:54 p.m. While riding his motorcycle, he collided with two barricades immediately in front of a pit eight feet deep and 10 feet wide. The pit covered the entire road surface where the railroad crossing had been. Koches was thrown through the air, striking the ground and suffering serious physical injuries. His motorcycle was destroyed. It is undisputed that no advance warning signs or lights existed to alert motorists of the impending danger.

Section 57 of the Civil Practice Act provides for summary judgment when:

“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.” (Ill. Rev. Stat. 1979, ch. 110, par. 57.)

On appeal plaintiff argues that the court erred in holding that defendant was entitled to judgment as a matter of law. He insists that the defendant railroad owed him a duty to warn of excavations being performed by its employees. He bases this in part on principles of common law negligence and wilful and wanton misconduct but relies primarily on section 4 of the road construction injuries act, which provides:

“Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Transportation so as to give warning to approaching motorists that such portion of bridge or highway is closed and unsafe for travel.” (Ill. Rev. Stat. 1979, ch. 121, par. 314.4.)

And on section 6, which provides:

“Any contractor, subcontractor, or his authorized agent or driver of any motor vehicle who knowingly or wilfully violates any provision of this Act, shall be responsible for any injury to person or property occasioned by such violation, and a right of action shall accrue to any person injured for any damages sustained thereby; ***.” Ill. Rev. Stat. 1979, ch. 121, par. 314.6.

Defendant answers by citing a different provision of that chapter, section 9 — 112 of the Illinois Highway Code, declaring that it is specific and thus controls over the more general provisions of the road construction injuries act. That section states that:

“No person shall place, or cause to be placed, any sign or signal on a public highway within a distance of 300 feet of any grade crossing, except official traffic control devices authorized in an Act in relation to the regulation of traffic, approved July 9, 1935, as now or hereafter amended, any signs or signals required by law or the Illinois Commerce Commission for the protection of such crossings.” (Ill. Rev. Stat. 1979, ch. 121, par. 9-112.)

Defendant maintains that section 9 — 112 makes it illegal for the railroad to erect warning signs or signals at the crossing. However, the unmistakable purpose of section 9 — 112 is to prevent the placing of signs and signals which would obstruct the view of oncoming trains, not to prevent railroads or other responsible parties from warning of dangerous conditions which lie immediately in the path of oncoming motorists. In fact, the first paragraph of section 9 — 112 lists some of the obstructions it prohibits: “unauthorized signs and billboards, brush, and shrubbery,” and “all hedges and trees upon the highway” within 300 feet of each side of the crossing. (Ill. Rev. Stat. 1979, ch. 121, par. 9 — 112.) Obviously, section 9 — 112 was not intended to cover the present situation.

The road construction injuries act, on the other hand, may apply. The act is a safety statute designed to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois. (Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 468, 419 N.E.2d 918.) As a safety statute, it must be given a liberal interpretation in order to effectuate the purpose of the statute and to afford broad protection to those the statute was designed to protect. (Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 221, 433 N.E.2d 1337.) The purpose and intent of section 4, as set forth in Kreke, is to insure that motorists approaching construction areas or obstructions due to construction are given adequate and sufficient advance warning of those conditions and are alerted that normal traffic flow and normal traffic conditions may have changed. Kreke v. Caldwell Engineering Co. (1982), 105 Ill. App. 3d 213, 222.

Since the act could apply, the question then becomes whether a defendant railroad could be considered a “contractor” within the meaning of section 6 of the act. Affidavits submitted by the railroad showed that it did enter into a contract with the DOT to perform repair work at the railroad crossing. Although it is defendant’s position that the railroad was merely a property owner cooperating with the directive of the DOT, it could be argued that, once the defendant assumed the duties of construction at the railroad intersection, it became a “contractor” for the purposes of imposition of liability under section 4 and section 6.

To date, the only case defining the term “contractor” for purposes of coverage under the act is Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 848, 383 N.E.2d 1242. In Richard, Bell employees had been dispatched to the scene of an accident in response to reports of a downed cable at a construction site. The employees allegedly participated in a decision to drape the cable between two trucks to allow traffic to pass. The cable dislodged, resulting in the injuries to plaintiff. On appeal, plaintiff theorized that Bell became a contractor within the meaning of the road construction injuries act when it took part in the decision to raise the cable. The court rejected that contention. It defined contractor as “a party who enters into a contract with the owner of certain property to perform some type of work thereon.” (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 848.) Applying that definition, the court held that Hlinois Bell was not a “contractor” within the meaning of section 6 because it did not contract with anyone to do any portion of the work which was being performed at the scene of the accident.

Although the circumstances before us differ markedly from those in Richard, the definition of “contractor” found therein could pertain to this defendant. If so, and if plaintiff can prove other critical facts, defendant could be liable for the injuries incurred by Mr. Koches on August 13, 1980. Note that we have made no determination as to whether defendant actually was a “contractor” under the act. We merely observe that the act could apply and that, in our opinion, the documents and affidavits submitted by defendant do not establish that it was not a contractor and thus do not show that it was relieved of the duty imposed by the act. Because of the foregoing, it is unnecessary to discuss the general allegations of misconduct and violation of common law duty by the railroad. We cannot say as a matter of law that there is no genuine issue of fact regarding count I (negligence) and count II (wilful and wanton misconduct). We hold, therefore, that the defendant Chicago & Illinois Midland Railway Co. was not entitled to judgment as a matter of law.

The order is hereby reversed and the cause remanded for further proceedings.

Reversed and remanded.

KASSERMAN and EARNS, JJ., concur.


author: JUSTICE GREEN

text:
    CITY OF SPRINGFIELD DEPARTMENT OF PUBLIC AFFAIRS, Plaintiff-Appellant, v. THE CIVIL SERVICE COMMISSION FOR THE CITY OF SPRINGFIELD et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0455
    Opinion filed February 23, 1983.
    Rehearing denied March 21, 1983.

      Frederic Benson, Corporation Counsel, of Springfield, for appellant.
    Livingstone, Mueller, Gunning & Davlin, of Springfield, for appellee Civil Service Commission.
    Edward G. Coleman, of Springfield, for appellee Adam Sockel.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, City of Springfield Department of Public Affairs, appeals a judgment of the circuit court of Sangamon County entered July 9, 1982. That court affirmed a decision of defendant, the Civil Service Commission for the City of Springfield, Illinois (Commission), entered June 25, 1982, which denied plaintiff’s complaint for the discharge of defendant, Adam Sockel, from his position as a city police officer. The charge before the Commission alleged that defendant Sockel “violated] Police Department Rule 1.07 by refusing a lawful order of [a field commander] to submit to a breathalyzer test ***.” We affirm.

The evidence before the Commission showed that: (1) Sockel was a 17-year veteran of the Springfield Police Department; (2) on March 20, 1981, Sockel worked a shift ending at 3:15 p.m.; (3) Sockel then drove home in an automobile assigned to him for use both on and off duty; (4) sometime after 9 p.m. Sockel proceeded in the same vehicle toward a motel where he had a second job as a security guard; (5) en route to the motel, the vehicle Sockel was driving was involved in a collision; (6) although the collision occurred outside of the limits of the City of Springfield, both a deputy sheriff and a city police officer drove to the scene; (7) neither of the law enforcement officers charged defendant with driving under the influence of alcohol; (8) a Springfield police field commander also visited the scene and later directed Sockel to report to him at the police station; and (9) there, the field commander directed Sockel to submit to a breathalyzer, but Sockel refused to do so.

The following rules of the Springfield police department are those Socket was alleged to have violated:

“Section 1.07: Insubordination
A. Employees shall promptly obey any lawful order, oral or written, of a superior officer or supervisor. This will include orders relayed from a superior officer by an officer of the same or lesser rank. (The term ‘lawful order’ shall be construed as any order in keeping with the performance of any duty prescribed by law or by these rules and regulations, General Orders or established policy and procedure, or one consistent with the preservation of good order, efficiency and proper discipline, which is not in conflict with these rules and regulations.)
B. Insubordination shall include, but not be necessarily limited to, any willful failure to obey or deliberate refusal to obey a lawful order given by a superior, ***.
* * *
Section 1.15: Use of Polygraph, Medical
Examinations, Photographs, and Lineups
* * *
B. Medical Examinations, Photographs and Lineups. Upon the order of the Chief or the Chief’s designee, officers shall submit to any medical, psychiatric or psychological, ballistics, chemical, breathalyzer, or other tests, photographs or lineups. All procedures carried out under this subsection shall be specifically directed and narrowly related to a particular internal investigation being conducted by the Department of the officer’s ability to perform his/her duties. The term ‘medical examination’ as used in this Section shall include examinations to determine officers’ physical and mental condition and processes.”

Sockel does not dispute that he refused to take a breathalyzer test. He maintains the command that he do so was not lawful under the circumstances because: (1) he had not been given the advice contained in section 10 — 1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 1—18) which is required before an examination of a city police officer may be conducted; (2) the command for him to submit to the test did not comply with the requirements of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1); and (3) the field commander stated that the test was necessary because of a possible violation of Springfield Police Department Regulation 1.59 which was not applicable.

Section 10 — 1—18 of the Illinois Municipal Code states:

“Before any officer or employee in the classified service of any municipality may be interrogated or examined by or before any disciplinary board, or department agent or investigator, the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay.” (Emphasis added.) (111. Rev. Stat. 1981, ch. 24, par. 10-1-18.)

Plaintiff agrees that no compliance with section 10 — 1—18 took place before the field commander ordered Sockel to submit to the breathalyzer test. We hold that the failure made the order unlawful and excused Sockel’s failure to comply.

We conclude that the field commander was a “department agent” and Sockel’s submission to a breathalyzer test at the field commander’s direction would have constituted being “examined” by the field commander all within the meaning of section 10 — 1—18. The test would not seem to constitute an “interrogation,” a word which is generally used in connection with obtaining responses of a testimonial nature from the person being interrogated. (See “interrogate,” Webster’s Third New International Dictionary 1182 (1976).) The word “examination” has a broader meaning. The most relevant definitions of “examine” and “examination” are:

“Examine *** 1: to test by an appropriate method: INVESTIGATE: as *** b: to inspect or test for evidence of disease or abnormality (the doctor examined the young men and found them in perfect health) *** 3: to interrogate closely (as in a judicial proceeding): try or test by question (examining witnesses in court) (examined the students in French) ([to examine] a bankrupt regarding the state of his property) ***.”
Examination *** 1: the act or process of examining or state of being examined: SEARCH, INVESTIGATION, SCRUTINY.” (Webster’s Third New International Dictionary 790 (1976).)

Thus, although the words “interrogation” and “examination” are sometimes used with almost the same meaning, “examination” is the broader term and would include an inspection of an individual’s body fluids to determine the alcohol content of the individual’s blood. Moreover, as both words are used, the use of the word “examined” must not have been intended to be superfluous but rather to include procedures other than those constituting “interrogation.” Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 153 N.E.2d 72.

In Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230, this court held that compliance with section 10 — 1—18 was required in all cases where an investigation had been started, and the information gained by the interrogation or examination might (as distinguished from would) result in the employee’s discharge. The investigation had proceeded much farther in Danison than here, as there, a letter had been sent to the police officer requesting his appearance on a particular day for questioning. Here, the proposed examination took place on the day of the occurrence, but Sockel, although off duty (but still subject to call at all times) was directed to come back to the police station. Clearly, a determination that he was intoxicated while driving the police vehicle might have resulted in his discharge.

We are concerned with two aspects of our interpretation of section 10 — 1—18. The section indicates that the officer or employee has a right to counsel at any examination. Where, as here, the examination is of such nature that the substance to be examined will be changed by the lapse of time, a condition that the counsel appear within a reasonable time must be implied. By analogy, the provisions of section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1), which concerns administration of a breathalyzer test under the implied consent provisions of the Illinois Vehicle Code, give the subject to be tested a right to consult counsel within 90 minutes of being requested to submit to the test. Absent such an implied condition, an attorney for an officer or employee could prevent an effective breathalyzer test by delaying his appearance.

Section 10 — 1—18 also requires the admonition given to the officer or employee to be in writing. This provision would impose an added difficulty to timely use of a breathalyzer test, but there is no inherent reason why the person requiring the examination cannot write out the admonition and hand the document to the person to be examined.

Although our ruling in regard to defendant Sockel’s first contention is sufficient to dispose of the appeal, because of our reference to séction 11 — 501.1 of the Illinois Vehicle Code and its analogy to the rights of counsel under section 10 — 1—18 of the Municipal Code, we deem further discussion of it appropriate. Section 11 — 501.1 pertains to the administration of breathalyzer tests requested by police officers of persons who have impliedly consented to come under the provisions of that section by their use of the State’s highways. Had those persons not given their implied consent by using the highways, no proper request for the test could be made by the officers. The direction given to Sockel was made pursuant to Springfield Police Department Regulations. When Sockel became a police officer he agreed to obey those regulations unless they were unlawful. The police department could not require ordinary citizens to take breathalyzer tests except under section 11 — 501.1 of the Illinois Vehicle Code, but, if section 10 — 1—18 of the Municipal Code had been followed, the order to Sockel would have been valid.

The cases of Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223, 384 N.E.2d 805, and Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 234 N.E.2d 339, indicate that absent statutory prohibition, law enforcement agencies have inherent power to provide by regulation for requirements that officers submit to breathalyzer tests. In those cases similar regulations requiring officers to submit to polygraph tests were upheld without a showing of statutory authority. Application of section 10 — 1—18 of the Municipal Code was not in issue in those cases. The polygraph test is at least as intrusive as a breathalyzer test. No compliance with section 11 — 501.1 of the Illinois Vehicle Code was required.

Because of the failure of the Springfield Police Department to follow 10 — 1—18 of the Municipal Code, we affirm.

Affirmed.

MILLS and TRAPP, JJ., concur.