author: JUSTICE CAMPBELL

text:
    BROOKS McCORMICK, Jr., Plaintiff-Appellant, v. BROOKS McCORMICK, Indiv. and As Trustee of the Brooks McCormick, Jr., Trust, dated August 5, 1964, as amended et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—670
    Opinion filed August 29, 1983.
    Rehearing denied October 31, 1983.

      D’Ancona & Pflaum, of Chicago (Barry T. McNamara and Arthur Don, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Max E. Wildman, Jerald P. Esrick, Craig M. White, and Elise E. Singer, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Brooks McCormick, Jr., appeals from the dismissal of his complaint against the former trustees and their agents of a trust of which plaintiff is both grantor and beneficiary. Six counts of his complaint which alleged breach of trust, waste of trust assets and conflict of interest, were dismissed with prejudice for failure to state a cause of action. On appeal, plaintiff contends that the trial court applied an erroneous standard of review in dismissing the six counts of his complaint and that defendant Myron Ratcliffe failed to establish the validity of Ratcliffe’s purported release from liability.

I

Plaintiff filed an 11-count verified amended complaint against four individuals and three corporations. The allegations of the complaint center around the construction of plaintiff’s personal residence by the Brooks McCormick, Jr., trust. A brief explanation of the parties will aid the discussion of this case.

Brooks McCormick, Jr., is the settlor and sole beneficiary of the Brooks McCormick, Jr., trust dated August 5, 1964 (hereinafter referred to as “the trust”). Plaintiff established the trust with assets he received from his grandmother and directed his trustees to pay him such part of income and principal that the trustees considered advisable for plaintiff’s comfortable maintenance, medical care and welfare.

Defendant Brooks McCormick is plaintiff’s father and was co-trustee of the trust from its inception until December 31, 1980, when he resigned.

Defendant Miami Corporation is a personal holding company for the assets of the McCormick and Danielson families. The stock of the corporation is owned by the trusts established by the various family members, including the trust at issue here. The Miami Corporation also functions as an agent for the trustees of the family trusts and employs investment managers and accountants for this purpose. One of the assets held by the corporation is a controlling interest in the National Boulevard Bank of Chicago.

Defendant Charles Schroeder is president of the Miami Corporation and chairman of the board of the National Boulevard Bank. Schroeder served as co-trustee of plaintiff’s trust from January 1, 1978, to December 31, 1980.

Defendant Myron Ratcliffe is a past president of the Miami Corporation and former chairman of the board of the National Boulevard Bank. Ratcliffe served as co-trustee of plaintiff’s trust from its inception until December 31, 1977, when he retired. Ratcliffe, and Schroeder after him, acted as plaintiff’s attorney-in-fact under a broad power of attorney. On May 11, 1978, plaintiff executed a release of Ratcliffe relieving him of all liability resulting from his management of the trust.

Defendant Thomas Oehring has served as an officer and employee of the Miami Corporation since August 1978. His predecessor, F.J. Hoppe, originally was named as a defendant in this case but was dismissed by motion at the time of his death.

Otis and Associates is the architectural firm retained by plaintiff to prepare plans for the residence and supervise its construction. Ragnar Benson, Inc., is the general contractor which plaintiff hired to build the portion of the residence referred to as “phase one.”

The complaint alleges that in the summer of 1977, construction of plaintiff’s personal residence began. The residence was built in Bensenville, Illinois, on property that plaintiff’s trust purchased from plaintiff’s father. The complaint alleges that on behalf of plaintiff and the trust, the trustees negotiated and accepted an architect’s contract and a construction contract which stated that the maximum cost of building the residence would be $398,000. Payments for the residence were to be approved by the plaintiff in writing and then paid out of trust assets by the trustees. Plaintiff approved two change orders which increased the contract price to $449,542. The architect’s fee was $70,000 and the land cost $365,000.

Plaintiff alleges that the defendants have authorized the spending of more than $1,900,000 on the construction of the residence; that many expenditures were made over plaintiff’s stringent objections; that payments were made on work that was not authorized by change orders; that the contractor was paid for work that was not completed and that did not satisfy contractual specifications; and, that defendants gave the architect and contractor duplicate payments for the same work. Plaintiff alleges that when he objected to some of these unwarranted payments, defendants told him that such payments must be made in order to protect defendant McCormick’s “reputation in the business community.” The residence still has not been completed in compliance with the contract specifications and still remains incomplete and uninhabited. Plaintiff alleges that defendants’ mismanagement has resulted in the investment of most of the trust assets in a nonliquid and essentially nonmarketable residence.

The verified amended complaint is 75 pages long and has approximately 150 pages of exhibits attached to it. Counts I through VI allege that the trustees of the trust, their agents and the Miami Corporation committed mismanagement and waste of trust assets. These counts were dismissed with prejudice by the trial court for failure to state a cause of action and are the basis of this appeal. Counts VIII through XI allege breach of contract and professional malpractice against the contractor and architect. These counts were severed from the rest of the complaint and have been continued in litigation. Count VII alleges that defendant McCormick built a “spite fence” adjacent to plaintiff’s property and requests that defendant be enjoined to remove the fence and pay compensatory and punitive damages for trespass and other injury to the trust property. The court severed this count and dismissed it without prejudice because the court thought that a cause of action for trespass could be found in its allegations.

II

Plaintiff contends on appeal that the trial court disregarded well established principles in dismissing the first six counts of his complaint. Since defendants attacked plaintiff’s allegations under section 45 for failure to state a cause of action, the veracity of the allegations was not at issue. Plaintiff contends that on the motion to dismiss the trial court improperly compared the allegations in the complaint with inferences as to the facts that the court made after reviewing the exhibits. Where the exhibits did not support plaintiff’s allegations or suggested different facts than those in the complaint, the court determined that the complaint failed to state a cause of action. Plaintiff asserts that the exhibits were attached to the amended complaint at the court’s request as examples of defendants’ misconduct and do not represent all the proof plaintiff intends to present at trial. Plaintiff also argues that the trial court’s decision extends beyond that requested by defendants since defendants did not claim that count I failed to state a cause of action for an accounting and for breach of trust.

Defendants contend that the trial court correctly determined that where the averments in the complaint conflict with the averments in the attached exhibits, the averments in the complaint are negated. Defendants argue that although generally the complaint is considered in the light most favorable to the pleader, when exhibits are attached to the complaint they are viewed strictly against the pleader. Plaintiff replies that in those cases which have held that averments in an exhibit attached to the complaint control the complaint, the exhibit in question was a legally operative instrument, a plain admission or an authoritative recording of a legally operative fact. Further, in the cases on this point, the exhibit plainly contradicted the relevant allegations in the complaint. Plaintiff claims that other than the trust instrument, the exhibits attached to the complaint have no controlling legal effect over plaintiff’s claim and do not contradict any relevant factual allegations. The exhibits consist primarily of memoranda and letters written by the defendants. Plaintiff argues that in dismissing the complaint the trial judge did not rely on legally operative facts but rather on inferences and characterizations gleened from a review of the group of exhibits.

A motion brought under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) admits as true all well-pleaded facts. Its purpose is to raise an issue of law as to the legal sufficiency of the allegations of the complaint. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256.) A cause of action should not be dismissed unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) Illinois is a fact-pleading State. Therefore, although pleadings are liberally construed and formal or technical allegations are not necessary, a complaint must contain facts necessary to state a cause of action. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.) Only ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts. Carriage Way West.

Section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36) provides that when a written instrument is attached to a complaint as an exhibit either because the claim is founded on the instrument or the instrument is pled, the exhibit constitutes a part of the pleading for all purposes. A motion to strike a complaint does not admit as true those allegations in the complaint which conflict with facts disclosed in the exhibits. (Sangamon County Fair & Agricultural Association v. Stanard (1956), 9 Ill. 2d 267, 137 N.E.2d 487.) Where the averments in an exhibit attached to a complaint conflict with the allegations of the complaint, they negate such allegations. Laster v. Chicago Housing Authority (1982), 104 Ill. App. 3d 540, 543, 432 N.E.2d 1185, 1187.

Section 36 by its terms applies to documents upon which a claim is founded. The trust document is such an exhibit. Therefore, the trial court properly could conclude that the trust document constituted a part of the pleadings for all purposes. If any allegations in the complaint conflict with the terms of the trust instrument, those allegations in the complaint are negated. (Laster.) Defendants, however, have not presented any authority for the position that this principle applied to exhibits which are attached to the complaint by way of example of the evidence supporting plaintiff’s allegations. In those cases which have held that an exhibit controls over facts alleged in the complaint, the exhibit in issue was either the instrument being sued upon (see Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 300 N.E.2d 279), a sworn affidavit (Fowley v. Braden (1954), 4 Ill. 2d 355, 360, 122 N.E.2d 559, 562), or, an official public document (Sangamon). In Fowley, the court stated that it was “not prepared to say that in every case an exhibit will control over inconsistent allegations in the pleading of which it is a part.” 4 Ill. 2d 355, 360, 122 N.E.2d 559, 562.

We note that the trial court requested plaintiff to attach exhibits to his amended complaint. We also note that with the exception of the trust instrument itself, the exhibits here are not conclusive evidence that the facts are contrary to the allegations in the complaint. The trial court erred in determining the legal sufficiency of the complaint by comparing the factual allegations of the complaint with inferences the court made after reviewing the numerous exhibits. The fact that the trial court applied an erroneous legal standard to determining the motion to dismiss is apparent from the written opinion which contains a section entitled “findings of fact.” A pleading must show only the possibility of recovery, not an absolute certainty, and it should not be dismissed unless it manifestly appears that the pleader in no event would be permitted to recover. (Neuman v. City of Chicago (1982), 110 Ill. App. 3d 907, 913, 443 N.E.2d 626.) With these principles in mind we will examine the sufficiency of the allegations in each count of the complaint.

Ill

Count I of plaintiff’s complaint charges defendants McCormick, Ratcliffe, Schroeder, Oehring and the Miami Corporation with breach of trust. The count requests an accounting, a declaration of rights, compensatory damages and punitive damages. The trial court neglected to make any finding with respect to the sufficiency of plaintiff’s allegations that he was entitled to an accounting of trust expenditures for the building of the residence.

Plaintiff asserts that his allegations are sufficient to entitle him, the beneficiary of the trust, to an accounting by the former trustees and their agents. Defendants contend that where a successor trustee exists to compel an accounting if needed, the beneficiary has no right to an accounting. Defendants, however, have not presented any authority for this position. It has been established that providing his purpose is proper, a beneficiary has the right to inspection on demand to see that the trust is properly executed. (Wallace v. Malooly (1954), 4 Ill. 2d 86, 122 N.E.2d 275.) In Wallace, the court quoted a commentary from Restatement of Trusts sec. 173 (1935) which stated: “ '*** the beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust.’ ” (4 Ill. 2d 86, 95, 122 N.E.2d 275, 280.) The beneficiary of a trust is entitled to learn from his trustee “what property has come into his hands, what has passed out and what remains therein, including all receipts and disbursements in cash, and the sources from which they came, to whom paid and for what purpose paid.” (Wylie v. Bushnell (1917), 277 Ill. 484, 491, 115 N.E. 618, 622.) The beneficiary’s right to obtain necessary information from the trustees is broad. (Wallace.) When a party seeks an accounting, the trial court must make two separate and distinct determinations: that an accounting is required and that a sum certain is due. These determinations are traditionally made in separate hearings with separate discovery phases. Schane v. Conrad (1979), 68 Ill. App. 3d 961, 386 N.E.2d 431.

Defendants further object to an accounting because they argue that the complaint does not allege that an accounting was demanded, and refused. Plaintiff’s complaint alleges that “plaintiff has corresponded with defendant trustees and agents through their counsel demanding a written accounting of the status of the construction and that defendants refused to account to plaintiff.” Plaintiff’s allegations of breach of trust and refusal to account to him upon his demand are sufficient to withstand a motion to dismiss. Patterson v. Northern Trust Co. (1912), 170 Ill. App. 501, 516.

Defendants- also argue that the court ordered accounting which plaintiff seeks is somehow similar to, or satisfied by, the petition for approval of accounts filed by McCormick and Schroeder and tendered to plaintiff. That petition was filed several days before plaintiff filed his complaint and was stayed pending the outcome of this suit. Whether these documents are so complete and correct as to make plaintiff’s demand for an accounting unreasonable and unnecessary are questions of fact and not properly a determination to make on a motion to dismiss. See Patterson; Havana National Bank v. Wiemer (1975), 32 Ill. App. 3d 578, 335 N.E.2d 506.

Additionally, count I seeks damages from negligent breach of trust in an amount to be determined by the accounting. In dismissing this count the trial court determined that, based upon the exhibits, the trustees had used their best judgment in making disputed payments to the contractor. The court concluded that plaintiff was intimately involved with the construction of the residence and cannot now complain that the trustees did not further scrutinize the construction.

Trustees have the obligation to carry out the trust according to its terms, to use care and diligence in protecting and investing trust property and to use perfect good faith. (Chicago Title & Trust Co. v. Chief Wash Co. (1938), 368 Ill. 146, 155, 13 N.E.2d 153, 157.) Plaintiff has alleged several acts by which the trustees breached their duties as trustees including the payment of disputed bills in order to protect defendant McCormick’s reputation in the business community. In light of the high standards to which a trustee is held, plaintiff’s allegations sufficiently state a cause of action for breach of trust.

Count II alleges waste of trust assets by plaintiff’s trustees and their agents. Plaintiff alleges that defendants breached the trustees’ duty to exercise sound judgment as to tax considerations, types of investments and indebtedness appropriate to the trust in order to maintain the corpus of the trust and product sufficient income for plaintiff’s livelihood. Specifically, plaintiff alleges that the trustees borrowed money at a variable prime interest rate rather than choosing a far less expensive means available for financing a residence such as a standard home mortgage. Count II also alleges unwarranted selling or pledging of various income producing properties in the trust by the trustees. The trial court relied upon an exhibit which was a letter from Oehring to Schroeder discussing the advantages of obtaining a mortgage, to conclude that “it is clear from this exhibit that the trustees engaged in ‘an honest exercise of a discretionary power.’ ”

Plaintiff argues that count II contains explicit allegations of the trustees’ duties, the breach of those duties and the resulting damages to the trust. Defendants argue that there are no specific allegations of how the method of financing created an unreasonable burden on the trust. Also, they argue that plaintiff cannot shift the legal responsibility for the construction financing onto his former trustees.

On a motion to dismiss, plaintiff’s allegations that the trustees accepted responsibility for and controlled the financing of the residence must be taken as true. A “prudent man” standard governs the trustees’ actions under Illinois law. By statute, a trustee has the duty to exercise:

“the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.” (Ill. Rev. Stat. 1965, ch. 148, par. 32, repealed in 1973 and replaced by Ill. Rev. Stat. 1981, eh. 17, par. 1675.)

Plaintiff’s allegations that defendants chose a more expensive means of financing the residence and have burdened the trust with unreasonable interest payments adequately states a cause of action for failure to reasonably exercise their discretion in management of the trust.

In count III plaintiff alleges that his trustees breached their fiduciary duties by delegating judgmental and discretionary functions and responsibilities to their agents. Plaintiff relies upon In re Hartzell (1963), 43 Ill. App. 2d 118, 192 N.E.2d 697, where the court held that although purely ministerial duties may be delegated by a trustee, generally a trustee may not delegate powers and duties involving the exercise of judgment and discretion. The trial court rejected count III because among the powers the trust instrument grants to the trustees is the power “to employ agents and counsel, including investment counsel, and delegate to them any powers of the trustees.” (Emphasis added.) We note that count III does not allege that the trustees failed to use proper discretion in choosing their agents, nor does it allege that the trustees in any way exceeded their powers to delegate by failing to continue to exercise discretion in watching over the trust. (See Local Union No. 422 v. First National Bank (1981), 93 Ill. App. 3d 890, 417 N.E.2d 1077.) Rather, plaintiff alleges that the trustees unlawfully delegated their responsibilities because they delegated judgmental and discretionary functions. Yet no such limitation on the trustees’ power to delegate is found in the trust instrument. Authority to delegate powers and the conditions for delegation may be granted to a trustee by an express clause in the trust instrument. (Bogert, Trusts & Trustees sec. 555, at 119-20 (2d ed. 1980).) The trial court did not err in determining that plaintiff’s complaint, when viewed in conjunction with the trust document, fails to allege a cause of action for unlawful delegation.

Plaintiff also alleged that the agents, by accepting unlawfully delegated discretionary and judgmental functions, became trustees de son tort and, therefore, are liable as trustees for any breach of trust committed. (See Penn v. Fogler (1899), 182 Ill. 76, 96, 55 N.E.192, 197; Lehmann v. Rothbarth (1884), 111 Ill. 185, 195.) Since plaintiff’s claim that the trustees unlawfully delegated their powers under the trust instrument does not state a cause of action, the claim against the agents for accepting the-unlawfully delegated functions also fails.

Count TV alleges that Ratcliffe and Schroeder are professional trustees; that at the time of the events relevant to this lawsuit Ratcliffe was chairman of the board of the National Boulevard Bank and Schroeder was one of its directors; that as trustees they had a duty to use perfect good faith; and, that in breach of that duty they borrowed money for the construction of the residence from the bank for which they worked. Defendants argue that the trust document specifically allows the trustees to deal on behalf of the trust with corporations for which a trustee may be a director, officer or employee.

We note that it has been held that where acts which would ordinarily be viewed as conflict of interest are contemplated, created or sanctioned within a trust instrument, as they are here, the trustee has no liability for following the trust’s directives. (Childs v. National Bank (7th Cir. 1981), 658 F.2d 487, 490.) Thus if count IV is read to allege a breach of fiduciary duty for self dealing, the count must fail because the act complained of, borrowing from the National Boulevard Bank, was sanctioned by the trust instrument. Count IV also an be read to allege a breach of fiduciary duty for choosing an unreasonable and expensive means of financing the residence. If so read, this count merely restates the allegations of count II and may be stricken as redundant. Ill. Rev. Stat. 1979, ch. 110, par. 33(1).

In count V plaintiff sought damages from the trustees for their failure to sue the architect and the contractor of the residence. Plaintiff has not addressed the issue of the trial court’s dismissal of count V except in passum. Consequently, we will consider this issue waived.

Plaintiff alleges in count VI that Schroeder and Ratcliffe breached their duties as plaintiff’s attorneys-in-fact in the same manner and to the same extent as they breached their trust duties as set forth in counts I through V. Plaintiff alleges that he executed a broad power of attorney as a consequence of his status as a principal and stockholder of the Miami Corporation. Every stockholder executed a similar power of attorney naming the then president of the corporation as his attorney-in-fact.

Defendants argue that the duties owed a principal by an agent under a power of attorney are not identical to those owed under a trust instrument. An alleged breach of trust cannot be asserted as the basis for a breach of a power of attorney. We agree. The acts complained of in counts I through V concerned actions taken with respect to trust corpus. Any act which Ratcliffe and Schroeder took with respect to trust property could only have been taken under their powers as plaintiff’s trustees and not under their powers as attorneys-in-fact. Therefore, by merely repeating the allegations which allegedly showed defendants’ breach of trust, plaintiff has failed to state a cause of action for breach of the principal-agent relationship under the power of attorney.

IV

Pursuant to section 48(l)(f) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(f)), defendant Ratcliffe moved for his dismissal from this lawsuit on the grounds that he had been released from liability for his acts as a trustee. Ratcliffe served as trustee from the inception of the trust until he resigned on December 31, 1977. On May 11, 1978, plaintiff executed a written “ratification and release” which ratified and approved every act of Ratcliffe as trustee and released him from any liability arising out of his management of the trust. Plaintiff alleged in his complaint that the instrument was procured without consideration, that defendant never explained the effect of the release nor advised plaintiff to obtain independent counsel, and that contrary to the documents’ recitals, plaintiff was never given trust documents to review prior to signing the release. Defendant’s motion alleged that plaintiff had executed a valid release and that plaintiff’s allegations were insufficient to raise an issue as to the validity of the release. The trial court found that absent any allegations of fraud or coercion in the procurement of the release, plaintiff was foreclosed from challenging this apparently valid instrument.

On appeal, plaintiff argues that because of the fiduciary relationship between a trustee and a beneficiary, the release of a trustee must meet special requirements before it will be held valid. Such a release, plaintiff contends, carries a presumption of fraud and consequently, the burden of proving that the release was fair and did not proceed from undue influence rests with the trustee. Defendant contends that since he did not receive compensation for his services on behalf of a trust and did not receive any other benefit as a result of the administration of the trust, there is no presumption of fraud.

Once the existence of a release has been established, the party opposing its use had the burden of attacking its validity. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 37, 356 N.E.2d 639, 641.) The defenses which may be asserted to vitiate a release include fraud in the execution, fraud in the inducement, mutual mistake and mental incompetence. (Blaylock.) Plaintiff had not alleged facts sufficient to establish any of these defenses.

A release between a trustee and a beneficiary, like all transactions growing out of a fiduciary relationship, is subject to the closest scrutiny. (Pennington v. Jones (1977), 46 Ill. App. 3d 65, 360 N.E.2d 566.) A fiduciary relationship exists between trustee and beneficiary as a matter of law. At the time the release was signed, however, the fiduciary relationship no longer existed as a matter of law. (Collins v. Nugent (1982), 110 Ill. App. 3d 1026, 443 N.E.2d 277.) Moreover, plaintiff has not alleged facts which would tend to show that the relationship continued in any way. Thus the release is not subject to the presumption of fraud which accompanies transactions between fiduciaries. The trial court did not err in dismissing defendant Ratcliffe from plaintiff’s suit.

In conclusion, the decision of the circuit court of Cook County in dismissing plaintiff’s complaint is reversed with respect to count I and II. In all other respects, the decision of the circuit court is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

BUCKLEY, P.J., and McGLOON, J., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
      In re MARRIAGE OF JOYCE T. SCHMIDT, Petitioner-Appellee, and JAMES F. SCHMIDT, Respondent-Appellant.
    First District (3rd Division)
    No. 83—1106
    Opinion filed September 14, 1983.
    Rehearing denied November 8, 1983.
    David I. Grund, of Chicago (Idrienne L. Heymann and Robert M. Knabe, of counsel), for appellant.
    Fred Speck, of Chicago, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This is an interlocutory appeal, taken pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)), from an order of the circuit court of Cook County which denied the motion of respondent, James E Schmidt, to dissolve a preliminary injunction which prohibited him from disposing of his real and personal property and any assets in which he holds any interest whatsoever. The primary issue is whether the circuit court abused its discretion in entering the injunction.

The record on appeal shows that on December 21, 1979, the circuit court entered a judgment dissolving the marriage of respondent and petitioner, Joyce T. Schmidt. The judgment of dissolution of marriage expressly adopted a separation agreement entered into between the parties. That agreement provided, in part, that:

“Husband shall convey and transfer to Wife, to have as her separate property, any and all of his right, title and interest in Land Trust Number 8 — 1190 at Oak Brook Bank, a trust which holds title to property commonly known as 15 Bar Harbour Road, Unit 5G, Schaumburg, Cook County, Illinois 60193. ***
Wife is to have all Husband’s right, title and interest in said real estate and the land trust set forth above free of all incumbrances and assignments except that of the principal mortgage. * * *
Husband is to pay to Wife on the first day of each month the amount of THREE HUNDRED TWENTY-THREE and No/100 Dollars ($323.00) by certified or cashier’s check, which represents the principal mortgage payment. ***
Husband shall on or before the date of April 30, 1981 pay to Wife the principal mortgage balance remaining on the property identified above. If Husband shall fail to make' such payment, then interest shall accrue and be payable to Wife at the rate of thirteen per cent (13%) per annum on any unpaid balance until such payment in full shall be made to Wife. To secure said payment, Husband shall obtain and pay premiums on a $35,000.00 term life insurance policy on his life with Wife as beneficiary thereof. Husband shall keep the said life insurance policy in full force and effect with Wife as beneficiary until the full payment of the amount due on April 30, 1981 as well as full payment of any interest which is due and owing under the terms set forth above.”

Subsequently, on March 1, 1983, petitioner filed with the circuit court two verified petitions: one for a rule to show cause and the other for a temporary restraining order. The petition for a rule to show cause alleged, among other things, that:

“4. In direct, willful and contumacious disobeyance of the Court’s Order, Respondent failed to make [the April 30, 1981] payment as set forth in the Judgment;
5. Despite Petitioner’s pleas for payment, Respondent has paid only a small portion of the amount due and owing, leaving an unpaid balance, as of the date of the filing of this Petition of $50,595.24;
* * *
8. On Petitioner’s knowledge and belief, no such insurance policy [as provided for in the judgment] exists, despite the extremely large unpaid balance;
* * *
10. Respondent is a well-to-do entrepreneur with multifaceted business interests, while Petitioner is a secretary.”

This petition asked the court, among other things, to enter a rule requiring respondent to show cause why he should not be held in wilful contempt of court and punished accordingly.

The petition for a temporary restraining order purports to incorporate the petition for a rule to show cause. This petition alleged that:

“3. Respondent is an entrepreneur involved in numerous joint ventures, partnerships and corporations and could shift and ‘hide’ his interests if not restrained by the Court, and thereby preventing [sic] Petitioner from recovering the sum due and owing her pursuant to the Judgment for Dissolution of Marriage.
4. Based upon Respondent’s contemptuous, deceitful behavior over the past two years, Petitioner believes that he would ‘hide,’ transfer, dissipate his assets and interests if given notice of these proceedings before entry of a Restraining Order.”

The prayer for relief in this petition requested:

“[A] Temporary Restraining Order to be issued restraining and enjoining Respondent, his agents or servants from transferring, selling, hypothecating, pledging, loaning or otherwise disposing of any of the following:

(1) his own real and personal property;
(2) any interests or assets he holds in any corporation, partnership, joint venture, sole proprietorship or other business venture; or
(3) any other assets or monies in which he holds any interest whatsoever.”

After an ex parte hearing on March 1, 1983, the circuit court entered an order finding that irreparable harm could result to petitioner if respondent were given notice of the proceeding and granting the temporary restraining order requested by petitioner. On March 11, 1983, after a hearing at which respondent appeared pro se, the circuit court entered an order which extended the temporary restraining order for 10 more days. By this order the court also entered a rule to show cause against respondent returnable on March 21,1983.

On March 21, 1983, the circuit court entered an order which elevated the temporary restraining order to a preliminary injunction. Attorneys for both parties were before the court, but no pleading had been filed by respondent.

On April 7, 1983, respondent filed a document entitled, “Motions to Dissolve Temporary Restraining Order and Preliminary Injunction,” which the circuit court on April 11, 1983, after a hearing, denied. It is from the order denying the motions that respondent appeals.

We first address respondent’s argument that the circuit court erroneously issued the preliminary injunction. We recognize that the circuit court’s exercise of discretion in ordering a preliminary injunction and in refusing to dissolve it will not be set aside absent a showing of abuse of discretion. People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 372-73, 430 N.E.2d 68; Shappert v. Roettger (1976), 36 Ill. App. 3d 452, 457, 343 N.E.2d 695.

In order to obtain a preliminary injunction, a party must establish: (1) that he possesses a clearly ascertainable right which needs protection; (2) that he will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for the injury; and (4) that he is likely to be successful on the merits of his action. In addition, he generally must establish that the need for temporary relief outweighs any possible injury that the party to be enjoined might suffer by its issuance. Carrillo v. Jam Productions, Ltd. (1982), 108 Ill. App. 3d 126, 131, 438 N.E.2d 1197; People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 372; Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 308, 421 N.E.2d 374.

We observe that respondent never filed an answer to the petition for temporary restraining order and that petitioner never filed a petition for a preliminary injunction. Since no answer was filed and no testimony was taken, the circuit court necessarily ruled that petitioner’s pleadings standing alone were sufficient for granting injunctive relief. (See Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150, 358 N.E.2d 61, cert. denied (1977), 434 U.S. 837, 54 L. Ed. 2d 99, 98 S. Ct. 127; Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill. App. 2d 181, 186-87, 262 N.E.2d 713.) Accordingly, we must consider whether petitioner’s petition for temporary restraining order, which incorporated her petition for a rule to show cause, was sufficient to warrant the issuance of a preliminary injunction.

Respondent argues that petitioner failed to plead facts which would establish that she would suffer irreparable harm without the injunction. It is well settled that “[a]n application for a preliminary injunction must specify all facts necessary to justify the unusual relief sought” and that “[tjhese facts must be alleged with certainty and precision.” (People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 373; Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 150; see Ill. Rev. Stat. 1981, ch. 40, par. 501.) Thus, “allegations consisting of mere opinion, conclusion or belief are not sufficient to support a preliminary injunction.” Carrillo v. Jam Productions, Ltd. (1982), 108 Ill. App. 3d 126, 131; Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 308.

In our opinion, the pleadings here fail to demonstrate that petitioner would have suffered irreparable harm without the court’s restraint. The petition for temporary restraining order merely alleges that respondent could hide his various business interests, and that petitioner believes that he would dissipate his assets and interests. The petition for rule to show cause alleged that respondent wilfully and contumaciously failed to make the payment described in the judgment of dissolution of marriage. We believe that the allegations that respondent could hide his interests and that petitioner believes that he would dissipate his assets are mere conclusions. Moreover, it is clear that the latter allegation is insufficient. It merely states the petitioner’s belief, and we note that the verification of the petition for temporary restraining order, signed by petitioner, expressly excepts from the verification “those matters which are alleged on information and belief.” In Carillo, this court stated that “allegations made only upon information and belief are insufficient to support a preliminary injunction.” (Carrillo v. Jam Productions, Ltd. (1982), 108 Ill. App. 3d 126, 131.) In addition, we do not believe that the allegation that respondent wilfully and contumaciously failed to make payment, by itself, warrants the issuance of a preliminary injunction. Such an allegation does not establish that there is no adequate remedy at law for the failure.

In sum, we believe that petitioner has not alleged facts which would show that her remedies at law are inadequate or that she would suffer irreparable harm without injunctive relief. Accordingly, we hold that the trial court abused its discretion in entering the preliminary injunction. In reaching this conclusion, we specifically note that the petitions do not allege that respondent had in the past hidden his interests or assets, or that he had made threats to dispose of them.

We further observe that neither party cited section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501) in support of its argument in this court. Section 501(a) provides:

“in all proceedings under this Act, temporary relief shall be as follows:
(a) Either party may move for:
* * *
(2) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:
(i) restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued; ***.”

Assuming that section 501 is applicable to this case, we note: (1) that the preliminary injunction authorized by section 501(a)(2)(i) contains exceptions not present in the temporary restraining order and preliminary injunction entered in the instant case; (2) that there is no affidavit in the record; and (3) that section 501(a), like the case law cited in the body of this opinion, requires the movant to show a factual basis for the relief sought. Since we hold that under general rules of injunction law, petitioner has not shown a factual basis for a preliminary injunction, we do not address the other requirements of section 501. We merely note that if section 501 is applicable, petitioner has not satisfied its requirements.

Respondent also contends that the circuit court erred in entering the temporary restraining order of March 1, 1983, and the order of March 11, 1983, which extended the temporary restraining order for 10 more days. Petitioner answers that the temporary restraining order as extended was no longer in effect when respondent filed his “Motions to Dissolve Temporary Restraining Order and Preliminary Injunction” on April 7, 1983. Thus, according to petitioner, any issue relating to the temporary restraining order is moot. In his reply brief, respondent counters this argument as follows: “[T]he issue of the Temporary Restraining Order and Extended Temporary Restraining Order were [sic] not moot because the damage provision [contained in section 11 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 110)] contemplates *** review of the validity of all Orders in the first place.” We agree with respondent. In our opinion, a litigant who is successful in obtaining a dissolution of a preliminary injunction should be able to recover damages from the time he was first improperly enjoined, assuming that he complies with the requirements of section 11 — 110. Thus, we believe that the propriety of the temporary restraining order is properly before this court. We further believe that the temporary restraining order entered in the instant case was improper for essentially the same reason that we held the entry of the preliminary injunction to have been an abuse of discretion. Section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) provides:

“No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.”

In the instant case, the verified petitions failed to allege “specific facts *** that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.” (See also Ill. Rev. Stat. 1981, ch. 40, par. 501(b).) Accordingly, we conclude that the entry of the temporary restraining order was an abuse of discretion.

For the aforementioned reasons, we reverse the order of the circuit court which denied respondent’s motions to dissolve the preliminary injunction and the temporary restraining order, and we remand this cause to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON MICHAEL DUNAGAN, Defendant-Appellant.
    First District (4th Division)
    No. 81—1043
    Opinion filed September 29, 1983.
    James J. Doherty, Public Defender, of Chicago (James L. Rubens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Luann Rodi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Leon Dunagan, was charged by indictment with the December 26, 1971, murder of Oscar Tucson Boyd. During a jury trial on the charge, defense counsel made an oral motion to quash defendant’s arrest and suppress evidence, particularly an inculpatory statement made to police officers after defendant’s arrest. The motion was heard and denied. Defendant was subsequently convicted of the offense (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(a)) and sentenced to a term of not less than 50 nor more than 100 years in the Illinois Department of Corrections. The conviction was affirmed on appeal to this court (People v. Dunagan (1979), 71 Ill. App. 3d 972, 389 N.E.2d 1261, vacated (1980), 446 U.S. 905, 64 L. Ed. 2d 257, 100 S. Ct. 1829); defendant’s petition for leave to appeal to the Illinois Supreme Court was denied.

Defendant petitioned the United States Supreme Court for a writ of certiorari, and on April 21, 1980, that court ordered that the judgment of the Illinois appellate court be vacated and the cause be remanded for further consideration in light of the decision in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. In accordance with that order, on December 9, 1980, this court vacated the judgment of the circuit court of Cook County and remanded the cause for further consideration in light of the decision in Payton.

A new hearing on defendant’s motion to quash his arrest and suppress evidence commenced on March 16, 1981. At that suppression hearing, the State stipulated that defendant’s arrest occurred on December 28, 1971, at approximately 9:50 p.m., in apartment 1002 of a Chicago Housing Authority building located at 6215 South Wabash Avenue. Defendant’s arrest was carried out without a warrant. Defense counsel conceded that probable cause existed for the arrest.

The only State witness to testify at the hearing was Claude Wiley, one of the arresting officers. He stated that at approximately 7:30 p.m. on December 28, 1971, he and his partner saw several individuals tampering with a trailer truck in the lot of a service station at 63rd Street and Wabash Avenue. When the officers approached, all of the individuals fled except Reginald Brown. During their conversation with Brown at that time, Brown told the officers that he had some information for them. The officers took Brown to Area 2 headquarters where he gave them a written statement, according to which Brown stated that Leon Dunagan, the defendant, committed the shooting that occurred two days earlier. Brown’s statement contained defendant’s name, age, address, and telephone number. This information corroborated earlier police reports that the shooting was committed by a young man, 16 or 17 years of age, who ran into the building at 6215 South Wabash Avenue after firing the shot. Brown also informed the officers that defendant had several weapons in his apartment. The officers then took Brown back to where they had originally picked him up and proceeded to the Wabash Avenue address at about 9:30 p.m. When the police officers knocked on the door of apartment 1002, a male voice asked who was there. The officers responded that it was the police. The door was opened and Officer Wiley asked if Leon Dunagan was there; the man responded that he was Leon Dunagan. The officers then entered the apartment. Defendant’s mother and a young woman were present. Officer Wiley testified that neither the officers nor the defendant drew a weapon at any time during this interlude, although later the officers did draw their weapons when approximately 15 shots were fired at them as they left the building with the handcuffed defendant.

During cross-examination of Officer Wiley, it was learned that the officers had never used Brown as an informant before, and that Brown was not present at the shooting but had received his information from someone else. Wiley also stated that they did not attempt to obtain an arrest warrant and had no particular reason to believe that defendant would not be present when they arrived at his apartment.

Following the arguments of counsel, the court concluded that exigent circumstances existed which permitted the warrantless entry and again denied defendant’s motion. The court then reinstated the judgment of conviction. At a subsequent sentencing hearing, defendant made a statement in his own behalf after which he was resentenced to not less than 14 nor more than 20 years’ imprisonment. Defendant now appeals from this judgment, contending that the trial court erred in again denying his motion to quash his arrest and suppress his confession.

Defendant contends that his fourth amendment rights were violated by the trial court’s failure to quash his arrest and suppress his confession. It should be noted initially that defendant has conceded the existence of probable cause, and it is undisputed that the arrest was made without a warrant. He argues that in light of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, his warrantless arrest and all evidence which flows from it are invalid. Defendant’s argument appears to be based on the premise that an arrest warrant is necessary under all circumstances and that evidence obtained following an arrest without a warrant must automatically be suppressed. This proposition must of course be rejected.

Contrary to the spirit of defendant’s argument, an arrest and its consequences are not invalid simply because it was carried out without a warrant. There are circumstances which obviate obtaining a warrant prior to making an arrest. Since probable cause is conceded, the question becomes whether those circumstances necessary to validate a warrantless arrest are present in this case.

In Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, the United States Supreme Court held that police are prohibited from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. However, the Payton court also noted that a warrantless entry may be justified by a showing of exigent circumstances. See also People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.

In the instant case, the trial court found that the entry into defendant’s apartment was nonconsensual. The evidence showed that someone, most likely defendant, asked, “Who is it,” when the police knocked on the door. The door was opened when the officers responded, “police.” There is no evidence that anyone invited them in, simply that they entered when the door was opened. We agree with the trial court’s finding. Thus, the issue here is whether exigent circumstances existed which would justify the police officers’ decision to proceed without a warrant. See Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543; People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

In determining whether exigent circumstances exist, courts must consider (1) the gravity or violent nature of the offense, (2) whether the suspect is reasonably believed to be armed, (3) a clear showing of probable cause to believe the suspect committed the crime, (4) strong reason to believe the suspect is in the premises, (5) a likelihood that the suspect will escape if not swiftly apprehended, and (6) the peaceful circumstances of the entry. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1004.) Additionally, the court may consider (1) prompt action by the police in arresting the suspect after learning of his possible involvement, (2) no deliberate or unjustified delay during which time a warrant could have been obtained, and (3) a belief that the suspect was armed and violent. See People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543.

We find it useful to evaluate the specific facts of this case in light of the criteria set forth in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, and People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

In the case at bar, the police received the information regarding defendant’s involvement at sometime after 7:30 p.m., and they arrested defendant shortly after 9:30 p.m., approximately 2 hours later. Although Brown was not a known informer, he did provide defendant’s name, age, address, and telephone number, was acquainted with defendant and provided the police with a written and signed statement. As noted earlier, this information was corroborated by other information gathered by the police. Shortly afterward, the officers went to defendant’s apartment. Here, the police acted promptly after learning of defendant’s involvement. (See People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.) There was no deliberate or unnecessary delay.

Once the police officers received Brown’s statement which supplemented the information already known to them, a decision had to be made: act quickly to arrest the suspect or get a warrant. We will not speculate about the various options available to the police officers.

Clearly, murder is a violent act. In this case, it was committed by shooting the victim. Thus, the police officers were well aware that defendant might be armed. Moreover, Brown told them that defendant had several weapons in his apartment. Based on these facts, the officers could reasonably believe that defendant was armed and possibly violent. See People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543; People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112.

We believe that criteria for determining whether exigent circumstances existed have been met. As this court said in Thompson, each factor outlined above need not be present in its entirety; they need only be satisfied on balance. People v. Thompson (1981), 93 Ill. App. 3d 995, 1005, 418 N.E.2d 112.

As the court stated in People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543, the guiding principle of reasonableness governs searches and seizures under the Constitution. In making its determination of whether law enforcement officials acted reasonably in a given case, the court should be careful to judge the circumstances as known to the police at the time they acted. People v. Abney (1980), 81 Ill. 2d 159, 173, 407 N.E.2d 543.

We believe that under the facts and circumstances of this case the police officers acted reasonably. The trial court’s findings of exigent circumstances and its judgment will therefore be affirmed.

Affirmed.

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


author: PRESIDING JUSTICE BUCKLEY

text:
    KATHY SIMPSON, Adm’r of the Estate of Leland Simpson, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, Defendant and Counterdefendant-Appellant—(Midco Sales & Service, Defendant and Counterplaintiff-Appellee).
    First District (1st Division)
    No. 82—613
    Opinion filed September 26, 1983.
    Rehearing denied November 7, 1983.
    Lord, Bissell & Brook, of Chicago (Otis M. Smith and Nicholas J. Wittner, both of General Motors Corporation, and Michael Davis, Hugh C. Griffin, and Kenneth F. B.erg, of counsel), for appellant General Motors Corporation.
    Donald N. Hoppe, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellate Midco Sales & Service.

      Joseph R. Curdo, of Chicago (Sidney Z. Karasik and Catherine L. Grahn, of counsel), for appellee Kathy Simpson.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Kathy Simpson, brought an action for wrongful death predicated on a strict products liability theory against defendants General Motors (CM) and Midco Sales & Service (Midco). Plaintiff’s decedent, Leland Simpson, died as a result of injuries sustained while operating a product manufactured by CM and distributed by Midco. Defendants pleaded assumption of risk. After trial, in answer to a special interrogatory, the jury found that decedent “was guilty of assumption of risk.” Based on a “comparative fault” instruction, the jury also attributed 5% of the total fault to plaintiff. The jury returned a verdict in favor of plaintiff for $875,000, which the trial court reduced to $831,250 based on the jury’s comparative fault findings. Additionally, a directed verdict was entered in Midco’s favor on its counterclaim for indemnity against CM. CM and Midco appeal from the judgment entered in favor of plaintiff, and CM also appeals from the directed verdict entered against it.

The pertinent facts are as follows. On February 3, 1976, plaintiff’s decedent was killed when the Terex TS-24 earth scraper machine that he was operating overturned in the course of his employment at a stone quarry. The earth scraper was designed and manufactured by defendant CM and was sold to decedent’s employer by defendant Midco. At trial, plaintiff introduced expert testimony that the earth scraper was unreasonably dangerous because it lacked an effective roll-over protective structure.

CM filed two separate affirmative defenses. The first defense was based on assumption of risk and the second was predicated on the contributory negligence of plaintiff’s decedent. The trial court ruled that neither of the affirmative defenses were proper, and refused to give GM’s instructions setting forth assumption of risk as a complete bar to plaintiff’s claim and its instructions on contributory negligence. Instead, the court instructed the jury on the subjective elements of the assumption of risk defense and gave two special interrogatories to the jury. The first interrogatory asked whether plaintiff’s decedent was guilty of assumption of risk. The jury answered “yes” to this first interrogatory. The trial court further instructed the jury that if they answered in the affirmative to the first special interrogatory, as they did, they were to proceed to answer a second interrogatory which provided as follows:

“Assuming that 100% represents the combined fault of the plaintiff’s decedent and of the defendant that contributed as a proximate cause to plaintiff’s decedent’s death, what proportion of such combined fault is attributable to the plaintiff’s decedent on the one hand and what proportion is attributable to the defendant on the other hand?
Answer: ‘to plaintiff_%
‘to defendant’_%.”

The jury answered this second interrogatory by attributing 5% of the total fault to plaintiff’s decedent and 95% of the fault to defendants. It subsequently returned a total damage verdict of $875,000, which the trial court reduced to $831,250 pursuant to the fault allocations made by the jury.

On appeal, GM and Midco argue that judgment be entered in their favor as a matter of law based on the jury’s answer to the special interrogatory finding decedent guilty of assumption of risk.

We must reject defendants’ first argument in view of the recent holding by the supreme court in Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104. Prior to Coney, misuse and assumption of risk by the plaintiff were total defenses to recovery in strict products liability actions. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Coney, however, extended comparative fault principles to strict products liability actions, holding that the defenses of misuse and assumption of risk no longer preclude recovery in such actions. The court held that once the defendant’s liability is established, and where the plaintiff’s misconduct contributes to cause the damages, the comparative fault doctrine will operate to reduce plaintiff’s recovery by that amount which the trier of fact finds him at fault. Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 119.

Accordingly, in the instant case the trial judge was correct in apportioning damages attributed to the assumption of risk by the plaintiff.

We next consider defendants’ contention that the trial court erred in failing to submit the question of plaintiff’s contributory negligence to the jury. Defendants allege that if the comparative fault principle applies in a strict products liability action, it should apply to all aspects of plaintiff’s decedent’s culpability, including his alleged contributory negligence. We disagree.

Initially, we note that after reviewing the record we find no evidence indicating any contributory negligence on the part of plaintiff’s decedent, and the trial court therefore properly refused to instruct the jury on that issue. Even assuming, however, such evidence existed, we nevertheless find no error on the part of the trial court.

In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305, the supreme court held that the contributory negligence of a plaintiff will not be available as a defense in a strict products liability action. More specifically, the court stated:

“The question before us is whether, in a strict product liability in tort action, the concept of contributory negligence as it prevails in this State shall bar a plaintiff’s recovery, or whether that recovery will be barred only when the nature of plaintiff’s misconduct has reached the point at which he has misused the product or has assumed the risk of its use. We are persuaded that the policy considerations which led us to adopt strict tort liability in Suvada compel the elimination of ‘contributory negligence’ as a bar to recovery. *** We accordingly hold that contributory negligence, as it is known in this State, is not a bar to recovery in a strict product liability tort action in Illinois, and the plaintiff need not plead and prove his exercise of due care. ***” 45 Ill. 2d 418, 426-27.

In Coney, the supreme court reiterated its posture in Williams. Holding that the ordinary contributory negligence of a plaintiff will not preclude, nor diminish, his recovery in an action predicated on strict liability, the Coney court stated:

“Following the Restatement, this court, in Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, adopted misuse and assumption of the risk as complete defenses to a strict products liability action. But, at the same time, it was said there that ‘[contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.’ (45 Ill. 2d 418, 423.) We adhere to this statement. We believe that a consumer’s unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect should not be compared as a damage-reducing factor. As the court in West v. Caterpillar Tractor Co. (Fla. 1976), 336 So. 2d 80, 92, said: ‘The consumer or user is entitled to believe that the product will do the job for which it was built.’ ” Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 119.

In view of the above-quoted language in Coney, we conclude that the trial court acted properly in refusing to instruct the jury on the decedent’s contributory negligence.

We further note that permitting the ordinary contributory negligence of a plaintiff to reduce damages in strict liability actions would be incompatible with the policy considerations underlying this tort theory. Strict liability recognizes a duty on the part of a manufacturer to design a product so as to guard against those injuries which may result from a consumer’s foreseeable carelessness or negligence. (See Suter v. San Angelo Foundry & Machine Co. (1979), 81 N.J. 150, 406 A.2d 140.) Therefore, strict liability aims to place the loss caused by defective products on those who create the risks and reap the profit by placing a defective product in the stream of commerce. (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) In order to effectively accomplish this goal, the plaintiff in a strict liability action is relieved of the burden of proving negligence on the part of the defendant; the focus is on the design and performance of the product itself, and liability for a defective product is imposed regardless of whether the defect resulted from the negligence of the manufacturer. (See Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 82.) To now inject ordinary contributory negligence concepts into strict products liability litigation would seriously undermine the consumer protection intended by this particular type of litigation.

Finally, GM argues that Midco was not entitled to a directed verdict on its counterclaim for indemnity against GM. GM contends that misuse and assumption of risk are defenses to such an indemnity claim and that factual questions were raised by the evidence.

We recognize that in an indemnity action predicated on a strict liability theory, the indemnity plaintiff may not recover where he has either misused the product or assumed the risk of the defect. (Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857.) In the present case, however, the record is bare of evidence that would support a finding of assumption of risk or misuse by Midco. The primary plaintiff alleged that the earth scraper was unreasonably dangerous because it lacked an effective roll-over protective structure and presented evidence to that effect. The only evidence upon which Midco was held liable to the plaintiff was that it had sold the earth scraper to plaintiff’s employer in 1971. Hence, Midco was merely a distributor of a product that was defective when it left the control of GM. The record reveals no evidence of any independent acts or omissions by Midco that may have contributed to plaintiff’s injury. In fact, at the close of plaintiff’s case, counsel for GM admitted that GM was not contending there were any independent acts or omissions on the part of Midco and that it would present no evidence to that effect.

The real tenor of GM’s argument is that Midco should have remedied the defect created by GM. This attempt by GM to delegate responsibility must fail since it is contrary to the goal of strict liability to place the loss caused by defective products on those creating the risk. It is a well-settled principle that a manufacturer is under a nondelegable duty to make a product that is reasonably safe; it may not delegate that duty to the dealer, user or purchaser of the product. (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079; Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 319 N.E.2d 232.) Further, this court previously has rejected the argument that an entity down the distributive chain has an identical duty to that of the manufacturer. See Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill. App. 2d 351, 254 N.E.2d 584.

We must further reject GM’s allegation that the principle of comparative fault, as adopted by the supreme court in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, should apply in the instant indemnity action. A similar contention was set forth in Coney. There, the defendant, in arguing for the abolition of joint and several liability, contended that Alvis mandates that a tortfeasor should be liable only to the extent that his negligent acts or omissions produced the damages. (Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, 124.) This argument was rejected by the supreme court which expressly retained the doctrine of joint and several liability. Citing the Coney decision, this court, in Justus v. Abex Corp. (1983), 117 Ill. App. 3d 1018, also declined to apportion a defendant’s liability in an indemnity action on a comparative fault basis.

Finally, we note that permitting an apportionment of damages predicated on comparative fault principles would effectively eliminate the distinction between indemnity and contribution. The legislature, in enacting the contribution act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) which applies to causes of actions arising on or after March 1, 1978, refused to give the act retroactive application. In the case at bar, the cause of action arose prior to the act’s cut-off date. We decline to accomplish indirectly what the legislature has already decided to do directly.

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

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE "WHITE

text:
    THE PEOPLE ex rel. JOHN C. WEINER, Plaintiff-Appellee, v. CALUMET MEMORIAL PARK DISTRICT, Defendant-Appellant.
    First District (3rd Division)
    No. 82—1585
    Opinion filed September 28, 1983.
    Herbert Lesser, of Chicago, and Vincent J. Biscupic, of Oak Brook, for appellant.
    Sullivan and Sullivan, of Chicago (John P. Sullivan and Robert N. Lipschultz, of counsel), for appellee.
   JUSTICE "WHITE

delivered the opinion of the court:

This is an appeal from an order granting a writ of mandamus directing defendant Calumet Memorial Park District, a municipal corporation and the owner of certain real estate lots, to pay a special assessment levied against those lots to plaintiff, John C. Weiner, the holder of “certificates of sale and assignment” of special assessment liens on those lots. The certificates were issued in a sale by the city of Calumet City pursuant to a 1955 ordinance entitled, “An Ordinance Providing for a Program for the Liquidation of Liens of Delinquent Special Assessments held by the City of Calumet City, Cook County, Illinois.” Statutory authority for the sale and assignment is found in sections 9 — 2—66 through 9 — 2—70 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 9 — 2—66 through 9 — 2—70). The Calumet City ordinance followed closely the language of the ordinance of the city of Waukegan in People ex rel. Drobnick v. City of Waukegan (1953), 1 Ill. 2d 456, 116 N.E.2d 365, and the sale procedures used here were similar to those approved by the Illinois Supreme Court in Drobnick. The park district contends nevertheless that the certificates of sale and assignment should be declared void ab initio and held for naught.

Defendant does not challenge the legality of the special assessment, or question that the assessment was properly levied against its lots as being among the properties benefited by the improvement for which the assessment was levied. The narrow basis of defendant’s refusal to pay the special assessments is its claim that proper statutory collection procedures were not followed by Calumet City.

In addition to sections 9 — 2—66 through 9 — 2—70, pursuant to which the sale of the liens in the instant case was made, there is an alternative method by which delinquent special assessments can be collected set forth in section 9 — 2—82 and following sections. Defendant contends that because some steps required under this alternative method were not taken by Calumet City, the sale pursuant to section 9 — 2—66 was void.

Under the alternative method, the city collector is authorized to refer delinquent special assessments to the county clerk, who is directed to proceed to judgment and sale. Defendant questions the validity of two-thirds of the liens because they were never reported by Calumet City to the county clerk for collection. Nowhere in the statute is it stated that this referral to the county clerk is a prerequisite for a valid sale by the municipality of its tax liens. Plaintiff explains that referral to the county of unpaid assessments against lots owned by defendant park district would be a useless gesture inasmuch as the only purpose would be to enable the county to offer the lots for sale at the annual tax sale, at which municipal property cannot be sold to satisfy the lien. County of McLean v. City of Bloomington (1883), 106 Ill. 209.

As to the one-third of the liens that were reported to the county clerk, defendant complains that the collector of Calumet City did not withdraw them from the county clerk before offering them for sale. Defendant says, “The municipality must cause the lien of delinquent special assignments to be returned to it for collection from the County Clerk before the sale and assignment,” and that failure to do so could result in the land being subject to lien claims by both the county which carries the item as unpaid on its books and by lien purchasers like the plaintiff. Defendant acknowledges that the city pledges to withdrawn the lien for collection from the county clerk after defendant pays its claim.

In the Drobnick case our supreme court approved of the sale by the city of Waukegan of the judgment liens on special assessment, but here the defendant park district contends we should hold such sale as void ab initio on the basis of the difference between the scheme for collection of delinquent special assessments set out in section 9 — 2—91 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2— 91), for counties of less than 500,000, and that in section 9 — 2—92 of the code (111. Rev. Stat. 1981, ch. 24, par. 9 — 2—92), for counties of more than 500,00o. In the former, forfeited delinquent special assessments are returned by the county clerk to the office of the municipal collector where payment can be made. In the latter, they are returned to the office of the county clerk where payment may be made. This, argues the defendant park district, distinguishes the case at bar from Drobnick, and made it necessary for the city to have its liens withdrawn from the county before proceeding with their sale. The statute has no such express requirement. Further, the defendant has not been damaged by the procedure used here. The defendant states: “The statute authorizing sale and assignment of special assessment liens (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2—65), provided no direction to the municipality other than a brief statement that said municipality may sell and assign the liens,” and asks us to put limitations on this legislative grant of power which we do not find in the statute. This we will not do.

The order of the trial court granting a writ of mandamus directing the park district to pay to plaintiff the amount of the special assessment liens is affirmed.

Affirmed.

RIZZI and O’CONNOR, JJ., concur.

      Public Act 82 — 1013, effective September 17, 1982, substituted “1,000,000” for “500,000” in sections 9 — 2—91 and 9 — 2—92.


author: JUSTICE McGILLICUDDY

text:
    CANDY H. HILL et al., Plaintiffs-Appellants, v. CATHOLIC CHARITIES, Defendant-Appellee.
    First District (3rd Division)
    No. 82—341
    Opinion filed September 28, 1983.
    Harvey L. Walner & Associates, Ltd., of Chicago (Sheldon I. Minkow, of counsel), for appellants.
    Dowd and Dowd, Ltd., of Chicago (Michael E. Dowd and Philip J. McGuire, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court;

This is an appeal from a summary judgment entered in favor of defendant, Catholic Charities, holding that self-insurers are not required to provide uninsured motorist coverage with respect to motor vehicles covered by certificates of self-insurance.

On March 15, 1979, plaintiffs, Candy Hill and Edna Ross (Hill and Ross), were riding in a vehicle owned by defendant, Catholic Charities. The vehicle was involved in a collision with a hit-and-run driver. Hill and Ross allegedly incurred injuries and damages as a result of the collision.

Catholic Charities is an agency of the Catholic Bishop of Chicago, a corporation sole, and the vehicle in which Hill and Ross were riding was covered by a certificate of self-insurance issued to it under the provisions of the Illinois Safety Responsibility Law (Ill. Rev. Stat. 1979, ch. 95V2, par. 7-502).

On April 24, 1981, Hill and Ross filed a complaint for a declaratory judgment alleging that Catholic Charities was obligated to provide them with uninsured motorist coverage pursuant to section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a(l)). On August 24, 1981, Catholic Charities filed a motion for summary judgment on the grounds that as a self-insurer it was not required to provide uninsured motorist coverage for those of its vehicles covered by a certificate of self-insurance. On January 27, 1982, the court granted summary judgment in favor of Catholic Charities. Hill and Ross appeal.

The sole issue before this court is whether a self-insurer is required to provide uninsured motorist coverage as a matter of law.

The Illinois Safety Responsibility Law provides in relevant part: “Self-insurers. Any person in whose name more than 25 motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the Secretary of State as provided in this Section.
The Secretary of State may, in his discretion, upon the application of such a person, issue a certificate of self-insurance when he is satisfied that such person is possessed and will continue to be possessed of ability to pay judgment obtained against such person.” (Ill. Rev. Stat. 1979, ch. 951/2, par. 7— 502.)

Since 1965 the Catholic Bishop of Chicago has qualified as a self-insurer under a certificate of self-insurance issued by the office of the Illinois Secretary of State.

The requirement for uninsured motorist coverage is found in the Illinois Insurance Code, which provides in pertinent part:

“On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 73, par. 755a(l).)

Hill and Ross argue that despite the fact that self-insurers by statute are relieved from the responsibility of procuring a “policy” of insurance, this statute should apply not only to commercially insured motor vehicles but also to those vehicles which are self-insured. Although this is a case of first impression in Blinois, other jurisdictions have considered this issue.

In O’Sullivan v. Salvation Army (1978), 85 Cal. App. 3d 58, 147 Cal. Rptr. 729, plaintiff was riding in a truck owned by the Salvation Army. The Salvation Army had a valid certificate of self-insurance issued under California law. When the truck was struck by an uninsured motorist, plaintiff attempted to recover against the Salvation Army under the California uninsured motorist statute. The court of appeals affirmed the trial court’s dismissal of the plaintiff’s complaint, stating:

“We see no room for argument that, in enacting the financial responsibility and uninsured motorist laws, the Legislature intended a broad and comprehensive scheme to protect those using the highways from the ravages of the negligent, financially irresponsible driver of a motor vehicle. It is equally clear that the enacting of such a statutory scheme is a legislative function. The scheme is to be broadly construed in. light of underlying policy consideration to insure its application as intended by the Legislature. As a corollary it is clear that broad construction by the courts in applying the statute does not entail judicial legislation in the course of determining legislative intent. The argument advanced on behalf of O’Sullivan must fail because to hold the Army financially responsible in this case would require us to exceed the limits of statutory interpretation and legislate in the area of financial responsibility.” (85 Cal. App. 3d 58, 61-62, 147 Cal. Rptr. 729, 731.)

The court in O’Sullivan looked to an earlier decision, Glen Falls Insurance Co. v. Consolidated Freightways (1966), 242 Cal. App. 2d 774, 51 Cal. Rptr. 789, where an accident occurred while a self-insured’s truck was being unloaded, and the defendant who was using the truck at the time of the accident attempted to force the self-insurer to provide coverage. The appellate court rejected the argument that a self-insured was required to provide coverage under the circumstances, stating:

“Defendant Consolidated is not an insurance carrier. Nor does this case involve any motor vehicle liability policy issued and outstanding at the time of the accident. Consolidated is merely an authorized self-insurer or, to put it more exactly, a company to which the motor vehicle department has issued a certificate of self-insurance. Neither the Vehicle Code sections referring to self-insurance *** nor any other sections of said code contain any provisions that such certificate is or constitutes a policy of motor vehicle liability insurance or that said certificate shall be deemed to incorporate or embrace provisions required in such policies ***. A certificate of self-insurance is not a motor vehicle liability policy of insurance. In a word, it is not an insurance policy at all and plaintiff has offered no authority that it is. As we previously explained, it is merely one of the several methods provided by law for establishing exemption from furnishing security.” 242 Cal. App. 2d 774, 785, 51 Cal. Rptr. 789, 797.

Other jurisdictions have reached the same resolution of the issue. In Johnson v. Yellow Cab Co. (1974), 456 Pa. 256, 317 A.2d 245, plaintiffs were passengers in a cab which was struck by an uninsured motorist. The Pennsylvania Supreme Court rejected the argument that the cab company was required to provide uninsured motorist coverage, stating:

“The appellants have alleged that the appellee is self-insured but they have not alleged the existence of any liability policy of insurance. This precludes any cause of action under the Uninsured Motorist Liability Act since that Act applies only when a liability policy of insurance is delivered or issued for delivery. If no liability policy of insurance exists, that Act, does not apply. *** The allegation that the appellee is self-insured negates any possible inference that a liability policy of insurance exists.” 456 Pa. 256, 259, 317 A.2d 245, 247.

In Mountain States Telephone & Telegraph Co. v. Aetna Casualty & Surety Co. (1977), 116 Ariz. 225, 568 P.2d 1123, the appellate court interpreted an uninsured motorist statute very similar to the one enacted by the Illinois legislature. The issue was whether an employee, who was injured within the scope of his employment, when his employer’s vehicle was involved with an uninsured motorist, could bring an action for uninsured motorist coverage against an employer who was a qualified self-insurer under Arizona law. In holding that the employer who was a self-insurer was not required to provide uninsured motorist coverage for its employees, the court stated:

“No ‘policy of insurance’ is issued in a case of a corporation acting as a self-insurer; only a certificate of self-insurance. There is no contract or agreement between an insurer and an insured.” 116 Ariz. 225, 227, 568 P.2d 1123, 1125.

We find the reasoning of these cases persuasive. The uninsured motorist coverage in the Illinois Insurance Code clearly states that “no policy insuring against loss resulting from liability imposed by law *** shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto *** for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles ***.” Ill. Rev. Stat. 1979, ch. 73, par. 755a(l).

Clearly, this statute applies to “policies.” It is equally clear that in the case of self-insurers there is no policy. A policy is a contract and like all contracts it requires two parties, an insurer and an insured. See Patterson v. Durand Farmers Mutual Fire Insurance Co. (1940), 303 Ill. App. 128, 24 N.E.2d 740.

Where the language used in a statute is plain and certain it must be given effect by the court and the court cannot legislate but must interpret the law as announced by the legislature. (Roth v. Kaptowsky (1948), 401 Ill. 424, 82 N.E.2d 661.) It is not the court’s function to annex new provisions, remedy defects or supply omissions. (American Steel Foundries v. Gordon (1949), 404 Ill. 174, 88 N.E.2d 465.) Any extension of current statutory uninsured motorist coverage is not the duty of this court, but that of the legislature. In our opinion any other resolution of the instant matter would be tantamount to rewriting the statute, which this court may not do.

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

Affirmed.

McNAMARA, P.J., and RIZZI, J., concur.