author: JUSTICE TRAPP

text:
    THE CITY OF MATTOON, Plaintiff and Counterdefendant-Appellee, v. PARADISE TOWNSHIP et al., Defendants-Appellants (Stephen J. Uphoff, Paradise Township Road Commissioner, Counterplaintiff-Appellant).
    Fourth District
    No. 4—84—0467
    Opinion filed March 4, 1985.

      Robert E. Cummins, of Kidwell, Cummins & Bast, of Mattoon, for appellants.
    James R. Covington III, of Glenn & Logue, of Mattoon, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

On August 22, 1983, the city of Mattoon (Mattoon) filed a declaratory judgment action in the circuit court of Coles County asking the court to determine whether it or Paradise Township (Paradise) was responsible for maintenance of Lake Paradise Road. On November 10, 1983, Paradise filed a counterclaim for declaratory judgment maintaining Lake Paradise Road was part of the Mattoon municipal street system and Mattoon’s responsibility. The complaints spoke of the road as one unit. Lake Paradise Road encircles Lake Paradise, with principal segments or arms of the road along the east and west sides of that lake.

On December 1, 1983, the court granted partial summary judgment to Paradise. The court stated the only disputed area remaining was a determination of the primary use or purpose of Lake Paradise Road. A hearing was held on February 23, 1984. On May 31, 1984, the court filed an order finding the east and west segments of Lake Paradise Road are two distinct roads. The east segment is private and Mattoon’s responsibility. The west segment is public and Paradise’s responsibility. The court ordered Mattoon to repair the east arm and Paradise to repair the west.

Paradise appeals. It argues the findings as to the west segment of the road are against the manifest weight of the evidence. We agree. Therefore, we reverse and remand to the trial court for entry of an order consistent with this opinion.

The court made the following findings in granting partial summary judgment to Paradise. In 1933, Mattoon acquired land outside its corporate limits, in Paradise Township, for the purpose of creating a system of water works and supply. It constructed Lake Paradise for this purpose. As Lake Paradise developed, Mattoon began leasing tracts of land on the marginal shoreline areas.

The road network was constructed primarily on Mattoon’s property. No diagrams or plats of the network of roads adjacent to Lake Paradise have ever been filed with the Coles County recorder of deeds. Mattoon has never conveyed any part of Lake Paradise Road.

Mattoon has placed road signs on, plowed, cut weeds, policed, graded, oiled, applied rock, placed culverts under, and ditched along the edges of the “network of roads” around Lake Paradise, known as Lake Paradise Road. Mattoon used city employees and equipment for the work or hired contractors. The Paradise Township commissioner never included any part of Lake Paradise Road in the mileage used for computation of motor fuel tax. No Paradise Township commissioner ever maintained or repaired any part of Lake Paradise Road.

Lake Paradise Road has been open for common use and enjoyment since its construction. However, during the 1960’s the commissioner of Mattoon’s water department closed the road for 24 hours every five years to maintain it. The roads around Lake Paradise, known as Lake Paradise Road, are not a part of the State or county highway system.

Mattoon controls the Lake Paradise area as part of its system of water works and water supply. The Coles County sheriff patrols the area. Mattoon has jurisdiction over the road network pursuant to sections 11 — 125—2, 11 — 125—3, and “11 — 125—4” of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 11 — 125—2, 11 — 125—3, “11-125-4”).

On February 3, 1983, a hearing was held to determine the primary use of Lake Paradise Road. Hubert Aleshire, a lifelong resident of Mattoon and former superintendent of the water department, testified that road construction was a joint effort between the Federal government and Mattoon. The work force consisted of men in government employment programs. However, Mattoon’s water department supervised the work, which was completed according to its specifications. The workers built both arms of the road.

Michael Smyser, general manager of Mattoon’s water department, testified about the road. He stated the water department employed an off-duty patrolman to maintain order. The patrolman regulates the use of the lake area from both sides of the lake using both portions of the road.

The east segment of the road provides access to 92 leased residential properties, a pump house, a playground, two pavilions and picnic areas. Most of the traffic control devices are on the developed, east side of the lake. Residents, Mattoon, visitors, the public and sportsmen use the road.

Bill Roberts, the lake superintendent, testified that he has worked on both arms of the road as a water department employee. Part of the east segment existed in the 1930’s, when lake construction began. Ernest Fox, a retired water department employee, testified that a small part of the west arm of the road existed in the early 1930’s.

The west segment of the road provides access to: One leased residential property; a city campground, now abandoned; a camping area leased to the Boy Scouts, unused since their cabin burned down; a camping area leased to the Girl Scouts; and numerous trails leading back to the lake. The trails are used principally by fishermen and campers. The west segment also provides access to nine private homes. Residents of the private and leased properties, visitors, sportsmen, Mattoon, and the public use the west road.

A small portion of the west arm is on privately owned property. In the past, both Mattoon and a private owner charged a toll for use of the road. Mattoon’s toll money went to the water department. Mattoon’s ordinances concerning the lake area contain no distinction between the different sides of the lake and the road.

On May 31, 1984, the trial court declared the east and west segments of Lake Paradise Road are two separate and distinct roads. The east arm is a private road. Therefore, Mattoon is responsible for its maintenance and repair. The west arm is a public road. Therefore, Paradise is responsible for its maintenance and repair. Paradise filed a timely notice of appeal.

Initially, we address the trial court’s partial summary judgment order. The trial court found Mattoon had jurisdiction over the road network pursuant to sections 11 — 125—2, 11 — 125—3 and “11 — 125— 4” of the Illinois Municipal Code. (Ill. Rev. Stat. 1981, ch. 24, pars. 11-125-2, 11-125-3, “11-125-4.”) There is no section 11-125 — 4 of the Illinois Municipal Code. (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 125—1 et seq.) However, we are confident that this is a clerical error. Section 11 — 126—4 of the Illinois Municipal Code empowers municipalities to develop marginal areas around water supplies, leased property, and make all necessary rules and regulations to manage and maintain such areas. Mattoon, in its brief, notes the statutory problem, but does not argue its effect. The apparent clerical error has no effect on the decision of this court.

At the outset, Mattoon argues Paradise has waived its appeal by not presenting evidence about the use of “west Lake Paradise Road” at trial. The argument has little merit. No distinction was drawn between the east and west arms of the road prior to the trial court’s May 31, 1983, order. During the hearing, both Mattoon and Paradise presented testimony about both segments of the road. The doctrine of waiver does not apply.

Defendant argues that, by statute, the west arm of Lake Paradise Road is part of Mattoon’s municipal street system. Therefore, it cannot be part of Paradise Township’s road system. Mattoon responds that the statutory language relied upon by Paradise is a catchall phrase of secondary importance to the definition of a rural road.

The following statutes are pertinent:

Section 2 — 205 of the Illinois Highway Code defines a township road as any highway that is part of the township or district road system (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 205). Section 2 — 103 states:

“The township and district road system includes all rural roads to which this Code applies under Section 1 — 103 and which are not a part of the State highway system, county highway system or municipal street system.” (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 103.)

Section 2 — 104 of the Illinois Highway Code states in part:

“The municipal street system of the several municipalities includes existing streets *** together with roads outside their corporate limits over which they have jurisdiction pursuant to this Code or any other statute.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 104.)

Section 2 — 202 of the Illinois Highway Code defines a highway as:

“[A]ny public way for vehicular travel which has been laid out in pursuance of any law of this State, *** which has been established by dedication, or used by the public as a highway for 15 years.” Ill. Rev. Stat. 1983, ch. 121, par. 2 — 202.

A township or district road system includes all public ways for vehicular travel that are not part of State, county, or municipal systems. Therefore, the road must not be a part of any other system.

In its partial summary judgment order, the trial court found

that Mattoon had jurisdiction over all of Lake Paradise Road. (Ill. Rev. Stat. 1981, ch. 24, pars. 11-125-2, 11-125-3, 11-126-4.) Under section 2 — 104 of the Illinois Highway Code, Lake Paradise Road is a part of the municipal street system pursuant to the “any other statute” language. (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 104.) Therefore it could not be part of the township or district road system. Ill. Rev. Stat. 1983, ch. 121, par. 2 — 103.

In Andrews v. City of Springfield (1965), 56 Ill. App. 2d 201, 211, 205 N.E.2d 798, 803, the court decided under almost identical factual circumstances that the roads surrounding Lake Springfield were not a part of township or district road systems. Therefore, they were not township roads, and the township had no duty to maintain them.

Springfield acquired jurisdiction over the Lake Springfield area in the 1930’s pursuant to sections 11 — 126—1, 11 — 126—3, and 11 — 126— 4 of the Illinois Municipal Code (Ill. Rev. Stat. 1961, ch. 24, pars. 11— 126 — 1, 11 — 126—3, 11 — 126—4). Springfield constructed the lake and the roads around the lake. It developed marginal shoreline areas, leasing portions of the areas for homes.

Springfield maintained the roads until 1961. None of the townships ever maintained or claimed the roads, which were used by the lessees and the general public. After Springfield stopped maintaining the roads, its lessees brought a declaratory judgment action asking the court to order the city to maintain the roads. Springfield counterclaimed against the townships in which the roads were situated. The trial court found against the city. It appealed, arguing the roads were township roads.

The court stated:

“We conclude that the roads, over which the City maintained sole jurisdiction since their construction to February 1961, are not part of the Township and Road District System under section 2 — 103 of the Illinois Highway Code. Since they are not part of that system, they do not meet the requirements of a township road as defined in section 2 — 205 of that Code. It necessarily follows that there is no duty on the defendant Townships and their respective Highway Commissioners, who have never asserted, claimed or exercised any jurisdiction over these roads, to maintain or repair them.” Andrews v. City of Springfield (1965), 56 Ill. App. 2d 201, 211, 205 N.E.2d 798, 803.

Similarly, since Lake Paradise Road is within Mattoon’s jurisdiction, it is part of its municipal street system pursuant to the “any other statute” language. (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 104.) Therefore, Lake Paradise Road could not be a part of the township or district road systems under section 2 — 103 of the Illinois Highway Code. Ill. Rev. Stat. 1983, ch. 121, par. 2 — 103.

Mattoon argues that the “any other statute” language in section 2 — 104 of the Illinois Highway Code is a “catchall” clause which is secondary in importance to the definition of a rural road in section 2 — 202 of the Illinois Highway Code. (Ill. Rev. Stat. 1983, ch. 121, pars. 2 — 104, 2 — 202.) In Andrews the court stated that the enactment of the Illinois Highway Code did not destroy or lessen the authority of a municipality to acquire property and build and maintain roads for water systems. The “any other statute” language is not meaningless. Andrews v. City of Springfield (1965), 56 Ill. App. 2d 201, 210, 205 N.E.2d 798, 803.

Mattoon also argues that the west arm of Lake Paradise Road became a public road because of the public use of it for 15 years. (Ill. Rev. Stat. 1983, ch. 121, par. 2 — 202.) It does not argue that the east arm of Lake Paradise Road became a public road because of the public’s use of it for the statutory period. We note that this argument was raised in Andrews. There the court found that public use of the roads “was incidental to their main purpose, which was and is to provide means of access to the leaseholders.” Andrews v. City of Springfield (1965), 56 Ill. App. 2d 201, 211, 205 N.E.2d 798, 803-04.

In the instant case, a similar situation exists. However, most of the residential leaseholds are situated on the east side of Lake Paradise. The pumping station is on the east side. Many of the recreational facilities are on the east side of the lake. Only one leased residential property is accessed from the west segment of the road. Three campgrounds are or were leased by Mattoon on the west side of Lake Paradise. Nine privately owned homes use the west segment of Lake Paradise Road.

Mattoon’s development of the Lake Paradise area determined the extent and nature of the use of the road. Mattoon maintained the more developed east arm of the road with more regularity than the less developed west arm. However, the use of the road was incidental to its main purpose of providing access to the leaseholders and the recreational facilities of the lake. (Andrews v. City of Springfield (1965), 56 Ill. App. 2d 201, 205 N.E.2d 798.) The entire road was constructed as part of the organization and development of a water and recreational system.

Finally, we note that the public use of Lake Paradise Road was permissive. In order to establish a public road by prescription, it must be established that the public use was adverse, under claim of right, continuous, and uninterrupted, with the knowledge of the owner but without his consent for the statutory period. (Zacny v. Sasyk (1975), 30 Ill. App. 3d 93, 332 N.E.2d 568; Batchelder Co. v. Gustafson (1975), 32 Ill. App. 3d 14, 335 N.E.2d 565.) In the instant case, Mattoon made no showing that public use of the road was without its consent. Therefore, the west segment of Lake Paradise Road did not become a public way by prescription. Batchelder Co. v. Gustafson (1975), 32 Ill. App. 3d 14, 335 N.E.2d 565.

For the above reasons, we find the trial court’s determination that the west segment of Lake Paradise Road is public and Paradise’s responsibility is against the manifest weight of the evidence. Therefore, we reverse that portion of the court’s decision, affirm its findings as to the east portion of Lake Paradise Road, and remand for proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

GREEN, P.J., and MILLS, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HENRY ROBINSON, Defendant-Appellant.
    First District (4th Division)
    No. 83—1156
    Opinion filed February 28,1985.

      Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank G. Zelezinski, and Thomas D. Bilyk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, John Henry Robinson, appeals his conviction, in a jury trial, for murder (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1(a)). He was sentenced to a term of 20 years in the Department of Corrections. The sole issue presented for review is whether the trial court erred in refusing to instruct the jury on voluntary manslaughter where it had determined that the evidence supported an instruction on self-defense.

We reverse and remand.

On the evening of July 18, 1976, Clarence Smith was shot near his residence at 5323 South Federal Street, in Chicago, Illinois. He died from a bullet wound of the head, complicated by pneumonia, on July 25, 1976. A bullet removed from his body may or may not have been fired from the gun identified at trial as the murder weapon. Following the shooting, defendant fled to Los Angeles, California. He remained there until he was arrested and brought back to Chicago in December 1981 on a charge of murdering Smith.

Prosecution witnesses who saw or heard the shooting were Anthony Washington, Timothy Wilson, LeBaron Martin, and Dwayne Hodges.

Anthony Washington, 26 years old, testified that in July 1976 he knew Smith and defendant as neighbors. Washington and defendant bought and sold marijuana. Smith sold marijuana for Washington. Smith owed Washington $15. On the evening of July 18, 1976, Washington hit Smith in the jaw and Smith paid Washington the $15. Later, Washington saw Smith with defendant and several other people. Washington was standing about six feet away from the group. Defendant was in front of Smith, who had his back to a wall. His hands were at his side and nothing was in his hands. Defendant asked Washington whether he got his money from Smith and Washington said yes. Defendant said, “I am going to go and blow his brains out.” Defendant lifted a .22-caliber revolver from his side, pointed the weapon at Smith’s forehead and fired. Smith fell to the ground. Defendant walked, then ran, away.

Eventually, Washington returned to his residence, where his mother asked him why he allowed defendant to leave a gun in their home. Washington found a loaded revolver under the covers of his bed. Washington did not put it there. Washington gave the gun to William Lumpkins. On December 5, 1981, Washington identified defendant in a lineup.

Timothy Wilson, 19 years old, testified that he knew both Smith and defendant in July 1976. On the evening of July 18, 1976, he was participating in a dice game with Smith, LeBaron Martin, and several other persons. Defendant approached the group and asked Smith for money. When Smith said he had no money, defendant hit him in the jaw. Later, Wilson saw defendant standing a foot away from Smith. Defendant asked Smith for money; Smith said he had none. Smith’s hands were at his side; nothing was in his hands, and he made no threatening gestures toward defendant. Defendant drew a gun, pointed it at Smith’s forehead, and fired.

LeBaron Martin, 23 years old, testified that he knew Smith and defendant. On the evening of July 18, 1976, he had been shooting dice with Smith, Wilson, and several others when defendant approached Smith and conversed with him. Twenty minutes later, after he heard a gunshot, defendant ran past Martin with a revolver in his hand.

Dwayne Hodges, 22 years old, testified that Smith was his best friend. On July 18, 1976, he and Smith were observing a dice game when defendant approached Smith and asked for the money Smith owed him. Smith said he had no money. Defendant then hit Smith in the jaw and told Smith that the next time he saw him he had better have the money. Later, defendant approached Smith a second time and asked for money. Again, Smith said he had none. With a gun he had been holding at his side, defendant shot Smith. Smith did not grab the gun or try to hit defendant or struggle with him. Smith’s hands were at his side.

Timothy Tidmarsh, a Chicago police officer, responded to the report of a shooting at 5323 South Federal at 7:10 p.m. on July 18, 1976. He visited the apartment where defendant’s mother lived, but defendant was not there. He received from William Lumpkins a .22-caliber revolver which was identified as the murder weapon. No fingerprints were lifted from the gun.

John Roberts, a Chicago police officer, brought defendant to Chicago from Los Angeles, California, in December 1981. Defendant was identified in a lineup by Washington and Hodges.

John Henry Robinson, 26 years old, testified in his own defense. In July 1976, he lived in an apartment building at 5323 South Federal, the same building in which Smith lived. On July 17, 1976, defendant found two bags of marijuana on the street. He asked Smith to sell some of the marijuana. On the afternoon of July 18, 1976, defendant saw Smith and asked whether he had sold the marijuana. No one else was present during this conversation. Smith said he was not going to give anything to defendant and suggested that William Lumpkins — characterized by defendant as a thug — would protect him. While the two were arguing, defendant saw a gun near Smith’s chest. Smith’s arms had been at his side, but his hands had been behind him. Smith raised the gun in his right hand; defendant grabbed the gun and Smith’s hand. The gun discharged and defendant ran. Eventually, defendant arrived at the airport. He did not know how he got there. He traveled by plane to Los Angeles. Defendant denied that he shot Smith and that he had a gun in his possession prior to the shooting. He did not take the gun with him after the shooting and he did not give it to anyone. Defendant was just defending himself when the shooting occurred.

At the close of testimony, the trial court refused defendant’s request for a voluntary manslaughter instruction. The jury found defendant guilty of murder, and the trial court sentenced him to a term of 20 years. Defendant appeals.

Defendant argues that the trial court should have instructed the jury on voluntary manslaughter where it instructed the jury on self-defense. We agree.

Under section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 7 — 1), a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm. A person commits voluntary manslaughter when he intentionally or knowingly kills an individual under the unreasonable belief that deadly force is justified. (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 2(b).) Thus, self-defense and voluntary manslaughter both involve the issue of whether defendant subjectively believed, at the time of the occurrence in question, that force was justified. They differ only as to the reasonableness of defendant’s belief. If his belief was unreasonable, the crime should be reduced from murder to manslaughter; if his belief was reasonable, he should be exonerated. (People v. O’Neal (1984), 104 Ill. 2d 399, 405.) In O’Neal, our supreme court held that where there is evidence in the record to support a self-defense instruction, a voluntary manslaughter instruction must be given also, if tendered by defendant. 104 Ill. 2d 399, 405.

In the instant case, defendant testified that he saw a gun near the victim’s chest and that the gun discharged as he struggled with the victim. In closing arguments, counsel for both sides addressed the issue of self-defense. The jury was instructed on self-defense, but the trial court refused defendant’s request for a voluntary manslaughter instruction. In accordance with O’Neal, we hold that the trial court committed reversible error when it instructed the jury on self-defense but refused to instruct it on voluntary manslaughter.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE SULLIVAN

text:
    ROBERT D. McKNELLY et al., Plaintiffs, v. WHITECO HOSPITALITY CORPORATION et al., Defendants (Hydro Spa, Inc., Third-Party Plaintiff-Appellee; South Seas Pools Company, Third-Party Defendant-Appellant; Regal Marine Industries, Inc., Third-Party Defendant).
    First District (5th Division)
    No. 84—1286
    Opinion filed March 1, 1985.

      Willis R. Tribler and C. William Busse, Jr., both of Chicago (Haskell & Perrin, of counsel), for appellant.
    D. Patterson Gloor, Kevin G. Burke, and John P. Stansbury, all of Chicago (Cassiday, Schade & Gloor, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) from a trial court order denying third-party defendant South Seas Pools Co.’s motion to quash service of summons.

The original complaint was filed against several defendants, including third-party plaintiff Hydro Spa, by an individual who slipped and fell in a whirlpool or hot tub in a Holiday Inn in Merrillville, Indiana. Hydro Spa filed its third-party complaint against South Seas, seeking contribution and common law indemnity based upon allegedly improper installation of the whirlpool. South Seas, filing a special and limited appearance, moved to quash service of summons for lack of personal jurisdiction supported by an affidavit of its president — Paul Williams — , which, in substance, asserted that South Seas transacted no business in Illinois.

The trial court denied the motion to quash, and we granted an application for leave to appeal under Rule 308, with the issue identified by the trial court as whether South Seas “had minimum contacts or was transacting business in the State of Illinois so as to be subject to the jurisdiction of Illinois courts, pursuant to Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209” (the long-arm statute).

Opinion

While the issue as certified for interlocutory appeal is whether South Seas “had minimum contacts or was transacting business in the State of Illinois,” we note that an analysis under the long-arm statute (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209) must be the first step in our inquiry, and only if the actions of the defendant bring it within the reach of that statute is it necessary for us to consider the due process question which involves minimum contacts (see Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847; Green v.

Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203).

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State; ***.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209(a).

Thus, the seminal issue presented here is whether Hydro Spa has stated a cause of action arising from the transaction of business in Illinois by South Seas and, in this regard, the person bringing the action— Hydro Spa, here — bears the burden of proof in establishing jurisdiction. Bobka v. Cook County Hospital (1983), 117 Ill. App. 3d 359, 453 N.E.2d 828.

The contention of Hydro Spa that South Seas transacted business in Illinois centers around the discussion testified to by Paul Williams, president of South Seas, that he had with Robert Kingsley, president of Hydro Spa, at the Chicago trade show in 1977 or 1978. It is the position of Hydro Spa that the discussion was “the framework for an Indiana distributorship of Hydro .Spa products for South Seas”; in other words, that the discussion was a transaction initiating the distributor agreement entered into later in California for the purchase of Hydro Spa products. We have examined the deposition, however, and we find that Williams stated he went to the Chicago trade show, as he had to many similar trade shows in other cities in prior years, to discuss the various products displayed there with their exhibitors. At the Chicago trade show he talked with 80% of the 250 exhibitors. His discussions with Kingsley were primarily concerned with the Hydro Spa products, but he said at one point in his deposition that although he and Kingsley talked “about a lot of things” they also “may have” talked about a distributorship arrangement. When asked later in the deposition whether a distributorship was discussed at the Chicago trade show, he replied that he had dinner with Kingsley and they talked “just generalities” which “did at one time touch upon a distributorship agreement.” These quotes are the only discussions by Williams, in Chicago, concerning any agreement, and there was no other testimony or other evidence offered in that regard by either party. Nevertheless, defendant posits that those discussions were “the framework” for a distributorship agreement which was later entered into in California. We note, however, that there is nothing in the record to indicate who initiated those or any other discussions or meetings concerning a distributorship agreement, nor is there any indication whatsoever that at the Chicago trade show any details concerning such an arrangement were discussed or that further meetings were to be held. As will be further discussed below, we fail to see how the discussion testified to by Williams could be considered to be a business transaction initiating the eventual distributory agreement.

It is our view that Scovill Manufacturing Co. v. Dateline Electric Co. (7th Cir. 1972), 461 F.2d 897, upon which Hydro Spa relies, is more favorable to the position of South Seas. There, the defendant was an English manufacturing company which sent representatives to the biannual Chicago trade shows for the express purpose of contacting prospective customers and soliciting private label contracts. Defendant’s product manager contacted plaintiff’s product manager at the July 1968 housewares show and, after telling him that defendant would manufacture hair curler sets for plaintiff, they discussed possible prices, quantities, and the range of models involved. Although further negotiations and eventual execution of the contract took place outside of Illinois, the parties discussed the proposed design for the product at the January 1969 housewares show in Chicago, and representatives of the two companies met in Chicago at the July 1969 housewares show to examine the sets, to discuss a problem, and to review the artwork for the packaging. The Scovill court indicated that such Illinois contacts could not be considered “casual” or “incidental” and went on to state: “A defendant who sends an agent into Illinois to solicit or to negotiate a contract is transacting business within the statutory definition.” 461 F.2d 897, 900.

In so stating, the Scovill court distinguished defendant’s contacts from those which the court in Kaye-Martin v. Brooks (7th Cir. 1959), 267 F.2d 394, cert, denied (1959), 361 U.S. 832, 4 L. Ed. 2d 75, 80 S. Ct. 84, found were not sufficient to constitute the transaction of business in Illinois. In KayeMartin, two New York plaintiffs sued defendant, an Arkansas resident, over a contract for the sale of defendant’s stock in an insurance company. Most of the negotiations for and the execution of the contract took place outside of Illinois, but defendant did meet the New York broker in Chicago, where defendant was attending a convention, to discuss the terms of the proposed sale. The court held that the meeting in Chicago did not justify assertion of jurisdiction and noted that defendant was not in Chicago for the purpose of negotiating with plaintiff but to attend a convention, and Chicago was selected as a meeting site simply for convenience.

Here, Williams — of South Seas — attended the Chicago trade show as he had others in the past in other cities, to discuss products with their exhibitors, and the limited discussion with Kingsley concerning the possibility of a distributory arrangement we believe, under reasoning of Scovill and Kaye-Martin, could only be considered casual or incidental. (See also Ronco, Inc. v. Plastics, Inc. (N.D. Ill. 1982), 539 F. Supp. 391.) In the light thereof, we find that Hydro Spa has failed to establish that South Seas transacted business in Illinois sufficient to support jurisdiction under section 2 — 209 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209).

Moreover, even had we found that South Seas in the discussions at the Chicago trade show had transacted business by initiating the eventual distributory agreement, jurisdiction would not be available for the additional reason that Hydro did not state a cause of action “arising from” the transaction of that business, as required by section 2 — 209(a). We reach this conclusion because (1) the arrangement eventually reached was a yearly, renewable purchase agreement allowing South Seas to purchase whirlpools directly from Hydro Spa; (2) the agreement was not renewed by Hydro Spa in 1979; (3) subsequently, Hydro Spa had a new Indiana distributor — AA Spa Company — in Bloomington, Indiana; (4) when South Seas called Hydro Spa in California to order the whirlpool for the Merrillville project, it was told to make the purchase from Hydro Spa’s new distributor, AA Spa Company, from whom South Seas made the purchase, and (5) the purchase of this whirlpool was in no way related to any business activity of South Seas in the State of Illinois. Thus, Hydro Spa’s third-party complaint, based upon alleged negligence in the installation of the whirlpool purchased by South Seas from AA Spa Company, did not assert a cause of action arising from the transaction of any business by South Seas in Illinois.

Since we have held that jurisdiction is not available under the long-arm statute (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 209), we do not reach the due process question (see Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847).

For the reasons stated, we find that the trial court erred in denying defendant’s motion to quash service of summons, and we reverse the trial court’s order and remand this cause for further proceedings not inconsistent with the content of this opinion.

Reversed and remanded.

MEJDA, P.J., and BINGHAM, J., concur.


author: PRESIDING JUSTICE STAMOS

text:
      In re MARRIAGE OF MARION M. PAULIUS, Plaintiff-Appellee, and CHARLES D. PAULIUS, Defendant-Appellant.
    First District (2nd Division)
    No. 84—716
    Opinion filed March 5, 1985.
    Bernard Hammer, Ltd., of Chicago, for appellant.
    Richard Altieri, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Marion and Charles Paulius were married in July of 1970. On February 21, 1980, Marion filed a petition for dissolution of marriage. The petition contained an allegation that Charles was guilty of extreme and repeated mental cruelty toward Marion, without any fault or provocation on her part. Charles’ response to the petition denied the allegation. On March 11, 1981, Marion filed a notice of motion to present a second amended petition for dissolution of marriage. No copy of the amended petition, however, can be found in the record. An order was entered on March 3, 1982, granting Charles leave to amend his response to the petition for dissolution and to add a counterclaim for dissolution of marriage.

In his amended response, Charles admitted that he was guilty of extreme and repeated mental cruelty toward Marion. His response, however, refers to paragraphs 5, 5(a), (b), (c), (d), (e) and (f) of Marion’s petition, though there are no such subparagraphs in her original petition and no other petition is found in the record. Charles’ response further stated that Marion was guilty of the same conduct toward him, without cause or provocation on his part.

On May 26, 1982, a judgment of dissolution was entered. The judgment was entered on Marion’s petition for dissolution and Charles’ response and amendment thereto. Paragraph 3 stated that, without cause or provocation, Charles had been guilty of extreme and repeated mental cruelty. Paragraph 4 stated that, without cause or provocation, Marion had been guilty of the same conduct. The judgment also provided for custody of the children and a visitation schedule. On December 27, 1982, a supplement to the judgment was entered, taking into account evidence and testimony adduced at contested matters subsequent to the original judgment. The supplemental judgment denied Charles’ petition for modification and reduction of support, found Charles to be $15,040 in arrears based on a temporary order of support and in wilful contempt for his failure to pay that amount, and awarded certain properties to each party. On May 31, 1983, Charles filed a petition to enforce the child visitation provisions of the original judgment. An order was entered on June 15, 1983, allowing Charles’ visitation with his children. A similar order was entered on August 12,1983.

On November 1, 1983, Charles filed a petition to vacate and expunge void judgment. Charles alleged that the reciprocal findings of mental cruelty in the original judgment rendered it void on its face under the authority of In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 440 N.E.2d 840, and, consequently, that the judgment should be vacated. Marion’s answer requested the court to deny Charles’ petition and to delete and strike the finding of mental cruelty as to Marion, nunc pro tunc as of May 26, 1982, the day the judgment was entered. On February 24, 1984, the trial court denied Charles’ petition to vacate and expunge; the court further ordered that the finding of mental cruelty as to Marion was superfluous and was therefore stricken and deleted from the judgment nunc pro tunc as of May 26, 1982. It is from that order that Charles appeals.

As additional factual matter, our examination of the record prior to oral argument disclosed references to the effect that Charles had remarried after the original judgment was entered and- before he filed his petition to vacate and expunge. In her answer to Charles’ petition to vacate, Marion alleged that Charles should be estopped — that he had no legal or equitable basis to attack said judgment directly or collaterally — for the reason that he had remarried subsequent to May 26, 1982, in reliance on the validity of the judgment and the property settlement. In his reply to Marion’s answer, Charles does not deny his remarriage, but rather asserts that remarriage does not vitalize or validate a void dissolution judgment. Finally, at the hearing on Charles’ petition to vacate, the trial court stated: “The question that I have first heard crying out for an answer is what sanctions must be imposed upon a person who allows himself to remarry, to mislead the spouse into believing that there is a valid judgment entered because of the language put in at his request, stating there is no *** contest, as to grounds, and then when the piper is to be paid, that is, the support of the family, the objections are raised so as to avoid the responsibilities of life that the law places upon an individual.”

At oral argument, Charles’ attorney was specifically asked whether there had been a remarriage. The essential tenor of counsel’s response was that any such allegation was dehors the record. Given the references to said remarriage in the record, we disagreed. Accordingly, pursuant to Supreme Court Rule 366 (87 Ill. 2d R. 366), we ordered the trial court to determine whether, in fact, Charles had remarried subsequent to the entry of the decree. Charles then filed a motion to vacate our order, which we denied. Charles then filed an emergency complaint for an order of prohibition against this court and the circuit court with our supreme court seeking to block the effect of our Rule 366 order. The supreme court denied the emergency complaint and, on December 20, 1984, an order was entered by the circuit court and filed with this court on December 21, 1984, stating that subsequent to the entry of the judgment of dissolution on May 26, 1982, Charles had in fact married one Nancy Lockwood on October 16,1982.

This appeal thus raises the question of whether a party can move to vacate an allegedly void dissolution judgment when that party has remarried subsequent to the entry of that judgment. The long-established principle in this State is that a party accepting the benefits of a divorce decree may be estopped from later challenging the validity of that decree. (See Grimm v. Grimm (1922), 302 Ill. 511, 514, 135 N.E. 19; Scase v. Johnson (1906), 130 Ill. App. 35, 36.) Numerous cases have held that a person who remarries in reliance on the validity of the prior divorce decree has accepted the benefits of that decree and is estopped from subsequently challenging its validity. In re Marriage of Gryka (1980), 90 Ill. App. 3d 443, 446, 413 N.E.2d 153, and cases cited therein.

Charles has raised two arguments in support of his position that he is not estopped to deny the validity of the judgment. First, that the essential element of equitable estoppel, good-faith reliance on the conduct of another by a party to his detriment, is lacking in that there is no proof that Marion has in any way relied on Charles’ conduct to her detriment. Second, that equitable estoppel does not apply where, as Charles here alleges, the judgment is void on its face.

Addressing Charles’ contention that an essential element of equitable estoppel, detrimental reliance, is not present here requires an examination of the conceptual underpinnings of the general rule that one who remarries in reliance on the validity of a decree is estopped from later asserting its invalidity. Charles’ reply brief and supplemental reply brief argue at length that the concept of estoppel by remarriage applies only when the respondent to the petition to vacate has suffered a detrimental change of position (e.g., remarrying and starting a new family) and that cases suggesting that the petitioner can be estopped in the absence of such reliance by the respondent are predicated on dicta from earlier opinions. Specifically, Charles argues that In re Marriage of Gryka is inapposite even though the issue presented there was whether a person seeking to challenge a decree as void for lack of subject matter jurisdiction may do so when that person has since remarried in apparent reliance on the validity of that decree and had a child from the second marriage. (90 Ill. App. 3d 443, 448.) Charles argues the inapplicability of Gryka because of its reliance on dicta from earlier cases. (See McDonald v. Neale (1962), 35 Ill. App. 2d 140, 182 N.E.2d 366, cert, denied (1963), 372 U.S. 911, 9 L. Ed. 2d 719, 83 S. Ct. 725; Pierotti v. Pierotti (1951), 343 Ill. App. 116, 98 N.E.2d 875.) Charles also attempts to distinguish Gryka on the basis that the judgment there was not void on its face, as it allegedly is here, and that the party in Gryka did not challenge the estoppel principles, as Charles does here. We find no merit to these arguments. First, the petitioner in Gryka accepted only the general statement of law relative to estoppel, and went on to challenge its application to his factual situation, as Charles does here. (90 Ill. App. 3d 443, 446.) Also, as explained later in this opinion, the decree in the instant case is not void on its face. Thus, we find Gryka to be generally dispositive of this matter. However, further analysis is necessary to effectively apply the principles of the estoppel by remarriage cases to this action and to fully dispose of Charles’ arguments in this appeal.

In cases where the responding party has remarried and seeks to interpose the defense of estoppel to the movant’s petition to vacate, our research discloses that the appropriate defense is entitled “equitable estoppel.” (See, e.g., Guelzo v. Guelzo (1937), 292 Ill. App. 151, 10 N.E.2d 881 (the petitioner had also accepted monetary benefits under the decree).) However, in none of the other cases that we have discovered has only the responding party relied on the decree, and in all the cases, the courts speak of “estoppel.” In Soase v. Johnson (1906), 130 Ill. App. 35, both parties had remarried after the decree was entered and the petitioning party was “estopped to deny” the validity of an act the benefit of which he had accepted. (130 Ill. App. 35, 36, 37.) In Guggenheim v. Guggenheim (1914), 189 Ill. App. 146, both parties had remarried and the petitioning party was “subject to all the rules of equitable limitation and equitable estoppel.” (189 Ill. App. 146, 149.) In Grimm v. Grimm (1922), 302 Ill. 511, 135 N.E. 19, only the petitioning party had remarried and he was “estopped *** to deny” the validity of the decree. (302 Ill. 511, 514.) See also Pierotti v. Pierotti (1951), 343 Ill. App. 116, 98 N.E.2d 875 (both had remarried and petitioner estopped); McDonald v. Neale (1962), 35 Ill. App. 2d 140, 182 N.E.2d 366, cert, denied (1963), 372 U.S. 911, 9 L. Ed. 2d 719, 83 S. Ct. 725 (petitioner alone remarried and was estopped); Henley v. Houck (1964), 49 Ill. App. 2d 472, 200 N.E.2d 99 (petitioner alone remarried and was estopped); Varap v. Varap (1966), 76 Ill. App. 2d 402, 222 N.E .2d 77 (petitioner estopped from attacking his first divorce decree because of his subsequent remarriage to respondent); Webb v. Webb (1970), 130 Ill. App. 2d 618, 620-21, 264 N.E .2d 594 (petitioner alone remarried and “[t]he rule that a person who has accepted the benefits of a divorce decree should not be permitted to attack the same, is a rule of estoppel ***”); Baker v. Baker (1971), 2 Ill. App. 3d 795, 276 N.E.2d 792 (petitioner alone remarried and, having accepted benefits of decree, was estopped); Martin v. Martin (1978), 57 Ill. App. 3d 486, 373 N.E.2d 602 (both parties remarried and petitioner estopped); In re Marriage of Gryka (1980), 90 Ill. App. 3d 443, 413 N.E.2d 153 (husband remarried and estopped from challenging decree). .

A careful reading of the cases estopping the petitioner from assailing the decree when the petitioner alone has remarried, or when the petitioner alone has accepted other benefits under the decree, or both, leads this court to conclude that, even though the cases speak in terms of estoppel, they are in fact using the term in its more general sense, meaning to stop or bar one from raising a challenge. We do not read these opinions as literally applying concepts of equitable estoppel and its concomitant principle of preventing prejudice to the other party. Rather, our research indicates that these cases have generally commingled the substance of estoppel and the substance of ratification. (See Greene v. Greene (Mass. 1854), 61 Am. Dec. 454, and note at 465-66.) As explained in Black’s Law Dictionary: “The substance of ‘estoppel’ is the inducement of another to act to his prejudice. The substance of ‘ratification’ is confirmation after conduct.” (Black’s Law Dictionary 495 (5th ed. 1979).) Thus, in situations such as the one present here, Charles’ act of remarrying in reliance on the decree is an acceptance of the benefits of that decree; it is an admission as to the legality of that decree; foremost, his remarriage acts as a ratification or confirmation of that decree. Hence, Charles is now prevented from assailing that decree either by “estoppel” or by having waived his right to prosecute this appeal. (See 9 Ruling Case Law sec. 280, at 467.) The law in Illinois has been settled since at least 1867 that “a party cannot accept money, directed to be paid him by a decree, and then ask a reversal on the ground that it did not give him enough. His acceptance was a ratification.” (Holt v. Rees (1867), 46 Ill. 181, 184.) Similarly, remarriage in reliance on a decree is also an acceptance of benefits under that decree because the decree has enabled the party to lawfully remarry. (In re Marriage of Gryka (1980), 90 Ill. App. 3d 443, 446, 413 N.E.2d 153.) Here, however, Charles not only remarried in reliance on the decree, he also enforced his child visitation rights thereunder. Consequently, Charles is not in any position to attempt to have that decree vacated.

A vacatur under these facts would also create a difficult situation regarding Charles’ new wife and any children they may have had. Although sections 303 and 305 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, pars. 303, 305) would afford some protection to these persons, Charles has not presented either this court or the trial court with any reasonable basis for not affording these persons the same legal status they now enjoy. Further, the inference we draw from the record, suggested by the language of the trial court we quoted above, is that Charles is attempting to avoid paying the family obligations imposed by the decree. Charles acquiesced in the original judgment until it was apparently no longer advantageous to do so. The supplemental judgment had found Charles to be over $15,000 in arrears in support payments and in wilful contempt for having failed to pay that amount. If Charles were successful in vacating the original judgment as void, all subsequent orders against him would also be rendered void, thus extinguishing his arrearage, at least temporarily. This court is loathe to aid a person’s attempt at circumventing legal obligations owed to that person’s family.

Charles attempts to bypass the effect of his remarriage on his legal position in this court by arguing that equitable principles do not prevent him from challenging the decree when it is void on its face because of the reciprocal findings. In support, Charles cites In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 440 N.E.2d 840. In that case, the trial court had included reciprocal findings of fault in the judgment, nearly identical to those present here. The trial court had also declared section 402 of the Illinois Marriage and Dissolution of Marriage Act unconstitutional. On direct appeal, the supreme court vacated the judgment and the cause was remanded. The court stated: “Those separate [reciprocal] findings by the trial court are totally inconsistent and wholly irreconcilable ***. [They] simply contradict one another. Such findings cannot stand together.” 92 Ill. 2d 66, 70-71.

Contrary to Charles’ repeated assertions, the Eltrevoog court never explicitly called the judgment void. Also,-no estoppel or ratification argument had been raised in that case. Additionally, it should be noted that in Tucker v. Tucker (1975), 29 Ill. App. 3d 489, 330 N.E.2d 274, it was argued, as here, that the decree was void on its face because it granted each party a divorce upon the grounds of mental cruelty. The appellate court there concluded that the decree was erroneous and subject to direct attack, but was not void and subject to a collateral attack. (29 Ill. App. 3d 489, 492.) In general, judgments are void only when the court lacks subject matter jurisdiction, lacks personal jurisdiction, where there has been some fraud practiced upon the court, or where the court lacks the inherent authority to act, as where a notice of appeal and supersedeas has been filed. (Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 546, 390 N,E.2d 28; Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 179, 372 N.E.2d 965.) There is no question in the instant case that the court had full jurisdiction over the subject matter and the parties and that its inherent authority to act had not been vitiated; nor was a fraud practiced upon the court. Thus, under general principles, the judgment was not void. Nor do we read Eltrevoog as holding such a judgment void. It would have been a simple matter for the Eltrevoog court to have called the judgment void, but it clearly chose not to do so. Additionally, Eltrevoog made no mention of the Tucker decision, which specifically held that a judgment was not void where it found both parties to be guilty of mental cruelty and granted each a divorce. To be sure, under both Eltrevoog and Tucker, the judgment here is certainly defective and would be vacated on direct appeal but for Charles’ act of ratification.

As additional support for his position, Charles places much reliance on Collins v. Collins (1958), 14 Ill. 2d 178, 151 N.E.2d 813. However, we find Collins to be readily distinguishable. There, the plaintiff, then Ida Roberts, married William Collins on December 23, 1953. The two lived as husband and wife until April 20, 1955. Plaintiff filed a divorce action on June 25, 1955, charging her husband with habitual drunkenness for the space of two years after their marriage. On July 26, 1955, the decree of divorce was entered and on August 6, 1955, plaintiff remarried. The second marriage was subsequently annulled on June 15, 1956, and on August 30, 1956, plaintiff sought to vacate the first decree entered on July 26, 1955. By August of 1956, however, Mr. Collins had died and his heirs were substituted as defendants. The supreme court affirmed the vacatur of the decree because the face of the complaint and the decree affirmatively showed that the husband could not have been a drunk for two years after the marriage. Also, the court held that the plaintiff was not estopped from assailing the decree because of her subsequent remarriage. The court found that the issue had been waived, and that even had it not been waived, all the parties could have been placed in the same positions they occupied prior to the divorce, if all such persons were alive. (14 Ill. 2d 178, 183-85.) The opinion was a modified opinion that eliminated earlier language holding the decree to be void. 14 Ill. 2d 178, 186 (Schaefer, J., dissenting).

Again, contrary to Charles’ assertion, Collins does not declare the decree void, as was explicitly pointed out in the dissent in that case, even though the decree and complaint on their face demonstrated a violation of the statutory standard for a divorce based upon drunkenness.- Charles, however, also asserts that Collins supports the proposition that a party cannot be precluded under equitable principles from attacking a judgment which is void on its face. As we have stated, the Collins court did not hold the judgment void. Also, regarding Charles’ argument that Collins requires a vacatur because of that court’s decision to ignore equitable principles when the decree was prima facie violative of the statutory standard, as alleged here, we find Collins to be inapposite. When the plaintiff in Collins sought the vacatur, she was no longer married, contrary to Charles’ present position. Also, the court specifically stated that the estoppel issue had been waived. Moreover, it was apparent that the parties could all have been restored to their exact status if all had been alive. In the instant case it is obvious that all the parties cannot be returned to their exact status because of Charles’ remarriage; further, the “estoppel” issue has not been waived. Additionally, the dissent in Collins found no logical reason to ignore equitable principles in such a factual situation. (14 Ill. 2d 178, 188-90 (Schaefer, J., dissenting).) We do not hesitate, therefore, to preclude Charles from attacking the decree even though it contained wholly inconsistent findings, as in Eltrevoog and Tucker, and is apparently violative of the statutory standard, as was the decree in the Collins case. By his conduct, Charles is estopped from attacking the judgment of dissolution. Our disposition of this cause makes it unnecessary to address Charles’ contention that a nunc pro tunc order was inappropriate under the circumstances.

Based upon the foregoing, the decision of the trial court dismissing Charles’ petition to vacate is affirmed.

Affirmed.

BERLIN and HARTMAN, JJ., concur.


author: JUSTICE LORENZ

text:
      In re MARRIAGE OF BERTRAM R. SCHWARTZ, Petitioner-Appellee, and JEANNE W. SCHWARTZ, Respondent-Appellant.
    First District (5th Division)
    No. 84—2142
    Opinion filed March 8, 1985.

      George B. Collins and Christopher Bargione, both of Collins, Amos & Uscian, of Chicago, for appellant.
    Arthur M. Solomon, of Solomon & Behrendt, of Chicago (Herbert A. Glieberman, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This is an interlocutory appeal by respondent, Jeanne W. Schwartz, from an order granting a preliminary injunction restraining her from interfering with petitioner, Bertram Schwartz’ use, occupancy and enjoyment of a condominium in the State of Florida. Respondent contends that (1) the trial court’s granting of the preliminary injunction was improper, and (2) the petitioner’s conduct barred him from seeking injunctive relief.

We reverse.

Pertinent to our disposition are the following.

The parties were married on December 17, 1949. In June of 1984, Bertram Schwartz, a builder/developer doing business in Illinois and Florida, filed a petition for dissolution of his 34-year marriage to his wife, Jeanne. In his petition for dissolution, he alleged that respondent had been guilty of mental cruelty towards him; that most of the property acquired by the parties during their marriage had been accumulated through his actual financial contributions; and that this acquired property had been put into respondent’s name solely for business purposes. On the same day, the court issued a temporary restraining order against respondent which enjoined her from the withdrawal, transfer, destruction, etc., of any or all of the parties’ property. The trial court later extended this order so that it applied mutually to both parties.

In her answer to the petition, respondent denied committing any wrongful acts, and she alleged that petitioner had given her many gifts of property over the term of the marriage — gifts which she alleged were now in her name and not marital property. An agreed order restraining and enjoining both parties from interfering with each other or disposing, damaging, etc., any mutual property was entered on July 26,1984.

In August of 1984, petitioner filed an emergency petition for injunctive relief against respondent. In his petition, he alleged that respondent was prohibiting his use of the parties’ condominium located in Boca Raton, Florida; that although the title to this condominium was in her name alone, it was marital property; and that he needed to reside in the condominium while in Florida on business. His petition further alleged that although respondent had not used the Florida premises for the past 18 months, petitioner himself had consistently used the condominium up until V-lz weeks prior to his filing of this petition, when he received notice from the building’s management personnel that he would be denied access to the premises upon order of respondent. Finally, petitioner alleged that his use of the condominium would result in no prejudice to respondent because of the restraining order still in effect, and he prayed that the court enjoin respondent from prohibiting his use and access to the condominium.

After hearing the parties’ testimony regarding the origins of ownership of the condominium, the trial court granted petitioner’s request for relief on the basis that the Florida property was likely to be found marital property, and ordered that respondent should be restrained from interfering in any way with the “petitioner’s use, occupancy and enjoyment of the parties’ condominium in the state of Florida during the pendency of the above cause of action.”

Respondent appeals from this order.

Opinion

Respondent initially contends that the trial court abused its discretion in granting the petition for injunctive relief because petitioner failed to prove that respondent had interfered with petitioner’s access, use and enjoyment of the condominium. Conversely, petitioner argues that his verified petition, together with his testimony at the hearing, on the petition, provided sufficient evidence for the trial court to have properly inferred that respondent’s actions interfered with his rights to enter and use the Florida premises. At oral argument, counsel for respondent admitted that the condominium management had acted pursuant to respondent’s directive, therefore the argument on these facts has been resolved. However, we believe that these admitted facts fail to justify the injunction in issue.

An injunction is an equitable remedy to be used sparingly, with judicial restraint and due continence, and only in a clear and plain case. (O’Brien, Chancery Practice: Injunctions and Emergency Relief, 54 Chi. B. Rec. 21 (1972).) An institutional reluctance to undertake the supervision of specific relief, a social bias against interference with private ordering and a fear of encouraging unscrupulous litigants to institute unfounded actions are all constants that militate against preliminary injunctive relief. (Note, Developments in the Law; Injunc tions, 78 Harv. L. Rev. 993, 1056 (1965).) It is not the purpose of the preliminary injunction to determine controverted rights or decide the merits of the case. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 500, 422 N.E.2d 1166.) A preliminary injunction is merely provisional in nature, its office being merely to preserve the status quo until a final hearing on the merits. Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 481, 368 N.E.2d 990.

To warrant the issuance of a preliminary injunction, “a party must clearly show a need to preserve the status quo — in that he will be susceptible to irreparable damage if the injunction does not issue.” (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 501, 422 N.E.2d 1166.) “The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy.” (Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 228, 357 N.E.2d 1307.) A preliminary injunction, therefore, is not proper where it tends to change the status quo of the parties rather than preserve it. Rock Island Bank v. Paul (1977), 48 Ill. App. 3d 874, 879, 362 N.E .2d 815.

In order for a preliminary injunction to issue, the party seeking the injunction must carry the burden of persuasion on four issues: (1) that he possesses a clearly ascertained right which needs protection; (2) that he will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for his injury; and (4) that he is likely to be successful on the merits of his action. (Lawter International, Inc. v. Carroll (1983), 116 Ill. App. 3d 717, 729, 451 N.E. 2d 1338.) In addition, the trial court must balance the equities or relative inconvenience to the parties and determine thereby whether a greater burden will be imposed on the defendant by granting the injunction than on the plaintiff by denying it. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1978), 62 Ill. App. 3d 671, 379 N.E.2d 1228.) The sole question on review is whether the trial court abused its discretion in granting or denying the injunction. Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 584, 374 N.E. 2d 916.

In the case at bar, the trial court based its findings on the likelihood of the success of petitioner’s argument that he had the right to enter and use the Florida condominium because it would eventually be found to be “marital property.” After careful review of the record in this case, we believe that the trial court was premature in its determination that petitioner had a right to enter the condominium and that the injunction should therefore issue."

A court looking forward to the likelihood of success that property would eventually be found to be “marital property” misconceives the difference between the nature of dissolution of marriage proceedings and “marital property.” The nature of dissolution proceedings is to determine the status of the parties and to terminate the legal relationship between husband and wife by an act of law. “The term ‘marital property’ is a nomenclature devised to realize an equitable distribution of property upon termination of the marriage.” (Emphasis added.) (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 573, 376 N.E. 2d 1382.) Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503) directs the court to divide the couple’s property into marital and nonmarital portions and to assign each spouse his or her nonmarital share. However, under the Act, operation of the term “marital property” does not trigger until the time of dissolution. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E. 2d 1382.) It is only property owned at the time of the judgment of dissolution that the court may classify as “marital property,” and property owned separately by the spouse before dissolution may be disposed of as he/she deems fit, absent any contrary order of the court. (In re Marriage of Olson (1983), 96 Ill. 2d 432, 441, 451 N.E.2d 825.) The court has power to adjust and determine the rights of one party in the property of the other only where a divorce has been granted. In re Marriage of Pahlke (1983), 120 Ill. App. 3d 1009,1014, 458 N.E.2d 1141.

In the present case, we believe that the trial court failed to do justice to the parties in its focus on the issue of the likelihood of success as to the “marital property.” Rather, the trial court should have focused on the preservation of the status quo among the parties so as to determine whether it was proper to grant petitioner’s petition for injunctive relief. The last actual, peaceable, uncontested status in existence here was one where respondent had title to the condominium which she permitted petitioner to use. The trial court’s order altered that status quo by taking away her right to exclude whomever she wished from possession of her property.

Although we can envision cases whereby the preservation of the status quo of the parties would require the issuance of an injunction of this nature, we believe that the trial court’s improper focus on the likelihood of success in a “no win” situation, such as the dissolution proceeding we are presented with here, instead of a focus on the preservation of the status quo of the parties, was an abuse of its discretion.

Because of our determination that the trial court abused its discretion in granting injunctive relief where that relief did not preserve the status quo of the parties, we need not reach respondent’s argument that petitioner’s “unclean hands” barred him from seeking injunctive relief.

For the foregoing reasons, we reverse the order of the trial court granting injunctive relief.

Reversed.

SULLIVAN and PINCHAM, JJ., concur.


author: JUSTICE REINHARD

text:
    MARQUETTE NATIONAL BANK, Plaintiff-Appellee, v. B.J. DODGE FIAT, INC., et al., Defendants (Aurora National Bank, Garnishee; Chrysler Credit Corporation, Intervenor-Appellant).
    Second District
    No. 84—216
    Opinion filed March 8, 1985.

      Wiley W. Edmondson, of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellant.
    Stephen Sullivan and Jerome Nelson, both of Aurora, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Intervenor, Chrysler Credit Corporation (Chrysler Credit), appeals from the judgment of the trial court which awarded $45,202.97, held in two accounts on deposit with Aurora National Bank in the names of B.J. Dodge, Inc., and William W. Grafton, to Marquette National Bank (Marquette) in a garnishment action for sums due on a note executed by B.J. Dodge Fiat, Inc., and William W. Grafton and owned by Marquette. Chrysler Credit raises three issues on appeal: (1) whether the perfected security interest of Chrysler Credit is entitled to priority over the subsequent interest of Marquette, a judgment creditor by virtue of the garnishment action; (2) whether Marquette’s judgment against “B.J. Dodge Fiat, Inc.” allows it to obtain a turnover for an account held in the name of “B.J. Dodge, Inc.”; and (3) whether the judgment of the Federal district court renders the issue of Chrysler Credit’s interest in the subject account res judicata.

The events leading to the present action began on October 22, 1979, when William W. Grafton, on behalf of B.J. Dodge Fiat, Inc.,. executed and delivered a note, due on February 22, 1980, to Marquette National Bank for $84,000. On November 28, 1979, Chrysler Credit received from B.J. Dodge a corporation signature card, corporate resolution, corporate form signatory authorization, corporate acknowledgement, dealer payment authorization, vehicle financing and repurchase agreement, and financing statement, thus establishing a business relationship whereby Chrysler Credit would finance the purchase of motor vehicles by B.J. Dodge. The financing statement, filed with the Illinois Secretary of State on November 30,1979, covered:

“1) New and used Motor Vehicles and Chattel Paper, whether now owned or hereafter acquired. 2) Accounts, Contract Rights, Documents, Instruments, General Intangibles, Consumer Goods, Equipment, Fixtures, Inventory of Automobile Parts and Accessories, Leasehold Improvements, whether now owned or hereafter acquired. 3) All proceeds of the property covered by the statement, including, but not limited to Money, Instruments, Accounts, General Intangibles, Chattel Paper, and Motor Vehicles received in trade.”

On May 14, 1980, Chrysler Credit filed a complaint against B.J. Dodge in Federal district court seeking a temporary restraining order and preliminary injunction to prohibit B.J. Dodge from disposing of property listed on an attached schedule which consisted of a liquidated dealer inventory and items covered by the financing statement; a writ of replevin; and judgment against B.J. Dodge for possession of the property, value of property not delivered, and damages for detention. A temporary restraining order (TRO) was issued by the Federal district court on the same day.

On May 19, 1980, in the circuit court of Kane County, Marquette National Bank filed a complaint and confession on judgment note for $89,200 consisting of principal plus interest and fees due on the note executed by B.J. Dodge but not paid as promised on February 22, 1980, and a garnishment summons was served upon Aurora National Bank as garnishee. At the time the garnishment summons was served, Aurora National Bank had in its possession $44,882.95 in which B.J. Dodge had an interest, and $320.02 in which William W. Grafton had an interest. Five checks had been drawn on the B.J. Dodge account, two to Marquette (for $8,035 and $11,000), two to Chrysler Credit (for $5,076.99 and $6,438.87), and one to B.J. Dodge (for $10,000), the funds for which Aurora retained possession.

On May 20, 1980, the Federal district court entered a preliminary injunction prohibiting B.J. Dodge from transferring, selling, moving, or in any way disposing of any of the vehicles listed on the liquidated dealer inventory and any items covered by the financing statement and an order of replevin for those same vehicles and items.

On June 6, 1980, the Federal district court entered judgment in favor of Chrysler Credit, stating, inter alia, that Chrysler Credit had a fully perfected first lien against all of the motor vehicles, automotive parts, equipment, accessories, supplies, machinery, and equipment, furniture and fixtures replevied and that no intervening creditors had appeared in the cause or asserted a claim in any way as to the validity of the security interest and first lien asserted by Chrysler Credit, and ordering that the sole and exclusive possession of the property replevied was in Chrysler Credit and that damages were assessed in the amount of $526,906 plus interest for a total of 65 vehicles, diminution of present value of replevied motor vehicles, and expenses.

On July 10, 1980, Marquette moved for judgment in the amount of $45,202.97 against Aurora National Bank in the circuit court, and notice of the motion was sent to Chrysler Corporation. Chrysler Corporation responded by stating that after contacting Marquette’s counsel to determine Chrysler’s involvement in the proceedings, it believed it was entitled to the two checks drawn on B.J. Dodge’s account and made payable to Chrysler Credit and requested notice of any hearing to determine the disbursement of B.J. Dodge’s funds. On September 9, 1980, the trial court ordered Aurora National Bank to pay Marquette the balance of B.J. Dodge’s account, minus the funds covered by the five checks, and the balance of William W. Grafton’s account, a total of $4,652.11, and set hearing as to ownership of the remainder of the funds for a later time.

On October 29, 1981, Marquette sought a temporary restraining order to restrain Aurora from disbursing funds to Chrysler Credit, stating, inter alia, that it obtained a judgment for $89,200 against B.J. Dodge Fiat and William W. Grafton and a garnishment summons was served on Aurora; that Chrysler Credit obtained leave to intervene claiming priority as to funds held by Aurora; that without notice to Marquette, Chrysler Credit obtained an order from the Federal district court requiring Aurora to turn over the disputed funds; and that the district court subsequently vacated its order in part and a further proceeding to vacate the remainder of the order was pending. The record on appeal does not contain a copy of Chrysler Credit’s motion to intervene or copies of these particular orders of the Federal district court. A TRO was entered that day but expired without the issuance of a preliminary injunction. At some point prior to November 24, 1981, the funds represented by the two checks made payable to Marquette, totalling $19,035, were apparently paid by Aurora to Marquette.

The parties agreed to present the issues to the trial court on the basis of briefs, affidavits, and arguments of counsel. Marquette submitted the affidavit of its attorney and a memorandum of law, in which it primarily argued that Chrysler Credit had to show that it had ownership rights in the disputed property and failed to show the source of the funds held by Aurora.

In its memorandum of law, Chrysler Credit argued that the rights of Marquette were not entitled to priority over Chrysler Credit’s secured interest because the financing statement was filed before the garnishment action; that in his affidavit, Daniel Koester, the Arlington Heights branch manager of Chrysler Credit, stated the bank account “is part of the collateral security for the indebtedness due Chrysler Credit” and his affidavit was not controverted by any affidavit filed by Marquette; that Marquette’s judgment was against “B.J. Dodge Fiat,” which was different from “B.J. Dodge” and thus could not get a turnover of an account in the name of “B.J. Dodge”; and that the trial court should defer to the Federal district court.

In a letter to the parties, the trial court found in favor of Marquette, relying on C.O. Funk & Sons, Inc. v. Sullivan Equipment, Inc. (1982), 89 Ill. 2d 27, 431 N.E.2d 370, and stating that the controlling factor was Chrysler Credit’s inability to identify proceeds. The trial judge refused to defer to the Federal district court, believing that would be avoiding a decision that should be made in the State circuit court, and did not consider the variance in corporate designation to be of controlling significance. In a subsequent written order, the trial court awarded Marquette $45,202.97.

Chrysler Credit first argues that Marquette’s lien was not entitled to priority over Chrysler Credit’s perfected security interest. Chrysler Credit perfected its security interest by filing the financing statement (see Ill. Rev. Stat. 1979, ch. 26, par. 9 — 303, and other paragraphs cited therein) on November 30, 1979. Marquette became a lien creditor on May 19, 1980, since, under Illinois law, a creditor becomes a lien creditor within the meaning of section 9 — 301 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 301) when a writ of execution is placed in the hands of the sheriff. (Ill. Ann. Stat., ch. 26, par. 9 — 301, Illinois Code Comment, at 32 (Smith-Hurd Supp. 1984).) Section 9 — 301 provides in pertinent part:

“(1) Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of
(a) persons entitled to priority under Section 9 — 312;
(b) a person who becomes a lien creditor before the security interest is perfected;
* * *
(3) A ‘lien creditor’ means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment.”

Thus, by negative implication, a perfected secured creditor defeats a lien creditor. J. White & R. Summers, Uniform Commercial Code sec. 25 — 2, at 1031 (2d ed. 1980); see also Ill. Ann. Stat., ch. 26, par. 9— 301, Illinois Code Comment, at 32 (Smith-Hurd Supp. 1984).

The property to which Chrysler Credit claims superior rights is the funds deposited in the demand account. A “demand account” is a “deposit account” under the Code. (See Ill. Rev. Stat. 1979, ch. 26, par. 9 — 105(l)(e).) Chrysler Credit argues that it has a right to that account both as original collateral to its security agreement and as proceeds from the sale of collateral.

In support of its contention that the demand account was part of the original collateral for the security agreement with B.J. Dodge, Inc., Chrysler Credit at oral argument and in its memorandum of law below relied on the affidavit of Daniel Koester, in which Koester stated that “[t]he bank account in the name of ‘B.J. Dodge, Inc.,’ at the Aurora National Bank, is a part of the collateral security for the indebtedness due to Chrysler Credit Corporation from B.J. Dodge, Inc. ***,” arguing that since this affidavit is not controverted by the affidavit of Marquette, the statements therein must be taken as true.

We note that while Chrysler Credit briefly mentions Koester’s affidavit in the statement of facts portion of its appellate brief, it does not raise this contention in the argument section of that brief. Supreme Court Rule 341 states that “[p]oints not argued [in the appellant’s brief] are waived and shall not be raised *** in oral argument ***.” (87 Ill. 2d R. 341(e)(7); Board of Education v. Ballweber (1983), 96 Ill. 2d 520, 527, 451 N.E.2d 858.) Here, where Chrysler Credit did not make this argument in its appellate brief, we consider the argument waived.

However, even if we were to ignore considerations of waiver, Chrysler Credit’s argument would nevertheless fail. While it is generally true that well-alleged facts within an affidavit must be taken as true when they are not contradicted by counteraffidavit (Kutner v. DeMassa (1981), 96 Ill. App. 3d 243, 248, 421 N.E.2d 231; Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 507, 396 N.E.2d 34), that rule is typically applied, by virtue of Supreme Court Rule 191(a) (87 Ill. 2d R. 191(a)), only to affidavits in proceedings under sections 2 — 1005, 2 — 619, and 2 — 301(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, pars. 2— 1005, 2 — 619, 2 — 301) and does not apply to affidavits filed in conjunction with all other types of civil proceedings. (People v. Frieder (1980), 90 Ill. App. 3d 116, 121, 413 N.E.2d 432.) Here, there is no issue as to summary judgment, involuntary dismissal, or jurisdiction over the person so as to invoke the requirements of Rule 191(a). Nonetheless, an examination of Koester’s affidavit shows that the portion on which Chrysler Credit relies does not state facts but rather merely states a general conclusion without reference to specific underlying facts, personally known to Koester, to support that conclusion. The trial court is not required to accept as true conclusions in an affidavit unsupported by facts which is submitted as evidence.

Chrysler Credit also maintains that the demand account is part of the original collateral as an “account,” or alternatively, a “general intangible.” However, an “account,” as contemplated by the Uniform Commercial Code, is the ordinary commercial account receivable (HI. Ann. Stat., ch. 26, par. 9 — 106, Uniform Commercial Code Comment, at 71 (Smith-Hurd 1974)), and “general intangibles” refers to miscellaneous types of contractual rights and other personal property which are used or may become customarily used as commercial security (Ill. Ann. Stat., ch. 26, par. 9 — 106, Uniform Commercial Code Comment, at 70-71 (Smith-Hurd 1974)) and excludes money. (Ill. Ann. Stat., ch. 26, par. 9 — 106, Illinois Code Comment, at 69 (Smith-Hurd 1974).) Finally, in direct contradiction of Chrysler Credit’s argument that the demand account is part of the original collateral for the security agreement, section 9 — 104(1) of the Uniform Commercial Code excludes deposit accounts as a type of collateral under Article 9 except as proceeds under section 9 — 306. See Ill. Ann. Stat., ch. 26, par. 9 — 105, Uniform Commercial Code Comment, at 67 (Smith-Hurd 1974).

Chrysler Credit may have rights to the deposit account as cash proceeds (see Ill. Rev. Stat. 1983, ch. 26, par. 9 — 306(1)) if those proceeds are identifiable. (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 306(2).) The trial court found against Chrysler Credit primarily because of an inability to identify proceeds and relied on C.O. Funk, Inc. & Sons v. Sullivan Equipment, Inc. (1982), 89 Ill. 2d 27, 431 N.E.2d 370. In that case, Funk could not assert a security interest in proceeds superior to that asserted by another creditor unless Funk could show that proceeds from the sale of goods in which Funk had a security interest were preserved in a commingled account or that other inventory was purchased with those proceeds at a time, and to the extent, that those proceeds were identified in the account. (89 Ill. 2d 27, 32, 431 N.E.2d 370.) Our supreme court adopted the lowest-intermediate-balance rule, explaining that:

“The rule, which operates on a common-sense view that dollars are fungible and cannot practically be earmarked in an account, provides a presumption that proceeds remain in the account as long as the account balance is equal to or greater than the amount of the proceeds deposited. The proceeds are ‘identified’ by presuming that they remain in the account even if other funds are paid out of the account.” (89 Ill. 2d 27, 31, 431 N.E.2d 370.)

The court then went on to disallow Funk’s claim on the basis that Funk offered no evidence of the balance of the debtor’s account during the period the debtor was in arrears, so that the lowest intermediate balance was unknown, and Funk was not given a second opportunity on review to make the required showing. 89 Ill. 2d 27, 32-33, 431 N.E.2d 370.

An examination of the record on appeal reveals that Chrysler Credit made little, if any, effort below to show the source of the funds in the demand account or the basis for the two checks B.J. Dodge issued and made payable to Chrysler Credit. In its memorandum of law presented to the trial court, Chrysler Credit merely stated that “two of the checks to which the account is subject were payable to Chrysler Credit and under the ‘floor plan’ financing extended to Chrysler *** would represent proceeds from autos sold by defendant B.J. DODGE - FIAT, INC.,” and offered no real proof of this assertion. In its appellate brief, Chrysler Credit compares the amount of one of the checks to one of the item sums on the liquidated dealer inventory to establish that the check represented the proceeds from the sale of a particular automobile, but there is no indication that this was ever pointed out to the trial court. Furthermore, the fact that the amount on one of the checks is identical to an amount on the liquidated dealer inventory is not sufficient evidence to identify the funds. Chrysler Credit did not supply evidence so that the check was traceable to the proceeds from the sale of an automobile which it could have done by, for example, establishing the date of the sale of the automobile and showing the proximity between that date and the date the check was issued to Chrysler Credit. Finally, Chrysler Credit has never explained below or on appeal what the amount of the second check represents or offered any evidence tracing the remaining funds in the demand account to its security interest. Chrysler Credit offered no evidence of the balance of the account during the period of time in issue in an effort to trace the funds under the “lowest intermediate balance” rule. In view of this lack of Chrysler Credit’s evidence, we believe that the trial court correctly found that Chrysler Credit failed to identify proceeds, and thus was not entitled to the funds in the demand account or to receive payment from the funds for the two checks payable to Chrysler Credit which the Aurora National Bank had not paid out at the time the garnishment summons was served.

Chrysler Credit next argues that Marquette is not entitled to any of the funds because it held a note executed by “B.J. Dodge Fiat, Inc.” while the funds in the demand account belonged to “B.J. Dodge, Inc.” The trial court found the difference in the corporate designation insignificant, and we see no reason to overturn that finding. There is no contention, yet alone any evidence, that two different corporations are actually involved or even that different corporate officers are involved. The two names, only slightly different from one another, represent the same entity, and thus this creates no bar to Marquette’s garnishment of the demand account.

Chrysler Credit’s final argument on appeal is that the Federal district court has already determined the issue of Chrysler Credit’s security interest in the account as against B.J. Dodge, and since Marquette’s rights are only the same as those of B.J. Dodge, the issue is res judicata as to Marquette.

While Marquette may “step into the shoes” of the debtor, Marquetfce is not bound by a default judgment against B.J. Dodge where Marquette was not notified of the Federal proceedings so as to be able to prevent default and to be given an opportunity to assert its claims. Res judicata may be used only if the parties involved are the same (Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 516, 452 N.E.2d 1383), and Marquette was made a party to the Federal action only after judgments were entered. Furthermore, the Federal district judge specifically found in the default order that no intervening creditors had appeared, and no one had asserted a claim as to the validity of the security interest and first lien of Chrysler Credit. Thus, we conclude that Marquette was not barred from raising its claims in the State court.

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

Affirmed.

NASH, P.J., and STROUSE, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. PATRICK J. CARROLL, Petitioner-Appellant.
    First District (4th Division)
    No. 83—2277
    Opinion filed February 28, 1985.

      James J. Doherty, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Petitioner, Patrick J. Carroll, appeals from the judgment of the circuit court of Cook County dismissing his petition for post-conviction relief without an evidentiary hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.) He contends that the trial court erred by granting the State’s motion to dismiss.

On December 2, 1982, petitioner filed a pro se post-conviction petition stating that he was arrested and charged by information with possession of a controlled substance and possession of cannabis. He engaged private counsel, who filed a pretrial motion to suppress which was sustained. Thereafter a finding of no probable cause was entered. Seven months later petitioner was indicted and rearrested on the same charges. Petitioner rehired his defense counsel, and the cause was assigned to the present judge. Defense counsel again presented a motion to suppress the evidence which previously had been suppressed, but the motion was denied. A bench trial followed and petitioner was found guilty as charged. On direct appeal the convictions were affirmed. People v. Carroll (1981), 102 Ill. App. 3d 1198 (Rule 23 order).

Petitioner alleged in his post-conviction petition that he was denied his constitutional right to the effective assistance of trial counsel because his defense attorney failed to object at his trial to the State’s presentation of the evidence which had previously been suppressed. A supplemental petition was filed on behalf of the petitioner along with transcripts of the hearing on the original motion to suppress, the preliminary hearing, and the trial proceedings herein. The State filed a motion to dismiss the post-conviction petition. At the hearing on that motion the trial court dismissed the petition.

Petitioner contends that the trial court erred in dismissing his petition because the facts alleged were sufficient to warrant the granting of post-conviction relief. He maintains that the original order sustaining his motion to suppress was binding on the subsequent trial court and that his counsel failed to apprise the trial court of the previous order. He further maintains that the original order to suppress was undisclosed in the record on direct appeal and therefore was not subject to direct review precluding application of waiver or res judicata.

The standard for judging any claim of ineffective assistance of defense counsel is whether the representation is so constitutionally deficient that it produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) The purpose of the sixth amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding, and an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. {Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Constitutional issues which were not raised on direct appeal because their factual basis was not in the record may, under certain circumstances, be raised in a post-conviction petition. (People v. Thomas (1967), 38 Ill. 2d 321, 231 N.E.2d 436.) The alleged incompetence of counsel can properly be raised in a post-conviction proceeding, though not raised on direct appeal, where the factual basis is not of record and therefore not subject to direct review. People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83; People v. Perez (1983), 115 Ill. App. 3d 446, 450 N.E.2d 870.

Here, the transcripts in all proceedings involving the charges of which the defendant was found guilty were presented to the trial court at the post-conviction hearing. The order to suppress was binding upon the trial court (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(b)), and defense counsel’s failure to apprise the trial court thereof was prejudicial to the defendant and adversely affected the outcome of his case. This issue could not have been raised on direct appeal because it did not appear in the trial record, and it was therefore not waived.

The judgment of the circuit court of Cook County dismissing the post-conviction petition is reversed, and the cause is remanded with directions to vacate the convictions entered against petitioner and to grant a new trial.

Reversed and remanded.

LINN and ROMITI, JJ., concur.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellant, v. ROYAL FAUBION et al., Defendants-Appellees.
    First District (4th Division)
    No. 84—774
    Opinion filed February 28,1985.
    David I. Herbst, of Portes, Sharp, Herbst & Kravets, Ltd., of Chicago, for appellant.
    Donald L. Johnson, Marty J. Schwartz, and Kurt D. Baer, all of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

In this action the plaintiff, First Federal Savings & Loan Association of Chicago (First Federal) lent the defendants, Royal Faubion and Borg-Warner Equities Corporation, on two separate occasions in 1980, a total of $480,000. Both loans were secured by real estate located in a subdivision known as Richton Crossing in Cook County. On June 24, 1983, First Federal filed a complaint for foreclosure and sale as a result of the defendants’ default on their loans. Over $465,000 of the original $480,000 loaned was still due. The defendants filed affirmative defenses of equitable estoppel and unclean hands, alleging that First Federal’s instant foreclosure action was part of a scheme to monopolize the real estate development market in the western suburbs of Cook County in violation of the Federal antitrust statutes. First Federal filed a motion to strike the affirmative defenses, but the trial court on March 2, 1984, denied the motion and entered an order finding that “there [was] a substantial ground for difference of opinion as to whether alleged violations of the Federal antitrust laws may properly be raised as affirmative defenses to an Illinois mortgage foreclosure action [and that] an immediate appeal [would] materially advance the ultimate termination of the litigation.” Accordingly, pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), we allow this interlocutory appeal from the trial court’s denial of First Federal’s motion to strike the defendants’ affirmative defenses.

First Federal asserts that the alleged Federal antitrust violations are so remote from the mortgages sought to be foreclosed that there is no question but that the substantive law discussed below precludes the defendants from successfully raising their affirmative defenses. First Federal maintains that the court’s focus should be on the validity of the underlying obligation, i.e., the two mortgages for $480,000, and that, absent a showing that these contracts were anything but intelligible economic transactions between two commercial parties, it cannot be concluded that such transactions were improper.

In response, the defendants contend that it is the filing of the foreclosure action that is the wrongful conduct which violates antitrust law and that the foreclosure action is an integral part of a monopolistic scheme. More specifically, the defendants allege that First Federal charged exorbitant interest rates on real estate ventures entered into by the defendants and others and that as a result, these ventures sustained heavy losses and incurred substantial debt. The defendants allege that it was then possible for First Federal to use this debt as leverage to file the instant foreclosure action and to further its monopolistic scheme. Thus, the defendants assert that these antitrust violations are the basis for raising the affirmative defenses of equitable estoppel and unclean hands.

The law is well settled that an action to foreclose a real estate mortgage is a proceeding in equity and as such, traditional equitable defenses may be raised by a mortgagor. (Baker v. Loves Park Savings & Loan Association (1975), 61 Ill. 2d 119, 333 N.E.2d 1.) With regard to the instant certified question, a general answer was apparently provided in Vendo Co. v. Stoner (1969), 105 Ill. App. 2d 261, 245 N.E.2d 263, wherein the court held that Illinois courts have jurisdiction to hear and adjudicate a Federal antitrust defense to a contract action. However, in interpreting Corn Products Refining Co. v. Oriental Candy Co. (1912), 168 Ill. App. 585, an early case addressing the same subject, the Vendo court elaborated on its holding by stating that:

“[W]here the contractual provision sued upon is itself a violation of the federal statutes, the Dlinois courts will entertain such a defense, but that the antitrust defense does not afford a defense where it is collateral to the provision sued upon.” Vendo Co. v. Stoner (1969), 105 Ill. App. 2d 261, 296, 245 N.E.2d 263.

The use of defenses based on antitrust claims has been further discussed by a series of Federal cases. (See Kelly v. Kosuga (1959), 358 U.S. 516, 3 L. Ed. 2d 475, 79 S. Ct. 429; Bruce’s Juices, Inc. v. American Can Co. (1947), 330 U.S. 743, 91 L. Ed. 1219, 67 S. Ct. 1015; National Souvenir Center, Inc. v. Historic Figures, Inc. (D.C. Cir. 1984), 728 F.2d 503, cert, denied (1984), 469 U.S. 825, 83 L. Ed. 2d 48, 105 S. Ct. 103.) In these actions, it was noted that “[a]s a defense to an action based on contract, the plea of illegality based on violation of the Sherman Act has not met with much favor in this Court.” (Kelly v. Kosuga (1959), 358 U.S. 516, 518, 3 L. Ed. 2d 475, 477, 79 S. Ct. 429, 431.) Furthermore, in quoting Mr. Justice Holmes, the court stated that the courts are to be guided by the overriding general policy of “preventing people from getting other people’s property for nothing when they purport to be buying it.” Kelly v. Kosuga (1959), 358 U.S. 516, 520-21, 3 L. Ed. 2d 475, 479, 79 S. Ct. 429, 432.

Based on Vendo, a party may assert affirmative defenses based on Federal antitrust violations in a mortgage foreclosure action, but may not do so if the mortgage being foreclosed is collateral to the alleged antitrust violation. We believe the instant foreclosure action is collateral. We find no indication in the record that the underlying transactions were not intelligible economic transactions entered into by commercial parties. The defendants received $480,000 in cash from the plaintiffs and paid back only $15,000 of that amount. There is no relationship between these defaulted mortgages and the alleged fact the First Federal was attempting to control the real estate development market. Moreover, the facts in this case appear to present the precise situation the courts were speaking of when they set the policy of trying to prevent people from getting other people’s property (or money) for nothing when they purport to be buying (or borrowing) it. If the defendants have valid antitrust claims, they are not precluded by this decision from pursuing such causes of action in another proceeding, but this court cannot countenance the use of the instant antitrust claims as a means to avoid paying valid debts.

Based on the foregoing, we find that the basis for the defendants’ affirmative defenses of equitable estoppel and unclean hands does not exist, and therefore we reverse the trial court’s order denying First Federal’s motion to strike the defendants’ affirmative defenses and remand this cause with instructions to grant the above motion.

Reversed and remanded.

JOHNSON and ROMITI, JJ., concur.