author: PRESIDING JUSTICE BUCKLEY

text:
    SCOTT & FETZER COMPANY, Plaintiff-Appellant, v. MONTGOMERY WARD & COMPANY, INC., et al., Defendants and Third-Party Plaintiffs-Appellants (Burns Electronic Security Services, Inc., Third-Party Defendant-Appellee). SALES DEVELOPMENT SERVICES, INC., Plaintiff-Appellant, v. MONTGOMERY WARD, INC., et al., Defendants and Third-Party Plaintiffs-Appellants (Burns Electronic Security Services, Inc., Third-Party Defendant-Appellee). AETNA INSURANCE COMPANY, Plaintiff-Appellant, v. MONTGOMERY WARD & COMPANY, INC., et al., Defendants and Third-Party Plaintiffs-Appellants (Burns Electronic Security Services, Inc., Third-Party Defendant-Appellee). TOYOMENKA (American), INC., et al., Plaintiffs-Appellants, v. MONTGOMERY WARD & COMPANY, INC., et al., Defendants and Third-Party Plaintiffs-Appellees (Burns Electronic Security Services, Inc., Third-Party Defendant-Appellee).
    First District (1st Division)
    Nos. 83—1747, 83—2225, 83—2328 cons.
    Opinion filed December 24, 1984.

      Robert A. Downing, Gerald L. Angst, David E Graham, and Christopher J. Michas, all of Sidley & Austin, of Chicago, for appellant Montgomery Ward & Company.
    Clausen, Miller, Gorman, Caffrey & Witous, RC., of Chicago (James T. Ferrini, Thomas A. McDonald, Thomas J. Skeffington, and Lisa Marco Kouba, of counsel), for other appellants.

      Sandra Young, Mark E. Parsky, D. Timothy McVey, and Edward C. Purcell, all of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The instant consolidated appeals arise from a fire which broke out in the Montgomery Ward & Company, Inc. (Wards), warehouse in Ben-senville. Wards’ fire alarm and sprinkler system allegedly malfunctioned, and the fire spread to the adjoining premises of the warehouse. Extensive property damage resulted. The tenants of the adjoining premises brought an action in tort against Bums Electronic Security Services, Inc. (Burns), who supplied, installed and maintained the alarm system. The trial court dismissed the action, reasoning that recovery in tort for the loss incurred was barred by the economic loss rule. The court also dismissed a third-party action brought by Wards against Burns seeking contribution and rescission. Both dismissals are now appealed from.

The record reflects that on November 21, 1973, Wards leased a warehouse at 1010 Foster Avenue in Bensenville. The warehouse was part of a larger storage facility covering 1010 to 1020 Foster Avenue. The building at 1020 Foster Avenue was leased by General Warehouse & Transportation Company, who in turn subleased the premises to the following six plaintiffs in this case (hereinafter referred to as “adjacent tenants”): Scott & Fetzer Company, Toyomenka (American Sales Development Services, Inc.), the Readers Digest Association, Inc., R. D. Manufacturing Corporation and N.S.I. Merchandising, Inc., who is represented in this matter by Aetna Insurance Company as its subrogee. The adjacent tenants stored stock, inventory and supplies on the premises. Wards stored flammable materials on its premises and was required under its lease with the owner to provide the appropriate safety appliances.

On December 18, 1973, Wards and Burns entered into a contract by which Bums undertook to install fire protection equipment and a fire warning system in the Wards premises at 1010 Foster Avenue. A fee of $1,712 covered installation of the “central station protection signalling system.” An additional monthly charge initially set at $1,358 obligated Bums to maintain the system “in good working order” until the termination of the agreement. For an additional cost, Wards subscribed to Burns’ sprinkler “water flow system,” which included the installation of numerous additional protective devices, plus Burns’ provision for “stand-by power supply.” Additionally, paragraph 10 of the contract contained the following exculpatory provisions:

“*** [Wards] does not desire this contract to provide for full liability of [Burns] and agrees that [Burns] shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert; that if [Burns] should be found liable for loss or damage due to a failure of the service in any respect, its liability shall be limited to a sum equal to 10% of the annual service charge or $250.00, whichever is the greater, and that the provisions of the paragraph shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property from performance or nonperformance of the obligations imposed by this contract or from negligence, active or otherwise, of [Burns], its agent or employees.”

The adjacent tenants were not parties to the contract between Wards and Burns.

The above contract was in force on September 21, 1978, when a fire began at Wards’ Foster Avenue warehouse. Burns’ equipment allegedly failed to function properly and timely detect or warn of the fire. Eventually, a fire alarm signal was transmitted to Burns’ central station. Despite its receipt of the signal, Burns purportedly delayed in notifying the local fire department of the existence of the fire. When firemen finally arrived, the fire was no longer containable and had spread into portions of the warehouse occupied by the adjacent tenants. The warehouse was destroyed, along with most of the personal property located in it. The loss from the fire is alleged to total millions of dollars.

On June 8, 1979, Wards brought -an action in the circuit court of Cook County against the owners of the warehouse for a refund of real estate tax overpayments made under a prepayment formula in the lease. On September 14, 1979, the owners filed a counterclaim seeking recovery for losses caused by the warehouse fire. The owners alleged, inter alia, that under the lease with Wards, Wards “was required to keep the leased premises’ fire protection system in good working order, repair and condition.” The owners further alleged that Wards was negligent in storing flammable materials in the warehouse, and by causing “a lighted cigarette to be thrown into flammable articles of clothing stored on the floor.”

Subsequently, the adjacent tenants filed suit against Wards and La Salle National Bank, as trustee, the legal title holder of the property. The adjacent tenants sought recovery for property damage and business losses purportedly caused by the fire. They alleged in their complaints that as a result of various negligent acts and omissions by Wards and/or its employees, the fire started in Wards’ portion of the warehouse and spread throughout, destroying the tenants’ premises, products and inventory.

Wards thereafter filed five identical third-party actions against Burns, alleging in each action that Burns negligently performed its contractual duties. The amended third-party complaint attempted to state a cause of action for breach of contract (count I), rescission (count II), contribution based on negligence (count III) and wilful and wanton negligence (count IV), and fraudulent misrepresentation (count V). Burns filed a motion to dismiss the amended third-party complaint.

Proceeding along a track parallel to Wards, the adjacent tenants filed amended complaints adding Burns as a party defendant. The two counts directed against Burns sought recovery under an ordinary negligence theory and under the doctrine of res ipsa loquitur. In their amended complaints, the adjacent tenants alleged, inter alia, that Burns assumed a duty toward them to exercise due care and caution in its installation, service and maintenance of fire protection equipment and warning systems in Wards’ portion of the warehouse. The adjacent tenants further alleged that Burns’ negligent breach of these duties proximately caused the destruction of their property by the fire. Burns moved to dismiss the amended complaint, asserting that the adjacent tenants were seeking recovery in tort for purely economic loss which is not permitted under present Illinois law. Burns further alleged in its motion that it owed no duty to the adjacent tenants as a result of its contract with Wards.

On May 17, 1983, following a lengthy hearing, the trial court dismissed with prejudice the adjacent tenants’ actions against Burns on the ground that their loss was purely economic and, thus, not recoverable in tort under Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. The court found there was no need to resolve Burns’ assertion that it owed no duty to the adjacent tenants. The adjacent tenants appealed the dismissal under Docket No. 83-1747.

On June 14, 1983, the trial court issued a written opinion dismissing with prejudice counts II, III and IV of Wards’ amended third-party complaint against Burns (counts I and V are still pending below). The court dismissed count II based on Wards’ inability to restore to Burns any consideration previously provided by it. In dismissing counts III and IV, which sought contribution, the trial court reasoned that since it previously ruled that Burns was not “subject to liability in tort” to the adjacent tenants, Wards could not maintain a cause of action for contribution against Burns. Wards filed an appeal from the dismissal of counts III and IV (Docket No. 83 — 2328), and filed a motion to reconsider and vacate the dismissal of count II. In a written opinion filed on September 12, 1983, the trial court denied the motion for reconsideration on the ground that Wards’ remedy at law is adequate. Wards appealed the denial of its motion for reconsideration and dismissal with prejudice of count II of the amended third-party complaint (Docket No. 83 — 2225).

Hence, we are now asked to review the propriety of the following: (1) the dismissal of the actions in tort brought by the adjacent tenants against Burns; and (2) the dismissal of counts II, III and IV of Wards’ amended third-party complaint against Burns.

I

(A)

We will first address the adjacent tenants’ contention that the trial court improperly dismissed their tort actions against Burns. The trial court held that the tenants failed to state a cause of action in tort because their loss was purely economic loss which is not recoverable in tort.

We believe it was error to dismiss the tenants’ action against Burns. First, recovery for the loss incurred was not barred by the economic loss doctrine. Our supreme court, in adopting this doctrine, recognized that when defects in a product are “of a qualitative nature and the harm relates to the consumer’s expectation that a product is of a particular quality, *** contract, rather than tort, law provides the appropriate set of rules for recovery.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88, 435 N.E.2d 443.) Economic loss has been defined as damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 156, 449 N.E.2d 125; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82-83, 435 N.E.2d 443.) Excluded from the definition of economic loss are personal injury or damage to property other than the defective product. (91 Ill. 2d 69, 82-83.) Furthermore, even where there is damage only to the defective product, such damage is not economic loss where the defect results from a sudden and dangerous occurrence rather than deterioration. 91 Ill. 2d 69, 86; Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 466 N.E.2d 195.

In the case before us, the loss sustained was clearly outside the realm of economic loss. Here, not only was there extensive damage to property other than the defective product, but such damage resulted from a sudden and dangerous occurrence. Specifically, the adjacent tenants allege in their complaints that their loss resulted when a small, containable fire, which started in Wards’ premises, was not extinguished due to the negligence of Burns. Their complaints allege further that the fire thereby developed into a “sudden and calamitous” conflagration spreading to the adjacent tenants’ premises. An analogous failure to contain a fire was recognized as a sudden and dangerous occurrence in Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co. (3d Cir. 1981), 652 F.2d 1165.

Briefly, we note that the economic loss doctrine also does not bar recovery here because there were no commercial dealings between Bums and the adjacent tenants. As this court stated in Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, 606, 459 N.E.2d 1085:

“We read Moorman and subsequent cases to establish that economic losses are not recoverable in tort against a defendant where the injuries caused by that defendant relate directly to plaintiff’s reasonable commercial expectations respecting the defendant’s actions and [emphasis in the original] where plaintiff has or had appropriate and adequate contract or warranty actions as against the defendant for such harm. *** However, the same economic losses are recoverable in tort, as against defendants who by their own negligence, as measured by traditional tort analysis, have caused the injuries and against whom no contract or warranty recovery is available. As to these defendants, when unconnected with the contract-warranty defendant, the harm caused by them is not related to the plaintiff’s commercial expectations, but to traditional societal expectations and conduct.” (Emphasis added.)

In the instant case, the adjacent tenants are not in privity of contract with Burns, nor even within the chain of distribution, and thus there are no contractual nor warranty remedies available to the tenants. Rather, an action in tort is their sole remedy against Burns.

Burns urges that it is not liable to the adjacent tenants because the tenants are able to maintain an action against Wards. A similar argument was rejected in Ferentchak. There, we held that the economic loss doctrine did not bar tort recovery against an allegedly negligent architect merely because the plaintiffs might have an adequate contract remedy against the builder. Similarly, in this case the fact that the tenants may have a remedy against Wards does not preclude them from pursuing a tort action against Burns.

(B)

Having determined above that the economic loss doctrine does not bar recovery by the adjacent tenants, we next turn to the issue of duty. Burns maintains it owed no duty to the adjacent tenants since it contracted only with Wards. We disagree.

The adjacent tenants allege in their complaints that Burns contracted with Wards to install, maintain and monitor certain fire protection equipment and fire warning systems in Wards’ warehouse in Bensenville. They additionally allege they stored their goods in the adjoining section of the warehouse in reliance upon Burns’ discharge of its contractual undertaking with Wards. Finally, the adjacent tenants allege that Burns breached its duty by providing defective equipment which failed to function properly during the fire, and by delaying in notifying the local fire department when a fire signal was finally transmitted to the Burns’ central station.

These allegations, which must be taken as true for purposes of the motion to dismiss (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648), are sufficient to establish the existence of a duty owed by Burns to the adjacent tenants under the Restatement (Second) of Torts. This section, as adopted by our supreme court (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596), provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Restatement (Second) of Torts sec. 324A (1965).)

The adjacent tenants urge that the present case falls within subsections (b) and (c) of section 324A. We do not believe subsection (b) is satisfied here because the adjacent tenants have not alleged a duty on the part of Wards to provide protection to them. We do find, however, that a duty arises under subparagraph (c), which sets up reliance upon the undertaking as a basis for imposing liability. The adjacent tenants have alleged they relied upon Burns’ contractual undertaking to provide adequate fire protection and warning services, thereby giving rise to a duty under subparagraph (c). However, even if such reliance by the adjacent tenants was not reasonably justified, the reliance necessary under subsection (c) is provided here by Wards. Subsection (c) speaks to reliance by “the other” (Wards) or the third person (adjacent tenants). Wards, by contracting with Bums for the fire safety program, necessarily relied upon Burns to perform its undertaking. See Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596.

Burns should have recognized that the undertaking of its contractual obligations was necessary for the protection of the third party, the adjacent tenants, given the circumstances here where the parties shared a common facility and Wards was storing flammable materials on its premises. It was highly foreseeable that a fire on Wards’ premises, if not timely detected, would destroy the entire warehouse and not merely Wards’ portion. In parallel circumstances, courts have repeatedly recognized the reasonable foreseeability of harm to other persons present at or sharing a single facility with one to whom a contractual duty is owed. (See, e.g., Evans Cabinet Corp. v. “Automatic” Sprinkler Corp. (1983), 167 G. App. 502, 306 S.E.2d 750; Haragon v. Union Oil Co. (D. Alaska 1970), 312 F. Supp. 1392.) The fact that the adjacent tenants were not a party to the Burns’ contract does not negate the existence of a duty owed to them. See Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.

Burns maintains that extending a duty to third parties such as the tenants would be too heavy a burden in that it would result in unlimited financial liability for Burns and other alarm suppliers in the future. In support of this argument, Burns erroneously relies upon cases where courts have upheld limitation-of-liability provisions in burglar alarm contracts where the litigation was between the contracting parties only. (See First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17; Pickfisheries, Inc. v. Burns Electronic Security Services, Inc. (1976), 35 Ill. App. 3d 467, 342 N.E.2d 105.) In these cases the court was not espousing general rules of public policy but discussed only whether the limitation provisions could be circumvented by contracting parties on the basis that they were unconscionable. Those cases are to be distinguished from the instant case, where there was no commercial relationship between the adjacent tenants and Burns and therefore no contractual assignment of the risks or agreement to exculpate Burns for its negligence.

We are convinced that, contrary to Burns’ position, public policy principles support the imposition of a duty to the adjacent tenants. Although Burns claims that the “burden” of being held responsible for its negligence would be too great, in reality the only “burden” on Burns is to exercise reasonable care in fulfilling its undertaking. Imposing a duty in this instance provides the necessary incentive for Bums and others who supply and maintain alarm systems to use reasonable care in the future.

(C)

Bums additionally contends that it did not proximately cause the adjacent tenants’ loss because it did not start the fire. Burns reasons that even if the fire alarm system had functioned correctly, the fire still would have occurred, and therefore it is not liable to the tenants. This argument has no merit.

The issue of proximate cause generally presents a question to be determined by the trier of fact. (Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 332-33, 369 N.E.2d 1284, aff'd in part, rev’d in part (1978), 76 Ill. 2d 154.) “Proximate cause” is a term of art encompassing the distinct concepts of cause in fact and legal cause; once it is established from an analysis of the facts that the defendant’s conduct was a cause in fact of plaintiff’s injury, the next question is whether the defendant should be legally responsible for what he caused. (Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 332.) Under the classic “but for” test of cause in fact, the plaintiff need only show that ‘but for” the defendant’s conduct, the injury to plaintiff would not have occurred. (54 Ill. App. 3d 323, 333.) In the present case, the adjacent tenants allege in their complaints that “but for” the negligence of Bums, what began as a small containable fire would not have grown into a dangerous conflagration endangering plaintiffs and their property. We believe that a jury could reasonably conclude that the “but for” test is satisfied with regard to Burns, in that it is more probable than not that, had Bums’ alarm and sprinkler systems functioned properly, the fire would not have spread to the adjacent tenants’ premises.

The next prong of the proximate cause analysis concerns whether Bums should be held legally responsible for plaintiff’s injuries. A defendant is legally responsible for all of the “natural and probable” results of his actions — that is, for all of the consequences which an ordinary prudent person ought to have foreseen as likely to occur. (Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 334, 369 N.E.2d 1284, aff’d in part, rev’d in part (1978), 76 Ill. 2d 154.) Here, a jury could find that it was foreseeable that a fire in Wards’ warehouse would spread if Burns’ system failed to function properly and detect the fire in a timely manner. We note there is no reason why a party who manufactures or supplies a device designed to prevent damage emanating from another source should not be held legally responsible if, as a result of the party’s own negligence, the device fails to prevent the anticipated harm. (Haragon v. Union Oil Co. (D. Alaska 1970), 312 E Supp. 1392, 1395.) The failure of safety mechanisms designed to prevent and control a potentially dangerous occurrence is as, if not more, hazardous than the creation of the situation itself.

Accordingly, for the reasons set forth above, we hold that the adjacent tenants stated a cause of action in tort against Burns and that it was therefore error to dismiss their actions.

II

(A)

The next matter for our review is the trial court’s dismissal of counts II, III and IV of Wards’ amended third-party complaint against Burns. We first find that the trial court properly dismissed count II, which attempts to plead a cause of action for rescission. In seeking rescission, Wards is attempting to recover for its own losses, that being the money paid to Bums under their contract. Under Illinois law, however, a party cannot maintain a claim for its own losses in a third-party complaint. (Filippino v. Bailitz (1979), 73 Ill. App. 3d 389, 392, 392 N.E.2d 23.) In Bailitz, we stated that third-party litigation “cannot be used to maintain an entirely separate and independent claim against a third party, even if it arises out of the same general set of facts as the main claim.” (73 Ill. App. 3d 389, 392.) Here, the claim for rescission contained in count II was separate from, and independent of the outcome of, the main claim brought against Wards by the adjacent tenants. As such, the claim for rescission was not a sufficient basis upon which to sustain a third-party action, and count II was properly dismissed.

Notwithstanding the above pleading error, Wards nevertheless has no action for rescission. The relief of rescission sought here by Wards is equitable in nature. (Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 299 N.E.2d 521.) It is axiomatic that it is not error for the trial court to deny equitable relief when an adequate remedy at law exists. (Aldens, Inc. v. Rosewall (1979), 71 Ill. App. 3d 754, 757, 390 N.E.2d 476.) In the case before us, an adequate remedy at law exists. Wards’ legal remedy is set forth in paragraph 10 of its contract with Burns. This paragraph provides that in the event that Burns is liable for any injury suffered by Wards, the damages that Burns must pay are limited to $250 or 10% of the service contract charge, whichever is greater. Similar limitation of damages clauses have been upheld by Illinois courts. (Fireman’s Fund American Insurance Cos. v. Burns Electronic Security Services, Inc. (1980), 93 Ill. App. 3d 298, 417 N.E.2d 131, appeal denied (1982), 88 Ill. 2d 550; First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17.) Hence, paragraph 10 clearly and unambiguously establishes the intent of Burns and Wards regarding the failure of the Bums’ system to operate properly.

Wards urges that the contract damages provided for in paragraph 10 are not adequate because they are not as “complete” as those available to it if the contract were rescinded, and it cites Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223, and K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 355 N.E.2d 156. These two cases stand for the proposition that in order to deprive equity of its power to grant injunctive relief, the remedy at law must be clear, complete and as practicable and efficient as the equitable remedy. In both cases, injunctions were issued to preserve the status quo of the parties. In distinction, in the case before us, Wards is not seeking the equitable powers of the court to grant an injunction to preserve the status quo. Rather, Wards is seeking to rescind an agreement which was voluntarily entered into because it is unhappy with its contractual remedy. It is well settled that it is not the duty nor function of this court to grant rescission of a contract voluntarily entered into between competent parties merely because such an agreement may later be thought unwise or improvident. (Heckmann v. Mid States Development Co. (1965), 60 Ill. App. 2d 113, 207 N.E.2d 715; Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App. 3d 851, 350 N.E.2d 857.) Accordingly, we refuse to grant Wards rescission of the Burns contract.

(B)

The trial court erred in dismissing counts III and IV of Wards’ amended third-party complaint. In these two counts, premised respectively on theories of negligence and wilful and wanton misconduct, Wards seeks contribution from Burns. Wards maintains that if it is held liable to the plaintiff adjacent tenants for the loss they incurred, then Wards is entitled to pursue a claim against Burns under the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.). The Act provides that where two or more persons are “subject to liability in tort arising out of the same injury to person or property, * * * there is a right of contribution among them.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 70, par. 302(a).

The threshold question raised here by the parties is whether Burns is a person “subject to liability in tort” under the contribution statute. The trial court ruled that Burns was not, reasoning that the loss incurred by the plaintiffs constitutes economic loss which is not recoverable in tort. We determined above, however, that the economic loss doctrine does not pose an obstacle to recovery in this case. We further examined the parties’ remaining arguments pertaining to duty and proximate cause, and found that the plaintiff adjacent tenants sufficiently stated a cause of action in tort against Burns. It is not necessary to again review these arguments at this time, since the allegations of negligence directed against Bums in Wards’ amended third-party complaint are similar, in pertinent part, to those directed against Bums in the adjacent tenants’ amended complaint. Consequently, given our findings above, we conclude that Bums indeed is a party “subject to liability in tort” under the Contribution Act.

Burns argues that Wards is prevented from seeking contribution because paragraph 10 of their contract provides that Burns “shall be exempt from liability for loss or damage due directly or indirectly to occurrences or consequences therefrom, which the service is designed to detect or avert.” Burns asserts that since this clause precludes Wards from directly suing Bums in tort, allowing Wards to sue in tort indirectly via a contribution claim would enable Wards to circumvent its contractual obligations.

The above argument must fail. The fact that Wards may not directly maintain a tort action against Burns does not prohibit a claim for contribution. The intent underlying the passage of the Contribution Act is to create a separate right of restitution in the party seeking contribution, which right is not dependent on any other rights the claimant may have with respect to the party from whom contribution is being sought. (See Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 193 (1980), quoting legislative history behind Senate Bill 308 published by the Chicago Bar Association’s Civil Practice Committee, at 2.) In recognition of this legislative intent, Illinois courts have held that a plaintiff’s inability to maintain a direct tort action against a negligent party will not necessarily protect the negligent party from a third-party contribution action. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382; Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221; Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236.) As our supreme court recently stated, “[T]he intent of the contribution statute was to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege.” (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9, 461 N.E.2d 382.) For this court to now allow Bums to use the limitation-of-damages clause as a shield to a contribution claim would be inconsistent with the contribution statute’s desirable policy of equitably distributing the loss among culpable parties. We therefore conclude that Wards is not precluded from pursuing a cause of action for contribution against Bums, and counts III and IV of its amended third-party complaint therefore should not have been dismissed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part, and remanded.

Affirmed in part; reversed in part; and remanded.

GOLDBERG and CAMPBELL, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the retirement of Justice Goldberg.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    ADLER CENTER FOR BEHAVIOR MODIFICATION, INC., Plaintiff-Appellant, v. CHICAGO TITLE AND TRUST COMPANY, Trustee, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—930
    Opinion filed December 18, 1984.
    Rehearing denied January 22, 1985.

      Letvin & Stein, of Chicago (David J. Letvin and David M. Stein, of counsel), for appellant.
    Friedman & Koven, of Chicago (Robert J. Rubin, of counsel), for appel-lees.
   JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order denying a motion to set aside a settlement order in a commercial landlord-tenant dispute, and from the denial of plaintiff’s motions for change of venue.

Plaintiff, Adler Center for Behavior Modification, Inc., was a commercial tenant at 310 South Michigan Avenue in Chicago. Defendant is the trustee under a land trust which owns the building. Dino D’Angelo is the beneficiary of the trust, and James Gulden is the building manager. Plaintiff’s lease contained a provision allowing defendants to substitute similar premises for those occupied by plaintiff upon 90 days’ advance notice.

On May 2, 1982, plaintiff was notified by defendant that a new tenant would be occupying plaintiff’s offices and that plaintiff would be moved to a new and comparable location at defendants’ expense. The notice did not specify the date on which the move was to take place.

On May 20, 1982, defendants terminated plaintiff’s lease for failure to pay rent after a dispute arose involving certain rented storage space. Defendants subsequently accepted payment by plaintiff of rent for May, June and July 1982. -

On July 12, 1982, 71 days after plaintiffs receipt of the substitution of premises notice, defendants cut off electrical services to the leased premises. On July 13, the doors to plaintiff’s offices were padlocked and workers hired by defendants began removing furniture from the leased premises and dismantling fixtures. Plaintiff filed a verified complaint and an emergency motion for temporary restraining order and preliminary injunction. At this time plaintiff was represented by the law firm of Rudnick and Wolfe. The case was assigned to Judge Holzer, who allowed the requested emergency relief. The dismantling of plaintiff’s offices continued, however, and on July 14, 1982, plaintiff presented a verified emergency petition for a rule to show cause, alleging that defendants were removing plaintiff’s furniture and demolishing walls in plaintiff’s offices in violation of the court’s order. Judge Holzer entered and continued the petition for the rule to the next day.

About this time, the law firm of Friedman and Koven, attorneys for defendants, indicated that they sought the disqualification of Rud-nick and Wolfe as plaintiff’s attorneys due to Rudnick and Wolfe’s prior representation of defendant Dino Di’Angelo. On July 14, 1982, Rudnick and Wolfe arranged for the law firm of Weissman and Pond to represent plaintiff. Plaintiff’s principal, Benjamin Belden, was introduced to attorney Weissman and endorsed his check for Rudnick and Wolfe’s retainer fee over to Weissman.

On July 15, defendants filed a verified motion to dissolve the temporary restraining order. On that same day, Judge Holzer recused himself from the case after engaging in ex parte communications about the case with an attorney from Friedman and Koven. The case was assigned to Judge Wosik, and settlement negotiations were begun.

The negotiations took place in Judge Wosik's chambers. Defendants were represented by Friedman and Koven and plaintiff by Weiss-man, although Weissman had yet to file an appearance in the case. Although the facts relating to the negotiations are unclear, it appears that during the negotiations between Judge Wosik, attorneys from Friedman and Koven and attorney Weissman, Mr. Belden remained in the courtroom, accompanied by four attorneys from Rudnick and Wolfe. Belden and Weissman conferred frequently during the course of the negotiations, and a settlement order, prepared by Weissman, was entered by Judge Wosik on July 15, 1982. The order provided that plaintiff would vacate the premises and defendants would return plaintiffs furniture and pay $9,500 as damages.

On August 13, 1982, Weissman and Pond filed plaintiffs motion to vacate the July 15, 1982, settlement order and a motion for leave to withdraw as counsel due to “irreconcilable differences” between counsel and client arising from plaintiff’s desire to have the settlement order vacated. The court continued the motion to vacate, granted Weissman and Pond’s motion to withdraw and granted William Arnold of Arnold and Hennessy leave to file his appearance for plaintiff.

Plaintiff filed an amended motion to vacate on September 24, 1982. Plaintiff was now represented by Marshall Patner in addition to Arnold and Hennessy. The amended motion to vacate included several affidavits detailing the circumstances relating to the conflict of interest which caused Rudnick and Wolfe’s disqualification. The motion stated alternative grounds for vacating the settlement order, addressed to the equitable powers of the court, including the “gross disparity” in the bargaining positions of the parties due to the allegedly tainted representation provided by plaintiff’s various attorneys, the emotional state of Belden and the insufficiency of the damages settled upon. Plaintiff then filed a motion for change of venue as a matter of right, which was denied. The court also denied plaintiff’s second motion for change of venue based upon newly discovered prejudice and denied plaintiff’s motion to vacate the July 15, 1982, settlement order. Plaintiff appeals.

Plaintiff first contends that the trial court erred in denying its motion to vacate the July 15, 1982, settlement order. Plaintiff argues that its bargaining position in the settlement negotiations was adversely affected by Rudnick and Wolfe’s continued representation of plaintiff after the disclosure of their past representation of one of the defendants. Plaintiff also argues that Weissman, the attorney chosen by Rudnick and Wolfe to represent plaintiff after Rudnick and Wolfe’s disqualification, was merely Rudnick and Wolfe's “alter ego” and therefore that Weissman’s representation of plaintiff was tainted.

Settlements are to be encouraged and given full force and effect. They should not be set aside absent a showing of fraud or mistake. (Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868, 356 N.E.2d 837.) The cases cited by plaintiff in support of his position are personal injury tort actions in which the conflicting interests of the attorneys and the inadequacy of the settlement amounts indicated that the rights of the plaintiffs had been adversely affected to such an extent that, in the courts’ opinion, vacation of the settlement orders was warranted. (Scheffki v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1971), 1 Ill. App. 3d 557, 274 N.E.2d 631; In re Estate of Lilly (1976), 41 Ill. App. 3d 348, 354 N.E.2d 96.) In Scheffki, a minor boy suffered the loss of both legs in a railroad accident. The attorney who purported to represent him was actually a railroad attorney selected by the defendant railroad and introduced to the boy’s father by the railroad’s claims adjuster. The attorney induced the father to accept a $15,000 settlement. We affirmed the trial court’s vacation of the settlement order, based upon the concealment of the attorney’s real interest and the inadequacy of the settlement. Lilly, which distinguished Scheffki, was a wrongful death action in which the decedent’s estate was administered by the same law firm that represented the defendant insurer. On appeal, the settlement order was vacated due to the combined effects of the attorney’s conflicting interest, the possibly misleading tactics of the insurance adjuster, the small amount of the settlement, and the plaintiffs’ lack of education or financial resources, all of which evidenced a great disparity in the bargaining positions of the parties.

The facts of the instant case are not such as would warrant vacation of the settlement order under the standards applied in Scheffki and Lilly. There was no great disparity in the bargaining positions of the parties in the instant case, as there was in Scheffki and Lilly. The record shows that Belden accepted the substitution of Weissman for Rudnick and Wolfe and that Belden was present during the settlement negotiations and actively participated in them. Although plaintiff suggests that the amount of damages settled upon was inadequate and therefore indicative of the inequality of the bargaining positions of the parties, the amount, $9,500, was determined with Belden’s assistance and does not appear to be grossly inadequate in light of the injuries complained of. The settlement amount therefore does not indicate a disparity in the bargaining positions of the parties on the level of that found in Scheffki and Lilly.

Plaintiff contends that the conflicting interest of Rudnick and Wolfe is per se a sufficient ground for vacating the settlement order. However, no decisional authority is cited for this contention. As we have noted above, the Scheffki and Lilly decisions demonstrate that the courts require a combination of factors demonstrating prejudice to the complaining party before the existence of an attorney’s conflict of interest will necessitate the vacation of a settlement order. Furthermore, although the record in the instant case shows that attorneys from Rudnick and Wolfe were present during the settlement negotiations, there is no indication that they were present for any purpose other than assuring that the substitution of Weissman and Pond as plaintiff’s attorneys was accomplished smoothly and without prejudice to plaintiff, and nothing in the record supports plaintiff’s contention that the representation provided by attorney Weissman was tainted or compromised by his association with the Rudnick and Wolfe attorneys.

We therefore affirm the trial court’s denial of plaintiff’s motion to vacate the. settlement order. The facts of the instant case are not in any way comparable to those in Scheffki or Lilly, and there is no indication of the existence of fraud or mutual mistake justifying vacation of the settlement order. It is clear that, under the facts of the instant case, insufficient grounds existed for the granting of the equitable relief sought by plaintiff, and we therefore find that the trial court did not err in refusing to grant such relief.

Plaintiff also contends that the trial court erred in denying its motions for change of venue. Plaintiff’s first motion for change of venue as a matter of right, containing a general allegation of prejudice against plaintiff on the part of Judge Wosik, was filed on May 12, 1983. This motion was opposed by defendants on the ground that an order dismissing the cause with prejudice had been entered on July 15, 1982, as part of the settlement order. Plaintiff filed a second motion for change of venue on June 17, 1983, alleging that the prejudice on the part of Judge Wosik occurred after the entry of the July 15, 1983, order dismissing the cause.

Under section 2 — 1001 of the Code of Civil Procedure, “[a] petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, but if any ground for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such ground.” Ill. Rev. Stat. 1981, ch. 110, par. 2-1001(c).

Plaintiff’s first motion for change of venue as a matter of right was filed after the dismissal of the cause with prejudice by Judge Wosik. Therefore, the motion was not timely filed under section 2 — 1001(c), and we find no error in the trial court’s denial of the motion.

Plaintiff’s second motion for change of venue, based upon prejudice occurring after the entry of the July 15, 1982, order, was also properly denied. A motion for change of venue which is filed after the court has ruled on a substantial issue in the case “must state specific allegations to support the claim of prejudice and the change should be granted only in the sound discretion of the court.” (In re Marriage of Zannis (1983), 114 Ill. App. 3d 1034, 1038, 449 N.E.2d 892.) Plaintiff’s second motion contains no specific allegations of prejudice and was therefore properly denied by the trial court.

For the reasons expressed above, the decisions of the circuit court are affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.


author: PRESIDING JUSTICE MEJDA

text:
    ANNECCA, INC., d/b/a U.S. Electric Company, Plaintiff-Appellee, v. THE METROPOLITAN FAIR AND EXPOSITION AUTHORITY, Defendant-Appellant (Hyre Electric Company, Plaintiff-Appellee and Cross-Appellant).
    First District (5th Division)
    No. 84—1768
    Opinion filed December 28, 1984.
    Rehearing denied February 4, 1985.

      Reuben & Proctor, of Chicago (Don A. Reuben, Jaroslawa Z. Johnson, and Steven A. Weiss, of counsel), for appellant.
    Adam Bourgeois, Ltd., of Chicago (Adam Bourgeois and Wilma M. Scharrer, of counsel), for appellee Annecca, Inc.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Thomas G. Dent and Christopher A. Hansen, of counsel), for appellee Hyre Electric Company.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff Annecca, Inc., doing business as U.S. Electric Company (Annecca), brought this action to enjoin the Metropolitan Fair and Exposition Authority (the Authority) from performing in-house electrical services for trade shows and expositions in place of an outside contractor at McCormick Place and Donnelly Hall in Chicago. Plaintiff Hyre Electric Company (Hyre) also brought suit against the Authority alleging that it should be awarded the electrical contract pursuant to competitive bidding procedures. The two cases were initially consolidated and later severed in part, but by order of court remained consolidated for Hyre’s participation in the preliminary injunction proceeding in the Annecca action which is the subject of this appeal. The circuit court held that the Authority’s performance of the in-house electrical services would be ultra vires acts outside the scope of the Authority’s powers and preliminarily enjoined it from removing An-necca as the interim electrical contractor.

The Authority appeals from the ultra vires holding and the issuance of the preliminary injunction. Hyre’s cross-appeal also seeks dissolution of the preliminary injunction. The issues presented for review are: (1) whether the Authority’s performance of in-house electrical services for trade shows and expositions is ultra vires, and (2) whether the preliminary injunction was properly entered.

Annecca and the Authority have submitted an agreed statement of facts in lieu of a record on appeal pursuant to Supreme Court Rule 311 (87 Ill. 2d R. 311). The pertinent facts are set forth as follows. Defendant Authority is a municipal corporation operating pursuant to statutory authority. (Ill. Rev. Stat. 1983, ch. 85, par. 1221 et seq.) The Authority operates McCormick Place and Donnelly Hall in Chicago to accommodate public and private expositions. These facilities are used by the Authority for such activities as trade shows, theatrical performances, meetings and a wide variety of other events which require temporary installation of electrical machinery, lighting fixtures, switches, receptacles and controls. All such equipment must be removed after each event.

When the Authority presents a show, it enters into a contract with a show manager for the rental of space. The show manager sometimes hires the independent contractors to perform specific services. Such electrical work is billed to the exhibitors at an hourly rate. Prior to 1981, the trade show related electrical work was performed by Fischbach & Moore Electrical Contracting, Inc. Since January 1, 1981, the trade show related electrical work has been performed by Annecca, pursuant to a letter dated December 15, 1980. Annecca currently charges the Authority $25.82 an hour for journeyman work, $27.21 an hour for foreman work, and $29.96 an hour for superintendent work. These rates vary if overtime is necessary. The Authority, in turn, charges the exhibitors $40 an hour for the electrical work.

On November 21, 1983, the Authority placed advertisements for bids for the electrical services at McCormick Place and Donnelly Hall. Bids were only solicited for the trade show and exposition work, not for general electrical maintenance. Eight bids were received by the Authority and turned over to its accountants for financial analysis. Annecca’s bid was $24.09 an hour for journeyman work, $25.09 an hour for foreman work, $26.09 an hour for general foreman work, and $29.34 for superintendent work.

At its January 13, 1984, board meeting, the Authority rejected all eight bids and directed a re-examination of the feasibility of performing the electrical work in-house. Joseph Hannon, managing director of the Authority, requested Hugo Alumni, the Authority’s comptroller, to analyze the savings which the Authority could generate by performing the electrical services in-house.

Subsequently, the Authority reached an agreement with the union involved as to the Authority’s performing the electrical work in-house and sent a letter to Annecca terminating its work as of June 15, 1984. Hyre filed suit on May 3, and Annecca filed suit on May 11, each alleging that the performance of electrical service in-house was ultra vires and each claiming it should be awarded the contract as the lowest bidder pursuant to the advertisement for bids. The two suits were initially consolidated and then severed, but the Hyre suit was then consolidated “for the purpose of allowing Plaintiff, Hyre Electric Company, a right to participate in the hearing for preliminary injunction.” Hyre has never moved for preliminary injunction relief.

Annecca’s performance of the electrical work is supervised by Michael Annecca, president of U.S. Electric. He employs a superintendent and a general foreman, as well as 21 additional electricians to perform the work for the Authority. Each of these 23 electricians is currently employed by the Authority for maintenance work when they are not doing electrical work for plaintiff Annecca.

Twenty of the 23 electricians employed by Annecca worked for Fischbach & Moore prior to performing the same services for An-necca. The Authority’s letter of December 18, 1980, directs Annecca to utilize these electricians at McCormick Place. The Authority has now agreed that if it is permitted to perform the electrical work in-house, it will use the same 23 electricians currently performing the work for Annecca. In addition to the part-time electricians, the Authority employs 12 full-time electricians for electrical maintenance at McCormick Place.

Plumbing work for the trade shows is performed by employees of the Authority and billed to exhibitors at an hourly rate. In addition, security, janitorial services, coat check services and telephone rental services are all provided by employees of the Authority.

On June 14, 1984, Annecca filed a motion for preliminary injunction. Pending hearing thereon, the court on June 26, 1984, enjoined the Authority from removing Annecca as the electrical contractor. Oral argument thereafter was had on the threshold question of whether performance of electrical services by the Authority was within its statutory powers. Hyre participated in the argument although not a party to the motion. An order was entered July 18, 1984, finding that the performance of electrical services for setting up and taking down trade shows and expositions at McCormick Place and Donnelly Hall is outside the scope of the corporate powers of the Authority. The court denied the Authority’s motion for judgment on the pleadings as to the power to perform the electrical services and ordered that the injunctions entered June 26, 1984, and extended on July 12, 1984, preventing removal of Annecca, remain in force until further order of court, provided that this order be vacated if Annecca does not join in seeking an immediate expedited appeal should the Authority seek an interlocutory appeal. Annecca was further ordered to post an injunction bond aggregating $75,000 to cover any losses suffered by the Authority by reason of Annecca’s continued performance. The Authority filed an interlocutory appeal, and Hyre filed a cross-appeal. An expedited appeal was granted.

Opinion

The Authority contends on appeal that the performance of electrical services in-house for trade shows and expositions is not an ultra vires act. This contention necessarily involves consideration of the provisions of the Metropolitan Fair and Exposition Authority Act (the Act) (Ill. Rev. Stat. 1983, ch. 85, par. 1221 et seq.) as to the rights and powers of the Authority.

Section 4 of the Act empowers the Authority:

“To promote, operate and maintain fairs, expositions and conventions from time to time in the metropolitan area and in connection therewith to arrange, finance and maintain industrial, cultural, educational, trade and scientific exhibits and to construct, equip and maintain auditoriums and exposition buildings for such purposes. The Authority is granted all rights and powers necessary to perform such duties.” (Ill. Rev. Stat. 1983, ch. 85, par. 1224.)

Section 5 of the Act outlines the rights and powers of the Authority which expressly include these rights and powers:

“(b) To accept the assignment of, assume and execute any contracts heretofore entered into by Chicago Park Fair.
(c) To acquire, own, construct, lease, operate and maintain fair and exposition grounds and facilities, and to fix and collect just, reasonable and nondiscriminatory charges for the use of such facilities. The charges so collected shall be made available to defray the reasonable expenses of the Authority and to pay the principal of and the interest upon any revenue bonds issued by the Authority.
(d) To enter into contracts treating in any manner with the objects and purposes of this Act.” (Ill. Rev. Stat. 1983, ch. 85, par. 1225.)

Section 24 of the Act states, “All construction contracts and contracts for supplies, materials, equipment and services, when the expense thereof will exceed $2,500, shall be let to the lowest responsible bidder ***,” and further specifies several exceptions to the competitive bidding requirement. (Ill. Rev. Stat. 1983, ch. 85, par. 1244.) Section 25 of the Act (Ill. Rev. Stat. 1983, ch. 85, par. 1245) explains how bids should be solicited and opened.

However, beyond the express powers of municipal corporations, courts have held that implied powers exist which are extensions of the granted powers. Strub v. Village of Deerfield (1960), 19 Ill. 2d 401, 167 N.E.2d 178; Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 442 N.E.2d 915; Redemske v. Village of Romeoville (1980), 85 Ill. App. 3d 286, 406 N.E.2d 602. See also Illinois Power Co. v. City of Jacksonville (1960), 18 Ill. 2d 618, 165 N.E.2d 300.

In a factual situation strikingly similar to the instant case, the Illinois Supreme Court found that implied powers enabled a park district to construct a parking garage. In Michigan Boulevard Building Co. v. Chicago Park District (1952), 412 Ill. 350, 106 N.E.2d 359, the owner of an office building sought an injunction to restrain defendant park district from constructing an underground parking garage in Chicago’s Grant Park. Plaintiff there appealed to the Illinois Supreme Court the dismissal of his complaint, asserting, inter alia, that the park district’s enabling legislation did not authorize the construction of a parking garage on land owned by the park district. In affirming the trial court, the supreme court found that the construction of off-street parking was within the corporate purposes of the park district in light of statutory authority to construct, manage, exercise control over and supervise operation of all parks and regulate traffic therein. Since there was an anticipated need of 13,000 more parking spaces in the loop area by 1955, the court stated that conditions required a pragmatic interpretation of the statutory grant of authority. The court made this finding after recognizing that the parking spaces would be used as much by persons entering and leaving the loop area as by persons enjoying the park and its facilities. The court stated:

“A definition of corporate purpose cannot be static. Changing conditions require that application of the limitations of that legal principle be tempered with due recognition of the existing situation so the purpose for which the public body was organized may be accomplished and enjoyment thereof by the public made possible.” Michigan Boulevard Building Co. v. Chicago Park District (1952), 412 Ill. 350, 355, 106 N.E.2d 359, 363.

Another analogous situation was presented in Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 442 N.E.2d 915, which addressed the propriety of a park district’s authority to enter into a concession with a private firm to operate a waterslide in a public park. Plaintiff taxpayers there asserted the park district did not have the statutory power to enter into the contract and was required to advertise for bids before entering into the contract. Although the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 1 — 1 et seq.) contained no express language allowing such concessions, the trial court relied on the implications of several express statutory grants of authority which allowed the park district to establish and maintain various recreational programs. The appellate court affirmed and held that the power of the park district to enter into the agreement was necessarily implied from the Park District Code.

In Indiana State Fair Board v. Hockey Corp. of America (Ind. 1982), 429 N.E.2d 1121, the Indiana Supreme Court held that the direct operation of a skating rink by the State Fair Board was not an ultra vires act and was within the board’s statutory authority. The court reasoned that the legislature gave broad powers to the board to conduct activities which benefit the Indiana State Fairgrounds and thereby directly benefit agriculture. The court noted that sporting events such as motorcycle races were regularly held on the fairgrounds, and even though these events were not directly related to agriculture, they generated proceeds which were deposited in the accounts of the State Fair Board.

Plaintiffs in the instant case attempt to distinguish these cases by arguing that the scope of power delegated to a municipal corporation should not be enlarged by liberal construction. Plaintiffs cite People ex rel. Sweitzer v. City of Chicago (1936), 363 Ill. 409, 2 N.E.2d 330, for the proposition that doubts concerning the existence of a statutory power are to be resolved against the corporation and the power denied. They also assert that the two park district cases and the skating rink case are factually inapposite to the case at bar and involved enabling legislation different from the Metropolitan Fair and Exposition Act.

Plaintiffs correctly note that the cases cited by the defendant involve different factual situations and different enabling legislation; nonetheless, the principles these cases enunciate are persuasive. As the Illinois Supreme Court stated in Michigan Boulevard Building Co. v. Chicago Park District (1952), 412 Ill. 350, 106 N.E.2d 359, the purpose for which the public body was organized and the public benefit are of primary importance in defining corporate purpose. These two factors must be considered when evaluating the impact of changing conditions on the legal doctrine of corporate purposes. Accordingly, Michigan Boulevard requires that the limitations of the Metropolitan Fair and Exposition Act be defined in a realistic manner which accomplishes the purpose for which the Authority was created and the benefit to the public provided by the Authority’s activities.

The application of the foregoing principles in the instant case is indicated because the express grant of power to the Authority in the Act is itself quite broad. The Authority is allowed to “promote, operate and maintain fairs, expositions and conventions *** and in connection therewith to arrange, finance and maintain *** exhibits and to construct, equip and maintain auditoriums and exposition buildings for such purposes.” (Ill. Rev. Stat. 1983, ch. 85, par. 1224.) The Act grants the Authority “all rights and powers necessary to perform such duties” (Ill. Rev. Stat. 1983, ch. 85, par. 1224), and expressly states that the Authority’s rights and powers include the right to operate and maintain exposition facilities and to fix and collect charges for the use of such facilities. Ill. Rev. Stat. 1983, ch. 85, par. 1225.

It is undisputed in the instant case that the electrical services are essential to the corporate purpose outlined by the statute: promoting, operating and maintaining fairs and expositions. Since electricity is necessary to such events, authority for the actions at issue is quite plain under the statute, especially pursuant to the provision that the Authority may “equip and maintain” exposition halls (Ill. Rev. Stat. 1983, ch. 85, par. 1224), and fix and collect charges for the use of such facilities. Ill. Rev. Stat. 1983, ch. 85, par. 1225.

The agreed facts submitted herein show the Authority provides plumbing work for the trade shows and expositions at McCormick Place with its own employees which is billed to exhibitors in the same manner as electrical work, “i.e., an hourly rate”; and that security, janitorial services, coat check services and telephone rental services are all provided by employees of the Authority. The authority contends that it would perform the instant electrical services, as it already performs the plumbing and other services, all of which, it reasons, are within its statutory authority to “operate and maintain” trade shows and expositions. (Ill. Rev. Stat. 1983, ch. 85, par. 1224.) Plaintiffs respond that this is a “bootstrap argument” and that the Authority’s performance of plumbing services in-house for exhibitors is also an ultra vires act, citing the following statutory provision pertaining to plumbers, which states:

“No municipal corporation or political subdivision shall engage in plumbing unless such plumbing is performed by one or more licensed plumbers, or licensed apprentice plumbers under supervision in accordance with this Act, provided that any such governmental unit may contract for plumbing with any person authorized to engage in plumbing in this State.” (Ill. Rev. Stat. 1983, ch. Ill, par. 1105.)

Plaintiffs argue therefrom that since the Authority itself is not a licensed plumbing contractor, it cannot perform such plumbing services. Since the issue as to plumbing is not before us for decision, we need not address it other than as a purported analogy herein. However, there is no indication in this record that the Authority’s plumbing services are not provided by licensed plumbers or that there is any other violation of the foregoing statutory provisions by defendant’s conduct. Plaintiffs’ argument is therefore neither analogous nor persuasive. Nonetheless, the foregoing does suggest that if the legislature intends to limit a municipal corporation’s power to conduct an incidental activity, it may readily do so by express language.

In the case at bar, plaintiffs contend the Authority’s proposed action is ultra vires and prohibited by section 11 — 33—1 of the Illinois Municipal Code, pertaining to municipal registration of electrical contractors, which states:

“The corporate authorities of each municipality may require the registration of electrical contractors, and may impose an annual registration fee of $25 on each registered contractor. An electrical contractor who is registered in one municipality, however, shall not be required by any other municipality to be registered or to pay a registration fee in the other municipality.
The term ‘electrical contractor,’ as used in this section, means any person engaged in the business of installing or altering by contract electrical equipment for the utilization of electricity for light, heat, or power. But the term ‘electrical contractor’ shall not include the installing or altering of (1) radio apparatus or equipment for wireless reception of sounds and signals, or (2) apparatus, conductors, or other equipment installed for or by public utilities, including common carriers, which are under the jurisdiction of the Illinois Commerce Commission, for use in their operation as public utilities. Nor shall the term include the employees employed by an electrical contractor to do or supervise his work.” (Ill. Rev. Stat. 1983, ch. 24, par. 11-33-1.)

Plaintiffs argue that because the Authority would employ and supervise electricians, it would be an “electrical contractor” within the definition of this statute and would be an attempt to enter “the commercial business of electrical contracting.” Plaintiffs’ reading of this statute is overly broad.

The Authority’s involvement with the electrical services herein is only incidental to its duty to “promote, operate and maintain fairs, expositions and conventions from time to time *** and in connection therewith to arrange, finance and maintain industrial, cultural, educational, trade and scientific exhibits and to construct, equip and maintain auditoriums and exposition buildings for such purposes.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 85, par. 1224.) The phrase “in connection therewith” indicates that the legislature intended to grant the Authority the broad powers necessary to arrange trade shows and “equip and maintain” auditoriums such as McCormick Place and Donnelly Hall for the above-set-out purposes. Ill. Rev. Stat. 1983, ch. 85, par. 1224.

It is to be noted that the Authority is itself a municipal corporation for public purposes with governmental powers. (People ex rel. Coutrakon v. Lohr (1956), 9 Ill. 2d 539, 547, 138 N.E.2d 471.) A construction of the statutory provision for licensing of electrical contractors to bar the proposed in-house electrical work would dramatically undercut the Authority’s ability to achieve a clearly expressed statutory duty. The employment of the same electricians heretofore employed by electrical contractors at McCormick Place and Donnelly Hall for such electrical work as may be incidentally required to equip and maintain the trade shows will not constitute making the Authority an electrical contactor, engaged in the business of installing or altering electrical equipment, as defined in section 11 — 33—1 of the Illinois Municipal Code. Instead, the authority will be employing electricians for this limited and incidental purpose, and not to compete commercially as an electrical contractor nor to perform electrical services outside the scope of its own statutory purposes.

Finally, we point out that, contrary to plaintiffs’ contentions, nothing in the competitive bidding statute suggests that the Authority may not perform its own electrical work. (Ill. Rev. Stat. 1983, ch. 85, pars. 1244, 1245.) The statute states that all construction contracts and contracts for supplies, materials, equipment and services, over $2,500, require competitive bidding. (Ill. Rev. Stat. 1983, ch. 85, par. 1244.) The statute does not address whether an outside contractor must be employed, but merely outlines the procedure to be followed if a contract is to be awarded. (Inskip v. Board of Trustees (1962), 26 Ill. 2d 501, 187 N.E.2d 201; accord, Montana Chapter, National Electrical Contractors Association v. State Board of Education (1960), 137 Mont. 382, 352 P.2d 258.) Therefore, the competitive bidding statute cannot be read as a limitation on the Authority’s power to accomplish its corporate purpose.

We conclude that the Authority’s conduct in performing the in-house electrical services with its own electricians is not ultra vires and that the trial court therefore erred in preliminarily enjoining the Authority from removing Annecca as its electrical contractor. In light of this conclusion, we need not address the arguments raised by Hyre in its cross-appeal that the preliminary injunction was inappropriate as a matter of law.

For the foregoing reasons, the order of the circuit court is reversed and the preliminary injunction dissolved.

Reversed. Injunction dissolved.

PINCHAM and LINN, JJ., concur.


author: JUSTICE SCOTT

text:
      In re MARRIAGE OF DAWNETTE S. WALTERS, Petitioner-Appellee, and JAMES L. WALTERS, Respondent-Appellant.
    Third District
    No. 3-84-0109
    Opinion filed January 9, 1985.
    Andrew Schneiderman, of Sternberg & Associates, of Chicago, for appellant.
    William O. Schmidt, of Kankakee, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal is brought seeking review of an order of the circuit court of Kankakee County which set aside that court’s prior judgment dissolving the marriage of Dawnette S. Walters and James L. Walters. At issue is the application of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 401(3)), as that statutory enactment was construed by In re Marriage of Cohn (1982), 93 Ill. 2d 190, 443 N.E.2d 541, a recent decision of our supreme court.

On July 16, 1980, Dawnette S. Walters filed in the circuit court a petition for dissolution of her marriage to James L. Walters. The first stage of the bifurcated proceeding on that petition was held August 25, 1980. At that time, the circuit court orally pronounced:

“The Court finds the grounds exist for the dissolution of marriage and awards a judgment of dissolution.”

Later, an entry was typed on the judge’s docket summarizing the results of the August 25,1980, hearing. That entry provided in part:

“Court finds grounds exist for the dissolution and awards a judgment of dissolution.”

No decision was made at the August 25 hearing concerning matters such as support, custody and maintenance. Motions to continue the second stage of the bifurcated hearing were granted from time to time for a period of several months following August 25. Subsequently, on April 8, 1981, James L. Walters died intestate.

Following Mr. Walters’ death, the cause proceeded to adjudication, with Mrs. Walters’ counsel appearing at several settings in 1982 and 1983. Then, on August 30, 1983, more than 36 months after the entry of the judgment of dissolution, and more than 28 months after the death of Mr. Walters, Mrs. Walters filed an objection to the entry of the judgment of dissolution and a motion to vacate same. The objection was based upon the supreme court decision, In re Marriage of Cohn (1982), 93 Ill. 2d 190, 443 N.E.2d 541. That decision discusses the requirements of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act. That section provides:

“Such judgment [of dissolution] shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” (Ill. Rev. Stat. 1981, ch. 40, par. 401(3).)

In the Cohn case, it was determined that section 401(3) is mandatory. That is, the circuit court cannot bifurcate a judgment unless it has with the same judgment disposed of the matters relating to custody, support, maintenance and property division. An exception to the mandatory requirements of section 401(3) is permitted in “appropriate circumstances,” but in Cohn, as in the instant case, there is nothing in the record to reveal that the circuit court gave any consideration to the question of whether special circumstances existed which would justify the reservation of the disposition of these matters.

With the filing of the objection, Leona Walters, mother of the decedent, was appointed as special administrator to represent the estate of the decedent in the dissolution action. The special administrator responded to the objection, urging in essence that the objection and the request for relief from the 1980 judgment were not made on a timely basis. The circuit court, in reliance on the Cohn case, found that it lacked authority to enter the bifurcated judgment, sustained Mrs. Walters’ objection and set aside the judgment of dissolution entered on August 25,1980. The special administrator appeals that decision.

Before considering the merits of the special administrator’s appeal, it is necessary to discuss a threshold issue raised by the appellee in her brief. Specifically, she suggests that the order vacating the judgment of dissolution is not a final, appealable order since the order does not dispose of the entire claim contained in her petition for dissolution of marriage. While only final orders are appealable as of right (87 Ill. 2d R. 301), “the line of cleavage between final and interlocutory orders is not yet scientifically prescribed and the definitions and pronounced tests must be considered primarily with reference to the facts of a particular case and the relief sought in the pleading.” (In re Organization of Fox Valley Community Airport Authority (1974), 23 Ill. App. 3d 168, 170, 318 N.E.2d 496, 498.) The substance and effect of an adjudication is determinative in assessing its finality. (Mills v. Ehler (1951), 407 Ill. 602, 95 N.E.2d 848.) In considering the facts, and in determining the substance and effect of an order in light of the facts, the ultimate test of finality is whether the order disposes of the litigation. Department of Transportation v. Schien (1977), 50 Ill. App. 3d 73, 365 N.E.2d 702.

In vacating or setting aside the judgment of dissolution, the substance and effect of the circuit court order is to return the litigants, Mrs. Walters and Mr. Walters, to a prejudgment posture. Yet, such a prejudgment posture, given the fact of Mr. Walters’ death in 1981, effectively disposes of the litigation. The death of a party to a dissolution action abates the action and deprives the court of jurisdiction over the marriage. Death extinguishes the subject matter of the litigation, the marriage union itself. (Bushnell v. Cooper (1919), 289 Ill. 260, 124 N.E. 521; accord, In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 413 N.E.2d 486.) The order vacating the judgment of dissolution abates the dissolution action, thus disposing of and terminating the litigation. Only an appeal of the order setting aside the judgment will allow the special administrator any avenue for appellate review. We must conclude that the order appealed from is final, and this appeal is well taken.

It is clear from the Cohn case, and another recent decision, In re Marriage of Davies (1983), 95 Ill. 2d 474, 448 N.E.2d 882, that the trial court cannot enter judgments of dissolution that fail to dispose of all issues raised by the petition for dissolution, except in appropriate circumstances. However, both Cohn and Davies provide that while it is improper to enter a judgment while reserving some issues for further determination, any error in bifurcating dissolution proceedings can be waived. (In re Marriage of Davies (1983), 95 Ill. 2d 474, 448 N.E.2d 882.) The Cohn case specifically held that where no objection to the validity of bifurcated judgments is made and where no appeal is taken, the mandatory provisions of section 401(3) are deemed to have been waived. (In re Marriage of Cohn (1982), 93 Ill. 2d 190, 206-07, 443 N.E.2d 541, 549.) The court in Davies found that where “throughout most of the trial court proceedings *** [the objector] acquiesced in the dissolution judgment, failing to challenge its validity ***,” any error which might be inherent in the bifurcated judgment was invited and waived. (In re Marriage of Davies (1983), 95 Ill. 2d 474, 477, 448 N.E.2d 882, 884.) We believe the same rule should apply under the facts of the case at bar.

For 36 months after the entry of the judgment of dissolution Mrs. Walters, the objector, continued to appear, by her attorneys, in the dissolution proceeding, thereby acquiescing and accepting the validity of the circuit court’s prior judgment. For 28 months following the death of Mr. Walters, Mrs. Walters, the objector, continued to appear, through her attorney, at numerous settings wherein the circuit court monitored the progress of the dissolution proceeding. We recognize that the facts of the instant case are not identical to the facts facing the court in Davies. Nevertheless, the operative facts are similar, i.e., prolonged acquiescence in the dissolution judgment, evidenced by active participation in the judicial proceeding, so as to require the application of the same rule of waiver.

Mrs. Walters suggests that the special administrator has waived the issue of timeliness by failing to present that issue to the trial court. We disagree, noting that the response filed by the special administrator makes specific reference to the timeliness of the objection to the bifurcated judgment. Accordingly, we will take cognizance of the argument that Mrs. Walters has waived her right to object to the bifurcated judgment of dissolution. In reliance on the authorities previously cited, and after carefully considering the arguments of counsel, we reverse the order of the circuit court of Kankakee County which vacated that judgment of dissolution. Further, we remand the issue to the circuit court for its consideration of the remaining issues.

Reversed and remanded.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE PERLIN

text:
    NORINE O’NEILL, a Minor, by her Mother and Next Friend, Barbara O’Neill, et al., Plaintiffs-Appellees. v. MOULIS CORPORATION, Indiv. and d/b/a Fox Lake Harbor, et al., Defendants-Appellants.
    First District (2nd Division)
    No. 84—0387
    Opinion filed December 28, 1984.
    Law Offices of Roderick J. Bergin, of Chicago (Deborah L. LaDolce, of counsel), for appellant Moulis Corporation. •
    Floyd D. Perkins, of Chicago, for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

This court granted defendant Moulis Corporation's (the corporation) petition for leave to appeal (87 Ill. 2d R. 306) from an order of the trial court denying the corporation’s motion to transfer venue from Cook County to McHenry County.

The record reveals the following relevant facts. The underlying action is for personal injuries allegedly resulting from a boating accident which occurred on Lake Pistakee. The lake is partially in Lake County and partially in McHenry County; no part of the lake is in Cook County. The plaintiffs and individual defendants each reside in McHenry County. The corporation has its principal place of business in Lake County; it maintains no address or phone in Cook County. The defendants Haag have filed a prior action against defendants Moulis Corporation and Paul Walczunski, arising from the same incident, in McHenry County.

The corporation filed a motion to transfer the cause to McHenry County, contending that since no defendant resided in Cook County and no part of the transaction from which the cause of action arose occurred in Cook County, venue would not lie in Cook County.

Plaintiffs responded that, based on the deposition of corporate officer John Moulis, the corporation was “doing business” in Cook County by virtue of its participation at boat shows held in Cook County and, therefore, venue in Cook County was proper.

The trial court, noting the corporation’s participation at the Cook County boat shows, and stating that “the plaintiff has the right to choose the forum whenever it’s reasonably possible and available” denied the corporation’s motion. We granted leave to appeal.

The sole issue presented is whether venue properly lies in Cook County. More specifically, the issue is whether it can be said that the corporation is “doing business” in Cook County for purposes of venue.

Section 2 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101) pertains to venue generally and provides, in part:

“Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith *** or, (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.”

Section 2 — 102(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 102(a)) defines the residence of corporations for purposes of venue:

“Any private corporation *** is a resident of any county in which it has its registered office or other office or is doing business.”

Plaintiffs rely on the deposition of corporate officer John Moulis to demonstrate that Moulis Corporation is “doing business” in Cook County and that venue there is consequently appropriate. At his deposition, Moulis testified that Moulis Corporation, d/b/a “Fox Lake Harbor,” operates a “complete marina” in Lake County. Its operation there includes “storage, sales, service, accessories and repairs” of boats. It has “about 14 full-time employees, including two full-time salesmen.” The corporation has participated in the annual Arlington Park and McCormick Place boat shows in Cook County on an unspecified and irregular basis over the past ten years; “some years we go; some years we don’t go.”

Boat manufacturers rent space at the boat shows, and boat dealers such as Moulis Corporation pay a fee to them in order to use the space; the fee depends upon the size of the space rented. The manufacturers display boat models at the shows. These models are not sold; an interested customer chooses a model, places an order and leaves a deposit with Moulis. The deposits range from $20 to $1,000. The contract forms used by Moulis provide that they are not “binding on seller or broker unless signed by an officer or sales manager of seller or broker.”

Most of the time the contracts are returned to the marina at Fox Lake for approval, although Mr. Moulis testified that he has on occasion approved sales contracts at the boat shows “when all circumstances and items are known.” If a buyer wishes to “trade in” a boat, “most of the time we have him bring the boat” to the marina for ex-' amination, although in some cases a Moulis employee will inspect the boat at its present location.

The corporation does not deliver the boats it sells; the buyer picks them up at the Fox Lake marina or, in the case of larger boats, the buyer accepts delivery at the factory. Moulis could not recall ever having delivered a boat in Cook County. The corporation obtains financing solely through a Lake County bank for potential buyers who so request.

The record is unclear with respect to the percentage of the corporation’s gross annual income which is derived from boat sales as opposed to other services provided by the marina: “From year to year it could vary much. If we lose money on our sales one year, we can make money on our sales next year. We could possibly make money all the time on our service. *** On our storage we do better.”

The record is similarly unclear with respect to the percentage of the corporation’s sale of boats which are generated at the Cook County boat shows as opposed to total boat sales. When asked how many boats per year Moulis Corporation sells, Moulis stated: “Well, in the past year maybe 100 would be a lot. It really varies.” At the 1983 10-day boat show held at Arlington Park, Moulis accepted “about 80” deposits for boats. At the time of the deposition, only 20 of those depositors had received the necessary financing. At the 1983 McCormick Place boat show, Moulis Corporation had received 50 deposits for boats; “very few” of these had resulted in completed sales at the time of the deposition. Participation in Cook County boat shows in other years had resulted in “sometimes none, sometimes two” boat sales. Moulis Corporation advertises in the Chicago Tribune newspaper.

It is plaintiffs’ contention that Moulis Corporation’s participation in these Cook County boat shows is “doing business” in Cook County for purposes of venue.

In Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88, our supreme court for the first time interpreted the “doing business” phrase in the venue statute. In that case, the B & 0 had been sued in Madison County, venue being based on the allegation that the railroad was “doing business” in that county. The court first rejected the contention that for venue purposes the phrase “doing business” should be given the same expansive interpretation as when the same phrase is used as a statement of the test for determining whether a corporation would be amenable to suit in a foreign jurisdiction.

“A comparison of the literal terms of sections [2 — 102 and 2 — 209 of the Code of Civil Procedure] demonstrates that the legislature intended that more extensive contacts with a county are necessary to establish proper venue than are required when the issue is whether the defendant is subject to the jurisdiction of the courts of this State. ***.
We hold, therefore, that in order to establish that a defendant is doing business within a county for purposes of venue, quantitatively more business activity within the county must be demonstrated than where the question is whether the defendant has transacted any business within the State for purposes of service of process pursuant to section [2 — 209]. The defendant must, in short, be conducting its usual and customary business within the county in which venue is sought.” 67 Ill. 2d 321, 329.

The court then rejected the contention that B & O could be found to be doing business in Madison County on the basis of its sales manager’s solicitation of business in that county. “The long-standing rule in Illinois is that the mere solicitation of business is not ‘doing business’ for purposes of jurisdiction. ***. For venue purposes, mere solicitation of business within a county does not establish venue in that county.” 67 Ill. 2d 321, 333.

The court then considered the argument that the activities of B & O amounted to more than the mere solicitation of business in Madison County. Recognizing that the railroad’s district sales manager testified that he was “assigned” a territory that included Madison County, that he had specific accounts in that county and that he spent approximately three days per month therein, the court held that such activity was not sufficient to establish that the B & 0 was doing business in Madison County. “The record reveals that the only service provided by petitioner’s employee was merely incidental to the solicitation of shipping business.” 67 Ill. 2d 321, 334.

In Stambaugh v. International Harvester Co. (1984), 102 Ill. 2d 250, 464 N.E.2d 1011, the supreme court again addressed the “doing business” term in the venue statute. In Stambaugh, plaintiff filed a products liability action against defendant based on injuries suffered when an International Harvester tractor caught fire. A jury trial in St. Clair County resulted in plaintiff’s being awarded substantial damages. The supreme court reversed the verdict and remanded the case for transfer to a county of proper venue. The sole issue presented was whether International Harvester was “doing business” in St. Clair County.

The supreme court found that the appellate court had erred in

“considering the situation here to be different from that in Mo-sele. The nature of visits by Harvester personnel within St. Clair County was similar to the infrequent, but regular, visits in Mosele by B & O field representatives to Madison County. The defendant sold $2.6 million of its products to St. Clair County dealers in the 1976 fiscal year, but this is not dissimilar from the more than $10 million of business solicited in Madison County by B & O in a five-year period. Too, the sales of Harvester vehicles to St. Clair County dealers constituted approximately 5/10 Oths of 1% of its annual sales volume — an insignificant fraction of its total sales. It cannot be said that Harvester conducts its ‘usual and customary business within the county.’ [Citation.]
* * *
Sales by Harvester are on an FOB basis and are completed at its plants outside St. Clair County. Title is transferred to the dealer by issuance of a certificate of origin at the particular plant of manufacture. Harvester has no address or telephone within St. Clair County and pays no taxes there.” 102 Ill. 2d 250, 258-59.

The supreme court quoted from prior Illinois decisions which recognized that “proper venue is an important privilege” which is “conferred upon the defendant” and is to be given “great weight.” The Illinois venue statute is based upon “a principle of convenience” and is to be “liberally construed in order to effect rather than defeat a change of venue.” Finding that the accident there occurred and the plaintiff resided in Brown County, the court held:

“To uphold venue over the defendant in St. Clair County ‘would have the effect of negating the principle of convenience upon which section 5 of the [venue] Act is based’ and ‘would be to allow the institution of actions in locations with little connection with the defendant and with no connection with the activities which give rise to the suit.’ [Citation.] ***. The recognized ‘principle of convenience’ was not served by the filing of the action in a county which had no connection with the accident or the product and was not the residence of either party or of any material witness.
The record shows that the defendant has only an insignificant relationship with St. Clair County. Harvester does not design, manufacture, directly advertise, finance, or sell its products from within St. Clair County. We consider that the circuit court’s denial of the defendant’s motion to transfer venue from St. Clair County was an abuse of discretion [citation], and we remand for the entry of an order transferring the action to a proper venue.” 102 Ill. 2d 250, 262-63.

In the instant case, Moulis Corporation argues that its activities at the two Cook County boat shows demonstrate, at most, the mere solicitation of business and, as held in Mosele, the mere solicitation of business in a county does not establish venue there.

Plaintiffs answer that the level of activity at the Cook County boat shows demonstrates that Moulis operates “a complete retail sales operation” there, not merely the solicitation of business.

In our opinion, the Mosele and International Harvester decisions compel a determination that the corporation here is not “doing business” in Cook County for venue purposes. Notwithstanding plaintiffs’ assertions, we do not believe that the evidence reflects that the corporation is conducting its “usual and customary” business in Cook County via its boat show activities. While the corporation does solicit sales at the Cook County boat shows, and advertises in the Chicago Tribune newspaper, it appears that any resulting contract approval, financing, and deliveries are made outside of Cook County. In our opinion, such activities amount only to the solicitation of business, or services incidental thereto, and are not a proper basis for venue. (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88.) While plaintiffs urge that the business derived from the corporation’s presence at the Cook County boat shows is a “substantial” portion of its total income, the record does not support this claim.

Recognizing that venue is a “valuable privilege conferred upon the defendant” which is to be given “great weight,” we hold that the trial court erred in denying Moulis Corporation’s motion for a change of venue to McHenry County. Under the present facts we find that venue is proper in that county, and we remand this case for entry of an order transferring this cause to McHenry County.

Reversed and remanded with directions.

HARTMAN, P.J., and STAMOS, J., concur.

      The corporation asserts that venue would lie properly in either Lake or McHenry County. In the interest of judicial economy it requested transfer to McHenry County due to the pendency there of the companion case.