author: JUSTICE McGILLICUDDY

text:
    ANASTASIA SANCHEZ, Plaintiff-Appellee and Cross-Appellant, v. BOCK LAUNDRY MACHINE COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (3rd Division)
    No. 80-2597
    Opinion filed June 30, 1982.

      Peterson, Ross, Schloerb & Seidel, of Chicago (Lawrence X. Pusateri and Robert S. Milnikel, of counsel), for appellant.
    Richard J. Leamy, Jr., of Wiedner & McAuliffe, and William J. Harte, Ltd., both of Chicago, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Anastasia Sanchez, the plaintiff, brought this product liability action against Bock Laundry Machine Company (Bock), the defendant, to recover for injuries he suffered while operating a water extractor manufactured by the defendant. The plaintiff’s two-count complaint alleged negligence and strict tort liability. The plaintiff withdrew the negligence count before trial but was allowed to reinstate that count at the close of his case. The defendant made a motion for a directed verdict on both counts at the close of all the evidence. The trial court granted the defendant a directed verdict on the strict liability count but submitted the negligence count to the jury. The trial court entered judgment in the amount of $50,000 on the jury verdict for the plaintiff on the negligence count.

At the post-trial hearing, the defendant moved for judgment notwithstanding the verdict on the negligence count, and the plaintiff moved for a new trial on the issue of damages only. The trial court denied the motions, vacated the directed verdict ruling on the strict tort liability count, vacated the judgment entered on the jury verdict on the negligence count, and sua sponte ordered a new trial on all the issues. Leave to appeal was granted by this court pursuant to Supreme Court Rule 306 (73 Ill. 2d R. 306).

On appeal both parties argue that the order for a new trial on all the issues was improper and they contend that their post-trial motions should have been granted.

The plaintiff was injured in September 1974 while operating a water extractor at the Illinois Cleaners and Launderers in North Aurora, Illinois. A water extractor is used to pull water out of wet clothes that are placed in the extractor basket. The extractor spins at rates of speed of 1620 to 1710 revolutions per minute.

The plaintiff testified that he was 16 years old in 1974 and that he had worked at the cleaners for three days. He began training on the use of the extractor on the morning of the day he was injured. That afternoon he had put a bundle of wet clothes into the machine, closed the lid and moved the handle to the “on” position. Subsequently, he pushed the handle of the machine to the “off” position; and seconds later, he lifted the lid with his right hand while resting his left hand on top of the machine. The plaintiff did not know whether the basket inside the extractor was spinning when he lifted the lid. He could not hear the rotation of the basket and could not see whether the machine was still spinning when the lid was closed. The plaintiff testified that after he lifted the lid, something grabbed his fingers, twisted them and pulled his left hand into the machine. As a result of his injuries, the plaintiff’s left arm had to be amputated below the elbow.

John Clement, president of the defendant company, testified that the extractor that caused the plaintiff’s injury was manufactured by Bock in May 1969. He stated that the extractor was a top-loading machine and was activated by throwing the control handle in a clockwise fashion to the “on” position. In this position the handle extends over the lid of the extractor, the brake is released, and the basket begins to spin. The brake is applied by moving the control handle to the “off” position in a counterclockwise fashion. Clement testified that, after the brake is applied, the basket will continue to coast to a halt. He stated that the operator should not have been able to open the lid of the extractor to remove the clothes until the basket stopped rotating. Clement also stated that the extractor operator could determine that the basket was still spinning after the control handle was put in the “off” position by feeling the continued vibration of the machine. He said that the operator could see that the basket was still spinning by looking through a small hole, about an inch and a half wide, located on the lid.

Clement further testified that when the extractor left the Bock plant, it contained a properly functioning interlock safety device to prevent the lid from being opened while the basket was spinning. He stated that every machine was tested as it came off the assembly line to make sure the safety device was functioning properly. Clement further stated that the interlock safety device was designed to last the lifetime of a properly maintained extractor and should not have broken down absent undue force applied against the lid. Clement testified that the extractor also had a warning plate that stated: “For your safety, do not force the lid. Do not attempt to load or unload if the basket is spinning.” According to Clement, this warning was made for situations where attempts could be made to abuse the machine by exerting excessive force to open the lid of the machine while the basket is still spinning.

Clement testified that the extractor, with its interlocking safety device, was manufactured in compliance with industry standards for laundry machines. He stated that in 1969 it was not technologically feasible to create a warning light, buzzer or siren on the Bock extractor design to indicate that the basket was still in motion after the brake had been applied. Clement stated that additional electrical circuits would have been required and discussed the difficulty of developing a device that could sense the continued rotation of the basket. Clement admitted that a time release device could have been designed to keep the lid closed for a designated period after the brake had been applied but stated that the coasting time of the basket varied. In his opinion, the number of safety devices on a machine was not determinative of the safety of the machine as any of the devices could malfunction. Bock relied upon the interlock device as its safety feature and felt that that device was completely adequate to lock the extractor cover and to provide safety for the machine operator.

Jay Trexler, a consulting engineer, testified for the plaintiff. He stated that he examined the water extractor three days after the plaintiff was injured. The extractor appeared to be unaltered and in its original state. Trexler testified concerning the operation of that machine and stated that contrary to industry standards, the lid of the extractor could be raised 2M inches while the control handle was positioned over it. He testified that when the control handle was moved to the “off” position, the cover could be lifted all the way up while the basket coasted to a stop. According to Trexler, the basket did not stop rotating until about 25 or 26 seconds after the extractor control handle was turned to the “off” position. Trexler did not observe any time release or other device that would keep the lid from opening after the control handle was placed in the “off” position and while the basket continued to rotate. He stated that it was technologically feasible in 1969 to have installed a red light or warning light on the extractor to alert the operator that the basket was spinning after the control handle was placed in the “off” position. Trexler stated that, in his opinion, the extractor was unreasonably dangerous because it was possible to immediately open the cover while the basket was rotating at or near its operating speed after the control handle was placed in the “off” position. He stated that a time locking device, warning light or buzzer would have made the machine safe and not unreasonably dangerous.

On cross-examination, Trexler stated that he did not know whether the extractor had an interlock device and did not know whether such a device had been employed in its original manufactured condition. He stated that industry standards required interlocking devices and admitted that if the extractor contained such a device and if the device was functioning, the machine would have met the standard of safety that he felt was necessary.

In a product liability cause of action based on ordinary negligence, a plaintiff must show that a defendant owed him a duty of reasonable care and either failed to do something which a reasonably careful person would have done or did something which a reasonably careful person would not have done. (Kossifos v. Louden Machinery Co. (1974), 22 Ill. App. 3d 587, 317 N.E.2d 749.) The manufacturer of a product owes a duty to design the product so that it is reasonably safe for its intended use and for any reasonably foreseeable use (Johnson v. Amerco, Inc. (1980), 87 Ill. App. 3d 827, 409 N.E.2d 299; Murphy v. Cory Pump & Supply Co. (1964), 47 Ill. App. 2d 382, 197 N.E.2d 849) and is liable in tort for the negligent design of a product that imposes an unreasonable risk of harm upon the user (see Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307).

A manufacturer is liable under the theory of strict tort liability if the plaintiff proves that his injuries resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182; Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 396 N.E.2d 1241.) A product is unreasonably dangerous where it fails to perform in the manner reasonably expected in light of its nature and intended function (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401), and where the defect in the product subjects those exposed to it to an unreasonable risk of harm. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) An unreasonably dangerous design defect can be demonstrated by evidence that the product fails to conform to accepted design standards or by evidence of the availability or feasibility of alternative designs (Neal v. Whirl Air Flow Corp. (1976), 43 Ill. App. 3d 266, 356 N.E.2d 1173; Rivera v. Rockford Machine & Tool Co. (1971), 1 Ill. App. 3d 641, 274 N.E.2d 828). (Ebbert v. Vulcan Iron Works, Inc. (1980), 87 Ill. App. 3d 74, 409 N.E.2d 112.) The question of what is unreasonably dangerous is usually a jury question (Nelson v. Hydraulic Press Manufacturing Co. (1980), 84 Ill. App. 3d 41, 404 N.E.2d 1013), particularly where there is conflicting expert testimony. Ebbert v. Vulcan Iron Works, Inc.

In the case at bar, the plaintiff’s complaint alleged that the defendant negligently manufactured a water extractor that permitted access to a rotating basket and in failing to warn that the basket continued to spin after the machine was turned off. The plaintiff also contended that this condition and the absence of adequate safeguards made the extractor unreasonably dangerous. It was the defendant’s position that the water extractor was not negligently designed nor unreasonably dangerous because it was manufactured with an interlock device that prevented access to the basket while it continued to rotate after the machine’s power had been turned off. There also was a warning label affixed to the extractor at the time it left defendant’s factory. The defendant contended that the evidence at trial did not prove the plaintiff’s allegations and that it therefore was entitled to a directed verdict and judgment notwithstanding the verdict.

Motions for directed verdicts and judgments notwithstanding the verdicts should be granted only in those cases in which all of the evidence, when viewed most favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; see Ebbert v. Vulcan Iron Works, Inc.) In the instant case the trial court initially granted the defendant’s motion for a directed verdict on the strict tort liability count of the plaintiff’s complaint. We believe that ruling was correct since the plaintiff failed to prove that the water extractor was unreasonably dangerous and that the unreasonably dangerous condition existed at the time the extractor left the defendant’s control.

Witnesses presented by both parties testified that the interlock safety device described at trial met industry safety standards and that, if the device was functioning, the water extractor was not unreasonably dangerous. (Cf. Flores v. U.S. Industries, Inc. (1980), 81 Ill. App. 3d 944, 401 N.E.2d 979 (directed verdict proper where no testimony that product was unreasonably dangerous and where evidence showed that existent safety features performed same function as devices proposed by plaintiff).) Furthermore, while the plaintiff’s witness testified that the interlock safety device was not present during his examination of the extractor, which was subsequent to the time that the plaintiff was injured, the plaintiff presented no proof as to the condition of the extractor at the time it left the manufacturer’s control. The only evidence on that issue was presented when the president of the defendant company testified that all extractors were equipped with interlock devices and that all extractors were inspected and tested before they left Bock. Thus, all of the evidence, when viewed most favorably to the plaintiff, overwhelmingly favored the defendant so that no contrary verdict based on the evidence could ever stand. The trial court correctly granted the defendant’s motion for a directed verdict on the strict liability count at the close of all of the evidence, and it erred in vacating this ruling and in ordering a new trial on that count at the hearing on the post-trial motions.

For similar reasons, we believe the trial court should have entered judgment notwithstanding the verdict in favor of the defendant on the negligence count. The plaintiff’s negligence count was premised on allegations that the extractor was carelessly and negligently manufactured so that the operator would have access to the basket before it stopped rotating and that the manufacturer negligently failed to warn that the machine continued to spin after the control handle was placed in the “off” position. The plaintiff also contended at trial that the machine should have been equipped with other safety or warning devices such as a warning light, buzzer or timing device.

The evidence at trial, however, showed that the extractor was manufactured with an industry-required safety interlock device and was equipped with a plate warning against the loading or unloading of the basket while it continued to rotate. While the plaintiffs expert suggested alternative safety and warning devices, he conceded that the extractor, when equipped with a functioning safety interlock device, would not have allowed access to the rotating basket. Thus, the plaintiff’s premise for the defendant’s alleged negligence, allowing access to the rotating basket, was disproved. Since the plaintiff failed to prove that the defendant imposed an unreasonable risk of harm to the operator of the extractor or that the defendant made the extractor unreasonably unsafe for its intended and foreseeable use, the plaintiff was not entitled to a verdict on the negligence count. Therefore, the court should have granted the defendant’s motion for judgment notwithstanding the verdict; and the court erred in granting a new trial on the negligence count.

The final issue raised in this appeal concerns the sufficiency of the jury award. In View of our holdings that the plaintiff was not entitled to recover based on the liability theories he had presented, there is no need to rule on the issue of damages.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and judgment is entered for the defendant on both counts.

Reversed.

WHITE, P. J., and RIZZI, J., concur.

       The defendant also moved for a directed verdict on the negligence count stating that the trial court had never ruled on defendant’s motion for a directed verdict at the close of the evidence. Although the trial court stated that it was “holding off” ruling on the motion for a directed verdict on the negligence count, the court impliedly denied the motion by sending that issue to the jury.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    EDWARD M. PINSOF, Plaintiff-Appellant, v. OSCAR PINSOF et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-3110
    Opinion filed June 29, 1982.

      Arvey, Hodes, Costello & Burman, of Chicago (Nathan M. Cohen and Donald F. Spak, of counsel), for appellant.
    Foran, Wiss & Schultz, of Chicago (Richard G. Schultz, Nicholas J. Etten, and Stephen C. Voris, of counsel), for appellees Oscar Pinsof and Philip Pinsof.
    Antonow & Fink, of Chicago (William I. Goldberg and Alan P. Solow, of counsel), for appellee Sipi Metals Corp.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Edward Pinsof (Edward), brought suit against defendants, Sipi Metals Corporation (Sipi) and Oscar and Philip Pinsof (Pinsof defendants), seeking both equitable relief and money damages for breach of an alleged lifetime employment contract and for tortious interference with such contract. The trial court granted defendants’ motion to dismiss Edward’s complaint on the ground that it failed to state a cause of action and also granted Edward leave to file an amended complaint. Edward elected to stand upon his original complaint, however, and thereafter the order of dismissal was made final. Edward appeals raising for our review the issue of whether his complaint states a cause of action.

For the reasons which follow we affirm.

Sipi is owned and operated by the three Pinsof brothers, Edward, Oscar and Philip and their immediate families. Each of the brothers is an officer and director of the corporation, and Edward and his children collectively own in excess of one-third of the outstanding shares of Sipi’s common stock. On June 12, 1980, after 48 years of service to the company, Edward was removed by resolution of the Board of Directors from his positions as executive vice-president and assistant secretary. On August 1,1980, he filed a three count complaint against Sipi and the Pinsof defendants.

Count I alleged that it was the intention of the three brothers that each of them would be employed by Sipi for life. To support such an intention, Edward asserted that on December 16,1963, the parties to this litigation executed two documents: (1) a stock purchase agreement and (2) a death benefit agreement. Count I concluded that under these agreements defendants were powerless to terminate Edward’s employment and prayed for a judgment declaring that the documents executed on December 16 gave him employment for life; that the resolution of the board of directors of Sipi terminating Edward’s employment is of no force and effect; and that Edward be restored to his employment with all pay and benefits retroactive to the date of his termination.

The stock purchase agreement, attached to the complaint as Exhibit A, provides that if a Sipi shareholder intends to sell his Sipi shares to one other than his descendant, the seller must first offer to sell the stock to Sipi. This document further provides that when a shareholder offers his stock to Sipi, the corporation “shall purchase all such shares to the extent permitted by law.” The agreement also establishes both the method and the formula for determining the price which the corporation must pay for the shareholder’s stock and the procedure for effectuating its sale.

The death benefit agreement, attached to the complaint as Exhibit B, provides in pertinent part:

“AGREEMENT
THIS AGREEMENT made and entered into this 16th day of December, 1963, at Chicago, Illinois, by and between SIPI METALS CORP., an Illinois corporation (hereinafter designated as ‘Employer’) and EDWARD M. PINSOF (hereinafter designated as ‘Employee’).
WITNESSETH:
WHEREAS, Employee is employed by Employer and Employee has rendered and is now rendering valuable services for Employer; and
WHEREAS, it is deemed to be in the mutual best interests of the parties that such employment be continued in the future;
NOW, THEREFORE, in consideration of the past services rendered by Employee to Employer, and in consideration of Employee’s future services, the parties agree as follows:
1. Commencing on the first day of the month next succeeding Employee’s death and at monthly intervals thereafter, Employer will continue to pay 50$ of Employee’s salary as of the date of Employee’s death, to the individuals hereinafter designated, until a total of twenty-four (24) such payments has been made.
# # #
4. The payments hereunder are provided for the sole benefit of Employee’s wife, and Employee shall have no right or interest therein.
5. Anything herein contained to the contrary notwithstanding, no payments provided hereunder shall be made unless Employee is employed by Employer at the date of Employee’s death.”

Count II prayed for Edward’s restoration to his positions as executive vice-president and assistant secretary and for an injunction prohibiting defendants from interfering with his employment under his “Employment Agreement of December 16, 1963.” Count II incorporated those portions of count I which alleged the lifetime employment contract predicated upon the stock purchase agreement and the death benefit agreement. Edward asserted that his employment was an integral element of his stock ownership, and because Sipi was engaged in the business of trading and selling precious and common metals, a business fraught with risk, the exercise of his judgment in Sipi’s daily operations was vital to the protection of his interest in the company.

Count III sought $500,000 compensatory damages and $200,000 punitive damages and also incorporated the allegations of count I which asserted the existence of a lifetime employment contract. Edward averred that while negotiating with his brothers for the sale of his Sipi stock, the Pinsof defendants conspired between themselves to terminate his employment “so as to impose upon [Edward] terms and conditions advantageous to defendants and onerous and prejudicial to [Edward] in connection with the proposed purchase of [Edward’s] shares of Sipi.”

Edward contends that the trial court erred in dismissing his complaint. In this court he maintains that the allegations in counts I and II of his complaint state a cause of action for either breach of a lifetime employment contract or wrongful discharge of an “at will” employee.

In deciding whether Edward’s complaint states a cause of action we must accept as true all facts properly pleaded as well as all reasonable inferences that can be drawn from such facts. (Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 371 N.E.2d 173.) Of course, conclusions unsupported by allegations of fact should be disregarded. (Kuch & Watson, Inc. v. Woodman (1975), 29 Ill. App. 3d 638, 331 N.E.2d 350.) Exhibits attached to the complaint become part of the pleadings, and facts stated in such exhibits are considered as having been alleged in the complaint. (Ford.) Where, as here, the exhibits form the basis of the complaint, the exhibits control, and a motion to dismiss does not admit allegations in the complaint which are in conflict with facts disclosed by the exhibits. Sangamon County Fair & Agricultural Association v. Stanard (1956), 9 Ill. 2d 267, 137 N.E.2d 487; Fowley v. Braden (1954), 4 Ill. 2d 355, 122 N.E.2d 559.

Edward’s first argument in support of his contention that counts I and II state a cause of action for breach of his alleged lifetime employment contract is that the death benefit agreement, standing alone, manifests an intention by the parties to grant him lifetime employment, and when viewed in the context of the “surrounding circumstances,” the death benefit agreement constitutes such a contract.

We are not persuaded by Edward’s interpretation of the parties’ intention in executing the death benefit agreement. He concedes that the document lacks provisions one might expect to find in a written employment agreement and relies instead on language in the introductory paragraphs which states that the document was executed in part “in consideration of Employee’s [Edward’s] future services.” In our opinion this language does not evince an intention to enter into a commitment for lifetime employment. At most it is indicative of the reasonable anticipation of the parties that Edward’s employment might continue for some unspecified period in the future.

Reading beyond the introductory paragraphs we find that paragraph five of the death benefit agreement appears to rebut Edward’s contention here. This paragraph sets forth an express condition precedent that “no payments provided hereunder shall be made unless Employee is employed by Employer at the date of Employee’s death.” (Emphasis added.) This provision renders the payment of the death benefit contingent upon Edward’s being in the employ of Sipi at the time of his death. Certainly paragraph five contemplates the possibility that Edward might not be employed by Sipi at the date of his death and, in our view, it refutes Edward’s argument that the death benefit agreement manifests the parties’ intention to contract for lifetime employment.

Edward next contends that the parties’ intention to contract for lifetime employment was further demonstrated by the simultaneous execution of the death benefit and stock purchase agreements. He asserts that his agreement to place restraints on the disposition of his shares of stock supplied “additional consideration” in return for a lifetime employment contract.

Edward’s attempt to impute an intention to contract for lifetime employment into the execution of a stock purchase agreement seems farfetched. This type of agreement is common among shareholders of close corporations such as Sipi. They serve many purposes including that of providing a market for the seller (in this case Edward) of shares, and they preserve ownership of the corporation within the family. This document is, in our opinion, unambiguous, and it does not purport to relate to an obligation for lifetime employment. Accordingly, we find that execution of the stock purchase agreement does not constitute evidence of the parties’ intention to contract for lifetime employment.

Edward next urges us to construe his employment relationship as one terminable “at will,” and he argues that, if liberally construed, his complaint states a cause of action for the wrongful discharge of an at-will employee.

While it is well established that “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876), our analysis of the complaint leads us to conclude that none of the counts “reasonably informs” defendants of the nature of a claim based on an at will employment relationship. In fact, the nature of Edward’s claim, as embodied in his complaint, is the opposite of an at-will employment relationship. An at-will employee is terminable at any time. Edward alleges, however, that under this lifetime employment agreement, the defendants are powerless to terminate his employment. Such an allegation is wholly inconsistent with a cause of action based on an at-will employment relationship. As Edward points out, to withstand a motion to dismiss, a complaint need only minimally allege facts which set forth the essential elements of the cause of action. But Edward’s failure to do so cannot be remedied by a liberal construction of the pleading or by argument. (Donehue v. Duvall (1968), 41 Ill. 2d 377, 381, 243 N.E.2d 222; Fanning v. LeMay (1967), 38 Ill. 2d 209, 212, 230 N.E.2d 183.) At minimum it would seem that a cause of action for the wrongful discharge of an at-will employee should contain an allegation that the employment relationship is in fact one at will. Since the complaint here did not contain such an allegation, we hold that Edward’s complaint fails to state a cause of action for the wrongful discharge of an at-will employee.

Edward devotes a substantial portion of his brief to argument on the merits of his wrongful discharge claim allegedly set forth in count II. He argues in the alternative that either the tort of “retaliatory discharge” should be expanded to encompass the facts of the instant case or that we should impose a restriction on an employer’s right to discharge an at-will employee: namely, that we imply a contractual duty not to terminate at will employees unless in good faith. Before the merits of a cause can be considered, a complaint must state a cause of action. Since we find that counts I and II of the complaint fail to state a cause of action, the merits of this portion of Edward’s case, although capably argued, are not before us for consideration. See Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 432 N.E.2d 1188.

Edward’s final contention is that his count III establishes a prima facie case for tortious interference with his employment contract with Sipi. We disagree.

The theory of the tort of interference is that the law draws a line beyond which no member of the community may go in intentionally intermeddling with the business affairs of others. (City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 362, 300 N.E.2d 331.) In order to state a cause of action for the tort of interference, a plaintiff must allege:

“the existence of a valid business relationship (not necessarily evidenced by an enforceable-contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted.” 13 Ill. App. 3d 359, 363.

The thrust of count III of Edward’s complaint is that the Pinsof defendants “conspired and agreed to terminate plaintiff’s employment” even though “defendants full well knew that plaintiff had an agreement for lifetime employment with Sipi.” The alleged purpose of the conspiracy was “to bring pressure upon [Edward] so as to impose upon [him] terms and conditions advantageous to defendants and onerous and prejudicial to [Edward] in connection with the proposed purchase of [his] shares of Sipi.”

To state a cause of action for tortious interference, it was incumbent upon Edward to allege in his complaint some valid business relationship between himself and Sipi (City of Rock Falls). The only business relationship he so alleged was that of lifetime employment predicated upon a written contract. Since we have already determined that the exhibits attached to the complaint negate the existence of such a contract, we conclude that count III lacks an allegation of a cognizable business relationship for purposes of tortious interference.

We also note that the stock purpose agreement rebuts Edward’s assertion that the Pinsof defendants terminated his employment so as to undermine the sale price of his stock. Paragraph 4(a) of the stock purchase agreement provides that no original stockholder of Sipi, including Edward, may sell or transfer his Sipi stock (with certain exceptions not relevant here) unless all of that shareholder’s stock is first offered for sale to the corporation. Whenever a shareholder offers his stock to Sipi, paragraph 4(b) requires Sipi to purchase all of the stock offered by that shareholder. The price which Sipi must pay for a shareholder’s stock is independently established in accordance with a predetermined formula.

It is apparent from this agreement that if Edward wished to sell his stock, he must offer it to the corporation, which within 10 days must purchase all such shares. Under such an agreement the Pinsof defendants would be powerless to influence the purchase price of Edward’s stock. Accordingly, Edward’s allegation in his complaint that the Pinsof defendants conspired to undermine the sale price of his stock is also negated by his exhibits, and we find, therefore, that count III was properly dismissed.

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

Affirmed.

STAMOS, P. J., and DOWNING, J., concur.

       Edward refers to this document as an “employment agreement” while defendants call it an “annuity agreement.” The document itself is entitled “Agreement.” For the sake of clarity we will refer to it as a death benefit agreement.

        We note also that at oral argument Edward conceded that each of the brothers executed both a stock purchase agreement and a death benefit agreement.

       Paragraph 4(a) provides as follows:
      “4. Lifetime Transfers by Original Shareholders.

      (a) Subject to the provisions of subparagraph 4(b), paragraph 8 and subparagraph 9(b) (ii), no Original Shareholder during his lifetime shall voluntarily sell, transfer, assign or encumber his Sipi shares or any part thereof, nor shall any involuntary transfer during his lifetime be effective for any purpose, including, but not limited to a transfer by judicial order, legal process, execution, attachment, enforcement of a pledge, trust or encumbrance or sale under any of them, unless all Sipi shares owned by such Original Shareholder shall first have been offered for sale to the Corporation in the manner hereinafter provided.”

       Paragraph 4(b) provides as follows:
      “(b) An Original Shareholder may at any time offer all, but not less than all, of his Sipi shares for sale to the Corporation at a price equal to 100% of the book value of such shares. Wherever used in this Agreement, the term ‘book value’ shall be defined as provided in paragraph 12. Such offer shall be made to the Corporation in writing with a copy to the Escrowee. The purchase price for such shares shall be payable in the manner provided in paragraph 9. Within ten (10) days after receipt of such offer, the Corporation shall purchase all such shares to the extent permitted by law.”


author: JUSTICE HARTMAN

text:
      In re ESTATE OF ALEXANDER SMITH, Deceased.—(GEORGE R. SMITH et al., Plaintiffs and Petitioners-Appellants, v. ALFRED PATERSON, a/k/a Alfred Patterson et al., Defendants and Respondents-Appellees.)
    First District (2nd Division)
    No. 81-2211
    Opinion filed June 29, 1982.

      Francis B. Stine and Marvin E. Beckman, both of Chicago, for appellants.
    McLaughlin, Kinser & Bryant, of Chicago (Harry L. Kinser and Edward J. McLaughlin, of counsel), for appellee George S. Lyon.
    Mary Ann Hartwick, of Overholser, Flannery & Hoover, of Libertyville, for appellees Juanetta Turner, George Smith, and Janet Croonborg.
   JUSTICE HARTMAN

delivered the opinion of the court:

Alexander Smith (“Alexander” or “testator”) died on July 14, 1980, leaving no children or surviving wife. His will, drawn on May 22, 1979, was admitted to probate on October 8, 1980. In supplementary proceedings, plaintiffs, certain of the testator’s nieces and nephews, filed a two-count petition, the first seeking a construction of the will, and the second seeking to set aside admission of the will to probate as alternative relief. Following argument on a motion to dismiss, count I was dismissed. A motion for rehearing was also denied. Both orders contain appropriate Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) language. It is from the dismissal of count I and denial of the post-trial motion that plaintiffs appeal.

Alexander had two brothers, George Smith (George) and John Smith (John), as well as a sister, Mary Lyon (Mary), each of whom were designated legatees under Alexander’s will. John died on July 4, 1978, about 11 months prior to the making of Alexander’s will. George and Mary died after Alexander’s death. Alexander also had three other sisters who predeceased him, none of whom are mentioned in Alexander’s will, nor their survivors.

Plaintiffs are the heirs, children and widow, of John. Defendants, inter alios, are: George Lyon, individually and as executor of the estate of Mary; and Juanetta Turner, George Smith and Janet Croonborg, the children of George.

The issue raised is whether the circuit court erred in finding no ambiguity in the terms of the will so as to allow the admission of extrinsic evidence.

Alexander’s will, attached to plaintiffs’ petition as Exhibit A, provides, inter alia:

“THIRD: All the residue of my estate, wherever situated, including lapsed legacies and devises, but expressly excluding any property over which I may have power of appointment at my death, I give to the following named individuals in equal shares, share and share alike, or to the survivor of them:
TO — GEORGE SMITH, my brother TO — JOHN SMITH, my brother TO — MARY LYON, my sister.”(Emphasis added.)

Plaintiffs allege that when Alexander executed his will on May 22, 1979, John’s death on July 4, 1978, was well known to him, having attended John’s funeral and having discussed his passing with others. Plaintiffs’ petition further maintains that at all relevant times, it was the testator’s intention that John’s survivors, themselves, inherit one-third of the residue of Alexander’s estate. Plaintiffs assert that the will is susceptible to different interpretations; however, they have not been included as legatees under the will in the executor Pioneer Bank’s application for “letters.” Plaintiffs pray that the court construe the will and declare it was the intention of the testator that they take one-third of the residue of the estate.

Defendant George S. Lyon, individually and as executor-dative of the estate of Mary Lyon, deceased, and defendants Juanetta Turner, George Smith and Janet Croonborg (Turner), brought motions to dismiss the petition on the grounds that because the will is clear and unambiguous, circumstances surrounding the creation of the will should therefore not be introduced to create a different intention than that therein expressed. In plaintiffs’ memoranda, they interpret “survivor of them” so to allow them to take John’s share and claim that the naming in the will of a dead person created an ambiguity sufficient to allow evidence of circumstances surrounding execution thereof. Defendants argue that such phrase must be considered to mean that the survivor or survivors of the three legatees listed, i.e., George, John or Mary, should take. Also within their memoranda, plaintiffs offer to prove that: the testator had only a “common school education”; he was a riveter all his life; he, John and John’s family (plaintiffs) were very close; and, after John’s death, the testator gave John, Jr., the key to his “safety box” and a copy of his will.

After the circuit court granted defendants’ motion to dismiss count I of the petition to construe the will, plaintiffs moved for a rehearing and offered additional proof, to wit, that: the testator had three sisters who predeceased the making of the will, each leaving survivors, who were not mentioned in the will; Herbert Schnitzer, an attorney and trust officer of Pioneer Bank & Trust Co., was asked by the testator on May 22, 1979, to retype an old will of his upon which instrument the testator had made changes by hand; Schnitzer had his secretary retype the old will, which was subsequently executed by the testator; and Schnitzer did not give the testator legal advice regarding the will. The motion for rehearing and offer of proof were denied. The original will, apparently, could not be found.

Plaintiffs concede on appeal that the phrase “the survivor of them” normally has a settled legal meaning, namely, the last living person or persons of those named. They contend in the instant case, however, that extrinsic evidence should be admitted which would show that an ambiguity exists that should be resolved in their favor. The ambiguity for which they contend is that because John was known by Alexander to have died when he executed his will, it is unlikely that the testator meant the phrase to have the settled legal definition since John could not, perforce, be a “survivor” under that definition. Plaintiffs maintain that the testator thus meant for John’s survivors, his wife and children, to take under the will. Plaintiffs rely upon In re Barr’s Estate (1846), 2 Pa. 428.

In In re Barr’s Estate, the testator left the residue of his estate “equally divided among my brothers and sisters, which I shall hereinafter mention, or their survivors.” Seven brothers and sisters were then listed, of which three were dead when the will was executed. They had died in the village in which the testator resided, and he knew of their deaths when he made his will. The question was whether the issue of the deceased brothers and sisters would take under the will. The Pennsylvania court, acknowledging that “in a strict legal sense, the word survivor means the longest liver of two joint-tenants, or of any two persons joined in the right of a thing; he that remains alive after that the other be dead” (2 Pa. St. 428, 431), nevertheless held that the heirs should take their parents’ shares. The court looked to the testator’s intentions, which it inferred from the facts. It noted that the will was “evidently” written by someone unfamiliar with legal terminology, and the testator knew some of his siblings were dead and that they had families. The court also appears to have relied on the fact that elsewhere in the will the testator used the word “survivor” to mean “successor”, to wit: “* ° ° he nominates Thomas Houston * * * or the survivor of him, to be his executor.” (2 Pa. 428, 430, 431.) Plaintiffs argue from the foregoing that in the instant case, “or the survivor of them” should be interpreted in the same manner as “or their survivors” was interpreted in In re Barrs Estate.

Plaintiffs also rely upon certain language in the second clause of the instant will, which provides:

“SECOND: (a) I give ONE THOUSAND DOLLARS ($1,000.00) to my deceased wife’s niece, BRENDA WINK-WORTH, if she survives me;
(b) I give ONE THOUSAND DOLLARS ($1,000.00) to my deceased wife’s niece, PEGGY DENNINGTON, if she survives me;
(c) I give FIVE THOUSAND DOLLARS ($5,000.00) to my brother, GEORGE SMITH, if he survives me;
(d) I give FIVE THOUSAND DOLLARS ($5,000.00) to my sister, MARY LYON, if she survives me.” (Emphasis added.)

The foregoing bequests and language reveal that where “if she [or he] survives me” is the language used, no ambiguity exists, in contrast to “or the survivor of them.” (Emphasis added.) Further, if Alexander intended that only Mary and George should “share and share alike,” it would have been unnecessary for him to have made additional specific bequests to them of $5,000 each, since each would have received that same $5,000 as residuary legatees. They conclude, therefore, that the testator’s intent was to give Mary and George $5,000 more than John’s wife and children under the residuary clause.

The cardinal rule of will construction, to which all other rules yield, is the ascertainment of a testator’s intention from the will itself. (Vollmer v. McGowan (1951), 409 Ill. 306, 99 N.E.2d 337.) That intention must be drawn from the will language where it has a settled legal meaning; in the absence of an ambiguity or uncertainty, surrounding circumstances may not be considered so as to impart a meaning other than that expressed in the will. (Mitchell v. Snyder (1949), 402 Ill. 279, 83 N.E.2d 680.) The intention of the testator is determined by ascertaining the actual meaning of the words used in the will before applying the rules of construction. (Hoge v. Hoge (1959), 17 Ill. 2d 209, 161 N.E.2d 117.) Applying the foregoing rules, the will at bar reveals an ambiguity which necessitates inquiry beyond the four corners of the will itself, namely, the provisions of the second and third clauses when read together.

In the third clause, John is named a residuary legatee along with brother George and sister Mary, although Alexander knew that John had died almost 11 months prior to the time the will was written, having attended his funeral. In the second clause, specific bequests of $5,000 were made to George and Mary, in addition to two of Alexander’s wife’s nieces, if they survive him. Since George and Mary as residuary legatees would have inherited the $5,000 that each was specifically given, the reason for the language “or to the survivor of them,” as applied to John, who was already dead at the time the will was written, creates an ambiguity which must be resolved in order to ascertain the true intent of Alexander. Plaintiffs suggest that the language could have been utilized for only two reasons: mistake or deliberate use to convey a different meaning because it would not be rational to think Alexander would name a dead person. Defendants submit still other possible reasons: that Alexander’s prior will contained language which he found to be ambiguous and which he sought to correct; and that there was no need to change the language in order to permit the surviving brother and sister to take thereunder.

The fact that Alexander, according to plaintiffs’ offer of proof, took his original will, apparently drafted by a lawyer, amended and interlined some of the language and had it retyped by one of the bank’s employees with no legal advice given in regard to the changes, supports the thesis that Alexander may have written into his will language which did not truly express his intent, or may have left language earlier expressing an intent in the original will, which could not have been executed under the circumstances present at the time the will was written. “Or the survivor of them,” to a layman unschooled in “legalese,” could mean those persons surviving the individuals named as well as the settled legal meaning that only those named could be considered survivors. (Finnerty v. Neary (1956), 9 Ill. 2d 495, 503, 138 N.E.2d 540; In re Barr’s Estate.) The original will, not having been found, can be of no assistance. Whether, in copying the legal terminology in the original will, Alexander intended the legal meaning or lay meaning of those words, cannot be deemed clear and unambiguous within the milieu in which they are found. An inquiry into the surrounding circumstances should have been undertaken in order to ascertain Alexander’s true intent. See, e.g., Caracci v. Lillard (1955), 7 Ill. 2d 382, 387-88, 130 N.E.2d 514; Appleton v. Rea (1945), 389 Ill. 222, 227-28, 58 N.E.2d 854; In re Estate of Russell (1968), 69 Cal. 2d 200, 208-09, 444 P.2d 353, 359, 70 Cal. Rptr. 561, 567.

Defendants rely upon Waugh v. Poiron (1942), 315 Ill. App. 78, 42 N.E.2d 138, and In re Estate of Carlson (1976), 39 Ill. App. 3d 281, 350 N.E.2d 306, to support their contention that the phrase “or to the survivor of them” has a clear and unambiguous meaning. In Waugh the testator devised the residue of her estate to her brother, two sisters and a niece, “share and share alike, and to the survivor of them.” Unlike the facts in the case sub judice, the brother and two sisters died after the will was executed, but prior to the death of the testator. As in the instant case, the children of the deceased legatees argued they were entitled to what would have been their parents’ share of the estate had they been alive at the time of the decease of the testator. The appellate court ruled that where language in a will is unambiguous, no evidence need be taken, and that none was taken or offered in that case. The court declared that “survivor of them” signified “the longest liver of two or more persons,” or the niece, who lived longer than the other three legatees and was the only one living when the testator died. In further support of its decision, the court observed that the will on its face bore evidence that it was prepared by a lawyer, and that every paragraph thereof showed careful discrimination as to the blood relatives of the testator. As plaintiffs contend, the Waugh court cited and distinguished In re Barrs Estate thus (315 Ill. App. 78, 83): “This case is far different. This will is not clumsily drawn. It bears on its face proof that the draftsman knew legal terminology. It makes no bequests to people dead at the time of its execution.” (Emphasis added.)

In In re Estate of Carlson the facts are significantly similar to Waugh, except that in Carlson a gift of the residue of the estate was made to the testator’s niece and nephew and nephew of his wife, “or their survivors or survivor, share and share alike.” The appellate court held this language was unambiguous and had the same meaning as “survivor of them” had in Waugh; therefore, the child of a nephew deceased at the testator’s death was not entitled to the nephew’s share. No designated legatee was deceased in In re Estate of Carlson at the time the will was written, as is the case in the present will.

Defendant Lyon argues that section 4 — 11(b) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 4 — 11(b)) supports affirmance, as it provides that if a gift has been made to a class, the members of the class living when the legacy took effect take a deceased member’s share. A gift made to named beneficiaries, particularly when devised in equal shares, as in this case, is prima facie a gift to them as individuals, notwithstanding their designation in general terms by their relationship to the testator, and is not regarded as a class gift. (See O’Connell v. Gaffney (1962), 23 Ill. 2d 611, 616-17, 179 N.E.2d 647.) Further, as plaintiffs argue, the gift in question could not have been intended as a class gift, because one of the named class members, John, was already dead when named in the will. The class then would have consisted only of George and Mary. The antilapse provisions would not then apply since Alexander had already provided for the contingency of the death of one or more of the beneficiaries. In Waugh, the court noted that the bequest at issue there also was not a class gift on similar grounds. Waugh v. Poiron (1942), 315 Ill. App. 78, 82.

For the reasons set forth above, the judgment of the circuit court dismissing count I of plaintiffs’ petition must be reversed and the cause remanded with directions to reinstate said count and consider such evidence as may be adduced by the parties in support of their respective positions.

Reversed and remanded.

STAMOS, P. J., and PERLIN, J., concur.

       According to plaintiffs, Mary Lyon died August 5, 1980, and George Smith died August 18,1980.


author: JUSTICE McNAMARA

text:
      In re ANNEXATION TO CITY OF PROSPECT HEIGHTS.—(THE VILLAGE OF ARLINGTON HEIGHTS, Objector-Appellant, v. THE CITY OF PROSPECT HEIGHTS, Petitioner-Appellee.)
    First District (3rd Division)
    Nos. 81-2202, 81-2989 cons.
    Opinion filed June 30, 1982.

      Jack M. Siegel, of Chicago, for appellant.
    Friedman & Koven, of Chicago (Donald J. Kreger and Kenneth C. Shepro, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Objector, Village of Arlington Heights, appeals from an order of the trial court overruling its objections to an annexation ordinance adopted by petitioner, City of Prospect Heights, and finding the ordinance to be valid. Arlington Heights also appeals from a second order declaring the territory to be annexed to Prospect Heights. On appeal Arlington Heights contends that the annexation was invalid because Prospect Heights failed to comply strictly with statutory requirements. Specifically, Arlington Heights argues that the ordinance was not validly adopted due to procedural defects and because of a prior pending petition in the circuit court; that the legal description was materially defective; that the territory was not contiguous; and that the notice was not properly given.

This proceeding was commenced pursuant to section 7 — 1—2 of the Illinois Municipal Code. (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—2.) On February 6, 1980, an ordinance adopted by Prospect Heights on January 21, 1980, expressing its desire to annex certain described territory was filed with the clerk of the circuit court. A map of the territory proposed to be annexed was attached as part of the ordinance. The entire parcel comprised 74 acres and had common boundaries with both municipalities.

On February 8,1980, the trial court set the date of March 4,1980, for hearing on the validity of the ordinance. On February 14, 1980, notices were sent to the township trustees and highway commissioner. On February 28, 1980, Arlington Heights filed objections to the validity of the ordinance. After a hearing, on August 17, 1981, the trial court overruled the objections, determined the ordinance to be valid, and ordered that the question of annexation be submitted to the electors of the territory. Following an election in which a majority of the electors approved the annexation, the trial court, on November 12, 1981, entered an order declaring the described territory annexed to Prospect Heights.

Arlington Heights initially contends that the ordinance seeking annexation was invalid because the city council of Prospect Heights failed to follow its own procedural rules. Section 35.1 of the ordinance establishing rules of order and procedure for the council provides:

“Every ordinance shall be read when introduced and lie over until the next regular meeting of the City Council provided that this rule may be suspended and an ordinance read and passed at the same meeting of the Council at which it is introduced only by the concurrence of two-thirds of all the Aldermen elected, by a roll call vote.”

In the present case a motion to waive the first reading of the ordinance was passed unanimously by voice vote. The ordinance was then passed at the same meeting by a two-thirds roll call vote. Arlington Heights argues that the council should have held a roll call vote specifically on the issue of suspension of the rules and that the roll call vote passing the ordinance was insufficient to suspend the rule and therefore ineffective to pass the ordinance.

The language of this rule is somewhat ambiguous. We find, however, that a more reasonable reading would require only one roll call vote both to suspend the first reading rule and pass the ordinance. Where statutory language is ambiguous, a court may look to the nature of the act and to the reason and necessity for its enactment. (Lee Lumber & Building Material Corp. v. Department of Revenue (1979), 79 Ill. App. 3d 1015, 398 N.E.2d 933.) A single roll call vote would accomplish the obvious purpose of the rule by insuring that an ordinance would lie over unless two-thirds of the aldermen were in favor of passing it at the same meeting. We hold that the council followed its procedural rules.

Arlington Heights next contends that the ordinance was invalid because a petition for annexation of substantially the same territory was pending at the time this ordinance was adopted. The pending petition, to which Arlington Heights refers, filed by the landowners and electors of the territory in question, also sought annexation to Prospect Heights. The petition was dismissed by court order on the morning of February 6,1980, prior to the filing of the present ordinance.

Arlington Heights correctly asserts that no annexation proceeding may be initiated legally where an annexation petition is pending with regard to the same territory. (City of Countryside v. Village of LaGrange (1962), 24 Ill. 2d 163, 180 N.E.2d 488; City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 150 N.E.2d 178.) An annexation proceeding commenced pursuant to section 7 — 1—2, by the adoption of an ordinance expressing a desire to annex, is not considered to be “initiated” for purposes of this rule, however, until the ordinance is filed in the circuit court. (Village of LaGrange; Touchette.) Since the ordinance in the present case was not filed until after the prior petition was dismissed, the annexation proceeding was legally initiated.

Arlington Heights’ reliance on Village of Oak Lawn v. Village of Bridgeview (1968), 92 Ill. App. 2d 284, 236 N.E.2d 293, and In re Incorporation of Village of Capitol Heights (1968), 41 Ill. 2d 256, 242 N.E.2d 247, is misplaced. Although the court in Village of Oak Lawn found the ordinance to be invalid due to the pendency of a prior petition, the ordinance was of an entirely different nature than the ordinance in the present case. That ordinance was adopted under section 7 — 1—8 (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—8), which provides for the initiation of annexation proceedings by the filing of a petition signed by the landowners of the territory sought to be annexed. Hence the ordinance subsequently adopted by the annexing entity serves to finalize the annexation process. Similarly, in Village of Capitol Heights the ordinance in question actually effected the annexation. The present case is obviously distinguishable since the ordinance in question, adopted pursuant to section 7 — 1—2, merely expressed Prospect Heights’ desire to annex the property and thereby constituted only the first step in the annexation proceedings.

We next address Arlington Heights’ argument that the legal description of the territory sought to be annexed as set forth in the ordinance was materially defective. (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—4.) Arlington Heights maintains further that the trial court’s attempt to amend the ordinance to correct one of the errors was not authorized by statute.

Although section 7 — 1—4 requires dismissal of an annexation ordinance where the legal description contained therein is materially defective, such descriptions are not construed with the same strictness as those contained in deeds and contracts. If the ordinance and accompanying map, when viewed together, fairly apprise the public of the property involved, the description will be considered proper. People ex rel. Cameron v. New (1905), 214 Ill. 287, 73 N.E. 362; People ex rel. Rogers v. City of Park Ridge (1967), 86 Ill. App. 2d 82, 230 N.E.2d 289.

There were two errors in the legal description in question. The first error was contained in the following language:

“* e » and along the North line of Lot 9 in Block 2 of said subdivision to the Northwest corner of said Lot 9; Thence Southerly along the West line of said Lot 20 the North line of Oakton Street: * 0

The trial court granted Prospect Heights’ motion to amend this part of the legal description to correct a typographical error by deleting “20” and substituting the word “to.” When the language in question is considered with reference to the map, it is apparent that the “said lot” in the last portion of the quoted language refers to lot 9. Prospect Heights’ error in typing “20” rather than “to” was merely a typographical error, too insignificant to prevent the public from being fairly apprised as to what territory was involved. It was within the trial court’s discretion to amend the ordinance to correct this nonmaterial error. People ex rel. Magnuson v. Kramer (1961), 21 Ill. 2d 392, 172 N.E.2d 757.

The second error involved the omission of a call from one paragraph of the legal description. The relevant portion of that description is as follows:

“Thence Northerly along said East line to the South line of the Northeast quarter of the Northeast quarter of the Southeast quarter of said Section 20;
Thence Westerly along said South line to the West line of East half of said Northeast quarter of Northeast quarter of Southeast quarter; Thence Northerly along said West line to the South line of the North 15 feet of said Northeast quarter of Northeast quarter of Southeast quarter;
Thence Westerly along said South line to the West line of the East half of the West half of said Northeast quarter [of Northeast quarter] of Southeast quarter.”

Curtis Franklyn, an employee of Arlington Heights, and Robert Carlson, a land surveyor, both testified that if the legal description were followed precisely it would be impossible to come up with a totally enclosed parcel of land. Relying on People ex rel. Shrontz v. Astle (1929), 337 Ill. 253, 169 N.E.185, Arlington Heights argues that this defect thereby invalidated the ordinance. The Astle case involved a legal description contained in a court order organizing a district. As here, the boundaries did not meet to enclose a parcel of land completely, and the court held that where a legal description contains a patent ambiguity, the uncertainty in the description cannot be cured by extrinsic evidence. Unlike the present case, however, no map was involved.

In the present case both witnesses testified that when the map and legal description were considered together it was obvious that the call “Northeast quarter” had been erroneously omitted from the language in question. In a letter, dated August 6, 1980, Franklyn had previously advised Arlington Heights of both the error and the missing call. When the correct call is inserted, the ordinance accurately describes the parcel of land sought to be annexed. We therefore hold that the ordinance fairly apprised the public of the property involved and that the description was not materially defective.

Arlington Heights also contends that the property sought to be annexed is not contiguous to Prospect Heights as required by statute. (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—1.) Contiguity under the statute requires a touching or adjoining in a reasonably substantial sense. (People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 417 N.E.2d 125.) The line of demarcation between the reasonableness or unreasonableness of a touching must be drawn based on the facts of each case. (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 167 N.E.2d 169.) The finding of a trial court as to contiguity will not be disturbed unless it is manifestly against the weight of the evidence. In re Annexation to Village of Buffalo Grove (1970), 128 Ill. App. 2d 261, 261 N.E.2d 746.

A substantial common boundary between the territory to be annexed and the annexing entity is essential to a finding of contiguity. (People ex rel. County of St. Clair v. City of Belleville.) The 74 acres sought to be annexed in the present case touch Prospect Heights at three locations which measure 300 feet, 200 feet and 100 feet. Although there is no steadfast rule with regard to the minimum common boundary considered to be substantial, a common boundary of 360 feet has been deemed sufficient. (In re Annexation to Village of Green Oaks (1971), 1 Ill. App. 3d 773, 275 N.E.2d 462.) We agree with the trial court that the common boundary here was adequate to demonstrate contiguity.

Although the boundaries of the territory to be annexed in the present case are somewhat irregular, this in itself is not a fatal defect. (In re Annexation to Village of Glen Carbon (1970), 130 Ill. App. 2d 821, 264 N.E.2d 283; In re Annexation to Village of Buffalo Grove.) Nor is compactness required. (In re Annexation to Village of Glen Carbon.) There are no areas which merely corner another, nor are there mere strips of land or highway used as a subterfuge to reach outlying areas as were found in the cases relied on by Arlington Heights. The trial court’s finding that the territory to be annexed was contiguous to Prospect Heights was not against the manifest weight of the evidence.

Arlington Heights finally contends that Prospect Heights failed to serve timely notice on the Wheeling Township Commissioner of Highways and Wheeling Township Board of Town Auditors and that such failure rendered the ordinance void. The statute requires that when land proposed to be annexed includes a highway under the jurisdiction of any township, the township commissioner of highways and the board of town auditors shall be notified “before any court hearing or other action is taken for annexation.” (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—1.) It is undisputed that Prospect Heights did serve notice on the proper officials and that the notice was served prior to “any court hearing.” Arlington Heights argues, however, that Prospect Heights’ prior adoption of the initial ordinance expressing its desire to annex the property constituted “other action * * * taken for annexation” and that its failure to serve the notice in question prior to the adoption of the ordinance rendered it void.

This issue turns on what the legislature meant by “other action * * * taken for annexation.” The annexation proceedings here were undertaken pursuant to statute. (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—2.) That section provides for initiation of the annexation process either by filing a written petition signed by a majority of landowners in the territory to be annexed and a majority of the electors residing in such territory or, as here, by the enactment and filing of an ordinance by the corporate authorities expressing their desire to annex. Notice of the petition or ordinance must then be published, and a date is set for a court hearing. If the court finds that the petition or ordinance is valid, the court directs that the question of annexation be submitted either to the corporate authorities of the annexing municipality (if initiated by petition) or to the electors of the territory (if initiated by ordinance) for final action.

Section 7 — 1—2 is the only procedure for annexation under the act which requires a court hearing. Other sections provide for situations in which annexation proceedings may be initiated by petition (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—8), or by resolution (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—14), and finalized by adoption of an ordinance by the corporate authorities of the municipality to which annexation is sought; in certain circumstances annexation is accomplished by ordinance alone (Ill. Rev. Stat. 1979, ch. 24, par. 7 — 1—13). When the statute is considered as a whole it therefore becomes obvious that the legislature intended that the notice in question be given prior to the court hearing, as here in a section 7 — 1—2 annexation, and prior to “other action * * ° taken for annexation” in annexation procedures undertaken pursuant to some other section which requires no hearing. We reject Arlington Heights’ theory to the contrary, that “or other action” applies here and refers to the initial ordinance expressing a desire to annex. Such an interpretation would in effect require that the notice in question be given either before the initial ordinance or later, prior to the court hearing. Since Arlington Heights also argues that any time after adoption of the initial ordinance is too late, this interpretation of section 7 — 1—1 would render the phrase “before any court hearing” meaningless. Where a statute can be reasonably interpreted so as to give effect to all its provisions, a court will not adopt a strained reading which renders one part superfluous. Jarecki v. G. D. Searle & Co. (1961), 367 U.S. 303, 6 L. Ed. 2d 859, 81 S. Ct. 1579; People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171.

Arlington Heights’ reliance on People ex rel. County of St. Clair v. City of Belleville is misplaced. In that case, the court, in construing the same language present in this case, made it clear that the section 7 — 1—1 notice must be given prior to the court hearing for one type of annexation and prior to the city council meeting for the other type. County of St. Clair, however, involved a section 7 — 1—8 proceeding which has no provisions for a hearing. Thus notice was required prior to the city council meeting. Prospect Heights gave timely notice in the present case.

For the reasons stated, the orders of the circuit court of Cook County are affirmed.

Orders affirmed.

WHITE, P. J., and McGILLICUDDY, J., concur.


author: JUSTICE LINN

text:
      In re SPECIAL EDUCATION PLACEMENT OF STEVEN WALKER.—(STEVEN WALKER, A Minor, by Joyce Walker, his Mother and Next Friend, Plaintiff-Appellee v. JOSEPH CRONIN, Director of the Illinois Office of Education, et al., Defendants-Appellants.)
    First District (4th Division)
    No. 81-1269
    Opinion filed July 1, 1982.

      Brydges, Riseborough, Morris, Franke and Miller, of Chicago (John M. Collins, of counsel), for appellant Glenbrook High School.
    Matthew D. Cohen, of Canel, Aronson & Whitted, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Steven Walker, a resident of codefendant Glenbrook High School District No. 225, was an emotionally handicapped child, and by virtue of his handicap he was entitled to “a free appropriate public education” under the Education for All Handicapped Children Act (20 U.S.C. secs. 1401 et seq. (1976)); section 504 of the Rehabilitation Act of 1973 (29 U.S.C. sec. 794 (1976)); the education article of the Illinois Constitution (Ill. Const. 1970, art. X, sec. 1); the handicapped children article of the Illinois School Code (Ill. Rev. Stat. 1977, ch. 122, par. 14 — 1.01 et seq.); and the Rules and Regulations to Govern the Administration and Operation of Special Education in Illinois (Ill. Admin. Reg. 1979, art. I-XV) (hereinafter State Rules).

In June 1978, Steven’s mother, Joyce Walker, dissatisfied with the recommendation of School District 225’s multidisciplinary staff regarding Steven’s educational placement and program for the following school year, requested an impartial due process hearing to challenge the recommendation.

On November 9,1978, no due process hearing having been held, Mrs. Walker took the unilateral action of placing Steven at the Lakeside Children’s Center in Milwaukee, Wisconsin. The due process hearing was finally held on November 16,1978; the hearing officer recommended that Steven be placed at Lakeside and that defendant School District 225 assume full financial responsibility as provided by law. District 225 appealed the hearing officer’s decision to the Illinois Office of Education, which determined that District 225 could provide an appropriate education for Steven and consequently that he was not eligible for private placement.

Thereupon, Mrs. Walker brought an action on behalf of Steven in the circuit court of Cook County pursuant to section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267) seeking review of the decision of the Illinois Office of Education. The circuit court reversed the decision of the Illinois Office of Education, finding that, effective November 9, 1978, Steven was entitled to special education and related services in a residential school, and ordered District 225 to reimburse Mrs. Walker for the costs incurred by her to date, and thereafter to pay Lakeside for services rendered to Steven.

Defendants, the Illinois Office of Education and Glenbrook High School District 225, appeal the trial court’s order. The issues presented for review are (1) whether Mrs. Walker may recover from District 225 the cost of Steven’s placement at Lakeside despite the fact that she made the placement before an official determination that it was appropriate; (2) whether the services rendered to Steven at Lakeside were necessary special education and related services for which District 225 was required to pay; and (3) whether the trial court’s determination that Lakeside was an appropriate placement for Steven while District 225’s program was not appropriate is contrary to the manifest weight of the evidence. We affirm.

Background

Plaintiff, Steven Walker, a resident of codefendant School District 225, transferred in September 1976 to Northbrook Junior High School from an off-campus junior high school for severely emotionally disturbed students. He was placed in the eighth grade special education program for the 1976-77 school year, but was “mainstreamed” for four classes. He subsequently was removed from two of these classes because of behavior problems. In February 1977 the junior high and high school special education and guidance staffs conducted an annual review of Steven’s progress, and recommended that he be placed the following year in a half-day contained program for severely emotionally disturbed students with some mainstreaming and assistance from a social worker. Mrs. Walker was notified of this plan and assented to it.

During the second semester of the 1977-78 school year Steven’s grades began to drop and his behavior to deteriorate. In May 1978, Mrs. Walker informed District 225 that she wanted to seek a private residential placement for Steven. She had reached this decision in consultation with staff members of the Irene Josselyn Clinic, where Steven had received private treatment for five years. In a letter to District 225’s instructional supervisor of special education, Steven’s therapist, Lisa Cohen, expressed her concern about Steven’s “lack of psychological growth and development in the past two years.” Ms. Cohen stressed that “we are running out of time. Steve is already fifteen and few good residential treatment facilities will consider a child of this age. Certainly a year or two later 000 finding a suitable treatment facility would become virtually impossible.”

On May 23, 1978, Steven’s annual review was conducted by District 225, and Ms. Cohen attended. The participants in the review recommended that during 1978-79 Steven continue in a program consisting of a half day of mainstreaming and a half day of containment. In June 1978 Mrs. Walker contacted Steven’s principal to request an impartial due process hearing. On June 21 the instructional supervisor of special education at Glenbrook North wrote Mrs. Walker that she must address a written request for a due process hearing to the superintendent of District 225, Dr. Forrest Sheely; Glenbrook North’s program plans for Steven were enclosed.

The medical director of the Josselyn Clinic, Mary Giffin, M.D., subsequently wrote Dr. Sheely to advocate residential placement for Steven because of the severity of his emotional problems and his inability to function in any regular or special classroom setting. An independent report to District 225 by Robert Traisman, Ph.D., who had examined and evaluated Steven, recommended intensive psychotherapy and a stabilized environment for him.

On August 25, 1978, Mrs. Walker again requested a due process hearing, stating as grounds for the request: (1) her objection to the proposed special education placement; (2) failure of the District to consider evaluations by qualified outside personnel; and (3) failure of the District to comply with the State Rules in that, among other things, it failed to notify Mrs. Walker of both the staff review of Steven’s progress and her right to attend the review session, and of her right to an impartial hearing. Dr. Sheely responded with a suggestion that a second multidisciplinary staffing should precede a due process hearing.

A second staff review meeting was held on September 19,1978, with Mrs. Walker and Ms. Cohen attending to advocate residential placement. The review board recommended, however, that Steven’s current program be continued. Steven began to attend classes at Glenbrook North the following day, but a week later, on September 26, 1978, Mrs. Walker again requested a due process hearing. On September 29 she addressed a fourth demand for a hearing to Dr. Sheely. The hearing was finally scheduled for November 16, 1978. Meanwhile Steven’s behavior became violent and continued to deteriorate. Following a serious altercation with Steven a week before the scheduled hearing, Mrs. Walker, acting on the advice of Steven’s therapists, concluded that an emergency placement at a residential treatment center was necessary. Previously Steven had sustained a serious leg injury, and it now appeared there was a danger of further physical injury to him in his existing environment. On November 9, 1978, suffering from extreme depression, Steven entered Lakeside Center. Steven remained at Lakeside and completed his secondary education. He is now enrolled in college.

The due process hearing was held as scheduled on November 16, 1978. The impartial hearing officer recommended that Steven be placed at Lakeside and that District 225 assume financial responsibility as of November 16,1978. District 225 appealed the hearing officer’s decision to the Illinois Office of Education, which issued an administrative order that Steven did not qualify for private placement under section 8.01 of the State Rules, which provides as follows:

“If a child exhibits exceptional characteristics which are determined in a multidisciplinary conference to be so profound, complex, or otherwise unique that no special education program offered by the public schools can adequately or appropriately meet his or her needs, the student shall be referred for placement in either a state-operated or a private facility.”

(Ill. Admin. Reg. 1979, sec. 8.01.) The order additionally found that “Steven Walker’s rights were not fully observed, in that due process procedures were not adequately followed by District 225.”

After the Illinois Office of Education overruled the impartial hearing officer’s conclusion that Steven’s placement at Lakeside was appropriate, Mrs. Walker filed an action on Steven’s behalf in the circuit court of Cook County seeking judicial review of the administrative decision of the Illinois Office of Education. (Ill. Rev. Stat. 1979, ch. 110, par. 267.) The action alleged that the defendants improperly denied Steven placement in a residential special education facility.

Upon conclusion of hearings, the circuit court issued its written memorandum and order to the effect that Steven was entitled to special education and related services in a residential school effective November 9, 1978; that Mrs. Walker was to be reimbursed by defendants for her expenditures to date; and that payment to Lakeside for services rendered to Steven was to be made by defendants. The trial court expressed the findings upon which its order was based as follows:

“[T]he Court finds clear evidence that Plaintiff Steven Walker is a child * * * [who] exhibits exceptional characteristics that are so profound, complex and unique that special education programs offered by Glenbrook Public School cannot adequately or appropriately meet his needs. The Court finds that Plaintiff Steven Walker requires special education courses that are inextricably integrated with related services of psychotherapy administered in a highly coordinated and structured residential school setting, with continual monitoring and supervision of his learning process and a keen awareness and insight to possible causes of Plaintiff’s frustrations and blocking of his learning process. Plaintiff has met his burden of proof that the school district’s proposed program was inappropriate. The prima facie presumption that the school district’s program is appropriate has been overcome.”

Opinion

The first argument presented on appeal by defendants-appellants is that the damages sustained by Mrs. Walker resulted from her breach of a legal duty, and she therefore should not be reimbursed for her expenses. The duty referred to was identified in Stemple v. Board of Education (4th Cir. 1980), 623 F.2d 893, where the court construed the following statute:

“During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed.” (20 U.S.C. sec. 1415(e)(3) (1976).)

(A similar provision also appears in the Illinois School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 8.02) and Ill. Admin. Reg. 1979, sec. 9.23.2.) The Stemple court found that, “taken literally,” this language creates a duty on the part of parents to keep their child in his educational placement while a hearing is pending; the duty then was found to negate a right to reimbursement for the tuition costs of a unilateral placement in a private school.

Defendants argue that an Illinois parent who violated the above-described duty under section 14 — 8.02 of the School Code by choosing to place her child in a private school before an official determination that such a placement was appropriate has no right to bring an action for damages to recover the costs. We disagree.

“[B]ecause we are certain that parents have the right to move their handicapped children to private schools, we view section 615(e)(3) as expressing a congressional preference rather than as creating a statutory duty.” (Anderson v. Thompson (7th Cir. 1981), 658 F.2d 1205, 1209.) The Anderson court concluded that the issue of a damages remedy therefore could not be resolved on the basis of this section, and focused its inquiry instead on whether section 615(e)(2) of the Education of the Handicapped Act (20 U.S.C. sec. 1415(e)(2) (1976)), which authorizes any aggrieved party to bring suit and directs the State or Federal district court to “grant such relief as the court determines is appropriate,” includes damages as appropriate relief.

We find the approach of the Anderson court to be the preferable method of analyzing the question whether a parent is entitled to reimbursement for a unilateral placement. That court, we believe, correctly noted that the matter is one of statutory interpretation. In the case on appeal here, the question is whether the statutory statement that “the child shall remain in the then current educational placement of such child” is mandatory or directory. We think that in light of the fact that every child is legally entitled to “a free appropriate public education” (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 8.02), the statement must be regarded as directory.

The primary goal of the statutory provision is an appropriate education for all handicapped children. Because disagreement between parents and schools about what is appropriate is inevitable in some cases, the statute provides procedures for resolving such disagreements, including a due process hearing that is available at the request of a dissatisfied parent. Resolution of such disagreements is a secondary goal that supports the overriding objective of providing an appropriate education for each child in light of his individual needs. A duty to seek such resolution in good faith is clearly implicit in the statute. If it were not, a school district could indefinitely block the transfer of a handicapped child by delaying the proceedings available under section 14 — 8.02 of the School Code, thereby triggering the parent’s absolute duty to leave the child in his current educational placement. The absurdity and injustice of interpreting the requirement as mandatory is thus clear.

Furthermore, the statute does not provide sanctions for removing a child from his current placement, which also indicates that the statutory provision is directory. “If [statutes are] mandatory, in addition to requiring the doing of the things specified, they prescribe the result that will follow if they are not done; if directory, their terms are limited to what is required to be done.” (2A Sutherland, Statutes and Statutory Construction sec. 57.08, at 423 (4th ed. 1973)), quoting Hudgins v. Mooresville Consolidated School District (1925), 312 Mo. 1, 278 S.W. 769.) We therefore find that Mrs. Walker is not barred automatically from recovering damages for breach of a “mandatory” statutory duty in view of our finding that the statute is directory only.

The Anderson court identified two circumstances in which an award of damages might be appropriate. Both are situations in which it would be reasonable for a parent to take action to obtain appropriate services for her child without awaiting the outcome of lengthy administrative proceedings. “Parents should then be compensated for the costs of obtaining those services that the school district was required to provide.” (658 F.2d 1205, 1213.) The first situation is one in which a child’s physical health would be endangered if an alternative placement were not made. The second exceptional circumstance exists when the defendant has acted in bad faith by failing to comply with the statutory provisions for resolving a dispute about a child’s educational placement.

Based on the record one might argue that both circumstances occurred in this case. Mrs. Walker made four requests of District 225 for a due process hearing. The requests were made over a five-month period before the November 16 hearing was finally held. Although section 14 — 8.02 provides that the school shall notify the parent of her right to an impartial due process hearing and shall conduct such hearing upon the parent’s request, Mrs. Walker was not initially made aware of her right to a hearing, and the hearing was not held until after her fourth request. Instead of complying with her second request on August 25, District 225 held a second staff meeting on September 19, with no resulting change in its recommendation. Mrs. Walker was forced twice to request a hearing after this meeting before District 225 complied. Additionally, the record indicates that Mrs. Walker placed Steven at Lakeside the day after the incident of physical violence by him.

The education of handicapped students, including education in private special education facilities pursuant to section 14 — 7.02 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 7.02), is the legal responsibility of the public school system, and must be provided free of charge to the student through the secondary level. (Elliot v. Board of Education (1978), 64 Ill. App. 3d 229, 380 N.E.2d 1137.) As we have noted, the record indicates that there was a rather long delay on the part of District 225 in determining what placement was appropriate for Steven, and that there was an immediate threat to Steven’s health in his existing situation. Accordingly, we hold that Mrs. Walker’s placement of Steven at Lakeside was proper, and she is entitled to reimbursement of expenses from District 225.

The second issue raised by defendants-appellants is whether the services rendered to Steven at Lakeside were special education and related services for which District 225 was required to pay. Defendants argue that at Lakeside Steven received “only mainstream instruction,” and that “[accordingly, whatever moral or psychological support or psychotherapy Steven received at Lakeside could not have been a ‘related service’ within the meaning of Rule 1.08a * * We disagree.

Defendants’ argument seems to be that “only mainstream instruction” cannot be special education, and the other services provided by Lakeside were therefore not “related services.” We cannot agree with this bootstrap reasoning, for which defendants offer no authority other than their bare conclusory statement. The flaw in defendants’ reasoning is their assumption that classroom education can never be an element of special education, an assumption that, carried to its extreme, would lead to the absurd conclusion that special education could never include a general academic component.

Special education is “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” (Emphasis added.) (20 U.S.C. sec. 1401(16) (1976).) Related services include “transportation, and such developmental, corrective, and other supportive services (including * * * psychological services * ° * and medical and counseling services " * °) as may be required to assist a handicapped child to benefit from special education * * (20 U.S.C. sec. 1401(17) (1976).)

The record indicates that at Lakeside Steven received instruction in an integrated treatment program specially designed to meet his unique needs. In Lakeside’s on-campus school Steven was placed in classes with only six or eight other children in an effort to reduce the stress of a large class and provide more emotional stability for him. There was no “main stream.” A single teacher taught all Steven’s courses, providing security and an opportunity for Steven to develop a relationship with the person responsible for his education. Adjustments in Steven’s educational program were made on a day-by-day basis. Supplemental services such as occupational or family therapy and psychotherapy were available. We think this program falls within the definitions of special education and related services; accordingly, we find no merit in defendants’ argument.

Defendants’ final contention is that the trial court’s determination that Steven had educational needs requiring residential placement and that Lakeside was an appropriate placement for him is contrary to the manifest weight of the evidence. Again, we disagree. The presumption on appeal is that the trial court heard sufficient evidence on which to base his judgment, and the appellant has the burden of demonstrating that the record fails to support that judgment. (Hogan v. Braudon (1976), 40 Ill. App. 3d 352, 352 N.E.2d 303.) The findings and judgment of the trial court in nonjury cases will not be disturbed by a reviewing court if there is any evidence in the record to support such findings. Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518; Skurat v. Kellerman (1977), 53 Ill. App. 3d 361, 368 N.E.2d 966; Swan v. Allstate Insurance Co. (1967), 89 Ill. App. 2d 205, 232 N.E.2d 491.

Contrary to the claim of defendants-appellants, we find ample support in this record, as outlined above, for the trial court’s findings that Steven was an exceptional child in need of special education, that District 225 could not meet his needs adequately, and that Lakeside was an appropriate placement for him. For a judgment to be found contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident. (Raabe v. Maushak (1977), 55 Ill. App. 3d 169, 371 N.E.2d 96.) Defendants failed to show that such was the case here.

For all of the reasons discussed above, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON, P. J., and JIGANTI, J., concur.