author: JUSTICE GOLDBERG

text:
    GROSS VALENTINO PRINTING COMPANY, Plaintiff-Appellee, v. FREDERICK S. CLARKE, d/b/a Cinefantastique, Defendant-Appellant.
    First District (1st Division)
    No. 83—0780
    Opinion filed December 27, 1983.
    Mark. W. Solock, of Chicago, for appellant.
    Leoris & Cohen, of Highland Park (Richard J. Friedman, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Gross Valentino Printing Company (plaintiff) brought this action against Frederick S. Clarke, doing business as Cinefantastique (defendant), based on an alleged breach of contract. Defendant asserted three affirmative defenses: lack of consideration, fraudulent or innocent misrepresentation, and business compulsion.

Plaintiff moved for summary judgment. Both plaintiff and defendant filed depositions in support of their theories. The trial court granted plaintiff’s motion with regard to the first and third defenses and allowed defendant to amend its pleadings with regard to the affirmative defense of fraud. Plaintiff then renewed its motion for summary judgment. After a hearing, the trial court granted plaintiff’s motion and entered judgment of $5,116.20 for plaintiff. Defendant appeals.

Defendant publishes a magazine. After discussion, in July of 1979, plaintiff sent defendant a letter for printing the magazine including a price quotation of $6,695. Defendant accepted the terms. On August 8, 1979, the parties met to discuss the layout. The parties’ depositions diverge as to the substance of that meeting. Because plaintiff was the movant for summary judgment, “the court will construe the pleadings, depositions, admissions and affidavits strictly against the mov-ant and liberally in favor of the opponent” to determine if the summary judgment was proper. Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397.

According to defendant’s deposition, he brought materials for printing the magazine to plaintiff’s office on August 8, 1979. Defendant discussed problems concerning the layout with an agent of plaintiff corporation. The agent told defendant the job could still be done “in house” despite the problems. He also told defendant the price would remain the same over the next six issues of the magazine.

Defendant also stated the parties had a telephone conversation on August 14, 1979. Defendant was informed the job “was going to cost more than we thought.” Plaintiff’s agent told defendant the higher cost was incurred because plaintiff had to “send the stripping out.” Defendant did not inform plaintiff’s agent he wanted to get another printer because defendant did not believe he could meet his deadline if he changed printers. Defendant was also afraid plaintiff would not return defendant’s materials if defendant argued about the price. Those materials were necessary for continued printing of defendant’s magazine. ■

Defendant also deposed that sometime thereafter plaintiff sent defendant a letter dated August 15, 1979. The letter specified the same work as represented in the parties’ earlier contract. However the price was increased to $9,300. Defendant made no objection to this increase until a later date.

On August 30, 1979, plaintiff delivered the first 5,000 magazines to defendant. Defendant signed the purchase order reflecting the new price and paid plaintiff $4,650 on account of the purchase. Defendant subsequently received the complete shipment of 15,000 magazines. However, on October 28, 1979, defendant informed plaintiff he would not accept the price increase.

I

Lack Of Consideration

The parties agree that the sufficiency of defendant’s first affirmative defense of lack of consideration depends on the determination of whether the transactions at issue are subject to the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 101 et seq.). Under the UCC a modification of an existing contract “within this Article needs no consideration to be binding.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 209(1).) The parties also agree that the applicability of the UCC depends on the determination of whether they contracted for “goods” or “services.”

The UCC defines “goods” as (Ill. Rev. Stat. 1981, ch. 26, par. 2— 105(1)):

“ ‘Goods’ means all things, including specially manufactured goods, which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action. ‘Goods’ also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (Section 2— 107).”

The parties have not cited, and our research has not disclosed, any case in Illinois in which the court specifically applied the albove definition to printed magazines. However, in Colony Press, Inc. v. Fleeman (1974), 17 Ill. App. 3d 14, 308 N.E.2d 78, we dealt with the printing and sale of advertising leaflets. Although the issue before the court was jurisdiction over an Ohio defendant, we stated:

“Defendant was aware or should have been aware that the printing would be done in Illinois. Finally, plaintiff was required to ship the goods, f.o.b. Chicago, Illinois, directing the carrier to make delivery to the Canton, Ohio, newspaper in which it would appear. Plaintiff’s obligation, title and risk of loss in the goods ceased then on the delivery to the carrier in Illinois. (Sections 2 — 401(2)(a) and 2 — 509 (l)(a) of the Illinois Uniform Commercial Code, Ill. Rev. Stat. 1971, ch. 26, pars. 2 — 401(2)(a) and 2 — 509(l)(a).)” 17 Ill. App. 3d 14, 18.

According to the language in Colony Press, the court implied that the printed advertising leaflets were “goods” and that the UCC applied to the contract. We find a similar implication in Goshen Litho, Inc. v. Kohls (Docket No. 81 Civ. 3362-CSH, (S.D.N.Y. filed May 12, 1983),_F. Supp___

Closer to the point is Lake Wales Publishing Co. v. Florida Visitor, Inc. (Fla. App. 1976), 335 So. 2d 335. There, the court specifically addressed the issue of whether a contract to compile, edit, and publish printed material constituted a sale of goods. The court concluded that it did (335 So. 2d 335, 336):

“We focus then on whether the printed materials which appellant allegedly furnished to appellee were ‘goods’ under the U.C.C., Fla. Stat. §672.2 — 105(1), which defines ‘goods’ as:
‘. . . all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (chapter 678) and things in action.’
The specific point has not been passed on by the Florida courts; however, the Official Comment to U.C.C. §2 — 105 states that the definition of goods is based upon the concept of their mova-bility. The items allegedly furnished by the appellant were specially produced or manufactured and were movable. Moreover, any services rendered were of necessity directed to production of the items.”

See also Cardozo v. True (Fla. App. 1977), 342 So. 2d 1053, 1055, where the court stated “[t]he definition of ‘goods’ under the U.C.C. is sufficiently broad to include books.”

The court in Lake Wales relied on Carpel v. Saget Studios, Inc. (E.D. Pa. 1971), 326 F. Supp. 1331. There the court determined that a contract for a photographer to provide photographs, was a contract for goods. 326 F. Supp. 1331, 1333.

In the case at bar, we conclude that the primary subject of the contract was the tangible printed magazines and not “printing services.” Defendant’s deposition indicates he worked with plaintiff in arriving at the “layout” of the magazine. Furthermore, defendant’s deposition indicates he “shopped” for printers based solely on which printer submitted the lowest price estimate. Such an admission suggests that to defendant the “printing services” were largely fungible or interchangeable and were merely incidental to delivery of the final product. It is clear that defendant was simply interested in determining who could get him the magazines, the ultimate product, at the lowest possible price.

Defendant relies on three cases. We find them inapposite to the case at bar:

In Mallin v. University of Miami (Fla. App. 1978), 354 So. 2d 1227, the court held a contract between an author and a publisher was a contract for services. The court stressed that “[t]his transaction did not involve a sale of goods by the publisher to the author” (354 So. 2d 1227, 1229). In fact there was no sale of books except from the publisher to the eventual consumer.

In For Children, Inc. v. Graphics International, Inc. (S.D.N.Y. 1972), 352 F. Supp. 1280, the court held damages for breach of a contract for the publishing of “pop-up” children’s books were not governed by the UCC. The court indicated the manufacture of pop-up books was “a limited field.” (352 F. Supp. 1280, 1284.) Therefore, the publishing at issue in For Children was in the nature of a specialty. Such specialized printing requires greater skill and expertise than the simple printing of a magazine as in the case at bar.

In Curtis Publishing Co. v. Sheridan (S.D.N.Y. 1971), 53 F.R.D. 642, the court denied summary judgment in an action based on a contact for the publication of books. The court concluded there were disputed facts regarding whether the contract was for goods or services. (53 F.R.D. 642, 643.) However, the court noted that the contract included various responsibilities of the publisher other than printing, such as financing and marketing of the books.

In all of these cases the responsibility of the publisher went beyond the simple printing of the material. Each of the contracts in the cited cases required more independent judgment, skill, and service than the contract in the case at bar. Therefore we hold that the agreement between these parties for printing the magazines was subject to the provisions of the UCC. It follows that proof of consideration was unnecessary. The trial court properly struck the first affirmative defense.

II

Fraud

The elements of fraud are specified in Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599. To state a cause of action for fraud defendant must allege a false statement of material fact by plaintiff, which plaintiff knew or believed was false, made with intent to induce defendant to act, upon which defendant justifiably relied, and which resulted in damage to defendant. (79 Ill. 2d 282, 286.) A statement as to future events or circumstances is not a basis for fraud. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) Allegations of fraud must be made with specificity to sustain a cause of action. Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 376, 432 N.E.2d 1009.

Our study of the pleadings convinces us that defendant has failed to allege a cause of action for fraud. At best, defendant has simply alleged possible misstatements of future circumstances, such as the ability of plaintiff to complete the job “in house,” and the eventual cost of the job. Defendant did not allege plaintiff’s agent knew any statements were false. In fact, defendant does not specify any statements made by plaintiff’s agent, which were allegedly false at the time they were made. In addition, defendant did not adequately allege damage. For example, defendant did not allege what the cost of the printing would have been had defendant not “relied” on plaintiff’s representations and hired a different printer. It follows that the second affirmative defense failed to allege fraud. Summary judgment was proper in this regard.

Ill

Business Compulsion

Similarly, defendant has failed to allege sufficient facts to sustain the affirmative defense of business compulsion. “Economic duress is present where one is induced by a wrongful act of another to make a contract under circumstances which deprive him of the exercise of free will.” (Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 814, 423 N.E.2d 578.) “The bare allegation of ‘legal duress’ is not sufficient even as an allegation of ultimate fact.” Scoa Industries, Inc. v. Howlett (1975), 33 Ill. App. 3d 90, 96, 337 N.E.2d 305.

“[T]he defense of duress cannot be predicated upon a demand which is lawful or upon doing or threatening to do that which a party has a legal right to do. *** Rather, the conduct of the party obtaining the advantage must be shown to be tainted with some degree of fraud or wrongdoing in order to have an agreement invalidated on the basis of duress.” (Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 815.) To show compulsion, one must indicate how legal redress would be inadequate. Kaplan v. Keith (1978), 60 Ill. App. 3d 804, 807, 377 N.E.2d 279, appeal denied (1978), 71 Ill. 2d 609.

In the case at bar, defendant has failed to indicate how his “free will” was overcome by any wrongdoing of plaintiff. As shown above, defendant has failed to show plaintiff was guilty of any fraud or wrongdoing. Defendant does not show how he would have been so damaged by possibly missing a deadline as to overcome his free will. Finally, defendant does not show how legal redress for possible breach of the original contract would have been inadequate.

For these reasons the summary judgment in favor of plaintiff is affirmed.

Summary judgment affirmed.

McGLOON and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    JANICE McDANIEL, Indiv. and as Adm’r of the Estate of James D. McDaniel, Plaintiff-Appellee, v. DOUGLAS HOGE et al., Defendants and Third-Party Plaintiffs—(Hoge-Warren-Zimmerman Company, Third-Party Defendants-Appellants).
    First District (2nd Division)
    No. 83—0388
    Opinion filed December 27, 1983.

      Kiesler & Berman, of Chicago (Robert L. Kiesler and Thomas B. Underwood, of counsel), for appellant.
    Joseph A. Rosin & Associates, Ltd., of Chicago (Joseph A. Rosin, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Janice McDaniel sued for damages arising from the death of her husband, James D. McDaniel. Among the named defendants was Commonwealth Edison (hereinafter ComEd). A workmen’s compensation lien was filed in the action by third-party defendant Hoge-Warren-Zimmerman Company (hereinafter HWZ). At the close of plaintiff’s case-in-chief, the suit was settled for $500,000. Both plaintiff and HWZ filed post-trial motions to have the workmen’s compensation lien adjudicated. The trial court ruled that the lien does not attach to the settlement proceeds, and HWZ appeals.

On December 17, 1973, James D. McDaniel was electrocuted on power lines owned by Commonwealth Edison. McDaniel was working for Hoge-Warren-Zimmerman Company' at the fime of his death. HWZ’ workmen’s compensation carrier paid benefits of $28,406.09 to decedent’s widow, Janice McDaniel.

Thereafter, Janice filed a lawsuit, individually and as administrator of her husband’s estate, in the circuit court of Cook County against several defendants including ComEd. HWZ, who was a third-party defendant in the action, filed a workmen’s compensation lien against any judgment that plaintiff might secure. (See Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b) (employer may recover workmen’s compensation payment from third-party tortfeasor).) Count III of the complaint against ComEd was for wrongful death and counts V and VI were based on alleged violations of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/3, par. 1 et seq.). At the close of plaintiff’s case-in-chief, Janice and ComEd entered into a settlement agreement which they alone had negotiated. Under the settlement agreement, plaintiff would receive $500,000 and the claims against ComEd would be dismissed. The settlement was not attributed to any particular claim against ComEd.

The settlement expressly excluded the workmen’s compensation lien from its coverage and plaintiff and HWZ filed post-trial motions for adjudication of the lien. On January 13, 1983, the circuit court ruled that plaintiff’s and ComEd’s settlement was attributable to the Public Utility Act counts of the complaint and not to the wrongful death count and that therefore, HWZ was not entitled to reimbursement for its workmen’s compensation payment. HWZ appeals from this ruling.

HWZ’ first contention concerns the circuit court’s ruling that no part of the settlement agreement was attributable to the wrongful death count of the complaint. This ruling is determinative of whether a workmen’s compensation lien will or will not attach to the settlement proceeds. If any part of the settlement is attributable to the wrongful death count, the workmen’s compensation lien will attach. (See Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75, 79, 424 N.E.2d 1307.) If the settlement is attributable only to the Public Utility Act counts, the lien will not attach.

The determination as to which of several claims a settlement award is attributable to has been held to be a matter within the trial court’s discretion. (Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 106, 426 N.E.2d 614.) In Gramse, a suit involving claims under the Structural Work Act and Survivor’s Act was settled for $300,000. A workmen’s compensation lien was asserted. The record did not reveal whether the settlement was attributable to the Structural work Act claims or the survival claims. If the former, the lien would be refused; if the latter, it would be allowed. The trial court determined that the settlement was attributable only to the Structural Work Act claims and the lien was denied.

On appeal, the court ruled that this determination is best left to the trial court’s discretion. According to the reviewing court, a contrary ruling

“would mean that the employer’s lien attaches, in its entirety,' to any settled case where there is a remote possibility that any part of the recovery could have been compensation for the same injuries for which the workmen’s compensation carrier had previously made a payment. Such a ruling would discourage the settlement of cases.” 100 Ill. App. 3d 100, 106.

We agree with the court in Gramse that, in the absence of a designation by the parties to the settlement agreement, the decision as to which of several claims a settlement award should be attributed to is a decision best left to the discretion of the trial court. This decision should stand unless shown to be an abuse of discretion. We find no abuse of discretion here and we therefore affirm the decision of the trial court.

Alternatively, HWZ contends that a workmen’s compensation lien should attach to the proceeds of a settlement of a Public Utilities Act claim. However, such a lien attaches only where the proceeds of a settlement are compensation for the same injuries for which compensation payments were previously made. (See Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 106, 426 N.E.2d 614.) Workmen’s compensation payments are made only for an employee’s work-related injuries. The Public Utilities Act provides for recovery for many injuries which are not employment related and which are not suffered by employees. The Act provides that any person affected by defendant’s, wrongful act may sue individually for his or her personal injuries. See Ill. Rev. Stat. 1981, ch. lll2/3, par. 77; Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 139, 383 N.E.2d 929.

In the instant case, plaintiff sued individually under the Public Utilities Act for funeral and burial expenses incurred by her and for punitive damages. These “injuries” are clearly not employment-related and were not incurred by an employee and are therefore not covered under the Workmen’s Compensation Act. This being the case, the trial court correctly concluded that the workmen’s compensation lien filed by HWZ did not attach to the recovery under the Public Utilities Act.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.


author: JUSTICE CAMPBELL

text:
      In re ESTATE OF JOHN R. CAFFREY, Deceased—(The La Salle National Bank, Petitioner-Appellee, v. Mary H. Caffrey, Ex’r of the Estate of John R. Caffrey, Respondent-Appellant).
    First District (1st Division)
    No. 82—2912
    Opinion filed December 30, 1983.
    Carr & O’Rourke Associates, of Chicago, for appellant.
    Charles M. Biggam, Jr., and William Barnett, Jr., both of Biggam, Cowan, Marquardt & Lunding, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Respondent, Mary H. Caffrey, appeals from an order of the circuit court of Cook County that upon motion of petitioner, La Salle National Bank, reduced the amount of a surviving spouse award she had previously received and required her to refund the difference to the estate. The sole issue raised on appeal is whether the spouse’s award provision of the Probate Act of 1975 (commonly referred to as the widow’s award) (Ill. Rev. Stat. 1979, ch. llOVa, par. 15 — 1), permits the reduction of an award to a widow and children based upon the court’s consideration of assets which have passed to the widow and children on account of decedent’s death and are not included in the probate estate.

John R. Caffrey died on July 6, 1980. His widow, respondent Mary H. Caffrey, is the executor and sole beneficiary of his estate. In September 1980, prior to seeking the widow’s and children’s award, respondent filed an inventory showing the value of estate assets to be $250,569. Also listed in the inventory was decedent’s stock in the professional corporation Clausen, Miller, Gorman, Caffrey & Witous. Subsequently, the stock was valued at $74,758, raising the value of decedent’s estate to $325,147.

On December 29, 1980, counsel for the executor requested a widow’s award of $50,000 and a total children’s award of $25,000 for the decedent’s three dependent children. Respondent did not file a written petition for the award nor was a written statement of the condition of the estate filed. In response to questions from the court, counsel for respondent told the court that, in his opinion, the payment of the $75,000 combined widow’s and children’s award would not jeopardize the estate and that there would be sufficient funds remaining to pay all other claims. The court granted the awards as requested.

Petitioner, the La Salle National Bank, had not filed a claim against the estate at the time the surviving spouse award was granted. The petitioner’s claim for $154,721 was secured by two condominium units owned by the decedent. On October 9, 1981, petitioner filed a motion for reduction of the widow’s and children’s award pursuant to section 15 — 3 of the Probate act of 1975 (Ill. Rev. Stat. 1979, ch. 110Vz, par. 15 — 3). Petitioner asserted that the estate would be rendered insolvent by reason of the widow’s and children’s award. Petitioner alleged that certain condominiums originally valued at $151,500 were to be sold by the estate for the price of $110,000. Also, State and Federal inheritance taxes, attorney fees and administration costs had yet to be determined but insufficient assets were remaining in the estate to pay class seven claims once these claims had been paid.

At the hearing on petitioner’s motion, held in October 1982, respondent testified that she received life insurance proceeds of $326,813, an individual retirement account of $66,873, and a death benefit of $5,000 from her" husband’s' firm. She also receives a monthly pension from her husband’s firm of $800. In addition, respondent received in joint tenancy common stock valued at $10,094 and the marital residence valued at $69,607. The children each received $50,000 in life insurance proceeds.

Petitioner presented evidence that the probate assets were valued at $274,611 in the January 1982 current account. The seventh class claims allowed against the State amounted to $178,291. The claim of petitioner included interest at the rate of $57.69 per day from July 6, 1980. Petitioner also presented copies of the estate’s tax returns which showed that the estate owed Federal estate taxes and Illinois inheritance taxes totalling $77,019. Funeral bills and costs of administration are approximately $8,618, not including fees of counsel for the executor.

After hearing the arguments of counsel and testimony of respondent, the court reduced the widow’s award to $20,000 and the children’s award to a total of $10,000. The court ordered respondent to refund to the estate $44,200. In entering its decision, the court stated that “under these circumstances nonprobate assets must and are being considered by this Court in determining a reasonable award for Mrs. Caffrey and the three children of Decedent *** who were *** dependent when their father passed away.” The court mentioned, in particular, life insurance proceeds, an individual retirement rollover account and monthly pension benefits. The court stated that “these benefits are not the independent wealth and means of Mrs. Caffrey but, in fact, are benefits that became available and payable due to the death of Mr. Caffrey *** [and] are not part of the probate estate.”

On appeal, respondent argues that the statute which provides for an award to the surviving spouse should be liberally construed in light of its purpose to help alleviate the spouse’s financial worries in the difficult time following the death of his or her spouse (In re Estate of O’Neill (1982), 104 Ill. App. 3d 488, 489, 432 N.E.2d 1111, 1112). Respondent argues that the legislature further protected the spouse’s award by making it a class two claim (Ill. Rev. Stat. 1979, ch. llO1^, par. 18 — 10).

Respondent relies upon In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 208 N.E.2d 604, to argue that a reduction in the spouse’s award based upon consideration of nonprobate assets was improper and contravened the legislative purpose behind the statute. In Handmaeher the court stated that “[t]he fact that the widow has independent means will not bar her from an award.” (60 Ill. App. 2d 376, 380, 208 N.E.2d 604, 606.) Respondent argues that just as the assets a spouse has acquired by independent means should not be considered, so too, assets received outside of probate should not be considered in determining what is a reasonable award.

Respondent also argues that she should not be compelled to forfeit her statutory right to the widow’s award solely because the husband had the foresight to provide for his family. She argues that the award she received originally was reasonable in view of the condition of the estate at the time the award was granted and in view of the manner in which she lived. Respondent contends that the problems in the estate arose when the condominiums sold for less than their appraised value and the interest due petitioner per day began to multiply. Respondent contends that her award should not be subject to change each time conditions in the estate have changed.

Petitioner asserts that the estate is insolvent and that to the extent that the widow and children receive an award, the class seven claimants are denied their due. Petitioner stresses that the purpose of the statute, by its terms, is to provide for “the proper support” of the widow in the nine months following the death of her husband. Petitioner contends that nonprobate assets received by the widow directly relate to the court’s consideration of the spouse’s “condition in life” and, therefore, were properly considered by the trial court. Petitioner points out that 65% of the decedent’s assets passed to his beneficiaries outside of his probate estate. The probate estate, however, is subject to the claims of his creditors and to his estate tax liability.

Petitioner further contends that if the court had been properly apprised of the estate’s financial position as known to the executor at the time the award was requested, the court would have seen that the award would have rendered that estate insolvent. Petitioner contends that the court was not informed of the extent of the taxable estate and the likely tax liability nor was the court informed of the size of known but unfiled claims against the estate.

Petitioner also argues that respondent’s position is not aided by the Handmacher case. Petitioner contends that nonprobate assets which come into existence and pass to the widow upon the death of her husband are surely not independent wealth as used in Handma-cher and the earlier case, Gillett v. Gillett (1904), 207 Ill. 136, 69 N.E. 942.

Section 15 — 1 of the Probate Act of 1975 provides:

“The surviving spouse of a deceased resident of this State whose estate, whether testate or intestate, is administered in this State, shall be allowed as the surviving spouse’s own property, free from execution, garnishment or attachment in the hands of the representative, such a sum of money as the court deems reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate ***.” (Ill. Rev. Stat. 1979, ch. llQi/z, par. 15-1.)

The statute also provides that an additional sum of money may be awarded for the proper support during this period of the dependent children of the decedent. (HI. Rev. Stat. 1979, ch. IIOV2, pars. 15 — 1, 15 — 2.) The statute also provides that the award in no case may be less than $5,000 together with an additional sum of not less than $1,000. for each dependent child.

Section 15 — 3 provides that the representative shall apply to the court for an award and that upon the petition of the surviving spouse, the representative, an heir or legatee, or a creditor of the estate, the court may hear evidence and may increase or diminish the award as justice requires. Ill. Rev. Stat. 1979, ch. IIOV2, par. 15 — 3.

A widow’s award is not an inheritable interest in the property of the deceased husband, but is a preferred claim and a debt of the estate. (In re Estate of Guttman (1952), 349 Ill. App. 58, 110 N.E.2d 87.) The statute does not restrict the widow to the bare necessities of life but rather provides a sum of money which will allow her to live in the manner that she has been accustomed to for a period of nine months. (Handmacher.) “ ‘The decedent’s standard of living will be considered; a larger award may be proper for the widow of a “free liver” than for the widow of a more penurious man.’ ” (In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 380-81, 208 N.E.2d 604, 608.) The minimum amount of the award is not discretionary with the court. (In re Estate of Buehnemann (1975), 25 Ill. App. 3d 1003, 324 N.E.2d 97.) In making the award to the spouse, the court is not limited to consideration of the projected needs of the spouse as of the date of the decedent’s death but should consider later circumstances affecting the needs of the spouse. (In re Estate of Swisher (1983), 114 Ill. App. 3d 42, 448 N.E.2d 256.) In In re Estate of Meskimen (1967), 84 Ill. App. 2d 471, 228 N.E.2d 255, affd 39 Ill. 2d 415, 235 N.E.2d 619, the court noted in dicta that it believed that the provisions of 15 — 3 could be used by the surviving spouse to petition the court for inclusion in its consideration of a proper award all of the alleged assets of the deceased within his control at the time of his death. Meskimen involved consideration of the court’s refusal to admit to probate a trust agreement executed at the same time as the decedent’s will.

The parties have represented that this is a case of first impression. We note initially that when requesting the widow and children’s award of $75,000 counsel represented that the award would not jeopardize the estate. Counsel also did not present the court with any written documents on the condition of the estate. If there had been full disclosure of the facts the court would have been better able to make an award based upon the condition of the estate.

The plain meaning of the statute does not support the restrictive view advocated by respondent. We do not believe the legislature intended a rigid and technical limitation to the court’s consideration of the assets left by the decedent in determining the support necessary for the surviving spouse. In our view the court may properly consider nonprobate assets which the surviving spouse has received.

We are not attempting to prevent the respondent from obtaining an adequate widow’s award in compliance with the statute. We hold, however, that under the facts of this case, the trial court was correct in considering nonprobate assets which the widow received in its determination of the sum necessary for her proper support.

Accordingly, for the reasons stated herein, the order of the circuit court is affirmed.

Order affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: PRESIDING JUSTICE ROMITI

text:
      In re C.T., a Minor—(The People of the State of Illinois, Petitioner-Appellant, v. C.T., Respondent-Appellee).
    First District (4th Division)
    No. 82—1722
    Opinion filed December 29, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O’Malley, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Kathleen M. McGinnis, Assistant Public Defender, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

This case represents an appeal by the State of a juvenile court’s orders which denied the State’s request for a continuance and dismissed its petition for adjudication of wardship of a minor, C.T., on the grounds that an additional continuance would constitute a violation of due process. The sole issue presented for review is whether a juvenile court has the authority to dismiss such a petition, and if so whether dismissal was justified in the action under consideration here. We find that although a juvenile court has the power to dismiss a petition for adjudication of wardship, the facts in this case do not support the court’s action. We therefore reverse and remand.

The State filed its petition for adjudication of wardship in the Cook County Juvenile Court on January 12, 1982, alleging that the minor had committed three offenses in violation of certain provisions of the Illinois Criminal Code. A hearing on this petition was scheduled for March 2,1982.

On that date, the State amended its petition to delete two of the allegations of delinquent conduct made therein and to add in their stead two new offenses. The minor’s attorney requested a continuance of the hearing in order to prepare a defense against the new charges, which the court granted. The new hearing date was set for April 1,1982, and marked “final” for both parties on that day.

The minor’s attorney was unable to appear in court on April 1, however, because of illness. The court therefore granted the motion for a continuance presented by substituting counsel, who also informed both the court and opposing counsel of the minor’s intention to file a motion to suppress certain evidence. The court scheduled the hearing regarding both the motion to suppress and the petition for May 17, 1982, and again marked the action final for both sides. The written motion to suppress evidence was subsequently filed before that date.

On May 17, the State requested a continuance because one of its principal witnesses, the police officer who had taken the statements of the victims of the minor’s allegedly delinquent conduct, had not appeared to testify. The minor’s attorney made an oral motion to the court to dismiss the petition. In response, the State informed the court that the officer had been present on each previous hearing date and had been advised that the next hearing was to take place on May 17. The State also stated that the officer had originally requested that she be served with a subpoena to testify on May 17; when counsel for the State advised her that this would likely be very difficult, the officer suggested that counsel telephone her at the stationhouse on the morning of May 17 to advise her that the hearing was still scheduled for that date, and that she would then appear in court to testify on the matter. Counsel for the State informed the court that the officer could not be found at the stationhouse, that the particular day in question was apparently the officer’s day off, and that telephone calls to the officer’s residence went unanswered. The court offered to allow the State to strike the petition with leave to refile, which the State refused. The court then passed the case to allow additional time to locate the witness. When the case was subsequently called, counsel for the State did not appear. The court thereupon dismissed the petition.

Four days later, on May 21, the court granted the State leave to file a motion to reconsider its dismissal order. At the hearing on this motion on June 18, the court heard oral arguments from both parties based on the State’s written petition in support of its motion. The court found that it had the authority to deny the State’s request for a continuance and that any further delay would have amounted to a violation of due process, and denied the State’s motion to reconsider its dismissal order. The State thereupon filed a timely appeal to this court.

The court below relied on People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, in reaching its conclusion that it had the authority to dismiss the petition on the grounds that additional delay would have violated due process. In Lawson, the Illinois Supreme Court ruled that a trial court may dismiss a criminal complaint or indictment where delays have actually and substantially prejudiced the defendant in clear violation of due process requirements. (67 Ill. 2d 449, 456, 367 N.E.2d 1244, 1247.) The State contends alternatively that Lawson is inapplicable to the case under review here, or if applicable, that its standard for dismissal on due process grounds has not been satisfied.

The recognition that the guarantees of due process of law apply in juvenile delinquency proceedings is too well established to be open to dispute. (Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045; In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; In re Urbasek (1967), 38 Ill. 2d 535, 232 N.E.2d 716. See generally Scott, Delinquency and Due Process: A Review of Illinois Law, 59 Chi.-Kent L. Rev. 123 (1982).) This recognition is itself founded on the equally well-established notion that the juvenile court’s primary function is to ensure that the best interests of the minor respondent, his family, and society are served (see Ill. Rev. Stat. 1981, ch. 37, par. 701 — 2 (purpose and policy of Juvenile Court Act); see also In re Beasley (1977), 66 Ill. 2d 385, 389, 362 N.E.2d 1024, 1026, cert, denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734; People v. Hackman (1971), 1 Ill. App. 3d 1030, 1032, 275 N.E.2d 488, 489-90), and that this result obtain in a manner that comports with the concepts of fairness and impartiality. (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 543, 29 L. Ed. 2d 647, 659, 91 S. Ct. 1976, 1985; People v. Taylor (1979), 76 Ill. 2d 289, 298, 391 N.E.2d 366, 372. See also In re Peevy (1976), 43 Ill. App. 3d 579, 581, 357 N.E.2d 78, 80.) It is elemental that this spirit of fairness which is the linchpin of the juvenile delinquency process is the same notion of fairness of trial which forms the fundamental basis for the processes of adult criminal justice. In re Winship (1970), 397 U.S. 358, 365, 25 L. Ed. 2d 368, 376, 90 S. Ct. 1068,1073.

To hold that under Lawson a criminal court has the authority to dismiss a complaint or indictment because of a due process violation, while a juvenile delinquency court lacks the power to dismiss a petition on identical grounds, would effectively undermine the juvenile court’s duty to ensure that such proceedings are conducted in accord-anee with this essential notion of fairness. This court therefore rejects the State’s contention that People v. Lawson is not applicable to the case at bar.

That Lawson differs on its facts from the action under consideration here does not alter this result, as the State contends. The facts in Lawson pertained to the period of time intervening between the commission of an alleged offense and the defendant’s indictment therefor; the court determined that a substantial delay between these two events could result in substantial prejudice to a defendant in violation of due process which would warrant a trial court’s dismissal of the indictment. The State claims that because Lawson dealt with pre-indictment delay as a due process violation, it is distinguishable from the present action and therefore inapposite. This argument is spurious, however, as it is based on an assumption that due process guarantees are applicable only during a period of preindictment delay but not subsequent thereto. “The obligation of a court to insure due process, and its inherent authority to dismiss an indictment to remedy a violation thereof, cannot be made to depend upon whether the violation occurred before or after the indictment was issued.” People v. Adams (1978), 59 Ill. App. 3d 590, 593, 375 N.E.2d 893, 895.

In addition, we reject the State’s claim that Lawson is inapplicable because it was an interpretation of section 114 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1981, ch. 38, par. 1114 — 1) which the State argues is not applicable to juvenile delinquency proceedings. Lawson was not an expansion of the grounds for dismissal beyond those listed in section 114 — 1, as the State contends. Rather, it stands for the proposition that the listing of grounds set forth in this section leaves undiminished a court’s inherent authority to dismiss an action for violations of due process, and recognized that such authority exists independently from the power granted the courts through section 114 — 1 of the Code of Criminal Procedure. (People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240; People v. Wolfe (1983), 114 Ill. App. 3d 841, 449 N.E.2d 980; People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396; People v. Tomasello (1981), 98 Ill. App. 3d 588, 424 N.E.2d 785; People v. Marbly (1980), 85 Ill. App. 3d 935, 407 N.E.2d 721; People v. Stuckey (1979), 78 Ill. App. 3d 1085, 398 N.E.2d 97; People v. Lipp (1978), 63 Ill. App. 3d 1034, 380 N.E.2d 1007.) As we have already determined, a juvenile court possesses a similar inherent authority to dismiss a petition because of due process violations. As a result, we need not reach the question of whether section 114 — 1 should be applicable per se to juvenile delinquency proceedings. Even assuming arguendo that the section did so apply, however, it would not have given the court below the authority to dismiss the State’s petition in this instance, because none of the grounds for dismissal enumerated in section 114 — 1 is found in the case under consideration here.

We also disagree with the State’s contention that the juvenile court lacked the power to dismiss the petition because the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) fails to specifically grant the court such authority. In support of this argument, the State claims that section 4 — 8 of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 8), which states that the juvenile court may order the petition dismissed “[ajfter hearing the evidence ***” presented in support of the petition, is the only provision of the Act which contemplates dismissal of a petition and is therefore the only instance in which such an order may be lawfully made. The State claims that since no evidentiary hearing was held in this case, the court below lacked the authority to dismiss its petition. Again, we find that the reasoning in Lawson is relevant to the instant case, and points up the shortcomings in the State’s argument. The juvenile court’s authority to dismiss a petition for due process violations, similar to a trial court’s power to dismiss a criminal complaint or indictment on identical grounds, is an inherent authority which exists independently of any statutorily granted power which may be provided. Consequently, the absence of such specificity in the Juvenile Court Act is of no relevance here.

Although we disagree with the State’s contention that the juvenile court lacks the authority to dismiss a petition when there is a violation of due process, we find merit in the State’s claim that there was no actual and substantial prejudice to the minor respondent here in clear violation of due process which would have justified the court’s dismissal order. Lawson establishes the criteria by which substantial delays are to be evaluated in order to determine if such delays warrant dismissal. First, the respondent must come forward with a clear showing of actual and substantial prejudice. If this is shown, then the burden shifts to the State to show the reasonableness of the delay. The delay must amount to an “unequivocally clear denial of due process.” People v. Lawson (1977), 67 Ill. 2d 449, 456, 367 N.E.2d 1244, 1248.

A dismissal for want of prosecution may be authorized where the unreasonable delay so prejudices the respondent that it is tantamount to a violation of due process. (People v. Walker (1978), 57 Ill. App. 3d 77, 80, 372 N.E.2d 1084, 1086.) However, “[speculation as to future repeated continuances does not amount to actual prejudice. Nor can a mere continuance, on its own, be considered to substantially prejudice defendants [or respondents].” (People v. Gerena (1978), 63 Ill. App. 3d 960, 962, 380 N.E.2d 985, 987.) Furthermore, although it is in the court’s sound discretion to grant or deny a State’s motion to continue (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e); People v. Williams (1982), 92 Ill. 2d 109, 116, 440 N.E.2d 843, 846), a court abuses this discretion when it refuses such motion and either forces the State to proceed immediately to trial and apparent “acquittal” (People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8; People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374; People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117), or dismisses the charges for failure to prosecute where there has been no clear deprivation of due process. People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117; People v. Grimm (1979), 74 Ill. App. 3d 514, 392 N.E.2d 1138; People v. Guido (1973), 11 Ill. App. 3d 1067, 297 N.E.2d 18.

Rather than initially pursue these more extraordinary measures, the trial court should instead avail itself first of other less drastic sanctions to ensure that its calendar is followed and counsel are prepared for hearing. (See People v. Verstat (1983), 112 Ill. App. 3d 90, 102, 444 N.E.2d 1374, 1383; People v. Guido (1973), 11 Ill. App. 3d 1067, 1070, 297 N.E.2d 18, 20.) The more extreme sanction of dismissal should be imposed only where lesser remedies would be inappropriate or unavailable to mitigate the actual prejudice caused to the respondent. See In re McCall (1982), 108 Ill. App. 3d 164, 168-69, 438 N.E.2d 1269, 1272; People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 145, 441 N.E.2d 54, 59; People v. Stuckey (1979), 78 Ill. App. 3d 1085, 1090-91, 398 N.E.2d 97, 102; In re Daniels (1976), 37 Ill. App. 3d 975, 977, 347 N.E.2d 479, 480.

The record in this case is utterly devoid of any indication of the prejudice to the minor respondent which would have resulted had the court granted the State’s motion to continue the proceeding. No showing was attempted in the court below to demonstrate that the respondent would have been harmed by a further continuance to subpoena the State’s material witness; no similar effort has been made before this court to either make or substantiate such a claim. As a result, we can find nothing to indicate that a further short delay would have prejudiced the minor respondent in the case under review here.

Furthermore, a subsequent delay in order to compel the appearance of one of the State’s material witnesses would have been wholly reasonable and justified under the circumstances. The initial delay of one month occasioned by the State’s amendment of the charges in the petition was attributable to the State under People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508, as the minor respondent’s brief notes. The subsequent delay, also of approximately one month, was without question attributable to the respondent. Any further continuance which the court would have granted to the State would have been minimal and reasonable.

The minor respondent’s brief goes to great lengths to support the dismissal order by stressing the court’s duty to ensure an orderly and timely disposal of the cases before it. While we are not unmindful of this responsibility, we note that the juvenile court could have more appropriately discharged this duty by exercising its contempt power, for example, rather than dismissing the State’s petition for adjudication of wardship.

We therefore conclude that there was no showing of an actual and substantial prejudice to the minor respondent to justify the dismissal order of the court below. In addition, it is manifestly clear that a further continuance to the State in order to compel the appearance of its material witness would have been wholly reasonable under the circumstances.

In the conclusion paragraph of its brief on appeal, the State requests that this court grant it costs for prosecuting this appeal, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, Ill. Rev. Stat. 1981, ch. 33, pars. 5, 22, 25, Ill. Rev. Stat. 1981, ch. 38, pars. 110 — 7(i), 180 — 3, and Ill. Rev. Stat. 1981, ch. 53, par. 8. In the recent case of In re W.W. (1983), 97 Ill. 2d 53, 454 N.E.2d 207, however, the Illinois Supreme Court ruled that these statutory provisions and judicial interpretation provide no authority to assess fees and costs against a minor respondent for bringing an unsuccessful appeal in a juvenile delinquency action. The court reasoned that such an assessment would be contrary to the purposes of the Juvenile Court Act, which is to administer juvenile proceedings “in a spirit of humane concern for the minor and to promote both the welfare of the minor and the best interests of the community.” (97 Ill. 2d 53, 58, 454 N.E.2d 207, 210, citing Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2; In re Beasley (1977), 66 Ill. 2d 385, 389, 362 N.E.2d 1024.) It would appear that an assessment of costs would be even more contrary to this policy where, as here, the respondent has not attempted the appeal. We therefore deny the State’s request for fees and costs.

For the reasons stated above, this court concludes that although a juvenile court has in an appropriate case the inherent authority to dismiss the State’s petition for adjudication of wardship based on delinquency on the grounds of a clear violation of due process, we find nothing to indicate that the additional delay in the action under consideration here would have substantially prejudiced the respondent in violation thereof. For these reasons, the dismissal order of the court below is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded for further proceedings.

JIGANTI and LINN, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 205, COOK COUNTY, Plaintiff and Counterdefendant-Appellant, v. FACULTY ASSOCIATION OF DISTRICT 205, Defendant-Appellee—(Marion E. Fox, Defendant and Counterplaintiff-Appellee).
    First District (1st Division)
    No. 82—2942
    Opinion filed December 27, 1983.

      John H. Hager and David K. Staub, both of Gowen, Crowley & Hager, of Chicago, for appellant.
    Wayne Schwartzman, Peter M. Katsaros and Dale D. Pierson, all of Hirsh & Schwartzman, P.C., of Chicago, for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of a declaratory judgment action brought by the Board of Education of Township High School District No. 205 against the defendant Faculty Association of District 205. The board sought a declaration of inarbitrability and a stay of arbitration proceedings with respect to a labor grievance filed pursuant to a collective bargaining agreement. The faculty association had filed the grievance on behalf of Marion Fox, a school nurse who had been terminated by the board. The defendant faculty association answered plaintiff’s complaint, denying that the dispute was inarbitrable under the terms of the contract and prayed that plaintiff be ordered to submit the dispute to binding arbitration. Marion Fox was subsequently added as a party defendant and given leave to file a counterclaim. Therein, she advanced several theories of recovery, all of them culminating in a request that the school board be required to reinstate her and make her whole for all economic and emotional injuries resulting from her termination. Plaintiff appeals from an order of the trial court granting defendants’ motion for summary judgment with respect to the arbitrability issue and requiring the parties to arbitrate the dispute.

The record reveals that at all relevant times both the school board and the faculty association were parties to a collective bargaining agreement referred to as a “Professional Negotiations Contract” (contract). The preamble of the contract recognizes the faculty association as the exclusive bargaining agent for

“all professional certificated employees of the district eligible for active membership in the Association except psychologists, administrative assistants in charge of deans, administrative assistants in charge of counselors, administrative assistants in charge of student activities, assistant-principals, and central office administrative personnel.” (Emphasis added.)

The coverage under the contract is further elaborated in article IA of the substantive provisions wherein the faculty association is recognized as

“the exclusive and sole negotiating agent for all regularly employed certified personnel who are paid pursuant to the adopted salary schedule and as defined in the Professional Negotiations Contract.”

Article IB provides the following definition:

“The term ‘teacher’ or ‘certificated professional employee’ when used hereinafter in this agreement, shall refer to all employees represented by the Association in the negotiating units as determined in paragraph ‘A’ above.”

Marion Fox was a member of the faculty association and was employed by the school board as a registered professional nurse. On April 8, 1981, the school board honorably dismissed Ms. Fox due to declining enrollment. Pursuant to the “Professional Grievance Procedure” of the contract, the faculty association filed a grievance on behalf of Ms. Fox alleging among other things that the school board’s action violated the “reduction in personnel” section of the contract and that her termination was a reprisal for a prior strike action. The applicable contract grievance procedures are typical of labor contracts in general and provide for escalating steps in the processing of the labor grievance culminating in binding arbitration. The scope of grieva-ble issues subject to arbitration is broadly defined by the contract as

“[a] claim based upon an event or condition which affects the conditions or circumstances under which a teacher works, allegedly caused by misinterpretation or inequitable application of the terms of the Professional Negotiations Contract including the Substantive Agreement.” (Emphasis added.)

The school board apparently refused to process Ms. Fox’ grievance, whereupon the faculty association filed a formal demand for arbitration. The board responded by initiating the declaratory judgment action which forms the subject matter of the present appeal. Our review of the proceedings below is limited to the issue of whether the dispute over Marion Fox’ termination is arbitrable under the contract grievance provisions. We affirm the judgment of the trial court.

Initially, we note that the Illinois legislature and courts have recognized the unique function of arbitration in the context of labor-management relations. (See Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 375, 389 N.E.2d 647.) Accordingly, our case law draws a distinction between the guidelines applicable in determining the arbitrability of a dispute in a labor context as opposed to a commercial context. (Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 374-75, 389 N.E.2d 647.) This development of separate standards followed the lead established by the United States Supreme Court in a series of seminal cases commonly referred to as the Steelworkers Trilogy. (United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 4 L. Ed. 2d 1403, 80 S. Ct. 1343; United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347; United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358.) In United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 578, 4 L. Ed. 2d 1409, 1415, 80 S. Ct. 1347, 1351, the court commented on the distinction between arbitration in the commercial setting and labor arbitration in the setting of a collective bargaining agreement, noting:

“In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility envinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself.”

The court went on to establish a presumption in favor of the arbitra-bility of labor-management grievances:

“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” (Emphasis added.) 363 U.S. 574, 582-83, 4 L. Ed. 2d 1409, 1417-18, 80 S. Ct. 1347, 1353.

In Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47, our supreme court quoted extensively from the Steelworkers Trilogy, noting that labor arbitration was sui generis and a necessary compliment to labor negotiation. This court in Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 389 N.E .2d 647, specifically adopted the guidelines established by the Steelworkers Trilogy and the Illinois Supreme Court with respect to the arbitrability of disputes arising out of a collective bargaining agreement. (71 Ill. App. 3d 370, 374-75.) In doing so, the court rejected the standard developed in commercial cases that for an issue to be arbitrable it must be “ ‘stated in the contract in crystal clear language unextended and unenlarged either by construction or by implication.’ ” 71 Ill. App. 3d 370, 375.

It is against this backdrop that we note well-settled principle of arbitration law — the initial decision as to arbitrability is for the courts. (Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App. 3d 985, 988, 438 N.E .2d 614; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 375, 389 N.E.2d 647; Paschen Contractors, Inc. v. John J. Calnan Co. (1973), 13 Ill. App. 3d 485, 489, 300 N.E.2d 795.) While there is a presumption of arbitrability for disputes arising out of a collective bargaining agreement, arbitration remains a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit. (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 1417, 80 S. Ct. 1347, 1353; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 375, 389 N.E.2d 647.) A proper resolution of this case will therefore require a determination as to what types of disputes the parties to the contract have agreed to arbitrate.

Initially, the school board argues that Ms. Fox is not a member of the negotiating unit as defined in the contract preamble and articles IA and IB and, therefore, the contract grievance provisions are not applicable to her. The board contends that it has only agreed to arbitrate disputes with members of the given negotiating unit and it cannot be compelled to arbitrate the grievances of nonmembers. We reject this argument, finding the issue raised to be the subject of a binding judicial admission to the contrary.

Paragraph 10 of Ms. Fox’ counterclaim contains the following allegations which were admitted by the school board in its answer without qualification:

“The Faculty Association of District 205 had entered into a ‘Professional Negotiations Contract’ (hereafter, the ‘Contract’) with the Board for the 1980-81 school year. This Contract applied to Mrs. Fox at the time of her dismissal. See Article I, A & B of the Contract, attached hereto as Exhibit 2.”

It is axiomatic that an admission in an answer constitutes a formal judicial admission and is conclusive on the person making it. (Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1022, 327 N.E.2d 346; Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App. 3d 671, 676, 306 N.E.2d 498.) Accordingly, the school board’s specific admission is binding and it may not now disclaim the fact that the contract is applicable to Ms. Fox as a member of the negotiating unit defined in articles IA and IB of the contract.

Next, the school board argues that the grievance is inarbitrable because the resolution of the dispute will necessarily require a construction of the tenure provisions of the School Code. (Ill. Rev. Stat. 1981, ch. 122, pars. 24 — 11 through 24 — 16.) The board contends that it has only agreed to arbitrate matters “arising out of the misinterpretation or inequitable application of the terms” of the contract and not matters of State law. The defendants argue that the dispute falls within the ambit of the arbitration clause as a dispute arising out of the application of the “reduction in personnel” provisions of the contract.

The relevant contractual provision regulates the order in which school personnel are to be dismissed because of declining enrollment. As the school board correctly contends, this contractual provision requires that nontenured personnel be terminated before tenured personnel. Thus, a determination as to how the “reduction in personnel” provision applies to Ms. Fox may ultimately be resolved according to whether or not she is tenured under the School Code. However, we cannot agree that an arbitrator’s decision will necessarily require a finding that Ms. Fox is entitled to statutory tenure. In this regard, we note that defendants have not limited themselves to arguments based on Ms. Fox’ right to tenure under the School Code. Defendants also advance their cause under a theory of promissory estoppel based on the past practices and assurances of the school board. Clearly, statutory tenure with its full panoply of procedural safeguards may not be obtained by estoppel. However, equitable principles may estop the school board from denying that Ms. Fox is tenured solely for purposes of applying the “reduction in personnel” provision of the contract. Viewed in this light, Ms. Fox’ grievance clearly arises from an alleged “misinterpretation or inequitable application of the terms” of the contract and falls squarely within the provisions of the arbitration clause.

Furthermore, we are not convinced that the parties intended to preclude a construction of the School Code tenure provisions. It is true that the contract requires the arbitrator to base his decision “solely upon his interpretation of the meaning or application of the express relevant language” of the contract. However, the term “contractual continued service” (tenure) expressly appears in the relevant contract provision and the arbitrator’s “interpretation of the meaning” of this express term, which is explicitly permitted under the contract, must of necessity refer to the School Code provisions regulating tenure. Therefore, we must conclude that in the first instance, the parties have bargained for an arbitrator’s interpretation of the School Code tenure provisions, not the court’s. Accordingly, we hold that the initial determination of Ms. Fox’ tenure status for purposes of applying the “reduction in personnel” contract provisions should be done by an arbitrator, subject to ultimate judicial review in the event of an appeal.

Finally, the school board argues that Ms. Fox’ conduct in filing a counterclaim amounts to a waiver of her contractual right to arbitration. We disagree, finding the resolution of this issue to be controlled by the result in Kessler, Merci, & Lochner, Inc. v. Pioneer Bank & Trust Co. (1981), 101 Ill. App. 3d 502, 428 N.E.2d 608. In Kessler, one of the parties initially set up an arbitration agreement as an affirmative defense and counterclaimed, in the alternative, through an action at law for damages. The court held that such action was not so inconsistent with the contractual right to arbitration so as to amount to a waiver of that right. (101 Ill. App. 3d 502, 509.) In the present case, defendants initially asserted their contractual right to arbitration when answering the school board’s complaint and also asked the trial court to order the board to proceed with arbitration. Accordingly, under Kessler the subsequent filing of a counterclaim seeking damages does not constitute a waiver.

We believe our holdings here are consistent with the laudable public policy of encouraging labor arbitration as a substitute for disruptive concerted action. To the extent that resort to labor arbitration is hindered, strikes and other labor disturbances are promoted as a means of resolving labor-management disputes. Accordingly, we affirm the judgment of the circuit court of Cook County requiring the parties to arbitrate the dispute.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    JOHN C. LAUE, Plaintiff-Appellee, v. NANCY J. LEIFHEIT, Defendant-Appellant.
    Second District
    No. 83—192
    Opinion filed December 29, 1983.

      Norman H. Racine, of Racine & Racine, and Peter Thomas Smith, both of Sycamore, for appellant.
    Fearer & Nye, of Oregon, for appellee.
   JUSTICE UNVERZAGT

delivered, the opinion of the court:

Plaintiff, John C. Laue, sued the defendant, Nancy J. Leifheit, for contribution under “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) (the Contribution Act). Laue received a judgment of $52,800 and Leifheit appeals.

In a prior action based on negligence, the defendant here, Leifheit, joined with four other members of her family as plaintiffs, and all recovered from a truck operator, plaintiff here, John C. Laue, their respective damages for personal injuries suffered in a car-truck collision. Leifheit and Laue were the respective drivers. After verdict and judgment in that action, Laue filed the instant complaint for contribution by Leifheit to the damages paid by him to Leifheit’s four family members. Laue filed a motion for judgment on the pleadings which was granted. Leifheit was ordered to make contribution to Laue of 33% of the damages which were paid by him to Leifheit’s co-plaintiffs in the previous personal injury action. Thirty-three percent was the jury’s assessment of Leifheit’s comparative negligence in causing her own injuries in the prior action.

There are five issues on appeal: (1) whether Laue’s separate complaint for contribution is barred by the Contribution Act and/or whether Leifheit waived this issue; (2) whether the doctrine of collateral estoppel precluded litigation of Leifheit’s liability to her injured passengers; (3) whether the court erroneously denied Leifheit’s motions to strike and dismiss the complaint; (4) whether the court erred in granting Laue’s motion to strike explicit denials from Leifheit’s answer; (5) whether the court erred in granting judgment on the pleadings.

Leifheit first contends Laue’s failure to assert his claim for contribution during the pendency of the original action by way of counterclaim bars him from bringing the instant suit. In support, Leifheit cites a recent case which construes section 5 of the Contribution Act, Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240. Section 5 provides:

“Sec. 5. Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” Ill. Rev. Stat. 1981, ch. 70, par. 305.

Tisoncik interprets that section to mean that a contribution claim may be asserted by a separate action before or after payment in situations where no suit is pending which was initiated by the injured party. However, “when there is a pending action, the contribution claim should be asserted ‘by counterclaim or by third-party claim’ in that action.” Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245.

The court pronounced its interpretation in the context of determining whether the sole remaining defendant against whom the jury’s verdict was entered had standing to appeal the dismissal of its co-defendants, one by directed verdict and one at plaintiff’s request. The court noted the general rule in Illinois that the only party who may appeal from a directed verdict in favor of a co-defendant is the plaintiff, and that the right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from. The court observed that the remaining defendant’s right to contribution was not prejudiced by the court’s dismissal of its co-defendant. The court determined that because defendant did not assert its right to contribution by counterclaim or third-party complaint in the cause below, the issues relevant to contribution were not resolved in that cause, thus defendant could not claim its interest in seeking contribution from the dismissed co-defendant was prejudiced and, therefore, had no standing to appeal the dismissal.

The Tisoncik court acknowledged the legislative history of the Act compiled by the Chicago Bar Association Civil Practice Committee wherein section 5 is described as being a restatement of Illinois law which gave the defendant the right to assume the posture that he is not liable at all, and to elect not to cross-claim lest he create the impression that he is liable. (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245-46.) Nevertheless, the court observed that the legislative debates preceding passage of the Contribution Act evidenced the concern of the legislators about increased litigation as a result of the Act. Consequently, the court concluded “the language and punctuation used in section 5 clearly indicate the legislative intent that where there is a pending action, the cause of action for contribution among joint tortfeasors is to be asserted by a counterclaim or third-party complaint in the pending action.” 113 Ill. App. 3d 240, 246.

Our reading of the legislative debates in the House and Senate causes us to conclude that the Tisoncik interpretation gives unwarranted credence to the debate comments concerning increased litigation, and ignores the plain language of the statute.

The Act passed overwhelmingly in both the House (122 “aye,” 6 “nay,” 3 “present”) and the Senate (39 “aye,” 6 “nay,” 5 “present”). Further, during his presentation of the bill, Representative Daniels was asked the following question:

“Kane: ‘Is this a separate action from the original suit?’
Daniels: ‘Yes, if [pause] if there is a dispute between [sic] the contribution, then there would be a separate action between the people that are responsible for the negligence or the damages or [pause] or monetary amount.’ ” Record of Proceedings of the 81st General Assembly, Reg. Session, 3rd reading in the House of S.B. 308, at 19 (June 14,1979).

We conclude Laue’s present cause of action for contribution is not barred, and that the Tisoncik interpretation is not applicable to the facts of this case and not controlling here. Further, we do not agree with Laue’s contention that this issue was waived because the fact that Laue had not filed a counterclaim for contribution was raised in the pleadings below in Leifheit’s motion to dismiss.

Leifheit next argues the doctrine of collateral estoppel was improperly applied here in granting Laue’s motion for judgment on the pleadings. Briefly stated, collateral estoppel is invoked to prevent the relitigation of the same issue which was decided in a prior action and which issue is also material to the resolution of the present action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 433-34.) Leifheit points out these issues among others were determined in the prior action: (1) her conduct as an undue risk of harm to herself, (2) the causal relationship between her conduct and the injuries she sustained, and (3) the amount by which her damages should be reduced as attributable to her contributory negligence. She contends there are these different issues in the case at bar which should not be precluded from litigation by the collateral estoppel doctrine: (1) her liability to her passengers, and (2) her culpability, if any, relative to the culpability of Laue in causing her passengers’ injuries.

At the hearing on the motion for judgment on the pleadings, Leifheit pointed out the jury’s verdict as to comparative negligence related only to the degree to which she was responsible for causing her own injuries. That determination then established the percentage by which her recovery from Laue was to be reduced. The court responded:

“THE COURT: Well, it axiomatically follows if it contributed to her injuries, it would also contribute to the injuries of the other people in her car.
Perhaps the Appellate Court will take a different view of this. This has never been decided. I think it’s a correct interpretation of the statute so these things don’t go on in adfinitum [sic].
I think the factual issue of relative fault is what you’re getting at here, was actually determined by this jury. Therefore,
I’m granting the motion for judgment on the pleadings, and we’ll see what the Second District has to say, if you appeal.”

The jury instructions from the trial below which were appended to Leifheit’s motion to dismiss support her position here; that is, that the jury found her 33% negligent in causing her own injuries. The jury was instructed that each plaintiff had a duty to use ordinary care for his or her own safety, and that a failure in this regard was known as contributory negligence. The jury was also instructed the plaintiff’s contributory negligence does not bar recovery, but that the total amount of damages would be reduced in proportion to the amount of his or her negligence, and that this was known as comparative negligence. Although the jury was instructed the rights of the five plaintiffs in the suit were separate and distinct and should be decided as if they were five separate suits, it was also instructed that “The issue of contributory negligence does not apply to the [passenger] plaintiffs, MARILYN J. LEIFHEIT, JASON O. S. THOMPSON, a minor child, CYNTHIA THOMPSON, and RONALD LEIFHEIT.” (Emphasis added.) Consequently, the contributory negligence if any, of Leifheit’s four passengers was never calculated as part of the total comparative negligence equation.

Laue argues the jury found both his and Liefheit’s negligence contributed to the accident and that “just as clearly Leifheit owed a duty to her passengers to be free from negligence.” He cites Houser v. Witt (1982), 111 Ill. App. 3d 123, and Bielski v. Schulze (1962), 16 Wis. 2d 1, 114 N.W.2d 105, in support of the proposition that a comparative negligence finding determines the distribution of liability for contribution purposes. However, as pointed out by Leifheit, in both those cases there was a counterclaim filed for contribution and the respective juries were thus presented with the question yet unresolved in the case at bar; to-wit: her liability to her passengers.

In Houser, the defendant Witt settled for $42,500 with the two plaintiffs, Dennis and Judith Houser, who brought suit for their personal injuries. Thereafter, Dennis voluntarily dismissed his suit for personal injuries, whereupon Witt amended his answer to allege comparative negligence and he included a counterclaim for contribution against Dennis. Specifically, Witt’s “allegation of comparative negligence was based upon an inputation [sic] of negligence from Dennis to Judith.” (Ill Ill. App. 3d 123, 124.) The jury found the comparative negligence of Dennis and Witt to be 60% and 40%, respectively. However, the court directed a verdict in favor of Dennis on the contribution claim because there had been no apportionment of the settlement amount between Dennis and Judith; therefore, Witt could not show that he had paid more than his pro rata share of the damages for Judith’s injuries. The appellate court affirmed.

Bielski, a Wisconsin case, is distinguishable because the liability of the co-tortfeasor was litigated by virtue of the cross-complaint for contribution. In that case, plaintiffs, a husband and wife, sued defendant and his insurer for their injuries in an accident occurring between the cars driven respectively by the husband and the defendant. The defendant and his insurer then impleaded the husband’s insurer and cross-complained for contribution. The jury found the husband causally negligent as to speed, apportioned 95% of the total causal negligence to the defendant and 5% to the husband. The wife was ultimately awarded $25,000 and the defendant’s insurer obtained a judgment for contribution of $12,500 from the husband’s insurer, from which judgment the husband’s insurer appealed. The appellate court pointed out that the part of the case relating to the husband’s recovery was not before it. The court found inequitable and unjust its then-present contribution rule (“automatic method of determining the number of equal shares between the number of joint tortfeasors”), replacing it with the method which determines the amount of the shares in proportion to the percentage of causal negligence attributable to each tortfeasor. (Bielski v. Schulze (1962), 16 Ill. Wis. 2d 1, 6-7, 114 N.W.2d 105, 107-08.) Accordingly, the court reduced the judgment for contribution against the husband’s insurer to $1,250, which was 5% of the $25,000 judgment.

Although Laue suggests that Bielski supports his position because the contribution ordered to be paid by the husband’s insurer was reduced to reflect the husband’s 5% negligence, the fact nevertheless remains that the issue of contribution was raised by cross-complaint in that case.

We find of interest a law review comment which examined the Contribution Act. In Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 189 (1980), the author observed that:

“[T]he consequences of seeking contribution in a separate action may be so detrimental that it could force the contribution issue to be raised in the original action. For example, the failure to assert either a third party claim or a counterclaim for contribution could result in the claimant being required to carry the entire burden of proof as to the negligence of each tortfeasor, and thus being forced to relitigate all the prior issues. Additionally, if the defendant fails to assert a cross-claim, he may run the risk of being unable to appeal a ruling favorable to his co-defendant, and may find his subsequent claim barred by res judicata.” (Emphasis added.)

Leifheit was a plaintiff in the cause below, not a defendant. Under the contribution statute, Laue could have counterclaimed against her for contribution. Laue’s brief here indicates his strategy— and, he argues, his right — at trial in not counterclaiming in the original suit was to avoid evoking the jury’s sympathy for Leifheit since a verdict against her could have resulted in her paying for part of her family’s damages.

As Leifheit points out, the court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 122, observed several reasons for retaining joint and several liability even though under the doctrine of comparative negligence damages are apportioned according to each party’s fault. One of those reasons was that apportioning fault on a comparative basis does not make an indivisible injury “divisible” merely because it is possible to assign a percentage figure to the relative culpability of one negligent defendant compared to another. Another reason, pertinent to the issue here, is that:

“(3) Even in cases where a plaintiff is partially at fault, his culpability is not equivalent to that of a defendant. The plaintiff’s negligence relates only to a lack of due care for his own safety while the defendant’s negligence relates to a lack of due care for the safety of others; the latter is tortious, but the former is not.” 97 Ill. 2d 104, 122.

Additional support for Leifheit’s position on this issue is found in Woods, Comparative Fault sec. 20:21-22 (1978). There it is suggested that in two-car collisions, the guest will generally sue the other driver along with his host driver. When such a case is submitted to the jury on special verdict, the jury would be asked to determine whether the host driver was guilty of wilful and wanton conduct which was a proximate cause of the occurrence; whether the other driver was guilty of negligence which was a proximate cause of the occurrence; and whether the plaintiff was guilty of negligence which was a proximate cause of the occurrence. If there is more than one affirmative answer, the jury is asked to apportion the fault among the parties found responsible, using 100% to represent the total responsibility of the occurrence. Lastly, the jury is asked to state the amount of damages sustained by the plaintiff as the result of the occurrence.

In the case at bar, the 33% negligence attributable to Leifheit as a proximate cause of the injury to herself related only to a lack of due care for her own safety, and so the damages to which she would otherwise have been entitled ($60,000) were to be reduced by that amount. We note here the court’s judgment in the amount of $40,000 actually represents a 331/3% reduction. No reason for the discrepancy is evident in the record on appeal.

In sum, we agree with Leifheit that she was improperly precluded from litigating the issues of her liability to her passengers and her culpability relative to Laue’s. The jury’s finding that 33% of the combined negligence which caused the damage to Leifheit was attributable to her does not translate to a judgment that she is therefore subject to liability in tort in that percentage as well. Consequently, for purposes of a contribution action, her liability “in tort” has never been established; only her lack of due care for her own safety.

Next, Leifheit argues the court erred in denying her motions to strike and dismiss Laue’s complaint for contribution for failure to state a cause of action. She points out the jury’s answers to the special interrogatories attached as exhibits to the complaint negate the allegations in the complaint that the jury’s verdict found her negligence “to be thirty-three percent (33%) of the negligence that proximately caused the personal injuries in the accident ***.” Rather, the exhibits show the jury found Leifheit’s damages ($60,000) should be reduced by 33%, which the jury felt was the percentage of the total combined negligence which proximately caused the injury to her which could be attributed to her. The jury’s verdicts found no negligence on the part of the remaining plaintiffs which would reduce their damages.

Laue offers no argument on this issue in his brief except to state that “it is natural justice here to find that the complaint states a cause of action for contribution based on the prior action ***.”

A complaint is properly dismissed where the facts alleged in a complaint on their face demonstrate that the plaintiff would never be entitled to recover. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 13.) Exhibits attached to a complaint are an integral part of the complaint and must be so considered. (Fowley v. Braden (1954), 4 Ill. 2d 355, 360.) They are a part of the pleading for all purposes. (Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634.) Although generally a motion to dismiss admits all facts well pleaded, such a motion does not admit allegations of the complaint in conflict with facts disclosed in an exhibit. Wilbur Waggoner Equipment Rental & Excavating Co. v. Johnson (1975), 33 Ill. App. 3d 358.

The complaint at bar fails to state a cause of action for contribution in that it alleges no facts which, if proven, would establish Leifheit was “subject to liability in tort.” The right of contribution exists where “2 or more persons are subject to liability in tort arising out of the same injury to person or property ***.” (Ill. Rev. Stat. 1981, ch. 70, par. 302(a).) Laue’s complaint doe not allege Leifheit was negligent; to-wit: that she had a duty which she breached, which proximately caused the injury and which resulted in damages. (Cf. Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 966-67 (where counterclaim for contribution from minor plaintiffs’ father alleged father was negligent due to driving at excessive speed, failing to keep lookout, failing to control vehicle, failing to apply brakes, failing to yield the right-of-way, failing to decrease speed to avoid a collision, and otherwise being negligent and careless in his conduct).) Laue’s allegation that Leifheit’s negligence was “thirty-three percent (33%) of the negligence that proximately caused the personal injuries in the accident” is inconsistent with the jury verdict attached to the complaint, and is not taken as true for purposes of a motion to dismiss. The verdict on its face showed Leifheit was 33% contributorily negligent in causing her own injuries, not 33% negligent in proximately causing the injuries of the other'plaintiffs.

Leifheit’s motion to strike and dismiss specifically pointed out the defects now raised on appeal, and it was error for the court to deny her motions. The facts set forth in Laue’s complaint failed to state a cause of action for contribution.

Leifheit also contends the court erred by striking certain denials from her answer to Laue’s complaint. Upon Laue’s motion filed seeking relief under the false-pleading provisions of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611), the court struck three of the denials included in Leifheit’s answer. She denied her negligence was 33% of the negligence that proximately caused the personal injuries in the accident, except as to her own injuries; denied the court reduced her damages by 33%; and denied that Laue had paid 33% more than his pro rata share of the common liability of himself and Leifheit.

Leifheit argues the court erred in striking these denials because a pleading, or portion thereof, may be striken only if “substantially insufficient in law” or “immaterial.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615(a).) Additionally, she contends where the defendant by answer specifically and expressly denies essential material allegations in the complaint, it is error for the trial court to sustain a plaintiff’s motion to strike those denials. In support, she cites Williamson v. American Insurance Union, Inc. (1936), 284 Ill. App. 150, and Minor v. Universal C.I.T. Credit Corp. (1960), 27 Ill. App. 2d 330. Those cases, however, were not concerned with striking untrue denials; rather, they stated the general rule that on a motion for judgment on the pleadings, the court may consider the material facts which are not denied, and if any material fact is made an issue, judgment on the pleadings cannot be entered. (Minor v. Universal C.I.T. Credit Corp. (1960), 27 Ill. App. 2d 330, 332.) Laue offers no argument in response to support the court’s judgment.

The party seeking 2 — 611 relief has the burden of establishing both that the statements were untrue and that they were made without reasonable cause. (Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98.) If these requirements can be proved or rebutted on the basis of the pleadings or of the trial evidence, a separate hearing is not required. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500.) The court’s order here recited Laue’s motion to strike was heard and that it was “fully advised in the premises.” Ordinarily, in the absence of a report of proceedings, it is assumed that the court’s judgment was supported by the evidence and should be affirmed. Peoria Savings & Loan Association v. American Savings Association (1982), 109 Ill. App. 3d 1043.

Here, however, the pleadings and exhibits on their face rebut the presumption that the court’s judgment was supported by the evidence. As stated previously, Leifheit’s 33% negligence was contributory negligence as to her injuries. She had not been found liable in the prior action and so Laue could not have paid more than his fro rata share of a “common liability” which had not yet been determined. Further, the court’s reduction of her damages from $60,000 to $40,000 represents 331/s% reduction, not a 33% reduction. Consequently, Leifheit’s denials were not untrue, and the court erred in striking them.

Lastly, Leifheit correctly states the rule that a motion for judgment on the pleadings may be allowed only when the court is able to determine the rights of the parties from the pleadings alone. (In re Estate of Rettig (1981), 100 Ill. App. 3d 653.) If any material fact is made an issue, judgment on the pleadings may not be entered (Minor v. Universal C.I.T. Credit Corp. (1960), 27 Ill. App. 2d 330), and denial of a material fact alleged in the complaint is, standing alone, sufficient to preclude judgment on the pleadings. (Zipf v. Allstate Insurance Co. (1977), 54 Ill. App. 3d 103.) A court may consider only those allegations contained in the motion for judgment on the pleadings which are admitted by the other party. Rhodes v. Rhodes (1967), 82 Ill. App. 2d 435.

Recently, this court has stated:

“A motion for judgment on the pleadings tests the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by his complaint or, alternatively, whether defendant by his answer has set up a defense which would entitle him to a hearing on the merits. [Citations.] The motion must be denied if there is any material issue of fact; furthermore, the motion admits the truth of the facts well pleaded by the opposite party. [Citation.] In addition, the moving party admits the untruth of his own controverted allegations. [Citation.]” Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 3.

Laue does not dispute these principles, but only refers back to Bielski v. Schulze (1962), 16 Wis. 2d 1, 9, 114 N.W.2d 105, 109, where it is stated:

“If the doctrine [of contribution] is to do equity, there is no reason in logic or in natural justice why the shares of common liability of joint tortfeasors should not be translated into the percentage of the causal negligence which contributed to the injury.”

Laue contends it is “natural justice” to find the complaint states a cause of action for contribution, and because Leifheit’s denials were untrue and properly stricken, there was no fact disputed and the case “boiled down to a legal question.”

Even assuming, arguendo, the denials were properly stricken, and without even considering Leifheit’s answer, the complaint and its exhibits themselves contradict each other as to the same material facts which were denied by Leifheit. The verdicts attached to the complaint as exhibits do not show Leifheit’s negligence was 33% of the negligence which proximately caused the personal injuries in the accident; they do not show her damages were reduced by 33%; and they do not show she had any common liability with Laue toward the other plaintiffs. As such, the pleadings did not establish Laue’s right to contribution as a matter of law, and it was error for the court to enter judgment on the pleadings.

The judgment of the circuit court of De Kalb County is reversed and the cause remanded for dismissal of the complaint for failure to state a cause of action.

Reversed and remanded with directions.

HOPE and NASH, JJ., concur.