author: JUSTICE JONES

text:
    ALLIS-CHALMERS CORPORATION et al., Plaintiffs-Appellees, v. JERRY STAGGS et al., Defendants-Appellants.
    Fifth District
    No. 82 — 453
    Opinion filed September 2, 1983.
    Mark Tungate, of Bowen, Miller & Tungate, of Flora, for appellant Fred Bailey.
    James F. Jarrett, of Schniederjon, Weber, Harvey and Stephens, of Effingham, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

This replevin action was instituted by the plaintiffs, Allis-Chalmers Corporation and Allis-Chalmers Distribution Service Corporation, to recover from the defendant, Fred Bailey, personal property in which the plaintiffs claimed to have a perfected security interest. The trial court granted the plaintiffs’ motion for summary judgment, finding as a matter of law that the parties had conflicting security interests in the disputed property and that the plaintiffs’ security interest was prior in time and thus superior to the defendant’s. The defendant contends on appeal that the trial court erred in construing the plaintiffs’ security interest too broadly and that an issue of fact thus remains as to the extent of the parties’ interest in the property. We agree and accordingly reverse the court’s grant of summary judgment.

On July 19, 1979, debtor Staggs Farm Equipment, Inc. (Staggs), an Allis-Chalmers dealer, granted the plaintiffs a security interest pursuant to the terms of two separate security agreements. The property named as collateral in the agreement with Allis-Chalmers Corporation was described as follows:

“The Debtor’s inventory of new machinery manufactured or sold by Secured Party, attachments, accessories and replacement parts therefor now owned or hereafter acquired by the Debtor from the Secured Party plus all proceeds derived therefrom. The collateral is more specifically described in Debtor’s purchase orders, invoices, and periodic inventories signed by both parties. For the purpose of identification, such purchase orders, invoices and inventories, as and when executed, are by reference made a part hereof.” (Emphasis added.)

The agreement with Allis-Chalmers Distribution Service corporation contained a virtually identical description as follows:

“The Debtor’s inventory of new machinery manufactured or sold by Allis-Chalmers Corporation, attachments, accessories and replacement parts therefor now owned or hereafter acquired by the Debtor from Allis-Chalmers Corporation, plus all proceeds derived therefrom. The collateral is more specifically described in Debtor’s purchase orders, invoices, and periodic inventories signed by Debtors and Allis-Chalmers Corporation. For the purpose of identification, such purchase orders, invoices and inventories, as and when executed, are by reference made a part hereof.” (Emphasis added.)

On July 25, 1979, the plaintiffs filed their respective financing statements with the Illinois Secretary of State. Both statements described the collateral as follows:

“The debtor’s inventory of new and used Farm Equipment, new and used Lawn and Garden Equipment, together with implements, attachments and accessories thereto and replacement parts therefor manufactured by or offered for sale by Allis-Chalmers Corporation now owned or hereafter acquired, on which the debtor has given or hereafter grants Allis-Chalmers Corporation a security interest. Proceeds of Collateral are also covered.” (Emphasis added.)

On February 20, 1980, Staggs purchased a farm implement business from defendant Bailey, another Allis-Chalmers dealer, pursuant to the terms of a contract for sale executed on that date. Included in the transaction was the sale of parts in stock as inventoried on February 1, 1980, and valued at $100,000. Bailey filed a financing statement with the Illinois Secretary of State on February 29, 1980, in which the collateral was described as follows:

“All stock in trade, inventory, parts and replacement parts now owned or hereinafter [:sic] acquired and all accounts receivable and chattel paper now owned or hereinafter [sic] acquired.”

Staggs discontinued business operations in August 1981, and on September 28, 1981, the plaintiffs brought the instant replevin suit. In their complaint the plaintiffs sought to recover from defendant Bailey the inventory of Staggs that Staggs “[had given] or granted Plaintiffs a security interest in.”

The plaintiffs subsequently moved for summary judgment based on the priority of their security interest over that of defendant Bailey. Bailey likewise filed a motion for summary judgment in which he maintained that the plaintiffs’ security interest did not cover the property that he sold to Staggs by contract on February 20,1980.

After hearing arguments of the parties, the trial court granted the plaintiffs’ motion for summary judgment. The court’s judgment was based on the following findings:

“7. On July 25, 1979, Plaintiffs perfected a security interest in ‘The debtor’s inventory of new and used Farm Equipment, new and used Lawn and Garden Equipment together with implements, attachments and accessories thereto and replacement parts therefor manufactured by or offered for sale by Allis-Chalmers Corporation now owned or hereafter acquired, on which the debtor has given or hereafter grants Allis-Chalmers Corporation a security interest,’ including proceedings [sic] from said collateral.
* * *
9. Subsequent, and unbeknownest [sic] to Plaintiffs, on February 29, 1980, Defendant filed a financing statement with the Secretary of State’s office claiming a security interest in ‘all stock in trade, inventory, parts and replacements [sic] parts now owned or hereinafter acquired and all accounts receivable and chattel paper now owned or hereinafter acquired,’ which
did not include proceeds from said collateral.
* * *
11. Plaintiffs and Defendant, FRED BAILEY, have conflicting security interests in ‘The debtor’s inventory of new and used Farm Equipment, new and used Lawn and Garden Equipment, together with implements, attachments, and accessories thereto and replacement parts therefor manufactured by or offered for sale by Allis-Chalmers Corporation now owned or hereafter acquired.’
12. ‘Conflicting security interests rank according to priority in time of filing or perfection.’ Ill. Rev. Stat. Ch. 26, 9— 312(5)(a).
13. Plaintiffs [sic] perfected security interest ranks higher than Defendant, FRED BAILEY’s because it was filed and perfected prior in time.
14. There is no genuine issue of fact to be determined by the Court as to Count I of the Plaintiffs’ Complaint.”

On appeal from this judgment defendant Bailey contends that the plaintiffs’ security interest was limited by the terms of their security agreements to inventory owned by Staggs on July 19, 1979, or acquired by Staggs from Allis-Chalmers corporation after that date, including proceeds of that inventory. Thus, inventory acquired from defendant Bailey under the contract of February 20, 1980, would not have come within the description of property covered by the plaintiffs’ security interest. Since the plaintiffs had no interest in the property sold to Staggs under the contract, Bailey asserts, there is no conflict between the parties’ security interests as to this property, and the rule regarding conflicting security interests does not apply.

As defendant Bailey points out, the trial court’s finding that the parties had conflicting security interests was based on the description of collateral contained in the plaintiffs’ financing statements. This description varies somewhat from the description in the plaintiffs’ security agreements in that it does not restrict the plaintiffs’ interest in after-acquired inventory to that “acquired by the Debtor from Allis-Chalmers Corporation.” Rather, the financing statement description refers to inventory “manufactured by or offered for sale by Allis-Chalmers Corporation.” From this description the trial court found that the plaintiffs’ security interest extended to all after-acquired inventory manufactured by Allis-Chalmers, including that acquired from a third party.

Because of this discrepancy the validity of the trial court’s decision depends upon whether the description found in the plaintiffs’ financing statements was sufficient to extend the plaintiffs’ security interest to all after-acquired Allis-Chalmers inventory. While we are aware of no Illinois case dealing with the effect of such a discrepancy between a financing statement and a security agreement, courts in other jurisdictions have interpreted the applicable provisions of the Uniform Commercial Code (Code) to hold that when a financing statement describes a greater quantity of property than that described in the corresponding security agreement, the security interest is defined by the narrower description contained in the security agreement. (See, e.g., Mitchell v. Shepherd Mall State Bank (10th Cir. 1972), 458 F.2d 700; In re Mann (W.D. Va. 1970), 318 F. Supp. 32; Jones & Laughlin Supply v. Dugan Production Corp. (N.M. App. 1973), 85 N.M. 51, 508 P.2d 1348; see also American Card Co. v. H.M.H. Co. (1963), 97 R.I. 59, 196 A.2d 150; Cain v. Country. Club Delicatessen of Saybrook, Inc. (1964), 25 Conn. Supp. 327, 203 A.2d 441.) An examination of these decisions and the Code provisions upon which they rely leads us to adopt this rule in the instant case.

In holding that a broader description of collateral in a financing statement is ineffective to extend a security interest beyond that stated in the security agreement, courts have noted that it is the security agreement itself that “creates or provides for a security interest” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 105(1)(1)). The function of the financing statement is merely to put third parties on notice that the secured party who filed it may have a perfected security interest in the collateral described. (Mitchell v. Shepherd Mall State Bank.) The Code further provides that a security agreement “is effective according to its terms” (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 201) (emphasis added), and section 9 — 203(l)(a) (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 203(l)(a)) states that a security interest is not effective against third parties unless the debtor has signed a security agreement which contains, a description of the collateral. These provisions indicate that a security interest cannot exist in the absence of a security agreement (see In re Mann), and it follows that a security interest is limited to property described in the security agreement. Jones & Laughlin Sup ply v. Dugan Production Corp.; Mitchell v. Shepherd Mall State Bank.

This view has been expressed by the authors of the Illinois Code Comment in referring to section 9 — 110 of the Code, which states the requirement for sufficiency of a description under article 9. They observe:

“It is important to bear in mind *** that a general description adequate in a financing statement (sec. 9 — 402) may not be sufficient in the underlying security agreement (sec. 9— 203(l)(a)). The former is solely to give notice; the latter creates substantive rights in collateral. *** The security agreement and the financing statement are double screens through which the secured party’s rights to collateral are viewed, and his rights are measured by the narrower of the two. [Citations.]” Ill. Ann. Stat., ch. 26, par. 9 — 110, Illinois Code Comment, at 85 (Smith-Hurd 1974.)

To the same effect is the commentary accompanying section 9— 110 in 4 Andersen, Uniform Commercial Code 124-25 (2d ed. 1971):

“When there is a conflict between the financing statement on file and the security agreement as to the property involved, the latter prevails for the reason that no security interest can exist in the absence of a security agreement, and therefore a financing statement which goes beyond the scope of the agreement has no effect to that extent.
* * *
Inconsistency between the financing statement and the security agreement may *** arise where the financing statement states a greater or lesser quantity than the security agreement. The description in the financing statement can neither reduce nor enlarge the security interest actually created by the parties. Consequently, when the financing statement describes a greater quantity of property or additional property beyond that described in the security agreement, the ‘surplus’ description has no effect; the security interest is only as extensive as the property described in the security agreement and the financing statement is not effective to do more than perfect the interest in that property.”

Applying this rule to the instant case, we find that the trial court erred in determining the parties’ rights in the disputed property by reference to the description of collateral contained in the plaintiffs’ financing stateménts. The plaintiffs’ security interest was limited, therefore, to that portion of Staggs’ inventory that was owned by Staggs on July 19, 1979, or acquired thereafter by Staggs from Allis-Chalmers, and it could not be extended by the broader description contained in the plaintiffs’ financing statements. We note parenthetically that the trial court overlooked the final clause of the financing statement description that referred to inventory “on which the debtor has given or hereafter grants Allis-Chalmers Corporation a security interest” in making its ruling. Since the plaintiffs had no interest in Allis-Chalmers inventory acquired after July 19, 1979, from a third party, Bailey is entitled to this inventory by virtue of his purchase money security interest in property sold under the contract of February 20,1980.

The parties concede on appeal that there is no dispute as to defendant Bailey’s superior right to non-Allis-Chalmers parts in the debtor’s inventory nor as to the plaintiffs’ superior claim to Allis-Chalmers parts purchased directly by Staggs from Allis-Chalmers Corporation after July 19, 1979. A question of fact remains, however, as to which of the Allis-Chalmers parts in Staggs’ inventory were purchased from Allis-Chalmers and which were purchased from defendant Bailey pursuant to the contract of February 20, 1980. The trial court was not justified, as the plaintiffs assert, in assuming that the inventory purchased from defendant Bailey had been sold and then replaced by parts purchased from Allis-Chalmers in the year and a half that Staggs remained in business following the sale of February 20, 1980. Further, although the trial court had before it a computer printout of all the parts in Staggs’ inventory on the date of closing, the record does not indicate, by way of invoices, purchase orders, or other documents, which parts in this inventory were purchased directly from Allis-Chalmers and which were derived from defendant Bailey.

Since an issue of fact thus remains as to the extent of the parties’ interest in the disputed inventory, the trial court’s grant of summary judgment for the plaintiffs was erroneous and must be reversed. Contrary to the plaintiffs’ assertion on appeal, the parties’ filing of cross-motions for summary judgment neither established that there was no issue of material fact nor obligated the court to render summary judgment. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 436 N.E.2d 598.) The case of Allen v. Meyer (1958), 14 Ill. 2d 284, 152 N.E.2d 576, cited by the plaintiffs, does not hold to the contrary, as the court there found that the parties were correct in their view that only a question of law was involved. Thus, the court’s independent determination as to whether a genuine issue of fact remained was not precluded merely because both parties moved for summary judgment. See Beverly Bank v. Alsip Bank; Precision Ex trusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 183 N.E.2d 547.

For the foregoing reasons, we reverse the judgment of the circuit court of Clay County and remand this cause for further proceedings.

Reversed and remanded.

EARNS and EASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    JOSE GONZALEZ, Plaintiff-Appellant, v. ROCK WOOL ENGINEERING AND EQUIPMENT COMPANY, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 82 — 1906
    Opinion filed August 19, 1983.

      Steinberg, Polacek & Goodman, of Chicago (William L. Barr, Jr., of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Lenard C. Swanson and Elise E. Singer, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

During the course of his employment with Forty-Eight Insulations in Aurora, Illinois, plaintiff was injured on April 21, 1975, operating a battline insulation processing and cutting machine manufactured by defendant Rock Wool Engineering and Equipment Company, Inc., an Indiana corporation. The injury resulted in the amputation of the fingers of his right hand. The machine, designed by Rock Wool’s employees, Thomas Shovlin and E. R. Overman was built in 1953 and modified in 1958.

On March 3, 1966, Rock Wool executed an agreement by which it sold the bulk of its assets to defendant Bemis in exchange for cash and Bemis continued to manufacture battline machines similar to the one which plaintiff asserts was defective. Bemis also supplied Rock Wool’s former customers with spare parts. Later, Rock Wool changed its corporate name to Overman and Shovlin and in late 1967, the corporation was dissolved under the applicable provisions of Indiana law. Thomas Shovlin, former director and vice-president of Rock Wool, accepted Bemis’ offer to be its product manager. Another Rock Wool employee, Robert Stoudt, was employed as a foreman for Bemis.

In his original complaint filed February 22, 1977, plaintiff sought to attach the liability of Rock Wool for the injury caused by the allegedly defective machine to the defendant Bemis, as successor in interest to Rock Wool.

Plaintiff’s fourth amended complaint, the subject of this appeal, was filed on January 11, 1982, and consisted of four counts. Count I was based on Bemis’ alleged failure to give adequate warning as to the presence of certain conditions which allegedly rendered the product unreasonably dangerous. Count II alleged Bemis’ negligence in failing to warn of a dangerous and defective condition. Count III pleaded a cause of action in strict liability predicated upon an alleged “defacto merger” between Bemis and Rock Wool. The final strict liability count alleged that Bemis, as corporate successor to Rock Wool, carried on the “product line” of Rock Wool.

On March 8, 1982, Bemis moved to dismiss the fourth-amended complaint and attached the affidavit of Thomas Shovlin, the product manager of Bemis. The affidavit set forth, inter alia, that there was no interchange of stock or change in ownership in either corporation following the agreement; and that the battline equipment at Forty-Eight Insulations was not serviced by Bemis from 1966 up to and including the date of plaintiff’s injury, April 21,1975.

Following a hearing, the trial court dismissed plaintiff’s complaint for failure to state a cause of action. Plaintiff appeals.

Opinion

The sole issue on review is whether the trial court erred in dismissing plaintiff’s fourth amended complaint for failure to state a cause of action against Bemis.

An analysis of this issue requires us to address the arguments advanced by plaintiff in support of his claim.

Plaintiff argues that: (1) Bemis, as successor in interest, undertook the duty of its predecessor to warn of dangerous defects of which it was aware; (2) that the transaction in question constituted a de facto merger; and (3) that strict liability attaches to a successor corporation which acquires services and maintains its predecessor’s product line.

We first address plaintiff’s contention that Bemis, as a successor corporation, owed an independent duty to warn under a strict liability theory.

In Illinois, three elements are required for strict liability in tort; (1) plaintiff must have suffered an injury to an interest protected by law; (2) defendant must have had a duty to prevent the injury from occurring, and (3) defendant must have breached that duty and the injury must have resulted from that breach. (See Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 367 N.E.2d 118, aff’d (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.) It is clear, however, that one who has done nothing to create a risk of injury cannot usually be burdened with the duty of preventing that injury.

Plaintiff directs our attention to dictum in Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1147, 433 N.E.2d 1104, 1109, which suggests that a successor corporation may have a duty to warn of defects before an injury occurs if it learns that one of its predecessors’ products is defective.

There, the Nguyen court stated that “[i]n strict liability cases, our courts have found an absolute duty of prevention in those parties who can be found to have created the risk of injury by being involved in placing the defective product that has caused injury into the stream of commerce. [Citation.] However, it is impossible to conceive of such a duty on the party of the successor corporation unless circumstances following the corporate transfer give rise to the duty. For example, if the successor corporation learns that one of its predecessor’s products is defective and knows the location of that product, it may, though we do not so hold here, have a duty to warn of its defects before an injury occurs.” Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1147, 433 N.E.2d 1104, 1109.

In order to determine the presence of a nexus or relationship effective to create a duty to warn, the following factors may be considered: (1) succession to a predecessor’s service contracts; (2) coverage of the particular machine under a service contract; (3) service of that machine by the purchaser corporation; and (4) a purchaser corporation’s knowledge of defects and of the location or owner of that machine. (Travis v. Harris Corp. (7th Cir. 1977), 565 F.2d 443, 449.) Thus, the critical element required for the imposition of this duty is a continuing relationship between the successor and the predecessor’s customers benefiting the successor.

In the present case, a review of the record does not indicate that such a continuing relationship existed. The purchase agreement did not include either a succession to the service contracts of Rock Wool, or coverage of the particular battline machine in question under a service contract. Thomas Shovlin’s affidavit states that defendant Bemis did not service, maintain, or repair the battline equipment located at Forty-Eight Insulations from March 31, 1966, up to and including April 21, 1975; and while Bemis did send a letter to Rock Wool’s customers offering to continue to maintain and service the products, there is no indication of any acceptance by plaintiff’s employers.

Consequently, in the absence of any evidence indicating a continuing relationship between Bemis and Forty-Eight Insulations, we find that there is no basis for the imposition of liability upon Bemis for breach of a duty to warn.

Plaintiff next argues that the acquisition of Rock Wool by Bemis constituted a defacto merger.

In Illinois, a corporation which purchases the assets of another corporation is not generally liable for the. debts and liabilities of the transferor in the absence of an agreement providing otherwise. (Barron v. Kane & Roach, Inc. (1979), 79 Ill. App. 3d 44, 398 N.E.2d 244.) Courts have recognized several exceptions to the general rule where (1) the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (2) the purchaser is merely a continuation of the seller; and (3) the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations. Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778; Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 395 N.E.2d 19.

Relying on exception (1), plaintiff asserts that the acquisition constituted a “de facto” merger, since the transaction in question is devoid of the ordinary signs of a merger. The criteria for establishing a de facto merger as set forth in the Hernandez case are: (1) there should be a continuity of business operations between the transferor corporation and the transferee corporation, including continuity of management, employees, location and assets; (2) there should be a continuity of shareholders, whereby shareholders of the transferor corporation exchange their ownership of the transferor corporation for shares of the transferee corporation; (3) the transferor corporation should cease operations and dissolve within a short time; and (4) the transferee corporation then assumes those liabilities of the transferor corporation which are necessary for the continuation of normal business operations. Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 667, 388 N.E.2d 778.

In the instant case, a review of the record does not indicate that a de facto merger occurred in 1966. There was no continuity in the management but for two management employees, Thomas Shovlin and Robert Stoudt, no other Rock Wool employees were hired by Bemis, and plant operations were moved to Minneapolis seven months after the purchase. Secondly, it is undisputed that no Bemis stock was exchanged for Rock Wool assets and the sole consideration of this sale was cash. Third, Rock Wool changed its name to Overman & Shovlin pursuant to the 1966 acquisition agreement, and dissolved over a year later in April 1967, under Indiana law. Hence, there was neither a cessation of operations nor a corporate dissolution within a short period of time.

Finally, it is to be expected that the purchasing corporation will continue the operations of the predecessor, but this does not by itself render the purchaser liable for the obligations of the predecessor.

As the court in Bergman & Lefkow Insurance Agency v. Flash Cab Co. (1969), 110 Ill. App. 2d 415, 431, 249 N.E.2d 729, succinctly observed: “[Liability founded on a tort, like any other liability, may [only] be impliedly assumed by a new corporation which represents only a ‘new coat’ for its old owners.” With the foregoing legal principles in mind, we therefore find that Bemis was not such a continuation of Rock Wool as to render it liable for the latter’s torts.

Plaintiff urges also that by virtue of acquiring and maintaining the product line of Rock Wool, its predecessor, defendant Bemis has in fact participated in the profits reaped from placing the subject defective battline machine in the stream of commerce and should therefore not be freed from the resulting responsibilities.

Although plaintiff cites Ray v. Alad Corp. (1977), 19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574, as authority for its position, we have specifically refused to adopt the “product line” approach to successor liability as set forth in Ray in several recent decisions (Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 403 N.E.2d 495; Barron v. Kane & Roach, Inc. (1979), 79 Ill. App. 3d 44, 398 N.E.2d 244; Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 388 N.E.2d 778; Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 395 N.E.2d 19), and we decline the opportunity to do so here.

As enunciated by the court in Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 257, 395 N.E.2d 19, “The corporate successor to the manufacturer of an allegedly defective product, who takes succession after the product has left the manufacturer’s control, is clearly outside of the original producing and marketing chain. Such a corporate successor cannot fairly be said to have participated in placing the product into the stream of commerce. Accordingly, we do not believe that the doctrine of strict liability as developed in [Illinois] is applicable to a successor corporation.” We therefore find that plaintiff’s policy argument lacks merit.

Accordingly, we hold that the trial court did not err in dismissing plaintiff’s fourth amended complaint for failure to state a cause of action.

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

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


text:
    JAMES W. PANCHINSIN et al., Plaintiffs-Appellees, v. THE ENTERPRISE COMPANIES et al., Defendants-Appellants.
    First District (5th Division)
    No. 82 — 2134
    Opinion filed August 19, 1983.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Shaun McPartland, of counsel), for appellants Metalglas Industries, Inc., Endura Coatings, and Bhaskar Urs.
    Sidley & Austin, of Chicago, for appellant Union Carbide Company.
    Rivkin, Leff, Sherman & Radler, of Chicago, for appellant The Dow Chemical Company.

      Pope, Ballard, Shepard & Fowle, of Chicago, for appellant E.I. DuPontDeNemours Company.
    Baker & McKenzie, of Chicago, for appellants Ashland Oil, Inc., and Ashland Chemical, Inc.
    Law Offices of Thomas J. Keevers, of Chicago, for appellant Insilco Home Products Corporation d/b/a The Enterprise Companies, et al.

    Burgeson, Laughlin, Cunningham & Hare, of Chicago, for appellants Ashland Oil, Inc., Ashland Chemical, Inc., and M & T Chemicals, Inc.
    Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., of Chicago, for appellants Hercules, Inc., and Hercules Chemical Corporation.
    Lord, Bissell & Brook, of Chicago, for appellant Mobay Chemical and Baychem Corporation.
    Robert A. Holstein, Ltd., of Chicago, for appellant DeGussa, Inc.
    Susan E. Loggans & Associates, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

James and Linda Panchinsin, California residents, filed a tort action in Illinois on June 15, 1981, based on injuries allegedly suffered by James in California on June 17, 1979. Their lawsuit would have been barred in California by a one-year statute of limitations (compare Cal. Civ. Proc. Code secs. 312 and 340 (West 1982), with Ill. Rev. Stat. 1981, ch. 110, pars. 13 — 202, 13 — 203), and the defendants moved to dismiss on the grounds that the plaintiffs were precluded from bringing an action in Illinois by operation of the so-called borrowing statute (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 210). In response the plaintiffs argued that the borrowing statute is not applicable because the defendants allegedly are residents of Illinois. See Coan v. Cessna Aircraft (1973), 53 Ill. 2d 526.

The trial court denied the motions to dismiss, but certified that ultimate termination of the case would be materially advanced by interlocutory appeal of its order and the following questions of law:

(1) Whether the borrowing statute applies to actions brought against Illinois residents; and

(2) Whether it violates the equal protection clauses of the United States and Illinois constitutions (U.S. Const., amend. 14, sec. 1; Ill. Const. 1970, art. I, sec. 2) to provide that the borrowing statute is not applicable to defendants who are Illinois residents.

We granted leave to appeal from the trial court’s interlocutory order (see 87 Ill. 2d R. 308), and we affirm.

The key issue in resolution of the first question is whether this case is controlled by the holding of Coan v. Cessna Aircraft (1973), 53 Ill. 2d 526. In Coan, an Illinois resident was injured in Kentucky on September 17, 1968, and filed an action in Illinois against several defendants, including another Illinois resident, on September 15, 1970. On the date the action was filed in Illinois, however, it would have been barred by Kentucky’s one-year statute of limitations, and the defendants argued that the Illinois action was thereby precluded by operation of the borrowing statute. (53 Ill. 2d 526, 527.) This statute provides that:

“When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state.” Ill. Rev. Stat. 1969, ch. 83, par. 21, now recodified at Ill. Rev. Stat. 1981, ch. 110, par. 13 — 210.

In deciding Coan the supreme court sought to determine the intent of the General Assembly which enacted this law, and after stating that “[i]t is reasonable to conclude that [the borrowing statute] was intended to apply only to cases involving nonresident parties” (53 Ill. 2d 526, 529), the court reversed a judgment which dismissed Coan’s action as barred by the borrowing statute (53 Ill. 2d 526, 527, 530).

The defendants in the present case argue that Coan is not binding precedent because it concerned a plaintiff who was an Illinois resident, whereas the Panchinsins were and are California residents. They also contend the court merely provided a nonbinding obiter dictum when it stated that “[i]t is reasonable to conclude that [the borrowing statute] was intended to apply only to cases involving nonresident parties.” (53 Ill. 2d 526, 529.) We must therefore determine whether this statement is merely a nonprecedential passing comment or whether, under the doctrine of stare decisis, it is the ratio decidendi of the case.

The doctrine of stare decisis — a basic tenet of our legal system (Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 329) — provides that “[wjhere the Supreme Court has declared the law on any point, it alone can overrule and modify its previous action, and the lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow such decision in similar cases.” Agricultural Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 27.

The ratio decidendi of a case is “the principle of law which is the basis of the actual decision and therefore, by virtue of the doctrine of stare decisis, the principle which subsequent courts, faced with a set of facts indistinguishable in any material particular from those in the precedent case, must apply to the decision of the subsequent case also.” (Walker, The Oxford Companion to Law 1033 (1980).) Conversely, “[a] court may not speak authoritatively upon questions not involved in the litigation” (Boddiker v. McPartlin (1942), 379 Ill. 567, 577), and “an expression or statement by the court on a matter not necessarily involved in the case nor necessary to a decision thereof” is obiter dictum — & mere passing comment which “is not binding as authority or precedent within the rule of stare decisis” (Department of Public Works & Buildings v. Butler Co. (1958), 13 Ill. 2d 537, 545.) Therefore, to determine the ratio decidendi of a case, a court must ascertain (1) what facts were considered material by the court in the prior case, and (2) “what proposition of law justified that decision on these materials facts.” Walker, The Oxford Companion to Law 1033 (1980).

According to the defendants, the material fact which distinguishes Coan from the present case is that Coan was an Illinois resident who, by happenstance, was injured in another State. Focusing on this as the key fact in Coan, the defendants contend the ratio decidendi of that case is that Illinois has an overriding interest in permitting an injured Illinois plaintiff to maintain an action in Illinois even though the action would have been barred in the State where it arose, and that “equitable considerations may militate against a strict application of the Borrowing Statute, particularly in instances where an Illinois resident plaintiff fortuitously suffers injury out of state.” See, e.g., Templeman v. Baudhuin Yacht Harbor, Inc. (1st Cir. 1979), 608 F.2d 916 (applying Illinois law).

However, examination of the Coan opinion shows that under the court’s analysis it is immaterial whether the plaintiff or the defendant was an Illinois resident, and that the material fact was that the case did not involve a plaintiff and defendant who were both nonresidents. The court started by stating that both plaintiff and at least one defendant were Illinois residents (53 Ill. 2d 526, 527), and that one of the issues presented was whether “our borrowing statute was applicable only if the parties to a suit were nonresidents of Illinois.” (Emphasis added.) (53 Ill. 2d 526, 527.) Moreover, when the court construed the borrowing statute by reading it in relation to the tolling statute (Ill. Rev. Stat. 1969, ch. 83, par. 19; recodified, as amended, at Ill. Rev. Stat. 1981, ch. 110, par. 13 — 208), it made references which further establish that the material fact was that one of the parties (whether plaintiff or defendant) was an Illinois resident. See 53 Ill. 2d 526, 528-29 (“If [the borrowing statute] is read to apply when a resident of Illinois is a party, as the court read it here, its operation and that of [the tolling statute] are in conflict” (emphasis added)), and 53 Ill. 2d 526, 529 (“[I]f [the borrowing statute] is considered as applying to an action when a resident of Illinois is a party, its operation, upon the running of the statute of limitations in the State where the cause of action arose, would conflict with the operation of [the tolling statute]” (emphasis added)).

We find that the material fact in- Coan v. Cessna Aircraft was that the case did not involve nonresidents, and that the legal principle which justified the decision which the court reached based on this material fact (i.e., the ratio decidendi of the case) is that the borrowing statute “was intended to apply only to cases involving nonresident parties.” (53 Ill. 2d 526, 529.) We therefore hold that, under the binding precedent of Coan v. Cessna Aircraft, defendants who are Illinois residents cannot take advantage of the borrowing statute.

We acknowledge that the defendants forcefully argue Coan was wrongly decided, but we lack authority to modify or overrule the supreme court’s decisions, and such arguments are unavailing in this tribunal.

We also note that a portion of the tolling statute was declared unconstitutional in Haughton v. Haughton (1979), 76 Ill. 2d 439. However, the decision in Coan was based on the supreme court’s determination of what the General Assembly intended when it enacted the borrowing statute, and the fact that a portion of another statute was eventually held unconstitutional did not nunc pro tunc alter the legislature’s intent.

The next question is whether the defendants have been deprived of equal protection of the laws. (See U.S. Const., amend. 14, sec. 1; Ill. Const. 1970, art. I, sec. 2.) According to the defendants, it is unconstitutional for Illinois to provide that defendants who are Illinois residents cannot take advantage of the Illinois borrowing statute.

“The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way.” (Jones v. Helms (1981), 452 U.S. 412, 423-24, 69 L. Ed. 2d 118, 128, 101 S. Ct. 2434, 2442-43.) However, the applicable standard of review in equal protection cases depends upon the nature of the classification or the interest affected (Dunn v. Blumstein (1972), 405 U.S. 330, 335, 31 L. Ed. 2d 274, 280, 92 S. Ct. 995, 999), and “[u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classifications challenged be rationally related to a legitimate state interest.” New Orleans v. Dukes (1976), 427 U.S. 297, 303, 49 L. Ed. 2d 511, 517, 96 S. Ct. 2513, 2516-17.

Illinois residency is not a historically suspect classification such as race, religion, or alienage, and the decision of the Illinois General Assembly to “discriminate” against all the residents of Illinois does not implicate the fundamental right to travel from State to State. Moreover, the “shelter [of statutes of limitation] has never been regarded as what now is called a ‘fundamental’ right or what used to be called a ‘natural’ right of the individual.” (Chase Securities Corp. v. Donaldson (1945), 325 U.S. 304, 314, 89 L. Ed. 1628, 1635-36, 65 S. Ct. 1137, 1142.) We therefore find that the present case calls for application of the deferential “rationality” standard under which a classification is valid if it is rationally related to a legitimate governmental purpose.

“In determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, we must answer two questions: (1) Does the challenged legislation have a legitimate purpose? and (2) Was it reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose?” (Western & Southern Life Insurance Co. v. State Board of Equalization (1981), 451 U.S. 648, 668, 68 L. Ed. 2d 514, 531, 101 S. Ct. 2070, 2083.) “This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 314, 49 L. Ed. 2d 520, 525, 96 S. Ct. 2562, 2567.

Under this deferential standard of review a statutory classification is valid if the court can reasonably conceive of any set of facts which would justify the law. (McGowan v. Maryland (1961), 366 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105.) Moreover, even if the factual basis apparently underlying a statutory classification is incorrect, the law is valid if the factual predicate is “at least debatable” (United States v. Carotene Products Co. (1938), 304 U.S. 144, 154, 82 L. Ed. 1242, 1243, 58 S. Ct. 778, 784), and “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley (1979), 440 U.S. 93, 111, 59 L. Ed. 2d 171, 184, 99 S. Ct. 939, 949.

In the present case the defendants argue there is no rational reason for providing that Illinois residents cannot take advantage of the Illinois borrowing statute. As noted above, application of the borrowing statute to the present case would mean the defendants (who are allegedly Illinois residents) would be shielded from liability under the one-year California statute of limitations, rather than being exposed to potential liability through operation of the Illinois limitation period of two years. However, it is reasonably conceivable that the legislature could have concluded (1) Illinois residents who commit torts are likely to injure other Illinois residents, and (2) refusing to permit Illinois residents to take advantage of a shorter than generally available limitations period (through application of the borrowing statute) would promote the health, safety, and welfare of our citizens by encouraging Illinois residents to maintain high safety standards.

These factual assumptions may not stand up to rigorous scientific scrutiny, but the defendants have failed to meet their burden of showing that the issue was not "debatable” (United States v. Carotene Products Co. (1938), 304 U.S. 144, 154, 82 L. Ed. 1242, 1243, 58 S. Ct. 778, 784), or that these facts "could not reasonably be conceived to be true by the [legislature]” (Vance v. Bradley (1979), 440 U.S. 93, 111, 59 L. Ed. 2d 171, 184, 99 S. Ct. 939, 949). Protecting the public health, safety, and welfare is unquestionably a legitimate governmental purpose, and the defendants have failed to establish it was not within the range of reason for the legislature to conclude that the classification in question would promote this purpose. We therefore hold that the defendants have failed to establish they were deprived of equal protection of the laws.

Based on the reasons given above, the order of the circuit court is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

      Metalglas Industries, Inc., Insilco Home Products Corporation d/b/a The Enterprise Companies, Hercules Incorporated, Hercules Chemical Corporation, M & T Chemicals, Inc., Union Carbide Company, The Dow Chemical Company, Ashland Oil, Inc., Ashland Chemical, Inc., E. I. DuPont-DeNemours Company, DeGussa, Inc., Mo-bay Chemical and Baychem Corporation, and Bashkar Urs.


author: JUSTICE McGLOON

text:
    BETTY SANDER HARVEY, a/k/a Davis, Plaintiff-Appellant, v. STEPHEN P. CARPONELLI et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 82 — 382, 82 — 383 cons.
    Opinion filed August 22, 1983.

      Betty Sander Harvey, of River Forest, for appellant, pro se.

    Richard M. Daley, State’s Attorney, and Robert Marc Chemers, of Pretzel & Stouffer, Chartered, both of Chicago (Jane Clark Casey, Henry A. Hauser, and James McVane, Jr., Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Pro se plaintiff, Betty Sander Harvey, brought an action against defendants, her former attorney and his law firm, for purported professional negligence. The cause was assigned to trial and plaintiff sought and received a change of venue. It was reassigned to a second trial judge and plaintiff again requested a change of venue which was denied. A jury was ultimately impanelled after two panels of prospective jurors were dismissed during voir dire. Opening statements were heard and evidence was adduced. A mistrial was subsequently declared by the circuit court judge. After a hearing, the trial court entered an order holding plaintiff in direct contempt of court. A fine of $2,109.50 was also assessed against plaintiff. Finally, defendants’ petition for attorney fees and costs was granted.

On appeal, plaintiff raises numerous issues that are not properly before this court. However, having reviewed the record, we address the following issues which this case presents: (1) whether the trial court erred in holding plaintiff in contempt of court; (2) whether the fine of $2,109.50 assessed against plaintiff is excessive; and (3) whether the trial court erred in awarding defendants $2,108.50 in attorney fees and costs.

We affirm in part, reverse in part and remand.

Defendants were hired to represent plaintiff during the probate proceedings and settlement of her father’s estate. Plaintiff subsequently filed the instant action predicated upon the theory of professional negligence.

Plaintiff obtained her first change of venue after the cause was assigned to trial before the Honorable Lester Foreman. Thereafter, it was reassigned to the Honorable Paul Elward. Plaintiff’s petition for a second change of venue was denied.

The cause proceeded to trial on August 13, 1981. Plaintiff was specifically warned against mentioning “insurance” to the jurors during voir dire. Despite the warning, plaintiff continued to ask improper questions. On two occasions all the jurors in the courtroom had to be excused as a result of plaintiff’s questions. Defendants’ motions for a mistrial were denied on both occasions. A jury was impanelled and opening statements were heard.

Plaintiff’s first witness was called and examined. The trial judge found that the entire line of questioning by plaintiff as pro se counsel indicated a lack of awareness of the issues raised by plaintiff in her fourth amended complaint. The entire testimony of this witness was stricken as irrelevant. Next, plaintiff called herself as a witness. After taking the stand, she was allowed to read questions to herself from her notes for IV2 days. She asked herself at least one question to which she answered “I don’t know.”

On August 24, 1981, plaintiff asked the trial judge, “Are we interested in facts, your Honor,” in the presence of the jury. Following an in-chambers hearing, the trial judge granted defendants’ third motion for a mistrial.

On January 4, 1982, the trial judge held plaintiff in contempt of court and assessed against plaintiff a fine of $2,109.50. The court also awarded defendants $2,108.50 in attorney fees and costs. The oral ruling of January 4, 1982, was incorporated into the written judgment entered January 7, 1982.

Initially, we must comment on the brief filed by plaintiff in this court. Here, as in Biggs v. Spader (1951), 411 Ill. 42, 103 N.E.2d 104, the brief filed is ambiguous and arduous and does not present the issues sought to be decided in an orderly manner. Furthermore, this court has recently held that reviewing courts are entitled to have briefs submitted that present an organized and cohesive legal argument in accordance with the Supreme Court Rules. (In re Marriage of Souleles (1982), 111 Ill. App. 3d 865, 444 N.E.2d 721.) Strict adherence to this standard is necessary to expedite and facilitate the administration of justice. Biggs.

We are mindful that plaintiff has litigated the action below as well as this appeal pro se and is not a licensed attorney. She asserts, as she did in Harvey v. Connor (1980), 85 Ill. App. 3d 1061, 407 N.E.2d 879, cert. denied (1981), 451 U.S. 938, 68 L. Ed. 2d 326, 101 S. Ct. 2019, that she contacted over 40 attorneys and was unable to find one who would handle her case. However, this court has heard four prior appeals in which plaintiff was involved as a pro se litigant. (See Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E.2d 1022, wherein the court held that plaintiff failed to state a claim against an attorney for professional negligence; Harvey v. Connor, wherein the court affirmed the dismissal of plaintiff’s action against a former attorney for legal malpractice; Bard v. Harvey (1979), 74 Ill. App. 3d 16, 392 N.E.2d 371, cert. denied (1983), 459 U.S. 1172, 74 L. Ed. 2d 1016, 103 S. Ct. 819; Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App. 3d 280, 391 N.E.2d 461, cert. denied (1980), 445 U.S. 929, 63 L. Ed. 2d 762, 100 S. Ct. 1316.) In Harvey v. Harris Trust & Savings, we reminded plaintiff that this court will not apply a more lenient procedural standard to pro se litigants than is generally allowed attorneys. We regret that we must again admonish plaintiff that a pro se litigant must comply with the same rules of procedure required of attorneys.

We find plaintiff’s brief to be flagrantly deficient in many respects and violative of the rules established by the supreme court for appellate briefs. 87 Ill. 2d R. 341.

The introductory paragraph lists orders entered by the trial court followed by the vague statement that “[a]ppeal is taken from all such orders.” No statement of the issue or issues presented for review as contemplated by subparagraph 2 of Rule 341(e) (87 Ill. 2d R. 341(e)(2)) is included to facilitate this court’s administration of justice. Plaintiff’s purported “Statement of Facts” contains matters which are neither pertinent nor relevant to any issues properly before this court. Moreover, it is replete with improper argument and rhetorical ardency in direct contravention to Rule 341(e)(6) (87 Ill. 2d R. 341(e)(6)). Further, plaintiff’s brief fails to comply with Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)) in that the section entitled “Argument” contains lengthy excerpts from the record presented in an incohesive manner.

Plaintiff’s contention that “no written order was entered by the court finding her in contempt” is misleading inasmuch as a copy of the order is included in her brief.

It is well established that it is not the duty of this court to search the record to determine the real issues involved in an action. (Biggs.) A reviewing court is entitled to have the issues clearly defined. Souleles; In re Estate of Kunz (1972), 7 Ill. App. 3d 760, 288 N.E.2d 520.

A party’s failure to state informatively the errors relied upon for reversal and to present an organized and cohesive argument in compliance with the Supreme Court Rules has been held to justify dismissal of the appeal. (Biggs; Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 433 N.E.2d 1044.) However, we have chosen to entertain this appeal.

First, plaintiff contends that the trial court’s denial of her second petition for a change of venue violated her constitutional rights to a tribunal free from prejudice. She further argues that all orders entered by the trial court thereafter are void. This issue is not properly before this court for the following reason. We have reviewed the five notices of appeal filed by plaintiff and found that they make no mention of the trial court’s order of August 14, 1981, denying plaintiff’s petition. It is firmly established that this court has jurisdiction only over those matters which are raised in the notice of appeal. (Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 398 N.E.2d 3; Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 375 N.E.2d 961.) Therefore, the propriety of the order is not properly before us. {Sankey.) A reviewing court will not normally consider an issue not presented to the trial court and presented for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.) The constitutional issues raised by plaintiff throughout her brief were never raised in the lower court and will not be considered here.

Accordingly, we will not address the constitutional aspects of plaintiff’s second contention, that the trial court’s action of holding plaintiff in contempt of court violated her due process rights. However, in order to reach a just result, we address the issues as to whether the trial court’s order finding plaintiff in contempt of court is proper and whether the fine imposed is excessive.

An initial issue that must be resolved is whether the trial court’s proceedings were in the nature of civil or criminal contempt. The assistant State’s Attorney characterized plaintiff’s conduct during voir dire and at trial as a “civil contempt,” while the trial judge merely labeled it “direct contempt.” The line of demarcation between civil and criminal contempt is often indistinct. This is so because many acts involve elements of both. “Criminal contempt” is contumacious conduct directed against the dignity of the court which tends to obstruct the court’s administration of justice. “Civil contempt” consists of failing to do something which the contemnor is ordered by the court to do for the benefit of the opposing litigant. The purpose of the sanction imposed upon the contemnor also distinguishes criminal from civil contempt. The purpose of the former is primarily to punish for actions already taken while the latter intends to coerce future compliance with a court-entered order. Pabst Brewing Co. v. Brewery Workers Local Union No. 77 (7th Cir. 1977), 555 F.2d 146.

Despite the State’s characterization of plaintiff’s conduct as civil contempt, we have reached the conclusion that plaintiff’s conduct was directed against the dignity of the court and is more properly characterized as direct criminal contempt.

The contempt sanction imposed was clearly punitive in nature. During a hearing on January 4, 1982, the trial judge found plaintiff in contempt for conduct which exhibited a “callous and cynical disregard of accepted norms or conduct” resulting in a substantial waste of the court’s time. A fine of $2,109.50 was imposed as a penalty. Although the penalty was to be reduced by any amount paid toward the award of fees and costs to defendants, it could not be reduced to less than $1. Here, as in Aurora Steel Products v. United Steelworkers of America (1981), 94 Ill. App. 3d 97, 418 N.E.2d 492, the purpose of imposing a fine was to vindicate the authority of the court. Such intent is evidenced by the following statement made by the trial judge during the hearing:

“Now before I assess the penalty against you [plaintiff] for that [contumacious] conduct, which is between the court and yourself — it doesn’t involve [defense attorney] or have anything to do with expenses that he and his clients had has ***.”

Thus, the fact that defendants may have benefited indirectly from the contempt proceedings is insufficient to alter the character of the contempt. Aurora.

Furthermore, we find ample evidence in the record below to support the trial judge’s finding of plaintiff in contempt. Plaintiff’s failure to follow the court’s warnings caused the dismissal of two venire panels. The trial judge correctly found that plaintiff deliberately disobeyed the court’s previous warnings not to question the jury about insurance. Furthermore, during direct examination in the presence of the jury plaintiff asked, “Are we interested in the facts, your Honor.” A mistrial was declared as a result.

It is well settled that the trial court’s determination of contempt will not be disturbed unless it is against the manifest weight of the evidence or the record discloses an abuse of discretion. (Aurora.) We find no such abuse of discretion in the present case.

However, the fine of $2,109.50 is excessive and must be reduced under County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720. In County of McLean, the Illinois Supreme Court held that where the penalty imposed exceeds six months incarceration or a fine in excess of $500, the record must reflect that the contemnor was afforded a jury trial or knowingly and understandingly waived the right in open court.

In the instant case, the record does not disclose that plaintiff waived her right to a jury trial. Therefore, under County of McLean, the court could not impose a fine in excess of $500. Furthermore, it is manifestly unfair to assess a penalty in an amount which fluctuates according to how much is paid to another party pursuant to a separate court order. The only amount not subject to reduction is $1. Therefore, plaintiff’s fine must be reduced to $1.

The only remaining issue properly before this court is whether the trial court erred in awarding defendants $1,410.50 in attorney fees and $698 in costs. Defendants argue that the award is proper since the expenses were incurred as a result of plaintiff’s wrongful conduct, not as a party plaintiff, but as “pro se counsel” whose improper and impertinent behavior magnified the costs of the defendants’ defense. We agree.

In Illinois, one who commits a wrongful act is liable for all the ordinary and natural consequences of his act. (Bimba Manufacturing Co. v. Starz Cylinder Co. (1969), 119 Ill. App. 2d 251, 256 N.E.2d 357; Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) Moreover, when one’s wrongful conduct forces another into litigation with third parties, he is liable for all of the costs of that litigation including attorney fees. Sorenson, Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41.

In the instant case, defendants filed a petition to recover fees and costs from the person whose improper conduct caused defendants to incur fees above those normally incurred. In awarding defendants 41.18% of the amount requested, the court found that plaintiff’s conduct, as pro se counsel, was “deliberate and premeditated” and caused defendants costs and attorney fees beyond those to be expected in the ordinary course of litigation. We find that the award of attorney fees and costs merely compensated defendants for ordinary losses resulting from plaintiff’s conduct. (Sorenson.) Therefore, the trial court’s award of said fees and costs was proper.

For the foregoing reasons, we affirm in part and reverse in part the orders of the circuit court of Cook County, and remand the cause for the purpose of reducing the fine assessed against plaintiff to $1.

Orders affirmed in part, reversed in part; cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.