author: Mr. PRESIDING JUSTICE ROMITI

text:
    MARGARET CONWAY, Plaintiff-Appellant, v. DEWEY CONNERS et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2503
    Opinion filed October 15, 1981.

      Nicholas T. Kitsos, of Chicago, for appellant.
    Sloan and Connelly, P. C., of Chicago (Mark A. Moynihan, of counsel), for appellee Edward Clem.
    Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., of Chicago (Michael J. Freed and Anthony C. Valiulis, of counsel), for appellees William N. Sheehan and Anar Chemical Company, Inc.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff filed suit in equity against the defendants seeking inter alia to recover certain stock in which she had an interest and which defendants had allegedly converted. The trial court dismissed the complaint against three of the defendants with prejudice. We reverse holding that the complaint stated a cause of action in equity and the fact that the complaint is neither plain nor concise is not sufficient grounds for dismissal.

The plaintiff, Margaret Conway, filed suit December 15, 1978, in chancery against Dewey Conners, Edward Clem, Kenneth Connor, William N. Sheehan, Anar Chemical Company, Inc. (Anar), and unknown defendants. Subsequently, three amended complaints were filed. The third amended complaint consisting of 12 pages was in two counts, one count against all the parties in equity and one count against all the parties in law. Oversimplified and reduced to its bare essentials, the complaint alleged that Conners, who at the time was plaintiff’s boyfriend, obtained money from her and they formed a partnership. Besides money, plaintiff contributed furniture, equipment and labor to the partnership. It was agreed that they would be equal partners. Conners used plaintiff’s money to purchase all of the stock of Anar Corporation for the partnership. Conners and Clem induced plaintiff to borrow $48,000 which was used to purchase a soap inventory for Anar. Subsequently, sometime in 1976, Clem and Conners informed plaintiff that she had no interest in Anar or in Conway and Conners and that the latter had been dissolved. In 1978, she discovered that the stock certificate of Anar in the names of Conway and Conners had been converted by Clem and Conners to their own use and cancelled by them on the books of Anar; that Clem and Conners had distributed the stock previously owned by Conway and Conners among themselves to the exclusion of plaintiff by the use of blank stock certificates. Sometime prior to the time Clem and Conners informed plaintiff she had no interest either in the corporation or the partnership, Sheehan became associated with Anar’s business. At this time, plaintiff made known to Sheehan her interest as part owner of Anar and her position as an officer of the company. Sheehan purchased from Clem and Conners the stock of Anar and assumed management, operation and exclusive control knowing at all times that the purchased stock had been wrongfully taken from plaintiff and plaintiff was the rightful owner of the stock. The defendants, while in exclusive control of Anar, extracted sums of money under the pretense of salaries and expenses and appropriated all of the monies earned by the businesses to their own use and to the exclusion of plaintiff. The plaintiff prayed for the following relief inter alia:

1. that defendants be enjoined from transferring, assigning or in any way changing the stock ownership of defendants in the corporation or from altering the books and records thereof;

2. that an accounting be conducted;

3. that plaintiff be deemed a 50 percent owner of Anar’s stock, that the stock issued to defendants in excess of 50 percent be rescinded and defendant be ordered to issue plaintiff the said 50 percent;

4. that a resulting and constructive trust to the use and benefit of plaintiff be imposed upon the monies, properties and shares of Anar determined to have been wrongfully appropriated;

5. that defendants be removed as officers and directors of Anar and a new stockholder meeting be conducted in which plaintiff would be allowed to participate and vote her 50 percent interest in the selection and election of directors and officers;

6. that the suit constitute a stockholder’s derivative action on behalf of Anar and that defendants account for and pay over to Anar the monies wrongfully wasted, mismanaged and appropriated by defendant;

7. that punitive damages be awarded to plaintiff.

Anar and Sheehan moved to dismiss the complaint, contending:

1. the complaint failed to contain any factual allegations of wrongdoing directed against Anar;

2. with respect to Sheehan the complaint did not allege that Sheehan had knowledge of the existence of the purported stock certificate issued to Conway and Conners;

3. the claim was barred by the statute of limitations and laches;

4. the complaint did not contain a plain and concise statement of her cause of action; the allegations were vague, confusing, replete with evidentiary material and could not be answered in their present form;

5. the complaint failed to state a cause of action in equity; in essence plaintiff sought money damages for breach of contract and fraud and her claim, if any, properly belonged in the law division.

Clem also moved to dismiss, contending:

1. the complaint was not verified as required by section 35 of the Civil Practice Act because plaintiff’s original complaint had been verified;

2. Paragraph 17 referred to a written argument which was neither attached to the complaint nor recited therein as required by the Civil Practice Act;

3. the complaint was indefinite and uncertain in that the date or dates of the alleged acts of wrongdoing were not adequately specified;

4. the allegations constituted a cause of action at law for which plaintiff had ample remedy at law;

5. the claim was barred by the five-year statute of limitations;

6. the claim was barred by laches;

7. the complaint contained allegations that Clem made misrepresentations directly to plaintiff concerning the conduct of Anar’s business; however, the original verified complaint alleged that Conners exclusively handled all the financial affairs for plaintiff in connection with the conduct of the business of Conway and Conners and Anar;

8. plaintiff’s cause of action had been satisfied in that plaintiff admitted in her complaint that all monies lent to the defendants by her had been repaid.

In addition Conners filed a motion to dismiss on the basis of the statute of limitations or laches for failure to verify the complaint or in the alternative for a bill of particulars setting forth more specifically the dates and times at which the alleged behavior took place.

The trial court denied Conners’ motion and ordered him to answer the complaint which he has subsequently done. It granted the motion of Anar, Sheehan and Clem and dismissed the complaint as to them with prejudice, giving no reason for its holding. It also found there was no reason to delay enforcement of the order or appeal.

I

It is not necessary to determine the correctness of Anar’s contention that plaintiff’s complaint failed to contain any factual allegations of wrongdoing directed against it. Plaintiff’s complaint alleged in part a stockholder’s derivative action. Accordingly, Anar was a necessary party. Bingham v. Ditzler (1941), 309 Ill. App. 581, 33 N.E.2d 939, appeal denied.

A suit which seeks the removal of defendants as officers and directors, as this one does, is a stockholder’s suit properly brought in equity. (Firebaugh v. McGovern (1949), 404 Ill. 143, 88 N.E.2d 473, opinion conformed to by Firebaugh v. McGovern (1950), 340 Ill. App. 414, 92 N.E.2d 671.) Plaintiff’s allegation that the defendants have appropriated all of the monies earned by the businesses to their own use is also sufficient grounds for a stockholder’s suit. (Bixler v. Summerfield (1902), 195 Ill. 147, 62 N.E. 849; Bowman Shoe Co. v. Bowman (1959), 21 Ill. App. 2d 423,158 N.E.2d 112; Loftis v. Loftis (1922), 225 Ill. App. 478.) Anar and Sheehan for the first time on appeal contend that the plaintiff merely alleged that defendants extracted money and property from Anar but did not allege any facts in the complaint to support this conclusion. Since this contention was not raised below it was waived. (Ill. Rev. Stat. 1979, ch. 110, par. 42(3).) Furthermore, while it is true that a complaint alleging only conclusions of law is insufficient, only ultimate facts not evidentiary facts need be alleged. Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 264 N.E.2d 18, cert. denied (1971), 403 U.S. 904, 29 L. Ed. 2d 679, 91 S. Ct. 2203.

Anar and Sheehan further contend that the complaint is defective because plaintiff did not allege that the shareholder made a demand upon the corporation to enforce the corporate right. Such demand is not required where, as here, the directors or officers sought to be sued are in control of the corporation. (Robb v. Eastgate Hotel, Inc. (1952), 347 Ill. App. 261, 106 N.E.2d 848.) It is true, as defendants contend, that ordinarily a shareholder cannot maintain the action where he was not a shareholder at the time of the commission of the act, but it is also true that he may where the acts complained of or their effects continue and injuriously affect him. (Duncan v. National Tea Co. (1957), 14 Ill. App. 2d 280, 144 N.E.2d 771; Goldberg v. Ball (1940), 305 Ill. App. 273, 27 N.E.2d 575, appeal denied.) If the court should award the plaintiff 50 percent of the stock, then defendants’ acts of diverting the corporation’s assets would affect her. Furthermore, under the plaintiff’s pleading, she had an equitable right to 50 percent of the stock at the time the funds were diverted.

II

Anar and Sheehan also contended in their motion that the complaint did not contain a plain and concise statement of her cause of action. We agree, but this in itself is not sufficient grounds for dismissal of the complaint. (McCarthy v. Allstate Insurance Co. (1979), 76 Ill. App. 3d 320, 395 N.E.2d 139; Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770; In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 326 N.E.2d 464.) As the court in Lipchik stated:

“After examining the pleadings in issue we agree with defendant that the amended complaint is neither plain nor concise. The allegations include a narrative of decedent’s family history, purported conversations between decedent and a niece, and information concerning the health of the niece’s husband. Within the excess verbiage and irrelevant matter, however, the essential elements of a cause of action to set aside a will are stated. Under these circumstances the amended complaint cannot be considered bad in substance, and we believe that the trial court erred in dismissing the action.
Under the provisions of section 33 of the Civil Practice Act a pleading should be straight forward and concise. However the mere fact that a complaint is verbose or unduly repetitious will not operate to destroy the sufficiency. (30 I.L.P. Pleading §14 (1957).) In Illinois, a cause of action may be dismissed on the pleadings only if it appears that the complaint contains no set of facts which, if proved, would entitle plaintiff to the relief sought. (Herman v. Prudence Mutual Casualty Co. (1968), 92 Ill. App. 2d 222, 235 N.E.2d 346; Dinn Oil Co. v. Hanover Insurance Co. (1967), 87 Ill. App. 2d 206, 230 N.E.2d 702.) So long as the complaint contains enough information to reasonably inform the opposite party of the nature of the claim, it should be not deemed bad in substance. (Herman v. Prudence Mutual Casualty Co.) In this case there is no question but that the averments of the complaint were sufficient to inform defendant of the nature of plaintiffs’ claim. Moreover, amidst the superfluous allegations and excess verbiage, plaintiffs have alleged facts which, if proven, would entitle them to the relief sought.
* 0 * If a litigant insists on obscuring his claim with irrelevant and inappropriate allegations, the trial court may simply disregard the improper allegations as surplusage.” 27 Ill. App. 3d 331, 334, 326 N.E.2d 466, 467.

When the complaint is liberally construed as required (Ill. Rev. Stat. 1979, ch. 110, par. 33(3); People v. Evans (1952), 412 Ill. 616, 107 N.E.2d 839; Fort v. Smith (1980), 85 Ill. App. 3d 479, 407 N.E.2d 117; Haas v. Westlake Community Hospital (1980), 82 Ill. App. 3d 347, 402 N.E.2d 883; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 392 N.E.2d 154; Brooks v. Village of Wilmette (1979), 72 Ill. App. 3d 753, 391 N.E.2d 133), it is clear that the complaint does state a cause of action against Sheehan. Plaintiff alleged that she and Conners were partners, that the partnership acquired all of the stock in Anar, and that Clem and Conners distributed the partnership stock between themselves. As a partner, Conners, as a matter of law, occupied a fiduciary relationship with plaintiff. (Carroll v. Caldwell (1957), 12 Ill. 2d 487, 147 N.E.2d 69; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 97 N.E.2d 817; Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.) “The rule in this State is established by an unbroken line of decisions that anyone occupying a fiduciary relation, such as an agent, trustee, partner, guardian, conservator, attorney, executor or administrator, cannot deal on his own account with any thing or the persons falling within that trust relationship. * * * If anyone occupying such a relation deals with the subject matter of the relationship and thereby gains an advantage to himself he will be deemed guilty of fraud, either actual or constructive, depending upon his intent and purpose. If he obtains title to property by virtue of his relation, equity converts him into a trustee of the legal title.” (Doner, 381 Ill. 106, 113-14, 45 N.E.2d 20, 24.) Furthermore an unauthorized conveyance of one’s property to another has been held to give rise to an implied trust. (Mauricau v. Haugen (1944), 387 Ill. 186, 56 N.E.2d 367; Bozeman v. Sheriff (1976), 42 Ill. App. 3d 228, 355 N.E.2d 624.) Accordingly, if we accept plaintiff’s allegations as true, as we must on a motion to dismiss, Conners became a constructive trustee of the stock and of other assets of the partnership and corporation which rightfully belonged to plaintiff for plaintiff’s benefit. And this relationship extended to Sheehan since he purchased the stock with knowledge of plaintiff’s interest therein. As to Sheehan, proof he was an innocent purchaser for value is indispensable to defeat the trust. (Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.) Plaintiff’s allegation that Sheehan knew at all times that plaintiff was the rightful owner of the stock and that he negotiated the purchase with full knowledge of plaintiff’s claim of ownership and interest was an allegation of ultimate fact and not a conclusion as argued by Sheehan on appeal. Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.

Sheehan’s contention below that the complaint was faulty because it did not allege that Sheehan knew of the purported stock certificate issued to Conway and Conners is without merit. It is not material whether Sheehan knew of the partnership certificate. What is material is whether Sheehan knew plaintiff had a right to the stock. This plaintiff did allege and this Sheehan by moving to dismiss has admitted to be true. Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.

Ill

The contention of Anar and Sheehan that the complaint fails to state a cause of action in equity but belongs in the law division is also without merit. As this court has already ruled, we believe the complaint is sufficient both to state a cause of action for a stockholder’s suit and for a constructive trust. Both of these are equitable remedies. (Firebaugh v. McGovern (1949), 404 Ill. 143, 88 N.E.2d 473, opinion conformed to by Firebaugh v. McGovern (1950), 340 Ill. App. 414, 92 N.E.2d 671; Bixler v. Summerfield (1902), 195 Ill. 147, 62 N.E.2d 112; Anderson v. Lybeck (1958), 15 Ill. 2d 227, 154 N.E.2d 259; 13 Ill. L. & Prac. Corporations §§251, 252 (1955); 35 Ill. L. & Prac. Trusts §61 (1958).) Since plaintiff is seeking restitution of her stock, there is no adequate remedy at law. For this reason it has repeatedly been recognized that a plaintiff may properly bring suit in equity to recover stock certificates or other instruments which are evidence of plaintiff’s title. Berber v. Hass (1965), 57 Ill. App. 2d 109, 207 N.E.2d 96; McGinniss v. First National Bank (1919), 214 Ill. App. 295; Davenport v. Plano Implement Co. (1897), 70 Ill. App. 161.

While plaintiff’s complaint did state a cause of action in equity, a failure to do so would not justify dismissal of the complaint. Rather, the proper remedy would be a transfer to the law division. Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.

IV

The final contention of Anar and Sheehan in their motion to dismiss was that the claim was barred by the statute of frauds and laches. The statute of limitations is not a defense to an equitable action. (Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.) Furthermore the statute of limitations cannot be raised by a motion to dismiss unless it affirmatively and clearly appears from the complaint that the action is barred. (Burnett v. West Madison State Bank (1940), 375 Ill. 402, 31 N.E.2d 776.) Plaintiff in her complaint alleged that Clem and Conners informed plaintiff sometime in 1976 that she had no interest in Anar, that some time prior to this Sheehan became associated with the business and thereafter acquired the stock and plaintiff did not discover its conversion until 1978. She also alleged that the defendants while in exclusive control of Anar appropriated the profits thereof; as to Sheehan, this could not have occurred until he acquired the stock. Suit was filed in 1978, only months after plaintiff allegedly first had notice of the sale. Assuming arguendo that the plaintiff’s claim was solely one at law, plaintiff had five years in which to bring suit, and there was nothing in her complaint which disclosed that the action was not timely brought.

Laches is also an affirmative defense and before a party can rely on the doctrine of laches, he must plead and prove not only unreasonable delay but prejudice resulting therefrom. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 425 N.E.2d 1371.) Defendants have done neither here.

V

Clem in his motion to dismiss contended that verification of the third amended complaint was required under section 35(1) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 35(1)), because the original had been verified. In fact the record discloses that no attempt of any kind was made to verify the original complaint. Nor was any subsequent complaint verified. The second amended complaint did contain a “certificate” stating “Nicholas T. Kitsos, attorney certifies that the matters set forth herein are true” but this was insufficient to constitute a verification. Section 35 of the Civil Practice Act provides that “any pleading, although not required to be sworn to, may be verified by the oath of the party filing it or of any other person or persons having knowledge of the facts pleaded.” The certification here was not under oath. Furthermore, while an attorney having personal knowledge of the facts may verify a complaint (Standard Bank & Trust Co. v. Cooper (1968), 100 Ill. App. 2d 42, 241 N.E.2d 564), there is nothing in the record here to show plaintiff’s attorney had or claimed to have such knowledge.

VI

Clem also contended that the complaint was indefinite and uncertain in that the date or dates of the alleged acts of wrongdoing were not adequately specified as required by section 45(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(1)). Section 45(1) contains no such requirement.

The uncertainty of date does not affect the adequacy of the pleading. As stated in section 42(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 42(2)), no pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. The complaint here adequately alleges a cause of action against Clem for the conversion by Clem of the partnership stock in which plaintiff had a 50 percent interest to his own use. Where the necessary facts appear in the complaint but are insufficiently stated the proper remedy is a motion to make more definite and certain and not a motion to dismiss. (McCarthy v. Allstate Insurance Co. (1979), 76 Ill. App. 3d 320, 395 N.E.2d 139; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912.) Clem has never asked that the pleading be made, more definite and certain.

VII

Clem’s contentions that the suit was barred by the statute of limitations and laches has already been answered by this court as has his contention that the complaint only stated a cause of action at law. It may develop at trial that Clem no longer has an interest in Anar and, plaintiff, assuming she is entitled to recover, can recover only money damages against Clem. However Clem was properly joined under section 24 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 24), as a co-defendant, and equity, having properly assumed jurisdiction over such issues as constructive trusts and stockholders’ rights, can also properly grant legal remedies such as damages. 7 Ill. L. & Prac. Chancery §§17, 20 (1954).

VIII

Clem’s remaining contentions in his motion to dismiss are totally without merit in either fact or law. Paragraph 17 of plaintiff’s complaint did refer to a written agreement. However, the suit was not based on the agreement and it is only where the suit is founded upon a written agreement that section 36 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 36), requires that a copy be attached to the pleadings.

Clem’s seventh ground for dismissal noted that in her original complaint plaintiff alleged that Conners exclusively handled all the financial affairs for her in connection with the conduct of the business of Conway and Conners and Anar. Apparently Clem contended that this constituted a judicial admission directly contradicting plaintiff’s allegation that Clem made misrepresentations directly to her concerning the conduct of Anar’s business. But this court has already pointed out that the original complaint was not verified. Accordingly, to the extent the pleading was superseded, there was no judicial admission. (Kleb v. Wendling (1978), 67 Ill. App. 3d 1016, 385 N.E.2d 346, appeal denied (1979), 75 Ill. 2d 591.) Furthermore the fact that Conners may have handled all of the financial affairs of the corporation does not necessarily defeat the effect of any misrepresentations made by Clem to plaintiff concerning the conduct of that business.

Finally, Clem’s last contention, that the cause of action has been satisfied because all monies lent to defendants by plaintiff have been repaid, is likewise without merit. First, the suit was not based on the loans but to recover the stock to which she claimed she was entitled because of the partnership agreement. Second, plaintiff did not admit that all monies contributed by her have been repaid. Only the $48,000 loan made by the bank and $1,000 were repaid.

Since, as appears from the foregoing, the motions to dismiss were without merit, the judgment of the trial court dismissing the complaint as to Clem, Anar and Sheehan is reversed and the case remanded for further proceedings.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.

       It appears from certain motions filed by that defendant that his name is in fact spelled “Conner.” To avoid confusion, however, we will identify him as Conners.

       In fact plaintiff only alleges that the $48,000 borrowed from the bank was repaid. While she alleges she was paid $1,000 as a partial reimbursement she alleged in the complaint specific contribution to the partnership of $5,500 plus other unspecified amounts as well as her labor and property.

       Clem has at no time claimed that the complaint failed to state a cause of action, and it is clear that the complaint does state a cause of action against Clem since plaintiff inter alia alleges that Conners and Clem distributed stock belonging to the partnership between themselves and thereafter sold the stock to Sheehan; furthermore, plaintiff alleges that defendants appropriated all of the monies of the businesses to the exclusion of plaintiff.


source: Caselaw Access Project

author: Mr. JUSTICE PERLIN

license: Public Domain

text:
    ADMIRAL BUILDERS CORP., Plaintiff-Appellant, v. ROBERT HALL VILLAGE et al., Defendants.—(HANDELS-EN PRODUCTIEMAATSCHAPPIJ DE SHOUW B. V., Defendant-Appellee.)
    First District (2nd Division)
    No. 80-2718
    Opinion filed October 20, 1981.

      Pressman & Hartunian, Chartered, of Chicago, for appellant.
    Mitchell S. Goldgehn and Nathan H. Lichtenstein, both of Goldgehn, Leonardo, Goldgehn & Isaacson, of Chicago, for appellee.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

This is an appeal from a summary judgment entered by the circuit court of Cook County in favor of the defendant, Handels-en Productiemaatschappij de Shouw B.V. (Handels), and against the plaintiff, Admiral Builders Corporation (Admiral), in an action alleging the creation and maintenance of a continuing nuisance and encroachment upon land owned by Admiral.

Admiral and Handels are adjoining landowners, Handels having purchased its property on July 27, 1978, from the Hanover Hoffman Corporation. In 1974 Admiral had filed a suit against Hanover Hoffman Corporation and Hanover Development Corporation (collectively referred to as Hanover) alleging that Hanover was responsible for the creation of a continuing nuisance and encroachment upon Admiral’s property. Admiral did not file a lis pendens notice of its action against Hanover. In September 1979 Admiral sought to join Handels as a party defendant to its suit against Hanover. Handels asserts that as of the time it purchased the property in question from Hanover, it had no knowledge of Admiral’s pending suit against Hanover.

The following issues are presented: (1) whether Admiral’s failure to file lis pendens notice (Ill. Rev. Stat. 1973, ch. 22, par. 53, subsequently transferred to Ill. Rev. Stat. 1979, ch. 110, par. 405) precludes it from joining Handels as a party defendant in an action for nuisance; (2) whether Admiral’s cause of action against Handels is barred under the doctrine of equitable estoppel; and (3) whether Admiral’s cause of action against Handels is barred under the doctrine of laches.

For the reasons hereinafter set forth, we reverse and remand.

Admiral owns a parcel of land in Hoffman Estates, Illinois. The East Branch of Poplar Creek flows in a southerly direction near the east boundary of Admiral’s land. In 1972 Hanover purchased land adjacent to the east boundary of Admiral’s property, and the following year Hanover began construction of a shopping center on its land.

In the course of construction Hanover graded its property. Prior to such grading, the land on both sides of Poplar Creek sloped gently upwards from the river bed. When the river was at low ebb it flowed within its natural banks, which were entirely within the boundaries of Admiral’s property. During periods of heavy rain or melting snow, the river swelled, flooding both Admiral’s property and the western boundary of Hanover’s property.

In grading the site destined for the shopping center, Hanover removed dirt from the eastern edge of its property and deposited that dirt along the western edge of its property and along the eastern boundary of Admiral’s property. The natural flood plain was thus altered. Hanover also paved portions of the shopping center site, which Admiral alleged caused rainwater to flow across Hanover’s property and into the river at a faster rate than had previously occurred.

Admiral complains that its property is inundated during heavy rainstorms and floods to a greater extent than occurred prior to the construction of the shopping center. Admiral also alleges that the storm water retention system installed for the shopping center does not adequately contain floodwaters from the river nor retard the increased flow of rainwater from the development site to the river. Admiral asserts further that flooding conditions on its eastern boundary are aggravated by the erosion of the dirt fill that had been placed by Hanover on the western side of Hanover’s property. The dirt obstructs the flow of water into the river, causing damage to vegetation at the east boundary of Admiral’s property.

As previously noted, Admiral in 1974 filed suit against Hanover, Hanover’s civil engineer, Brian Mays Engineering Company and Hanover’s principal tenant, Robert Hall Village, seeking compensatory damages, punitive damages and injunctive relief from the continuous injury to Admiral’s property. Admiral requested that the defendants be ordered to remove the dirt which had been placed on Admiral’s property, to restore the flood plain to its natural state, and to install an adequate stormwater retention system.

In 1975 Hanover conveyed the shopping center property in trust to LaSalle National Bank. On July 27, 1978, during pendency of Admiral’s suit against Hanover, the trustee sold the Hanover property to Handels. The sales contract provided a warranty by Hanover that the shopping center property was not subject to any pending legal actions.

Following the sale of the property to Handels, the shopping center was leased back by Handels to Hanover, which presently manages the property. Admiral alleged that as of the date on which Handels purchased the property, “the nuisance and encroachment” on Admiral’s property had not been abated. Handels contends that it had no actual knowledge of the existence of the nuisance action against Hanover.

On May 29, 1979, the trial court dismissed Admiral’s action against Hanover for want of prosecution. Within a few days thereafter, upon Admiral’s motion, the dismissal order was vacated.

Admiral contends that it was not until August 23,1979, that it became aware that on July 27, 1978, Handels had purchased the shopping center. Upon making this discovery, Admiral moved for leave of court to join Handels as a party defendant to its action against Hanover. Handels was served with an amended complaint on September 10,1979. The amended complaint repeated the allegations of the original complaint and requested the same relief earlier sought by Admiral against Hanover except that punitive damages were sought only against the Hanover group of defendants.

On October 22, 1979, Hanover moved to dismiss the action on the ground of laches. This motion was denied. On February 8,1980, Handels filed its answer to Admiral’s amended complaint, admitting ownership of the property but denying all other allegations.

On June 3, 1980, Handels filed a motion for summary judgment. In support of its motion Handels filed an affidavit stating that prior to the time it purchased the Hanover property, it had never received formal notice of the pending suit against Hanover and that it had found no recorded notice of lis pendens. Handels contended that Admiral was barred from proceeding against Handels due to the doctrine of laches, the doctrine of equitable estoppel, and Admiral’s failure to file lis pendens notice.

On September 18, 1980, the trial court granted Handels summary judgment. Neither written findings nor a written opinion was issued by the trial court. On October 10, 1980, Admiral moved for reconsideration of the summary judgment order, which motion was denied. On October 17 Admiral filed its notice of appéal from both the order granting Handels summary judgment and the order denying Admiral’s motion for reconsideration.

I

The first issue presented for review is whether Admiral’s failure to file lis pendens precludes it from joining Handels in an action involving a continuing nuisance.

“Lis pendens” means a pending suit. Under the common law doctrine, and as originally codified by Illinois statute in 1917, anyone who purchased or otherwise acquired an interest in property involved in litigation took such interest subject to the outcome of the litigation as if he had been a party thereto from the outset. The mere filing of a complaint affecting or involving real property served as constructive notice to any subsequent purchaser that such property was subject to pending litigation. See generally Davidson v. Dingeldine (1920), 295 Ill. 367, 129 N.E. 79; see also Moore v. Zelic (1930), 338 Ill. 583, 589, 170 N.E. 664; Taylor v. Lanahan (1979), 73 Ill. App. 3d 829, 831, 392 N.E.2d 425.

Binding a subsequent purchaser of property to the outcome of litigation of which he may have had no notice was considered by the courts a harsh rule. (See generally 51 Am. Jur. 2d Lis Pendens §7, at 954 (1970).) In 1963 the Illinois legislature acted to relieve the burden placed upon third-party purchasers and amended the 1917 statute to provide that the lis pendens doctrine does not take effect until notice of a pending lawsuit is filed with the office of the recorder of deeds in the county where the real estate involved in such suit is located. (Ill. Rev. Stat. 1979, ch. 110, par. 405.) Upon such filing, subsequent purchasers are charged with constructive notice of the underlying proceedings, provided service of process is made upon a party defendant within six months of the filing of the complaint.

One purpose of lis pendens is the avoidance of endless litigation of property rights precipitated by transfers of interest. This end is achieved by conclusively binding one who obtains an interest in the property during the pendency of a suit affecting it to the result of that litigation as if he had been a party from the outset. In this respect the filing of lis pendens notice is designed to protect a plaintiff from third persons who might acquire, during the pendency of litigation, interest in the subject matter of the litigation such as would preclude the court from granting the plaintiff the requested relief. (51 Am. Jur. 2d Lis Pendens §1 (1970); E. & E. Hauling, Inc. v. County of Du Page (1979), 77 Ill. App. 3d 1017, 1023, 397 N.E.2d 1260.) Another less widely recognized purpose of the doctrine is to protect purchasers by giving them notice that the land which they are buying might be affected by a judgment later entered in a pending action, by which they would be bound. E. & E. Hauling, Inc., at 1023, citing the dissenting opinion in Braunston v. Anchorage Woods, Inc. (1961), 10 N.Y.2d 302, 222 N.Y.S.2d 316, 178 N.E.2d 717.

The Illinois statute concerning lis pendens does not create an obligation to file lis pendens notice. The statute provides only that the filing of such notice will serve to bind purchasers of property pendente lite to such litigation as if they had been a party thereto.

In the case at bar, Admiral asserts that it does not seek to bind Handels to the outcome of its litigation against Hanover. Admiral seeks to bring an independent cause of action against Handels for the maintenance of a continuing nuisance.

In Chicago, Burlington & Quincy R.R. v. Schaffer (1888), 124 Ill. 112, 121, 16 N.E. 239, the Illinois Supreme Court held that an action may be maintained for the creation of a nuisance and a subsequent and separate action maintained for the continuance of such nuisance. In Chicago, Peoria & St. Louis Ry. Co. v. Reuter (1906), 223 Ill. 387, 392-93, 79 N.E. 166, the supreme court also held that after a defendant had notice of the nuisance maintained upon its property, it would be liable for “each overflow upon the land of an adjoining owner caused by the negligence or want of skill [of the defendant] # * *” and that each overflow “is a fresh nuisance and creates a new cause of action.”

Thus it is clear that Admiral may maintain a cause of action against Handels for the continuance of a nuisance, and under section 24 of the Civil Practice Act Admiral may join Handels to its suit against the Hanover group of defendants. (See Rubin v. Boorstein (1979), 73 Ill. App. 3d 689, 692, 392 N.E.2d 919; Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 123, 349 N.E.2d 599.) Whether as Handels contends it had neither actual nor constructive notice of the alleged nusiance being maintained upon its property does not preclude Handels from being named in an action by Admiral.

Although Admiral’s failure to file lis pendens notice precludes it from binding Handels to any judgment resulting from Admiral’s suit against Hanover, Admiral’s failure to file such notice does not, in our opinion, preclude it from maintaining a distinct cause of action against Handels for the continuance of a nuisance.

II

The second issue presented for review is whether Admiral’s cause of action against Handels is barred by the doctrine of equitable estoppel. Equitable estoppel has been defined as:

* 6 the effect of the voluntary conduct of a party whereby he (or she) is absolutely precluded from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding rights.” (Emphasis added.) (Slavis v. Slavis, 12 Ill. App. 3d 467, 473, 299 N.E.2d 413.)

Reliance on the conduct of another by a party to his detriment is an essential element of equitable estoppel. (Levin v. Civil Service Com. (1972), 52 Ill. 2d 516, 288 N.E.2d 97.) Handels contends that it relied on the absence of recorded lis pendens notice in making its determination to acquire the Hanover property. Handels thus concludes that Admiral, in failing to file lis pendens notice, allowed Handels “to act to its detriment” and that Admiral should therefore be “estopped from asserting its claim against Handels in this cause.”

In People ex rel. Russel v. Michigan Avenue Trust Co. (1924), 233 Ill. App. 428, 431, the court stated: “One may not maintain silence when it is his duty to speak, or claim the benefit of his own negligence to the injury of another 0 e (Emphasis added.)

In the case at bar we have established that Admiral was under no duty to file lis pendens notice, and it is not claiming any benefit from its failure to file to the injury of Handels. Thus, Handels cannot effectively claim that in purchasing the Hanover property, Handels had a right to rely on Admiral’s failure to file notice of its suit against Hanover. Handels has failed to establish the detrimental reliance suffered as the result of any “negligent” conduct by Admiral. We conclude, therefore, that the doctrine of equitable estoppel is not applicable to the instant case.

III

The third and final issue is whether Admiral’s cause of action against Handels is barred by the doctrine of laches. The Illinois rule with regard to laches is succinctly stated in Rogers v. Barton (1944), 386 Ill. 244, 253, 53 N.E.2d 862:

“In an equitable proceeding it is only when by delay or neglect to assert a right the adverse party is lulled into doing that which he would not have done or into omitting to do that which he would have done in reference to the property had the right been properly asserted that the defense of laches will be considered.” (Emphasis added.)

Laches has also been defined as “such neglect or omission to assert a right, taken in conjunction with a lapse of time 000 and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.” Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552, 147 N.E.2d 341.

Whether the defense of laches is available must be determined upon the facts and circumstances of each case. (Ryan v. City of Chicago (1974), 25 Ill. App. 3d 333, 323 N.E.2d 117; Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 360 N.E.2d 785.) There is no definite standard which can be applied in every case. People ex rel. Fleming v. Conlisk (1973), 11 Ill. App. 3d 520, 299 N.E.2d 537.

Handels charges that Admiral is guilty of unreasonable delay in asserting a cause of action against Handels since Admiral did not move to join Handels as a party defendant to the suit against Hanover until September 1979, more than 5M years after Admiral instituted suit against Hanover. Handels did not acquire an interest in the subject property, however, until 1978. Admiral could not have joined Handels prior to Handels’ acquisition of an interest in the shopping center property and thus cannot be guilty of laches for failing to do so. See, e.g., Klajbor v. Klajbor (1950), 406 Ill. 513, 520-21, 94 N.E.2d 502.

Handels also asserts the defense of laches on the ground that Admiral unduly delayed its prosecution of Hanover. In effect, Handels seeks to avail itself of any defense of laches that Hanover may have against Admiral. Yet, it has been demonstrated that Admiral’s cause of action against Handels, although arising out of essentially the same facts as the action maintained against Hanover, is a separate and distinct action. Even if Admiral could be considered guilty of undue delay in its prosecution of Hanover, such delay would not give rise to the defense of laches in Admiral’s separate suit against Handels. We hold, therefore, that the doctrine of laches does not bar Admiral’s action against Handels.

Based on the foregoing discussion, we must conclude that Handels is not entitled to summary judgment- on the grounds that Admiral failed to file notice of lis pendens, nor is it entitled to such judgment on the basis of equitable estoppel or laches. Summary judgment may only be granted when the pleadings, affidavits, answers to interrogatories, exhibits and depositions on file establish that there is no genuine issue of material fact and that the moving party is entitled to such judgment. (See Ill. Rev. Stat. 1979, ch. 110, par. 57.) These documents should be construed by the trial court strictly against the party moving for summary judgment and liberally in favor of the opponent. Summary judgment should be granted only when these items leave no doubt that such an order is justified. See Century Display Manufacturing Corp. v. D. R. Wager Construction Co., Inc. (1977), 46 Ill. App. 3d 643, 648, 360 N.E.2d 1346.

Since the record in the instant case does not clearly establish the absence of any genuine issue as to Handel’s liability for the maintenance of a nuisance, the question of such liability should be left for determination by the trier of fact. Moreover, since neither the failure to file lis pendens, nor equitable estoppel nor laches bars Admiral’s direct claim against Handels, and there remains an issue as to Handels’ liability for the maintenance of a nuisance, the action of the trial court in granting summary judgment was premature. We therefore reverse and remand.

Reversed and remanded.

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

       The Illinois statute referred to as “Constructive Notice of Suits in Equity, etc.” provides in pertinent part:

        “Every condemnation proceeding, proceeding to sell real estate of decedent to pay debts, or other suit seeking equitable relief, affecting or involving real property shall, from the time of filing in the office of the recorder of deeds in the county where the real estate is located of a notice signed by any party to the suit or his attorney of record or attorney in fact on his behalf, setting forth the title of the cause, the parties to it, the court where it was brought and a description of the real estate, be constructive notice to every person subsequently acquiring an interest in or a lien or the property affected thereby, and every such person and every person acquiring an interest or lien as aforesaid, not in possession of the property and whose interest or lien is now shown of record at the time of filing such notice, shall, for the purposes of this Act, be deemed a subsequent purchaser and shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto. If in any such suit, plaintiff or petitioner shall neglect or fail for the period of 6 months after the filing of the complaint or petition to cause notice to be given the defendant or defendants, either by service of summons or publication as required by law, then such notice shall cease to be such constructive notice until service of summons or publication as required by law is had * ° (Emphasis added.) Ill. Rev. Stat. 1973, ch. 22, par. 53, transferred to Ill. Rev. Stat. 1979, ch. 110, par. 405.

       Section 24 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 24) provides in part:
      “(1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions regardless of the number of causes of action joined ° ° (Emphasis added.)

       The trial court dismissed Admiral’s complaint against Hanover for want of prosecution on two separate occasions. On both occasions the trial court, on motion by Admiral, vacated the dismissal orders.


author: Mr. JUSTICE STAMOS

text:
    THE ADVERTISING CHECKING BUREAU, INC., Plaintiff-Appellant, v. CANAL-RANDOLPH ASSOCIATES et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1959
    Opinion filed October 20, 1981.

      Robert W. Bergstrom, Ronald W. Teeple, and John L. Leonard, all of Bergstrom, Davis & Teeple, of Chicago, for appellant.
    Edwin A. Rothschild, Harold C. Hirshman, and Robert H. Oakley, all of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff corporation is a tenant in a Chicago office building. Defendants own the building. Plaintiff seeks to enjoin defendant landlord’s planned relocation of the corridor leading to plaintiff’s offices. The trial court granted summary judgment for defendants. Plaintiff appeals, contending that unresolved issues of fact should have precluded summary judgment. Plaintiff also contends that the trial court erred in denying its motion for a temporary restraining order.

Plaintiff, The Advertising Checking Bureau, Inc., operates a service involving the checking of advertising copy in newspapers. Plaintiff’s Chicago operation employs approximately 100 people. In May of 1980, plaintiff signed a 15-year lease for office space in the Canal-Randolph Building in Chicago. The building is owned by Canal-Randolph Associates, a limited partnership. Canal-Randolph Associates Corporation is a general partner in the limited partnership. Both entities have been joined as parties defendant in this action.

Plaintiff’s offices occupy approximately one-third of the 13th floor of the Canal-Randolph Building. A straight corridor, approximately 8 feet wide and 50 feet long, leads directly from a bank of elevators to the door to plaintiff’s offices. Space on the west side of this corridor is leased to Western Union. A similar space on the east side of the corridor has been unoccupied for some time. Plaintiff’s lease agreement contains a right of first refusal with respect to the unoccupied space. In March of 1981, the landlord notified plaintiff of an offer to rent the unoccupied space. The landlord’s written notice advised that Western Union had offered $11 per square foot for 2795 square feet of the unoccupied space. Plaintiff did not exercise its right of first refusal.

On June 10, 1981, the landlord notified plaintiff that the corridor leading to its offices would be relocated to allow for Western Union’s expansion. Western Union, which already occupied the space west of the corridor, desired a contiguous space for its expanded operations. As a result, Western Union’s leasehold would cover the corridor and most of the previously unoccupied space. A new corridor was to run along the boundary of the previously unoccupied space.

Plaintiff immediately objected to the proposed configuration. The new route to the elevators would be significantly longer (approximately 150 feet instead of 50 feet) and somewhat narrower (6 feet at the narrowest point instead of 8 feet) than the existing passageway. Plaintiff also noted that the new corridor would pass by an equipment room and public rest rooms. The landlord, although it remained firm in its intention to eliminate the existing corridor, offered to place signs directing visitors to plaintiff’s offices. Plaintiff, unsatisfied with the landlord’s proposal, initiated this litigation.

Defendants, in moving for summary judgment, relied on a clause in the lease agreement. Paragraph 32 of the agreement states, in part:

“Landlord shall have the right at any time, without the same constituting an eviction and without incurring liability to Tenant therefor, to change the arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or other public parts of the Building.”

Defendants also point to paragraph 16 in the agreement, which states:

“All understandings and agreements heretofore made between the parties hereto are merged in this contract, which alone fully and completely expresses the agreement between Landlord and Tenant.”

Summary judgment for a defendant is appropriate if there is no genuine issue' as to any material fact and the defendant is entitled to judgment as a matter of law. (See Ill. Rev. Stat. 1979, ch. 110, par. 57.) The interpretation of a lease is a question of law when the terms are plain and unambiguous. (See Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 575, 414 N.E.2d 1152.) We find the clauses in question unambiguous and conclude that the matter was appropriate for summary judgment. Similarly, we find that the “issues of fact” advanced by plaintiff are not genuine or material, since the questions so raised are resolved by the terms of the lease.

“An ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning, through indefiniteness of expression, or having a double meaning.” (First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.) Plaintiff finds ambiguity in the use of the word “public” in section 32 of the lease-agreement. Plaintiff contends that the existing corridor is not public, inasmuch as it leads only to plaintiff’s offices and is not generally used except by plaintiff’s employees, customers and deliverymen. At the very least, plaintiff asserts, the term is ambiguous and extrinsic evidence should be admitted to clarify the matter. While it is true that plaintiff has been able to postulate two conflicting meanings for the term “public ° * * corridor,” it does not follow that plaintiff’s assertion of ambiguity is dispositive. Whether ambiguity exists is a question of law for the court. (Pioneer, at 575.) The trial court found paragraph 32 unambiguous. In light of the ordinary meaning of the word “public” and looking at the word in the context of paragraph 32, we do not doubt that “public” refers to the nonleased portions of the building reserved for the common use of the tenants and others. This accurately describes the corridor in question.

Plaintiff also argues that paragraph 32 is ambiguous because it could be construed to allow outlandish modification in the public areas of the building. Plantiff suggests that the clause could be cited as justification for narrowing the corridor to 1 foot in width. Following the definition quoted above, we believe that the possibility that language may be stretched, with fanciful results, does not indicate ambiguity. If the landlord adopted an unreasonable construction of paragraph 32 and attempted such an outrageous modification of the corridor, the result might well amount to a constructive eviction (see generally John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App. 3d 413, 366 N.E.2d 617) or a destruction of the tenant’s easement for ingress and egress (see The Fair v. Evergreen Park Shopping Plaza, Inc. (1954), 4 Ill. App. 2d 454, 464-65, 124 N.E.2d 649). Those misdeeds have their remedies, but the fact that a landlord might attempt misconduct under color of the lease does not make the lease ambiguous. Finding no ambiguity, we will not resort to rules of construction. (See Pioneer, at 575; Nerone v. Boehler (1976), 34 Ill. App. 3d 888, 891, 340 N.E.2d 534.) Thus there is no need to accept plaintiff’s invitation to construe the instrument against the lessor and in favor of the lessee, since this principle is a rule of construction. See Liquorama, Inc. v. American National Bank & Trust Co. (1980), 86 Ill. App. 3d 974, 977, 408 N.E.2d 373.

Plaintiff contends that the circumstances surrounding the formation of the lease agreement reveal an understanding that the corridor layout be maintained. Evidence on this point is immaterial for two reasons. Such evidence is extrinsic, and may not be considered without a finding of ambiguity. (See Pioneer, at 575; Nerone, at 891.) Furthermore, there is no reason to ignore the plain language of the integration clause in the lease: “All understandings and agreements 999 are merged in this contract, which alone fully and completely expresses the agreement between Landlord and Tenant.”

Plaintiff also contends that the floor plan, which was appended to the lease and shows the corridor in its original configuration, conveys the understanding that the details shown on the floor plan are not subject to change. Any such inference from the attachment of the floor plan to the lease, however, is overcome by the express language of paragraph 32, which clearly states that the location of the corridor is subject to change.

Plaintiff argues that three affidavits submitted in response to defendants’ motion for summary judgment raise issues of fact. One affidavit was that of Victor May, who described himself as a private investigator and an expert in building security. May stated that the proposed corridor configuration, since it was longer and passed by rooms where malefactors might lurk (i.e., the rest rooms and equipment room), posed a personal security risk to plaintiff’s employees and visitors. Another affidavit was that of Irving Addis, an architect. Addis evaluated the corridor change from a fire safety viewpoint. Addis noted that there are two exit stairways available to plaintiff’s employees. One is located in the northwest corner of plaintiff’s premises and the other is located near the bank of elevators. Addis concluded that the increased distance to the second stairway would constitute a fire safety hazard to those employees who attempted to exit by that stairway. A third affidavit was provided by Richard Pauls, plaintiff’s vice-president. Pauls expressed opinions regarding the personal security and fire safety aspects of the proposed corridor. His lengthy affidavit also traced the history of the lease negotiations.

Defendants filed no affidavits in response. Plaintiff argues that since its affidavits are uncontradicted, they must be taken as true. (See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Truth, however, is not the same as relevance. The purpose of affidavits given in connection with a motion for summary judgment is to demonstrate the evidence that will be offered at trial and so aid the court’s determination of whether a material issue of fact exists. (Anderson v. Dorick (1975), 28 Ill. App. 3d 225, 227, 327 N.E.2d 541.) Here, the affidavits related to fire and personal safety. These issues might be material to other landlord-tenant disputes, but are immaterial to the interpretation of paragraph 32 of the lease.

Plaintiff also contends that the landlord violated paragraph 17 of the lease rider, which contains plaintiff’s right of first refusal. Paragraph 17 states, in part:

“If Landlord shall receive a bonafide offer to lease [the unoccupied space adjacent to plaintiff’s premises] during the term of the Lease which Landlord is willing to accept (“Offer”), written notice of the Offer (and the material terms thereof) shall be given to the Tenant. * * 0 If Tenant does not notify Landlord that it has exercised its Right within such ten day period * ° * the Right shall be extinguished and of no further force and effect with respect to any further leasing of the Space.”

Under this provision, plaintiff had a right to see the material terms of Western Union’s offer for any part of the “approximately 4000 square feet” of unoccupied space. Plaintiff was notified of the square footage and the price. Plaintiff was not notified of the exact configuration of Western Union’s prospective leasehold. Plaintiff neither exercised its right of refusal nor asked for clarification, and the right was extinguished when the landlord accepted Western Union’s offer. Furthermore, we note that the right of first refusal did not include the existing corridor, since the right applied only to a walled-off area shown as “unoccupied space” on the floor plan. In view of this, the landlord was not required to disclose its plans for the corridor. Given the circumstances, we find that the notice provided was adequate and defendants did not violate paragraph 17 of the lease rider.

• 7 Plaintiff argues that the new corridor amounts to a constructive eviction. Paragraph 32 of the lease states that the relocation of a corridor will not be deemed a constructive eviction, but, even ignoring this language, the facts do not support plaintiff’s contention. Generally, there is no constructive eviction unless the tenant abandons or surrenders the premises. (John Munic Meat Co., at 416.) Additionally, the act of the landlord must be of a grave and permanent character and done with the intention of depriving the tenant of enjoyment of the premises. (Gillette v. Anderson (1972), 4 Ill. App. 3d 838, 842, 282 N.E.2d 149.) We do not believe that the landlord’s acts in the instant case are of such a nature.

Plaintiff also claims that the landlord has breached the lease’s covenant of quiet enjoyment. In Brown v. Lober (1979), 75 Ill. 2d 547, 553, 389 N.E.2d 1188, our supreme court stated that this covenant is breached only when a paramount titleholder effects an actual or constructive eviction. As noted above, no eviction has occurred. Plaintiff states that the Brown case is inapposite, since the covenant of quiet enjoyment in that case was part of a conveyance by warranty deed, rather than a lease. There is no valid basis for the distinction plaintiff argues. A lease is also a conveyance (see People v. Shedd (1909), 241 Ill. 155, 165, 89 N.E. 347), and the covenant of quiet enjoyment in a lease protects the same rights as the covenant of quiet enjoyment in the sale of property. Compare Berrington v. Casey (1875), 78 Ill. 317, 319, with Biwer v. Martin (1920), 294 Ill. 488, 496, 128 N.E. 518.

Plaintiff also cites numerous cases, most of them from other jurisdictions, to support its claim of an easement in the subject corridor. There is no doubt that plaintiff, as a 13th floor tenant, has an easement for ingress and egress over portions of the building (see The Fair, at 464-65), but paragraph 32 of the lease clearly makes that easement movable. We find that the proposed corridor will not destroy plaintiff’s easement.

Plaintiff’s second contention on appeal is that the trial court erred in denying its motion for a temporary restraining order. The denial of a temporary restraining order is a matter within the sound discretion of the trial court, and its decision will not be upset on appeal without a finding of an abuse of that discretion. (See Board of Education v. Springfield Education Association (1977), 47 Ill. App. 3d 193, 196, 361 N.E.2d 697.) The record on appeal shows no evidence of an abuse of discretion. On the contrary, the trial court expedited matters to a commendable degree. The motion for a temporary restraining order was filed on July 13, the same day defendants filed their motion for summary judgment. The trial court ruled on the summary judgment motion on August 3. It does not appear that the landlord began relocating the corridor during that interval. On August 12, this court entered an order preserving the status quo pending disposition of the appeal. Under these circumstances, there was no need for the temporary restraining order and no abuse of discretion in its denial.

Accordingly, the order granting summary judgment to defendants and the order denying plaintiff’s motion for a temporary restraining order are affirmed.

Judgment affirmed.

HARTMAN, P. J., and DOWNING, J., concur.


author: Mr. JUSTICE HOPE

text:
    WILLIAM L. MEYLOR, Petitioner-Appellant, v. WILLIAM BOYS, Indiv. and as Director, Illinois Department of Personnel, et al., Respondents-Appellees.
    Second District
    No. 80-333
    Opinion filed October 20, 1981.
    — Rehearing denied November 23, 1981.

      William M. Doty, Jr., of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Joseph D. Keenan, III, Assistant Attorney General, of counsel), for appellees.
   Mr. JUSTICE HOPE

delivered the opinion of the court:

Petitioner appeals from a dismissal of his petition for a writ of certiorari. He had been denied a hearing on the merits of a grievance he had brought before the State Director of Personnel and in his petition prayed that the court rule illegal the rules and regulations which form the grounds of the denial and order the Director of Personnel to consider his grievance on the merits.

Petitioner is a highway maintenance equipment operator employed by the Illinois Department of Transportation. He was suspended from work for three days without pay for insubordination and abusiveness to a superior. He brought a grievance against the Department of Transportation protesting the suspension and an unfavorable performance evaluation. At each step of the grievance procedure his case was denied consideration because he insisted upon being represented by private counsel. Petitioner was informed that as he was represented by a collective bargaining agent, the Illinois Conference of Teamsters, he was required by the rules of the State Department of Personnel and the collective bargaining agreement to be accompanied or represented by the exclusive bargaining representative. If he refused to abide by these rules he would not be heard. Following the last stage of the grievance procedure, in which the State Director of Personnel denied him a hearing because of his insistence in being represented by private counsel, petitioner petitioned the circuit court for a writ of certiorari.

The trial court granted his petition, ordering the Department of Personnel to bring before it the record of proceedings below in order that it might consider petitioner’s argument. Respondent moved to quash the writ.

The court thereupon quashed the writ, making the following findings:

“1. The respondents have not acted without jurisdiction to act.

2. The respondents have not exceeded their jurisdiction.

3. The respondents have not acted illegally.

4. The petitioner has failed to follow accepted procedures for obtaining a hearing on his grievances and, in effect, has caused the lack of a hearing.

5. The granting of the Writ of Certiorari is not necessary to prevent substantial injury to petitioner.

6. The granting of said Writ would cause great inconvenience to respondents.

7. The subject matter is not a proper one for the issuance of the Writ of Certiorari.

8. The Writ of Certiorari was improvidently granted.”

First we must consider respondent’s argument that certiorari should not lie because there was no record to bring before the court: no administrative hearing preceded the petition for a writ of certiorari. The matter about which petitioner seeks relief, however, is the fact that he was denied a hearing. The denial by the Director of Personnel and the documents upon which he based his ruling are all the record necessary to our resolution of the issue petitioner raises. Moreover, we may take judicial notice of the Rules of the Department of Personnel. (Sturm v. Block (1979), 72 Ill. App. 3d 306, 390 N.E.2d 912.) Denial of a hearing to a grievant is a quasijudicial act for which the grievant may seek court review. We think also that it was proper for petitioner to seek judicial review by means of a petition for a writ of certiorari. The State Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl01 et seq.) provides only for judicial review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) of decisions of the Civil Service Commission. As this matter has gone before the Department of Transportation and the Director of Personnel, and not the Civil Service Commission, judicial review cannot be sought pursuant to the Administrative Review Act. When judicial review cannot be had under that act, to petition for a writ of certiorari is a proper procedure for court review. Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286; Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412, 305 N.E.2d 404.

The scope of a court’s authority in a certiorari proceeding is to examine the record of the lower tribunal and “ascertain whether the agency had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency.” Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 884, 324 N.E.2d 65.

The Department of Personnel has jurisdiction to establish a plan for resolving employee grievances and complaints. (Ill. Rev. Stat. 1979, ch. 127, par. 63b108c(l).) The question before us is whether, in establishing this plan, the department can require an employee to accept his collective bargaining representative as his representative in grievance proceedings.

Section III of the Department of Personnel rules addresses conditions of employment, and 3 — 45 concerns representation at grievance proceedings:

“In discussions or meetings with the employer in Steps 2, 3 or 4 of the Grievance Procedure, the employee shall be entitled to be present and may be accompanied or represented by the exclusive bargaining representative or, if there is no such representative, any other person.”

Respondents contend that only the exclusive bargaining representative, in this case the Teamsters’ Union, may accompany petitioner in the presentation of his grievance. A grievant declining the assistance of the bargaining representative and electing to pursue the matter with private counsel forfeits his right to have his grievance heard.

It is well recognized that State employees may bargain collectively. (Chicago Division of Illinois Education Association v. Board of Education (1966), 76 Ill. App. 2d 456, 222 N.E.2d 243.) It is also readily acknowledged that in a collective bargaining agreement a State agency may not delegate to the employees’ bargaining agent its decision making power. (Lockport Area Special Education Cooperative v. Lockport Area Special Education Cooperative Association (1975), 33 Ill. App. 3d 789, 338 N.E.2d 463.) A rule providing for representation of an employee in a grievance proceeding by the collective bargaining agent does not give the collective bargaining agent decision making powers, however. The union representative advocates the employees’ position, but he does not pass judgment on it.

Petitioner argues, however, that to require him to accept representation by the collective bargaining agent and not to permit him to be represented by the attorney of his choice violates his rights to due process and equal protection.

Due process at a minimum requires that “ ‘deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ [Citation.]” (Goss v. Lopez (1975), 419 U.S. 565, 579, 42 L. Ed. 2d 725, 737, 95 S. Ct. 729, 738.) Respondent concedes that petitioner has a property interest in his civil service position. Petitioner therefore must be afforded that due process of law which is appropriate to a proceeding which has in issue a three-day suspension and an unfavorable performance evaluation which may possibly affect him in his future career. A review of existing case law reveals no precedent for or against petitioner’s position that he is entitled to privately retained counsel. It may be noted in passing, however, that the Supreme Court specifically recognized the right to representation by counsel in an administrative hearing in only one case to date. That case, Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011, held that a welfare recipient was entitled to a pretermination hearing before his benefits were cut off. The Supreme Court, clearly considering termination of benefits a serious property deprivation, set out the procedural safeguards that must be following in the pretermination hearing. Among these is the opportunity for the recipient to retain private counsel, if he so desires. The property deprivation in that case, however, was much more serious than petitioner’s in this case. Moreover, that case did not involve representative bodies recognized by administrative agencies as the spokesman for welfare recipients. Further, Goldberg does not purport to lay out the rules of procedure in all types of administrative hearings. As we noted above, “due process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972), 408 U.S. 471, 481, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600.) The Supreme Court in Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903, listed three factors to consider in determining due process hearing requirements.

“[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

In applying these factors to the present case it appears the matters to be considered are as follows:

The interest of petitioner consists of a three-day suspension without pay and an unfavorable report which may be considered in “determining salary increases * * ’, as a factor in promotion tests * “ *, and as a factor in determining salary decreases, the order of layoffs, reinstatement,” and such matters. (Ill. Rev. Stat. 1979, ch. 127, par. 63b108b.14.) The risk of an adverse ruling regarding petitioner’s interests appears to us to be no greater because of the requirement of representation by the collective bargaining agent. The collective bargaining agent acts on behalf of those it represents, not the Department of Personnel, and there is no indication its representative role in grievance procedures would be less zealous than that of privately retained counsel.

The government’s interest seems to favor representation by the collective bargaining agent over that by private counsel. Private counsel would be unlikely to be as familiar with the procedure or substance of such hearings as a representative who regularly handles such grievances. Matters would be likely to proceed more smoothly and consistently with counsel who commonly represents workers in such cases.

In applying these factors, we think it doubtful that due process requires that a State employee subject to a three-day suspension be permitted to be represented by counsel. The issue may be viewed not as petitioner views it, as a deprivation of counsel to which he has a constitutional due process right, but as a benefit guaranteed him by Department of Personnel rules and a collective bargaining agreement. The collective bargaining agent and the Department of Personnel provided in the collective bargaining agreement that the bargaining agent would represent in grievance proceedings employees on whose behalf it bargains collectively. To provide for union representation of employees in grievance proceedings was accepted as proper in the context of private industry by the Supreme Court in Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903. We do not think the status of highway maintenance equipment operators as civil service employees requires a conclusion that their collective bargaining agreement may not contain such a provision.

Petitioner further contends, however, that he is denied equal protection of the law, for while he must accept representation by the collective bargaining agent those State employees not represented by a collective bargaining agent may retain private counsel to represent them in grievance proceedings.

“The equal protection clauses of our constitution and of the United States Constitution do not prohibit the establishment of legislative classifications; nor do they require that all persons be treated uniformly.” (Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 418, 367 N.E.2d 1325.) Only “when a governmental act classifies people in terms of their ability to exercise a fundamental right; [or] when the governmental classification distinguishes between persons, in terms of any right, upon some ‘suspect’ basis,” will strict scrutiny of a statute be engaged in by the courts (J. Nowak, R. Rotunda, & J. Young, Constitutional Law 524 (1978)); otherwise, “a statutory classification will not be declared unconstitutional ‘if any state of facts reasonably may be conceived to justify it.’ ” Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 419, quoting Dandridge v. Williams (1970), 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153.

We have determined, in the due process discussion, that there is no fundamental right to counsel of choice in an administrative hearing of this type. Also, the classification of employees into those who are represented in collective bargaining and those who are not, is not a suspect classification, such as classifying persons by race or nationality. Therefore we may review Rule 3 — 45 only to determine whether “ ‘any state of facts reasonably may be conceived to justify it.’ ” Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 419, 367 N.E.2d 1325, 1327.

It may be argued that representation of a grievant by a collective bargaining agent would be in the best interests of efficiency and orderly administrative procedure, for the Department of Personnel would have before it advocates familiar with the grievance procedure. Those State employees who are not organized and who do not have collective bargaining agents obviously cannot have such advocates at their disposal. We do not think it violative of equal protection of the law that they be permitted to retain private counsel.

We conclude that provision for representation in grievance proceedings by a collective bargaining representative is a proper subject of Department of Personnel’s Rules and the collective bargaining agreement, and not violative of the constitutional guarantee of the due process of law and equal protection under the laws.

Affirmed.

LINDBERG and VAN DEUSEN, JJ, concur.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    THE TOMLEN GROUP, LTD., Plaintiff-Appellant, v. STEVEN GOLDFARB et al., Defendants-Appellees.
    Second District
    No. 81-176
    Opinion filed October 22, 1981.

      John K. Silk and John M. Gregor, both of Defrees and Fiske, of Chicago, for appellant.
    Amstein, Gluck & Lehr, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Tomlen Group, Ltd. (Tomlen), filed suit on July 31, 1979, to foreclose a mechanics’ lien. Steven Goldfarb and Frances Goldfarb et al. (Goldfarb) filed a motion to dismiss under section 48(1) (e) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(e)), alleging the two-year limitations period as a defense (Ill. Rev. Stat. 1979, ch. 82, par. 9). The trial court dismissed the complaint on November 14, 1980. On December 12, 1980, Tomlen filed a motion to reconsider and to vacate the judgment, which was denied on February 10,1981. Tomlen appeals from both orders, contending that its action was filed within two years from its completion of the work under the contract.

The statute provides, as pertinent:

“Such suit shall be commenced * * * within two years after the completion of the contract, ° ° (Ill. Rev. Stat. 1979, ch. 82, par. 9.)

The test for “completion” is whether the work done thereafter is “trivial and inconsequential” or “essential to the completion of the contract.” Miller Brothers Industrial Sheet Metal Corp. v. La Salle National Bank (1969), 119 Ill. App. 2d 23, 29.

“The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact ° ” (Ill. Ann. Stat., ch. 110, par. 48, Historical and Practice Notes, at 354 (Smith-Hurd 1968).) “The affidavits supporting the motion to dismiss must allege or establish facts which will authorize the court to find that the motion is well founded in fact.” (Chapman v. Huttenlocher (1970), 125 Ill. App. 2d 39, 46. See also Denton Enterprises, Inc. v. State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 505.) Since the issues which can be raised under section 48 are in the nature of affirmative defenses, it follows that, if proved, they avoid the effect of plaintiff’s allegations. Cf. Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 742.

In the posture of this case based on the pleadings, we must first consider what was properly before the trial court when it dismissed the complaint pursuant to section 48 of the Civil Practice Act. As material here, the complaint alleges that on or about July 10, 1976, Tomlen contracted with Goldfarb to construct a house at a price of $121,684.67; that it completed the furnishing of all the material, fixtures, services, and labor required by the contract on or about August 8, 1977, and on that date the contract was substantially completed; that Goldfarb took possession of the premises on July 8, 1977, prior to substantial completion; that on August 8, 1977, certain items of a “punch list” nature were noted by Goldfarb, and Tomlen thereafter furnished labor and material to complete the items contained in the list; and that Goldfarb has not made final payment as required by the contract.

In its motion to dismiss Goldfarb alleges that another proceeding was pending in the court below between the same parties, a breach of contract action (cause No. 78 L 643) which Goldfarb had instituted against Tomlen; that Tomlen filed a motion to dismiss the breach of contract action and a memorandum in support of its motion to dismiss; that in its memorandum Tomlen stated that “[t]he home was substantially completed in July of 1977 and [Goldfarb] took occupancy on July 11, 1977”; and that, since the complaint in the mechanics’ lien foreclosure action was filed on July 31, 1979, the present suit was not commenced within two years after the completion of the contract.

In its order of November 14,1980, dismissing the foreclosure suit for failure to comply with the applicable statute of limitations, the trial court stated that it had examined “the pleadings in the case at bar and another case between the same parties heretofore filed in this Court as Cause No. 78 L 643” and noted that Tomlen admitted in the breach of contract action that the home was substantially completed in July of 1977 and that Goldfarb took occupancy on July 11, 1977.

Based upon the pleadings then before the court, we conclude that the trial court did not err in dismissing the complaint by its order of November 14,1980. The trial judge properly determined from the pleadings that the house was substantially completed before Goldfarb moved in on July 11, 1977. It had before it Tomlen’s judicial admission in a prior case that performance of the contract was substantially completed in July of 1977; and it could therefore refuse to accept as true Tomlen’s allegation in the complaint filed in this cause that the date of substantial completion was August 8,1977, less than two years prior to the filing of the mechanics’ lien foreclosure complaint on July 31, 1979.

Tomlen contends, however, that the matters before the court on the motion to vacate and reconsider compel a different conclusion. It argues that correspondence between the parties, which it has attached to the appellant’s brief as exhibits, shows that it furnished substantial labor and material subsequent to July 31, 1977, and that an affidavit attached to its motion to vacate and reconsider corroborates this.

Attachments to briefs not otherwise of record are not properly before the reviewing court and cannot be used to supplement the record. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 415; Silny v. Lorens (1979), 73 Ill. App. 3d 638, 642-43.) Further, the exhibits were not of record since they were not incorporated by reference in the trial court’s order. (Compare In re Application of County Collector (1974), 23 Ill. App. 3d 923, 928-29.) Any doubts arising from the incompleteness of a record will be resolved against the appellant. (Reed v. Hoffman (1977), 48 Ill. App. 3d 815, 819; cf. Gore v. National Association of Certified Public Accountants (1923), 231 Ill. App. 38, 44.) The exhibits were therefore dehors the record on appeal.

Unlike the exhibits, the affidavit was clearly brought to the attention of the trial court, but only after the hearing on Goldfarb’s motion to dismiss. Tomlen had ample opportunity, one full year, to respond to Goldfarb’s motion to dismiss, yet chose not to file anything. Tomlen undertakes to excuse its failure by arguing that it filed the affidavit only to clarify pleadings already of record; but the information set forth in the affidavit offered nothing that Tomlen could not have introduced at the hearing on defendants’ motion to dismiss. Moreover, the court did not specifically refer to the affidavit in its later order denying Tomlen’s motion to vacate. We conclude that the trial court did not consider the merits of the affidavit because it was not filed in response to the motion to dismiss. Whether to consider affidavits filed after hearing on the section 48 motion is discretionary with the trial court. (Bowen v. Bowen (1914), 265 Ill. 638, 640. Freeman v. Augustine’s, Inc. (1977), 46 Ill. App. 3d 230, 236.) This is based on the reasoning that “[i]t is not intended cases should be heard piecemeal under this procedure.” (Gliwa v. Washington Polish Loan & Building Association (1941), 310 Ill. App. 465, 478.) We conclude that the trial court did not abuse its discretion under the circumstances in refusing to vacate the prior order of dismissal.

The judgment is therefore affirmed.

Affirmed.

REINHARD and HOPE, JJ., concur.