author: JUSTICE STAMOS

text:
    PETER LEE, Plaintiff-Appellee, v. THE HUMAN RIGHTS COMMISSION, STATE OF ILLINOIS, et al., Defendants-Appellants.
    First District (2nd Division)
    No. 83—1985
    Opinion filed July 24, 1984.

      John O. Demaret, of Chicago (Lorene F. Murray, of counsel), for appellants.
    Sullivan & Associates, Ltd., of Chicago (Gregory A. Stayart, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Peter Lee filed a charge of handicap discrimination with the Fair Employment Practices Commission (the Commission) on June 2, 1980. On June 30, 1981, the Commission filed a complaint against defendant, the Chicago Transit Authority (CTA), on plaintiffs behalf. Defendant filed a motion to dismiss alleging, inter alia, that plaintiff’s charge was untimely filed and that, therefore, the Commission lacked jurisdiction to hear plaintiff’s claim. The administrative law judge (ALJ) of the Illinois Human Rights Commission (successor to the Fair Employment Practices Commission) granted defendant’s motion and issued a recommended order and decision on April 16, 1982. Plaintiff filed exceptions to the recommended order and decision, but the Commission affirmed the dismissal of the complaint on August 3, 1982.

Plaintiff filed a complaint for administrative review of the Commission’s decision in the circuit court of Cook County. On May 5, 1983, the circuit court ruled that the Commission’s order and decision be reversed and that the matter be remanded to the Commission for further proceedings. After a denial of its post-trial motion, defendant instituted this appeal.

Plaintiff became a bus servicer with defendant in 1974. On May 25, 1977, plaintiff injured his back while at work. Plaintiff twice attempted to return to work and reinjured his back on both occasions. Plaintiff wore a steel back brace and was under the care of an orthopedic specialist from June until August 24, 1977. On October 21, 1977, plaintiff reported to defendant that he was awaiting admission to a hospital. On December 13, 1977, plaintiff informed defendant that he was in traction but would report to work on December 19, 1977. On December 19, 1977, plaintiff reported to defendant that he would continue to be under a doctor’s care until February 18, 1978. On that date, plaintiff reported for work wearing a steel back brace and was informed that he must procure a note from his physician concerning the reason for the brace, any lifting restrictions and the estimated length of time that plaintiff had to wear the brace. Plaintiff returned to work on February 27, 1978, with a note from his physician stating that the brace was intended to treat a back injury, that plaintiff should not lift over 100 pounds and that the length of time that the brace múst be worn was unknown. (A bus servicer cleans, fuels, transports and repairs buses and must be able to lift and/or carry at least 100 pounds.) Because of the restrictions, plaintiff was not allowed to return to work. On March 27, 1978, defendant found plaintiff unfit to work as a bus servicer.

After March 27, 1978, plaintiff attempted to gain reinstatement to his position as bus servicer on four occasions. On August 17, 1978, plaintiff’s physician released plaintiff to return to work without restrictions. Defendant informed plaintiff that his case would be reviewed and clarified. On October 16, 1978, defendant’s physician approved plaintiff to return for nonoperating work (not bus service). Thereafter, plaintiff filed a grievance in accordance with his collective bargaining agreement in an attempt to regain his position as a bus servicer. This grievance was denied on January 15, 1979. Plaintiff then invoked a clause in his collective bargaining agreement which required that plaintiff be examined by a “disinterested” physician. It was this physician’s opinion that plaintiff should not be allowed to return to work as a bus servicer, and on this basis defendant again denied plaintiff reinstatement on March 14, 1980. After this denial of reinstatement, plaintiff filed his charge of handicap discrimination with the Commission on June 2, 1980. A complaint was filed on June 30, 1981, but was dismissed on the ground that the discriminatory act cited in the complaint did not occur within 180 days of the filing of the charge. Plaintiff appealed to the circuit court of Cook County, which found that plaintiff’s attempts to gain reinstatement should be considered in calculating the 180-day filing period and that these attempts rendered the filing of the charge timely. After a denial of its post-trial motion, defendant appealed from the circuit court’s decision.

The general issue before this court is whether plaintiff’s charge before the Commission was timely filed. In the instant case, plaintiff filed his charge with the Illinois Fair Employment Practices Commission on June 6, 1980. At that time, filing procedures before the Commission were governed by section 8 of “An Act to promote the public health, welfare and safety of the People of the State of Illinois by reducing denial of equality of employment opportunity.” (Ill. Rev. Stat. 1975, ch. 48, par. 858.) In pertinent part, section 8 states:

“Whenever within 180 days after the date that an unfair employment practice allegedly has been committed, a charge in writing under oath or affirmation is filed with the Commission by a complainant *** in such detail as to substantially apprise any party properly concerned as to the time, place and facts with respect to such alleged unfair employment practice *** the Commission shall promptly serve a copy of the charge within 10 days on the respondent ***.”

Plaintiff suggests that the 180-day limitation on filing a charge is permissive rather than mandatory and that therefore the Commission erred by strictly applying the 180-day limitation to the facts of his case. But in Board of Governors v. Rothbardt (1981), 98 Ill. App. 3d 423, 424 N.E.2d 742, the court held that the 180-day filing requirement is jurisdictional. (98 Ill. App. 3d 423, 426.) Thus, the Commission was not at liberty to relax the filing requirement and a failure to file within the prescribed limits deprives the Commission of jurisdiction.

Alternatively, plaintiff contends that by its misleading conduct defendant prevented plaintiff from timely filing his charge of discrimination. Plaintiff cites the following four instances as examples of the misleading conduct engaged in by defendant.

(1) The CTA told Lee on August 17, 1978, that "his case would be reviewed and clarified”;
(2) Lee reported to the CTA on October 16, 1978, with the approval of the CTA, for nonoperating work;
(3) Lee filed a grievance to be reinstated to operating work, pursuant to his collective bargaining agreement, which was responded to and eventually denied by the CTA on January 15, 1979; and
(4) The CTA had Lee examined by another physician on March 14, 1980, pursuant to Lee’s collective bargaining agreement.

Plaintiff correctly asserts that if his charge was untimely filed because of defendant’s misleading conduct, defendant will be estopped from raising the limitations period as a defense. (See Sabath v. Morris Handler Co. (1968), 102 Ill. App. 2d 218, 223, 243 N.E.2d 723.) But defendant will only be estopped if it was conduct initiated by defendant which induced plaintiff not to act. (See 102 Ill. App. 2d 218, 223.) In the instant case, the four examples of misleading conduct cited by plaintiff were either conduct initiated by plaintiff alone or are not sufficient to make plaintiff’s charge timely.

Plaintiff’s first averment is that on August 17, 1978, defendant told plaintiff that “his case would be reviewed and clarified.” Defendant allegedly made this representation in response to the production by plaintiff of a doctor’s report clearing plaintiff for work with no restrictions. Thus defendant’s representation was prompted by plaintiff’s conduct in the first instance. Moreover, defendant’s representation does not alter the finality and actionability of defendant’s March 27, 1978, decision not to reinstate plaintiff to his former position. Defendant merely stated that the case would be “reviewed and clarified.” It did not indicate that its earlier decision would be held in abeyance or that it was vacating that decision and re-opening the case. Under these circumstances, it does not appear that this statement should have misled plaintiff into delaying the filing of his charge.

Plaintiff’s second averment concerns the fact that plaintiff reported for “non-operating” work on October 16, 1978. The record indicates that “non-operating” work is not the type of work which plaintiff sought. This action, which was initiated by plaintiff, would not, therefore, serve as a reasonable basis for failing to file a charge relating to defendant’s March 27 decision not to reinstate plaintiff as a bus servicer.

The final two instances cited by plaintiff were actions taken by defendant pursuant to plaintiff’s collective bargaining agreement. In both instances, plaintiff initiated the actions and defendant followed up on plaintiff’s actions because it was bound to do so under plaintiff’s collective bargaining agreement. Under these circumstances, it is apparent that defendant did not mislead plaintiff in any way.

The next issue before us is whether plaintiff’s charge was timely filed.

The charge in the instant case was filed on June 6, 1980. It was on March 27, 1978, that defendant refused to allow plaintiff to return to his position as a bus servicer. Defendant contends that the sole basis for plaintiff’s complaint was the March 27 refusal to reinstate and that, therefore, the charge was not filed within the 180-day limitation period. Plaintiff notes that on four occasions following March 27, 1978, he unsuccessfully attempted to regain his former position. Plaintiff asserts that these subsequent rejections by defendant represent a continuing pattern of discrimination by defendant which brings plaintiff’s charge within the 180-day filing period. Plaintiff’s “continuing pattern of discrimination” argument does not resolve the issue of the timeliness of plaintiff’s charge.

The seminal act of alleged discrimination from which all others followed was the March 27, 1980, decision not to reinstate plaintiff. On four occasions subsequent to March 27, defendant refused plaintiff’s requests for reinstatement. Clearly, these subsequent refusals by defendant perpetuated the impact of the decision not to reinstate on March 27. But in resolving the issue before us, the emphasis should not be placed on the continuing impact of a past violation; rather, the critical question is whether any present violation exists. (See United Air Lines, Inc. v. Evans (1977), 431 U.S. 553, 558, 52 L. Ed. 2d 571, 578, 97 S. Ct. 1885, 1889 (Title VII case).) Plaintiff’s argument diverts attention from this critical question.

The “continuing pattern of discrimination” argument implies that each attempt by plaintiff to gain reinstatement “revived” the preceding alleged acts of discrimination such that if any of the attempts to gain reinstatement fell within the limitations period, all preceding incidents of alleged discrimination could properly be included as bases for a charge of discrimination. But as we noted above, the crucial issue is whether a present violation exists. Accordingly, each instance of alleged discrimination is to be viewed as an independent act of discrimination which is subject to its own limitations period. Any preceding acts of discrimination which are not made the basis for a timely charge are the legal equivalent of a discriminatory act which occurred before the employment discrimination statute was passed. See 431 U.S. 553, 558, 52 L. Ed. 2d 571, 578, 97 S. Ct. 1885,1889.

In the instant case, plaintiff was not allowed to return to his position as a bus servicer on March 27, 1978. Plaintiff unsuccessfully sought reinstatement to his former position on August 17, 1978; October 16, 1978; January 15, 1979; and March 14, 1980. Plaintiff filed his charge of discrimination with the Commission on June 2, 1980. Thus, the only act of alleged discrimination which occurred within 180 days of June 2, 1980, was defendant’s refusal to reinstate plaintiff on March 14, 1980. Each of the prior alleged acts of discrimination became actionable, and a 180-day limitations period began to run on them, on the date that they occurred. Only defendant’s rejection of plaintiff’s request for reinstatement on March 14, 1980, could have served as the basis for the complaint for discrimination.

The next' question that arises is whether the rejection of March 14,1980, can qualify as an independent act of discrimination.

Plaintiff contends that each time defendant rejected his attempts to gain reinstatement after March 27, 1978, a new, independent act of discrimination was committed. But the decision not to reinstate plaintiff was made on March 27, 1978, and there is no indication in the record that this decision was tentative or subject to periodic review. Thus, it is doubtful that defendant’s repeated refusal to reverse its March 27 decision can be viewed as new incidents of discrimination. This is especially true when one considers that it was plaintiff who initiated each attempt to gain reinstatement. These post-March 27 attempts to gain reinstatement are similar to the pursuance of a grievance procedure.

In Delaware State College v. Ricks (1980), 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498, the Supreme Court, in reviewing a title VII decision, stated that:

“entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.” (449 U.S. 250, 261, 66 L. Ed. 2d 431, 441, 101 S. Ct. 498, 505-06.)

It is appropriate to examine Federal decisions in the fair employment field because of the similarities between the Federal and Illinois fair employment enactments. (See Montgomery Ward & Co. v. Fair Employment Practices Com. (1977), 49 Ill. App. 3d 796, 805, 365 N.E.2d 535.) Under the analysis used by the Supreme Court in Ricks, plaintiff’s attempts in the instant case to gain reinstatement cannot be considered independent of the March 27, 1978, decision and cannot, therefore, be viewed as independent acts of discrimination. This is especially true as to the March 14, 1980, decision not to reinstate. Plaintiff forced that ruling by defendant under plaintiff’s collective bargaining agreement. Thus, the March 14, 1980, decision resulted from a grievance procedure and does not, therefore, constitute an independent act of discrimination.

For the reasons expressed herein, we find that the only actionable incident of discrimination occurred on March 14, 1980, when plaintiff unsuccessfully sought reinstatement. We also find that the March 14 incident, standing alone, cannot sustain an action for employment discrimination.

We therefore reverse the judgment of the circuit court and remand with directions to reinstate and affirm the finding of the administrative law judge.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    JOSEPHINE PIEPRZAK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (General Electric, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—426WC
    Opinion filed August 1, 1984.
    Goldstein, Goldberg & Fishman, of Chicago (David Z. Feuer, of counsel), for appellant.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Bennett F. Hart, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Josephine Pieprzak, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) for accidental injuries arising out of and in the course of her employment by respondent, General Electric. After a hearing, an arbitrator awarded petitioner compensation for permanent and complete disability to her left foot to the extent of 60%. On review the Industrial Commission reversed, finding that petitioner had failed to prove that her injuries arose out of and in the course of her employment with respondent. The determinative question before the Commission was whether petitioner, while traveling to work, had fallen on a public sidewalk or on respondent’s property. The circuit court of Cook County confirmed the decision of the Commission, and petitioner appeals. On appeal petitioner contends that the Commission’s decision is against the manifest weight of the evidence.

On the morning of January 16, 1978, petitioner walked north on the west sidewalk of 54th Avenue in Cicero toward an entrance to respondent’s plant. Respondent’s property line runs in a north-south direction approximately 10 inches west of the west edge of the sidewalk in question. A paved driveway leading into respondent’s parking lot crosses over the sidewalk just south of respondent’s premises.

At the arbitration hearing, petitioner testified that, as she approached the plant’s entrance on her way to work, she noticed an accumulation of ice and snow on the sidewalk where the driveway intersects the sidewalk. Petitioner stated that she slipped and fell when, to avoid the ice, she stepped off the sidewalk and onto respondent’s property. She sustained a fractured ankle and was hospitalized.

One week after the accident, an investigator employed by respondent interviewed petitioner in the hospital. During that interview, which had been transcribed and was made part of the record, petitioner stated that she fell in the middle of the entranceway to the parking lot.

Georgianne Mozis, a nurse employed by respondent, testified that she saw petitioner lying on the sidewalk just north of the driveway in front of the plant. Petitioner told her that she slipped on the sidewalk. The nurse’s report, written on the day of the accident, stated that petitioner slipped on ice in front of and to the south of the plant and that petitioner was found on the sidewalk at the entrance to the parking lot.

A report completed on the day of the accident by a security guard employed by respondent stated that petitioner fell on the driveway at the junction of the sidewalk and the driveway. On the back of the report there was a diagram of the general area where the injury occurred. Ther'e was a mark on the sidewalk at the point where the driveway to the parking lot intersected the sidewalk.

Respondent introduced into evidence two notices given to the city of Cicero by petitioner. Both notices recited that petitioner slipped and fell on the sidewalk owned by Cicero.

Petitioner contends that the manifest weight of the evidence shows that she fell either on respondent’s property or on the en-tranceway to respondent’s property and is therefore entitled to compensation for her injuries.

When an employee is injured at a point off the employer’s premises while traveling to and from work, her injuries generally are not compensable. (Butler Manufacturing Co. v. Industrial Com. (1981), 85 Ill. 2d 213, 216, 422 N.E.2d 625; Reed v. Industrial Com. (1976), 63 Ill. 2d 247, 248-49, 347 N.E.2d 157.) In Reed the claimant sustained injuries when she fell on a crosswalk which led from her place of work across a public sidewalk to the street. The claimant argued that she was entitled to compensation even though the place on the sidewalk where she fell was not owned by her employer, since her employer maintained and controlled the sidewalk. The court rejected claimant’s argument, holding that claimant’s injuries did not occur on the employer’s property, did not arise out of and in the course of her employment, and were not compensable. The facts in Reed are indistinguishable from the present case, and therefore we need not consider further petitioner’s contention that her injuries are compensable if she fell on the entranceway to and a few inches from the property of respondent. See also Butler Manufacturing Co. v. Industrial Com. (1981), 85 Ill. 2d 213, 422 N.E.2d 625.

Thus, the single determinative question here is whether petitioner fell on respondent’s property, which begins 10 inches west of the public sidewalk. The evidence on this issue is conflicting. In such instance, it is within the province of the Commission to resolve conflicts in testimony, to draw inferences from the testimony, and to determine the credibility of witnesses and the weight to be given their testimony. (Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 406, 459 N.E.2d 963.) On review, a court will not disregard permissible inferences merely because other inferences might have been drawn. Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 407, 459 N.E.2d 963.

The evidence and reasonable inferences that can be drawn therefrom support the Commission’s decision that petitioner did not fall on respondent’s property. Petitioner’s testimony that she fell when she stepped on respondent’s property is in direct conflict with the statement she made a week after the accident that she fell in the middle of the area where the driveway crosses the sidewalk. Although petitioner testified that she was under medication and that her mind was “dull” when she made the statement, the Commission, which had the transcribed interview before it, found that there was no evidence to support her claim of being upset or medicated. The Commission also had before it notices given by petitioner in another case that she fell on the sidewalk. In addition, the nurse testified that petitioner was lying on the sidewalk just north of the entranceway. There was ample evidence to support the Commission’s decision that petitioner fell on a public way. The finding of the Commission is not against the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Cook County confirming the decision of the Industrial Commission is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., BARRY, WEBBER, and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
    THE BANK OF CHENOA, Plaintiff-Appellee, v. DONALD E. BAGBY et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0282
    Opinion filed August 7, 1984.

      Mercer Turner, of Bloomington, for appellants.
    Caughey, Legner & Freehill, of Chenoa (John A. Freehill, of counsel), for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Foreclosure and deficiency judgment.

We affirm.

The Facts

In order to obtain funds to finance the purchase and operation of a Yamaha motorcycle dealership, Donald and Shirley Bagby, as Bagby, Inc., gave two notes to the Bank of Chenoa (the Bank). The notes were secured by two real estate mortgages, a security interest in the equipment, parts, and inventory of the dealership, and the Bagbys’ personal guarantees.

The dealership fell into severe financial difficulties and the Bagbys were unable to meet their obligation to the Bank. The Bank-exercising its remedies under article 9 of the Uniform Commercial Code-Secured Transactions (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 101 et seq.)— took possession of the equipment, parts, and inventory of the dealership. The Bank later sold it all over a period of time.

The Bank then filed a complaint seeking to foreclose on the real estate mortgage and to recover any remaining deficiency from the Bagbys. In response, the Bagbys filed an answer alleging in part that the Bank could not foreclose on the mortgage or recover any deficiency because the Bank had sold the assets of the dealership without proper notice and in a commercially unreasonable manner.

The trial court granted the Bank’s motion to place itself in possession of the real estate. The property was later sold by agreement of the parties, and the proceeds of the sale were placed in an escrow account.

After a hearing, the trial court entered a judgment in the Bank’s favor. The court found that the Bank was entitled to a judgment of foreclosure on both mortgages and the sum of $181,281.77. Two weeks later, the trial court entered the judgment of foreclosure, finding in part “[t]hat by virtue of the mortgages and indebtedness secured thereby there is due from the mortgagors [the Bagbys] to the plaintiff [the Bank] the sum of $181,281.77.”

The Bagbys appeal.

We affirm.

The Law

On appeal, the Bagbys maintain that the circuit court erred in entering the judgment of foreclosure and in awarding the Bank a deficiency judgment. The Bagbys argue that the Bank failed to conform with the provisions of article 9 when it repossessed and sold the assets of the dealership. Specifically, they contend that the Bank failed to both give proper notice and to conduct the sale in a commercially reasonable manner.

The Bagbys point out that our court has ruled that failure to abide by the provisions of article 9 results in the creditor being barred from seeking a deficiency judgment against the debtor. The Bagbys argue that the Bank was attempting to recover a deficiency remaining after the sale of the dealership assets when it sought to foreclose on the mortgages and also when it sought a personal deficiency judgment in the foreclosure action. The Bagbys conclude that because the Bank is barred from seeking a deficiency from them it is therefore barred from foreclosing on the real estate mortgages and from pursuing a personal deficiency judgment in the foreclosure action. We disagree.

FORECLOSURE OF THE MORTGAGES

The first issue before us is whether the Bank’s foreclosure on the real estate mortgages was an attempt to obtain a deficiency judgment against the Bagbys. We hold that it was not.

In their respected treatise, White and Summers define a deficiency as:

“A deficiency, as the name implies, is the amount by which the sum obtained from resale of the collateral fails to satisfy the debt outstanding at the time of default.” (J. White & R. Summers, Uniform Commercial Code 1091 n.29 (2d ed. 1980).)

Until all of the collateral — including personalty and realty — has been disposed of, a deficiency does not exist. After all of the collateral has been sold, the amount of the sales proceeds may be deducted from the debtor’s outstanding obligation and the result is the amount of the deficiency. But until that point, no deficiency exists.

In the present case, the Bank took, as collateral for its loans to the Bagbys, both a security interest in the dealership’s assets and the mortgages on the real estate. The Bank repossessed and sold part of the collateral — the assets. Then the Bank began foreclosure proceedings on the remainder of the collateral — the real estate mortgages.

The Bank’s foreclosure on the mortgages was not an attempt to obtain a deficiency. It was simply the act of a creditor exercising his remedies against collateral for a note in default. Until the real estate has been sold and the proceeds applied to the outstanding obligation, a deficiency does not exist. Ergo, any defense to the foreclosure of the mortgage raised by the debtor alleging that a deficiency is barred is invalid.

THE DEFICIENCY JUDGMENT

In its complaint to foreclose on the mortgages, the Bank also sought a personal deficiency judgment against the Bagbys. On appeal, the Bagbys argue that because the Bank failed to provide proper notice and to conduct the sale in a commercially reasonable manner, the Bank is barred from seeking the personal deficiency judgment.

Although we believe that the Bagbys’ arguments concerning the notice and the reasonableness of the sale have merit, the record before us is totally devoid of any specific figures detailing the exact nature of any deficiency. In other words, we cannot tell from the record on appeal whether a deficiency does exist and if it does, the amount and source of that deficiency. Ergo, until we can determine the exact nature of the deficiency, we will not address the issue of whether the Bagbys may assert their article 9 affirmative defenses as a bar to the Bank’s attempt to seek a personal deficiency against them in the real estate foreclosure action.

For the above reasons, we remand this cause back to the circuit court with directions to that court to determine the exact amount and source of the deficiency if one does exist. By source of the deficiency, we mean whether the deficiency arose from the sale of the personalty or from the sale of the realty or from the sale of all of the collateral.

Remanded with directions to the circuit court.

TRAPP and MILLER, JJ., concur.


text:
    MARQUETTE NATIONAL BANK, Trustee, Plaintiff-Appellant, v. WALGREEN COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 83—2534
    Opinion filed July 25, 1984.
    McCarthy, Duffy, Neidhart & Snakard, of Chicago (Stephen A. Snakard, Richard J. Witry, and Anne M. Scheurich, of counsel), for appellant.
    Allan M. Resnick, of Deerfield, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Marquette National Bank, as land trustee, brought this action seeking a declaration of its rights to rental income under a lease between its predecessor in title and defendant Walgreen Company. The trial court granted defendant’s motion for summary judgment and denied a similar motion by plaintiff. Plaintiff appeals.

In 1949, plaintiff’s predecessor in title and defendant entered into an agreement to lease the premises at 6300 South Western Avenue in Chicago. The lease was extended and modified in 1965.

Under the terms of the lease, the rent is based on a fixed monthly sum and specified percentages of cash receipts of sales. Paragraph 2 of the amended lease provides in pertinent part:

“2. For and during the further extended period provided herein, Tenant shall pay rent as follows:
(a) A fixed minimum rent in the amount of $1,250.00 per month, payable on the first day of each and every month in advance;
(b) If a sum equal to -
3 i/4% of the cash receipts of sales, as defined in said lease (and also excluding receipts from sale of cigarettes), up to and including $700,000.00,
plus 3% of such cash receipts of sales in excess of $700,000.00 up to and including $1,000,000.00,
plus 2% of such cash receipts of sales in excess of $1,000,000.00,
made by Tenant in the operation of Tenant’s store on said leased premises in the twelve months ending February 28, 1967 and in each twelve months period thereafter, shall exceed the total fixed rents under subparagraph (a) above for each such period, then and in such event and on or before each March 25 next succeeding, Tenant shall pay to Landlord the amount of such excess as additional rent.” (Emphasis added.)

The term “cash receipts of sales” was defined as “the total amount of all receipts from sales of drugs, food, drinks, goods, wares and merchandise of every sort whatsoever made by Tenant in the operation of Tenant’s drug store on said leased premises ***.” (Emphasis added.) Under the lease, defendant was required to provide to the landlord an annual statement detailing its monthly cash receipts of sales. The lease also allows defendant to use the premises for “any lawful purpose.” Paragraph 10 allows defendant to assign the lease and sublet the leased premises, although defendant would remain liable for the payment of rent and the performance of the obligations under the lease.

Defendant operated a drug store on the leased premises until October 1981. After closing that store, it opened another drug store at 6200 South Western Avenue, one block north of its first location. In the five years prior to vacating the leased premises, defendant had made rent payments ranging from $32,000 to over $43,000 per year. Over 50% of the total rent paid by defendant was based on cash receipts of sales. Defendant continued paying the minimum monthly rent of $1,250 while the premises were vacant.

In July 1982, defendant sublet the subject premises to Volume Shoe Corporation for the operation of a retail shoe store. Volume pays $2,000 per month rent to defendant. Plaintiff demanded, in addition to the minimum rent, percentage rent based on defendant’s cash receipts of sales at its new location. Defendant paid only the minimum rent, maintaining that Volume Shoe’s sales were not sufficient to trigger the percentage rent on cash receipts of sales, and that defendant’s sales figures could not be used since it had sublet the premises.

Plaintiff filed this action alleging a breach of the terms of the lease. It sought a judgment for $60,000, the minimum monthly rent due until the end of the leasing period, and a declaration that it was entitled to percentage rents based on defendant’s past sales on the leased premises or its current sales at the new location. Relying on the decision in Chicago Title & Trust Co. v. Southland Corp. (1982), 111 Ill. App. 3d 67, 443 N.E.2d 294, the trial court found that plaintiff had no claim for percentage rent based on defendant’s sales after defendant sublet the premises. On appeal, plaintiff contends that the trial court erred in granting summary judgment because the terms of the lease clearly require that the percentage rents are to be based only on defendant’s sales.

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Construction of the terms of a contract presents an issue of law for the court. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 427 N.E.2d 1039.) Here, the parties are in agreement that there is no genuine issue as to any material fact. At issue is whether plaintiff is entitled to percentage rents from defendant, based on defendant’s cash receipts of sales in the past on the leased premises or current sales at its new location, when defendant has exercised its right under the lease to sublet the premises.

In construing a lease, the instrument is considered in its entirety. (One Hundred South Wacker Drive, Inc. v. Szabo Food Service, Inc. (1975), 60 Ill. 2d 312, 326 N.E.2d 400.) The primary objective is to determine and give effect to the intentions of the parties. (Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 424 N.E.2d 56.) Where the terms are clear and unambiguous, they will be given their natural and ordinary meaning. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 422 N.E.2d 879.) The contract must be enforced as written, and a reviewing court will not rewrite the contract under the guise of construction. Stull v. Hicks (1978), 59 Ill. App. 3d 665, 375 N.E.2d 981.

Plaintiff initially contends that under the lease, rent, by clear definition, includes defendant’s sales of drugs and other merchandise in defendant’s drug store. However, plaintiff’s reliance on the definition of “cash receipts of sales” and the rent provision ignores the express language contained in those paragraphs. Both provisions describe sales occurring “on said leased premises.” There is no dispute that defendant no longer has sales “on said leased premises.” Consequently, plaintiff’s first argument fails.

Plaintiff next maintains that the other provisions of the lease would be meaningless unless the percentage rent was based on defendant’s sales alone. Specifically, plaintiff points to provisions that defendant’s officers must provide a sworn statement detailing its “cash receipts of sales,” that plaintiff is allowed access to defendant’s records to verify the sales figures, and that the minimum monthly rent will be credited against the percentage rent computed with defendant’s cash receipts of sales. Again plaintiff has disregarded the “on said leased premises” language in the lease. These provisions have no meaning, not because defendant has sublet, but because defendant no longer has sales on the leased premies. Had defendant merely gone out of business at that location, which it in fact did from October 1981 until July 1982, plaintiff would have no claim to percentage rents. See Chicago Title Trust Co. v. Southland Corp. (1982), 111 Ill. App. 3d 67, 443 N.E.2d 294.

Plaintiff also contends that the lease provision which allows defendant to sublet, while remaining “liable for the payment of rent and for the performance of all other covenants and obligations,” requires defendant to pay percentage rents on its own sales. We do not agree. That defendant will remain liable for rent under the lease is nothing more than a guarantee by defendant that it will be responsible should its subtenant or assignee breach the lease provisions. This language cannot be interpreted to impose a duty on defendant to pay rent based on sales occurring at a location other than the leased premises.

Plaintiff finally urges this court to look at the parties’ intent as evidenced by their past dealings. With each amendment to the original lease, percentage rents were included and increased. The percentage rent was a substantial portion of the total rents paid. Furthermore, plaintiff argues that the original parties to the lease did not contemplate a unilateral substitution by defendant of a shoe store and its sales in place of defendant’s drug store and sales. Plaintiff requests this court to invoke its equitable powers to prevent defendant from avoiding its obligation to pay percentage rents by moving its drug store one block away.

We recognize that plaintiff’s rental has been substantially reduced. However, this fact alone is not a sufficient reason to impose an obligation on defendant which is not contained in the lease. Defendant has not committed any act which was prohibited in the lease. The lease does not prevent defendant from subletting. The lease does not prevent defendant from discontinuing its business. The lease does not prevent defendant from opening a new store only one block away from its original location. Nor does the lease guarantee that plaintiff will receive percentage rents. Apart from the clause allowing defendant to sublet the premises, the only other provision which indicates that the original parties contemplated what would happen if defendant sublet the premises is paragraph 21 which binds the parties’ successors and assigns to the terms of the lease.

Plaintiff’s argument that it should be entitled to rent based on defendant’s sales presupposes either a guarantee of the percentage rent or an implied covenant to continue operating. The language of the lease negates a guarantee since percentage rents are paid only if sales on the premises reach a specified level. And the holding in Chicago Title & Trust Co. v. Southland Corp. negates the implied covenant. As the Southland court held, provisions allowing the tenant to assign are inconsistent with an implied covenant to continue business. The trial court properly interpreted the provisions of the lease and applied the South-land holding to the facts of this case.

For the foregoing reasons, the judgment of the circuit court of Cook County granting defendant’s motion for summary judgment is affirmed.

Judgment affirmed.

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


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE CITY OF AURORA, Plaintiff, v. JAMES GREEN et al., Defendants and Third-Party Plaintiffs-Appellants (Jerry R. Murphy et al., Third-Party Defendants-Appellees).
    Second District
    No. 2—83—0646
    Opinion filed August 8, 1984.

      Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora, for appellants.
    Goldsmith, Thelin, Schiller & Dickson and Mark Heimsoth, both of Aurora, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The third-party complaint filed by James Green and Ruthie Green against the third-party defendants, Jerry R. Murphy, Barbara S. Murphy, Jack L. Hake, d/b/a Hake Realty and Joyce Moore, was dismissed, and the third-party plaintiffs appeal. The Murphys have not appeared or filed a brief.

The third-party complaint alleged: At some time prior to 1972 the Murphys purchased the property in question (774 Liberty Street, Aurora, Illinois) from William P. Nickels and Marguerite Nickels. At that time the property was being used for a commercial use on the first floor and two residential units on the second floor. The commercial use was a legal nonconforming use in an R-4 two-family residential zoning classification. The Murphys thereafter, in violation of the zoning ordinance, and without approval of the city of Aurora, converted the premises to five residential units and subsequently listed the property with Hake, who advertised the property as a five-residential-unit building. The Murphys, Hake and his selling agent, Moore, represented to the Greens that the property was “properly zoned and capable of being used under the zoning ordinance for five residential units.” The Greens relied on these advertisements and representations that the property could legally be used for five residential units and consequently purchased the property from the Murphys for $32,300. The Greens used the property for five residential units until 1981, when the city of Aurora filed a complaint against the Greens for the zoning violation. The acts, doings and representations of the third-party defendants resulted in substantial damage to the Greens and, because they were wilful and intentional, the Greens should be awarded exemplary or punitive damages. The third-party defendants acted in violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1979, ch. 1211/2, pars. 261 through 272). The complaint sought judgment for actual damages, punitive damages, legal fees, and expenses.

Each of the third-party defendants filed, together with supporting affidavits, a motion to dismiss the third-party complaint or, in the alternative, for judgment on the pleadings. In their motions, defendants maintained: (1) that the Greens could not rely on any alleged misrepresentations concerning zoning classifications since that is a matter of public record; (2) that the cause of action was brought in violation of the applicable statute of limitations; and (3) that the Consumer Fraud and Deceptive Business Practices Act is not applicable.

In their affidavits supporting their motions to dismiss, the third-party defendants state that at all times a map showing the current zoning classifications of all land in the city of Aurora was located in the city hall and open to inspection by the public, as was the Aurora zoning ordinance; that the zoning administrator would give information to the public upon request; and that James Green has been and is an employee of the city of Aurora.

In their affidavit in opposition to the motions to dismiss, the Greens state that under the provisions of a zoning ordinance adopted in 1957 the property became a legal nonconforming use; in 1971 the Murphys applied to the city for a building permit to re-side the property, which permit was granted; the city alleges that under the guise of the re-siding building permit the Murphys reconstructed a portion of the interior of the building to convert the commercial use to two or three apartments; with the Murphys’ consent Hake advertised the property for sale in an Aurora newspaper as having a barber shop and five residential apartments; the Greens responded to the advertisement and were shown through the property by Moore, a salesperson for Hake; at no time did the Murphys, Hake or Moore advise the Greens that the property was not zoned for the existing use or that the property had been illegally converted; and that James Green is employed in the water and sewer department but has no contact with the city hall or the city zoning department. The affidavit also states that the zoning map designates the property as an R-4 two-family dwelling classification and that nonconforming uses are not shown on the city zoning map or in the city records available in 1971-1972 at the time they purchased.

I

Preliminarily, we note that neither party has directly confronted the question whether the cause of action is based on a theory of common law fraud or upon the violation of the Act. In questioning at oral argument, the third-party plaintiffs, in response to the court’s initiating the inquiry, now argue that the complaint is duplicitous as pleading more than one cause of action in one count contrary to the provisions of the Code of Civil Procedure. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 603(b).

However, no motion to dismiss was filed in the trial court on that basis, and the argument is not made in the brief. From our analysis of the complaint we conclude that it states a single cause of action for violation of the Act, not for common law fraud. While certain of the allegations as to the wilful and intentional acts of the defendants appear to relate to common law fraud, the citing of the Act in the last paragraph of the allegations indicates reliance on that statute. The Act as of the time pertinent to this appeal does not require proof of intention but prohibits any deception or false promise without reference to intention, and the allegation as to intention may be considered surplusage. See Ill. Rev. Stat. 1981, ch. 121½, par. 262; People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 1058; Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 495.

We conclude, however, that the representations upon which the Greens seek to rely are representations of law and, if they were not entitled to rely upon the representations, this would be equally fatal to a cause of action for common law fraud as to an action under the Act.

The Act, in effect at the time of the alleged discovery by the Greens of the claimed misrepresentation in the filing of their third-party complaint, has been held to apply to Illinois real estate transactions, contrary to one of the grounds stated in the motion to dismiss. See Beard v. Gress (1980), 90 Ill. App. 3d 622, 626-27.

The focus of the reviewing court’s inquiry under the Act is the deceptive capacity of the statements at issue. (People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 1058.) The representations must be shown, however, to be material and must relate to a matter upon which the plaintiff could be expected to reply. See Shah v. Chicago Title & Trust Co. (1983), 119 Ill. App. 3d 658, 660, 662-63; see also Ill. Rev. Stat. 1983, ch. 121½, par. 262.

As a general rule, one is not entitled to rely upon a representation of law since both parties are presumed to be equally capable of knowing and interpreting the law. (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1135.) In Hamming, the alleged fraudulent misrepresentation made to the plaintiff-buyer was that all zoning “red tape” had been taken care of so as to permit construction of apartments on the property. The trial court found that the plaintiff could not reasonably rely on any representation made concerning either the existing zoning laws or their application to the property. (83 Ill. App. 3d 1130, 1133.) This court agreed, concluding that “[t]he existing zoning of the property and the procedures under which a zoning ordinance could be modified, *** are a matter of public record available to both parties.” (83 Ill. App. 3d 1130, 1135.) Accordingly, the plaintiff was charged with knowledge of the permitted uses of the property and could not recover from the defendant.

Applying the Hamming rationale, we conclude that the third-party complaint fails to state a cause of action.

The Greens attempt to distinguish Hamming on the basis that they, unlike the purchaser in Hamming, would not be able to ascertain the legal uses of their property by simply contacting the city officials. They submit that a simple telephone call to the city officials would have revealed only that the property was in an R-4 two-family dwelling district, and not whether the nonconforming use could be continued. We are not persuaded by this argument. The zoning map and the information available at the city hall would have revealed that the property was located in an R-4 district and would have shown that the five-unit apartment building was not a permitted use in an R-4 district. This information would have alerted the Greens to further inquiry and it is no defense to argue as they do that they would have no access to information that the conversion was made without the permission of the city. The relevant point is that the inquiry would have alerted them to the fact that the use was apparently not permitted and at least that they should inquire further.

Relative to our disposition we have also considered a recent decision of this court which had not been published at the time of oral argument and has not been cited by the parties, Kinsey v. Scott (1984), 124 Ill. App. 3d 329.

In Kinsey, the defendant seller had property rezoned for construction of a four-unit apartment building and subsequently built, without a permit, a fifth apartment in the basement, contrary to the municipal building code. The seller represented that he was selling a five-unit apartment building and, when specifically asked whether the building complied with the building codes, he answered that there was nothing wrong with the building. This court concluded from these facts that the representation was one of fact rather than of law and that, accordingly, Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, was distinguishable. We particularly noted that “there is nothing in the record to indicate that plaintiff herself might have discovered by the exercise of ordinary prudence that the basement apartment was not constructed according to the housing and building code.” (Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 338.) The opinion further noted that the defendant “did not make a misstatement representing a question of law but rather was vouching for the proper construction of all five units in his position as builder and owner.” 124 Ill. App. 3d 329, 339.

We conclude that Kinsey is distinguishable on its facts and that we properly have before us a question of law involving zoning which is a matter of public record. As such the third-party plaintiffs could not reasonably rely on the representations concerning either the existing zoning laws or their application to the property. See Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1135.

In the view we have taken, we do not reach the issue of whether the action was also barred by limitations under section 10a(e) of the Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 270a(e)).

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

LINDBERG and HOPE, JJ., concur.

      Third-party defendants Hake and Moore filed motions to strike certain portions of the Greens’ affidavit in opposition to the motion to dismiss. No ruling was made in the trial court on the motions to strike. In our review, we have considered only those facts to which the affiants could have testified. See International Society for Krishna Consciousness, Inc. v. City of Evanston (1977), 53 Ill. App. 3d 443, 454.

      A recent amendment to section 10b of the Act provides that the Act does not apply to “[t]he communication of any false, misleading or deceptive information provided by the seller of real estate located in Illinois, by a real estate salesman or broker *** unless the salesman or broker knows of the false, misleading or deceptive character of such information.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121½, par. 270b(4).) This provision became effective June 25, 1982, and, accordingly, does not apply to the instant case.


author: JUSTICE DOWNING

text:
    BEURAN D. INNIS, Plaintiff-Appellant, v. ELMHURST DODGE, INC., et al., Defendants-Appellees (Chrysler Corporation et al., Defendants; City and Suburban Hydraulic Service, Inc., Third-Party Defendant).
    First District (2nd Division)
    No. 83-1986
    Opinion filed July 31, 1984.
    Rehearing denied September 4, 1984.
    Thomas P. Valenti, of Karr & Valenti, Ltd., and Brian J. McManus, of Brian J. McManus & Associates, Ltd., both of Chicago, for appellant.
    Robert S. Soderstrom, James P. DeNardo, and Richard J. Rettberg, all of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

The issue in this case is whether air compressor equipment resting on an elevated concrete platform constitutes a “structure” within the meaning of the Illinois Structural Work Act (the Act). (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.). Plaintiff, Beuran D. Innis, contests the propriety of the trial court’s denial of his motion to reconsider the entry of summary judgment in favor of the defendants-appellees in this matter, Elmhurst Dodge, Inc. (Elmhurst), and Abko Properties, Inc. (Abko).

On June 2, 1980, personnel of Elmhurst’s service department noticed that certain air compressors located in the northwest corner of the building were malfunctioning. These compressors, which provided the power essential for proper operation of hydraulic car lifts and various pneumatic tools, rested on a concrete platform suspended approximately seven feet above ground level. Plaintiff’s services were thereupon requested in order to determine the nature of the problem and to do the necessary repair work.

Plaintiff and his son arrived at Elmhurst on the afternoon of June 3, 1980. Following a conversation with the service manager, Thomas O. Mink, plaintiff asked permission to use a ladder in order to climb up onto the platform. Mink obtained a ladder from the body shop and gave it to plaintiff who, without unfolding it, leaned it up against the concrete platform at an angle of approximately 15 to 20 degrees. This particular ladder extended from the ground up to a point approximately six to eight inches above the platform surface. There were no rubber feet on the legs of the ladder.

Some time after discovering an air leak in the compressor equipment, plaintiff decided to descend the ladder in order to install a shut-off valve into a water drain line. He stepped off of the platform and positioned both of his feet on a ladder rung. Just as plaintiff started to proceed down the rungs of the ladder, it slipped out from underneath him. Plaintiff fell straight to the floor; his left heel initially hit the ground, after which he fell backward and struck his head on the concrete surface.

On February 11, 1981, plaintiff filed a complaint at law seeking to recover damages for injuries sustained as a result of his fall in Elmhurst’s service department. Abko was eventually joined as a defendant in this matter due to its ownership of the realty upon which Elmhurst conducted business. In plaintiff’s second amended complaint, he alleged that Elmhurst violated the Act by causing the faulty erection or placement of the ladder used to facilitate repair work on Elmhurst’s air compressors. Defendants subsequently filed a motion for summary judgment which was predicated on the claim that the work being performed by plaintiff at the time of his injuries did not fall within the scope of the Act.

The trial court entered summary judgment in favor of Elmhurst and Abko on April 5, 1983. Specifically, the court held that the compressor equipment did not constitute a “structure” within the meaning of the Act. It is the propriety of this determination which plaintiff now contests on appeal.

I

The sole issue for resolution involves the scope of section 1 of the Act, which provides, in pertinent part, that:

“*** all *** ladders *** erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” Ill. Rev. Stat. 1979, ch. 48, par. 60.

The basic purpose of the Act is to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their employment. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, appeal denied (1982), 91 Ill. 2d 557.) Illinois courts have liberally construed the Act in order to effectuate this benevolent purpose. Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 751, 460 N.E.2d 28, citing McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573; Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 516, 373 N.E.2d 1354, appeal dismissed (1979), 71 Ill. 2d 607.

We are of the opinion that the word “structure,” as used in the Act, was intended by the legislature to refer to the factual situation involved herein. In support of a contrary interpretation, defendants cite and heavily rely on the case of Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318. There, the supreme court held that a large, self-propelled power shovel used in strip-mining coal was not a structure within the meaning of the Act. To classify the movable item of personalty otherwise, would, according to the Farley court, be tantamount to judicial recognition that “there is no point at which inclusion of other vehicles or items of personal property may logically be denied if the work being done on those objects requires some form of support or scaffold.” 60 Ill. 2d 432, 437.

To the contrary, regarding the case at bar, the inherent nature of air compressor machinery situated atop an elevated concrete platform in an automotive service department precludes any reasonable connotation of self-propulsion and movability. We note that the record before us is devoid of any specifications as to the number, size and weight of the compressors as well as the method, if any, by which they were mounted to the platform’s surface. Nonetheless, we assume that machines capable of delivering the power necessary for safe operation of eight hydraulic lifts (“that come up out of the ground to raise and lower trucks and cars”) must certainly be an integral part of Elmhurst’s service facility. It was even the concession of the service manager, Mink, that the compressor equipment was “vital” to proper functioning of the service department. Therefore, in view of the nature and extent of the compressor system, and its location on a concrete platform, a part of the building, it is our conclusion that at the time of plaintiff’s injuries, he was, in fact, repairing a structure within the meaning of the Act. Compare Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54.

We find direct support for our holding in the recent decision of Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743. In Simmons, the appellate court held that the plaintiff was engaged in structural work when he was injured during the reparation of sump pump equipment resting on the concrete floor of an ash pit. 121 Ill. App. 3d 743, 749, 751-52.

Under the facts of the present case, the Illinois Structural Work Act likewise applies as a matter of law. Consequently, the lower court erroneously entered summary judgment in defendants’ favor.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand this cause for trial in accordance with the views expressed herein.

Reversed and remanded.

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

       Although summary judgment was also entered in favor of another defendant joined in this action, Chrysler Corporation, plaintiff's notice of appeal and his opening and reply briefs only designate Elmhurst and Abko as the appellees before this court.


author: JUSTICE TRAPP

text:
    CHERYL CATRON, Petitioner-Appellant, v. THE BOARD OF EDUCATION OF KANSAS COMMUNITY UNIT SCHOOL DISTRICT NO. 3 OF EDGAR COUNTY, Respondent-Appellee.
    Fourth District
    No. 4—83—0540
    Opinion filed August 10, 1984.

      Drach & Deffenbaugh, P.C., of Springfield, for appellant.
    Miller, Tracy & Braun Law Offices, P.C., of Monticello, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Petitioner Cheryl Catron received notice in March 1982 that her position as band teacher with the Kansas Community Unit School District No. 3, Edgar County, was being reduced from full time to halftime due to the economic problems faced by the district and the small number of students involved in the junior high and high school band programs. As the district also employed a nontenured teacher, Diana ZuHone, teaching elementary music and high school speech, Catron made a demand for certain classes assigned to ZuHone for the 1982-83 school year which she, Catron, was qualified to teach. The board refused, and Catron petitioned for a writ of mandamus seeking reinstatement to full-time employment under section 24 — 12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12). After hearing, the trial court denied the petition. Petitioner appeals the judgment of the circuit court of Edgar County. We affirm.

The single issue on appeal is whether petitioner was entitled to a full-time teaching position under the language of section 24 — 12 of the School Code.

The facts were largely undisputed. Petitioner holds a teaching certificate entitling her to teach kindergarten through 12th grade in the area of music. She is a tenured teacher, employed by the district since the 1973-74 school term. During the 1979-80 school term, petitioner had two preparation periods and a band class in the morning, with a study hall and four band/chorus classes in the afternoon — five band/ chorus classes in total. During the 1980-81 school term, she had a preparation period, a study hall and a band class in the morning, with a study hall, a preparation period and three band or chorus classes in the afternoon — four band/chorus classes in total. During the 1981-82 school term, petitioner again had two preparation periods and a band class in the morning, with a study hall and four band or chorus classes in the afternoon — five band/chorus classes in total combination as in 1979-80. Petitioner’s half-time position for the 1982-83 school term included four band/chorus periods, as during the 1980-81 school term, all to be conducted during the last four periods of the afternoon session. Her pay and benefits were halved accordingly.

The district also had an elementary music position. In 1973, while the elementary music position was held by a Ms. Wieck, a high school speech class was added to its duties. ZuHone replaced Wieck teaching elementary music and high school speech in the 1980-81 school year. We note that ZuHone acquired tenure by operation of law at the beginning of the 1982-83 school year. Her schedule for 1982-83 was set to include a preparation period and two elementary music classes in the morning, with the high school speech class, three elementary music classes and a chorus class in the afternoon.

As petitioner is qualified to teach ZuHone’s music classes, she maintains that ZuHone’s morning music classes and preparation period should be added to petitioner’s junior and senior high school band classes and chorus to provide her a full-time position. Petitioner makes no claim that she is qualified to teach the high school speech component of ZuHone’s position. The trial court rejected petitioner’s argument, relying on our supreme court’s decision in Peters v. Board of Education (1983), 97 Ill. 2d 166, 454 N.E.2d 310. We agree.

The language of section 24 — 12 of the School Code reads in pertinent part:

“If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given *** and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is le- gaily qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. As between teachers who have entered upon contractual continued service, the teacher or teachers with the shorter length of continuing service with the district shall be dismissed first ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12.)

Under Peters, a dismissed tenured teacher cannot create a position that he is qualified to teach by taking and recombining courses from other teaching positions where the board of education has made no attempt to reassign courses to create new positions in order to deny him employment. The Peters court remarked that the language of Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 1008, 428 N.E.2d 1126, 1129, aptly stated the applicable law: “ ‘to hold that a tenured teacher may draw a single class or two from teaching positions he is otherwise unqualified to teach and then assert rights of tenure as to that *** position of his own creation would exceed the protections offered by the statute.’ ” 97 Ill. 2d 166, 172-73, 454 N.E.2d310, 313.

Any reduction in the extent of a teacher’s employment falls within the meaning of “removed or dismissed” in section 24 — 12. (Caviness v. Board of Education (1978), 59 Ill. App. 3d 28, 375 N.E.2d 157.) In Hayes v. Board of Education (1981), 103 Ill. App. 3d 498, 431 N.E.2d 690, this court held that the statutory term “position” refers to the totality of the job to which the tenured teacher lays claim, and not to a part of it. (See also Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 372 N.E.2d 990.) The statutory language permits comparison between the legal qualifications of the dismissed tenured teacher and the legal qualifications necessary to hold a particular position currently held by a nontenured, or less senior, teacher. (Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456.) If the tenured teacher is legally qualified for a position of a nontenured teacher, or of a tenured teacher with less seniority, she may be reassigned to the latter’s position. The policy reflected in the statute is a preference for qualified tenured teachers over qualified nontenured teachers. (Hankenson v. Board of Education (1957), 15 Ill. App. 2d 440, 146 N.E.2d 194.) This policy favoring experience is likewise evident in the statutes and case law of our sister States. See Hankenson v. Board of Education (1957), 15 Ill. App. 2d 440, 146 N.E.2d 194, and cases cited therein; see generally Annot., 100 A.L.R.2d 1141, 1184-88, sec. 18 (1965); 68 Am. Jur. 2d Schools sec. 169, at 503-04 (1973).

When courses must be added to or removed from existing positions incidental to overall scheduling, the statutory preference for qualified tenured teachers over qualified nontenured or less senior teachers must be observed so as to give effect to the underlying policy. (See, e.g., Hayes v. Board of Education (1981), 103 Ill. App. 3d 498, 431 N.E.2d 690.) The dismissed tenured teacher cannot, however, create a position that he is qualified to teach by taking and recombining courses from other teaching positions. (Peters v. Board of Education (1983), 97 Ill. 2d 166, 454 N.E.2d 310; Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126.) Positions need not be reassigned or realigned to maximize the full employ of tenured teachers. (Herbach v. Board of Education (1981), 94 Ill. App. 3d 889, 419 N.E.2d 456.) Incidental reassignment of single courses to established teaching positions to maximize the use of staff and accommodate changes in enrollment, curriculum, and economy may be permissible — although as a result a tenured teacher is dismissed or prohibited from returning from leave — as long as the tenured teacher is (1) not qualified to teach the courses comprising the “position” of less senior teachers, and (2) teaching assignments are not aligned in bad faith to avoid the existence of a “position” which could be filled by a tenured teacher for whom dismissal was sought. (See Higgins v. Board of Education (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126; Hayes v. Board of Education (1981), 103 Ill. App. 3d 498, 431 N.E.2d 690; see also Weider v. Board of Education (1934), 112 N.J.L. 289, 170 A. 631; Bates v. Board of Education (1949), 133 W. Va. 225, 55 S.E.2d 777. Cf Von Krog v. Board of Education (Iowa App. 1980), 298 N.W.2d 339 (termination of tenured physical education teacher permissible under staff reduction provision of collective bargaining agreement since attrition of second grade and social studies teachers could not accommodate).

Here, ZuHone’s position preexisted the decision to reduce the position of band teacher to half-time. Petitioner did not claim to be qualified to teach the speech class component of ZuHone’s position. Inasmuch as petitioner did not lay claim to all that was ZuHone’s position, we conclude that the trial court properly denied the relief requested in reliance on Peters.

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE KASSERMAN

text:
    GENERAL TELEPHONE COMPANY OF ILLINOIS, Plaintiff-Appellant, v. NEW BERLIN TRANSIT, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0488
    Opinion filed August 7, 1984.
    Charles R. Jelliffe, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellant.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellee G & L Corporation.
    William J. Novick, of Fowler & Novick, of Marion, for appellee N. G. Gilbert Corporation.
    John E. Jacobsen and Carl L. Favreau, both of Campbell, Furnall, Moore & Jacobsen, of Mt. Vernon, for appellees New Berlin Transit, Inc., Equipment Trucking Co., and Bobby R. Surratt.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, General Telephone Company of Illinois, appeals the trial court’s dismissal of its indemnity action against defendants, N. G. Gilbert Corporation, New Berlin Transit, Inc., G & L Corporation, and others. All the parties specifically mentioned above have filed briefs in the present cause, and the issue presented is whether the plaintiff’s amended complaint fails to state a cause of action.

On June 17, 1974, a verdict was returned in favor of George Felty and jointly against plaintiff and all defendants in the present action except N. G. Gilbert Corporation. Felty was awarded $950,000 damages for personal injuries. N. G. Gilbert Corporation was not a party to the personal injury action brought by Mr. Felty. The amended complaint upon which the verdict was returned alleged that the instant plaintiff, General Telephone Company, was guilty of “one or more or all of the following negligent acts or omissions to act ***:

(g) Allowed the telephone wire to extend across said public highway at a height of less than eighteen feet above the roadway surface, in violation of the minimum required heights as set forth in Rule 232 of the Rules for Construction of Electric Power and Communication Lines, being General Order 160-Re-vised of the Illinois Commerce Commission, and Rule 232 of the Safety Rules for the Installation and Maintenance of Electric Supply and Communication Lines of the U.S. Department of Commerce, National Bureau of Standards.
(h) Allowed the telephone wire to extend across and above the public highway at a height of approximately seventeen feet above the roadway surface when they knew or should have known that lowboy trucks carrying circuit breakers approximately eighteen or nineteen feet high, including the truck on which plaintiff was riding, were likely to move thereunder on said roadway.
(i) Failed to raise the said telephone wire to a safe height above the surface of the roadway.
(j) Failed to inspect the height of the wire over the roadway to determine whether .or not said wire was less than 18 feet above the roadway.”

General Telephone Company of Illinois, plaintiff in the case at bar, perfected an appeal from the judgment entered in Mr. Felty’s favor, and we reversed that judgment in Felty v. General Telephone Co. (1977), 47 Ill. App. 3d 427, 362 N.E.2d 43. The decision of this court, however, was reversed by the supreme court in Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203. Mr. Felty’s action again appeared on review in Felty v. General Telephone Co. (1979), 73 Ill. App. 3d 572, 392 N.E.2d 311. On that occasion we considered the propriety of a loan receipt agreement entered into between Mr. Felty and defendants, New Berlin Transit, Inc., G & L Corporation, Bobby R. Surrat and Equipment Trucking Company, Inc., whereby Mr. Felty was to receive $750,000 in return for the vacation of Mr. Felty’s judgment against those defendants. Although the loan receipt agreement was determined to be void by this court in that appeal, the funds advanced to Mr. Felty were found to be a partial satisfaction of his judgment, resulting in a reduction of the judgment to $200,000. 73 Ill. App. 3d 572, 572-73, 392 N.E.2d 311, 312-13.

The appeal now before us arises out of a suit brought by plaintiff against its codefendants in Felty’s original action and also against N. G. Gilbert Corporation on the concept of implied indemnity, based on the doctrine of active-passive negligence. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied, sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849; Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 257, 417 N.E.2d 154, 165.) Defendants’ motions to dismiss plaintiff’s suit on the ground that the complaint failed to establish a right to indemnity were granted by the trial court. Plaintiff has perfected this appeal.

In its amended complaint plaintiff alleged: (1) that plaintiff owned and maintained a certain steel wire messenger cable which ran across and above Kathryn Street in Metropolis, Illinois; (2) that George Felty was employed as an electrical lineman for the N.G. Gilbert Corporation for the purpose of raising plaintiff’s wire messenger cable; (3) that defendants, New Berlin Transit, Inc., Equipment Trucking Company, Inc., Bobby R. Surrat, G & L Corporation, and Gerald Boblitt, were engaged in transporting oil circuit breakers through the city of Metropolis; (4) that Mr. Felty was seriously injured when an oil circuit breaker which was being transported by truck and upon which Mr. Felty was riding collided with plaintiff’s wire messenger cable; and (5) that it was defendants who supervised and directed the work involved when Mr. Felty was injured and that “the negligence adjudicated by the jury in said cause of this plaintiff was merely secondary and passive.”

Plaintiff urges that no issue was ever submitted to a jury in order for it to determine the qualitative difference in the conduct of the parties and that it was entitled to an evidentiary hearing on such issue. Plaintiff contends that it was therefore error for the trial court to dismiss its complaint on the pleadings. It is plaintiff’s position that only after reviewing all the testimony and evidence elicited at trial could the trial court make a proper determination regarding plaintiff’s right to indemnification. Defendants argue that plaintiff was not entitled to indemnification because plaintiff was actively, and not passively, negligent and this fact was discernible from the pleadings. We affirm.

As stated by our supreme court, recovery on the concept of implied indemnity based on the active-passive negligence doctrine had been “utilized [in Illinois] to mitigate the harsh effects that could result from an inflexible application of [the] judicially created bar to contribution [between tortfeasors].” (Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 230, 234 N.E.2d 790, 792.) Parenthetically, the suit upon which the instant appeal is based was instituted prior to the decision in Skinner, in which the right of contribution between tortfeasors was first recognized in Illinois; therefore, the appeal in the case at bar is governed by the law in effect prior to Skinner.

At the time when the instant suit was filed, indemnification predicated upon the active-passive theory was available only when the party seeking indemnification was passively negligent and the party against whom indemnification is sought was actively negligent. (Preston v. City of Chicago (1975), 34 Ill. App. 3d 322, 326, 340 N.E.2d 251, 254; see Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 969, 405 N.E.2d 805, 806-07.) While there can be no indemnification where the party seeking indemnity is guilty of a breach of an affirmative duty to the plaintiff in the underlying action (Long v. Bucyrus-Erie Co. (1983), 112 Ill. App. 3d 578, 584, 445 N.E.2d 934, 938; Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 901, 388 N.E.2d 1008, 1012), a third-party complaint should not be dismissed unless it appears from the pleadings that the third-party plaintiff would have no right of recovery against the third-party defendant. (Donaldson v. Holy Family Hospital (1981), 94 Ill. App. 3d 285, 288, 418 N.E.2d 873, 875; Peterson v. Tam O’Shanter Racquet Club, Inc. (1980), 90 Ill. App. 3d 1029, 1031, 414 N.E.2d 181, 183.) Therefore, it must first be determined whether plaintiff in the case at bar was guilty of “active” negligence.

Whether plaintiff was guilty of such a degree of negligence is dependent upon the particular facts of the case at bar (see Long v. Bucyrus-Erie Co. (1983), 112 Ill. App. 3d 578, 445 N.E.2d 934), and it is noteworthy that inaction or passivity in the ordinary sense may constitute active negligence which would preclude indemnification. (Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 405 N.E.2d 805; Moody v. Chicago Transit Authority (1974), 17 Ill. App. 3d 113, 117, 307 N.E.2d 789, 792-93.) We conclude that such a situation exists in the case under consideration. The complaint in the underlying action charged that plaintiff was guilty of a breach of an affirmative duty, imposed by State and Federal regulations, to maintain its wire at a height of at least 18 feet above the roadway. Before returning its verdict against this plaintiff, the jury of necessity must have determined these allegations to be true, and plaintiff is now bound by this determination. (See Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 1069, 443 N.E.2d 670, 673; Preston v. National Broadcasting Co. (1971), 133 Ill. App. 2d 200, 203, 272 N.E.2d 700, 702.) We conclude that plaintiff’s failure to inspect and maintain its wire messenger cable at a height of at least 18 feet above the roadway constituted active negligence as a matter of law.

The question presented by the instant appeal previously has been considered by courts of other jurisdictions. In Hysell v. Iowa Public Service Co. (8th Cir. 1976), 534 F.2d 775, a utility company negligently failed to maintain its wires at the minimum height required by law. A crane came into contact with the low wires and the plaintiff was injured. The court concluded that the utility company’s failure to maintain the wires at a proper height constituted active negligence. (534 F.2d 775, 784.) In Pierce v. Ozark Border Electric Cooperative (Mo. 1964), 378 S.W.2d 504, the court upheld the dismissal of an indemnity complaint and found a utility company’s failure to maintain an overhead wire was tantamount to active negligence. In Mississippi Power Co. v. Thomas (Miss. 1932), 140 So. 227, 228, the court expressly stated that “the duty required of the company in respect to the maintenance of its electric wires is an active duty — not merely a passive obligation.” We find the above authority persuasive.

The cases relied on by plaintiff, on the other hand, are distinguishable. McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868, and Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 398 N.E.2d 382, were both decided under the Structural Work Act and have no direct application to the case at bar.

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

Affirmed.

WELCH, P.J., and JONES, J., concur.


author: JUSTICE JIGANTI

text:
    JANET H. SONDIN, Plaintiff-Appellant, v. RALPH M. BERNSTEIN, Adm’r of the Estate of Robert Nickle, et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—1405
    Opinion filed June 28, 1984.
    Rehearing denied September 5, 1984.

      Robert T. Fasic, of Chicago, for appellant.
    Ralph M. Bernstein, pro se, Melvin J. Cole, and Barry A. Feinberg, guardian ad litem, all of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

Robert Nickle, the decedent, and Janet H. Sondin were joint tenants in a parcel of property located at 1740 North Wells Street in Chicago. When Nickle died, Sondin contended that she was the sole surviving joint tenant of the property. Ralph M. Bernstein, as administrator of the estate of Robert Nickle (the Estate), contended that the joint tenancy had been severed and that the Estate held a one-half interest in the property as tenant in common. The trial court on a motion for judgment on the pleadings found that the joint tenancy had indeed been severed. Originally this action had been brought by Sondin to quiet title, but by agreement of the parties the property was sold and the proceeds placed in escrow pending the resolution of this dispute between the parties. The trial court’s judgment had the effect of granting a judgment in favor of the Estate for one-half of the proceeds. Sondin appeals.

Sondin and Nickle were married in 1947. They acquired the Wells Street property in 1953. The property was a three-story masonry building that was rehabilitated by Sondin and Nickle into two separate sections. The first floor and basement were utilized by Nickle as an architectural studio while the second and third floors were joined and used as the family residence. During the course of their marriage the couple also acquired as joint tenants two additional parcels of property. The couple continued to occupy the Wells Street property as their marital home until they became estranged and Sondin filed for divorce in February 1966. Thereafter, Sondin and her children occupied the second and third floors while Nickle continued to occupy the basement and first floors for business purposes. On November 27, 1967, the parties entered into a property settlement agreement which was subsequently incorporated and merged into their 1968 divorce judgment.

The provisions of the property settlement agreement provide the principal focus for the issue of whether the joint tenancy was severed. The property settlement agreement provided that Nickle would have the continued right to use the basement and first floor for business purposes only and that as alimony he would pay the mortgage and utilities. It also provided that the proceeds from any rental of the property were to be applied to the expenses of the building and that if Sondin moved from the property her alimony was to be waived. Most pertinent to this appeal is the clause in the agreement that provided:

“In the event of the sale of 1740 North Wells building the parties shall share equally in any profits of said sale, even though the wife may have remarried or moved.”

Further, Sondin was to have conveyed to Nickle all of her interests in two additional parcels of real estate that the couple had acquired as joint tenants during the marriage.

The trial court held that in considering the divorce documents in their entirety, the parties demonstrated the intent to terminate the joint tenancy and that the property settlement agreement and court order acted, at the least, to sever the unity of possession. On appeal, Sondin contends that the property settlement agreement did not demonstrate any intent by the parties to sever the joint tenancy and that the trial court erred in finding a severance as a result of the termination of the unity of possession. In response, the Estate contends that any property settlement agreement contained in a divorce judgment automatically operates to sever joint tenancy as a matter of law. Further, the Estate contends that absent any adoption of this per se severance rule, the instant property settlement agreement contained provisions clearly inconsistent with the continuation of joint tenancy and demonstrated an intent to sever the joint tenancy. Alternatively, the Estate contends that the property settlement agreement was a contract and that under the terms of the contract, if the real estate was sold, then half the proceeds were to go to the Estate.

Relevant to the first two issues is the general rule that an agreement between joint tenants to hold as tenants in common will sever an existing joint tenancy and such agreement may be inferred from the manner in which the parties deal with the property. Thus the joint tenancy may be terminated by mutual agreement or, as is pertinent to the instant case, by any conduct or course of dealing sufficient to indicate that all parties have mutually treated their interest as belonging to them in common. (Duncan v. Suhy (1941), 378 Ill. 104, 37 N.E.2d 826.) For an agreement to terminate a joint tenancy the parties must enter into either an agreement which expressly severs the joint tenancy or a valid contract containing provisions clearly inconsistent with the continuation of the joint tenancy. First United Presbyterian Church v. Christenson (1975), 33 Ill. App. 3d 928, 339 N.E.2d 15, rev’d on other grounds (1976), 64 Ill. 2d 491, 356 N.E.2d 532.

Further, it is generally held that in a joint tenancy there are four unities: unity of interest; unity of title; unity of time; and unity of possession; or, in other words, joint tenants have one and the same interest, occurring by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. (Duncan v. Suhy (1941), 378 Ill. 104, 109, 37 N.E.2d 826.) A joint tenancy will be severed when one or more of the four unities is destroyed. Jackson v. O’Connell (1961), 23 Ill. 2d 52, 177 N.E.2d 194.

The first issue on appeal is whether any property settlement agreement contained in a divorce decree automatically operates to sever a joint tenancy as a matter of law. In support of this position, the Estate cites to what it calls “a developing modern trend” which maintains that two persons suffering from domestic difficulties would not intentionally enter into an agreement that would leave a bulk of his or her estate to the other. (See Wardlow v. Pozzi (1959), 170 Cal. App. 2d 208, 338 P.2d 564; Mann v. Bradley (1975), 188 Colo. 392, 535 P.2d 213; Rich v. Silver (1964), 226 Cal. App. 2d 60, 37 Cal. Rptr. 749.) However, the Illinois Appellate Court has addressed this very issue and has held: “we think the better view is the rule which prevails in other jurisdictions: a divorce decree alone does not effect a severance of joint tenancy real estate.” In re Estate of Woodshank (1975), 27 Ill. App. 3d 444, 447, 325 N.E.2d 686; see also In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 395 N.E.2d 1209; Nichols v. Nichols (1969), 43 Wis. 2d 346, 168 N.W.2d 876; Poulson v. Poulson (1950), 145 Me. 15, 70 A.2d 868; Witzel v. Witzel (Wyo. 1963), 386 P.2d 103; Gwin v. Camp (1938), 25 Cal. App. 2d 10, 76 P.2d 160.

The rationale articulated by the Woodshank court was that divorce terminates those property rights and interests not actually vested, of divorced persons in the property of each other which are dependent upon the marriage relationship such as dower, curtesy, and rights of inheritance under the statute of descent, but that property rights of a husband and wife which exist independently of the marriage survive the divorce judgment. The right of survivorship of a joint tenant does not arise out of the marriage relationship. (Duncan v. Suhy (1941), 378 Ill. 104, 37 N.E.2d 826.) We believe that the rationale used in Woodshank is fully applicable and persuasive in the instant matter. Joint tenancy does not arise out of the marriage relationship and absent either an express intent to sever or actions inconsistent with the continuation of joint tenancy, a divorce judgment alone will not sever joint tenancy. Therefore, this argument in support of severance fails.

The next issue is whether this particular property settlement agreement contained provisions clearly inconsistent with the continuation of a joint tenancy and demonstrated an intent to sever. Sondin argues that no such intent is present in that the law and the facts in Duncan v. Suhy (1941), 378 Ill. 104, 37 N.E.2d 826, directly correspond to the instant matter and accordingly control its resolution. In Duncan, the issue before the court was the construction and application of the parties’ post-nuptial agreement that provided for the distribution of property due to irreconcilable mutual differences that arose between them. Of particular interest was the provision that referred to the marital home, which was owned by the parties in joint tenancy. Specifically in that provision, the parties agreed to retain their respective one-half interest in the marital home and, if the property should be sold, the net proceeds were to be divided equally between the parties. Subsequent to the agreement, but prior to any sale of the subject property, the wife died and her heirs brought an action for a partition of the real estate, alleging that the post-nuptial agreement severed the joint tenancy and that they owned a one-half interest as tenants in common. The matter was resolved by the Illinois Supreme Court, wherein they concluded that the agreement did not sever the joint tenancy and that the disputed provision did no more than state the shares of each party in the property and that those shares were to remain equal. The court went on to find that the provision stating that in case the property was sold then each should share equally in the proceeds merely accorded with the rights of each on the sale of property held in joint tenancy. Of particular importance to the Duncan court was the fact that the agreement contained no language to convey the property or any part thereof to either of the parties, nor to sell the same.

We find Duncan to be most persuasive. In the case at bar, the language of the provision regarding the sale of the marital home is very similar to the language of the provision in Duncan. Except for the reference to retaining their one-half interest, which the court in Duncan determined to state only the respective shares of each party, the language is virtually identical. Therefore, as interpreted by the Illinois Supreme Court in Duncan, such language merely accords with the rights of each party on the sale of property held in joint tenancy. The provision neither expressly severs joint tenancy nor contains any language inconsistent with the continuation of joint tenancy. Of equal importance to this court is the fact that the language of this provision only provides for a conditional future sale, which we believe is insufficient evidence of an intent to sever joint tenancy. There must be more of a definite obligation to sell or convey in order to sever a joint tenancy.

An additional issue regarding whether the property settlement agreement operated to sever the joint tenancy involves the trial court’s determination that an intent to sever could be found from the alleged severance of the unity of possession. The trial court concluded that the parties’ agreement to arrange for exclusive possession of a section of the property for each party severed the unity of possession. We disagree. It is well settled in Illinois that joint tenants may contract with each other concerning the use of the common property, such as for the exclusive use of the property by one of them. (Tindall v. Yeats (1946), 392 Ill. 502, 64 N.E.2d 903; see 48A C.J.S. Joint Tenancy sec. 27, (1981).) They may, by contract, provide for the exclusive possession of one for such time as may be agreed upon by them. (Curtis v. Swearingen (1826), 1 Ill. (Breese) 207.) In the instant case, the parties’ contracting for exclusive possession was not an indication of an intent to sever the joint tenancy, and it should not have been a factor in the trial court’s determination.

In the instant action, we have found that neither the property settlement nor the court order operated to sever the joint tenancy. However, based on a contract theory that was originally proposed by the Estate at the trial court but was not addressed by the court, we find that the Estate is entitled to one-half of the proceeds from the sale of the marital home.

Under this contract theory, the Estate contends that the property settlement agreement is an enforceable contract, the terms of which survive the death of Nickle. In response, Sondin argues that the contract was a personal one between herself and Nickle and that the terms therein were enforceable only during the parties’ lives. Thus, at Nickle’s death the contract did not pass any interests or rights to his heirs but rather the right of survivorship became operative and she held sole title to the property as a surviving joint tenant.

When an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into the divorce judgment, it becomes merged in the judgment and the rights of the parties thereafter rest upon the judgment. (Brandel v. Brandel (1966), 69 Ill. App. 2d 264, 216 N.E.2d 21.) In interpreting such an agreement, the courts apply normal rules for construction of contracts. (In re Estate of Kite (1974), 19 Ill. App. 3d 932, 312 N.E.2d 366.) Accordingly, the object in so doing is to give effect to the apparent intent of the court (Pope v. Pope (1972), 7 Ill. App. 3d 935, 289 N.E.2d 9) and the intention of the parties. (In re Estate of Kite (1974), 19 Ill. App. 3d 932, 312 N.E.2d 366.) When no ambiguity exists on the face of the judgment, the intent of the parties will be determined only from the language of the instrument itself. (Halper v. Halper (1978), 57 Ill. App. 3d 588, 373 N.E.2d 598.) Thus, the property settlement agreement defines the nature and extent of the rights and the liabilities of the parties with respect to the marital property, and the trial court is required to direct performance of those obligations under the judgment so as to fully execute its terms. (In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 395 N.E.2d 1209.) Furthermore, property issues survive the death of a party where the divorce judgment is entered prior to the party’s death. In re Marriage of Garlinski (1981), 99 Ill. App. 3d 107, 425 N.E.2d 22.

In Coleman, the divorcing parties set forth their understanding in a property settlement agreement that merged into their divorce judgment. The agreement provided that the parties were to exchange certain property for a fixed sum of money. Prior to completing performance of the terms of the agreement, the husband died. The court held that the intent of the parties was clear from the agreement and that its terms were to be fully executed. In Garlinski, the trial court entered an order of dissolution, but prior to determination of the property rights the husband died. The court held that the husband’s death did not abate the property issues and that the executor was to substitute as a party in a hearing on the property rights.

In the instant case, the divorce judgment incorporated the property settlement agreement and was entered by the trial court 12 years prior to Nickle’s death. Each party has been entitled to enforce the agreement at all times since the entry of the judgment. (See Cunningham v. Lawrence (1959), 16 Ill. 2d 201, 157 N.E.2d 50.) The language of the agreement unambiguously stated that “in the event of the sale *** the parties share equally in any profits of said sale ***.” This is an enforceable term of a valid contract, and based on Garlinski, the provisions regarding the property issues survive the death of Nickle. Further, Sondin has failed to cite any contrary authority to indicate why the property settlement agreement should not survive Nickle’s death. Accordingly, the Estate is entitled to one-half of the proceeds from the sale of 1740 North Wells that have been held in escrow.

Based on the foregoing, the judgment of the trial court is affirmed.

Affirmed and remanded.

JOHNSON and ROMITI, JJ., concur.