author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF DAVID G. WECHSELBERGER, Petitioner-Appellant, and MARY J. WECHSELBERGER, a/k/a Mary J. Simon, Respondent-Appellee.
    Second District
    No. 82—721
    Opinion filed June 24, 1983.

      Donald J. Weaver, of Elgin, for appellant.
    James M. Kiss and Associates, of Carpentersville, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, David G. Wechselberger, who we will refer to as the “father,” appeals from an order of the trial court which denied his custody-modification petition, in which he sought to transfer custody of the parties’ two minor children from the respondent, Mary Wechselberger, who we will refer to as the “mother,” to himself. On appeal, the father contends, in essence, that the trial court’s order denying the change of custody was contrary to the manifest weight of the evidence.

In June 1978, the father filed a petition for dissolution of the parties’ 1971 marriage. The trial court granted the petition and dissolved the marriage. The dissolution judgment incorporated a marriage settlement agreement which, among other things, awarded custody of the parties’ two minor children, David (age 6) and Kathy (age 4), to the mother. The judgment also granted the father reasonable visitation rights. Subsequently, on January 10, 1980, the court entered an agreed order which, among other matters, set forth the times that the father would have a right to visit with the children: every other weekend, every other major holiday and birthday, and a two-week vacation period.

In July 1982, the father filed a petition for modification of custody in which he attempted to secure custody of the children. In his petition, he alleged that the following changes in circumstances warranted the modification: (1) that each of the parties had remarried; (2) that he now lived in a single-family home with sufficient space for the children; (3) that the children had been living with him continuously since June 18, 1981, at the request of the mother; (4) that the minor children had lived with him in October and November of 1979 and again from June to September 1980; (5) that the children had been integrated into his current family; (6) that he was better able financially to provide for the children; and (7) that his working hours and those of his current spouse were such that one of them would always be present in the home with the children. In addition, he alleged that the transfer or change of custody would serve the best interests of the children. The mother responded to the modification petition and, inter alia, requested that the court enter an order returning the children to her.

The hearing held in this matter established the following pertinent facts. After the mother became seriously ill in October 1979, she entrusted the children to the care of the father for approximately one month. Subsequently, the parties decided that the children would live with their father from June 7 to August 17, 1980. The extended summer visitation was longer than the visitation period the father was accorded under the dissolution judgment as amended. The mother gave physical custody of the children to the father during the summer of 1980 for financial reasons and in order to afford the children a greater opportunity to visit their father. She also granted the extended visitation, in part, so that she could live with or develop a relationship with a male friend.

The children also stayed with their father during the summer of 1981. The mother explained that she became unemployed in January 1981 and she, therefore, felt it was better for the children to stay with the father during that summer. Thereafter, on August 1, 1981, the parties entered into a written agreement whereby they agreed that the father should take care of the children from August 1981 to August 1982. Under that agreement, the mother was granted “visitation rights” with the children every weekend, and the children were to be returned to her upon request after August 1982. According to the mother, the agreement was not meant to be permanent. In explaining why she entered into the above agreement, she related that she began working for an insurance company on August 3, 1981, and that her employment necessitated that she arise at 5:30 a.m. and drive 22 miles to work. In order not to interrupt the children’s schooling and rather than leaving them with a baby-sitter while she worked, she decided that it would be better if the children stayed with their father for a year until the insurance company completed construction of a new office building near her place of residence. At the time of the hearing held in this matter, she only had to drive seven miles to her new workplace.

The father remarried in June 1980, while the mother remarried in May 1982. The parties’ two minor children lived with the father and his current wife (Marsha) from June 1981 to August 1982. The father and his new wife have a one-year-old daughter, Sarah; both young David (now age 10) and Kathy (now age 8) enjoy a good relationship with Sarah. Given the respective working hours of the father and Marsha, either one or the other of them is able to be at home with the children. His home contains four bedrooms and is situated on a lake where the children can swim. During the period the parties’ children lived in the father’s home, he incurred substantial dental bills as a result of treatment which the parties’ two children required. In addition, he related that the children were fairly undisciplined when they were entrusted to his care, but their behavior has improved in his home. He also stated that his ex-wife often used profanity within earshot of their children and felt that she had a problem managing her finances.

During the 15-month continuous period he had physical custody of the parties’ children, the father actively participated in recreational and sporting events with them and took an interest in their progress in school. The children, who seemed happy living with the father and performed well in school, formed friendships with other children in the neighborhood while living with their father. In addition, the father’s current wife is very fond of his children and enjoys doing things with them as a family. She has formed a good, loving relationship and wants to have custody of them. The father admitted, however, that the mother had visited with the children pursuant to the terms of the written agreement and had also attended parent-teacher conferences and other functions with the children during the period in question.

The mother and her current husband have engaged in many activities with the parties’ two minor children during the 15-month period they were living with the father and his new family. The mother attended events with the children on additional occasions not provided for in the visitation clause of the agreement of August 1, 1981. The children seem to be content when they are with the mother and her husband, who loves David and Kathy as his own children. The children have maintained their friends in the apartment complex where they previously lived with the mother and, once returned to the mother’s custody, would enroll in the same school they attended before living with their father. The mother has made arrangements to have a babysitter in the home from 3 to 4:30 p.m. on work days during the short period the children will be home from school before she or her husband returns from work. She and her husband also have arranged to rent a three-bedroom apartment in the same complex so that each child would have a separate bedroom.

Diane Vincent, who has known the parties since 1975, remarked that when the children are with their father, they are outgoing, but when they are with their mother, they are very quiet. From her observations, since their father has had care of the children, they are happy and well-behaved, whereas prior to that time they were quiet. In her opinion, the parties’ children appeared more happy and more content living with their father.

Marilyn Cody, a child psychologist and counselor, testified that the parties’ children had been very happy and contented during the period they were living with their father; and that the children’s physical appearance had improved during that time; that Kathy was more open, relaxed and comfortable while living with the father and that he and his wife “had worked out a really good way of dealing with the children.”

Reverend Fred Eisenhut stated that the children frequently attended church and Sunday school -with the mother and her husband. He felt that they provided adequate care for the development and growth of the children.

After hearing the testimony, the trial court denied the father’s petition to modify custody and ordered that the children be returned to the mother. The court below concluded that there was insufficient evidence of a change in circumstances to justify a transfer of custody.

The sole issue presented is whether the trial court’s order denying the custody-modification petition was against the manifest weight of the evidence or an abuse of discretion under the provisions of section 610(b) of the Hlinois Marriage and Dissolution of Marriage Act, as recently amended (Ill. Rev. Stat. 1981, ch. 40, par. 610(b), effective July 1,1982).

The crux of the father’s appellate contention is that the evidence sufficiently demonstrated that the “change of circumstances” and the “best interests” requirements for a change of custody under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)) were met in this case and, thus, that the trial court erred in not granting his custody-modification petition and in not transferring custody of the two minor children from the mother to himself. In support of his assertion that the requisite change in circumstances had occurred, he argues that the evidence adduced below established that the children had been integrated into his current family with the consent of the mother (see Ill. Rev. Stat. 1981, ch. 40, par. 610(b)(2), effective until July 1,1982).

Because the present case involves a custody-modification petition which was filed after July 1, 1982, the trial court’s authority to transfer custody is governed by the dictates of section 610(b) of the Marriage Act, as recently amended (Ill. Rev. Stat. 1981, ch. 40, par. 610(b), effective July 1, 1982). Under the provisions of the recently-enacted section, the trial court shall not modify a prior custody judgment, after the expiration of the two-year period following the original judgment, unless it determines “by clear and convincing evidence,” based upon facts that arose after or were unknown at the time of the prior judgment, that a change has taken place in the circumstances of the child or the child’s custodian and that the modification is needed to serve the best interests of the child.

tinder the terms of the version of section 610(b) which was in effect until July 1, 1982, the trial court could not modify a prior custody judgment unless it found that a change in circumstances had occurred and that the modification was in the child’s best interests. However, the court was precluded from modifying or transferring custody unless one of three conditions existed: (1) the custodian agreed to the modification; (2) the child had been integrated into the petitioner’s family with the custodian’s consent; or (3) the child’s current environment endangered seriously his health and the advantages of changing custody outweighed the harm caused by a change of environment. (Ill. Rev. Stat. 1981, ch. 40, pars. 610(b)(1), (2), (3), effective until July 1, 1982; In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 618-19.) By its terms, former section 610(b) requires the employment of a two-step approach to the modification of prior custody judgments. Initially, the court must determine whether one of the statutory prerequisites delineated in subsections (b)(1) through (b)(3) exists. Second, once the conditions set forth in one of the three., subsections have been satisfied, then the court must determine whether the modification is necessary to serve the best interests of the child. In re Estate of Brown (1982), 103 Ill. App. 3d 470, 473; In re Marriage of Strader (1981), 101 Ill. App. 3d 779, 782; In re Marriage of Friedman (1981), 100 Ill. App. 3d 794, 803; In re Marriage of Gebis (1981), 100 Ill. App. 3d 710, 711-12 and cases cited therein.

A quick comparison of the two versions of section 610(b) reveals that the enactment which took effect after July 1, 1982, does not contain the three criteria found in subsections (b)(1) through (b)(3) of the earlier statute. (See In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 70.) Thus, under the new law the trial court is no longer restricted, in custody-modification matters, to reliance upon one of the three factors previously set forth expressly in the earlier enactment, although in our opinion these factors may give some guidance in determining whether a change in circumstances has occurred. In this sense, the recent amendment to section 610(b) broadened or liberalized the basis upon which the trial court could, in its discretion, order a modification of custody.

At the same time, however, the new version of section 610(b) requires the petitioner to establish by clear and convincing evidence that a change in circumstances has occurred and that the modification was in the best interests of the child. In this regard, the amended statute requires a more exacting level or burden of proof than did the prior enactment, under which the court, in determining whether one of the three criteria existed, employed the preponderance-of-the-evidence test normally used in civil matters (see In re Stephenson (1977), 67 Ill. 2d 544, 553). The law is well settled that clear and convincing évidence requires a high level of certainty. (67 Ill. 2d 544, 556.) Clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54; In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 13-14.

Section 610(b) reflects an underlying policy favoring the finality of child-custody judgments and making their modification more difficult. Its effect is to create a legislative presumption in favor of the present custodian, thereby promoting the stability and continuity of the child’s custodial and environmental relationship which is not to be overturned lightly. (In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21; Kraft v. Kraft (1982), 108 Ill. App. 3d 590, 596; In re Marriage of Hill (1982), 105 Ill. App. 3d 473, 479; In re Marriage of Padiak (1981), 101 Ill. App. 3d 306, 311-12; In re Marriage of Gebis (1981), 100 Ill. App. 3d 710, 712.) However, once the trial court has determined that the presumption has been overcome, the court of review will not disturb that determination on appeal unless the trial court’s decision was contrary to the manifest weight of the evidence or amounted to an abuse of discretion. In re Marriage of Friedman (1981), 100 Ill. App. 3d 794, 803; In re Custody of LaMarca (1979), 78 Ill. App. 3d 26, 29.

In reaching its decision to deny the father’s petition to modify custody, the trial court stated the father had argued before it that the children had become habituated to their new environment during the 15 months they were entrusted to his care; that they were happy and thriving in their new abode; and that, consequently, there was a sufficient change of circumstances to warrant the requested transfer of custody. The court also remarked that the father had presented evidence that the children were happier, more outgoing and better dressed since living with him. The trial court stressed, however, that the wife had performed several acts that demonstrated not only her intense love for the children but also her qualification to retain custody of the parties’ children. In this regard, the court below emphasized the wife allowed the husband to have the children for two summers when she determined, for whatever reason, that they would be better off with him; that when she was unable to care for them adequately due to the requirements of her new job, she entrusted them to the father’s care, rather than hire a baby-sitter; and that during the period the father had physical custody of the children, the mother and her new husband, in addition to exercising normal visitation at their residence, made a great effort to attend functions in which the children were involved at school. After recognizing that both the mother and the father were good parents, that both parties were fit to have custody and that its decision in this custody-modification matter was excruciatingly difficult, the trial court concluded that insufficient evidence was presented to justify a change of custody. Accordingly, the court ordered (1) that since the father had failed to meet his burden, the mother should retain legal custody, and (2) that the children should be returned to her on August 27, 1982, a few days prior to the expiration of the one-year period stated in the written agreement, so that the physical transfer of the children could take place in time for them to change schools.

The gravamen of the father’s contention on appeal is that, because the parties’ children had resided with him during the summer of 1980 and again from June 1981 to August 1982, the evidence sufficiently established that the children had been integrated into his new family with the mother’s consent. The trial court rejected that argument, and we concur with the result the trial court reached.

It is clear to us that the children had not been integrated into the father’s family with the mother’s consent during the summers of 1980 and 1981, periods during which the mother entrusted the children to the father’s care, in part, because she wanted to afford them a greater opportunity to visit their father and because she was experiencing financial difficulties. This court has determined that integration occurs where the children have begun to develop a stable and permanent custodial and environmental relationship with the petitioner’s family. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 619.) Under that standard and based on the evidence in this case, a permanent relationship had not developed during the summer months when the father temporarily had physical custody of the children. In addition, the consent requirement of section 610(b)(2) was intended to ensure that the custodial parent acquiesced not only to the transfer of physical custody of the children but also in their integration into the petitioner’s family. (106 Ill. App. 3d 617, 619; In re Custody of Stearns (1980), 84 Ill. App. 3d 195, 198; In re Custody of Burnett (1979), 75 Ill. App. 3d 998, 1000.) The law is well established that the mother’s generosity in allowing the father to exercise greater visitation rights than mandated by the court order does not demonstrate that she consented to the integration of her children into the father’s family. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 620; see In re Custody of Stearns (1980), 84 Ill. App. 3d 195, 196, 198.) Also, consent is not established in this case where the mother, in part, left the children with the father for the summers because of financial considerations. See In re Custody of Sa loga (1981), 96 Ill. App. 3d 661, 665.

Even assuming arguendo that integration occurred during the period from June 1981 to August 1982, when the father continuously had physical custody of the children, there is no evidence in the record that the mother wilfully consented to the children’s integration into the father’s family. On the contrary, the mother testified, and the written one-year agreement into which the parties entered reflects, that the transfer of physical custody was temporary, not permanent. (See In re Marriage of Hill (1982), 105 Ill. App. 3d 473, 480; People ex rel. Bukovic v. Smith (1981), 98 Ill. App. 3d 144, 151-52; In re Custody of Saloga (1981), 96 Ill. App. 3d 661, 665-66.) Furthermore, the continued contact the mother maintained with the children during the extended 15-month period they were living with the father evidenced her lack of consent to integration and distinguishes the present case from In re Custody of Burnett (1979), 75 Ill. App. 3d 998, 1000-01, upon which the father relies. Also" distinguishable from the case at bar are In re Custody of Iverson (1980), 83 Ill. App. 3d 493, 498, In re Custody of Thompson (1980), 83 Ill. App. 3d 97, 101, and Holloway v. Holloway (1973), 10 Ill. App. 3d 662.

Integration into the petitioner’s family with consent as we have pointed out is no longer required to be proved, although it may be a factor the court may take into account in determining whether a change in circumstances has occurred.

We deem the question in this case is whether a change in circumstances has occurred and whether a modification is in the best interest of the children.

In reviewing the evidence, we believe that while a change of circumstance may have been proved, it is implicit in the trial judge’s decision that a modification was not necessary for the best interest of the children. That finding is not against the manifest weight of the evidence or an abuse of discretion. It is a sufficient ground to affirm the trial court.

For the reasons expressed above, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WILSON

license: Public Domain

text:
    ESTATE OF NORMAN KERN, Deceased, Petitioner-Appellant, v. RICHARD A. HANDELSMAN et al., Respondents-Appellees.
    First District (5th Division)
    No. 81—1695
    Opinion filed June 17, 1983.
    Arvey, Hodes, Costello & Burman, of Chicago (Ralph A. Mantynband and Leonard D. Saphire-Bernstein, of counsel), for appellant.
    Selwyn Zun, Robert W. Gettleman, and Ellen A. Fredel, all of Chicago (D’Ancona & Pflaim, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from an order granting respondents summary-judgment (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c)) in an action brought by the executrix of the estate of Norman Kern (petitioner) to recover money allegedly due under a contract between the decedent and respondents. We reverse.

Norman Kern was the sole shareholder and principal officer of Kern Option Company, Inc. (Kern Option), a corporation engaged in the stock options clearing business. In June 1976, Kern sold his company to Richard A. Handelsman (Handelsman), Alan M. Resser (Resser) and Richard D. Kushnir (Kushnir) for $700,000; $200,000 was paid in cash for the capital stock of the corporation and the remaining $500,000 was to be paid over the next five years pursuant to a Consulting and Non-Competition Agreement (the Agreement) with Kern Option. The pertinent sections of that Agreement will be explained in part as necessary.

Paragraph two of the Agreement stated that Kern would provide consulting and advisory services to Kern Option for five years, subject to possible extensions. As compensation for his services, Kern would receive an annual sum equal to 12x/2% of Kern Option’s pretax profits, up to a maximum amount of $50,000. Over this five-year period, Kern could possibly receive a total of $250,000.

Paragraph seven of the Agreement provided that Kern would not compete against Kern Option in the stock options clearing business for five years. As consideration for his covenant not to compete, Kern Option agreed to pay Kern $50,000 per year. (This would also total $250,000.)

Paragraph five of the Agreement provided that in the event of Kern’s death, the payments for his consulting services would be continued for one year after his death and the noncompetition payments would be prorated through the date of his death.

Paragraph 14 of the Agreement provided that all subsequent modifications had to be in writing.

In 1977, a little over a year after the Agreement, Kern met with Handelsman, Resser and Kushnir, and on December 16, 1977, he executed a letter to Kern Option which stated that the meeting had resulted in an “understanding” of the manner of determining Kern’s compensation for his consulting and advisory services. Kern’s letter (the Amendment Letter) stated further that “in view of the fact that Kern will have been paid less than $50,000 for the first Agreement year [June 1, 1976, to May 30, 1977], the Agreement will be extended, for at least one more year *** on the same terms and conditions (except for the $50,000 annual payment for Kern’s non-competition covenant under Paragraph 7 of the Agreement) *** until Kern had received an aggregate of $250,000.” Kern’s letter concluded that it was to constitute an amendment to the 1976 Agreement. The letter was signed by both Kern and Richard Handelsman, who then was president of Kern Option.

The next year, 1978, Kern received $50,000 in noncompetition payments and $45,658 in consulting payments.

Kern died on February 5, 1979. Citation proceedings were filed in the probate division of the circuit court in March 1980 against Kern Option and Handelsman by Kern’s wife, Portia Kern, executrix of her husband’s estate. It was alleged that Kern Option owed Norman Kern $327,452, that the company had invested a portion of this money in treasury bills and that the estate was entitled to the interest earned on these investments. In response, Kern Option and Handelsman denied that they held any treasury bills belonging to the estate and, further, that based on their accounting, the company only owed $84,383.56, $50,000 of which was for Norman Kern’s consulting services; $34,383.56 would be a final noncompetition payment prorated through the date of Kern’s death. Petitioner then filed a motion for partial summary judgment in the amount of $84,383.56 which was granted on August 4, 1980. Respondents paid the debt in full on August 15,1980.

Respondents then filed a motion for summary judgment on the ground that all of the contractual obligations under the 1976 Consulting and Non-Competition Agreement had been met except for one final payment for Kern’s consulting services in the amount of $29,166.67, due September 28, 1980. At the summary judgment hearing, petitioner’s counsel submitted his personal affidavit stating that Alan Resser, who was one of the original purchasers of Kern Option Company from Norman Kern, would, upon his return to the United States, execute an affidavit concerning the financial disputes in 1977 between Norman Kern and the owners of Kern Option — at that time, Resser, Handelsman and Kushnir. The attorney further stated that in order to compromise and settle the disputes, the parties agreed in November and December 1977 that Kern Option Company would “execute such further and future agreements as would be necessary to assure that Norman Kern received the total payment of $500,000 due him by reason of the sale of the shares of Kern Option Co., Inc.” The trial court granted respondent’s motion to strike the attorney’s affidavit, and on January 7, 1981, summary judgment was entered in their favor.

On February 5, 1981, petitioner filed a post-judgment motion to vacate the summary judgment. In support of her motion, petitioner attached the substantially identical affidavits of Alan Resser and Richard Kushnir which stated that prior to December 16, 1977, the date of the Amendment Letter, the officers of Kern Option “orally agreed to compromise and settle all those disputes with Norman Kern on the basis that such further and other agreements would be entered into by and between Kern Option Co., Inc., Richard Handlesman [sic], Allen [sic] Resser, Richard D. Kushnir and Norman Kern as would be necessary to cause Kern Option Co., Inc. to pay to Norman Kern the total sum of $500,000 without regard to any abatement that might occur under the [1976 Consulting and Non-Competition Agreement].” The Resser and Kushnir affidavits concluded that the oral agreement had been partially performed, when the 1977 Amendment Letter was executed.

Handelsman then filed a counteraffidavit along with the Stock Purchase Agreement of March 13, 1978, in which Kushnir and Resser sold their interest in Kern Option to Handelsman and Arnold Zousmer. The Stock Purchase Agreement merely stated that Handelsman and Zousmer “recognize that in connection with the purchase of said shares [Kern Option] is obligated for all payments and liabilities [Kern Option] has to Norman Kern under the Stock Purchase Agreement dated May 24, 1976, including the Consulting and Non-Competition Agreement *** and the Amendment Letter to same dated December 16, 1977.” The Stock Purchase Agreement also stated that no writing or memorandum amending the 1976 Consulting and Non-Competition Agreement would be executed without the prior approval of Zousmer.

After hearing arguments of counsel, the trial court denied petitioner’s post-judgment motion to vacate the summary judgment. This appeal followed.

Opinion

Petitioner contends that the trial court’s entry of summary judgment was improper because a genuine issue of material fact remained unresolved. It is argued that the subsequent oral and written modifications in 1977 raised the question of the exact terms of the 1976 Agreement. The specific question in issue is whether respondents had the duty to pay Kern the total sum of $500,000, as both Richard Kushnir and Alan Resser alleged in their affidavits, “without regard to any abatement that might occur under any term of the original [1976] agreement.” Petitioner argues further that at the very least the affidavits create a factual question as to what were the amended terms of the 1976 contract. We agree.

A motion for summary judgment is proper where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) The extreme nature of the summary judgment remedy requires that the trial court exercise extraordinary diligence in its review of the record (Riley v. Singer (1979), 75 Ill. App. 3d 1036, 394 N.E.2d 746) so as not to preempt the right of a trial by jury or the right to fully present the factual basis for a claim. (Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 438, 398 N.E.2d 628; Cantu v. Utility Dynamics Corp. (1979), 70 Ill. App. 3d 260, 263, 387 N.E.2d 990.) The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Martin v. American Legion Post #784 (1978), 66 Ill. App. 3d 116, 383 N.E.2d 672.) Summary judgment should be granted only when the party’s right to it is clear and free from doubt. (Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 388 N.E.2d 1054; Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 437, 344 N.E.2d 29.) On appeal, the court will reverse an order granting summary judgment if it determines that a material question of fact exists and that the moving party is not entitled to a judgment as a matter of law. Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1; In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 288, 402 N.E.2d 702.

Our analysis of the record reveals that a genuine issue of material fact exists as to the terms of the 1976 purchase Agreement. Although respondents alleged in their motion for summary judgment that, with the exception of a final payment for consulting services, they had satisfied all of their contractual obligations under the 1976 Agreement, petitioner persuasively argued in rebuttal that the 1977 Amendment Letter clarified the method of computing Kern’s consulting payments and added assurance that the entire purchase price of $500,000 would be paid regardless of any intervening circumstances.

Considering all of the evidence, as we must, most liberally for petitioner and against respondents, it is our opinion that the facts are not clear and free from uncertainty that the 1976 Agreement was modified by the subsequent Amendment of December 1977. If fair-minded persons could draw more than one conclusion or inference from the facts, including one unfavorable to the moving party, a triable issue exists and the motion for summary judgment should be denied. It is only when the undisputed facts are susceptible of but a single inference that the issue becomes one of law. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 60-61; 324 N.E.2d 444.) The error in granting summary judgment in this case is highlighted by the fact that the trial court dismissed the attorney’s affidavit which stated that Alan Resser, one of the original purchasers of Kern Option Company in 1976, would submit an affidavit stating that the purchase Agreement had in fact been modified in 1977. Under Illinois law, parties to a written contract may alter or modify its terms by a subsequent oral agreement even though, as in the instant case, the contract precludes oral modifications. (Park v. Dealers Transit, Inc. (7th Cir. 1979), 596 F.2d 203, 204.) Additionally, where it is apparent that a controversy exists, the entry of a summary judgment is improper. (Smith v. Travelers Insurance Co. (1971), 131 Ill. App. 2d 476, 481, 266 N.E.2d 695.) The trial court therefore improperly ruled that the written and oral modifications specifically mentioned in the Resser and Kushnir affidavits did not affect the 1977 purchase Agreement. In our opinion, the Amendment Letter as well as the affidavits explicitly suggest that there were many material changes in the 1977 Agreement, most notably, the amount of compensation that Kern would receive, the significance, if any, of the death and disability clause (paragraph five) and the length of time that the Agreement would be in effect. These possible changes are material questions of fact.

Because of our resolution of this appeal, we need not consider the other issues raised by petitioner. The trial court’s order granting respondents’ summary judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SULLIVAN and LORENZ, JJ., concur.

      For 1976-1977, Kern had received $50,000, the maximum allowable for his consulting services. He received $31,793 for his agreement not to compete.

      Alan Resser and Richard Kushnir sold their interest in Kern Option on March 13, 1978, to Handelsman and a new buyer, Arnold Zousmer. Respondent A. G. Becker Company, Inc., purchased Kern Option Company in September 1979. Becker, Kern Option Company and Richard Handelsman are represented in this cause by the same counsel.

      This payment was made prior to the summary judgment hearing.

      Respondents contend that because the 1977 Amendment Letter did not abrogate paragraph five (the death and disability clause) of the 1976 Agreement, that Agreement stands unchanged. Respondents’ motion for summary judgment and the memorandum that was attached thereto did not mention the 1977 Amendment Letter in any way.


author: PRESIDING JUSTICE ROMITI

text:
    LENORA LAPIDUS, Plaintiff-Appellee, v. THERESA HAHN, Special Adm’r of the Estate of Louis Hahn, Deceased, Defendant-Appellant.
    First District (4th Division)
    No. 81—2401
    Opinion filed May 26, 1983.
    Paul L. Price, of Pretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellant.

      John C. Pendergast and Mary Jo Strusz, both of Fishman & Fishman & Saltzberg, P.C., of Chicago, for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff was injured on January 12, 1976, when she slipped on some ice while leaving the apartment building where she lived. She suffered a comminuted fracture of the left elbow. Her arm is now deformed and useless. The jury awarded her damages of $350,000 against the landlord; the trial court reduced this to $250,000. The landlord appeals, contending: (1) the trial court erroneously denied the defendant’s motion for a directed verdict; (2) the plaintiff’s issue instruction was erroneous; and (3) the jury was clearly prejudiced as shown by the excessive verdict returned.

The appellee in her brief asks the court to reinstate the original award.

Six witnesses testified at trial, all for the plaintiff. They were the plaintiff, her husband, John and Rose Tellima, who occupied the second-floor apartment of the two-story building, plaintiff’s daughter, Phyllis Ruggerio, Frank Diakakis, who worked next door, and Dr. Ray, who had treated the plaintiff.

At the time of the accident, plaintiff and her husband lived on the first floor of a two-story building owned by defendant’s decedent (hereinafter simply called defendant). The Tellimas occupied the top floor. Defendant did not live in the building but according to plaintiff he came by every day.

The building is a brick building, with a sloped roof. A series of about eight cement steps lead up to two doors, the one on the left being the Lapiduses’, the one on the right the Tellimas’. These doors are not in the center of the building but occupy the right third of' it. There is a railing on both sides of the stairs — it goes all the way to the doors. The top step, or platform as it is called by the witnesses, is not protected by the roof but is open to the sky.

At the time of the accident, plaintiff was nearly 56 years of age. She had been a diabetic for about 20 years. She and her husband had occupied the apartment for 2V2 years. During that whole time, whenever it rained or snowed, water dripped from the roof onto their door and onto the platform in front of their door where it formed a puddle. It did this every time it rained or snowed. There was a “corrosion” on the platform caused by these constant puddles. This watermark had been present since the time they moved in. According to the photograph in evidence the watermark did not come up to the door of the apartment but ended several inches in front of the door. Plaintiff testified that the water hit their door and not the Tellimas’. However, the picture indicates the water mark extended at least partially in front of the Tellimas’ door. Plaintiff testified the puddle only disappeared by evaporation. There was also a crack running the length of the platform near the step. It was not a wide crack and did not directly cause the plaintiff’s fall. However, she said it “formed the puddle.”

On the day in question there was, as usual, an ice patch in front of the door. It was one-quarter inch thick. It had not been there a week before but since plaintiff had not been out she did not know when it had been formed. Likewise she did not know whether the temperature was above or below freezing. Plaintiff was running short of insulin and decided to go to the drugstore. She was aware of the ice puddle in front of the front door but decided to use those stairs because the back stairs looked worse. She opened the door, which swung in, and stepped out, closed the door and turned to grab the railing. She slipped and fell on her left elbow, crushing the bones. She was taken to the hospital where Dr. Ray treated her; he operated on her the next day. Throughout this period she was in excruciating pain and was given pain pills. The last time she saw Dr. Ray was about a year or year and a half after the accident. He mentioned various surgical possibilities. However, because plaintiff had gone into a coma after an operation in 1960, she was afraid to have another one. Plaintiff took prescriptive pain pills for about two years, then quit because she was becoming addicted to too many. Now she takes Extra Strength Tylenol when she experiences pain, which she does at least once a day. She can now do very little around the house. Generally she just does needlework and watches television. Her daughter and her children take care of her and her husband. Plaintiff showed her arm to the jury. Photographs introduced in evidence show the left arm as distorted and bent. Plaintiff agreed that she was right handed and it was her left arm that had been injured.

Alfred Lapidus agreed with his wife that ever since they had lived there puddles had accumulated on the platform whenever there was any form of precipitation. Ice puddles would form from the drippings whenever it was very cold out. If it was a water puddle, it would either run off or evaporate. Likewise, the platform itself was uneven in that there was an indentation in front of the door. This condition had existed before they moved in.

About a week before the accident there had been about 21!z or three inches of snow. Mr. Tellima had cleaned off that accumulation. After the snow it had gotten very cold and did not warm up, but it was warm the afternoon before the accident. It had to be above freezing because the water was running down from the roof and there was no other way it would drip. However, Alfred admitted dripping occurred when the sun would shine on the snow on the roof and melt it.

He went out the afternoon before the accident. There was no accumulation on the landing at that time. Water was pouring down from the roof onto the door and onto the landing. There was a puddle of water in front of the door at least the width of the door.

On the day of the accident he saw the platform when he went to get the mail about 8:30 or 9 a.m. The mailbox is on the outside of the apartment. He saw the accumulation of ice, about one-half inch or one inch thick, in front of the door in the puddle, the area around the puddle. This was the same area in which he had seen the water the afternoon before. There was a little dripping from the roof at the time.

He further testified that at the time of the accident (he was not an eyewitness) it was above freezing. He knew this because the streets were clear and wet. “The streets and sidewalks and the steps were, had a slight accumulation of ice. But the sidewalks were wet, street was wet.” He did not know whether it had rained or snowed the night before.

John Tellima lived in the second-floor apartment. He had done things around the building for the landlord. In return, his rent was originally reduced by $35, but later this amount was decreased by $10; he agreed he was mad at the landlord because of this.

He testified that the ice that formed on the landing came from dripping which occurred when the sun would shine and melt the ice on the roof. He had told the landlord about this a couple of times before the accident.

When it snowed before the accident, he shovelled and took everything away. He agreed that rain and snow fell during the night before the accident. At trial he stated that it was dripping from the roof on the day of the accident. (In a previous deposition he had said it was not dripping on that day.) He also stated it had been dripping from the roof the night before.

Rose Tellima likewise testified that, whenever there was snow on the roof and the wind blew the snow over and the sun shone, it would melt and drip, running down either of the front doors. When the witness came down that morning the platform was all ice and water; there was “a little bit ice.” She did not know how the ice had gotten there. She could hardly get from one front to another. She had to hang on to the posts of the doors to get to plaintiffs house. Otherwise she probably would have fallen.

Frank Diakakis owned a snack shop next to the house. At the time of the accident he had owned it for about two years. Prior to the accident he had noted that water dripped from the roof of the house across the landing and the whole front whenever it rained or snowed. It would come forward and hit the landing or the front of the building. He had had an opportunity to observe this because at times mail for that address was put in his box by mistake and he would take and put it in the proper mailbox. At those times if it was wet out there would be quite a lot of water on the landing because of the buckle on the front landing. By buckle he meant an inversion. During the time he was in the area he did not, however, notice any damage to any of the outside shingles as a result of the water dripping from the roof or any change or damage to the doors

The night before the accident it was clear but “they” were predicting a storm and rain and ice. There was some kind of accumulation of ice or snow during the night. However, when he was coming to work the next morning the streets and sidewalks were all clear, even his sidewalk, although no one had shovelled it. Any accumulation, if there had been any, had melted by itself.

Diakakis did not witness the accident itself but he did come to plaintiff’s assistance and helped her into her apartment. At that time all of the stairs and the top landing had quite a bit of ice on them, more so on the top landing where the buckle was. He had a difficult time standing there because of the ice which, at the center point of the buckle, was at least one-quarter inch thick. In the buckle it covered at least four to five feet.

Phyllis Ruggerio, the plaintiff’s daughter, testified that before the accident her mother was a very independent and active woman. She never would let anybody do anything for her. She would wait on her husband hand and foot and even come over and wait on the Ruggerios.

After the accident, at first she would not put on regular clothes; she simply lived in a bathrobe for about a year. She would not go out because of the pain and because she was embarrassed at the way she looked. To the day of the trial she would only go out or do anything of that nature if the witness or her sister encouraged her to do so.

A few years after the accident the Ruggerios bought the house next door to them for the Lapiduses. The Ruggerios do their household chores. Plaintiff can do certain things but she needs help with everything. Phyllis drives her when they go shopping and carries things for her.

After the accident plaintiff was treated by Dr. Ray, an orthopedic surgeon. He testified that she sustained a comminuted fracture of the distal humerus in the left elbow, a pain-producing injury in his opinion. He operated on the elbow the day after the accident. He found that one of the big bones, the arm bone, which takes part in the joint, was severely broken. He could see about five or six fragments. One of these he had to remove; the rest he put together with screws and pins. Plaintiff stayed in the hospital for another eight or nine days. After that she was given a special brace on the arm and sent home. He continued to treat her for the next year and a half until March 11, 1977. That was the last date he treated her.

At that time she had pain and a lot of problems. The broken pieces were not mending as he had expected. The bones “are going this way, and that way.” He informed her of some alternate forms of treatment: (1) to fuse the bones together, (2) to replace the joint and restore motion in the elbow or (3) to do a bone graft. He did not “recommend” any of them but he did advise her to have her surgery if she could.

He testified that in his opinion the injury and the resulting pain was permanent in nature.

The jury returned a verdict for plaintiff for $350,000. Initially the court on September .1, 1981, in light of Brandel v. Yellow Cab Co. (1981), 98 Ill. App. 3d 88, 423 N.E.2d 1237, held the verdict could not stand and ordered a new trial if plaintiff did not consent to a remittitur to $250,000 within seven days. The defendant moved for a new trial on September 14, 1981, on the basis that plaintiff had not consented to the remittitur. Orally the plaintiff did accept the remittitur and the court modified the judgment accordingly.

I

It is true, as defendant urges, that in Illinois a landlord has no common law duty to remove natural accumulations of ice and snow from common areas (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184), and is not liable for injuries resulting from a natural accumulation of ice and snow. (Lewis v. W. F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39.) This rule is not applicable, however, where the landlord in some way caused an unnatural accumulation or aggravated a natural condition. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031; Lewis v. W. F. Smith & Co. (1979), 71 Ill. App. 3d 1032, 390 N.E.2d 39.) The jury considering the evidence in this case, including the fact that water repeatedly dripped in torrents from the roof onto the platform and was trapped there by the depression and that there was no ice or snow on the street or sidewalk, could reasonably have concluded that this ice was caused by the defective nature and construction of the roof and abetted by the depression in the platform and thus was not a natural accumulation. (Thompson v. Resnik (1932), 85 N.H. 413, 159 A. 355; Clapper v. Zubres (1941), 261 App. Div. 850, 24 N.Y.S.2d 377, aff'd without opinion (1941), 285 N.Y. 770, 34 N.E.2d 914; Betts v. Carpenter (1927), 239 Mich. 260, 214 N.W. 96.) As the court in Betts stated at 239 Mich. 260, 264-65, 214 N.W. 96, 98:

“In regard to the question of the defendant’s liability for the negligence charged, it should be noted that the ice and water on the sidewalk adjoining his premises did not get there from natural causes. They were turned onto a public sidewalk by artificial means, by the manner in which the building was erected and maintained.
‘An abutting property owner who creates a condition which artificially turns water across a sidewalk in such a way as to freeze and render the walk unsafe, is guilty of creating and maintaining a nuisance, and is liable for injury to pedestrians thereby caused.’ 13 R.C.L. p. 416; sec. 342, and cases cited.”

Nor is this result unreasonable. The rule exonerating landlords from liability for natural accumulations recognizes the climatic vagaries of this area with its unpredictable snowfalls and frequent temperature changes. Snowstorms cannot be foreseen or controlled. Thus it has been considered that another standard would impose an unreasonable burden of vigilance and care on landlords. (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184.) But the construction and maintenance of the landlord’s premises are within his control. It is not imposing an undue burden on him to require him not to add to the difficulties facing Illinois residents from natural accumulations of ice and snow by permitting unnatural accumulations due to defective construction or improper or insufficient maintenance of the premises. Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16.

II

Defendant contends that the trial court erred in submitting as an issue to the jury whether the defendant allowed the roof to become in such a state of disrepair that water would leak from it and in refusing to instruct the jury that plaintiff was required to exercise ordinary care to obtain medical treatment.

The defendant is correct in her contention that there was no evidence the roof was in a state of disrepair. However, the defendant failed to raise this objection at the instruction conference. Accordingly the error is waived. Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 387 N.E.2d 426; LaPlaca v. Gilbert & Wolf, Inc. (1976), 37 Ill. App. 3d 259, 345 N.E.2d 774.

There was no evidence in the record tending to show that plaintiff failed to take ordinary care to obtain medical treatment. To the contrary there was evidence she did. But she was not required to undergo a serious operation to minimize the liability of a tortfeasor (Howard v. Gulf, Mobile & Ohio R.R. Co. (1957), 13 Ill. App. 2d 482, 142 N.E.2d 825; Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 392 N.E.2d 77; 15 Ill. L. & Prac. Damages sec. 95 (1968)), especially since she was a diabetic and it appeared from her previous medical history that any such operation could be highly dangerous. A tortfeasor must take his victim as he finds her. Furthermore, while Dr. Ray mentioned certain surgical possibilities there was no evidence that any of these operations would have been successful or to what degree any of them would have improved her condition.

Ill

Plaintiff’s total medical and hospital expenses were only $3,695. The jury returned a verdict of $350,000. The trial court found that there was nothing in the trial court record which could be construed as an appeal to passion and prejudice. But it concluded that in light of recent decision of Brandel v. Yellow Cab Co. (1981), 98 Ill. App. 3d 88, 423 N.E.2d 1237, a verdict of $350,000 could not stand and one of $250,000 would be reasonable.

In Brandel, the appellate court reduced an award from $150,000 to $100,000, the amount requested in the complaint. In that case the plaintiff had suffered a broken hip, undergoing surgery and incurring hospital expenses in the amount of $2,800. But unlike the present case there was apparently no evidence that the injury restricted his normal activities. Under the circumstances we do not find Brandel either persuasive or controlling.

The question of damages is one of fact for the jury and ordinarily the court will not substitute its judgment for that of the jury. (Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 317 N.E.2d 114; Santiemmo v. Days Transfer, Inc. (1956), 9 Ill. App. 2d 487, 133 N.E.2d 539.) The award was about 100 times greater than the special damages incurred. However, while the ratio of special damages to the amount of the verdict is a consideration, it is not the sole consideration in determining whether the award is excessive. (Wanner v. Keenan (1974), 22 Ill. App. 3d 930, 317 N.E.2d 114.) Rather the true test is whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. (Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865.) In light of the deformity which has totally destroyed plaintiffs lifestyle and the extreme pain which she suffered we do not believe that it was. Accordingly, while we affirm the judgment for the plaintiff we modify the award, reinstating the original verdict of $350,000.

Judgment affirmed; award modified reinstating original verdict.

JOHNSON and JIGANTI, JJ., concur


author: JUSTICE STAMOS

text:
      In re ESTATE OF JOHN D. PLEPEL, Deceased—(Estate of John D. Plepel, Appellant and Cross-Appellee, v. Industrial Metals, Inc., et al., Appellees and Cross-Appellants).
    First District (2nd Division)
    No. 82—1633
    Opinion filed June 14, 1983.

      Jares and Komosa, of Chicago (Joseph J. Jares, Jr., of counsel), for appellant.
    Elmore, Gowen & DeMichael and Georges & Herdrich, both of Chicago (James Georges, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

The estate of decedent John D. Plepel appeals from the order of the trial court allowing the claims of Industrial Metals, Inc. (Industrial), and United Metals, Inc. (United), contending that the debts claimed by these claimants were corporate debts of Advance Metal Moulding Company (Advance), of which decedent was the majority stockholder and president. The claims of both claimants were based on the balances due on open accounts maintained with claimants by Advance. The debts were incurred during a period when Advance had been involuntarily dissolved for failure to pay franchise taxes and file an annual report. The estate contends that the subsequent reinstatement of Advance as a corporation “relates back” to the time that it was involuntarily dissolved, and that therefore the estate is not liable for debts incurred by decedent on behalf of the corporation when the corporation was not in existence. Claimants each cross-appeal, contending that the trial court erred in denying them prejudgment interest on their claims.

The facts of this case are simply stated. John D. Plepel was the president and chief stockholder of Advance Metal Moulding Company, a closely held corporation engaged in the fabrication of metal mouldings from rolled steel. On December 1, 1978, Advance was dissolved by the Secretary of State for failure to pay franchise taxes and failure to file an annual report. (See Ill. Rev. Stat. 1981, ch. 32, par. 157.82(a).) After the dissolution of the corporation, Advance continued to conduct business.

Claimants Industrial and United made sales of various quantities of steel to Advance pursuant to oral orders placed with them by Advance. Industrial and United carried Advance on their books as an open account, and Advance was periodically billed by both companies for the outstanding balance on the accounts plus interest. These bills and invoices were paid by company checks signed by John Plepel. The signatures on the checks contained Plepel’s name only, and did not indicate that he was signing in any corporate capacity.

John Plepel died on February 22, 1981. At the time of his death, Advance owed United $15,546.32 and Industrial $15,583.34 for steel which had been delivered. United and Industrial filed claims against the decedent’s estate on June 2,1981.

On June 9, 1981, Advance was reinstated as a corporation by the Secretary of State. On June 18, 1981, the reinstated corporation filed a petition for bankruptcy in the Federal District Court. The presidents of United and Industrial sat on the unsecured creditor’s committee in those proceedings. Industrial received $2,337.50 and United received $2,331.95.

In the probate proceedings, claimants contended that John Plepel was personally liable for the amounts due on the open accounts because of the operation of section 150 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.150), which provides:

“All persons who assume to exercise corporate powers without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.”

After hearing evidence relating to the amount unpaid on the accounts and the course of business between Advance and claimants, the trial court entered judgment for Industrial in the amount of $11,249.57 and for United in the amount of $13,214.38. Those amounts reflect the full original balances presented by claimants less the amounts they received in the bankruptcy court. The court refused to allow prejudgment interest on these amounts, although the invoices sent to Advance during the decedent’s life reflect charges for interest on amounts due, and those charges were paid with checks signed by the decedent without protest.

On appeal, the estate contends that the reinstatement of Advance “relates back” to the time of its dissolution as a corporation, and that therefore decedent has no personal liability for debts incurred during the period of dissolution. Industrial and United each cross-appeal, contending that the trial court erred in denying them prejudgment interest on the amounts of the open accounts.

The precise issue of whether the officer of a corporation which has been involuntarily dissolved, and which is later reinstated, is personally liable for debts incurred by the business during the period of dissolution is a question of first impression in Illinois. It can not be doubted that an officer of a dissolved corporation is without authority to exercise corporate powers, and that if Advance had not been reinstated, section 150 would operate to impose personal liability on all those who had incurred debts on behalf of the former corporation after it had been dissolved. The question, then, is whether the reinstatement of the corporation somehow “relates back” to the time that the corporation was dissolved so as to cure the lack of authority to exercise corporate powers which existed at the time that the debts were incurred. The predecessor statutes to section 150 provided that any persons assuming to act for a corporation before all stock named in the articles was subscribed (1871-72 Ill. Laws 296) or before the corporation was authorized to do business (1919 Ill. Laws 312, 315) were jointly and severally liable for any debts incurred by them prior to the corporation coming into existence. (See M. H. Vestal Co. v. Robertson (1917), 277 Ill. 425, 427-28, 115 N.E. 629.) Under those prior statutes, as well as under section 150, the courts look to the intent of the parties to a preincorporation contract in determining whether the incorporator or promoter, as well as the corporation, is liable on the contract. (See H. F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 472-73, 322 N.E.2d 45.) Section 150 differs from its predecessors in that, by its terms, its application is not limited to debts and liabilities incurred prior to incorporation, but is applicable to debts incurred by “[a]ll persons who assume to exercise corporate powers without authority.” It therefore follows that personal liability may be imposed on an officer of a dissolved corporation who enters into contracts on behalf of the corporation after dissolution. See, e.g., Kessler Distributing Co. v. Neill (Iowa App. 1982), 317 N.W.2d 519, 521 (interpreting Iowa Code Annot. sec. 496A.141, which is substantively identical to Ill. Rev. Stat. 1981, ch. 32, par. 157.150).

The courts of other jurisdictions have imposed personal liability upon officers of dissolved corporations who incurred debts after dissolution despite the fact that the corporation was later reinstated. (See Kessler Distributing Co. v. Neill (Iowa App. 1982), 317 N.W.2d 519, 522; Poritzky v. Wachtel (1941), 176 Misc. 633, 634-35, 27 N.Y.S.2d 316, 317-18.) In Poritzky, the court noted that if the reinstatement of the corporation were held to “relate back” so as to nullify the personal liability of the person who incurred the debts, a former officer of a dissolved corporation could obtain credit, and subsequently shift his personal liability to the corporation simply by paying the arrearage in franchise tax. (176 Misc. 633, 635, 27 N.Y.S.2d 316, 318.) We agree that such a result is against public policy because it would create a mechanism by which just debts could be easily evaded. We hold that the reinstatement of a dissolved corporation does not “relate back” to the time of dissolution so as to absolve the officers of personal liability for debts incurred by them during the period of dissolution.

The estate cites Kaybill Corp. v. Cherne (1974), 24 Ill. App. 3d 309, 320 N.E.2d 598, and Amman Food & Liquor, Inc. v. Heritage Insurance Co. (1978), 65 Ill. App. 3d 140, 382 N.E.2d 562, for the proposition that the reinstatement of a corporation “relates back” to the time of dissolution as a matter of Illinois law. Those cases are in-apposite, however, standing as they do for only the narrow proposition that a suit brought by a plaintiff dissolved corporation need not be dismissed for lack of corporate capacity to sue so long as the corporation is reinstated during the limitations period for its cause of action. Those cases do not speak to the effect of reinstatement on personal liabilities which are incurred during the period of dissolution, and therefore they have no application to the instant case.

Our holding that section 150 authorizes the imposition of personal liability does not fully resolve the question of whether such liability was properly imposed in the instant case. Decedent here stands in a position similar to that of a preincorporation promoter who enters into contracts on behalf of a corporation not yet in existence. Under our supreme court’s holding in H. F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 322 N.E.2d 45, personal liability will not be imposed on a person incurring debts prior to the corporate existence unless the parties intended that the individual should be bound by the contract. (59 Ill. 2d 465, 472-73.) In the instant case, he trial court allowed no testimony concerning any conversations with or representations made by decedent because of the inadmissibility of such conversations under the Dead Man’s Act. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201.) Therefore, there is little evidence in the record that speaks directly to the intent of the parties. However, the record is also devoid of evidence that claimants were in any way aware that they were dealing "with a business which purported to be a corporation. All checks in payment of claimant’s invoices were signed by decedent without the use of any corporate title; no evidence of any communication to claimants that would have indicated the corporate status of Advance was introduced at trial; and the name of the business, Advance Metal Moulding Company, carried no indicia of corporateness. (Cf. American Insurance Co. v. McClelland (1913), 184 Ill. App. 381, 385 (mere use of the term “company” in business name is not sufficient to indicate corporate status).) Additionally, we interpret the fact that claimants filed claims in the decedent’s probate estate for the amounts due while the business was still in operation and before the corporate reinstatement as a strong indication that claimants looked solely to decedent for payment of the debts. Insofar as there is nothing in the record to indicate that claimants were ever apprised that they were dealing with a business that purported to be a corporation, or that the parties ever intended anything but that claimants should look to decedent for payment of the debts, we hold that the decedent’s estate is liable for the amounts due to claimants.

We note that because of the operation of the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201), the decedent’s dealings with claimants could be established only indirectly. The testimony of Industrial’s president established that the decedent had acted as purchasing agent for Advance throughout their business relationship. A salesman for United testified to completing order forms which were received into evidence and which indicated that some of the orders for steel which comprised the account due to United originated from the decedent, and that other orders were placed by other persons acting on Advance's behalf. In this connection, it must be stressed that although the evidence indicates that the decedent was not the only person incurring debts on behalf of Advance during the period of dissolution, the liability imposed by section 150 is joint and several. Therefore the judgment against the estate for all sums due on the open accounts of claimants is proper, and the remedy of the estate for the payment of debts not incurred directly by the decedent, is an action for contribution from those other persons who also incurred debts on behalf of Advance.

Claimants contend on cross-appeal that the trial court erred in refusing to allow prejudgment interest on their claims. It is undisputed that the invoices sent to Advance provided that interest would accrue on the sums due (at a rate of U/2% per month for United and lG^Vo per year for Industrial) and that decedent signed checks in payment of invoices containing the same charges without protest. Claimants contend that these facts indicate that the interest terms were part of their contracts with decedent, while the estate contends that there is no evidence that decedent ever “acquiesced” to those terms. Insofar as decedent had continuously paid interest on the balanee due of his accounts with claimants during their business relationships until his death, we hold that the interest terms were part of the contracts between the parties. Therefore, that portion of the judgment of the trial court which disallowed interest on United’s and Industrial’s claims is reversed and the cause remanded for determination of the interest due claimants.

The judgment of the circuit court is affirmed in part, reversed in part, and remanded with directions to proceed in conformity with the views expressed herein.

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


author: JUSTICE HOPF JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. MILLS, Defendant-Appellant.
    Second District
    No. 81—911
    Opinion filed June 8, 1983.

      LINDBERG, J., dissenting.
    G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    T. Jordan Gallagher, State’s Attorney, of Sycamore (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, James E. Mills, was charged by information with unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. SGVa, par. 704(d)). Defendant’s pretrial motion to suppress the seized material was denied. After a bench trial in De Kalb County defendant was found guilty and sentenced to 18 months’ probation and a $250 fine.

On appeal defendant contends that his motion to suppress was improperly denied because the evidence seized was the fruit of an improper stop of defendant’s vehicle. We agree and reverse and remand this cause.

At the suppression hearing defendant testified that he and a friend, David Milroy, were sitting and talking in defendant’s car at the municipal parking lot in Sycamore. Officer Garvey then pulled in the parking lot. Milroy told defendant that Officer Garvey was behind them and defendant took his keys out of the glove compartment, put them in the ignition, started the car and turned around to back up when he saw that Officer Garvey had gotten out of his car. Garvey had parked his car about two spaces down and, according to defendant, the car was blocking the exit to the parking lot. Defendant put his car in park when he saw Officer Garvey get out of his car.

Defendant went on to say that the officer went to the driver’s window and asked defendant what he was doing. Defendant replied that he was doing “nothing.” Garvey asked both men to get out of the car, which they did. Garvey then searched the car. Defendant testified, on cross-examination, that he told Garvey not to make a search because it was his mother’s car.

Officer Garvey testified that he pulled into the parking lot to avoid a busy intersection. After he pulled in the lot he saw that defendant and Milroy were looking at him and they “made fast movements, leaning forward like they were leaning down towards the floorboard of the car.” On cross-examination Officer Garvey testified that defendant’s reaction to his entrance into the parking lot was what caused him to approach defendant’s vehicle. Officer Garvey pulled his vehicle past defendant’s, stopped it, and walked up to defendant’s side of the car. The officer leaned over to ask them what they were doing and noticed both of the occupants were moving around and acting nervous. Then he noticed a clear plastic bag with a green leafy substance in it on the floorboard of the car. It appeared to be marijuana. After seeing this, he testified, he asked the boys to step out of the car. The officer testified that defendant told him to go ahead and search the car. In the car he found a jacket, the pockets of which contained two plastic bags full of a green leafy material. Garvey told defendant he could get a search warrant if he needed and defendant should cooperate by giving him the keys to the glove compartment. Defendant then unlocked the compartment and handed Garvey a brown paper bag, telling him it contained three ounces of grass.

After oral arguments, the trial court found that Officer Garvey had approached the defendant’s vehicle in a public parking lot and had seen a plastic bag containing green material. It found Garvey had sufficient experience with marijuana to recognize it. The arrest of defendant and search of the vehicle were deemed to be proper.

It should be noted at the outset that defendant failed to file a post-trial motion in this cause. Generally, the failure to do this results in a waiver of the alleged error. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) However, certain errors can be considered under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), which provides for the “plain error doctrine.” In addition, there are exceptions to this rule in criminal cases where the evidence is closely balanced. (People v. Jackson (1980), 89 Ill. App. 3d 461, 411 N.E.2d 893.) The State has not raised this issue on appeal and does not contend that defendant’s arguments are waived. Even when a post-trial motion is lacking a court can consider constitutional arguments, such as presented here, on their merits. People v. Baker (1979), 78 Ill. App. 3d 411, 396 N.E.2d 1174; People v. Smith (1977), 53 Ill. App. 3d 395, 368 N.E.2d 561.

Turning to defendant’s contention of error, the question presented is whether or not Officer Garvey made a proper “stop” or “seizure” of defendant in the parking lot. It is clear that an investigatory “stop” is proper if the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879; Ill. Rev. Stat. 1979, ch. 38, par. 107-14.

As the court stated in People v. DeLisle (1982), 104 Ill. App. 3d 297, 299, 432 N.E.2d 954, 956:

“There are no per se rules for determining whether an investigatory stop is justified. Each case must be decided on its own facts. Coolidge v. New Hampshire (1971), 403 U.S. 443, 509-10, 29 L. Ed. 2d 564, 608, 91 S. Ct. 2022, 2060; People v. Kelly (1979), 76 Ill. App. 3d 80, 84, 394 N.E.2d 739.”

In the present case Officer Garvey’s suspicion was founded on the fact that the defendant and his friend made fast movements and leaned forward. Garvey also testified that he recognized defendant, and that defendant looked at him when he pulled in the lot. Beyond this, Garvey articulated no facts to support his suspicion of defendant.

The State contends that the facts of this case do not constitute a “stop” as occurred in Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879. In Terry, which prohibited an investigatory stop based on “inarticulate hunches,” Officer McFadden stopped three defendants he suspected were contemplating a daylight robbery. The court noted that, in the interest of crime prevention, an officer can make a temporary seizure for investigation when he has observed unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot. More recently, the Supreme Court stated that a stop for investigation must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690; 3 W. LaFave, Search and Seizure sec. 9.2, at 2 n.11.1 (1983 Supp.).) Again, in the case at bar, the only objective manifestations raised by Officer Garvey were: Defendant’s looking at Garvey, his rapid movement and leaning forward, and possibly the fact that Garvey knew defendant or defendant’s reputation. Clearly Garvey was not investigating any criminal activity, nor was there any showing of a general criminal investigation.

In People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, the question of what constitutes a proper stop was addressed by the court. The defendant in DeLisle had been stopped at O’Hare Airport and drugs were found in her baggage. The court rejected the arresting officer’s reasoning for making the stop, noting that many people could meet the characteristics argued to be indicative of criminal activity, i.e., nervousness, walking rapidly from the baggage area, arrival from a source city and possession of limited luggage.

In People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, as in the case at bar, the State relied on United States v. Mendenhall (1980) , 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, for the proposition that no stop or seizure occurred because defendant had no reason to believe she was not free to end the conversation and proceed on her way. The DeLisle court did not, and was not required to, accept this line of reasoning because only two justices proposed it in Mendenhall. Similarly, we do not believe defendant was free to drive or walk away in the case before us.

Illinois cases that discuss what constitutes a “stop” or “seizure” are as varied as those of the Supreme Court. In People v. Schoepke (1979), 77 Ill. App. 3d 1026, 397 N.E.2d 225, a police officer saw defendant take a small plastic garbage bag from the trunk of a car. Another detective was called in and drugs were found in the plastic bag. Addressing the issue of whether the stop was proper, this court emphasized that the totality of facts were to be considered, and that the appearance of the plastic bag alone was, in itself, not sufficient to justify an investigatory stop. (77 Ill. App. 3d 1026, 1030.) However, the combination of events that occurred made a totality of articulable facts which, the court found, justified the stop and inquiry. The facts that were shown in Schoepke included an ongoing investigation and surveillance of the area where the stop occurred, a showing of incidence of crime in the area and an apparent rendezvous of defendant’s vehicle with another vehicle.

Focusing on the question of whether or not a “stop” occurred, it has been held that a stop, and therefore a seizure of a person under the fourth and fourteenth amendments (People v. Roberts (1981) , 96 Ill. App. 3d 930, 933, 422 N.E.2d 154, 156), occurs the moment a person’s freedom to walk away from a policeman is restrained, even though a restraint falls short of an arrest. (People v. Kennedy (1978), 66 Ill. App. 3d 267, 273, 383 N.E.2d 713, 718.) Restraint can be deduced from a showing of actual or threatened force on the part of the police officer. (People v. Ortiz (1973), 18 Ill. App. 3d 431, 305 N.E.2d 418.) It has also been held that, absent some restraint on a person’s freedom to walk away from an officer, no Terry-type stop can be said to have occurred. (People v. Tilden (1979), 70 Ill. App. 3d 859, 863, 388 N.E.2d 1046.) In the case at bar, the showing of force question likely turns on whether defendant could have driven, rather than walked, away from Officer Garvey.

The State contends that no stop occurred in this case because Officer Garvey merely approached a stationary vehicle and addressed a single question to its occupants. It contends that the vehicle was not brought to a halt by a show of police authority. However, defendant testified that after he saw Garvey pull in the lot, he started his car and put it in reverse gear. Then he turned around to see if he was going to hit anything and saw that Officer Garvey had gotten out of his car. Defendant then put his car back in “park” and Officer Garvey came over. He also indicated that Garvey left his car about two spaces down, and that it blocked the exit to the lot. On the other hand, Garvey testified that his car did not block defendant’s exit, but he conceded that defendant would have to drive around his car in order to exit the lot. Other than this, the officer did not contradict defendant’s testimony.

Although defendant’s vehicle was stationary, it is apparent that he intended to move his car but changed his mind upon Garvey approaching him, and possibly because Garvey’s car at least partially blocked him. Regardless of whether defendant was in a car, it appears that he reasonably believed that he had better see what Garvey wanted. See Illinois Migrant Council v. Pilliod (N.D. Ill. 1975), 398 F. Supp. 882, where the court recognized that the average person feels obliged to stop and respond to police questioning.

While it is clear that an officer may stop an individual for temporary questioning, even without probable cause, both the case law in this area (United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690) and. the Code of Criminal Procedure of 1963 require that an officer be able to reasonably infer from the circumstances that the individual is committing, is about to commit, or has committed a criminal offense. Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14; see also People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327.

Here, the facts articulated by Officer Garvey included his observation that the defendant looked nervous. However, as previously mentioned, nervousness, at least in an airport, is not a characteristic that gives rise to a reasonable suspicion. (People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, 957.) Officer Garvey also testified that defendant made a rapid movement and leaned forward in the vehicle. In a case in which a police officer observed a defendant, sitting behind the steering wheel of his car, “slink down” into his seat, the court noted that the defendant’s act of “slinking down” into his seat was not “such a furtive gesture as would support a finding of probable cause. It could just as easily be consistent with innocent actions, when the conduct of young men on a warm summer evening is considered.” (People v. Gottenborg (1976), 41 Ill. App. 3d 8, 10, 354 N.E.2d 30.) Although standards for probable cause are required for arrest and not for an investigatory stop, the leaning forward or slinking down behavior could still be an innocent act. It should also be noted that this was the crux of Garvey’s suspicion.

Considering the totality of circumstances presented in this case, we believe that Officer Garvey did not have sufficient facts at the time of the encounter to create a reasonable suspicion that the defendant was involved in a possible crime.

The trial court’s denial of defendant’s motion to suppress is reversed. The defendant’s conviction is reversed and this cause is remanded for a new trial.

Reversed and remanded.

UNVERZAGT, J., concurs.

JUSTICE LINDBERG,

dissenting:

Upon consideration of the State’s petition for rehearing, defendant’s response and the State’s reply, I now agree with the State’s position. I dissent from the majority’s adherence to the original disposition. I would affirm the trial court’s denial of defendant’s motion to suppress and defendant’s conviction.

I believe it is unworkable and gives rise to inconsistent results to decide issues arising from police-citizen contacts from the perspective of the subjective reaction of the citizen. Rather, we should examine the officer’s conduct to determine the existence of a fourth amendment violation. In the first instance that examination should be concerned with whether there was a “stop” or a “seizure” of the citizen’s person. See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

In the case at bar we need go no further. The only evidence that suggests a “stop” or “seizure” by reason of Officer Garvey’s approach to the car and inquiry of defendant is defendant’s testimony of his subjective reaction. Defendant testified to the effect that he had intended to leave but for the approach of Officer Garvey. It appears that the trial court either chose to disbelieve defendant or, perhaps, concluded that defendant’s subjective reaction was irrelevant, as it denied the motion to suppress the evidence.

I believe we should consider Professor LaFave’s criticism of the subjective-reaction or perception-of-the-suspect test. His comment in part is:

“Thus, if the ultimate issue is perceived as being whether the suspect ‘would feel free to walk away,’ then virtually all police-citizen encounters must in fact be deemed to involve a Fourth Amendment seizure.
The fact that such would be the result may, standing alone, be enough to warrant the conclusion that a perception-of-the-suspect test is undesirable.
* * *
Asking the officer to determine whether the suspect feels free to leave, however, ‘would require a prescience neither the police nor anyone else possesses.’ ” 3 W. LaFave, Search and Seizure sec. 9.2, at 50-51 (1978).

I would adhere to those cases which found no stop or seizure of the person for fourth amendment purposes where the officer simply approached the occupied vehicle cited by Professor LaFave. (3 W. LaFave, Search and Seizure sec. 9.2, at 18 (1983 Supp.).) Since the trial court’s implicit finding that the officer’s vehicle did not block the parking lot exit was not against the manifest weight of the evidence, we must accept it. People v. Kincy (1982), 106 Ill. App. 3d 250.

Since I conclude there was no stop prior to the officer’s view of the contraband, it is not necessary to discuss the law and circumstances under which an officer may properly make a stop or seizure. See United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690; Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14.