author: JUSTICE UNVERZAGT

text:
    NANCY BENDER, Plaintiff-Appellee, v. CONSOLIDATED MINK RANCH, INC., Defendant-Appellant.
    Second District
    No. 81—1028
    Opinion filed November 1, 1982.
    Rehearing denied December 7, 1982.

      Burl E Nader, of Libertyville, for appellant.
    Joel S. Ostrow, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This action was brought by an employee of the defendant mink ranch to recover damages, alleging that the employer, which was raising her minks, refused to surrender the minks to her upon demand. A jury fixed her damages at $17,600 and found against the defendant on its counterclaim, upon which the trial court entered the judgment from which this appeal is taken. We affirm.

Three issues are presented for review: (1) Whether the trial court properly denied the defendant-employer’s motion for a directed verdict; (2) Whether the jury was properly instructed as to damages, and (3) Whether the trial court erred in failing to grant a continuance for trial.

Plaintiff, Nancy Johnson Bender, filed a two-count complaint in the circuit court of Lake County against Consolidated Mink Ranch, Inc. (hereinafter CMR).

Count I, stating a cause of action for conversion, alleged that CMR, lawfully in possession of 417 minks and storage equipment (a housing shed) owned by the plaintiff, unreasonably refused to tender same to her upon demand made “on or about June 26, 1979." Her complaint alleged on information and belief that CMR shipped 200 of the minks to auction where CMR would unlawfully realize the proceeds of said sale. She claimed the value of the minks, and her damages, to be $25,800. An additional $25,000 was claimed as exemplary damages, which claim was stricken at the close of the evidence at trial.

An amended count II, for breach of contract, alleged that plaintiff and CMR entered into an agreement whereby plaintiff purchased 50 female and 11 male minks from CMR. The agreement, dated December 22, 1974, and indicating a duration period of December 1, 1974, to December 1, 1975, was annually orally renewed between the parties for the years 1975 through 1978. Count II alleged that the plaintiff performed all of her obligations under the agreement and that despite a provision of the agreement that it was terminable at will by either party, CMR refused to allow her to terminate same and remove her minks and storage equipment from the premises upon her demand. Plaintiff claimed actual damages of $25,000 due to CMR’s breach of the contract.

In its answer, CMR admitted it had lawful possession of the minks, cared for the minks after plaintiff ceased her employment at the ranch in June 1979, and that it sold the mink pelts to cover the cost of said care, pelting and sale. As a defense, CMR alleged plaintiff left her employment with CMR abruptly and without notice and that the minks would have died within two to three days if CMR had not continued to provide the care necessary to keep the minks alive. CMR alleged plaintiff failed to respond to its July 23, 1979, letter and that it, therefore, considered she had abandoned her minks. Accordingly, CMR requested plaintiff’s count I for conversion be dismissed.

CMR also counterclaimed for an agister’s lien pursuant to section 50 of “An Act to revise the law in relation to liens” (Ill. Rev. Stat. 1981, ch. 82, par. 59), in the amount of $16,000 which was based on an approximate cost of $40 per pelt produced for sale to cover the cost of feed and care rendered to the minks.

CMR’s answer to amended count II admitted the agreement and the fact of annual oral renewal of the agreement, but denied plaintiff performed all of her obligations under the contract, or that the contract was terminable at will. CMR further denied plaintiff informed it that she wished to terminate the agreement or asserted her right to remove the minks and storage equipment from the ranch. CMR’s first defense to the amended count II was stricken and it counterclaimed for set-off in the amount of $16,000 to cover the cost of care and feeding of the minks.

The plaintiff had begun working part-time on the ranch while she was in high school in 1973, and later she became the ranch’s only full-time employee in December 1974 when she purchased the minks from CMR. She was paid hourly for her work and, although her minks were kept and tagged separately from those which belonged to CMR, they were cared for by everyone on the ranch staff, including plaintiff, in the usual course of the ranching operation. The minks were usually bred in March, born in April or May, and raised until November or December when the majority were slaughtered for their pelts. The highest quality minks were retained as breeders. Her herd increased in size to 400 in 1979, including 80 adult females and 16 adult males. Her 1978 crop of minks were sold at auction in 1979 by the Hudson Bay Company in New York, for which she received $9,000.

Due to illness, plaintiff left the ranch during the afternoon of June 25, 1979, and the next day telephoned Willard J. Nieland, the president of CMR, that she would return when she felt better. As of June 25, 1979, plaintiff was current under the payment terms of the agreement which she and Willard J. Nieland had orally renewed in December 1978.

Plaintiff returned to the ranch on July 27, 1979, with her husband, William Bender. She testified she told Nieland she would not be coming back to work since she was too sick and could not do the work. Nieland said if she was not coming back to work, that he would give her $1,000 for her minks at the end of the year. She said she would take her minks and shed, but he refused to allow her to do that; she then said she would continue to make payments, but he said no to that as well, and told her she had to come back to work. Her testimony was corroborated by her husband’s testimony.

At the time plaintiff talked with Nieland, she had not yet received his letter dated July 23, 1979, giving her until August 3 “to call, or come, and discuss this with me [Nieland] as [sic] regards [sic] to the continuation or termination of this agreement in a calm and businesslike manner,” otherwise “it will be considered that you [plaintiff] have completely abandoned your agreement and your animals.” Nieland did not mention the letter to plaintiff on July 27, assuming that she had received it. He later received the return receipt for the registered letter which indicated she had received the letter on August 7. Because August 3 had already passed, and because Nieland had already refused to let her take her minks and shed, she did not respond to the letter.

In a November 2, 1979, letter to Nieland from an attorney representing the plaintiff, plaintiff admitted she was in arrears in the amount of $3,000 for feed, etc., and stated she was willing and able to resume work at the ranch. Plaintiff paid $260 per month for feed, etc., for the first six months of 1979; the monthly payment for the last six months of each year was usually discussed and agreed upon in July, but the exact amount per month for the remainder of 1979 had not yet been agreed upon when plaintiff left the ranch. Plaintiff testified that the figure of $600 per month had been discussed; Nieland said they discussed $800 per month. The admitted $3,000 arrearage would appear to be based on plaintiff’s estimated monthly charge of $600. Nieland did not respond to the November 2 letter. Plaintiff then filed the instant complaint in February 1980.

The defendant, CMR, first asserts the evidence does not and cannot sustain a judgment for conversion and breach of contract; therefore, the trial court erred in denying its motion for directed verdict. It argues that plaintiff’s discussion with Nieland on July 27, 1979, did not constitute a demand for possession of the minks, generally referring to plaintiff’s testimony at trial that she did not intend to remove the minks from the ranch on that date. Citing Hobson’s Truck Sales, Inc. v. Carroll Trucking, Inc. (1971), 2 Ill. App. 3d 978, CMR argues that the essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of the owner thereof, and that the owner’s demand for possession of the property and the defendant’s subsequent refusal are necessary for the maintenance of an action for conversion. Here, CMR argues, the purported demand made by the plaintiff on July 27 was not repeated after that date, and her acknowledgment of her arrearage in payments to CMR and offer to return to work in the November 2 letter from her attorney to CMR amounted to a ratification and approval of the ranch’s possession of the minks after July 27. CMR additionally contends its possession of the minks after July 27, and its subsequent sale of the pelts was lawful, since it had an agister’s lien pursuant to section 50 of “An Act to revise the law in relation to liens” (Ill. Rev. Stat. 1981, ch. 82, par. 59; Henkel v. Pontiac Farmers Grain Co. (1977), 55 Ill. App. 3d 898.) Lastly, CMR argues plaintiff produced no evidence that it breached its agreement with her since the plaintiff’s shed would be removed only at the end of each ranching season, and not whenever she desired to move it.

As plaintiff correctly notes, the issue raised by the defendant limits review of the evidence to the standard first enunciated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, to-wit:

“[Vjerdicts ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Accord, see, e.g., Main Bank v. Baker (1981), 86 Ill. 2d 188, 194; Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 259.

It has been established that a defendant’s contention on appeal that the trial court erred in refusing to direct a verdict does not call upon the appellate court to substitute its judgment for that of the jury; rather, the appellate court, like the trial court below, must determine whether all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based thereon could ever stand. (Neubauer v. Coca Cola Bottling Co. (1968), 96 Ill. App. 2d 18.) Plaintiff asserts the evidence presented was sufficient to withstand a motion for directed verdict on either or both counts, and the trial court did not err when it denied the defendant’s motion for directed verdict.

Plaintiff argues that any ambiguities in the contract must be construed most strongly against the defendant since it drafted the contract (Epstein v. Yoder (1979), 72 Ill. App. 3d 966, 973), and that since the contract was for the benefit of the plaintiff, not CMR, the plaintiff may waive any of its benefits. (Bartels v. Denler (1975), 30 Ill. App. 3d 499, 501.) Plaintiff points out that it was established at trial that the contract did not obligate, nor was it contingent upon, plaintiff’s continued employment at the ranch, and that she was paid up in full pursuant to the contract terms through June 30, 1979, and that the prorated monthly charge to her for the last six months of 1979 had not yet been determined. Further, on July 27, 1979, CMR owed plaintiff $500 in back wages, which plaintiff eventually recovered through the Labor Relations Board. Plaintiff notes the remaining disputed issue regarding the contract, whether it was terminable at will, was determinable by reference to the contract itself. In the contract it was stated that plaintiff “is allowed to keep her mink on the premisis [sic] until December 1, 1975” — a benefit she may waive (30 Ill. App. 3d 499) — and that “if N.J. [the plaintiff] decided to discontinue ranching, she can dismantle her shed and move it off the premisis [sic], or sell it to CMR if a mutually agreeable price can be reached.”

Nieland testified at trial that this clause was meant to refer to the end of the year, at pelting time because the term of the agreement was from December to December; however, plaintiff argues such an interpretation would render that part of the contract meaningless, contrary to the general rule that contracts are to be construed so as to give all parts meaning and render no part extraneous.

With regard to the conversion count, plaintiff points out that both she and her husband testified a demand for the minks was made to the defendant on July 27, 1979, and that this evidence alone — when viewed in its aspect most favorable to the plaintiff — was sufficient to resist entry of a directed verdict. Additionally, however, there was evidence of defendant’s letter to plaintiff dated July 23, to the effect that her minks would be confiscated if she did not make known her intentions about returning to work at the ranch. Further, plaintiff correctly posits that the defendant had no claim for an agister’s lien since such a lien is not available to one who has converted the livestock, and where there is no express or implied contract upon which to base a claim for an agister’s lien. Reynolds ex rel. Jones v. Weakly (1938), 293 Ill. App. 384, 388-89.

In our opinion, the court properly denied the defendant’s motion for a directed verdict. The evidence, viewed in its aspect most favorable to the plaintiff, was sufficient to sustain the jury’s verdict on either or both of the counts in the complaint. No explicit ruling was requested of, or made by, the court as to the ambiguity of the contract insofar as it provided for termination at will. Consequently, by implication, as argued by the plaintiff, the contract was unambiguous or, if any ambiguity existed in the contract, its interpretation became a question of fact for the jury. (Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 920.) The evidence quite clearly showed the plaintiff had performed all that was required of her under the terms of the agreement, and that when she requested possession of her minks, the defendant refused. The fact that plaintiff was entitled to possession of the minks — wherefore defendant’s refusal to deliver possession amounted to unlawful conversion— is not negated by the fact she did not intend to immediately remove the minks from the premises, nor by the fact she had not made alternate housing arrangements for the minks. The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 932.) Further, the contract clearly provided that if the plaintiff decided to discontinue ranching, she could dismantle her shed and move it, or sell it to the defendant at a mutually agreeable price. Defendant’s protestations to the contrary, nothing in the contract indicated the decision to discontinue ranching could only be made at the end of the contract year nor, in fact, did the contract obligate the plaintiff to actually raise her minks to the point at which they could be pelted. Certainly, it would be to her best advantage to do so, and under the contract, she had a right to raise the minks on the ranch, but not the duty to do so.

Accordingly, we conclude the trial court properly denied the defendant’s motion for a directed verdict.

Defendant next argues the four separate instructions given to the jury — one each issues and damages instruction for conversion and breach of contract — misled the jury into believing that the plaintiff could have a double recovery when, in fact, she had only a single claim. Defendant further argues the damages instructions were incorrect since the measure of damages for conversion is market value at the time of the conversion. The instructions given for both count I in conversion and count II for breach of contract were that the plaintiff could recover damages, if proven, for the fair market value of her pelting shed, and for her future lost profits. Defendant cites North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, and Henkel v. Pontiac Farmers Grain Co. (1977), 55 Ill. App. 3d 898, in support. By applying the standard of the fair market value at the time of the conversion, defendant asserts plaintiffs damages could not have been more than $2,600 because there was testimony that the value of the 400 minks on July 27, 1979, was approximately $5 each. Adding to that the value of her shed, and deducting the cost of care for 27 days in July, the $2,600 figure results. Defendant also asserts, without citation of authority, only one issues instruction should have been given, since almost every conversion case arises from a bailment or from some kind of oral or written contractual agreement.

Plaintiff counters that the error, if any, was harmless or the result of defendant’s own failure to provide separate verdict forms or special interrogatories. Plaintiff points out the judgment for $17,600 is sustainable as a single recovery on the breach of contract count on which the jury was properly instructed, and which defendant agreed at trial was the proper instruction for measure of damages for a breach of contract. Plaintiff notes the evidence was that the minks were sold for a net price of approximately $57 per pelt or — on the basis of 400 minks — a total of $22,800. There was evidence that the value of the shed was between $500 and $1,200, and that the monthly charge to the plaintiff for feed, etc., would have been anywhere between $600 and $800 or possibly higher. There was also evidence that the price received for the pelts, had plaintiff actually raised the minks to maturity and sold them, may have been reduced by as much as 50% due to the fact plaintiff’s storage facilities for the minks were of an unimproved type which generally produced a “rough” quality fur, and also because she may have had to sell the pelts in general part lots, or odd lots, rather than in bundles due to the relatively small number of pelts she had to sell. There was also evidence that approximately 100 of the minks comprised plaintiff’s breeding stock, the pelts of which usually only brought a price of approximately $12 each.

The damages instructions for conversion and breach of contract set forth the same elements: (1) the loss of the fair market value of plaintiff’s pelting shed, and (2) the value of profits lost or reasonably certain to be lost in the future. Each instruction also admonished the jury that: “Whether any of these elements of damages has been proved by the evidence is for you to determine.” The record indicates that when the defendant objected to the conversion damages instruction, it apparently was prepared to tender a correct instruction (i.e., fair market value of the minks as of the date of the conversion less the unpaid balance owed to defendant for feed, etc.). However, the instruction defendant apparently was prepared to tender was not preserved in the record, nor did the court refuse it; the trial court simply gave the damage instruction tendered by the plaintiff over the defendant’s objection. Further, the defendant provided the verdict forms to be used by the jury. Neither of the forms allowed for a separate finding as to each count; the forms simply provided for a finding either for or against the plaintiff “on the plaintiff’s complaint.” Additionally, the defendant did not submit special interrogatories to be answered by the jury.

The plaintiff correctly argues that a judgment will not be reversed on the basis of faulty instructions unless the party complaining of the instructions can show prejudice as a result. (Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 489.) The fact that a single general verdict was returned by the jury rather than separate verdicts on count I and count II creates an ambiguity in that it is not clear whether the award was based on count I, count II, or both counts. Consequently, it is not known whether the jury was improperly influenced or misled by the erroneous conversion damages instruction. Further, the ambiguity was created by the defendant itself, and defendant cannot now complain of an error which itself induced. See Edenburn v. Riggins (1973), 13 Ill. App. 3d 830, 834; City of Waukegan v. Stanczak (1955), 6 Ill. 2d 594, 608.

The defendant has not challenged the sufficiency of the evidence to support a verdict on either count. Nor can it now complain that the jury was improperly instructed as to damages for breach of contract. (See Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536.) As pointed out by the plaintiff, the absolute maximum damages which could have been assessed by the jury would have been $24,000; it found her damages to be only $17,600. The measure of damages for breach of contract is the amount needed to put the parties in the same position they would have been had the contract been performed. (Laff v. John O. Butler Co. (1978), 64 Ill. App. 3d 603, 619-20.) The determination of an adequate verdict is particularly within the province of the jury; great weight must be given to the jury’s determination, and its results will not be disturbed unless all reasonable persons would agree that the amount is excessive. (Kottmeyer v. Consolidated Rail Corp. (1981), 98 Ill. App. 3d 365.) In our opinion, the jury was properly instructed on the measure of damages for breach of contract. Due to defendant’s own omission, the jury was not instructed to render separate verdicts on each of the counts; consequently, it is not known whether its verdict was on count I, count II, or on both counts. The jury could reasonably have believed the evidence which was most favorable to the plaintiff, and found defendant’s evidence as to reduction in the value of the fur not to be credible. In sum, we believe the jury’s verdict cannot be said to have been the result of error in instruction, nor does its verdict lack support in the evidence.

Lastly, defendant contends the trial court erred in failing to grant a continuance for trial. This issue is without merit. Defendant has presented this court with nothing but bare assertions of fact without any support in the record on appeal. The record reflects that the trial date of October 13 was set by order of the trial court on July 9. Defendant filed its interrogatories to be answered by the plaintiff on September 11. On October 13, the jury was called and sworn, and the cause continued until the next morning at 9:30. Defendant complains the trial court’s refusal to grant an alleged joint motion for continuance resulted in a “ragged” trial.

The appellate court will not interfere with a trial court’s exercise of its discretion in granting or denying a motion for continuance unless there has been a manifest abuse of such discretion or a palpable injustice apparent in the record on appeal. (In re Estate of Cohn (1981), 95 Ill. App. 3d 204, 208.) Defendant here has not shown any palpable injustice; in fact, the record indicates the parties had the benefit of the late afternoon and evening of October 13 to ready themselves before the trial actually commenced on October 14. There is no basis in the record to warrant this court’s interference with the trial court’s exercise of discretion in this matter.

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

Judgment affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.

      This appears to be in error; the testimony indicates the date was July 27, 1979.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    DENNIS J. KONICKI, Plaintiff-Appellant, v. OAK BROOK RACQUET CLUB, INC., Defendant-Appellee.
    Second District
    No. 82—2
    Opinion filed November 8, 1982.
    Rehearing denied December 7, 1982.

      D. Kendall Griffith and Donald W. Garlinger, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Wheaton, for appellant.
    McBride & Baker, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Dennis J. Konicki, appeals from an order of the circuit court of Du Page County dismissing his petition to vacate or modify a decision of an arbitrator following arbitration of a dispute with defendant, Oak Brook Racquet Club, Inc. (OBRC).

The record reflects that Konicki was part owner of the Oak Brook Racquet Club (the Club). In October 1974, OBRC, also a part owner, assumed Konicki’s interest in the Club pursuant to a series of agreements which provided, as relevant, that OBRC was to pay certain sums to Konicki over a period of time. Additionally, Konicki entered into a consultation agreement with OBRC which prohibited Konicki from competing with OBRC in its business within “10 square miles” of the Club. All of the executed agreements were included within the terms of a separate arbitration agreement which provided, inter alia:

“Any dispute thereunder shall be determined by arbitration in accordance with rules determined by the arbitrators. The arbitrators shall be one person appointed by Konicki, one person appointed by the President of OBRC and one person appointed by the two said appointees. Notice of demand for arbitration of any issue shall be served on each party, and arrangements shall be made for the orderly conduct thereof by the law firm of McBride, Baker, Wienke & Schlosser. The decision of the arbitrators shall be final and conclusive, except for fraud or gross abuse of discretion. Failure to arbitrate shall preclude judicial actions to resolve disputes arising under the terms of said agreements or this Arbitration Agreement.”

Subsequently, in 1976, Konicki participated in the establishment of the Westmont Tennis Club, purportedly within the area of the noncom-petition covenant, and OBRC thereafter refused to make any further payments to Konicki under the terms of its agreement with him.

On December 9, 1976, Konicki commenced this action in the circuit court seeking damages from OBRC for its breach of the agreement. OBRC filed a motion to stay proceedings pending the submission of the dispute to arbitration and on August 25, 1978, an agreed order was entered which provided, inter alia:

“It is expressly ordered that the interpretation of the contract, the scope and enforceability of the non-competition covenant, are exclusively to be determined by the arbitrator after an evidentiary hearing.
* * *
*** In the event the arbitrator finds against plaintiff, the hearing will be continued for 30 days on the issue of damages due OBRC as a result of plaintiff’s breach, which damages shall be an offset against principal and interest due Konicki under the aforementioned stock redemption agreement and Note.”

The arbitrators determined that a valid noncompetition agreement existed between the parties and that the proscribed “10 square miles” referred to an area within a three-mile radius of the Club. The arbitrators further found that Konicki had violated the noncompetition covenant and that OBRC had sustained damage in the amount of $64,000. They also determined that OBRC owed Konicki $102,500 pursuant to the redemption agreement and, accordingly, offset the damages and on August 26, 1980, entered an award in favor of Konicki in the sum of “$48,500 [sic]” plus interest.

Within 20 days, OBRC petitioned the arbitrators to correct the mathematical error ($102,500 minus $64,000 equals $38,500, not $48,500) in the award pursuant to section 9 of the Uniform Arbitration Act (UAA). (Ill. Rev. Stat. 1979, ch. 10, par. 109.) On September 29, 1980, the arbitrators modified the award to reflect the correct damage figure of $38,500. Thereafter, on December 24, 1980, Konicki filed a petition to vacate or modify the decision of the arbitrators in the pending circuit court proceeding pursuant to sections 12 and 13 of the UAA. (Ill. Rev. Stat. 1979, ch. 10, pars. 112, 113.) The petition, which was filed within 90 days of entry of the modified award, but more than 90 days after the original award, alleged that the enforcement of the- noncompetition clause violated public policy; that the arbitrators ruled upon an issue not submitted to them; and that the award constituted a “gross abuse” of discretion.

OBRC moved to strike the petition contending that it was not timely filed within 90 days of the original award and otherwise failed to state a cognizable basis for review under sections 12 and 13 of the UAA (Ill. Rev. Stat. 1979, ch. 10, pars. 112, 113). OBRC’s motion was granted on these grounds, and Konieki appeals.

Konieki contends that the dismissal of his petition was erroneous, asserting: (1) the section 9 application to the arbitrator to correct the initial award tolled the period in which the parties may petition the circuit court pursuant to sections 12 and 13 of the UAA, thus making his petition timely; (2) public policy considerations are grounds for review of an arbitrator’s award even though not expressly enunciated in sections' 12 and 13 of the Act; and (3) the petition otherwise stated a cognizable claim for review under the UAA since it alleged the award was beyond the scope of the submitted issues and constituted a “gross abuse of discretion.”

Initially, we note that in considering a motion to dismiss a complaint or petition all well-pleaded facts contained therein must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344, 408 N.E.2d 1041, 1046; McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100, 101, appeal denied (1979), 74 Ill. 2d 586.) A petition should not be dismissed for failure to state a claim unless it clearly appears that no set of facts could be proven under the allegations which would entitle the petitioner to relief. Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 731, 394 N.E.2d 1283, 1289; J. J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407, 365 N.E.2d 721, 723.

The threshold issue presented is whether Konieki’s section 9 application before the arbitrators tolled the 90-day period in which a party must petition the circuit court for review under sections 12 and 13 until the section 9 application is disposed of by the arbitrators. If the time is not tolled, then Konieki’s petition was not timely filed and its dismissal was proper on that ground.

It has been established in Illinois that a party seeking review of an arbitration award must either (1) file a petition in the circuit court within 90 days pursuant to sections 12 and 13 of the UAA; or (2) raise the grounds upon which review is sought in answer to another party’s petition to confirm the award under section 11 of the UAA. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 394, 389 N.E.2d 1286, 1295; Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1095, 398 N.E.2d 103, 105, appeal denied (1980), 79 Ill. 2d 634.) The mere filing of a petition to confirm an award in the circuit court does not extend the 90-day period in which the other party must raise grounds for its vacation or modification. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 394, 389 N.E.2d 1286, 1295; Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1095, 398 N.E.2d 103, 105, appeal denied (1980), 79 Ill. 2d 634.) However, the effect of a pending section 9 application before the arbitrator upon the period for filing a petition to vacate or modify in the circuit court appears to present an issue of first impression in Illinois.

Section 9 of the UAA provides in pertinent part:

“On application of a party to the arbitrators ***, the arbitrators may modify or correct the award upon the grounds stated in paragraphs (1) and (3) of subdivision (a) of Section 13, or for the purpose of clarifying the award. The application shall be made within 20 days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating he must serve his objections thereto, if any, within 10 days from the notice. The award so modified or corrected is subject to the provisions of Sections 11, 12 and 13.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 10, par. 109.)

Although no time limit is specified for filing a petition for confirmation under section 11, a petition to vacate or modify an award under sections 12 or 13 must be made to the circuit court “within 90 days after delivery of a copy of the award to the applicant ***.” Ill. Rev. Stat. 1979, ch. 10, pars. 112(b), 113.

In interpreting a statute, the court is obligated to give the statutory language its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494; Potts v. Industrial Com. (1980), 83 Ill. 2d 48, 51, 413 N.E.2d 1285, 1287.) It would appear that section 9 provides for review of a modified award in the same manner as an original award, and the last sentence of section 9 unambiguously states that a modified or corrected award is subject to the provisions of sections 11, 12 and 13 just as if no section 9 application had been made. We conclude that a party has 90 days from delivery of a modified award in which to petition the circuit court for its review.

Any other interpretation would lead to anomalous and unjust results. For example, the UAA places no time restriction upon the arbitrator’s disposition of an application under section 9. Thus, if the time for review is not tolled, a party would effectively lose his statutory right of judicial review if the arbitrators failed to resolve the application within the 90-day period. In order to preserve his right of review a party would then be forced, perhaps needlessly, to apply to the court during the pendency of the section 9 application and before the arbitrator has made a final award. Since the grounds for a section 9 application are included within section 13, the courts would be asked in many cases to simultaneously decide issues still pending before the arbitrator. We do not think such a duplicative and inexpeditious use of the judicial and arbitration system was contemplated by the enactment of section 9.

Our understanding of these portions of the UAA is supported by decisions interpreting similar provisions in the Workers’ Compensation Act. (Ill. Rev Stat. 1979, ch. 48, par. 138.1 et seq.) In International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180, 374 N.E.2d 182, the court was called upon to determine what effect the pendency of a motion to correct errors pending before the Industrial Commission had upon a party’s ability to seek review in the circuit court. The court concluded that before review in the courts can be proper a “final determination by the Commission is contemplated.” (71 Ill. 2d 180, 185, 374 N.E.2d 182, 184.) It noted:

“The purpose of section 19(f) is to provide the Commission an opportunity to correct its own clerical or computational errors so as to avoid the necessity of having the circuit court review such errors.
* * *
[Jurisdiction will not attach in the circuit court until the Commission renders its final decision. This is so whether the Commission ultimately allows or denies the relief requested in a petition to correct errors.” (71 Ill. 2d 180, 186-87, 374 N.E.2d 182, 184-85.)

We believe that section 19(f) of the Workers’ Compensation Act and section 9 of the UAA were both intended to afford the nonjudicial forum an opportunity to correct its own errors and reach a final decision prior to judicial review. See also PPG Industries, Inc. v. Industrial Com. (1982), 91 Ill. 2d 438, 443, 438 N.E.2d 173, 175; Simpson v. Industrial Com. (1982), 91 Ill. 2d 452, 455.

Accordingly, we hold that the filing of an application under section 9 of the UAA before an arbitrator tolls the time for seeking review in the circuit court pursuant to sections 12 and 13 until the petition is finally disposed of by the arbitrator, regardless of whether the relief requested is granted or denied. For this reason, as well as the additional reason, as previously stated herein, that Konicki properly filed his petition as permitted under the statute within 90 days of receipt of delivery of a modified award from the arbitrator, the dismissal of his petition as untimely was improper.

Next, Konicki contends that the arbitrator’s enforcement of the noncompetition clause was violative of public policy and his petition stated a cognizable claim for review on those grounds. OBRC argues that the sole grounds for review of an arbitrator’s award are enumerated in sections 12 and 13 of the UAA and, as public policy considerations are not included therein, Konicki’s petition failed to state a claim for review and was properly dismissed.

Generally, the scope of judicial review of an arbitrator’s decision is limited and extends only to those areas expressly covered by statute. (Meharry v. Midwestern Gas Transmission Co. (1981), 103 Ill. App. 3d 144, 146, 430 N.E.2d 1138, 1140; Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1047, 363 N.E.2d 460, 463; American Almond Products Co. v. Consolidated Pecan Sales Co. (2d Cir. 1944), 144 F.2d 448, 450.) Judicial review is limited because the parties have chosen the forum and must therefore be content with the informalities and possible eccentricities of their choice. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8, 389 N.E.2d 1181, 1184.) However, it is clear that an arbitrator’s award may not stand if it results in the contravention of paramount considerations of public policy. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 423-24, 386 N.E.2d 47, 52; Local P-1236, Amalgamated Meat Cutters v. Jones Dairy Farm (7th Cir. 1982), 680 F.2d 1142, 1144; Johns-Manville Sales Cory. v. Machinists Local 1609 (5th Cir. 1980), 621 F.2d 756, 758; Comment, Judicial Review of Arbitration: The Role of Public Policy, 58 Nw. U.L. Rev. 545 (1963).) Although such a rule compromises each party’s interest in the finality of the award, the Illinois Supreme Court has noted:

“Nevertheless, just as we will not enforce a private agreement which is repugnant to established norms of public policy, we may not ignore the same public policy concerns when they are undermined through the process of arbitration. Even if the arbitrator considered issues of public policy in construing the agreement before him, we may not abdicate to him our responsibility to protect the public interest at stake.” Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 424, 386 N.E.2d 47, 52.

It is well established that noncompetition convenants are not favored in the law and public policy dictates that they will be enforced only if certain stringent criteria are met. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37, 225 N.E.2d 21, 24; Egnell, Inc. v. Weniger (1981), 94 Ill. App. 3d 325, 329, 418 N.E.2d 915, 918.) These criteria include the reasonableness of the chronological and geographical restrictions as well as the existence of a proprietary interest to be protected by the restriction. (Egnell, Inc. v. Weniger (1981), 94 Ill. App. 3d 325, 329, 418 N.E.2d 915, 918; Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 713, 390 N.E.2d 68, 70; Professional Business Management, Inc. v. Clark (1967), 83 Ill. App. 2d 236, 242, 227 N.E.2d 371, 374, appeal denied (1967), 36 Ill. 2d 630.) If these criteria are not met, the contracts will not be enforced. Although the enforceability of a noncompetition clause is a question of law (Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 712, 390 N.E.2d 68, 70), the resolution of the question depends upon the underlying relationship of the parties and the proprietary interest involved. We conclude Konicki’s petition stated a claim for review of the arbitrator’s award as in violation of public policy and its dismissal was also erroneous on this ground.

Konicki further contends that the arbitrator was without authority to determine the amount of interest due Konicki since it was not an issue submitted to arbitration. We do not agree.

The arbitration agreement between the parties as well as the agreed order of August 25, 1978, were a part of the record before the trial court. The arbitration agreement must be given as broad an interpretation as its language will allow. (Security Mutual Casualty Co. v. Harbor Insurance Co. (1979), 77 Ill. 2d 446, 449-50, 397 N.E.2d 839, 841.) Those portions of the arbitration agreement previously noted state that “any dispute” was to go to arbitration and that the arbitrator was to offset damages against “principal and interest.” Konicki’s petition fails to allege any facts which would vitiate the unambiguous meaning of this language. Accordingly, the striking of those portions of the petition alleging that the award was beyond the scope of submission was proper.

Finally, Konicki argues that the dismissal of his petition was improper in that under the terms of the arbitration agreement the award is to be final absent “gross abuse of discretion” and that was alleged in the petition.

As we have noted, the subject matter jurisdiction of the trial court to review an arbitration award is limited and circumscribed by statute. The parties may not, by agreement or otherwise, expand that limited jurisdiction. (Hartman v. Hartman (1980), 89 Ill. App. 3d 969, 971, 412 N.E.2d 711, 713; Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 1051, 386 N.E.2d 885, 887, appeal denied (1979), 75 Ill. 2d 595; Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 718, 377 N.E.2d 237, 240, appeal denied (1978), 71 Ill. 615.) Since a claimed “gross abuse of discretion” is not a ground for review under sections 12 and 13 of the UAA, KonicM’s petition failed to state a claim for relief on that theory. (Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1047, 363 N.E.2d 460, 463.) Accordingly, the striking of that portion of the petition was proper.

In the light of the foregoing the order of the circuit court of Du Page County is affirmed in part, reversed in part and this cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded.

REINHARD and VAN DEUSEN, JJ., concur.

      We are aware that other jurisdictions considering section 9 of the UAA have reached an opposite result. (Trustees of the Boston & Main Corp. v. Massachusetts Bay Transportation Authority (1973), 363 Mass. 386, 291 N.E.2d 340; Cutler Associates, Inc. v. Merrill Trust Co. (Me. 1978), 395 A.2d 453; Lopez & Roque Tile Co. v. Clearwater Development Corp. (Fla. App. 1974), 291 So. 2d 126.) However, two of the rulings (Trustees and Cutler) were dicta, and we find the reasoning underlying the ruling in Lopez to be unpersuasive.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISRAEL RAMOS, Defendant-Appellant.
    First District (1st Division)
    No. 80—2052
    Opinion filed July 26, 1982.
    Rehearing denied October 18, 1982.

      Steven Clark and Phillip J. Zisook, both of State’s Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Shile M. King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After entering a guilty plea during trial, defendant was sentenced to 80 years for murder, 15 years for attempt murder, 15 years for attempt armed robbery, and 20 years for armed violence. On appeal, defendant contends (1) the trial court erred in accepting his guilty plea; (2) the trial court abused its discretion in imposing an extended term sentence on the conviction for murder; (3) the conviction for armed violence should be reversed because it is a lesser included offense of murder; and (4) the trial court erred in denying his motion to vacate the guilty plea.

We affirm in part and reverse in part.

On March 26, 1978, Rosalie Smith, her husband Robert, and Christine Miller were working at the Convenient Food Mart at 4106 N. Sheridan Road. At 7:35 p.m. and again at 8 p.m. defendant and Will Jabbar entered the store and walked through the aisles. Each time defendant spoke with Miller. Neither man purchased anything.

At 9:30 p.m., defendant and Jabbar returned to the mart and acted as if they were purchasing groceries. After observing them from the back of the store, Robert Smith went to his office and removed a gun from his desk drawer. However, Jabbar approached Smith and held a gun to Smith’s side. When Jabbar turned to speak to defendant, Smith struck Jabbar and fled. Smith heard gunfire and yelled a warning to Miller. He saw Jabbar aim a gun at him and he shot Jabbar.

Meanwhile, defendant held Miller at gunpoint at the front counter. After shooting Jabbar, Smith went to the front of the store and fired a warning shot at defendant. Defendant ran to the back of the store. Smith, Miller and two children exited through the front door.

Defendant returned and fired several shots through the front window. He also tried to open the cash register. Defendant then ran through a passageway leading to the alley. Seconds later, Smith heard gunfire from the alley. The body of Frank Detente was found in the alley near his car. Detente died of a gunshot wound to his chest.

Joyce Collins testified that she spoke with defendant on March 27, 1978. Defendant told her that he and Jabbar had robbed a store on the prior evening and that Jabbar and another man had been shot. After Jabbar was wounded, he gave his gun to defendant. Defendant also told Collins that he had shot a man who tried to stop him as he ran out the back door of the store. When defendant shot this man, a set of keys fell by defendant’s feet. Defendant tried to, but could not start the car in the alley.

On the following day after the court reconvened, defendant stated he wished to plead guilty. After lengthy and explicit admonishments by the court, defendant entered guilty pleas on all charges. Thereafter, the following evidence was admitted by stipulation. A .22 caliber handgun was found in the front seat of Frank Detente’s car. A Chicago Police Department firearms examiner determined that bullets removed from Robert Smith, who also had been shot during the incident, and from the body of Frank Detente had been fired from this gun. The same weapon had been identified by Smith as the weapon wielded by Jabbar during the incident. When police officers arrived at the store, they found Jabbar lying in a pool of blood. No weapons were found on or near him. The court then accepted defendant’s guilty plea and entered findings of guilty on all charges.

First, defendant contends the trial court erred in accepting his guilty plea where the evidence indicated the existence of a meritorious defense. The evidence defendant relies on is as follows.

Miller and Smith testified that after Smith shot Jabbar, Jabbar shouted, “Manny I’ve been shot.” Defendant never used the name Manuel as an alias. Also after Smith viewed several photographs provided by police, he selected a photo of Manuel Rodriquez and stated that Rodriquez resembled the person who had robbed the store.

A plea of guilty should not be accepted and a motion to withdraw the plea should be granted if a defense worthy of consideration exists. (People v. Spicer (1970), 47 Ill. 2d 114, 264 N.E.2d 181; People v. Frascella (1980), 81 Ill. App. 3d 794, 401 N.E.2d 1045.) The trial court’s decision on this issue will not be reversed absent an abuse of discretion. Frascella.

In this case, the facts do not warrant reversal of the trial court’s decision. Regarding Smith’s identification of the perpetrator from the photographs, Smith testified that the man in the photo had no facial hair while the person who robbed the store had a goatee. Smith further testified that he did not make a positive identification from the photo. Christine Miller had three opportunities to observe defendant. She identified defendant immediately from a photographic display and identified defendant in court. We find that the evidence presented, particularly the aforementioned facts, overwhelmingly refutes defendant’s theory. We therefore find no abuse of discretion by the trial court.

Second, defendant contends the trial court erred in imposing an 80-year, extended-term sentence on the conviction for the murder of Frank Detente. He argues that there were insufficient facts upon which to base the sentence.

The record discloses that Detente was shot shortly after defendant fled from the store. Miller and Smith testified that they heard gunfire seconds after defendant fled through the back entry toward the alley. The bullet wounding Smith and the bullet killing Detente had been fired from the same weapon. Defendant himself told Collins that he had killed a man who tried to stop him as he fled the store. The conclusion drawn by the trial court regarding this murder was that defendant “out of a murderous heart” took the life of Frank Detente. The trial court was in a better position than is this court to assess the circumstances surrounding the murder. After reviewing the record, we are in agreement with the trial court that the murderous act was heinous and indicative of wanton cruelty. Thus, an extended term was properly imposed. Ill. Rev. Stat. 1979, ch. 38, par. 1005— 5 — 3.2(b)(2).

Third, defendant argues that his conviction for armed violence should be reversed because it is a lesser included offense of murder. As noted recently in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, convictions for both armed violence and the underlying felony cannot stand where the same act is the basis for both charges. The court stated that alleging a felony in the armed violence charge has the effect, upon conviction, of making armed violence a lesser included offense. In the case at bar, the acts constituting the felony were also the basis for the armed violence charge. Thus, judgment should have been entered and sentence imposed only on the more serious offense of murder. (Donaldson.) We therefore reverse the conviction for armed violence.

Finally, defendant contends the trial court erred in denying his motion to vacate his guilty plea where defense counsel failed to comply with Supreme Court Rule 604(d). (73 Ill. 2d R. 604(d).) We, however, find no abuse of discretion by the trial court. Defense counsel filed a certificate of compliance during the pendency of the appeal. Thus, this requirement has been satisfied. (People v. Ward (1977), 55 Ill. App. 3d 878, 371 N.E.2d 103.) The record also discloses that defense counsel reviewed the record and files during the hearing on the motion and consulted with defendant prior to the hearing. Additionally, the trial court was very familiar with the facts of the case since it heard the evidence presented prior to the plea, admonished defendant, and accepted the plea. Upon our review of the facts of this case, we find that the withdrawal of the guilty plea was not necessary to correct a manifest injustice. People v. Bovinett (1979), 73 Ill. App. 3d 833, 392 N.E.2d 428.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.

Judgment affirmed in part, reversed in part.

GOLDBERG and O’CONNOR, JJ., concur.


author: JUSTICE WEBBER

text:
    JEAN CHARLES BRITTON et al., Plaintiffs-Appellees, v. PAUL J. WINGER, Indiv. and as Trustee of Trust Agreement No. 1, et al., Defendants-Appellants.—(Patrick Britton et al., Defendants.)
    Fourth District
    No. 4—82—0093
    Opinion filed November 5, 1982.
    Costigan and Wollrab, of Bloomington (James P. Ginzkey, of counsel), for appellants.
    Evans and Davis, of Kingfisher, Oklahoma, and Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Whedon Slater, of counsel), for appellees.

      James DePew, of Bloomington, guardian ad litem.

   JUSTICE WEBBER

delivered the opinion of the court:

Defendant trustee appeals from an order of the circuit court of McLean County, the effect of which is to create a constructive trust in favor of the plaintiff beneficiaries in an undivided interest in the farmland which is the corpus of the trust. While we feel that the plaintiffs and the trial court were too lenient with the defendant, it is not our province to impose a harsher remedy and we therefore affirm.

During his lifetime Charles W. Winger created an inter vivos trust whose corpus consisted of 240 acres of farmland in McLean County. Defendant was named trustee and the beneficial interests were: (1) Paul, settlor’s son and trustee, one-sixth, and Gladys, his wife, one-sixth; (2) Carlos, settlor’s son, one-sixth and Rose, his wife, one-sixth; (3) Jean Charles Britton and Jane Britton Thomas, plaintiffs, and Patrick Britton, defendant, being the children of a predeceased daughter, one-ninth each. The trust instrument contained some uncommon provisions for a trust of farmland. These included a direction to divide into separate trusts for each beneficiary and that the interest of each beneficiary be personal property; further, that any beneficiary who had attained the age of 21 years could demand his share of the corpus. Since the 240 acres are of uneven quality, it is difficult to see how such provisions could be implemented.

The controversy at hand arose out of the death of Carlos in 1965. He was apparently a resident of the State of Oklahoma and died intestate. Under the laws of that State his one-sixth interest descended in halves, one-half to his wife, Rose, and the other one-half to his father, the settlor of the trust, who was still living. According to the testimony, the settlor then conveyed this one-twelfth to the defendant individually and not in trust. Rose then indicated a desire to dispose of her entire interest in the trust, that is, the one-sixth received under the trust instrument and the one-twelfth received from her deceased husband.

Defendant, according to his testimony, considered various options concerning Rose’s share: (1) to buy her share for the trust; (2) to buy her share for the plaintiffs and Patrick individually; (3) to buy her share for himself individually; or (4) to sell her share to a third party. For various reasons, he rejected all of the options except (3), viz., purchase for himself individually. He assigned as reasons for the rejection of the others the following: as to (1): the trust did not have funds available; as to (2): the plaintiffs and Patrick did not have funds available; as to (4): there was no 60-acre tract within the 240-acre corpus which could easily be deeded out to a third party.

In order to finance the purchase for himself, he sought a loan from the Federal Land Bank. His testimony was that he intended to mortgage only his share and that of his wife Gladys, i.e., two-thirds, but that the Bank insisted on a mortgage of the entire corpus. The loan was consummated in 1967; defendant signed the note and mortgage in his individual capacity as well as trustee. Rose then conveyed all of her undivided interest in the 240 acres to defendant individually.

No evidence was introduced to show that a similar financing arrangement would not have been possible for purchase of Rose’s share for the trust itself.

In 1979 defendant wrote to the plaintiffs and indicated that he and Gladys intended to take their share out of the trust. The settlor had made two separate conveyances into the trust, one of 160 acres, and a second of 80 acres. In his correspondence defendant laid claim to the 160 acres and stated that plaintiffs and Patrick were free to do what they desired with the 80 acres. Plaintiffs thereupon consulted an attorney and the upshot was the filing of the instant lawsuit.

The amended complaint was in two counts: count I sought the imposition of a trust on Rose’s one-quarter share for the benefit of all parties in interest; count II sought partition. Count II was eventually dismissed. The trial court allowed the relief sought in count. I, decreeing that all beneficiaries share in Rose’s one-quarter and directing that from and after October 13, 1981, all income from the trust be distributed in the proportions set forth in the order.

On appeal defendant raises two issues: (1) that he did not breach his fiduciary duties in mortgaging the trust corpus, and (2) that the imposition of a constructive trust was an improper remedy.

As to the question of breach, defendant makes two arguments: first, that it was error for the trial court to exclude from evidence certain letters written by the settlor prior to the execution of the trust instrument which indicated that he intended the 160 acres to go to Paul and Carlos and their wives and the 80 acres to the plaintiffs and Patrick; second, that there is a latent ambiguity in the mortgage. We find merit in neither argument.

Even if we assume that the settlor’s general intent was as argued, there is nothing to indicate that he would permit the mortgaging of the property of the other beneficiaries to carry it out. Thus the letters purporting to indicate intent were irrelevant and properly rejected by the trial court. The mortgage clearly and unambiguously conveys the entire 240 acre tract and is signed by defendant both as trastee and as individual. A witness from the mortgagee testified that if foreclosure had become necessary, the entire 240 acres would have been the subject thereof, not just defendant’s and his wife’s two-thirds interest. No ambiguity exists.

A trustee’s primary obligation is that of loyalty to his beneficiary. No better summary has been set forth than that of Justice Cardozo in Meinhard v. Salmon (1928), 249 N.Y. 458, 464,164 N.E. 545, 546:

“Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. [Citation.] Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

Illinois follows the almost universal rule that a trustee may not purchase trust property from himself nor at his own sale. He may purchase for himself trust property where he does not have any control over the sale. (Victor v. Hillebrecht (1950), 405 Ill. 264, 90 N.E.2d 751.) However, under those circumstances it is his duty to communicate fully all the facts to the beneficiary in connection with the transaction. Restatement (Second) of Trusts sec. 170 (1959).

Plaintiff Jane Thomas testified that defendant sent to her and to Jean Britton at about the time of the mortgage transaction forms to sign which authorized defendant to retain the assets of all of them until the youngest had reached age 21. At that time Patrick was 15. She further testified that she knew she had an interest in a farm but knew nothing of the trust instrument which provided that each beneficiary could obtain his share at age 21. The plausible inference is that defendant was attempting to, and did, put the plaintiffs and Patrick in irons until the loan could be consummated. This is scarcely the full disclosure which the law demands of a trustee under those conditions.

Nor does the Federal Land Bank cover itself with glory in this case. If a lender knowingly accepts trust property as security for a personal obligation of a trustee, the lender is bound to know that the encumbrance is in breach of trust and beyond the trustee’s authority. Union Mutual Life Insurance Co. v. Spaids (1881), 99 Ill. 249.

It is our judgment that defendant was guilty of a clear breach of fiduciary duty. Nevertheless, he argues that a constructive trust was not the proper remedy and that in imposing it, the trial court with the benefit of hindsight was overruling his decision made in 1967. We disagree. As has already been pointed out, if the bank were willing to lend enough for defendant to purchase 60 acres out of 240 by taking an encumbrance on the whole, it follows that it would also be willing to take the same security on a purchase by the trust itself. Defendant’s failure to disclose fully to the beneficiaries all of the material facts vitiates any claim that purchase by him in his individual capacity was the proper procedure. Defendant’s argument that he should simply be permitted to remove the mortgage is self-serving in the extreme. He paid Rose $30,000 for 60 acres, or $500 per acre; the evidence was that the land is now worth about $2,500 per acre; defendant, through his misconduct, would obtain a windfall of $120,000.

In our opinion defendant has received more equity than he deserves. When a constructive trust is imposed, ordinarily the complainant is required to reimburse the defalcating trustee for the purchase price and expenditures he has made and to recover any profits made in the meanwhile. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841; G. Bogert, Trusts & Trustees sec. 472 (2d ed. 1978).) It would therefore follow that in the case at bar the plaintiffs would be entitled to an accounting from 1967, the date of the purchase from Rose, to the date of the imposition of the constructive trust. We believe that such relief would have been eminently proper, but it was not requested in the trial court and in this court plaintiffs ask only that the order of the trial court be affirmed.

In argument to the trial court, it was stated:

“THE COURT: I’m sorry, I am not sure what your damages are. He has had the benefit-
MR. SLATER [Plaintiffs’ counsel]: He has had the benefit of the income.
THE COURT: What would you do with reference to that?
MR. SLATER: I haven’t alleged an amount that I require. I think we would stand willing now just to have him put them back to the percentage they should have and not worry about how much money he has paid out. I am sure we would have a lot of money coming, but we are willing to waive that under the circumstances.”

The order of the circuit court of McLean County is therefore affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


text:
    MADONNA YORK, Plaintiff-Appellant, v. MODINE MANUFACTURING CO. et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0190
    Opinion filed November 8, 1982.
    Mike McElvain, of Bloomington, for appellant.
    Costigan & Wollrab, of Bloomington, for appellee Modine Manufacturing

      Ralph Schroeder, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee R.R.S., Inc.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff appeals an order of the circuit court of McLean County which dismissed her complaint against the defendants pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). The theory of the complaint was common law negligence against her employer and the security service hired by the employer.

As against her employer, Modine Manufacturing Company (Mo-dine), plaintiff alleged that on November 7, 1979, and for a period of time previous thereto, she had been an employee of Modine; that Mo-dine had contracted with R.R.S., Inc. (R.R.S.), to provide security, control and protection services at Modine’s plant; that on the date in question R.R.S. permitted Dennis York, a nonemployee, to enter a secured area of the plant and remain there for 3V2 hours; that plaintiff’s shift' ended at about 12:05 a.m. on November 8, 1979, and at that time Dennis York shot plaintiff with a gun while in the secured area; and that prior to the incident plaintiff had advised Modine that Dennis York had threatened her safety, the threats were genuine, and that she wanted no contact with him while at her employment. Similar facts were alleged against R.R.S. For the purposes of the section 45 motion, these allegations must be taken as true.

The allegations of negligence against Modine are:

“MODINE MANUFACTURING COMPANY, undertook to provide a security service for the protection of its employees and failed to exercise reasonable care in doing so, in that it;
a) Failed to relay information and knowledge it had as [to] physical threats to the Plaintiff’s safety to the guard service it had contracted.
b) Failed to inform the Plaintiff that she could not rely upon the guard service provided with the knowledge that her physical safety was in danger.
c) Failed to contract for sufficient guard and security services that would prevent the entry of unauthorized individuals into the secured area, thereby increasing the risk of harm of the Plaintiff from attack.”

The allegations of negligence against R.R.S. are:

“The Defendant, R.R.S. Inc., failed to exercise reasonable care in rendering of guard security and control services necessary for that protection of the Plaintiff, in that they: a) Failed to deny admission to the secured area to Dennis York.
b) Failed to discover that Dennis York was carrying a deadly weapon.
c) Failed to keep track of the location of Dennis York while he was within the secured area.
d) Permitted Dennis York to remain in the secured area for upwards of 3V2 hours, without determining his whereabouts and reasons for staying.
e) Failed to make security evaluations and advise MODINE MANUFACTURING COMPANY of the increased risk to its employees that its inadequate guard service created.
f) Failed to advise the Plaintiff and other Modine employees that they could not rely upon their service for protection.”

It is somewhat difficult to determine precisely what plaintiff’s theory is. In her brief she states that the complaint against Modine is not based on any duty to protect her from the criminal acts of a third party. Rather, she maintains that Modine’s duty arose out of “its negligent performance of a voluntary undertaking. Modine undertook the hiring of a security firm to provide guard services for its plant.” In support of this contention she cites three recent supreme court decisions involving guard services and the Chicago Housing Authority. Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; and Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038.

We do not find these cases particularly helpful. They each involved the liability of one who undertakes to provide protection for a tenant or licensee. However, by plaintiff’s citation to them we are led to the conclusion that the instant case is one of the group generally designated as “premises liability” cases.

Illinois remains a “status” jurisdiction; that is, the degree of care owed by a landowner to those on his premises is determined by the status of the latter. (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 361 N.E.2d 282.) The rule has been much criticized. (See Justice Dooley’s dissent in Washington; Appel, Premises Liability, 67 Ill. B.J. 96 (1978).) However, it remains the law in this State.

Plaintiff’s complaint alleges that she was an employee and for purposes of the litigation this must fix her status. It may therefore be well questioned whether section 5 of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5) is not a complete bar to the action. The rationale of the premises liability doctrine is to afford some redress to persons who would not otherwise possess it. Employees enjoy the benefits of the Workers’ Compensation Act, as well as the Federal Employees’ Liability Act under appropriate circumstances. Any extension of an employer’s duty to an employee beyond the ambit of these statutes should be approached with great caution.

Apart from the question of plaintiff’s status, we find no factual allegations in the complaint against Modine which would raise some duty on its part toward plaintiff. The supreme court has iterated and reiterated in Pippin, Cross, and Phillips that there is no common law duty on a landowner to protect tenants, invitees or licensees from criminal acts. Rather, in each case it found potential negligence in the landowner’s handling of security services. In Pippin, it was negligent hiring; in Cross it was inadequate protection by limiting hours; in Phillips it was inadequate securing of certain areas.

Plaintiff makes the broad conclusory allegation that Modine employed R.R.S. for the protection of employees, but there are no factual allegations to support this. In Pippin and in Cross the contracts with the security companies provided specifically for the protection of both property and persons; in Phillips the landowner itself undertook to seal off certain areas to keep the premises safe for the tenants. Even under the most liberal reading of the allegations of negligence against Modine we are not able to perceive that R.R.S. was employed to protect persons, and even if it were, that Modine was negligent in the hiring, that it restricted R.R.S.’s activities in such a way as to endanger plaintiff, or that Modine itself did anything which would increase plaintiff’s danger. In short, the complaint states no cause of action against Modine.

The allegations against R.R.S. suffer from the same malady: there is no allegation, and a liberal reading can divine none, that it was hired to protect persons. In Pippin the supreme court had no difficulty in finding a cause of action stated against the security service pursuant to section 324A(c) of the Restatement (Second) of Torts (1965); just the opposite was found under the same section in Cross; but in both cases the specific provision of the contract of hire was for persons and property.

The order of the circuit court of McLean County dismissing the complaint was correct and it is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    SILBER MIXER, d/b/a Mixer Lumber Company, Plaintiff-Appellant, v. C. E. BILLINGSLEY et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0159
    Opinion filed November 8, 1982.
    Edward B. Tucker, of Tucker & Hollaban, of Mt. Sterling, for appellant.
    Robert A. Jones, of Rushville, for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Plaintiff appeals from the trial court’s entry of judgment in favor of defendant in plaintiff’s action to foreclose a mechanics’ lien.

Ebbert and Billingsley entered into an oral contract for the construction of a barn on Ebbert’s property. Ebbert agreed to make a down payment of $3,000 and to pay the balance due under the terms of the contract upon the successful completion of the work. Plaintiff supplied lumber and other materials to Billingsley for use in the construction of the barn.

Billingsley failed to pay plaintiff for the materials and plaintiff brought an action to foreclose a mechanics’ lien on Ebbert’s property.

Billingsley testified that the contract price for the construction of the barn was approximately $6,000. He purchased the materials used in the job almost exclusively from plaintiff’s lumberyard, and he identified several invoices and worksheets relating to the Ebbert job.

Ebbert testified that he had paid Billingsley in full for labor and materials expended in the construction of Ebbert’s barn. Billingsley began work on June 14, 1976. Plaintiff made two deliveries of material to Ebbert’s property, one on June 14, and the second delivery on June 16.

Timothy Lung testified that he was employed as sales manager at Mixer Lumber from 1973 to 1980. He identified several invoices showing sales of material to Billingsley for use in the construction of Ebbert’s barn. Lung indicated that he wrote a sales ticket involving the Ebbert-Billingsley project on June 25, 1976. Lung admitted on cross-examination, however, that he did not know if the material sold to Billingsley on that date was ever delivered to the Ebbert farm.

Ebbert returned to the stand and stated that he was present on June 14 and 16, when both deliveries were made. He identified a check dated June 14, 1976, drawn on his account and payable to the order of C. E. Billingsley, that constituted the first payment on the contract. The work was completed on June 24, 1976. Ebbert identified a check dated June 24, 1976, which he delivered to Billingsley in full payment of the remaining amount due under the contract.

The trial court found that the contract between Bilingsley and Ebbert was completed on June 24, 1976. Plaintiff failed to show that a contract existed between Billingsley and Ebbert on June 25, 1976, the date on which materials were allegedly furnished to Billingsley. The weight of the evidence indicated that the contract between Mixer Lumber and Billingsley was completed on June 16,1976.

The trial court held that, as a matter of law, the “contract” referred to in section 9 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 9) refers herein to the contract between the contractor and the subcontractor and that the plaintiff subcontractor completed its contract with Billingsley, the contractor, on June 16, 1976. Since the complaint to enforce the lien was filed on June 22, 1978, more than two years after the date of the completion of the BillingsleyMixer contract, the suit was barred by the limitation period contained in section 9.

Plaintiff raises two issues on appeal: (1) whether the trial court erred in finding plaintiff’s mechanics’ lien was barred by the statute of limitations, and (2) whether the trial court erred in denying plaintiff’s motion for post-trial relief.

Section 9 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 9) provides:

“If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien ***. *** Such suit shall be commenced or counterclaim filed within two years after the completion of the contract, or completion of the extra or additional work or furnishing of extra or additional material thereunder.”

Rights created by the Mechanics’ Lien Act are in derogation of the common law and are to be strictly construed. (M. L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677, 393 N.E.2d 663; Muehlfelt v. Vlcek (1969), 112 Ill. App. 2d 190, 250 N.E.2d 14.) Strict compliance with the provisions of the Act upon which the right to a lien is based is necessary. (Malkov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill. App. 3d 543, 273 N.E.2d 654; Suddarth v. Rosen (1967), 81 Ill. App. 2d 136, 224 N.E.2d 602.) Compliance with the two-year limitation period set forth in section 9 is a condition precedent to the relief available under the Act. Failure to file suit within the two-year period destroys the right of a party to a lien. Rochelle Building Co. v. Oak Park Trust & Savings Bank (1970), 121 Ill. App. 2d 274, 257 N.E.2d 542.

Rochelle Building Co. supports defendant’s contention that the two-year limitation period contained in section 9 begins to run upon the date of the completion of the contract between the contractor and the subcontractor. Rochelle Building Co. involved an action brought to foreclose a mechanics’ lien. DiVito was a subcontractor involved in the construction of an apartment building. DiVito’s work was completed in March 1965, but he was not paid. In December 1965, another subcontractor who had not been paid brought an action to foreclose his mechanics’ lien. DiVito was named as a defendant in that action. In April 1967, DiVito filed his answer and filed a counterclaim to foreclose his mechanics’ lien. The trial court dismissed DiVito’s counterclaim as untimely under section 9 of the Mechanics’ Lien Act (Ill. Rev. Stat. 1965, ch. 82, par. 9).

The appellate court affirmed the judgment of the trial court, holding that DiVito’s failure to file his counterclaim within two years after the completion of his contract to furnish labor and materials barred the assertion of his right to a mechanics’ lien. The court stated:

“In the present case DiVito also failed to take proper steps to assert his rights within the statutory period. He failed to file his own suit or an answer or counterclaim in Rochelle’s suit until more than two years after completion of his contract. By inaction he lost the right to a mechanic’s lien, and his counterclaim was properly dismissed.” 121 Ill. App. 2d 274, 279, 257 N.E.2d 542, 544.

In the present case, the trial court found that plaintiff’s contract with Billingsley for the furnishing of materials to be used on the Ebbert job was completed on June 16, 1976. This finding is supported by the weight of the evidence. Plaintiff did not file his action to foreclose his mechanics’ lien until June 22, 1978, more than two years after the completion of his contract. Therefore, plaintiff’s action to enforce his lien was barred by section 9.

Plaintiff also contends that the trial court erred in denying his motion for post-trial relief. In his motion, plaintiff alleged that he had discovered new evidence that would have produced a different verdict at trial. The parties stipulated that, if witnesses were called, they would testify that Huey Lumber Company, located in Arenzville, sold a door of the type used in Ebbert’s bam on June 30, 1976, and that this door was the only one of its type sold during that period. The trial court denied the motion, holding that plaintiff had failed to show that the evidence could not have been discovered before trial through the use of reasonable diligence and that the evidence offered would not have changed the verdict in the case.

The trial court correctly denied plaintiff’s motion for post-trial relief. Requests for a new trial on the basis of newly discovered evidence are not favored. (28 Ill. L. & Prac. New Trial sec. 41 (1957).) The evidence must be of a nature such that the evidence would probably change the outcome of a new trial. (Miller v. Knight (1980), 81 Ill. App. 3d 292, 401 N.E.2d 314; Halka v. Zupan (1979), 68 Ill. App. 3d 616, 386 N.E.2d 439.) Also, the evidence must not have been discoverable through the exercise of reasonable diligence before trial. (Kaster v. Wildermuth (1969), 108 Ill. App. 2d 288, 247 N.E.2d 431.) The evidence in question met neither of these requirements.

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

Affirmed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE MILLS

text:
    THE CITY OF CHAMPAIGN, Plaintiff-Appellee, v. ROBERT I. AULER, Defendant-Appellant.
    Fourth District
    No. 4—82—0215
    Opinion filed November 17, 1982.
    Robert I. Auler, of Auler Law Offices, of Urbana, for appellant.
    Frederick Stavins, City Attorney, of Champaign (Kathryn L. Samuelson, Assistant City Attorney, and Terrence J. Anastas, law student, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

A Staffordshire terrier became entangled in a “leash law.”

The question: Is the element of knowledge or scienter required of the dog’s owner to find him in violation of this ordinance?

The answer: Yes.

We reverse.

Defendant Auler was found guilty of violating a municipal ordinance of the city of Champaign which prohibits dogs from running at large and was fined $10. He appeals from the judgment of the trial court.

Auler was charged with violating sections 6 — 6 and 6 — 19 of the Municipal Code of Champaign (1975), as amended. Section 6 — 6 provides:

“No person owning any dog *** shall suffer or permit such dog to disturb the peace and quiet of the neighborhood by barking *** or by running through or across public property or private property other than that of the owner.”

Section 6 — 19 provides:

“(A) No owner of any dog shall permit such animal to run at large, or to be on any public place or private property other than that of the owner without being securely restrained by a leash or other means.”

Eugene Jacobs testified on behalf of the city. On April 29, 1981, at approximately 6:30 p.m., Jacobs was walking his pair of greyhounds on the south side of Church Street just west of Prospect Avenue in Champaign. Suddenly, a Staffordshire terrier bounded across the street and attacked Jacobs’ dogs. Jacobs identified the terrier as belonging to the defendant. The terrier was not on a leash or otherwise restrained.

Auler took the stand and admitted that he owns a Staffordshire terrier. On the evening of April 29, 1981, he was in Indianapolis, Indiana, with his wife. The babysitter left in charge of the defendant’s children was told by defendant that she should not permit the dog to leave defendant’s residence. Auler stated that he had no personal knowledge of the injuries to Mr. Jacobs’ dogs and that he had taken steps to prevent his dog from running free. In a 10-year period the dog had crossed the line between defendant’s driveway and the sidewalk only once.

In rebuttal, Jacobs testified that he had seen defendant’s dog left unattended in the defendant’s yard on several occasions.

The trial court found the defendant’s dog was running at large during the evening of April 29, 1981. The court construed the ordinances as malum prohibitum offenses and held that the city was not' required to prove defendant’s mental state as an element of its casein-chief.

Defendant contends that the trial court erred in construing sections 6 — 6 and 6 — 19 of the Municipal Code of Champaign (1975), as amended, as malum prohibitum offenses. He argues that the language found in the ordinance, especially the phrase “suffer or permit,” indicates that the drafters of the ordinance intended that a violation would exist only where the dog owner knew that his dog was running at large or was negligent in failing to take measures to keep his dog from running at large. The city contends that the trial court’s construction of the ordinance was correct and that public policy supports the view that a defendant’s mental state is irrelevant in a case of this nature.

Similar questions were presented to our supreme court in a series of Civil War era cases. In Case v. Hall (1859), 21 Ill. 632, the trial court dismissed the third plea of a complaint, which alleged that defendant’s hogs were running at large in violation of an ordinance prohibiting such conduct. The supreme court affirmed the dismissal of the plea because the plea did not contain an allegation that the hogs were running at large at their owner’s sufferance. The court went on to state:

“This knowledge and sufferance is the gist [original emphasis] of the offense. The penalty is not to be enforced because the hogs were running at large, but became the owner suffered them to run at large." (Emphasis added.) 21 Ill. 632, 636.

The court was confronted with yet another ordinance prohibiting hogs from running at large in Town of Collinsville v. Scanland (1871), 58 Ill. 221. The ordinance in question read:

“That any person being the owner of *** any hog or hogs, shoat, or pig, who shall suffer the same to run at large *** shall be subject to a penalty of not less than five dollars nor more than fifteen dollars.” (58 Ill. 221, 222.)

The defendant was found not guilty and the supreme court affirmed the verdict. The court held that- the ordinance required that the owner of the hogs had known that the hogs were running at large or had been negligent in failing to keep the hogs from running at large. The court stated:

“But to subject the owner to a penalty therefor, he must himself have participated in the act, by suffering it to be done, which requires that he should have knowingly permitted his hogs to run at large within the town, or have been guilty of such negligent conduct in enabling them to do so, as would have been equivalent thereto.” (58 Ill. 221, 225.)

Similarly, in Kinder v. Gillespie (1872), 63 Ill. 88, the court held that a horse owner was guilty of violating a “running at large” ordinance only if there was some guilty intention or wilful neglect on the part of the horse owner.

These early cases were relied on by the Second District in an opinion construing a liquor control ordinance containing similar language. In Hansmar, Inc. v. Illinois Liquor Control Com. (1979), 78 Ill. App. 3d 690, 397 N.E.2d 241, defendant was found guilty of various liquor control ordinance violations and his liquor license was suspended. One of the allegations contained in the complaint alleged that the defendant did “suffer or permit” a minor to remain in licensed premises in violation of the ordinance.

On appeal, the Second District held that the phrase “suffer or permit” contained in the ordinance required that the plaintiff prove either authorization, knowledge or recklessness in failing to know on the part of the defendant liquor licensee. See also Fitzgerald v. Illinois Liquor Control Com. (1980), 82 Ill. App. 3d 1018, 403 N.E.2d 696.

The city contends that sections 6 — 6 and 6 — 19 are malum prohibitum, relying on Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 377 N.E.2d 1208. In Cannon, an ordinance prohibited any animal owner from causing or permitting that animal to create a nuisance by running uncontrolled. Defendant was convicted of violating the ordinance and appealed his conviction, contending that plaintiff failed to prove he permitted his dogs to run uncontrolled because it failed to show that he had knowledge of the violation.

The court affirmed defendant’s conviction. The court compared the language of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1981, ch. HV-k, par. 1001 et seq.) to the language of the ordinance and compared the purposes behind each measure. Seeing what it considered to be an obvious analogy, the First District relied on several cases involving violations of provisions of the Environmental Protection Act to hold that lack of knowledge or intent is not a defense to a charge of allowing or permitting a given result.

We do not find that Cannon controls the result in this case. Cannon does not cite or distinguish the authorities cited by defendant in the case at bar. Therefore, we do not choose to follow the holding in Cannon.

The Champaign ordinance declares that anyone who shall “suffer or permit” their dogs to run at large is in violation of the ordinance. The phrase “suffer or permit” has been construed by the highest court of this State as requiring proof of knowledge or negligent conduct on the part of the animal’s owner. (Case; Town of Collinsville; Kinder.) The supreme court has not chosen to overrule or modify its holdings in these cases, and we find that Case and its progeny control the result in the case at bar.

Ergo, we hold that in a prosecution under sections 6 — 6 and 6 — 19 of the Municipal Code of Champaign (1975), as amended, the city must prove that the dog owner either intentionally permitted his dog to run at large or was negligent in failing to take steps to prevent such conduct.

The trial court erred in its construction of the ordinance. The city failed to show that defendant’s conduct was either intentional or negligent. Consequently, defendant’s conviction and fine for violating sections 6 — 6 and 6 — 19 is reversed.

Reversed.

LONDRIGAN and LEWIS, JJ., concur.


text:
    JOHN BADER LUMBER COMPANY, Plaintiff-Appellee, v. EMPLOYERS INSURANCE OF WAUSAU, Defendant-Appellant.
    First District (1st Division)
    No. 81—2848
    Opinion filed November 1, 1982.
    Jack L. Watson, of Schaffenegger, Watson and Peterson, Ltd., of Chicago, for appellant.

      Lawrence G. Fretzin, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

In a declaratory judgment action, the trial court granted plaintiff Bader Lumber Company’s motion for summary judgment and entered an order requiring defendant Employers Insurance of Wausau to defend an action filed against Bader by a person injured on property owned by Bader. Defendant appeals and contends the trial court erred in entering summary judgment because a question of fact was presented.

We affirm.

Plaintiff John Bader Lumber Company (Bader) owned property located at 2020 North Clybourn Avenue in Chicago. The property was leased to American Can Company, and pursuant to the lease, American Can was to provide liability coverage for Bader with respect to the property. American Can obtained such insurance from defendant Employers Insurance of Wausau (Employers).

On February 14, 1979, the building on the leased premises was severely damaged by fire. On April 15, 1979, Robert R. Paul was injured on the premises when a wall of the building collapsed. Paul filed an action against Bader, which tendered the defense to Employers. Employers refused to defend the action.

Consequently, Bader filed a declaratory judgment action against Employers. After a hearing, the trial court granted Bader’s motion for summary judgment and ordered Employers to defend that action against Bader. The trial court found that the insurance policy was in full force and effect on the date of the Paul accident and based this finding primarily on Employers’ failure to notify Bader of cancellation of the policy as required by the certificate of insurance.

Employers argues on appeal that the trial court erred in granting Bader’s motion for summary judgment. Employers maintains that evidence presented at the hearing indicated that Bader and American Can mutually agreed to terminate the lease between the time of the fire and the Paul accident, that under the terms of the policy issued to American Can and the certificate of insurance issued to Bader, coverage ceased when American Can was no longer a tenant, and that the question of termination of the lease was a question of fact precluding the entry of summary judgment. Employers relies on provisions of the master policy issued to American Can and the certificate of insurance issued to Bader to support its theory that coverage was to cease upon termination of the lease. In defining insureds, the master policy provided:

“As respects lessors of premises the inclusion of any such person, organization or estate applies only with respect to the ownership, maintenance or use of that part of any premises leased to the named insured as designated in a certificate of insurance by the company and operations necessary or incidental thereto.” (Emphasis added.)

The certificate of insurance provided:

“Including the interests of John Bader Lumber Company as an additional assured as respects the leased premises located at 2020 North Clybourn Avenue, Chicago, Illinois.” (Emphasis added.)

Employers argues that terms “leased premises” and “premises leased” clearly indicate that coverage under the policy was effective only while American Can leased the premises and automatically ceased upon termination of the lease.

We find Employers’ argument unpersuasive. The certificate of insurance issued to Bader also provided that in the event of cancellation, 10 days’ written notice of cancellation was to be provided to the insured. Rather than specifying an expiration date and occurrences which would terminate coverage, the certificate merely stated that coverage was effective until cancelled. The certificate was a one-page document which did little more than inform Bader that insurance was being provided by American Can.

Employers’ interpretation of the policy and certificate conflicts with the unequivocal expiration date and cancellation provision in the certificate. In cases of ambiguities, inconsistencies, or conflicts, insurance agreements should be construed in favor of the insured and against the insurer who drafted the instrument. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203; Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921; National Discount Shoes, Inc. v. Royal Globe Insurance Co. (1981), 99 Ill. App. 3d 54, 424 N.E.2d 1166.) We therefore find that notice to Bader was required by the terms of the certificate. Thus the policy was effective on the date of the Paul accident and the trial court did not err in ordering Employers to defend Paul’s action against Bader.

Additionally, Employers cannot resort to provisions of the master policy issued to American Can to support its contention. Bader was never issued a copy of this policy. Thus Bader should not be held to have knowledge of significant exclusions or provisions and such provisions should not be considered. (Van Vactor v. Blue Cross Association (1977), 50 Ill. App. 3d 709, 365 N.E.2d 638, citing Lecker v. General American Insurance Co. (1974), 55 Haw. 624, 525 P.2d 1114.) Bader was entitled to rely on the certificate of insurance issued by Employers. Significant conditions affecting coverage and its termination should have been made known to Bader.

Finally, we note that construction of the policies and contracts involved in this case was a question of law properly decided on a motion for summary judgment. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) The issue of whether notice was required could be decided strictly from the documents and no questions of fact were presented.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.