author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND ZIEHM III, Defendant-Appellant.
    Second District
    No. 82—713
    Opinion filed December 29, 1983.

      John S. Biallas, of St. Charles, and Randy Johnson, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Following a jury trial, defendant, Roland Ziehm III, was found guilty of the delivery of 30 grams or more of a controlled substance (Ill. Rev. Stat. 1981, ch. SGVa, par. 1401(a)(2)) and was sentenced to 10 years’ imprisonment. Defendant contends on appeal that (1) he was not proved guilty beyond a reasonable doubt due to defects in the chain of possession, (2) he was not proved guilty beyond a reasonable doubt because the State failed to prove defendant had knowledge of the amount delivered, and (3) the trial court abused its discretion by allowing testimony of a witness whose name was not previously disclosed by the State in its list of witnesses.

Taylor Strickland, a narcotics agent with the Kane County Task Force, testified that on October 6, 1981, he was involved in an ongoing drug investigation of the defendant. He and an informant, Billy West, went to a store located in Elgin to purchase a quantity of cocaine from the defendant. Agent Strickland had earlier purchased cocaine from the defendant on September 29 and September 30, 1981, after the informant had introduced Strickland to the defendant. West waited at another location while Strickland remained in his car waiting for the defendant. A short time later, the defendant arrived and got in the back seat of Strickland’s car. Strickland asked the defendant if he had the coke, and defendant replied that he did. Defendant then gave Agent Strickland a plastic bag of white powder. Strickland asked him if it was good coke, and defendant stated that he thought so. Strickland then gave the arrest signal, and defendant was subsequently arrested by several.other agents.

Agent Strickland took the bag into custody and transported it back to police headquarters. A field test conducted on the contents showed a negative result as to the presence of cocaine. He then sealed the bag with a clear plastic tape and marked it with a case number, exhibit number, his initials, and the date. Strickland placed the bag in an evidence envelope, sealed it with clear plastic tape, and wrote identifying information and his signature on the outside of the envelope. He then locked the evidence envelope, marked exhibit No. 3, along with the evidence envelopes from the earlier drug sales (Exhibits No. 1 and No. 2), in a police evidence locker. On October 13, 1981, he transported exhibits Nos. 1, 2 and 3 to the Maywood Crime Lab.

Wayne Fieroh, an agent of the Illinois Department of Law Enforcement, substantially corroborated Agent Strickland’s testimony. He testified he was involved in the surveillance of the September 29, September 30 and October 6, 1981, drug transactions between Strickland and the defendant. On the two prior occasions, he testified he witnessed Agent Strickland conduct a field test on the contents. He and Strickland marked the plastic bag with the case number, exhibit number, their initials and the date, and then placed the bag in another plastic bag, again marked it with the case number, exhibit number, their initials and the date. They finally placed the bag in an evidence envelope, sealed it and marked their initials on the outside of the envelope as having witnessed Strickland’s sealing of the envelope.

The parties stipulated that if Rick Paulas were called he would state that he received three sealed envelopes marked People’s exhibits Nos. 1, 2, and 3 and the case number 81 C 3892 from Agent Strickland on October 13, 1981. After receiving these envelopes, Paulas placed his initials, the date, and the agency case number on all three envelopes, and then placed them in the locked vault of the Illinois Department of Law Enforcement Officers in Maywood, Illinois.

On October 21, 1981, Deborah Juricic, chemist for the Illinois Department of Law Enforcement, conducted chemical tests on the substances put within the three evidence envelopes. She testified that she received it from the lab vault on that day and it was sealed when she received it. Before Juricic opened each envelope, she wrote certain identifying information and her initials on each one. Juricic opened the envelope and removed a sealed plastic bag which she marked with the lab case number, the exhibit number, her initials and the date. She opened the bag and took out an inner plastic bag and observed a white powdery substance. In each case she weighed the exhibit: exhibit No. 1 weighed 6.9 grams, exhibit No. 2 weighed 11.2 grams, and exhibit No. 3 weighed 33.4 grams. She conducted various tests on these substances, maintaining sole possession of the evidence during her testing and keeping each exhibit separate. She completed her testing on exhibits Nos. 1 and 2 on October 21, 1981. Based on the tests she conducted on exhibits Nos. 1 and 2, her opinion was that the substance tested was 1-cocaine.

When she proceeded to test exhibit No. 3 On October 21, she observed an empty plastic bag and one sealed plastic bag with white powder inside. She did not run any tests on the empty bag. She was able to complete most of her testing on October 21, with the exception of one test performed by Carl Larson on October 23, 1981, which was necessary in order to determine whether the cocaine present was a derivative of the coca leaf or 1-cocaine, a controlled substance. Although she was able to conclude based on the tests she ran that the substance contained cocaine, based on Larson’s test results and over the objection of the defense, she was allowed to give an opinion that the substance was a derivative of the coca leaf, a controlled substance.

Carl Larson, over defense counsel’s objection that he was not previously listed as a State’s witness, was allowed to testify with regard to the test he performed. He testified that he performed a test on a sealed vial he received from Juricic on October 23, 1981. He took the sample to the Joliet Crime Lab for a polarimeter test. The trial court had allowed the defense to interview Larson prior to his testimony during a court recess.

Defendant testified on his own behalf. He stated that on October 6, 1981, he delivered a plastic bag containing white powder to Taylor Strickland. Defendant stated that, through Billy West acting as a middle man, he sold cocaine to Strickland on two prior occasions. Defendant stated he purchased a bottle of mannitol, at West’s direction, weighing 14.17 grams and saw the contents placed into a baggie by Billy West. Defendant testified that he had planned to trick Strickland by selling him purely mannitol rather than cocaine. Upon his arrest, defendant stated to the arresting officers that there was no cocaine in the bag. Defendant admitted that he believed he was selling cocaine to Strickland on the September 29 and September 30 deals but denied knowing that the contents of the bag on October 6 contained anything other than pure mannitol, which is not a controlled substance.

Evidence of the two prior sales on.September 29 and September 30, 1981, was allowed by the trial court for the limited purpose of showing defendant’s knowledge or intent regarding the October 6 transaction.

The jury found the defendant guilty of delivery of a controlled substance containing 30 grams or more of cocaine. The court thereafter sentenced defendant to 10 years’ imprisonment. Defendant’s amended post-trial motion was denied, and this appeal followed.

Defendant initially contends that he was not proved guilty beyond a reasonable doubt because there were defects in the chain of custody. Specifically, defendant maintains that the presence of an additional plastic bag in the evidence envelope of exhibit No. 3 and a greater amount of a substance than originally placed there by the defendant indicates that a reasonable possibility of tampering exists and, as such, requires a reversal of defendant’s conviction.

While there must be an unbroken chain of possession between the article seized and the article analyzed for its admission into evidence {People v. Maurice (1964), 31 Ill. 2d 456, 458; People v. Tribett (1981), 98 Ill. App. 3d 663, 673), the foundation for the introduction of objects into evidence may be laid either through their identification by a witness or through establishment of a chain of custody. (People v. Greer (1963), 28 Ill. 2d 107, 113; People v. Tribett (1981), 98 Ill. App. 3d 663, 673.) In establishing a sufficient chain of possession, the State is not required to exclude all possibility of tampering. (People v. Marquis (1974), 24 Ill. App. 3d 653, 662.) In the absence of any tangible suggestion of tampering, alteration, or substitution, it is sufficient if the State can prove a reasonable probability that the article has not been changed in any important respect. People v. Valentin (1978), 66 Ill. App. 3d 488, 492.

The record here indicates a reasonable probability that the chain of custody was continuous and that tampering or alteration of the evidence was unlikely. The police observed sufficient protective measures to assure that the evidence obtained from defendant was the evidence admitted at trial. After receiving the bag containing white powder from defendant, the arresting officer, Strickland, placed this evidence in an evidence envelope that he initialed, sealed, and marked with certain identifying information, and placed in a locked safe, along with evidence envelopes marked in a similar manner from two prior drug deals with the defendant. On October 13, Rick Paulas received three sealed envelopes in this condition from Strickland. He in turn initialed them and marked them in the same way. Paulas then placed these envelopes in a laboratory vault. The chemist, Juricic, testified she received the evidence envelopes on October 21 in that same condition.

Defendant relies on People v. Woessner (1971), 132 Ill. App. 2d 58, as support for this contention. However, Woessner is distinguishable. Woessner involved a total breakdown in the State’s chain of possession. There the police testified that the contraband seized was kept unsealed for five days and that the officer did not initial, seal or secure the contraband in the police vault that was available.

Certain discrepancies concerning the identification of evidence have been found not sufficient to break the chain of custody as to exclude its admission into evidence. In People v. Valentin (1978), 66 Ill. App. 3d 488, the arresting officer testified that he received a blue balloon with a yellow strip containing heroin. It was inventoried by another officer as a blue balloon on the evidence envelope. The chemist who tested the substance stated she removed a green balloon containing the heroin. At trial, none of the officers could identify the green balloon or the tan powder as being the blue and yellow balloon received from defendant. Nonetheless, the court found an unbroken chain of possession was adequately established by the protective measures similar to those in the instant case. In People v. Scott (1972), 3 Ill. App. 3d 493, the arresting officer testified that he had placed his initials on a tinfoil packet containing a white powder. At trial, the State was unable to show the officer’s initials on the tinfoil, and the police chemist could not recall if there had been any writing on the tinfoil before she examined it. Similarly, the court found that there was an otherwise sufficient showing of continuous custody. See also People v. Madden (1978), 57 Ill. App. 3d 107 (addition of time stamp or physician’s name to lab sheet not sufficient to break link to suggest tampering).

While the evidence defendant presented raises the possibility of tampering, that evidence is not sufficient to exclude its admission into evidence but may affect the weight the jury will attribute to this evidence. The weight of the evidence or the credibility of witnesses are matters for the trier of fact to determine and will not be disturbed on appeal unless the evidence upon which the verdict is based is so unsatisfactory as to raise a reasonable doubt of the accused’s guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Kleba (1982), 110 Ill. App. 3d 345, 358.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because the State failed to prove that he had knowledge of the amount delivered.

There is no requirement that the State must prove that defendant had knowledge of the amount delivered in order to sustain a conviction for the manufacture or delivery of a controlled substance. Section 401 of the Controlled Substances Act (III. Rev. Stat. 1981, ch. 56%, par. 1401) provides in pertinent part that it is unlawful for any person to knowingly manufacture or deliver, or possess with the intent to manufacture or deliver, a controlled substance. Further, as pertinent to this case, the section also provides that any person who violates this act with respect to 30 grams or more of any substance containing cocaine is guilty of a Class X felony. (Ill. Rev. Stat. 1981, ch. 56%, par. 1401(aX2).) In order to sustain a conviction under the Act, so far as the element of knowledge is concerned, the State need only prove that a defendant knowingly delivered any amount of a controlled substance. People v. Cortez (1979), 77 Ill. App. 3d 448, 451.

People v. Kadlec (1974), 21 Ill. App. 3d 289, 296, the sole authority upon which defendant’s argument rests, does not support his position. In Kadlec the defendant was charged with knowingly delivering more than 200 grams of a substance containing amphetamine, and the court stated as follows:

“The crime with which we are here concerned is that of ‘[Ujnlawful delivery of a controlled substance.’ The crime is committed by the delivery of a controlled substance regardless of the amount thereof. The particular amount of the controlled substance relates only to the extent of the penalty which may properly be imposed.
When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment the delivery of 200 grams or more (as in this case) it becomes incumbent not only to prove delivery of 200 grams or more but the issue (unless waived) must be presented to the jury.” (21 Ill. App. 3d 289, 296.)

While the Kadlec court held that the State did have the burden of proving the amount delivered where the maximum penalty was sought, as in the present case, there is no suggestion whatsoever either in the above quotation or elsewhere in the Kadlec case that the State must prove that defendant had knowledge of the amount delivered.

The only requirement regarding knowledge is clearly set forth in the statute. “[I]t is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.” (Ill. Rev. Stat. 1981, ch. 56%, par. 1401(a).) It is not necessary that the State allege or prove that defendant had knowledge of the amount delivered.

Finally, defendant argues that the trial court abused its discretion in allowing a previously unlisted State witness to testify at trial.

The State, upon motion of the defense, is required as part of discovery procedure to provide a list of persons whom the State intends to call as witnesses in order to assure defense counsel adequate time to prepare. (87 Ill. 2d R. 412(a)(i).) While the State has a duty to disclose at the earliest opportunity, it is within the trial court’s discretion to permit a previously unlisted witness to testify at trial, and, absent a showing of surprise or prejudice to the defense, a reviewing court will not find an abuse of discretion. People v. Jordan (1967), 38 Ill. 2d 83, 93; People v. Banks (1981), 102 Ill. App. 3d 877, 881, cert, denied (1982), 459 U.S. 871, 74 L. Ed. 2d 132,103 S. Ct. 158.

Defense counsel was presented with an amended list of witnesses by the State on the morning set for trial. The State claimed it was not aware until the week prior to trial that one of the tests performed by the witness the State intended to call was performed by another chemist, Carl Larson. Larson had performed a test on the substance from the October 6 sale which determined whether the substance was organic or synthetic. Organic or 1-cocaine is a controlled substance. Synthetic cocaine is not a controlled substance. Larson testified that the results of his testing showed an organic compound. Larson made a verbal report of his findings to the State’s chemist, Juricic. Juricic had earlier subjected the substance to various tests and concluded at trial, based on her findings, that the substance she gave Larson to test was cocaine. Upon completion of Larson’s test, Juricic was then able to conclude that the substance tested was 1-cocaine, a controlled substance.

Defendant, relying on People v. Millan (1977), 47 Ill. App. 3d 296, claims that he was prejudiced by Larson’s testimony because, without adequate opportunity to prepare, the defense was not able to effectively cross-examine Larson and Juricic. In Millan the State first disclosed its intention to call defendant’s accomplice, who had earlier pleaded guilty, as a witness against him after trial had commenced. When the defendant in Millan learned of the State’s intention to call his accomplice, he moved for a continuance which prompted the State to withdraw the witness. However, after trial commenced, the State later called the witness in its case in chief over defense counsel’s objection. The defendant was allowed to interview him prior to his testimony. The Millan court ruled that there was no justification for the State to wait until trial when the witness had entered a guilty plea three weeks earlier. A “hurried interview” with the witness during trial was not a satisfactory substitute for prompt disclosure by the State. 47 Ill. App. 3d 296, 300.

Defense counsel here was aware that the State would present a witness regarding the results of a test upon the substance from the October 6 sale. The State was not aware of Larson’s test because his report to Juricie was verbal. Therefore, the State was unaware of the existence of Larson’s testimony until shortly prior to trial and could not have become aware of its existence in the exercise of due diligence. Unlike Millan, the State’s actions do not indicate a deliberate design by the State to withhold disclosing its intention to call Larson as a witness.

Moreover, even if the State failed to exercise due diligence, noncompliance with Rule 412 does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill. 2d 103, 120.) Larson’s testimony related only to the test he performed. His testimony was not critical in proving defendant’s guilt, as distinguished from Millan. His testimony enabled the witness Juricic to conclude that the substance from the October 6 sale was 1-cocaine, which testimony may otherwise have been excluded as hearsay.

Finally, defendant was given the opportunity to interview Larson before he testified. The defense sought no continuance to further prepare but proceeded with the trial. (People v. Jordan (1967), 38 Ill. 2d 83, 93; People v. Banks (1981), 102 Ill. App. 3d 877, 881, cert, denied (1982), 459 U.S. 871, 74 L. Ed. 2d 132, 103 S. Ct. 158; People v. Watson (1979), 76 Ill. App. 3d 931, 937.) Accordingly, there was no abuse of discretion by the trial court nor any prejudice to defendant by Larson’s testimony, first discovered just prior to trial, where defendant made no request for a continuance and was not otherwise forced to proceed without additional time.

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

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    FIRST SECURITY BANK OF GLENDALE HEIGHTS, Plaintiff-Appellant and Cross-Appellee, v. MADLYNE BAWOLL, Defendant-Appellee and Cross-Appellant—(William R. Bawoll et al., Defendants-Appellees).
    Second District
    No. 83—93
    Opinion filed December 27, 1983.

      Rolewidk and McKillip, of Wheaton, for appellant.
    Lloyd E. Dyer, Jr., of Wheaton, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, First Security Bank of Glendale Heights, appeals from that part of the trial court’s judgment which, after a bench trial, held for defendant, Madlyne Bawoll, and refused to set aside a conveyance of real property by defendant in trust for her children, despite plaintiff’s allegation that the conveyance defrauded it as a creditor of defendant. Defendant cross-appeals from that part of the judgment which found her liable upon two notes to plaintiff and awarded plaintiff $15,097.52 plus costs.

Plaintiff raises the single issue of whether defendant’s voluntary conveyance of her only asset into .a land trust for the benefit of her children for no consideration, regardless of intent, constitutes a fraud on her creditors and should be voided. On cross-appeal, defendant contends that the trial court’s judgment in the amount of $15,097.52 against her is against the manifest weight of the evidence in two respects: (1) the amount was erroneously calculated; (2) the trial court erred in finding that defendant was not under duress when she signed one of the two notes.

Plaintiff filed a complaint which alleged, inter alia, that defendant and her husband executed two notes on which they subsequently defaulted and that defendant then transferred real estate into a land trust for the benefit of her children which worked to defraud her creditors. Defendant, in her amended answer, neither admitted nor denied the indebtedness on the notes but raised the affirmative defense of duress as to the second of the two notes.

At trial, Deborah Sons, vice-president of plaintiff’s loan department, identified two notes that defendant and her husband, William Bawoll, had executed. The first was an installment note, executed in 1978 for the purchase of a motor home, for $8,500 with an interest rate of 10.73% which had not been paid according to schedule. The motor home was later sold for $4,000, which was applied to the amount outstanding. Sons testified that as of January 20, 1981, $8,031.33 plus accrued interest was due on that note. The second was a demand note, executed in March 1980 and due in May 1980, for $5,100 which had an unpaid balance of $4,966.21 as of January 1, 1981, with interest accruing at $2.72 per day. Sons stated that she had witnessed defendant sign her name on at least 10 occasions, and identified the signature on the two notes as that of defendant.

On cross-examination, Sons testified that although defendant signed the first note in her presence, she did not see defendant sign the second note. She admitted that the words “under duress” appeared beneath defendant’s signature on the second note. Referring to the bank’s records of the motor home account, Sons stated that the records did not reflect payments of $250 on March 15, 1980, and $200 on May 22,1980.

Defendant, testifying as an adverse witness for the plaintiff, denied that she had signed the first note. Plaintiff’s attorney read from defendant’s deposition, wherein defendant had admitted that the signature on the first note was hers. She acknowledged that she had given that answer at the deposition. She further testified that when she signed the second note in June 1980, her husband and Stanley Walton, a bank officer, were present. She said “I wrote ‘under duress’ because Mr. Walton threatened to put Bill into jail because he always signed my signature.” She testified that Walton said he could put her husband in jail for forgery. She complained that Walton had previously called her on the phone and had been “nasty” with her. She had wanted to talk to her attorney, but she testified that Walton told her he had already talked to her attorney and she had better sign the note. At the time she signed the second note, her husband had recently had a heart attack, she had been in the hospital, and she said she was very nervous. Defendant claimed to have transferred her real estate, a family residence, into a land trust for her two minor children after she found out that she had cancer and did not know that she owed the bank any money. She said that her children did not give her anything for the property and admitted that after the transfer she did not own anything.

Testifying on her own behalf, defendant stated that she had discussed transferring her property to her children with an attorney, Thomas O’Connor. Defendant said she told O’Connor that her husband was going out with someone else and she wanted to give her house to her children. As a result of that discussion, defendant’s husband transferred his interest in the house to her in 1975. In 1978 or 1979, she talked to another lawyer, Philip Locke, and voiced the same concerns that she had discussed with O’Connor. She said that she was trying to protect the interests of her son, who was a child from a previous marriage, and that Locke put the house in trust for the children in 1980.

Attorney Thomas F. O’Connor testified that defendant was concerned about protecting her first child, who was of another marriage. He advised her to have the house put in her name. Although they discussed putting the property into a land trust, he had explained that annual costs were involved and the matter was dropped. Defendant had wanted to put her son’s name also on the deed, but O’Connor advised against it because it would be impractical since the boy was still a minor.

Attorney Philip F. Locke testified that defendant consulted him in 1979 because she wanted to protect her home from her husband’s creditors. Locke said he suggested that the property be placed in a land trust. He completed the arrangements sometime in 1980. Defendant was the beneficiary as guardian on behalf of her two minor children. Locke said that defendant did not have any creditors that he knew of when the property was transferred into the land trust.

Defendant’s husband, William Bawoll, testified that while he did not think defendant signed the first note, she did sign the second note after she got out of the hospital in June 1980. He signed the note in March 1980, and while it was due in May 1980, it was not paid at that time. He said that Walton knew that he, defendant’s husband, had signed defendant’s name to the first note and that Walton pressured defendant to sign the second note. He said Walton told defendant that her husband had signed her name and that was fraud or forgery. He stated that he had made cash payments on the motor home note and identified copies of receipts for those payments.

On cross-examination, William Bawoll admitted sighing defendant’s name on the first note. Plaintiff’s attorney read from William Bawoll’s deposition, wherein Bawoll identified the signature on the first note as being that of defendant. Bawoll acknowledged that he gave that answer at the deposition.

Although plaintiff filed its complaint against both defendant and her husband, as well as the Du Page Bank and Trust Company, as trustee of the land trust, the trial court dismissed William Bawoll as a party because of the discharge of his debts in bankruptcy proceedings. The trial court refused to set aside the conveyance, finding that defendant’s health and marital problems provided sufficient justification for the transfer. Judgment on both notes was granted in favor of plaintiff, and defendant was found to owe $12,142.67 as principal and $2,954.85 as interest for a total of $15,097.52. While acknowledging that the testimony was contradictory, the trial court found that defendant signed the first note and that she merely did not like signing the second note and that “such duress was not sufficient to make it unlawful.”

Plaintiff’s primary contention on appeal is that the trial court erred in considering defendant’s intent when deciding whether the conveyance of her residence in trust for the benefit of her children was fraudulent. While Illinois statutory law operates to void conveyances “made with the intent to disturb, delay, hinder or defraud creditors ***” (Ill. Rev. Stat. 1979, ch. 59, par. 4), case law distinguishes between conveyances that are fraudulent in law and those fraudulent in fact. Fraud in law will be found where the conveyance is made for inadequate or no consideration. (Wilkey v. Wax (1967), 82 Ill. App. 2d 67, 70, 225 N.E.2d 813.) Fraud is presumed in these circumstances (Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 62, 383 N.E .2d 631), and intent is immaterial. (Birney v. Solomon (1932), 348 Ill. 410, 415, 181 N.E. 318; Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E.2d 641.) On the other hand, in fraud in fact cases, actual consideration has been given for the transfer and a specific intent to defraud must be proved. (Wilkey v. Wax (1967), 82 Ill. App. 2d 67, 70, 225 N.E.2d 813.) Here, defendant admitted that her children gave her nothing for the property thus calling for analysis under principles of fraud in law.

To prove fraud in law, (1) there must be a voluntary gift; (2) there must be then existing or contemplated indebtedness against the donor; and (3) it must appear the donor did not retain sufficient property to pay his indebtedness. (Mills v. Susanka (1946), 394 Ill. 439, 448, 68 N.E.2d 904.) The first requirement is satisfied here because where there is no consideration or grossly inadequate consideration, the transfer is deemed to be voluntary. (Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E .2d 641.) As for the second requirement, the trust agreement transferring the property is dated December 12, 1980. The first note was executed in 1978, and the second note was signed by defendant in June 1980. The trial court found defendant to be liable on these notes, and therefore she was indebted to plaintiff prior to the creation of the land trust. As for the third requirement, defendant admitted that after the transfer, she did not own anything. Thus, insufficient property remains to pay her indebtedness.

The presumption of fraud can only be overcome by showing that after the transfer, the debtor retained ample assets to cover the debts (Harting v. Jockers (1891), 136 Ill. 627, 635, 27 N.E. 188; Second National Bank v. Jones (1941), 309 Ill. App. 358, 366, 367, 33 N.E.2d 732), or that adequate consideration was given for the transfer (Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 62, 383 N.E. 2d 631), thus requiring that the case be analyzed under fraud-in-fact principles, where actual intent to defraud must be proved. (Till v. Till (1967), 87 Ill. App. 2d 358, 361, 231 N.E.2d 641.) Neither showing has been made here.

Instead, defendant attempts to shift the burden of proof by asserting that plaintiff must demonstrate that its rights as a creditor have been impaired. In this regard, defendant argues that plaintiff must show that the transferred property has value and thus impaired the rights of creditors.

Once the three elements to show fraud in law have been proved, unless rebutted, the presumption of fraud becomes conclusive. (Tcherepnin v. Franz (N.D. Ill. 1978), 457 F. Supp. 832, 840.) Here, the evidence is uncontradicted that after the transfer defendant did not own anything. Also, there is nothing in the record to warrant a conclusion that the residence does not have a value, and the burden to establish such an affirmative matter rests upon the donor.

However, defendant further argues that plaintiff cannot reach the property because it is subject to a $10,000 homestead exemption as provided under “An Act to exempt the homestead from forced sale ***” (Ill. Rev. Stat. 1979, ch. 52, par. 1), recodified as section 12 — 901 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 12— 901). Defendant maintains that plaintiff did not prove that “creditors are hindered by the transfer of the property unless it also shows that exclusive of prior mortgage claims and the homestead interest the property has value.” Defendant did not raise this issue at the trial level, and thus the record does not indicate the value of the property or any mortgage thereon. Generally, the homestead exemption may not be raised for the first time on review. (Gravelot v. Skender (1956), 9 Ill. 2d 15, 21, 135 N.E.2d 756.) Furthermore, an issue not raised in the trial court cannot be raised for the first time on review. (Carillo v. Jam Productions, Ltd. (1983), 97 Ill. 2d 371, 377, 454 N.E.2d 649.) While defendant may not avail herself of this contention on appeal, any homestead exemption that she may be entitled to can be asserted upon remand. Defendant has thus failed to present any valid argument that would enable us to leave intact the conveyance. The established rule in Illinois is that every man is bound to be just before he is generous. (Emerson v. Bemis (1873), 69 Ill. 537, 541.) If a voluntary conveyance from a parent to a child results in hindering or delaying creditors, it will be regarded as fraudulent in law, irrespective of the honesty of the grantor’s motives. (Reisch v. Bowie (1937), 367 Ill. 126, 133, 10 N.E.2d 663; Harris v. Aimco, Inc. (1978), 66 Ill. App. 3d 60, 63, 383 N.E.2d 631.) The trial court erred in basing its decision whether to set aside the conveyance on defendant’s intent. Since we conclude that the transfer here constitutes a fraud in law, we need not further consider plaintiff’s alternate argument that the conveyance also constitutes a fraud in fact.

On cross-appeal, defendant contends that the finding of the trial court that she was liable on the two notes was against the manifest weight of the evidence. Defendant first argues that the amount of the judgment is incorrect. She maintains that payments of $200 and $250 were not credited and that interest was double charged. While the trial court did not itemize the amounts of principal and interest due on each note or specifically explain the calculations underlying the final award, it is under no duty to do so. No special findings of fact are necessary to support the judgment or as a basis for review. (87 Ill. 2d R. 366(bX3Xi). Every reasonable intendment not negatived by the record will be indulged in support of the judgment. (Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 1022, 327 N.E.2d 346.) Here, the first note was for $8,500 principal at 10.73% interest for six years, while the second note was for $5,100 principal with a 20% annual interest rate. Both notes contained acceleration clauses and provisions for default charges. The only testimony on the calculations of the amount owed on the notes was that of Deborah Sons. The trial court’s judgment for plaintiff is supported by the evidence presented, and we will not disturb it.

Defendant’s second and final argument on cross-appeal is that the trial court erred in finding her liable on the second note. She argues that the evidence showed that she signed the note only because of a threat to imprison her husband, and thus her obligation on the note should be voided. She relies on Corn Belt Lumber Co. v. Doty (1918), 212 Ill. App. 521, wherein it was said that actual or threatened use or misuse of criminal process, legal or illegal, sufficient to overpower and overcome the will of the party threatened constitutes duress. (212 Ill. App. 521, 522.) That court, however, specifically held that the wife was not liable where her husband had been threatened with imprisonment “[o]n the theory that the verdict of the jury is right on the facts.” (212 Ill. App. 521, 524.) Thus, if duress is found based on the evidence, the agreement will be voided.

Duress exists where one is induced by the wrongful act of another to make a contract under circumstances which deprives her of the exercise of her free will. (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 432-33, 369 N.E.2d 858.) Mere annoyance or vexation will not constitute duress, but there must be such compulsion affecting the mind as shows that the execution of the note is not the voluntary act of the maker. (People ex rel. Drury v. Catholic Home Bureau (1966), 34 Ill. 2d 84, 92-93, 213 N.E.2d 507.) The burden of proving such duress is on the person asserting it. 34 Ill. 2d 84, 92, 213 N.E.2d 507.

Duress is a question of fact to be determined by the totality of the surrounding circumstances. (Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 699, 368 N.E.2d 1010.) An appellate court takes a deferential approach to findings of fact made at the trial level (Havens v. Miller (1981), 102 Ill. App. 3d 558, 567, 429 N.E.2d 1292), and will not substitute its judgment unless the findings are against the manifest weight of the evidence. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 235, 445 N.E.2d 418; see 87 Ill. 2d R. 366(b)(l)(ii).) For a judgment to be against the manifest weight of the evidence, it must appear that the conclusions opposite to those reached by the trier of fact are clearly evident. J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 636, 443 N.E.2d 597.

Here, the trial court found that defendant did not sign under duress. It stated that the evidence merely showed that she did not like signing the note.

The trial court is in a far better position to determine the credibility of witnesses. (In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 71, 440 N.E.2d 840.) While defendant’s husband testified that Stanley Walton pressured defendant into signing the note by telling her that her husband had signed her name and that that was fraud or forgery, he did not testify that threats of imprisonment were made. The trial court could take into account obvious bias on the part of defendant’s husband. Defendant did testify that Walton threatened to imprison her husband. However, because her testimony concerning her signature on the first note had been earlier impeached, the trial court could properly disbelieve her testimony about circumstances surrounding her signing of the second note. On these facts, it does not appear that conclusions opposite to those reached by the trial court are clearly evident, and we affirm the trial court’s finding of defendant’s liability on both notes.

For the foregoing reasons, we reverse that part of the judgment which upholds the conveyance and remand to the trial court with instructions to void the conveyance, determine if a homestead exemption exists, and grant such other relief as is necessary. In all other respects, the judgment is affirmed.

Affirmed in part and reversed in part and remanded with directions.

UNVERZAGT and HOPF, JJ., concur.


author: JUSTICE SCOTT

text:
    GEORGE CARLTON, Plaintiff-Appellant, v. WALTER VERPLAETSE, Defendant-Appellee.
    Third District
    No. 3—83—0248
    Opinion filed December 29, 1983.
    Rehearing denied February 1, 1984.

      Jack L. Brooks, of Laird, Chickris & Brooks, of East Moline, for appellant.
    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for ap-pellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, George Carlton, filed suit in the circuit court of Mercer County against the defendant Walter Verplaetse seeking to recover for personal injuries incurred in a construction accident which took place on the defendant’s farm. Two theories of recovery were alleged, one in common law negligence and another under the Structural Work Act. (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) A Mercer County jury denied recovery for the plaintiff on both theories and he appeals to this court.

During 1978, the defendant, Walter Verplaetse, began constructing a pole barn about 100 yards from his residence in Mercer County, Hlinois. Verplaetse was constructing this building with the help of his sons and with the help of the plaintiff, George Carlton, who is his son-in-law. Work progressed slowly since it was done on days when there was time after the evening meal and on an occasional weekend. The plaintiff was not present on each occasion when work was done on the pole barn but he had assisted his father-in-law on four or five occasions when roof work was taking place.

The method of construction used in erecting the pole barn was to attach to the poles trusses which would form the frame for the roof, then to attach nailers to the trusses, and then to attach plywood to the nailers. Some of the nailers were butted, one to the other, directly over the trusses. Other nailers were butted, one to the other, between the trusses with no support underneath the butted ends. The nailer boards were used by the defendant, the plaintiff, and others to walk on across the roof. The defendant knew where the unsupported nailer boards were located, and he was careful to avoid walking on these unsupported boards because he realized the possibility that those unsupported nailer boards would not hold the weight of a man. Nevertheless, he felt that once the plywood was nailed to the boards, the roof would be sufficiently strong.

On October 14, 1979, the plaintiff was assisting his father-in-law in work on the roof of the pole barn, when his father-in-law left the job site momentarily to retrieve a saw blade. The plaintiff was instructed by the defendant to take a break until the defendant returned. Not heeding this instruction, the plaintiff walked along one of the nailers, stepping in the area where the nailers were butted between the trusses, without support. The nailer broke and the plaintiff was injured in a resulting fall.

As discussed at the outset, upon hearing these facts, the Mercer County jury entered judgment for the defendant under both theories alleged by the plaintiff. On appeal, the plaintiff asserts that he was entitled to a judgment notwithstanding the verdict based upon the evidence before the jury, or in the alternative, that he is entitled to a new trial because of errors which allegedly occurred in the court below.

While we believe there is sufficient evidence in the record to sustain the jury’s verdict for the defendant under the rules of law applicable to actions in common law negligence, we are compelled to agree with the plaintiff that as a matter of law, he was entitled to a verdict under the Structural Work Act. A review of the elements of this statutory cause of action is instructive.

In order to prove a cause of action under the Structural Work Act, a plaintiff must prove that his injury involved a device covered by the Act. The Structural Work Act applies to “all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) In interpreting this statute, the reviewing courts have unequivocally found that a roof, although intended to be a permanent part of a structure, is a scaffold within the statutory definition when it is temporarily used to support construction workers. (St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740; Crothers v. LaSalle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) In addition, the device which constitutes the scaffold must be employed “in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) There can be little question, under the facts of this case, that the nailer boards were being used by the plaintiff and the defendant in the erection and construction of the roof of the pole barn.

Another element of the cause of action is proof that the scaffold was not “erected and constructed, in a safe, suitable and proper manner *** as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.) In the case at bar, the defendant’s own testimony which is uncontradicted in the record, was that the nailer boards which were butted together without the underlying support of a truss were not sufficient to hold the weight of a man. The statute imposes liability for injuries on any owner who wilfully fails to use safe scaffolding. (Ill. Rev. Stat. 1981, ch. 48, par. 69.) The defendant by his own admission was the owner of the barn, it was being constructed on his land, and he was supervising the activities of the plaintiff. Further, the defendant knew that the unsupported nailer boards were insufficient to hold the weight of a man. The word wilfully is synonymous with knowingly. Schultz v. Ericsson Co. (1914), 264 Ill. 156,106 N.E.236.

Finally, the statute requires that before recovery for injuries will be allowed, the proof must show that the injury was “occasioned by” a failure to follow the statutory directive. (Ill. Rev. Stat. 1981, ch. 48, par. 69.) This “occasioned by” element is referred to as the proximate cause requirement. The defendant urges us to find that his provision of an unsafe scaffold was not a proximate cause of plaintiff’s injuries, but rather that the injuries were solely caused by plaintiff’s own negligence. We are reminded that the plaintiff had worked on the pole barn project on a number of occasions and that he was allegedly familiar with the practice of butting nailers together without an underlying truss. We are reminded that the defendant cautioned the plaintiff to take a break while the defendant left the area of the job site. We are reminded that the plaintiff, by his own admission, was not looking carefully as he walked along the nailer on the roof. Nevertheless, we must conclude that while plaintiff’s actions may have been a contributing cause to his injuries, those actions were not, as a matter of law, the sole proximate cause.

“One of the objectives of the Structural Work Act is to deter injuries to individuals employed in dangerous or extra-hazardous occupations. In order to effectuate such a purpose, the courts of this state have consistently ruled that contributory negligence and assumption of the risk are not defenses to a violation of the Act. [Citation.] Nor is it a defense to a defendant Hable under the Act that the plaintiff may have been concurrently at fault. [Citation.] However, it is incumbent for the plaintiff to establish a causal connection between any violation of the act and the injury to plaintiff. [Citation.]” (Beebe v. Commonwealth Edison Co. (1977), 45 Ill. App. 3d 43, 48, 358 N.E.2d 1343.)

It is abundantly clear from the record before us that the plaintiff in the instant case was able to show a causal connection between the unsafe scaffolding and the injury he incurred.

“Further, it is fundamental that there may be more than one proximate cause of an injury. Liability will attach if the defendant’s conduct contributed in whole or in part to the plaintiff’s injury, so long as it was one of the proximate causes of injury.” (Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008, 1014, 405 N.E.2d 1283.)

Given a reading most favorable to the defendant, the best that can be said is that he proved the plaintiff acted negligently at the time of his injury and that such negligence was a contributing cause of the resulting fall. Accordingly, judgment notwithstanding the verdict should have been entered for the plaintiff who has proven based on the evidence a cause of action under the Structural Work Act.

Since we believe the plaintiff was entitled to recovery, we order this case remanded to the circuit court of Mercer County for a hearing on the issue of damages only. Other issues raised by the plaintiff on appeal concern the need for a new trial, and as we have resolved the issue of liability in favor of the plaintiff, it is unnecessary to consider these contentions.

Reversed and remanded.

STOUDER, P.J., and ALLOY, J., concur.


author: PRESIDING JUSTICE WILSON

text:
    CAROL K. TUNK, Plaintiff-Appellant, v. THE VILLAGE OF WILLOW SPRINGS, Defendants-Appellees.
    First District (5th Division)
    No. 82—2593
    Opinion filed December 30, 1983.
    John J. Lowrey and Mary Jo Smerz, both of John J. Lowrey, P.C., of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Myra J. Brown, Assistant State’s Attorneys, of counsel), for appellee County of Cook.
    Goldstine and Broida, Ltd., of Summit (Ronald J. Broida, Richard J. Skrodzki, and Kenneth J. Nemec, Jr., of counsel), for appellee Village of Willow Springs.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This appeal is from an action for personal injuries whereby defendants were charged with negligently maintaining an intersection at Willow Springs and German Church Roads in the village of Willow Springs, Illinois. The trial court entered summary judgment based on the pleadings in favor of defendants and this appeal followed. We affirm.

On August 9, 1977, plaintiff was riding as a passenger in her car, proceeding northbound in the right-hand curb lane on Willow Springs Road. When the vehicle entered the intersection of this roadway with German Church Road, it swerved on loose gravel, careened off the road and overturned into an open field.

At the point of the accident, Willow Springs Road divides into two directions in the shape of a “Y.” The northeastern direction is a continuation of Willow Springs Road; German Church Road begins at the northwestern point.

Plaintiff’s complaint, filed August 10, 1978, alleged that defendants controlled, maintained, owned and designed the intersection; that they had not posted a hazard sign at the curve on Willow Springs Road; that they had allowed loose gravel to accumulate on the intersection and that it was improperly illuminated.

Defendant Cook County answered that it maintained and controlled only German Church Road and that it was not responsible for the control, ownership, inspection or maintenance of either Willow Springs Road or the intersection. It further alleged that although Willow Springs Road was constructed by the county in 1927 the State had accepted and assumed exclusive jurisdiction in either 1928 or 1929. The county and village subsequently filed motions for summary judgment which both alleged that the State was responsible for the maintenance of the road.

Arguments on defendants’ motions were held June 24, 1982. After reviewing the evidence, which included a certified copy of the county’s highway map, the trial court expressed concern over the exact location of the termination of the county’s jurisdiction on German Church Road as well as the configuration of the intersection and whether the photographs of the intersection established that the accumulated gravel had originated from German Church Road. Plaintiff argued that the county was negligent regardless of where the road terminated for it had allowed gravel to accumulate and, further, that because the State had not erected the double arrow sign at the intersection on Willow Springs road which had previously fallen or had been knocked down, the county must have done so but negligently failed to re-erect it.

In response to plaintiff’s argument the county stated that it had no duty to warn vehicles which were not travelling on German Church Road. Plaintiff then offered into evidence a photograph of the intersection, but the court stated that it could not tell where the loose gravel emanated from by looking at the picture, nor was it the county’s obligation to prove that the gravel did not emanate from German Church Road.

A supplemental affidavit of Michael Griffin, engineer at the county department of highways, was filed on July 6, 1982, along with Griffin’s pictures of the intersection and the roads leading thereto. In his affidavit Griffin stated that Willow Springs Road is exclusively maintained and controlled by the State, that the gravel in the intersection emanated from Willow Springs Road but that the Cook County Highway Department did not install signs on Willow Springs Road. All such signs were directed at drivers on that roadway. On July 7, 1982, the trial court granted plaintiff leave to take Griffin’s deposition and the cause was continued to October 6,1982.

On October 4, 1982, plaintiff filed the affidavits of Joseph Kostur, safety and claims manager for the State Department of Transportation and Lester Kolom, a registered professional engineer with special expertise in traffic safety engineering and traffic accident reconstruction. Kostur stated that Willow Springs Road was designed and constructed by the county but that the road is not and never has been part of the State highway system. He stated further that the State maintained the travel lanes of Willow Springs Road. The duty to install street lights, crosswalks and sidewalks, however, rests with the village.

Kolom’s affidavit stated that based on his review and site survey of the accident, the major contributing cause of the accident was the county’s failure to correct the design, construction and maintenance defects in the intersection and its approaches and that a key factor in the accident in this case was the presence of gravel and dirt in the intersection “reducing the coefficient of friction and reducing traction between tires and roadway.”

Plaintiff and defendants again appeared before the trial court on October 6, 1982. First, the county denied any liability for the accident and argued that, based on certified copies of maps, the State’s assumption of the highway after construction, coupled with the fact that Kostur stated in his affidavit that the State maintains the travel lanes of Willow Springs Road, jurisdiction of Willow Springs Road lies with the State. Plaintiff countered that even though the State maintained the roadway it was voluntary in nature.

In response, the court stated that it was concerned with the restrictive nature of Kostur’s affidavit in light of his previous deposition and that this created an uncertainty as to what Kostur meant when he said that the State maintains only the travel lanes of the road. Plaintiff contended that the county maintained the edges along Willow Springs Road and in rebuttal the county pointed out that Kostur also stated that the village had the duty to install and maintain crosswalks and street lights but that his affidavit did not mention that the county had any responsibility for the highway.

Regarding Kolom’s affidavit, the court observed that it made “a pretty broad statement” that the intersection was hazardous and an unacceptable risk to road users “because he doesn’t know what the duty or obligation of Cook County are [sic] with regard to highways. So how can he talk about their failure to correctly design the construction and maintenance? How does he know that they even have an obligation to do that?” The county then made an oral motion to strike Kolom’s affidavit alleging that it consisted of legal conclusions without supporting facts. This motion was not ruled on, however.

It was then argued that the affidavits were uncontradicted as to the jurisdiction of the county and where it terminates. The county stated that the State’s exclusive jurisdiction constituted an acceptance of any liability for defective design and that the real question before the court was whether the 1928 construction of Willow Springs Road is sufficient to extend liability to the county.

The Court next queried whether Kostur’s affidavit negated exclusive jurisdiction, to which plaintiff responded that the affidavit stated that Willow Springs Road is not and has never been part of the State highway system. When asked whether, with regard to the travel area, the State had jurisdiction, plaintiff and the county responded that the car skidded off the roadway after the accident. The court then sustained the county’s motion for summary judgment and ruled that the county was not liable because the road was under the control of the State. With regard to the village, the court held that plaintiff’s complaint alleged that the village was negligent but that “in order for that to be an allegation of negligence against Willow Springs, we have to first *** have an obligation to remove any loose gravel.” Summary judgment was then sustained for the village, which ruling resulted in plaintiff’s appeal to this court.

Opinion

The controlling issue presented for review concerns the propriety of the trial court’s order sustaining defendants’ motions for summary judgment. We note at the outset that a party is entitled to summary judgment when there is no genuine issue of material fact and the pleadings, depositions, affidavits and other documents show that the movant is entitled to it as a matter of law. Kubik v. CNA Financial Corp. (1981), 96 Ill. App. 3d 715, 422 N.E.2d 1; Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 404 N.E.2d 869.

When considering such a motion, trial courts must construe the record strictly against the moving party and in favor of the opponent. However, because summary judgment is a drastic remedy of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. Hillblom v. Ivancsits (1979), 76 Ill. App. 3d 306, 395 N.E.2d 119.

In the instant matter, in order to establish that the defendants were negligent, plaintiff must demonstrate that they had a duty to maintain the roadway and intersection in question, that there was a breach of that duty and that an injury proximately resulted from that breach. Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423.

Initially, plaintiff contends that pursuant to section 1 — 102 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 1 — 102), State and local authorities must cooperate in the management of bordering highways, regardless of ownership or maintenance jurisdiction and that the cooperation among governmental entities includes cooperative maintenance and corresponding liability for negligence.

We agree that the efficient management of highways requires a cooperative effort among municipalities; however, section 1 — 102 does not go so far as to automatically impose maintenance responsibility and liability therefrom on the entities which choose to participate in such a joint effort. That section states in pertinent part that:

“It is further declared that highway transportation system development requires the cooperation of State, county, township, and municipal highway agencies and coordination of their activities on a continuous and partnership basis and the legislature intends such cooperative relationships to accomplish this purpose.” Ill. Rev. Stat. 1981, ch. 121, par. 1 — 102.

Thus, in order for liability to exist, a municipality must first have a duty to maintain a given roadway, which duty may arise out of an agreement between the city and State. See Ill. Rev. Stat. 1981, ch. 121, par. 9 — 101, which provides that a municipality may negotiate such an agreement with the State; Heintz v. Vorwerk (1983), 115 Ill. App. 3d 899, 901, 451 N.E.2d 551; Krajicek v. West Town’s Bus Co. (1977), 48 Ill. App. 3d 570, 363 N.E.2d 89.

In the instant matter, plaintiff has failed to submit any evidence that a maintenance agreement existed but instead relied on the above-stated statute from the Illinois Highway Code. We find such reliance misplaced and legally insufficient to impose maintenance jurisdiction on either the village or county.

Next, plaintiff contends that a question of fact exists as to the ownership of Willow Springs Road. Again, we disagree as there is nothing in the record to suggest ownership by either defendant. Michael Griffin specifically stated in his deposition that the county had neither entered into any contract in regard to Willow Springs Road nor had it ever shared maintenance responsibility with the State. Indeed, Kostur’s deposition also states that the State has maintained the travel lanes of the road since its construction in 1927. Moreover, the county clerk’s map, which is a certified copy of the State’s map, conclusively shows that the road is not maintained by the county. Plaintiff has additionally failed to show that either defendant made any improvements on the road or that there were any agreements between them or with the State to make repairs. Simply stated, plaintiff failed to establish that the county or village ever had jurisdiction over Willow Springs Road.

With respect to defendants’ duty to maintain the intersection, we find persuasive the court’s reasoning in Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 443, 404 N.E.2d 213, where our supreme court held that a municipality’s statutory duty to maintain its property does not apply to highways which it does not own. If the city controls streets approaching an intersection, however, but does not control the intersection, the city has the duty to warn of hazards therein. 79 Ill. 2d 435, 444.

In the instant case, plaintiff contends that the county had the duty to maintain the .intersection and was not divested of jurisdiction of Willow Springs Road because it failed to satisfy the requirements of section 4 — 204 of the Illinois Highway Code, which provides that when a highway becomes part of the State system the department must file a copy of the description of the highway with the county clerk. Ill. Rev. Stat. 1981, ch. 121, par. 4 — 204.

Although defendants failed to explain why this provision was not fully complied, with, Kostur’s affidavit clearly establishes that the village did not have the duty to maintain the travel lanes of the roadway, and his deposition affirmatively stated that the intersection was maintained by the State and not by the county. This testimony refutes plaintiff’s contention to the contrary. Also, the trial court noted that Kolom’s affidavit made an erroneous conclusion as to the county’s failure to correctly design, construct and maintain Willow Springs Road. Plaintiff responded that a jury should decide whether the village had entered into a contract to remove gravel from the intersection, however, plaintiff failed to submit any evidence which even suggested that the village had ever assumed such responsibility. The village’s affidavits, on the other hand, affirmatively stated that it had no control whatsoever over that road.

Additionally, Kostur stated in his deposition as follows:

“Q. To get to the intersection itself, whose responsibility for maintenance is the intersection?
A. From which direction? If you’re coming from the west, it would be the County. Coming from the north and south, it’s ours.
Q. North and south traffic?
A. Instead of south, actually it would be north by northwesterly or southerly. On Willow Springs those are ours.” (Emphasis added.)

Plaintiff was travelling north on Willow Springs Road. Although plaintiff further alleges that the gravel which had accumulated in the intersection originated, in part, from German Church Road, by Kos-tur’s own admission, the State would be responsible for the condition of the intersection and would therefore have the duty to maintain it.

Accordingly, we find that based on the record before us the trial court’s ruling, that there was no genuine issue as to the maintenance jurisdiction of Willow Springs Road and that defendants were entitled to summary judgment as a matter of law, was correct.

The judgment of the circuit court is therefore affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE ME JDA

text:
    ROBERT DOYLE, Plaintiff-Appellant, v. DR. RONALD SHLENSKY et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—951
    Opinion filed December 30, 1983.

      L. Louis Karton, Ltd., of Chicago, for appellant.
    French & Rogers, of Chicago (Michael C. Kominiarek, of counsel), for appellee Ronald Shlensky.
    Larry M. Wolfson and Benjamin S. Wolf, both of Jenner & Block, of Chicago, for appellees J. Stephen Walker and Marshall Auerbach.
   JUSTICE ME JDA

delivered the opinion of the court:

Plaintiff Robert Doyle appeals from the order dismissing count I of the amended complaint and from the order dismissing counts II, III, IV and V of the “Second Amendment to the Complaint.” Plaintiff raises two issues on appeal: (1) whether the court erred in dismissing each of the counts of the second amendment to the complaint as substantially insufficient as a matter of law; and (2) whether the court erred in holding that the claims against defendant attorneys Walker and Auerbach were released by the divorce judgment. We affirm.

In 1974, defendant Dorothy Doyle, represented by defendants Marshall J. Auerbach and J. Stephen Walker, filed a complaint for divorce against plaintiff Robert Doyle, who thereafter counterclaimed for divorce. In the course of the divorce proceeding, the court entered an order pursuant to Supreme Court Rule 215 (73 Ill. 2d R. 215) directing both Mr. and Mrs. Doyle to be examined by defendant Dr. Robert Shlensky, a psychiatrist, and ordering that the expense of the examination be paid with funds from a specified bank account. Robert Doyle was awarded a “Judgment for Divorce” by order approved by both parties and entered on June 22, 1976. The judgment order, which contained a general release of claims of each party against the other party and the agents and servants thereof, was never appealed.

Plaintiff initiated this action in February 1979 by filing a single-count complaint for breach of contract against defendant Dr. Shlensky in which he sought to recover the fees he had been ordered to pay Dr. Shlensky for the court-ordered psychiatric examination. Subsequent amendments added as defendants plaintiff’s ex-wife, Dorothy Doyle, and her attorneys, J. Stephen Walker and Marshall Auerbach. Plaintiff’s fourth pleading, denominated “Second Amendment to the Complaint at Law,” consists of counts II, III, IV and V. In count II, plaintiff charged Walker, Auerbach and Shlensky with legal and medical malpractice, respectively, for their actions in the divorce proceeding. In count III plaintiff alleges that the conduct of Walker constitutes malicious use and abuse of judicial process. Plaintiff alleges in count IV that actions taken by Dorothy Doyle, Walker and Auerbach as part of the divorce proceeding constitute malicious prosecution. In count V plaintiff in the alternative charges defendant Shlensky with breach of contract and charges defendants Walker and Auerbach with interference with contract. In each count, plaintiff seeks substantial compensatory and punitive damages. Upon defendants’ motions, the trial court dismissed counts II, III, IV and V by order entered December 4, 1980.

Plaintiff’s initial appeal of the December 4, 1980, order was dismissed by this court because the order was not appealable in that count I remained pending and no express finding as required under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) had been entered. (Doyle v. Shlensky (1982), 103 Ill. App. 3d 1199 (Rule 23 Order).) Thereafter, the trial court on March 23, 1982, entered an order dismissing count I. Plaintiff now appeals the December 4, 1980, order and the March 23, 1982, order.

Opinion

I

The first issue raised is whether the court erred in dismissing each of the counts of the “Second Amendment to the Complaint” as substantially insufficient as a matter of law.

Initially, defendants Walker and Auerbach contend that plaintiff’s complaint is repetitive, conclusory and incoherent and that it is not a “plain and concise statement” as required by section 33 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 33), now codified as section 2 — 603 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 603). Defendants argue that these violations alone support the trial court’s dismissal of plaintiff’s amended complaint. In determining the sufficiency of a pleading we must, however, obey the statutory mandate: “Pleadings shall be liberally construed with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1981, ch. 110, par. 33.) Our review will, therefore, include an examination of each count of the complaint.

Plaintiff contends generally that the court erred in dismissing the complaint and maintains that each count of his amended pleading sufficiently states a cause of action.

Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must contain those “substantial averments of fact necessary to state a cause of action.” (Fanning v. LeMay (1967), 38 Ill. 2d 209, 211, 230 N.E.2d 182; Ill. Rev. Stat. 1981, ch. 110, par. 31, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2— 601.) To state a cause of action a complaint must be both legally and factually sufficient; it must set forth a legally recognized claim as its basis for recovery and must plead facts which bring the claim within the legally recognized cause of action alleged. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.) Failure to meet both requirements mandates dismissal of the complaint. (People ex rel. Fahner.) When examining the legal sufficiency of a complaint, a court must assume the truth of “all facts properly pleaded” (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96, 187 N.E.2d 722), but it must ignore “conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest” (Pierce v. Carpentier (1960), 20 Ill. 2d 526, 531, 169 N.E.2d 747). A cause of action should not be dismissed on the pleadings unless it is clear that plaintiff can prove no set of facts which will entitle him to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) Guided by these general principles, we will now address plaintiff’s contentions.

Count II: In substance, plaintiff alleges in count II that defendants Shlensky, Walker and Auerbach are guilty of medical and legal malpractice, respectively, stemming from alleged violations of Illinois statutes and medical and legal canons of ethics pertaining to his psychiatric examination conducted pursuant to court order.

First considering the allegations against defendants Walker and Auerbach, said defendants argue, inter alia, that count II contains no factual allegations sufficient to state a cause of action and, moreover, that an action for malpractice can be brought only by a client. They conclude, therefore, that count II was properly dismissed by the trial court.

The traditional rule in Illinois has been that “an attorney owes a professional duty only to his client. In the absence of a duty to a third-person, nonclient, no cause of action based on negligent performance of professional services can exist.” (Favata v. Rosenberg (1982), 106 Ill. App. 3d 572, 573-74, 436 N.E.2d 49.) Recently, however, the supreme court stated that “privity is not an indispensable prerequisite to establishing a duty of care between a nonclient and an attorney in a suit for legal malpractice” and thereby extended a lawyer’s responsibility to certain third parties. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 19, 440 N.E.2d 96.) Pelham did not extend a lawyer’s liability to an unlimited number of potential plaintiffs, however, but limited the scope of duty owed by an attorney to nonclients by stating that to establish such a duty the nonclient must allege and prove that the primary purpose and intent of the attorney-client relationship itself was to benefit the nonclient third party.

In Pelham the plaintiffs were the children of Loretta and George Ray. The complaint for legal malpractice alleged that the defendant attorney, retained to represent Loretta in a dissolution of marriage action against George, owed to plaintiffs the duty to exercise a reasonable degree of professional care and skill as an attorney in seeing that plaintiffs became the prime beneficiaries of George’s life insurance policies in accordance with the terms of the divorce decree. Applying the “intent to directly benefit” test, the Pelham court found that the defendant attorney was hired primarily for the purpose of obtaining a divorce, property settlement and custody of the minor children for Loretta, not to represent her children’s interests. The court concluded that under the facts as pleaded no duty in negligence was owed by the defendant attorney to his client’s children and, therefore, no cause of action for legal malpractice was stated.

Although Pelham expanded an attorney’s scope of liability to nonclients, it did not extend such liability to the situation presented in the instant case. The Pelham court stated: “Dissolution [of marriage] proceedings are, for the most part, adversarial in nature. To conclude that an attorney representing one of the spouses also owes a legal duty to the children of the two litigants would clearly create conflict-of-interest situations.” (92 Ill. 2d 13, 23.) In the instant case plaintiff makes no allegation of an attorney-client relationship with defendant attorneys but urges that defendants Walker and Auerbach owed a legal duty to him while acting as opposing counsel in the dissolution proceedings. Such an extension of liability clearly was not contemplated by Pelham. Because no attorney-client relationship existed between plaintiff and either of the attorney defendants and no duty is owed to plaintiff under Pelham, count II fails to state a cause of action against defendant attorneys. We are, therefore, unable to find that the trial court erred in holding that count II is insufficient as a matter of law as against defendants Walker and Auerbach.

Plaintiff urges that defendant attorneys acted improperly in obtaining the court order requiring him to submit to a psychiatric examination and, further, that the order was improperly obtained in that no evidence was presented in the dissolution proceeding to place his mental condition at issue. The instant record shows, however, that plaintiff, by his attorney, made no objection in the divorce action regarding the psychiatric examination and that plaintiff’s attorney appears to have prepared the order for such examination. Consequently, this issue has there been waived for purposes of appeal. (See Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 406, 320 N.E.2d 581.) Moreover, the “Judgment for Divorce” order is not before us on appeal and we, therefore, may not consider allegations of error arising from that proceeding.

Count II also raises a claim of medical malpractice against defendant Dr. Shlensky arising out of Dr. Shlensky’s actions regarding the court-ordered psychiatric examination. Dr. Shlensky argues here that the trial court correctly found count II insufficient as a matter of law because the psychiatric examination was performed pursuant to court order and in accordance with the provisions of Rule 215; the physician-patient privilege does not apply to an examination by a court-appointed physician; plaintiff did not object to the appointment of a psychiatrist and he, therefore, cannot now argue its propriety; and this action is barred by the doctrine of quasi-judicial immunity.

The elements necessary to establish medical malpractice are the same as in any negligence action. The plaintiff must prove that defendant owed him a duty, which was breached or not performed, proximately causing injury, resulting in damages. (Spike v. Sellett (1981), 102 Ill. App. 3d 270, 430 N.E.2d 597.) The gist of the instant allegation of medical malpractice appears to be a violation of the statutory physician-patient privilege. (Ill. Rev. Stat. 1981, ch. 51, par. 5.1.) Plaintiff himself cites to People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455, which holds that the statutory privilege does not apply where an examination is conducted pursuant to court order. Plaintiff alleges in count II that the court entered an order directing both parties to arrange to appear before Dr. Shlensky in accordance with Rule 215 and we conclude, therefore, that as the examination was conducted pursuant to court order, the statutory physician-patient privilege is inapplicable.

Nevertheless, plaintiff asserts that the exception to the statutory physician-patient privilege for examinations conducted pursuant to court order is inapplicable where the court’s order is improperly obtained. To find merit in such contention would attach to each physician acting under court order the burden of ascertaining whether the order was obtained in full compliance with all procedural requirements. (See Bartlett v. Weimer (7th Cir. 1959), 268 F.2d 860, 862, cert, denied (1960), 361 U.S. 938, 4 L. Ed. 2d 358, 80 S. Ct. 380.) Clearly, this would produce an undesirable result. Furthermore, as stated above, we may not here consider allegations of error arising from the dissolution proceeding as that cause is not before us. We therefore are unable to find that the trial court erred in holding count II insufficient as a matter of law as to defendant Dr. Shlensky.

Plaintiff alleges in count II that the actions of defendants “were commenced and prosecuted negligently, fraudulently, and without probable cause, and violated the plaintiffs rights of privacy and his civil rights.” A complaint fails to state a cause of action when it omits facts, the existence of which is necessary for plaintiff to recover. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 212, 230 N.E.2d 182.) A complaint which fails to state a cause of action may not be cured by liberal construction or by argument. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 427, 430 N.E.2d 976; People ex rel. Kucharski v. Loop Mortgage Co. (1969), 43 Ill. 2d 150, 152, 251 N.E.2d 211.) The above allegations are mere conclusions of law which are unsupported by specific facts and, therefore, do not state a cause of action.

For all of the above reasons, we are unable to find that the trial court erred in holding count II insufficient as a matter of law.

Count IIP. Plaintiff next argues that count III alleges the necessary elements of malicious use and abuse of process and that the trial court erred in holding that count insufficient as a matter of law. Defendant Walker, against whom the allegations are made, argues, inter alia, that plaintiff’s claim of malicious use and abuse of process is based entirely on conclusory allegations unsupported by specific and essential facts and, accordingly, there was no error in its dismissal.

Although plaintiff, in his brief, states that count III alleges malicious use and abuse of judicial process and not malicious prosecution, malicious use of process is another name for malicious prosecution (Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456, 461, 181 N.E.2d 601); accordingly, the sufficiency of the allegations as to both torts will be considered.

Count III realleges the violations of statues and canons of ethics of count II and further alleges in pertinent part as follows:

“16. Defendant, WALKER, stated to Plaintiff that he would transmit the contents of Defendant, SHLENSKY’S, report to Plaintiff’s employer and would use said contents in an endeavor to have Plaintiff discharged from his employment, unless Plaintiff agreed to accept a property settlement and the entry of Decree of Divorce, pursuant thereto, which was unfair and unjust to Plaintiff.
17. Defendant, WALKER’S, threats and attempts to intimidate and coerce Plaintiff were made fraudulently, maliciously and willfully with intent to force him into signing an unfair property settlement. Said action violated his duty to conduct himself in accordance with Professional Ethics and constituted malicious use and abuse of judicial process.”

The elements of malicious use of process or malicious prosecution are the institution of a civil suit by the defendant; the termination of the civil suit in favor of the plaintiff; the absence of probable cause for the filing of the civil suit; malice on the part of the defendant in filing the civil suit; and special injury to the plaintiff resulting from the suit. (Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191.) Without discussing the sufficiency of plaintiff’s allegations regarding each element of the tort, we note that plaintiff failed to allege facts regarding the absence of probable cause for the filing of the divorce action and the malice of the defendant. Plaintiff’s statements that defendant Walker acted maliciously and without probable cause are mere conclusions of law, unsupported by specific facts. Standing alone, such statements are insufficient to establish malice and want of probable cause. (See Sutton v. Hofeld (1983), 118 Ill. App. 3d 65.) Count III, therefore, fails to state a cause of action for malicious use of process.

Plaintiff also asserts that count III contains a sufficient statement of a cause of action for abuse of process and that dismissal of count III was, therefore, error. Defendant contends that count III describes no facts which could conceivably be construed as abuse of process as that term has been defined and, therefore, the allegation of abuse of process was insufficient.

“Abuse of process (or malicious abuse of process) is the misuse of proper process to effect an object not within its proper scope. It differs from malicious use of process in that the latter is the starting of process without probable cause, a prosecution upon a demand or accusation that has no foundation in fact. [Citation.] The mere institution of a proceeding, even with a malicious motive, does not constitute an abuse of process.” (Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456, 462, 181 N.E.2d 601.) An action for abuse of process lies for the improper use of process after it has been issued. Alberto Culver Co. v. Andrea Dumon, Inc. (N.D. Ill. 1969), 295 F. Supp. 1155, 1160.

Two elements are necessary to plead a cause of action for abuse of process: (1) the existence of an ulterior purpose or motive for the use of regular court process, and (2) an act in the use of the process not proper in the regular prosecution of the proceeding. (Bonney v. King (1903), 201 Ill. 47, 51, 66 N.E. 377; Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 967, 282 N.E .2d 452.) Specifically, the defendant must have intended to use the action to accomplish some result which could not be accomplished through the suit itself. Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033,1038, 365 N.E.2d 1191.

The test for sufficiency of the allegations pertaining to the second element is whether process has been used to accomplish some result which is beyond the purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally be compelled to do. (Cartwright v. Wexler, Wexler & Heller, Ltd. (1977), 53 Ill. App. 3d 983, 369 N.E.2d 185.) “Process” is defined as “any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.” (Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 968, 282 N.E .2d 452.) Process is issued by the court, under its official seal and must be distinguished from pleadings, which are created and filed by the litigants. (Holiday Magic, Inc.) In the instant case, count III alleges that defendant Walker threatened disclosure to plaintiffs employer of the report of plaintiffs psychiatric examination unless he accepted the property settlement and divorce decree. Even assuming the truth of plaintiffs allegations for the purpose of the motion to dismiss, count III alleges no misuse of the court’s process. The psychiatric report, even though obtained pursuant to court order, was not issued by the court and cannot be considered a process of the court. Plaintiff makes no allegation of an improper use of the court order, itself, nor does he allege that the divorce action was filed for any ulterior purpose. Count III fails to state a cause of action for abuse of process. It follows that there was no error in its dismissal.

Count IV: Plaintiff next argues that count IV sufficiently alleges the elements of malicious prosecution and, therefore, the court erred in finding that count insufficient as a matter of law.

Defendants Walker and Auerbach contend that count IV is insufficient in that it does not contain certain elements essential to a claim for malicious prosecution, specifically, an allegation that the prior proceeding terminated in plaintiff’s favor and an allegation of special injury, and, moreover, that said count contains no factual allegations to support the legal conclusions therein. Defendants conclude that the court’s finding as.to count III was, therefore, proper. Upon careful examination of plaintiff’s allegations, we agree with defendants’ conclusion.

In count IV plaintiff apparently realleges the allegations contained in counts II and III as to defendants Walker and Auerbach and, in addition, alleges that said defendants violated their duty to ascertain whether the pleadings filed in the prior dissolution proceeding were based on true facts, to state a cause of action; that defendants recklessly, negligently and without probable cause filed a complaint containing allegations not made in good faith; that defendants maliciously, wrongfully and with intent to vex, harass, annoy and embarrass plaintiff obtained a court order directing plaintiff to undergo a psychiatric examination; and that proceedings in said cause are continuing to the date of filing the instant complaint. Plaintiff further alleges that he suffered injury to his reputation and the practice of his profession, that he was compelled to incur attorney fees, that he was subjected to embarrassment and humiliation and thereby incurred mental pain and suffering which caused a recurrence of an existing ankylosing spondylitis, and that he was enjoined from enjoying access to his funds and exercising property rights. Count IV concludes with a prayer for damages of $250,000 against defendants Dorothy Doyle, Walker and Auerbach.

The elements of malicious prosecution set out above in the discussion of count III include special injury which must be pleaded in order to state a cause of action. Special injury has been defined as that “injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action.” (Schwartz v. Schwartz (1937), 366 Ill. 247, 250, 8 N.E.2d 668.) Special injury has been held to be that injury “beyond the anxiety, loss of time, attorney fees, and necessity for defending one’s reputation, which are an unfortunate incident of many (if not most) lawsuits.” Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 818, 372 N.E.2d 685.

We note, initially, that the allegations of injury contained in count IV are conclusory in nature and lack factual statements of damage. For that reason alone, such allegations are insufficient. (See Pantone v. Demos (1978), 59 Ill. App. 3d 328, 375 N.E.2d 480.) Furthermore, many of the injuries alleged are “ordinary injuries” which would result from any litigation and are not special in nature. (See Stopka v. Lesser (1980), 82 Ill. App. 3d 323, 402 N.E.2d 781.) Injury to personal or professional reputation is an unfortunate consequence of most litigation and does not constitute a special loss. (Pantone; Lyddon.) Similarly, attorney fees, embarrassment, humiliation and

mental pain and suffering are in the nature of ordinary injury, attendant to any litigation. (See Lyddon.) Thus, count IV fails to set forth facts sufficient to allege the necessary element of special injury.

AH of the elements of malicious prosecution must be alleged in order to state a cause of action. Because of our determination of insufficiency regarding the allegation of special injury, a discussion of the other elements is unnecessary. We note, however, that plaintiff makes no plain allegation that the prior proceedings terminated in his favor in that he alleges that he was granted a divorce, but states at two separate paragraphs within count IV that the proceedings in the prior action are continuing. Moreover, count IV contains no allegation that the prior dissolution proceedings were brought with malice. The only allegation of malice contained in count IV was the statement that defendants acted “maliciously” in obtaining the court order requiring plaintiff to submit to a psychiatric examination. Such statement alone is insufficient as an allegation of an essential element. For all of the foregoing reasons the trial court did not err in holding count IV substantially insufficient as a matter of law as to defendants Walker and Auerbach.

It is to be noted that defendant Dorothy Doyle, a named appellee, has filed no brief in this appeal. The appellate court may, however, consider the merits of an appeal in such a situation. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) A second recitation of the deficiencies of count IV is unnecessary. Count IV contains no specific factual allegations regarding defendant Doyle. The unavoidable conclusion is that count IV is substantially insufficient as a matter of law as to defendant Doyle.

Count V: Count V alleges, in the alternative, that plaintiff engaged defendant Dr. Shlensky to examine him and paid the fee for such examination; that defendant Shlensky breached his contract with plaintiff and violated Illinois statute, the Code of Medical Ethics, and plaintiff’s right of privacy and civil rights by delivering a report of the examination to defendants Walker and Auerbach; that defendants Walker and Auerbach interfered with plaintiff’s contract with defendant Shlensky and aided defendant Shlensky in the wilful breach of his contract with plaintiff to keep the results of said examination private and confidential; and that plaintiff was injured thereby. In count V plaintiff prays for damages against defendants Shlensky, Walker and Auerbach.

Plaintiff contends that the trial court erred in dismissing count V as to defendants Walker and. Auerbach. He asserts that count V alleges the facts necessary to show “tortious interference” by defendants Walker and Auerbach with Shlensky’s employment by plaintiff. Defendants Walker and Auerbach argue, principally that count V is insufficient as it consists of legal conclusions, unsupported by facts. Defendants note specifically the absence of factual support for plaintiff’s statement that he and Dr. Shlensky had a contract and for plaintiff’s allegation of “interference.”

The elements of the tort of interference with contractual relations include: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other party, caused by the defendant’s wrongful conduct; and (5) damages. (Belden Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98.) The allegations contained in count V are conclusions of law which, standing alone, are insufficient to state a cause of action. (See Fanning v. LeMay (1967), 38 Ill. 2d 209, 212, 230 N.E.2d 182.) Upon a review of count V we conclude that the allegations therein lack sufficient facts to state a cause of action for interference with contractual relations. Accordingly, the court did not err in dismissing count V as to defendants Walker and Auerbach.

Defendant Dr. Shlensky contends that count V was properly dismissed as to him and argues, inter alia, that plaintiff’s examination was conducted pursuant to court order, not contract, that the statutory physician-patient privilege is, therefore, not applicable, and that count V fails to state a cause of action.

In support of his motion to dismiss, defendant Shlensky submitted to the trial court the petition for mental examination and the court order of February 18, 1976, which obligated him to conduct psychiatric examination of plaintiff in accordance with Supreme Court Rule 215 (73 Ill. 2d R. 215). The trial court dismissed count V as to defendant Shlensky pursuant to section 48(i) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(i)), now codified as section 2— 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 10, par. 2 — 619(a)(9)), which provides for dismissal of an action on the grounds that “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Plaintiff Shlensky’s motion to dismiss affirmatively established that he had conducted the examination pursuant to a Rule 215 order of court, and not pursuant to a contract with plaintiff as alleged by the latter. Thus, the affirmative matters effectively barred and defeated plaintiff’s claim. Therefore, the trial court did not err in granting Dr. Shlensky’s motion to dismiss count V.

Count I: Although plaintiff has also appealed from the order of March 23, 1982, dismissing count I, his brief contains neither argument nor legal authority in support of any relief. The Supreme Court Rules provide that points not argued are waived. (73 Ill. 2d R. 341(e)(7).) The order of this court allowing the use of the record and briefs filed in the earlier appeal of the dismissal of counts II through V does not remove from plaintiff the obligation to supplement the record and to file a brief with arguments pertinent to the dismissal of count I. Accordingly, the trial court’s dismissal of count I is affirmed.

II

The second issue raised is whether the trial court erred in holding that the claims against defendant attorneys Walker and Auerbach were released by the divorce judgment. Said order expressly provides that “all rights and claims of each party against the other party and the agents and servants thereof are forever relinquished, released, barred and ended ***.”

Plaintiff does not dispute that Walker and Auerbach acted as Dorothy Doyle’s attorneys but argues, principally, that defendant attorneys were not her “agents.” Plaintiff asserts that the relation of attorney to client is more often that of an independent contractor than agent or servant and that whether an agency relationship exists is a question of fact. Plaintiff concludes that the release contained in the judgment order did not extend to defendant attorneys.

Defendant attorneys Walker and Auerbach contend that the term “agent” includes attorneys, that each of plaintiff’s allegations against them arose from actions taken as attorneys on behalf of Dorothy Doyle, and that plaintiff’s cause of action is, therefore, barred by the release contained in the judgment order entered in the divorce action.

The attorney-client relationship is one of agent-principal. (Feiertag v. Reichmann (1959), 21 Ill. App. 2d 215, 220, 157 N.E.2d 818.) Mere engagement of a law firm has been held to create “an attorney-client relationship governed by principles of agency law” (Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 50, 360 N.E.2d 551) and the general rule is that “the client is bound by the acts and omissions of his lawyer-agent in the prosecution of a remedy.” (Danforth v. Checker Taxi Co. (1969), 114 Ill. App. 2d 471, 476, 253 N.E.2d 114.) The court has rejected the argument that by the nature of his duties and responsibilities an attorney is better characterized as an independent contractor rather than as an agent (Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co. (1974), 22 Ill. App. 3d 558, 317 N.E.2d 663), and we decline to here adopt such a position. The cases cited by plaintiff in support of the proposition that attorneys are not ordinarily considered agents are from foreign jurisdictions and we deem it sufficient to note that they are not here controlling.

Plaintiff correctly asserts that whether an agency relationship exists is generally a question of fact. (Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376.) This is not the rule, however, where, as in the instant case, the parties’ relationship is so clear as to be undisputed. (Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 392 N.E.2d 154.) Plaintiff admits that at all relevant times defendants Walker and Auerbach were licensed attorneys. Every claim stated by plaintiff against said defendants arose out of actions taken as attorneys on behalf of Dorothy Doyle. In view of the allegations of the complaint itself, that Walker and Auerbach were Dorothy Doyle’s attorneys, and the fact that there were neither allegations nor facts pleaded suggesting that they were independent contractors, the court did not err in determining that defendant attorneys were agents of Dorothy Doyle and that the claims against them were, therefore, released pursuant to the judgment order.

Finally, plaintiff argues that the trial court erred in ruling at. the same time on motions filed under sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, pars. 45, 48), now codified as sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619). Our supreme court has expressly disapproved such hybrid motions for the reason that combining an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated is likely to confuse both the parties and the court. The court allowed, however, that to remand the cause to the trial court for separate consideration of the motions would “occasion delay and waste of judicial resources.” (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 407, 312 N.E.2d 605; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) We here adopt that reasoning and, accordingly, find no error in the trial court’s consideration of the motions.

For all of the foregoing reasons, the orders of the trial court are affirmed.

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.