Toth v. Gierczyk, Inc.

Full title: SCOTT TOTH, Plaintiff, v. GIERCZYK, INC., an Illinois corporation, f/k/a…

Court: APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

Date published: Aug 8, 2016

2016 Ill. App. 143788 (Ill. App. Ct. 2016)

Opinion

No. 1-14-3788

08-08-2016

SCOTT TOTH, Plaintiff, v. GIERCZYK, INC., an Illinois corporation, f/k/a and d/b/a GIERCZYK DEVELOPMENT, INC., an Illinois corporation, PLAID PAISLEY ENTERPRISES, INC., a foreign corporation, BRAD PAISLEY, BRENT LONG, KEVIN FREEMAN and BILL FERRIS, Defendants (Plaid Paisley Enterprises, Inc., Brad Paisley, Brent Long, Kevin Freeman and Bill Ferris, Third-Party Plaintiffs-Appellants, v. Live Nation Worldwide, Inc., Third-Party Defendant-Appellee).

PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court.

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 11 L 660508 Honorable Camille E. Willis, Judge Presiding. PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court.
Justices Connors and Harris concurred in the judgment.

ORDER

¶ 1 Held: In a third-party action by a touring production company against a concert promoter arising from a stagehand's underlying personal injury claim, summary judgment was properly granted dismissing the production company's contribution claim because the concert promoter did not exercise control over the stagehand's worksite at the time of his injury. However, summary judgment should not have been granted with respect to the production company's breach of contract claim arising from the concert promoter's failure to defend and indemnify the personal injury lawsuit, given the arguably conflicting contractual provisions regarding the scope of the concert promoter's indemnification obligations. ¶ 2 Third-party plaintiffs-appellants Plaid Paisley Enterprises, Inc., Brad Paisley, Brent Long, Kevin Freeman, and Bill Ferris (collectively, Plaid Paisley) appeal from the trial court's order granting summary judgment in favor of third-party defendant-appellee Live Nation Worldwide, Inc. (Live Nation), which dismissed Plaid Paisley's contribution and breach of contract claims against Live Nation. We affirm the entry of summary judgment with respect to Plaid Paisley's contribution claim. However, we find that summary judgment should not have been entered on Plaid Paisley's breach of contract claim, due to an apparent conflict in the terms of the parties' original contract and its rider.

¶ 3 BACKGROUND

¶ 4 A stagehand's personal injury lawsuit arising from a July 2010 concert by country music artist Brad Paisley at the First Midwest Bank Amphitheatre (the venue) lead to this dispute, between the concert's promoter and the venue's owner, Live Nation, and the Plaid Paisley parties, which include Brad Paisley's touring production company, Plaid Paisley Enterprises, and certain of its employees. ¶ 5 In May 2009, Live Nation and Plaid Paisley Enterprises entered into a "Live Nation Tour Agreement" (the tour agreement) in which Plaid Paisley granted to Live Nation exclusive rights to promote and sell tickets for concert performances by Brad Paisley during tours to be completed between 2010 and 2013. Under that agreement, Plaid Paisley agreed to "provide all of the production elements of the Tour (including staging, sound, lighting, special effects, video screens (if any) and band equipment" and "all other customary production expenses of a first class touring production." ¶ 6 Elsewhere, the agreement specified that "Promoter [Live Nation] will be responsible for overseeing, directing and implementing in a first class professional manner all venue based logistics for each Tour Event, such as load-in and load-out arrangements, local staffing for installation and set up of the production *** and other necessary venue operations." The same clause specified that Live Nation would be "responsible for providing *** all necessary personnel, services and operations which are customarily furnished by promoters of first class live events." ¶ 7 Under the heading "Indemnities and Insurance," Live Nation agreed to indemnify Plaid Paisley Enterprises, referred to as the "Company," for claims arising from Live Nation's negligence, willful acts, or breach of the tour agreement:

"Promoter hereby indemnifies and holds harmless Company and Artist (and their respective directors, officers, shareholders, employees and representatives) (collectively, the 'Company Indemnified Parties') from and against any and all third party claims, liabilities, suits, damages and expenses *** suffered or incurred by the Company Indemnified Parties as a result of the negligence, willful actions or omissions of the 'Promoter Indemnified Parties' (as defined herein); Promoter's breach of this Agreement or of Promoter's representations and warranties made herein (except to the extent same result from the negligence or

willful actions or omissions of the Company Indemnified Parties or breach by Company of this Agreement.)"

¶ 8 Subsequently, a "2010 Tour Contract Rider" (the rider) set forth additional terms of Plaid Paisley and Live Nation's agreement. The rider specifies that it is "attached to and made part of the contract ('Contract') between Plaid Paisley Enterprises, Inc. ('Producer') furnishing the services of Brad Paisley ('Artist') and the purchaser of said services ('Purchaser') as defined on the face of the Contract in connection with Artist's Performance(s) at the venue(s) described therein (the 'Venue' or 'Engagement')." The rider recites that "Producer and Purchaser hereby agree to the following additional terms and conditions, which are necessary in order to provide the best possible show for the Purchaser." Notably, the rider does not explicitly identify Live Nation as the "Purchaser," and does not include any signature. However, as discussed below, Live Nation's pleading subsequently admitted that the rider was part of the parties' agreement, indicating that Live Nation was the "Purchaser." ¶ 9 The rider set forth additional terms and conditions for the performance with respect to topics such as advertising and promotions, staging, and Plaid Paisley's "exclusive control over all creative elements of the Engagement." The rider also set forth terms that were later relied on in Plaid Paisley's breach of contract claim. Among these, section VIII of the rider, titled "Liability," states that "Except as otherwise specifically provided herein, Purchaser assumes full responsibility and liability for the payment of any and all costs, expenses, charges, claims, losses, liabilities and/or damages related to or based upon the presentation or production of the Engagement." Section XIV of the rider contained an "Insurance" provision requiring the "Purchaser" to provide "Commercial General Liability insurance covering all claims, liabilities or losses directly or indirectly resulting from injuries to any person *** in connection with the Engagement" and to list Plaid Paisley and its employees as additional insured. ¶ 10 Significant for this appeal, Section XV of the rider, entitled "Indemnification," included language regarding Live Nation's indemnity obligation that differed from that of the initial tour agreement. The rider states:

"Purchaser agrees to indemnify and hold harmless Producer, Artist, each of their respective employees, contractors and agents from and against any claims, costs (including, without limitation, reasonable attorneys' fees and court costs), expenses, damages, liabilities, losses and/or judgments arising out of, or in connection with, any claim, demand or action made by any party if such are (or are alleged to be) a direct or indirect consequence of (i) the Engagement; or (ii) any breach or alleged breach of any warranty, representation, agreement or covenant made by Purchaser herein."

Thus, unlike the tour agreement, the rider indicated an indemnification obligation for any claims that were "a direct or indirect consequence" of the performance, rather than only claims arising from Live Nation's conduct. ¶ 11 The immediate controversy arose from a personal injury action initiated by Scott Toth, who is not a party to this appeal. On the morning of July 16, 2010, Toth was working as a stagehand in preparation for a concert performance by Brad Paisley at the venue. It is undisputed that, in the course of moving a large "set cart" carrying equipment to set up the stage for the concert, Toth stepped into an uncovered "wire trench" or "trough" used to run cables within the venue, causing him to fall backwards and suffer a leg injury. ¶ 12 In August 2011, Toth filed a complaint against several defendants, including Plaid Paisley Enterprises and Brad Paisley. Also named as individual defendants were Brent Long, Kevin Freeman and Bill Ferris, who were employed by Plaid Paisley as "road manager," "production manager," and "stage manager." Toth's complaint alleged that he was "employed as a stagehand by Live Nation" but that his work was "under the direct supervision, direction and control of Plaid Paisley, Long, Freeman and Ferris." ¶ 13 He alleged that Plaid Paisley had owed him a duty to provide a safe work environment and to use reasonable care in supervising his work, and that Plaid Paisley breached their duties by inter alia, negligently supervising Toth, failing to inspect for dangerous conditions at the worksite, and failure to warn him of a dangerous condition. Toth alleged that as a result of Plaid Paisley's negligence "he was caused to violently fall into an open, unprotected and unidentified hole/trench, that was left open on the worksite/project in the area where [Toth] and other workers were directed to perform their work related activities, and was subsequently struck by a large heavy crate that he was hauling at the time of the fall." ¶ 14 In a separate count, Toth also alleged negligence on the part of Gierczyk, Inc., the builder and designer of the venue; however, those claims are not at issue in this appeal. Toth's complaint did not make any allegations of negligence by Live Nation. ¶ 15 On April 18, 2012, Plaid Paisley filed a "Counterclaim for Contribution and Breach of Contract" (the third-party complaint) against Live Nation as a third-party defendant. The third-party complaint first pleaded a claim for contribution against Live Nation, premised upon alleged breaches of duty owed by Live Nation to Toth in its capacity as Toth's employer. Plaid Paisley alleged that Live Nation breached "a duty to exercise due care and caution for the safety of its workers, including [Toth]" by inter alia, failing to properly instruct and supervise him; failing to ensure a safe place to work; failing to property inspect the "hole/trench" identified in Toth's complaint; and failing to warn him of dangerous conditions at the worksite. ¶ 16 In addition to the negligence-based contribution claim, Plaid Paisley's third-party complaint also pleaded a breach of contract count against Live Nation. Plaid Paisley's breach of contract claim first recited the tour agreement provision that Live Nation would be responsible for "all venue based logistics" including "load-in and load-out arrangements" and "local staffing for installation and set up." The third-party complaint also recited provisions from the rider including section VIII regarding liability and the insurance provision of section XIV. Plaid Paisley's third-party complaint also recited the rider's indemnification provision referring to any claim that was a "direct or indirect consequence of" "the Engagement" or breach of the agreement. Plaid Paisley alleged that Live Nation had breached the parties' contract by refusing to defend and indemnify Plaid Paisley for Toth's lawsuit. ¶ 17 Live Nation filed its answer to the third-party complaint on May 16, 2012. With respect to the contribution claim, Live Nation admitted that Toth "was employed by" Live Nation, but denied that it had breached any duty to Toth. ¶ 18 Answering the counterclaim for breach of contract, Live Nation specifically admitted the existence of each of the contractual terms recited in the third-party complaint, including the provision of the 2010 rider regarding indemnification. With respect to each pleaded provision, Live Nation answered "This Third Party Defendant admits the existence of said Agreement, which speaks for itself." However, Live Nation's answer denied that it had refused an indemnification demand for Toth's lawsuit, or that such action breached the parties' agreement. ¶ 19 With its answer, Live Nation asserted affirmative defenses stating that Toth was Live Nation's employee at the time of the alleged injury; that Live Nation had already paid a workers' compensation claim to Toth arising from the July 16, 2010 incident; and that Live Nation's liability was limited to its workers' compensation liability to Toth. Plaid Paisley filed a reply in which they admitted that Toth was Live Nation's employer but indicated they lacked knowledge as to whether Live Nation had paid a workers' compensation claim. ¶ 20 The parties engaged in discovery, including numerous depositions. In his deposition, Toth testified that for many years he had been a member of Local Union 125, a stagehands' union that provided laborers to set up staging for concert performances at the First Midwest Bank Amphitheater and other venues. ¶ 21 Although he had been contacted by the union to work at the venue in connection with the July 2010 Brad Paisley concert, he testified that at the venue he took direction from Plaid Paisley's "production crew," including Ferris. Toth acknowledged that he had been paid by Live Nation, but he answered negatively when asked if he had taken direction from anyone other than "the tour," i.e., Plaid Paisley. ¶ 22 Toth testified that on the day of the incident he arrived at the venue shortly before 8:00 a.m., and that he was injured a short time later. He recalled that after he arrived on site, the union "steward", Joe Mancini, introduced the stagehands to Plaid Paisley's stage manager and told the stagehands to take direction from Plaid Paisley. Toth testified that he was told by Mancini: "If you have any issues, see the stage manager. If you still have issues, then you come and see me. But we do what the tour says. We answer to them." ¶ 23 Toth testified that after members of a separate union (the Teamsters) unloaded staging equipment from Plaid Paisley's trucks, Plaid Paisley personnel directed the stagehands where to take the equipment. Toth recalled seeing Ferris and agreed that Ferris was "in charge" of the set up process. ¶ 24 Toth testified that he was injured as he and three other stagehands were in the process of moving a very heavy wheeled metal "set cart." Toth agreed that Plaid Paisley personnel instructed the stagehands as to the route by which they were to transport the cart; he testified that someone from "the tour" directed them to take the set cart "down the ramp, stage left into the pit" near the stage. After the cart was down the ramp, he was "walking backwards" with the other stagehands attempting to move the cart to "the pit in front of the stage." Toth stepped into a "trough," causing him to fall backwards while "the set cart just continued moving and just went right up my shin, my leg." ¶ 25 Toth described the wire trench as "a trough in concrete that cable is run from the stage to front of house." Toth testified that, in his experience, typically such troughs are covered during the unloading of equipment, and that they are only uncovered to run wiring. Toth testified that in his past experience as a stagehand, the touring company (in this case Plaid Paisley) would make the decision as to when to remove the trough covers. Toth did not know why this particular trough was uncovered, or who uncovered it. ¶ 26 Toth acknowledged that Live Nation paid him but testified that the union and the tour directed his work. Asked who his employer was, Toth answered (over objection): "I was working for the local [union]. But I guess technically, it would have been Live Nation since they signed the check, but, you know, that's all they do until we're told what to do when the show arrives and do what the tour tells us." ¶ 27 The parties also deposed the three stagehands (Lora Ross, Anthony Bradshaw, and Monique Hunt) who were attempting to move the set cart with Toth when he was injured. Like Toth, they similarly testified that they were contacted through the union and were paid by Live Nation but that they received specific work instructions from the stage manager or other Plaid Paisley personnel. The stagehands specifically testified that Plaid Paisley personnel (and not Live Nation) had instructed them to move the set cart to the "pit" area of the stage. ¶ 28 Joe Mancini, steward of the stagehand's union, was deposed. Mancini testified that Chris Weathers, an employee of Live Nation, had told him the number of stagehands needed to set up the show, and that Mancini was responsible for ensuring that the stagehands arrived. Mancini testified that on the morning of July 16, 2010, he introduced the stagehands to Ferris, and that Plaid Paisley, not the union or Live Nation, directed the stagehands regarding the unloading of equipment. ¶ 29 Chris Weathers, a production manager for Live Nation, testified that he contacted the Teamsters and stagehands unions to obtain labor to set up the venue, based on instructions from Plaid Paisley as to the number of laborers needed. Weathers testified that his usual practice on the morning of a show was to arrive at the venue before the touring company's trucks arrived to conduct "a general observation first thing in the morning that the venue is prepared and ready" for the tour's arrival. However, he denied that it was his practice to inspect the work areas of the venue, and did not recall doing so on July 16, 2010. ¶ 30 Weathers stated that he had introduced the union stagehands to Plaid Paisley's production manager and stage manager, but otherwise had no involvement in directing the unloading or set-up of the tour's equipment. Instead, he testified that the union stagehands were expected to follow the directions of Plaid Paisley, and agreed that the work areas were under Plaid Paisley's control. ¶ 31 Weathers agreed that wire trenches are normally covered when the venue is turned over to the tour and that, to his knowledge, the trenches were covered prior to the incident. He agreed that trench covers would be not removed unless directed by Plaid Paisley. Weathers did not know who had removed the cover of the trench that Toth stepped into, or when it was removed. ¶ 32 Courtney Rourke, operations manager for the First Midwest Bank Amphitheater, also testified on behalf of Live Nation pursuant to Supreme Court Rule 206(a)(1).¹ She acknowledged that Live Nation owns the venue, and admitted that Toth was "an employee of Live Nation" because Live Nation paid him. However, she testified that Live Nation gave no direction with respect to unloading or moving the tour's equipment at the venue. ¶ 33 Rourke explained that Live Nation will contact unions, but that union workers take instructions from the touring company for the unloading and set-up of equipment. Rourke testified that Plaid Paisley had "control" of the staging area "[b]ecause it's their equipment that's being set up and it's their - the production of their show. *** so we basically hand them the stage and the area and let them set it up how they need to set it up." ¶ 34 Rourke testified that it is Live Nation's practice to make sure that there are covers for the wire trenches in place before the tour begins to set up and that, to Live Nation's knowledge, they were covered before Plaid Paisley took control of the staging area on the morning of July 16, 2010. Rourke agreed that once control of the area was turned over to the tour, only individuals associated with or directed by Plaid Paisley could have removed the trench covers. ¶ 35 The parties also deposed Ferris, Freeman, and Long, Plaid Paisley's stage manager, production manager, and tour manager. Of these three individuals, only Ferris testified on behalf of Plaid Paisley pursuant to Supreme Court Rule 206(a). ¶ 36 Ferris testified that his role as stage manager was "To coordinate the load-in and out of the show day and be the *** intermediary between the venue and the labor that has been hired." Ferris agreed that Plaid Paisley personnel would direct the union stagehands where equipment should be moved, and that he would be present during the unloading period. Ferris testified that, prior to the unloading he would usually meet with a representative of the venue or the promoter (in this case Live Nation) to make sure there was sufficient labor present. He recalled that on the morning of July 16, 2010, he did a "walk-around" at the venue to make sure the stage was set up correctly prior to unloading of equipment. He initially testified that Weathers from Live Nation may have been with him at that time, but later admitted that he did not have a specific recollection that Weathers was present. ¶ 37 Ferris agreed that it is common at amphitheatres to have wire trenches in the "pit" areas of the stage; he testified that the venue had two wire trenches for audio wiring and lighting. He testified that Plaid Paisley usually checked to see whether such wire trenches were uncovered: "we do note if the covers are off in the morning, we show up sometimes from the night before, there might have been a show and they were left uncovered. And before we begin work or our guys are working, we have to cover them back up to roll the items into the pit." Ferris agreed he would have specifically checked to ensure whether the wire trenches were covered before equipment was moved down into the pit area. ¶ 38 Ferris agreed that it would be uncommon for the wire trenches to be uncovered prior to unloading the tour's equipment and that it would be unsafe for workers to move equipment into the pit area with an uncovered trench. Ferris agreed that if he had seen cable trenches left uncovered, he would not allow workers to move equipment into the area. ¶ 39 Ferris specifically recalled that the trenches were covered on the morning of July 10, 2016 when he did a "walk-through." He estimated about 30 minutes passed after the time he noticed that the trenches were covered before the unloading of the tour's equipment began. Ferris had observed Toth lying on his back after the incident; he saw that Toth's leg was in the wire trench and agreed that "the cover was off." However, Ferris did not see anyone remove any wire trench covers. ¶ 40 Ferris did not recall seeing anyone from Live Nation other than Weathers the morning of Toth's injury. Ferris agreed that Toth's work was directed by Plaid Paisley employees and the union, and not by Live Nation. Ferris agreed that instructions to move the cart into the pit area would have come from someone associated with Plaid Paisley. ¶ 41 In his deposition, Kevin Freeman, Plaid Paisley's production manager, testified that he helped determine how many union laborers were needed for each show, and that he passed that information to Live Nation. Freeman explained that in addition to himself and Ferris, the tour had a number of department heads that supervised the stagehands' work. He explained that a "department representative" would direct the stagehands where equipment should be moved. Freeman was not personally involved in directing the stagehands on the morning of Toth's injury but agreed that someone from Plaid Paisley, and not Live Nation, would have directed his work. ¶ 42 Freeman indicated that he and Ferris "did a walk-through" of the venue before any of the work started, but could not recall if the wire trenches were covered at that time. Freeman testified that the purpose of the "walk-through" is not solely for safety, but agreed that he would "be keeping an eye out" for any hazardous condition. He also agreed when asked if he would expect Plaid Paisley employees to attempt to "ensure that the areas they are sending people were safe." Freeman also agreed that generally, stagehands are not allowed to touch or remove wire trough covers unless they are directed by Plaid Paisley. ¶ 43 Brent Long, Plaid Paisley's tour manager, testified that he was not involved with the production or set-up of the stage, was not present in the stage area at the time of Toth's injury, and did not recall an inspection of the venue. However, he testified that Ferris would be responsible to do a visual inspection of the work areas at the venue. Long agreed that generally wire trenches should be covered when workers are in the area, but he did not know whether the wire trench was covered or uncovered at the time of Toth's incident. ¶ 44 The parties also deposed Toth's safety expert witness, Frank Burg. Burg opined that Plaid Paisley was responsible for Toth's injury because Plaid Paisley "controlled the stagehands" and the worksite. He opined that the cause of Toth's injury was Plaid Paisley's lack of safety programs and procedures, that it was a "bad practice" to move heavy carts down ramps using manual labor, and that the wire trench should have been covered or barricaded. He opined that this was Plaid Paisley's responsibility and denied that Live Nation controlled Toth's work. ¶ 45 On August 20, 2014, Live Nation moved for summary judgment. With respect to Plaid Paisley's contribution claim, Live Nation argued that it did not have control over or owe a duty of care to Toth. Live Nation argued that the deposition testimony established that Toth "received all of his instructions and supervision from the tour" and that the stagehands' work was under the sole control of Plaid Paisley. Live Nation argued that "the tour was responsible for the stagehands' safety," that the wire trench "could only be opened at the direction of [Plaid Paisley]" and that Plaid Paisley had a duty to warn stagehands about the uncovered trench. Live Nation contended that it was "only [Toth]'s employer in the sense that it issued his paycheck" but did not control Toth's work. Thus, Live Nation argued that Plaid Paisley, not Live Nation, had a duty to provide Toth with a safe workplace. ¶ 46 With respect to Plaid Paisley's breach of contract claim, Live Nation's summary judgment motion relied only on the indemnification provision of the original 2009 tour agreement to argue that it had no duty to defend or indemnify Toth's lawsuit. Live Nation argued that "The Tour Agreement states Live Nation indemnifies and holds harmless [Plaid Paisley] from and against any suits resulting from the negligence, willful actions, or omissions of Live Nation]." Live Nation urged that since Toth's complaint did not include any allegations against Live Nation, "Live Nation has no duty to defend the Paisley Defendant in the underlying lawsuit because the suit did not result from any alleged action or omission by Live Nation." Notably, Live Nation's motion for summary judgment made no mention of the indemnity provision in the rider. ¶ 47 Plaid Paisley responded to the motion for summary judgment on September 24, 2014. With respect to the contribution claim, Plaid Paisley argued that Live Nation, as the landowner of the venue and as Toth's "employer," owed duties to Toth. Plaid Paisley contended that Live Nation had control over the venue and that "it can be inferred that the trough was not covered or that the cover was missing when the Tour arrived to the venue." Plaid Paisley argued that Live Nation breached its duty to provide a safe workplace because it "knew that the trough should be covered," that an injury from stepping into the trench was reasonably foreseeable, and that Live Nation could have prevented Toth's injury by inspecting, covering or barricading the trench. ¶ 48 With respect to the breach of contract claim, Plaid Paisley's response to Live Nation's motion for summary judgment did not discuss any relationship between the indemnification provisions of the original 2009 tour agreement and the 2010 rider. Rather, Plaid Paisley stated that "The crux of [Plaid Paisley's] claim is that Live Nation breached the Tour Agreement because its insurer refused to defend them under Live Nation's policy because Live Nation had not reached its deductible." Plaid Paisley's response suggested that "Live Nation may have misconstrued" the breach of contract claim and noted that Plaid Paisley sought leave to amend the claim "to include allegations that Live Nation breached the Tour Agreement by failing to provide the insurance required by the policy." ¶ 49 Live Nation's reply, filed October 6, 2014, argued that summary judgment could not be denied on the basis of any alleged duties that Live Nation owed to Toth as the owner of the venue, since the third-party complaint had not pleaded any premises liability claim. Live Nation argued that Plaid Paisley "cannot raise a theory of liability for the first time in a response brief to a motion for summary judgment." ¶ 50 Live Nation argued that only Plaid Paisley had a duty to ensure the safety of the worksite, since Plaid Paisley controlled the work and "everyone at the venue expected the Tour to ensure the safety of the stagehands." Live Nation urged that this duty should fall on Plaid Paisley because they "were in a superior position to inspect the venue because they were the only ones who knew their concert set-up process and its potential hazards." ¶ 51 With respect to the breach of contract count, Live Nation's reply maintained that the tour agreement only required Live Nation to defend any claims resulting from Live Nation's negligence. Live Nation maintained it had no duty to indemnify because Toth had only alleged negligence by Plaid Paisley. ¶ 52 On October 14, 2014, Plaid Paisley moved for leave to file an amended third-party complaint containing: (1) premises liability allegations that Live Nation owned the venue and had breached its duty to maintain the venue in a safe condition; (2) a count that Live Nation breached the tour agreement "by failing to oversee, direct and implement the venue based logistics relating to the set-up of the Tour's production" by, inter alia, failing to provide a safe workplace; (3) an independent count of "contractual indemnification" alleging that Live Nation's negligence with respect to Toth triggered its obligation to indemnify under the tour agreement,² and (4) a separate count for breach of contract alleging Live Nation's failure to procure insurance coverage for Plaid Paisley. ¶ 53 On October 14, 2014, the trial court entered an order granting Live Nation's motion for summary judgment. Notably, the record on appeal contains no hearing transcript, record of proceedings, bystander's report, or agreed statement of facts from the proceedings on that date. The October 14 order did not specify the court's grounds for granting summary judgment. ¶ 54 On October 20, the trial court entered an order denying Plaid Paisley's motion for leave to file an amended third-party complaint. Significantly, the October 20, 2014 order also set forth findings regarding Live Nation's motion for summary judgment, which it had technically granted six days earlier. With respect to Plaid Paisley's contribution count against Live Nation, the court found that "there is no question of material facts as to the following: 1) Live Nation did not owe a duty nor undertake a duty to [Toth] with regard to [Toth's] work and that Live Nation did not control or direct [Toth's] work at the time of the alleged incident and that Live Nation did not owe [Toth] a duty as the owner of the premise[s]." With respect to Plaid Paisley's breach of contract count, the court's order stated "there is no question of material fact, finding that Live Nation did not have a duty to defend and that Live Nation did not have a duty to indemnify the Paisley Defendants." The October 20, 2014 order concluded: "With Live Nation's Motion for Summary Judgment having been granted ***, there is no just reason for delaying either enforcement or appeal pursuant to Illinois Supreme Court Rule 304(a)." ¶ 55 Plaid Paisley moved for an extension of time to file a notice of appeal pursuant to Supreme Court Rule 303(d). This court granted the motion, allowing leave to file the notice of appeal on or before December 29, 2014. On December 23, 2014, Plaid Paisley filed a notice of appeal from the October 14 and October 20 orders granting summary judgment in favor of Live Nation. Plaid Paisley did not appeal from the denial of its motion to amend its third-party complaint.

1 Rule 206 (a)(1) allows for litigants to examine a corporation's "representative deponent," and allows a corporation to designate an individual to testify on its behalf "as to matters known or reasonably available to the organization." Ill. S. Ct. R. 206(a)(1) (eff. Feb. 16, 2011).

2 Notably, the proposed amended complaint's count for indemnification did not reference the indemnification provision of the 2010 rider. --------

¶ 56 ANALYSIS

¶ 57 We have jurisdiction to review the entry of summary judgment, notwithstanding that this did not resolve the claims of all parties to this litigation, as the trial court made a specific and appropriate finding that there was no just reason to delay appeal pursuant to Supreme Court Rule 304(a) (eff. Feb. 26, 2010). ¶ 58 On appeal, Plaid Paisley asserts that the trial court erred by granting summary judgment to Live Nation with respect to (1) Plaid Paisley's negligence-based contribution claim and (2) the breach of contract claim. ¶ 59 Before addressing the merits, we first acknowledge that the record on appeal does not include a transcript or record of proceedings from the hearings corresponding to the court's entry of summary judgment. We recognize that "an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis." Foutch v. O'Bryant, 99 Ill. 2d 389, 391 (1984). "Any doubts which may arise from the incompleteness of the record will be resolved against the 19 appellant." Id. at 392. Thus, gaps in the record are construed against Plaid Paisley and in favor of affirming the trial court. ¶ 60 Summary judgment is proper where "the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." Joyce v. Mastri, 371 Ill. App. 3d 64, 73 (2007). If the undisputed facts fail to establish a necessary element of a plaintiff's cause of action, summary judgment is appropriate. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). We review a circuit court's grant of summary judgment de novo. Joyce, 371 Ill. App. 3d at 73. ¶ 61 We first address the grant of summary judgment with respect to Plaid Paisley's contribution claim against Live Nation, which was premised on alleged negligence by Plaid Paisley with respect to Toth. Negligence "requires [the] plaintiff to prove the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the injury proximately caused by that breach. [Citation.] Whether a duty exists is a question of law to be determined by the court." (Internal quotation marks omitted). Lederer v. Executive Construction, Inc., 2014 IL App (1st) 123170, ¶ 48. ¶ 62 "The question of whether a duty exists in a particular case and the scope or range of protection of such duty are questions of law. [Citation.] The determination of whether a duty exists, and the scope of that duty, depends not only on the foreseeability of harm, but also on such policy considerations as the magnitude of the risk involved, the burden of requiring the employer to guard against that risk, and the consequences of placing that burden on the employer." Taake v. WHGK, Inc., 228 Ill. App. 3d 692, 712 (1992). 20 ¶ 63 The trial court found that Live Nation owed no duty with respect to Toth's workplace, as "Live Nation did not control or direct [Toth's] work at the time of the alleged incident" and also specifically found that Live Nation owed no duty to Toth in its capacity as the owner of the premises. Plaid Paisley argues that the court erred, urging that Live Nation "owed a multi-faceted duty of reasonable care to Toth" as the owner of the venue, the promoter of the tour, and as Toth's employer. ¶ 64 We first find that, to the extent Plaid Paisley alleges duties owed by Live Nation due to its role as owner of the venue, those arguments were not properly before the court. Plaid Paisley's third-party complaint simply did not plead any duties owed by Live Nation as landowner. Indeed, Plaid Paisley's complaint did not even allege that Live Nation owned the venue. ¶ 65 It was improper for Plaid Paisley to oppose summary judgment by asserting a negligence theory that was not expressly pleaded. "When ruling on a motion for summary judgment, the trial court looks to the pleadings to determine the issues in controversy." Filliung v. Adams, 387 Ill. App. 3d 40, 51 (2008). Our court has held that a plaintiff may not seek summary judgment on facts that it failed to plead. See id. ("If a plaintiff desires to place issues in controversy that were not named in the complaint, the proper course of action is to move to amend the complaint. [Citations.] If the plaintiff does not seek to amend, then it cannot move for summary judgment on those issues."). By the same token, it is inappropriate to attempt to oppose summary judgment through an unpleaded theory. ¶ 66 Although Live Nation has acknowledged its ownership of the venue, Plaid Paisley's third-party complaint failed to allege that fact or any corresponding duties owed to Toth by Live Nation. Plaid Paisley belatedly sought to amend its contribution claim to plead such duties only 21 after Live Nation moved for summary judgment. As the premises liability theory was not properly before the trial court, we will not review the entry of summary judgment on the contribution claim under that theory of liability. ¶ 67 However, we will review the summary judgment order on Plaid Paisley's contribution claim with respect to the duties actually pleaded in Plaid Paisley's complaint. Specifically, Plaid Paisley pleaded that Live Nation had breached duties to Toth in its capacity as his employer. ¶ 68 "While an employer is not a guarantor of the safety of its employees, an employer does have a duty to provide its employees with a reasonably safe place in which to work. [Citation.] The employer must use reasonable care to provide for the safety of its employees. [Citations.] Put another way, an employer has a duty to use ordinary care to provide its employees with a reasonably safe workplace." Taake v. WHGK, Inc., 228 Ill. App. 3d at 712. However, we are mindful that the scope of an employer's duty depends on the particular facts of the case and policy considerations, including "the burden of requiring the employer to guard against th[e] risk, and the consequences of placing that burden on the employer." Id. ¶ 69 Live Nation's answer to the third-party complaint admitted that it "employed" Toth. However, Live Nation argued that it owed no duty because it had not controlled Toth's work at the time of his injury. In granting summary judgment, the trial court found that that "Live Nation did not owe a duty *** with regard to the Plaintiff's work and that Live Nation did not control or direct the Plaintiff's work at the time of the alleged incident." ¶ 70 Our de novo review of the record leads us to agree with the trial court that Live Nation did not retain such control over Toth's work and worksite so as to give rise to a duty. Although Live Nation owned the venue and paid Toth through an arrangement with the stagehands' union, the evidence made clear that, at the time of Toth's injury, Plaid Paisley controlled the stagehands' 22 worksite and directed their work. Furthermore, since there was no evidence suggesting that Live Nation could have removed the wire trench cover (which Plaid Paisley admitted was in place shortly before the incident), there was no issue of fact as to whether any act or omission by Live Nation proximately caused Toth's injury. ¶ 71 Significantly, there is no dispute regarding the manner of Toth's injury - that he stepped into an uncovered wire trench, while he and other stagehands attempted to transport a set cart at the direction of Plaid Paisley personnel. Thus, Plaid Paisley's negligence claim boils down to whether Live Nation breached a duty by failing to ensure that the wire trench was covered or barricaded at that time, or otherwise failed to warn Toth of the hazard. ¶ 72 However, the testimony regarding the relationship of the parties and control over the worksite is clear that, at the time of Toth's injury, Live Nation did not retain control over Toth's work or the worksite. Rather, the deposition testimony (including that of Plaid Paisley's own witnesses) established that Plaid Paisley had control of the worksite and directed the stagehands' work. ¶ 73 The uncontroverted testimony established that: (1) Plaid Paisley informed Live Nation as to the number of stagehands needed for the concert, which Live Nation communicated to the union; (2) the union directly contacted stagehands such as Toth to show up at the venue on the morning of the concert; (3) at the venue the stagehands were directed to take orders from Plaid Paisley; and (4) Plaid Paisley personnel (not Live Nation) directed and supervised the stagehands in moving and setting up Plaid Paisley's equipment. In other words, although nominally employed and paid by Live Nation, the work of stagehands such as Toth was controlled by other entities. Under these circumstances, we do not find that Live Nation and Toth stood in such a 23 relationship that the law should impose upon Live Nation a duty to ensure his safety, at least not when his work was controlled and directed by other entities. ¶ 74 In this regard, we find instructive our court's case law in the context of deciding whether a general contractor may be liable for injuries to a subcontractor's employees, if the general contractor retained sufficient control of a subcontractor's work. Those cases illustrate that the extent of control determines the extent of duty owed to the injured plaintiff. We find the question of Live Nation's duty is analogous. ¶ 75 Our case law has adopted section 414 of the Restatement (Second) of Torts in determining the scope of a general contractor's duty based upon its control over the work performed by a subcontractor. "Although a general contractor is usually not liable for the negligence of an independent contractor that it employs [citation], section 414 of the Restatement (Second) of Torts has carved out a 'retained control' exception which 'provides for both vicarious and direct liability, depending on the degree of control that the defendant retains over its independent contractor." Lederer, 2014 IL App (1st) 123170, ¶ 49. ¶ 76 Section 414 of the Restatement thus provides: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Restatement (Second) of Torts § 414 (1965). Comment a to section 414 further explains: 24 "If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rule of that part of the law of Agency which deals with the relation of master and servant. The employer may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others." Restatement (Second) of Torts, § 414, cmt. a (1965). ¶ 77 "Thus, a general contractor may be held vicariously liable for a subcontractor's negligence 'under the principles of agency where the employer retains control over the operative detail of any part of the contractor's work.'" Lederer, 2014 IL App (1st) 123170, ¶ 51 (quoting Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 314 (2004)). "Alternatively, it may be found directly liable if the employer retains only supervisory control, i.e., power to direct the order in which work is done, or to forbid its being done in a dangerous manner." (Internal quotation marks omitted.) Id. 25 ¶ 78 Comment c to section 414 further explains the level of "retained control" over the subcontractor's work necessary for the general contractor to be liable: "In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." Restatement (Second) of Torts § 414, cmt. c, (1965). ¶ 79 In this context, our court has held that "[t]he central issue is retained control of the independent contractor's work, whether contractual, supervisory, operational, or some mix thereof. The party who retains control is the logical party upon whom to impose a duty to ensure worker safety." (Emphasis added.) Martens, 347 Ill. App. 3d at 318. ¶ 80 Thus, in deciding whether a general contractor can be held liable in negligence for injuries to employees of subcontractors, courts examine the extent of control of the work of its subcontractors. See, e.g., Lederer, 2014 IL App (1st) 123170, ¶ 60 (reversing summary judgment in favor of defendant general contractor where "plaintiff presented sufficient undisputed evidence to establish as a matter of law that [general contractor] retained sufficient 26 supervisory control such that it had a duty to exercise this control with reasonable care"); Martens, 347 Ill. App. 3d 303 (affirming summary judgment in favor of defendants where "[p]laintiff fails to establish that defendants supervised [sub-subcontractor's] work or maintained an extensive work site presence" and where sub-subcontractor "was free to perform its work in its own way"); Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 48 (2004) (finding that general contractor was not subject to liability where it "did not control the operative detail of [subcontractor's] methods of work," "did not supply any equipment to [subcontractor's] employees" and "did not direct the [subcontractor's] carpenters how to perform their tasks"). ¶ 81 Similarly, in deciding Live Nation's duties with respect to Toth, we believe the relevant inquiry is whether Live Nation retained control over the work of Toth and other union stagehands at the time of Toth's injury. We find no genuine issue of material fact that Live Nation did not retain such control. ¶ 82 Although Live Nation ultimately paid Toth and owned the venue, it is clear that Live Nation did not control the operative detail of Toth's work. Deposition testimony established that Plaid Paisley, not Live Nation, directed union members in unloading and transporting equipment, and that Toth was injured while moving a set cart at the specific direction of Plaid Paisley personnel. ¶ 83 Further, the witness testimony made clear that Plaid Paisley exercised control of the area where Toth was injured and the hazard (the wire trench) that caused his injury. Specifically, Ferris' testimony on behalf of Plaid Paisley indicated his awareness of this potential hazard, and that he checked to ensure that such trenches are covered before directing workers to those areas. Ferris testified that Plaid Paisley's practice is not to begin work unless trenches were covered:" [W]e do note if the covers are off in the morning ***. And before we begin work or our guys are 27 working, we have to cover them back up to roll the items into the pit." Such testimony acknowledged Plaid Paisley's ability to control the means by which Toth was injured. Furthermore, multiple witnesses confirmed that Live Nation was not present in the area and played no role in supervising the worksite. Under these circumstances, we decline to impose a duty upon Live Nation to ensure the safety of workers over whom it did not exercise control. ¶ 84 We further note that, to the extent Live Nation had a duty to keep wire trenches covered at the venue before Plaid Paisley took control of the worksite, there was nothing to suggest that Live Nation had breached such duty, or proximately caused Toth's injury. Ferris testified unequivocally that he observed that the wire trenches were, in fact, covered on the morning of July 16, 2010, shortly before Toth's injury. Live Nation's witnesses similarly testified that the trenches were covered before Plaid Paisley took control. All the evidence suggests that the trench cover was removed during the unloading process after Plaid Paisley had taken control. ¶ 85 We thus agree with the trial court that Live Nation did not have a duty to ensure Toth's safety at the time of his injury, as necessary to support a negligence claim against Live Nation. As we conclude that Plaid Paisley could not establish that Live Nation was negligent with respect to Toth's injury, we affirm the trial court's grant of summary judgment in favor of Live Nation with respect to Plaid Paisley's contribution claim. ¶ 86 We reach a different conclusion, however, with respect to Plaid Paisley's breach of contract claim against Live Nation. The trial court determined that there was no material issue of fact that Live Nation did not have a duty to defend or indemnify Plaid Paisley for Toth's personal injury lawsuit. We disagree. Reviewing the pleadings and evidence de novo, we find a genuine issue of material fact with respect to whether Plaid Paisley was obligated to indemnify for the Toth lawsuit, given the apparently conflicting language of the indemnification provisions of the 28 2009 tour agreement and the 2010 rider. Thus, we reverse the court's entry of summary judgment on Plaid Paisley's breach of contract claim. ¶ 87 "To establish a breach of contract claim, a plaintiff must prove the existence of a valid and enforceable contract, performance by the plaintiff, breach of the contract by the defendant, and damages or injury to the plaintiff resulting from the breach." Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 13. The plaintiff must plead "definite and certain terms" of the contract. DiCosola v. Ryan, 2015 IL App (1st) 150007, ¶ 11. ¶ 88 Summary judgment is not appropriate on a breach of contract claim if a question remains as to the contract terms intended by the parties. "When a contract is the subject of a summary judgment motion, the appropriateness of summary judgment will turn on the clarity of the contract terms under scrutiny." (Internal quotation marks omitted.) Zubi v. Acceptance Indemnity Insurance Co., 323 Ill. App. 3d 28, 33 (2001). "Summary judgment is a proper procedure where *** there is no dispute as to the language and formation of the agreement [citation]. However, it is a question of fact whether a breach of contract has occurred [citation] or whether the agreement contains an ambiguity which requires the admission of extrinsic evidence. [Citation]." Giannetti v. Angiuli, 263 Ill. App. 3d 305, 312-13 (1994); see also Dudek, Inc. v. Shred Pax Corp., 254 Ill. App. 862, 868-69 (1993) (reversing summary judgment on breach of contract claim where there were "two entirely different sets of payment terms" and "conflicting evidence as to what the parties intended"). ¶ 89 In this case, the record contains two contractual provisions, each purporting to define the scope of Live Nation's indemnity obligation. Those provisions appear to conflict. This creates an issue of fact as to the scope of indemnification to which the parties intended to agree and, in turn, whether Live Nation's alleged refusal to indemnify Toth's lawsuit breached such agreement. 29 ¶ 90 The indemnity provision set forth in the original 2009 tour agreement indicates Live Nation's obligation to indemnify Plaid Paisley "from and against any and all third party claims *** suffered or incurred by [Plaid Paisley] as a result of the negligence, willful actions or omissions of" Live Nation, or arising from Live Nation's breach of the agreement. In contrast, the indemnification clause of the 2010 rider suggests a much larger scope of Live Nation's obligation, arguably extending to any claims arising from Brad Paisley's performance at the venue or breach of any agreement: "Purchaser [Live Nation] agrees to indemnify and hold harmless [Plaid Paisley] from and against any claims, costs ***, expenses, damages, liabilities, losses and/or judgments arising out of, or in connection with, any claim, demand or action made by any party if such are (or are alleged to be) a direct or indirect consequence of (i) the Engagement; or (ii) any breach or alleged breach of any warranty, representation, agreement or covenant made by Purchaser herein." (Emphasis added.) ¶ 91 Notably, the breach of contract count in Plaid Paisley's third-party complaint specifically recited the rider's indemnity clause. Furthermore, Live Nation's answer to the third-party complaint did not deny that this provision of the rider was a part of the parties' contract, but pleaded that it "admits the existence of said Agreement, which speaks for itself." ¶ 92 Despite having admitted the existence of the indemnity provision in the 2010 rider, it does not appear that Live Nation discussed the provision in its trial court briefing. Live Nation's appellate brief also fails to discuss the relationship between the indemnification provisions of the original tour agreement executed in 2009 and the 2010 rider, which is arguably more expansive. 30 Rather, Live Nation has relied solely on the indemnity language in the original 2009 tour agreement to argue that, since Toth's underlying complaint did not allege negligence by Live Nation, it had no indemnity obligation. Thus, Live Nation's argument has not addressed the potential application of the rider term calling for indemnity of any claim that is "a direct or indirect consequence of" "the Engagement." ¶ 93 For its part, Plaid Paisley - despite pleading the rider's indemnity clause in its third-party complaint - appears not to have raised the issue of the potential difference between the 2009 agreement and the 2010 rider and which of the two the parties intended to govern their agreement. Plaid Paisley has not suggested that there is any conflict between the provisions. In fact, Plaid Paisley's appellate brief recites both the indemnity language in the 2009 tour agreement as well as the provision in the 2010 rider. Plaid Paisley argues that both indemnity provisions support Live Nation's obligation to indemnify in this case, since both provisions call for Live Nation to indemnify claims arising from Live Nation's breach of the tour agreement. Plaid Paisley argues that Live Nation's alleged failure to ensure a safe work area for Toth breached its obligation under the tour agreement to oversee, direct and implement "venue based logistics" for the July 16, 2010 concert. In turn, Plaid Paisley argues, this breach of the tour agreement triggers Live Nation's indemnity obligation. ¶ 94 It is puzzling to this court that Plaid Paisley did not rely on the broader language of the indemnity provision of the 2010 rider to make a more straightforward argument for Live Nation's obligation to indemnify. That is, Plaid Paisley could simply argue that Live Nation was obligated to defend and indemnify Toth's lawsuit, because Toth's injury in setting up for the concert was a "direct or indirect consequence" of the "Engagement" under the terms of the rider. 31 ¶ 95 Notwithstanding the parties' failure to address this obvious issue, we find that the apparently conflicting terms of the indemnity provision in the original tour agreement and the 2010 rider present a genuine issue of material fact regarding the scope of Live Nation's indemnity obligation that precludes summary judgment. ¶ 96 A different outcome on Plaid Paisley's claim for indemnification could result, depending on whether the parties intended to limit the scope of Live Nation's indemnity obligation to claims arising from its own conduct (as stated in the original indemnity provision), or if the 2010 rider broadened Live Nation's obligation to claims that were "a direct or indirect consequence of" the July 16, 2010 concert performance. Without clarity as to which terms applied, factual issues exist as to the terms of the parties' contract and, in turn, whether Live Nation's alleged refusal to indemnify Plaid Paisley breached the agreement. ¶ 97 We acknowledge, as emphasized by Live Nation's brief, that the appellate record does not contain a transcript or record of proceedings reflecting the contents of the argument on the summary judgment motion. As a result, we do not know if the court heard any oral argument on the relationship between the indemnity provisions in the 2009 tour agreement and the 2010 rider. ¶ 98 Generally, gaps in the record will be construed against the appellant. See Midwest Builder Distributing, Inc. v. Lord and Essex, Inc., 383 Ill. App. 3d 645, 655 (2007). "However, in instances where the court has all the evidence it needs to make a proper decision on the merits under the appropriate standard of review the court may undertake substantive analysis of the case even if the record is not fully complete." Id. In this case, we conclude that the available record - namely, the obviously contradictory indemnity language of the 2009 tour agreement and the 2010 rider, and related pleadings—is sufficient for us to determine that an issue of material fact remained as to which indemnity provision applied, thereby precluding summary judgment. 32 ¶ 99 Having determined that the inconsistent indemnity language presented a genuine issue of material fact which precluded summary judgment, we need not address the other arguments raised by Plaid Paisley with respect to its breach of contract claim, including its contention that Live Nation breached the tour agreement by "fail[ing] to oversee, direct and implement logistics" at the venue. ¶ 100 In summary, we affirm the trial court's grant of summary judgment in favor of Live Nation with respect to the contribution claim pleaded by Plaid Paisley. However, we find there was a genuine issue of material fact with respect to the third-party complaint's breach of contract claim, and therefore, we reverse the trial court's order granting summary judgment to Live Nation on that count. Thus, we remand for further proceedings with respect to that claim. ¶ 101 Affirmed in part and reversed in part. ¶ 102 Cause remanded.