dissenting:
In reversing a proper grant of summary judgment, the majority has manufactured a cause of action that was never pleaded nor supported by the record. In doing so, the majority ignores controlling case law and instead relies upon a single case, Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 622 N.E.2d 788, which is legally and factually inapposite.
Plaintiff’s complaint contains a single count alleging in pertinent part that McDonald’s Corporation, along with other unknown owners, owned, leased, operated, maintained, and controlled the premises where plaintiff was injured, and that it "was the duty of the defendants to exercise reasonable care and diligence to keep and maintain said premises in a reasonably safe condition.” Nowhere in the complaint is there any allegation of agency, actual or apparent. Plaintiff neither amended the complaint nor added the "unknown parties” to the action.
McDonald’s Corporation moved for summary judgment and in support filed an affidavit which stated:
"3) McDonald’s Corporation does not own the business specified above.
4) McDonald’s Corporation does not operate the business specified above.
5) McDonald’s Corporation does not participate in the management of the business specified above.
6) McDonald’s Corporation does not file a tax return for or on behalf of the business specified above.
7) McDonald’s Corporation does not, nor does it have the right to, hire, discharge or discipline employees of the business specified above.
***
10) McDonald’s Corporation does not, nor did it have the right to, control the day-by-day activities necessary to the business operations of the restaurant specified above.
11) At the time of the alleged incident, the restaurant business specified above was owned and operated by John/Sheri Enterprises, Inc. pursuant to the terms of a franchise agreement dated August 9, 1982.”
McDonald’s Corporation also filed copies of the operator’s lease, the license agreement, and the franchise agreement.
Plaintiff’s response to the summary judgment motion does not deny any of these facts. Plaintiff’s affidavit simply contains the following conclusionary language:
"5. Upon information and belief, the executed license agreement referred to in Defendant’s Motion contains language which establishes that Defendant, MCDONALD CORPORATION, maintained control in the operation of the franchise and over the daily procedures and business at 29 East 87th Street in Chicago.”
This was the state of the record when the trial judge entered summary judgment. I repeat, the complaint did not contain any allegations of agency, nor was any evidence of agency proffered by the plaintiff. The sole issue framed by the parties was whether, after reviewing the documents, a question of fact existed as to whether McDonald’s Corporation operated, managed, or controlled the subject premises.
A portion of the opinion, with which I agree, states McDonald’s Corporation "was not the owner or the operator of the subject restaurant.” (273 Ill. App. 3d at 592.) Usually, this determination would end the case. However, here the majority goes on to discuss the doctrine of apparent agency and, relying on Gilbert, concludes that a question of fact existed and summary judgment was error. I respectfully submit that the majority should never have addressed the issue of apparent agency because (1) it was not pleaded; (2) the record is devoid of any evidence to support an apparent agency theory; (3) Gilbert is both factually and legally inapposite; and (4) ample authority exists which is contrary to the majority holding.
When a party fails to raise a theory in any form in the trial court, he cannot raise it for the first time on appeal. (Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 404-05, 442 N.E.2d 338.) In Saladino v. Team Chevrolet, Inc. (1993), 242 Ill. App. 3d 735, 740, 611 N.E.2d 583, the court held:
"[Pjlaintiffs did not allege apparent authority in their pleadings, nor did they raise this theory at the trial level. The theory upon which a case is tried in the lower court cannot be changed on review. [Citations.] Accordingly, this issue is waived for the purposes of this appeal.”
Strikingly similar to the case sub judice is Johnson v. Hilton Hotel Corp. (1989), 190 Ill. App. 3d 197, 546 N.E.2d 617, where plaintiff alleged he was injured while a patron in the Biloxi Hilton Hotel and that Hilton owned, operated, and controlled the subject premises. The trial court entered summary judgment in favor of Hilton, finding that Hilton had no direct or indirect ownership interest in the premises, or any right to control, police, inspect, supervise, or maintain them. On appeal, in response to plaintiff’s argument of apparent agency, the court held:
"We point out that he failed to plead apparent agency in his complaint, neglected to seek leave to amend to add this theory, and did not raise it below in any form. As a consequence, Johnson has waived any claim that Hilton Hotel’s alleged liability may be predicated upon the theory of apparent agency.” Johnson, 190 Ill. App. 3d at 201.
It is axiomatic that the purpose of pleading is to frame the issues. Although the standard may be relaxed (see Gilbert, 156 Ill. 2d at 527 (plaintiff did not allege apparent agency, but did allege agency, and the record contained ample evidence to support a theory of apparent agency)), it is counterproductive to allow a plaintiff to identify a specific theory (i.e., that McDonald’s Corporation owned, managed, operated, and controlled the restaurant), marshall evidence in support thereof, proceed to summary judgment, and then on appeal, without ever seeking leave to amend, argue a distinct, separate theory (i.e., apparent agency).
Assuming arguendo that plaintiff did properly plead apparent agency, there is no authority to support such a theory on the record of this case. The majority relies solely on Gilbert, a case never argued by either party in its appellate brief or at oral argument. The reason, I submit, is that Gilbert does not apply to the facts in this case. In Gilbert, unlike the case sub judice, the record contained ample evidence that the hospital held the emergency room physician out to be its agent. The hospital never advised the decedent patient that emergency room physicians were independent contractors rather than hospital employees. Moreover, a consent form prepared by the hospital and signed by the decedent stated in pertinent part:
"The undersigned has been informed of the emergency treatment considered necessary for the patient whose name appears above and that the treatment and procedures will be performed by physidans and employees of the hospital.” (Emphasis added.) (Gilbert, 156 Ill. 2d at 516.)
Based on this evidence, the Gilbert court concluded that a fact question existed to preclude summary judgment.
Not only is Gilbert inapposite, but there is ample Illinois authority on the precise issue of a franchisor’s tort liability for the actions of its franchisee. (See Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 373 N.E.2d 1371; Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457; Thomson v. McDonald’s, Inc. (1989), 180 Ill. App. 3d 984, 536 N.E.2d 760; Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 465 N.E.2d 127; Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315; Greil v. Travelodge International, Inc. (1989), 186 Ill. App. 3d 1061, 541 N.E.2d 1288; Raglin v. HMO Illinois, Inc. (1992), 230 Ill. App. 3d 642, 595 N.E.2d 153.) Of these cases, only Greil found an agency relationship existed between a franchisor and its franchisee. However, in doing so, the Greil court applied California law, as required by the franchise agreement, rather than Illinois law. "California courts have found both types of agency [ostensible and actual] to exist in the franchise context.” (Greil, 186 Ill. App. 3d at 1068.) Plaintiff does not cite, nor can I find, any Illinois authority to support his position.
Other jurisdictions have also addressed the application of the doctrine of apparent authority in a franchisee/franchisor context. See Mobil Oil Corp. v. Bransford (Fla. 1995), 648 So. 2d 119; Myszkowski v. Penn Stroud Hotel, Inc. (1993), 430 Pa. Super. 315, 634 A.2d 622; Chevron U.S.A., Inc. v. Lesch (1990), 319 Md. 25, 570 A.2d 840; Wood v. Shell Oil Co. (Ala. 1986), 495 So. 2d 1034; Watkins v. Mobil Oil Corp. (1986), 291 S.C. 62, 352 S.E.2d 284; Smith v. Maytag Corp. (Ga. App. 1995), No. A94A1979, 1995 WL 111397; McGuire v. Radisson Hotels International, Inc. (1993), 209 Ga. App. 740, 435 S.E.2d 51; Puente v. Frisch’s Restaurants, Inc. (Ohio App. 1986), No. L — 86— 134, 1986 WL 14372; Dalia v. Electronic Realty Associates, Inc. (Fla. Dist. Ct. App. 1994), 629 So. 2d 1075; Hayman v. Ramada Inn, Inc. (1987), 86 N.C. App. 274, 357 S.E.2d 394 (all held against the application of apparent authority in franchisee /franchisor context).
To be sure, contrary authority does exist and the following cases have applied the doctrine of apparent authority to a franchisee/ franchisor relationship. (See Shaffer v. Maier (1994), 68 Ohio 416, 627 N.E.2d 986; Watson v. Howard Johnson Franchise Systems, Inc. (1995), 216 Ga. App. 237, 453 S.E.2d 758; Parker v. Domino’s Pizza, Inc. (Fla. Dist. Ct. App. 1993), 629 So. 2d 1026; Gizzi v. Texaco (3d Cir. 1971), 437 F.2d 308; Crinckley v. Holiday Inns, Inc. (4th Cir. 1988), 844 F.2d 156.) In all of these cases, however, the records contain ample evidence of holding out and justifiable reliance.
In the case sub judice, the complaint contains no allegations, nor does the record contain any evidence, as to how McDonald’s Corporation held out its franchisees to be its agent. More importantly, there is no evidence whatsoever as to if, how, or why the plaintiff relied to its detriment.
For the foregoing reasons, I would affirm the decision of the circuit court.