author: JUSTICE EGAN

text:
    CHICAGO HOUSING AUTHORITY, Plaintiff-Appellant, v. JACQUELINE ROSE, Defendant-Appellee.
    First District (6th Division)
    No. 1— 89—1640
    Opinion filed September 14,1990.

      Keck, Mahin & Cate, of Chicago (F. Willis Caruso, Jill E. Evans, Catherine A.T. Nelson, and Katherine M. Clark, of counsel), for appellant.
    Cabrini Green Legal Aid Clinic, of Chicago (Richart T. Cozzola and Helen Barrett, law student, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, the Chicago Housing Authority (CHA), filed a complaint against the defendant, Jacqueline Rose, seeking possession of the defendant’s apartment in the Cabrini-Green public housing project. The CHA maintained that the discovery by the police of two shotguns in the defendant’s apartment constituted a violation of her lease. A jury returned a verdict in favor of the defendant. The plaintiff assigns error regarding a jury instruction and limitations on its examination of a police officer.

On December 21, 1987, the CHA filed a complaint against the defendant seeking possession of her apartment in the Cabrini-Green public housing project. According to the “Notice Of Termination of Tenancy,” the CHA maintained that the defendant had violated her lease by creating a threat to the health and safety of others. Specifically, the notice stated that the lease was violated when the defendant “Jacqueline Rose, leaseholder, and Charles Gardner, unauthorized occupant in leaseholder’s apartment, was [sic] found in possession of a *** sawed-off shotgun and a *** Pump shotgun while at [the defendant’s apartment], which is CHA property.”

The lease provisions alleged to have been violated stated in pertinent part as follows:

“(9) The Tenant shall *** (c) use the premises solely as a private dwelling unit for the Tenant, and the Tenant’s household as identified in the lease, and not use or permit its use for any other purpose; (d) abide by necessary and reasonable regulations promulgated by Management for the benefit and well-being of the housing project and the tenants which shall be posted in the Project Management Office and incorporated by reference in this lease; *** (k) conduct himself and cause other persons who are on the premises with his consent to conduct themselves in a manner which will not disturb his neighbors’ peaceful enjoyment of their accommodations and will be conducive to maintaining the development in a decent, safe and sanitary condition; (1) refrain from illegal or other activity which impairs the physical or social environment of the development.”

The relevant regulation incorporated into the lease provided that “[n]o one is permitted to bring explosives, guns, ammunition, air rifles or any other weapons into the buildings or use them on CHA grounds. *** TO DO SO VIOLATES YOUR LEASE AND YOU RISK THE POSSIBILITY OF AN EVICTION.” Finally, regarding termination, the lease stated, “Management shall not terminate *** the lease for other than serious or repeated violation of material terms of the lease such as failure *** to fulfill the Tenant obligations set forth in paragraph 9 or for other good cause.”

The defendant testified as an adverse witness that on May 14, 1987, at approximately 9:30 p.m. her half-brother, Charles Gardner, who is also known as “Little Charles,” came to spend the night at her home because he had a summer job interview scheduled for the next day at a nearby day-care center. The defendant met Little Charles in front of her friend Michelle Brewer’s apartment, which was across the street from the defendant’s apartment; she handed him her key, saw him go up to the apartment, and saw that the light was turned on. The defendant had never seen her brother with guns; she did not learn about the guns’ presence in her apartment until the police found them and did not know they belonged to her brother until Little Charles so informed the police at the police station.

Officer Dennis Davis testified that at approximately 9 a.m. on May 15, 1987, he talked with a confidential informant. After that conversation, he went to the State’s Attorney’s office where he obtained approval of a complaint for a search warrant. Armed with a search warrant, Davis went to the defendant’s apartment on May 15, 1987, knocked on the door, and was admitted. The defendant was in the apartment with several other women. Little Charles was not there, nor was there any indication (e.g., men’s clothes) that he lived there. The officer first searched the defendant’s couch and found a sawed-off shotgun; this gun was about 20 or 22 inches long and was “up in the cushions in the back of the sofa.” Then Davis searched “the bedroom, where the rifle was supposed to have been up under the mattress *** [but tjhere was no rifle.” Then Davis searched the closet in the living room and found another shotgun. This gun had been “broken down” into two pieces and was in a Christmas tree box. Neither gun was visible before the search. When questioned, the defendant indicated that she did not know who owned the shotguns. Approximately 30 minutes later, at the police station, Little Charles admitted that the shotguns belonged to him. Little Charles also told Davis that he lived at the apartment where the guns were found.

Davis, who specializes in gang activity in north-side housing projects, had never met nor heard of Charles Gardner, nor did he have any information that the defendant was involved in gangs. In his experience, however, Davis knew that gang members hide guns in various places, including the apartments of unsuspecting family members, and that gang members frequently do not disclose the presence of these guns to their relatives. Davis also indicated that hundreds of additional guns are stored in vacant apartments in Cabrini-Green. The gangs claim various public housing buildings as their own, and it is difficult for a young man who lives in a building claimed by a gang to stay out of the gang, because the gang will beat him up and threaten his family. Often new gang members hide guns as their “first step” with the gang. Davis opined that a person in possession of a sawed-off shotgun and another shotgun at Cabrini-Green is likely to be a gang member.

The CHA rested, and the judge denied the defendant’s motion for a directed verdict. The judge held that, when viewing the evidence in the light most favorable to the CHA, the CHA had met its burden of proof of showing that the defendant knew or should have known of the guns and thus violated her lease.

Michelle Brewer, the defendant’s friend who lived across the street, testified that she and her six-year-old daughter and the defendant and her four-year-old daughter often stayed together overnight at each other’s homes because of the crime and violence in the projects. On May 14, 1987, the defendant and Brewer were in front of Brewer’s building, and she saw Little Charles. Little Charles asked the defendant for her key and told the defendant that he was ready to go upstairs and that he had a job interview the next morning. The defendant gave him the key, told him she did not want anyone in her apartment, and told him to turn on the lights in the apartment to let her know that he was inside. Little Charles was alone; he was not carrying any bags and did not have anything in his hands. He went into the building, and the lights went on three or four minutes later. The defendant and Brewer then went up to Brewer’s apartment and stayed there for the night. The next time they saw Little Charles was about 10:30 a.m. the next day at Brewer’s apartment; he gave the defendant her key and told her that he had been to the interview and was going home. Brewer had never known Little Charles to be in a gang or to have a gun.

The defendant testified to substantially the same facts elicited during her earlier testimony. She added that before May 14, Little Charles had not stayed at her apartment. She confirmed that she and Brewer often stayed together because of the crime in Cabrini-Green. The defendant also confirmed that she told Little Charles that she did not want anyone in the apartment but him, and that she told him to turn on a light when he got into the apartment; after he went in, she waited until she saw the light go on. She did not see any guns in Little Charles’ possession at this time or at any time. She did not see Little Charles again until around 10:30 a.m. the following day, when he came to Brewer’s apartment and returned the key. Shortly after noon that day, Officers Davis and Joyce Gordon came to the defendant’s apartment. The defendant read the officers’ search warrant and invited the officers into the apartment. They searched the apartment and found a gun first in a Christmas tree box in the closet, then another in the sofa. The defendant had never seen the guns before and did not know how they got in her apartment until she heard Little Charles admit at the police station that the guns were his. She would not have let Little Charles into her apartment had she known he was going to bring guns in there.

Following closing arguments, the court instructed the jury as follows:

“The Chicago Housing Authority has the burden of proving all of the following: [First, that on] May 15, 1987, Charles Gardner was a guest in Jacqueline Rose’s apartment ***. [Second, that on] May 15, 1987, Jacqueline Rose or Charles Gardner were [sic] in possession of a 12-gauge sawed-off shotgun and a 12-gauge shotgun while at the above location. Third, that Jacqueline Rose knew or should have known that a 12-gauge sawed-off shotgun or a 12-gauge shotgun was in her apartment May 15, 1987, before that time that the police saw the guns; and, four[th], that the actions of Jacqueline Rose on May 15, 1987 violated *** her lease with the Chicago Housing Authority.”

The CHA contends that the instruction was erroneous because it provided that the CHA had the burden of proving that the defendant “knew or should have known that a 12-gauge sawed-off shotgun or a 12-gauge [pump] shotgun was in her apartment [on] May 15, 1987, before that time that the police saw the guns.” The CHA argues that a tenant’s knowledge of a lease violation is not a requisite element for an eviction based on such a violation. However, if knowledge is required, the CHA argues in the alternative that the defendant had the burden of disproving knowledge and failed to meet this burden.

We first consider the defendant’s argument that the CHA waived the issue of the propriety of the “knew or should have known” jury instruction. Before trial the CHA moved in limine to bar any evidence that the defendant did not know that any person had or brought a gun into her home. The defendant argued that such knowledge was a necessary element of the alleged violation, i.e., permitting weapons on the premises. The judge denied the CHA’s motion and, as noted, the judge instructed the jury that the CHA had the burden of proving that the defendant knew or should have known of the guns’ presence in her apartment.

An appellant must request transcripts of the reports of proceedings that the appellant desires to be included in the record on appeal. (107 Ill. 2d R. 323(a).) If no transcript is available, “the appellant may prepare a proposed report of proceedings from the best available sources, including recollection.” (107 Ill. 2d R. 323(c).) Neither a file-stamped set of proposed instructions filed by the CHA nor a transcript of the instruction conference appears in the record on appeal. In addition, the trial transcript evidences no objection of record to the instruction requiring knowledge. The CHA, as an appellant who failed to provide a transcript or other report of the instructions conference, may not attack the instructions on appeal as no timely objection to the tender of the instructions appears of record. Moreover, the objections in the CHA’s post-trial motion came too late to preserve the issue for appeal. (Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, 1022, 355 N.E.2d 214, 216.) Consequently, the CHA has waived this issue. See also Dillon v. U.S. Steel Corp. (1987), 159 Ill. App. 3d 186, 201, 511 N.E.2d 1349, 1359-60; Russo v. Kellogg (1962), 37 Ill. App. 2d 336, 341-42, 185 N.E.2d 377, 380.

Even if the CHA’s failure to make a record of its objections to the “knew or should have known” standard did not waive the issue, the CHA’s argument must fall. The CHA first claims that the “knew or should have known” standard applied by the trial court is not required by due process and, in fact, improperly interferes with the CHA’s fulfillment of its goal to provide safe public housing; instead, the CHA supports a “strict liability” (i.e., no knowledge required) standard. The defendant, on the other hand, argues that a strict liability standard would violate due process by allowing evictions of parties lacking any “causal nexus” to alleged lease violations. However, resolution of these constitutional questions would not resolve whether the lease gives the CHA authority to evict the defendant regardless of whether she knew or should have known that the guns were in her apartment. This court has recognized that “a court should not decide a cause on constitutional grounds if it can be determined on other grounds.” (Lake Louise Improvement Association v. Multimedia Cablevision of Oak Lawn, Inc. (1987), 157 Ill. App. 3d 713, 716, 510 N.E.2d 982, 985.) For reasons to be discussed later, we conclude that the trial court correctly interpreted the lease to require some knowledge on the defendant’s part, and we therefore find it unnecessary to discuss the constitutional questions raised by the parties.

In arguing that the defendant’s lack of knowledge is irrelevant under the lease, the CHA relies principally on three cases interpreting leases in which the tenant covenanted not to permit the premises to be used for an unlawful purpose. In the earliest case, Arado v. Maharis (1924), 232 Ill. App. 282, the court determined that the plaintiff had waived his right to terminate the lease by accepting rents after learning of the breach, the subtenants’ sale of liquor in violation of the law. (232 Ill. App. at 285.) The court reversed the judgment of possession for the plaintiff and added the following obiter dictum:

“There is no merit in the defendant’s contention that the plaintiff could not terminate the top lease, unless it appeared that he (the defendant[-tenant]) knowingly permitted the subtenant to violate the law, because the original lease provides that the tenants will not use nor permit the premises to be used for any unlawful purpose. If the premises were used for an unlawful purpose by the subtenant without the knowledge of the top tenant, it would not affect the landlord’s right to terminate the lease.” 232 Ill. App. at 287.

In the next case, Lubliner v. Gaston (1926), 243 Ill. App. 627 (abstract of opinion), the appellate court upheld judgment of forfeiture of a lease in favor of the lessor in an action against the tenants where the evidence established that a subtenant operated a house of prostitution.

In the third case, First Trust & Savings Bank v. Raklios (1928), 247 Ill. App. 183, the court affirmed a determination that the tenant’s covenant not to permit the premises to be used for an unlawful purpose was a covenant running with the land. Thus, the court held that both the defendant-tenant and the subtenant were bound by the covenant, “yet, in violation of that obligation, [the defendant] sublet the premises to one who *** pretended to run a radio business *** [as] a cover for the operation of an illicit still.” (247 Ill. App. at 193.) The court refused to allow the defendant to “profit by, what seems to be, his own wrong” by setting up the seizure of the premises by the United States Marshal as a defense to an action for rent. (247 Ill. App. at 192-93.) In so doing, the court’s only Illinois citation was to the abstract opinion in Lubliner for the proposition that a tenant is responsible to the lessor for a lease violation by his subtenant, regardless of whether the tenant knew of the violation.

Thus, although these cases involved lease language similar to that at issue here, the reasoning of these cases addressed the issue of the accountability of a commercial tenant for a subtenant’s violation of criminal laws which was allegedly unknown to the tenant. Those cases are distinguishable from this case, which involves a guest who used the tenant’s residential apartment for one night to conceal weapons from the defendant and others. We will not extend the application of the holdings in the cases cited by the CHA to the facts of this case. To do so would require every tenant under similar leases to be a guarantor of the conduct of anyone invited by the tenant onto the premises.

In construing a lease the primary objective is to ascertain the intent of the parties. The intention of the parties must be ascertained if possible from the language of the lease, and the words used should be given their common and generally accepted meaning. Where the language of a lease is ambiguous, the court may consider the position of the parties, the surrounding circumstances which existed at the time of the execution of the lease and the facts in connection with it. Moreover, where there is any doubt or uncertainty as to the meaning of the language used in a lease it should be construed most strongly against the lessor and in favor of the lessee. American National Bank, & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.

In common usage, “permit” means “to consent to expressly or formally: grant leave for or the privilege of; ALLOW, TOLERATE ***[; or] to give (a person) leave: AUTHORIZE ***.” (Emphasis added.) (Webster’s Third New International Dictionary 1683 (1981).) A further definition for the term is “To suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act." (Emphasis added.) (Black’s Law Dictionary 1028 (5th ed. 1979).) Considering the relative positions of the CHA and the defendant in negotiating this lease and construing the lease most strongly against the lessor and in favor of the lessee, the trial court did not err in instructing the jury that, in order to find for the CHA, the jury had to find that the defendant knew or should have known of the presence of the guns in her apartment. This instruction is consistent with the meaning of the term “permit” as incorporated into the lease by way of the CHA’s regulation.

As the trial judge noted in ruling on the CHA’s motion in limine, after the CHA showed that the guns were in the defendant’s apartment, a rebuttable presumption that the defendant knew of the guns’ presence arose, and the defendant had the burden of showing a lack of knowledge in this regard. The CHA argues in the alternative that, if the trial judge applied the correct knowledge standard, then “there was no evidence presented to show that the tenant did not or could not foresee the obvious consequences of the activity taking place in her apartment.” We disagree. Both the CHA and the defendant produced evidence that neither the defendant, nor Michelle Brewer, nor Officer Davis had any knowledge of Little Charles’ involvement with gangs or guns. The defendant’s testimony that she did not know of the presence of the guns was not contradicted by testimony or by circumstances, it was not inherently improbable, and her testimony was not impeached. Consequently, her testimony may not be disregarded, even by a jury. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.) Moreover, the guns were not visible before the officer’s search of the couch and closet and were, in fact, hidden to avoid detection. This evidence satisfied the defendant’s burden of rebutting the presumption of knowledge.

The CHA’s other claim of error is the trial judge’s exclusion of the testimony of Officer Davis regarding statements made to him by a confidential informant concerning the presence of guns in the defendant’s apartment. As a basis for admission of such testimony the CHA claims that it is probative on the question of the defendant’s knowledge, that it was relevant to show the officer’s reasons for searching the defendant’s apartment, and that the defendant’s cross-examination of the officer opened the door for admission of the officer’s complaint for a search warrant, which contained the informant’s statements.

In support of its argument, the CHA cites Wigmore on Evidence §266 (3d ed. 1970), which provides:

“When a person’s knowledge *** is a fact in issue, *** word utterances may betray the knowledge *** of the *** speaker, insofar as the specific act or utterance is of a tenor which cannot well be supposed to have been willed without the inner existence of that knowledge or belief.
* * *
The important thing is that, so far as the evidential fact consists in an utterance of words, it is receivable for the present purpose, as circumstantial evidence; and that, so long as it is offered for that purpose only and not as an assertion to be credited like testimony, it is not obnoxious to the hearsay rule. For example, A’s mention of X’s insolvency is receivable as circumstantial evidence of A’s knowledge, but not as testimonial evidence of X’s insolvency.” (Emphasis added.) (2 J. Wigmore, Evidence §266, at 97, 100 (Chadbourn Rev. ed. 1979).)

The CHA sought to admit the statements of the informant, not to show that the speaker, that is, the informant, had knowledge of the guns, but, as the CHA states in it’s brief, “as circumstantial evidence that defendant had knowledge of the guns.” (Emphasis added.) This purpose, according to Wigmore, is exactly the purpose prohibited. The CHA also argues that the judge committed reversible error in refusing to allow testimony regarding the reason the police officer went to the defendant’s apartment, citing the following at trial:

“[CHA’s attorney]: Why did you go [to the defendant’s apartment]?
[Officer Davis]: I received information that—
[Defendant’s attorney]: Objection to the content.
THE COURT: He didn’t — Let the record reflect that there has been a motion in limine, which was presented prior to the testimony at trial. Counsel, you’re admonished that paragraph three was sustained. Make sure you make no inquiries that would violate that term.
[CHA’s attorney]: Right. I’m advised. I’m aware of that.”

After that exchange, the- CHA’s attorney proceeded to question the officer on whether he had a search warrant, what such a warrant was generally, how one generally obtained such a warrant, and what happened when the officer went to the apartment. Contrary to CHA’s argument, the judge did permit the officer to explain why he went to the apartment; he went to execute a search warrant. The judge properly limited the officer’s testimony to the fact that he had a conversation with an individual and that the officer subsequently acted upon information received during that conversation without revealing the substance of the conversation. There was no error in the judge’s ruling. See People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d ,1146.

Finally, the CHA argues that the judge improperly prevented it from questioning the officer on redirect examination regarding the complaint for a search warrant after the defendant allegedly opened the door to such questioning on cross-examination. After the officer indicated that his recollection was exhausted on cross-examination as to when he talked with the confidential informant, the defendant, with leave of court and over the CHA’s objection, handed the officer his two-page complaint for search warrant, which did refresh the officer’s recollection as to when the conversation occurred. Following cross-examination the CHA pursued redirect of the officer. At no time during redirect did the CHA attempt to question the officer regarding the complaint for search warrant. Thus the CHA waived this issue.

Even if this issue were not deemed waived, a refusal by the court to allow redirect examination which would elicit the contents of the complaint for search warrant is not reversible error. A witness’ recollection may be refreshed even by a document which itself is inadmissible. (Scovill Manufacturing Co. v. Cassidy (1916), 275 Ill. 462, 114 N.E. 181; People v. Van Dyk (1976), 40 Ill. App. 3d 275, 352 N.E.2d 327.) After a party uses a document to refresh a witness’ recollection, the other party may use the document subject to the court’s discretion. But “[njeither inspection of the document nor its employment upon cross-examination makes the document admissible on behalf of the proponent of the witness.” (M. Graham, Handbook of Illinois Evidence §612.1, at 458 (5th ed. 1990).) The judge did not err in denying the plaintiff the right to introduce the contents of the search warrant.

In summary, we conclude that no error was committed in the giving of the defendant’s instruction nor in the examination of the witnesses. For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    BELL FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. BANK OF RAVENSWOOD et al., Defendants-Appellees (Korea Exchange Bank, Defendant-Appellant).
    First District (1st Division)
    No. 1— 87—0430
    Opinion filed September 17, 1990.

      Jeffrey Strange & Associates, of Wilmette (Michael Hyman, of counsel), for appellant.
    Hoellen, Lukes & Halper, of Chicago (Edward J. Halper and Tarick S. Loutfi, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

The appellant, Korea Exchange Bank, appeals from the circuit court’s order denying its section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) petition to vacate the judgment of foreclosure previously entered therein. The appellee, Bank of Ravenswood, has filed a motion to dismiss the appeal, claiming that this court lacks jurisdiction because of the appellant’s failure to file a timely notice of appeal. We ordered the motion to dismiss to be taken with the case and directed the parties to brief the jurisdictional issue. The pertinent facts follow.

Kyung Wha Chi and Choon Ja Chi, husband and wife (hereafter mortgagors), were the owners of real property commonly known as 3312 Wilmette Avenue, in Wilmette, Cook County, Illinois. This property was encumbered with the following liens: (1) first mortgage held by Bell Federal Savings and Loan Association (hereafter Bell); (2) second mortgage held by Bank of Ravenswood (hereafter Ravenswood); (3) third mortgage held by Korea Exchange Bank (hereafter Korea); and (4) fourth and fifth mortgages also held by Ravenswood.

On October 29, 1985, Bell filed a complaint to foreclose its mortgage on the aforementioned premises against the mortgagors, Korea and Ravenswood. Korea was served with summons on November 14, 1985, but as further discussed below, did not file any pleadings or appearance. Ravenswood filed an answer.

Prior to Bell’s lawsuit, Ravenswood also had filed a complaint for foreclosure of their second, fourth and fifth mortgages. Korea filed an appearance in that action.

On November 20, 1985, the mortgagors filed for relief under chapter 7 of the United States Bankruptcy Code (11 U.S.C. §101 et seq. (Law. Co-Op 1985)), and the bankruptcy court stayed both of the circuit court foreclosure actions. Thereafter, on or about January 14, 1986, Ravenswood filed a motion before the bankruptcy court to modify the automatic stay, and by order dated January 21, 1986, the court lifted the automatic stay as to Ravenswood and other creditors.

Pursuant to the bankruptcy court order, Bell and Ravenswood then proceeded with their respective foreclosure actions in the circuit court. In the Bell action, the trial court entered an order of default on July 11, 1986, against the mortgagors, Korea and The Korea Times, Inc. (not a party to this appeal), for failure to appear or plead and the judgment of foreclosure and sale. Pursuant to the court order, Bell was required to serve a notice of sale on the parties, informing them that the sale was scheduled to be held on October 1, 1986. Korea acknowledges receipt of such notice and contends this was when it first learned of the default judgment against it.

On September 29, 1986, Korea filed its notice of motion and “Emergency Motion to Amend Order and to Consolidate,” pursuant to section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) of the Code of Civil Procedure. The trial court refused to amend or vacate the judgment; however, it found that Bell had a valid first mortgage and that Ravenswood had a valid second, fourth and fifth mortgage. The order also stated the amount of Korea’s mortgage; however, it reserved the question of priority of the Ravenswood and Korea mortgages and continued the matter for hearing on November 12, 1986.

On October 23, 1986, the trial court had before it Korea’s “Motion to Determine Priorities,” Bell’s order confirming the sheriff’s report of sale and distribution and motion to compel deposit of successful bid, and Ravenswood’s motion for turnover of the sales proceeds. The trial court granted all parties time to respond to Bell’s motion and set the motions for hearing on November 7, 1986. The court also ordered the parties to brief the priority of mortgage issue raised by Korea and granted Hwang, the successful bidder at the October 1, 1986, sheriff’s sale, leave to file his petition to set aside the sale.

The record reflects that the parties filed the respective briefs and pleadings. In addition, sometime thereafter Korea presented another “Verified Motion to Vacate” that also attacked the judgment of foreclosure and sale which the trial court continued along with all other pending matters to November 12, 1986.

On November 12, 1986, the trial court entered its order which: (1) denied Korea’s motion to vacate the judgment on the grounds that Korea failed to state a meritorious defense, establish a reason as to why judgment should be vacated, or demonstrate due diligence in presenting the motion; (2) denied Korea’s motion to establish priorities; (3) granted Bell’s motion to compel deposit of the bid and thereby granted Hwang 30 days to deposit his bid with the sheriff; (4) entered and continued Ravenswood’s motion for turnover of the sales proceeds; and (5) continued the matter for status until December 15, 1986, to determine Hwang’s compliance.

On December 15, 1986, the trial court having found Hwang to be in compliance, ordered that Bell was entitled to receive $77,719.57 of the proceeds of the sale, and Ravenswood was entitled to receive $45,280.43. The court then ordered the sheriff to turn over said sums to each bank.

Thereafter, Bell presented its motion for an order confirming the sheriff’s report of sale and distribution. Because Korea objected to the motion, the trial court granted it until January 7, 1987, to file a response thereto. Korea failed to file a response to Bell’s motion, but instead filed a “Motion to Amend Pursuant to I.R.S. Chapter 110, Section 2 — 1401 Foreclosure Judgment to Properly Reflect Lien Position of Korea Exchange Bank,” This motion was denied by the trial court on January 8, 1987, for lack of due diligence and the absence of a meritorious defense. Korea then filed its notice of appeal on February 9,1987.

Prior to considering the merits of an appeal, the appellate court is duty bound to determine whether the appeal has been properly taken so as to invoke the jurisdiction of the court. In re Custody of Jedynak (1984), 123 Ill. App. 3d 185, 462 N.E.2d 908; Lewis v. Canty (1983), 115 Ill. App. 3d 306, 450 N.E.2d 864.

Also, a party seeking to appeal is required to file his or her notice of appeal “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending post-trial motion.” (107 Ill. 2d R. 303(a)(1).) Notice of appeal is necessary to confer jurisdiction on the reviewing court. Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 401 N.E.2d 973.

In the present case, the final judgment was entered on July 11, 1986. While Korea questions whether a judgment of foreclosure can be considered a final judgment and claims that Marion Metal & Roofing Co. v. Mark Twain Marine Industries, Inc. (1983), 114 Ill. App. 3d 33, 448 N.E.2d 219, applies here, we find that the judgment of foreclosure was final in the instant cause and that such a result is not inconsistent with Marion Metal.

In Marion Metal, this court, in applying Rule 304(a) (107 Ill. 2d R. 304(a)) to an action involving the foreclosure of a mechanic’s lien, held that ordinarily “[a] judgment of foreclosure does not dispose of all of the issues between the parties *** because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution.” (Marion Metal, 114 Ill. App. 3d at 35.) However, the court there also determined that the judgment of foreclosure and sale is a final and appealable order if it adjudicates all of the claims of all of the parties, or contains an express finding pursuant to Supreme Court Rule 304(a) that there is no just reason for delaying enforcement or appeal. In Marion Metal, the appellate court dismissed the appeal because the foreclosure judgment therein did not contain such an express finding.

In the instant cause, the trial court entered the judgment of foreclosure and sale on July 11, 1986. Pursuant to the judgment, the court defaulted Korea, found that Ravenswood had a valid lien for $130,087.44, and expressly found that “there is no just cause for delay in the enforcement of or appeal from this Decree.” Accordingly, as Ravenswood asserts, the July 11 order was the final and appealable order, and the time to file either a post-judgment motion or a notice of appeal commenced to run on July 11, 1986.

Pursuant to section 2 — 1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203(a)), any party may, in a nonjury case, “file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief” within 30 days after the entry of the judgment. While Korea failed to file a section 2 — 1203 motion within the statutory period, it properly filed a section 2 — 1401 petition on September 29, 1986. Section 2 — 1401 provides that a party may seek “[rjelief from final orders and judgments, after 30 days from the entry thereof.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401(a).

Thereafter, Korea either attempted to present or filed in some form three additional section 2 — 1401 petitions on or about October 23, 1986, November 7, 1986, and January 7, 1987, respectively. Successive post-judgment motions do not extend the time within which to appeal. (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.) Moreover, a second post-judgment motion which is filed beyond 30 days after entry of the final order, but which attacks the same judgment, neither extends the time for filing of the appeal nor continues the jurisdiction of the trial court. (City of De Kalb v. Anderson (1974), 22 Ill. App. 3d 40, 316 N.E.2d 653.) This rule not only applies in the case of motions under sections 2 — 1202, 2 — 1203 and 2 — 1301 (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 1202, 2 — 1203, 2 — 1301), but applies in the case of section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) petitions. See Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App. 3d 244, 411 N.E.2d 886.

On November 12, 1986, the trial court had before it three of Korea’s post-judgment motions that attacked the judgment of foreclosure. These motions included the section 2 — 1401 petitions, one of which was filed on September 29 and one which was presented to the court on November 7, and the separate motion to determine priorities which requested the same relief as prayed for in the petitions. Once the trial court ruled on the merits of these motions, the entry of such ruling signalled the “entry of the order disposing of the last pending post-trial motion” (see 107 Bl. 2d R. 303(a)(1)), and the 30-day period for filing the notice of appeal commenced to run.

Although the petitions were before the court, such successive and repetitious motions to vacate the judgment of foreclosure did not extend the time for appeal. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 482 N.E.2d 1114.) Where a motion has been made to vacate an order, the time of appeal commences to run from the date the motion is disposed of on its merits. (See In re Marriage of Uphoff (1982), 110 Ill. App. 3d 608, 442 N.E.2d 965, rev’d in part on other grounds, vacated in part (1983), 99 111. 2d 90, 457 N.E.2d 426.) We reach this conclusion notwithstanding Korea’s subsequent section 2 — 1401 petition that was filed on January 7, 1987, and the trial court’s ruling thereon. Such petition was merely an improper successive post-judgment motion which did not extend the time within which to appeal. (Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 372 N.E.2d 965.) In accord with Federal Sign, the order that disposed of the successive post-judgment motion which was filed on January 7, 1987, was void because the trial court itself was without jurisdiction to entertain a new section 2 — 1401 petition once it had ruled on the merits of the prior section 2 — 1401 petition. Accordingly, this court then lacks jurisdiction to hear the appeal and such appeal is dismissed.

Appeal dismissed.

CAMPBELL and O’CONNOR, JJ., concur.

      There is some question as to whether or not Korea ever filed this motion.


text:
      In re ESTATE OF MARIA STOICA (The County of Cook, Petitioner-Appellant, v. Enid L. Kempe, Guardian ad litem, of Maria Stoica, et al., Respondents-Appellees).
    First District (1st Division)
    No. 1— 88—1483
    Opinion filed September 17, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Myra J. Brown, and M. Anne Gavagan, Assistant State’s Attorneys, of counsel), for appellant.
    Enid L. Kempe, of Berwyn, appellee pro se.

   JUSTICE MANNING

delivered the opinion of the court:

The sole issue presented for review on this appeal is whether the •trial court erred in ordering the petitioner, the County of Cook, to pay the fees of the court-appointed guardian ad litem.

On November 29, 1987, Maria Stoica was hit and injured by an automobile while crossing the street and taken to Edgewater Hospital for treatment. She was later transferred to Cook County Hospital on December 5, 1987, where doctors recommended X rays and possible surgery for her fractured hip. However, Ms. Stoica would not consent to surgery at Cook County Hospital and indicated that she wanted to leave the facility although she had no plans for obtaining adequate medical care elsewhere.

On December 22, 1987, the County of Cook, through Virginia Wearring, the director of social services of Cook County Hospital, filed a plenary petition for temporary guardianship, pursuant to section 11a — 1 et seq. of the Probate Act of 1975, as amended (hereafter Act) (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 1 et seq.), seeking the appointment of the office of the State Guardian as guardian for the person of Ms. Stoica. The trial court assigned Enid L. Kempe as guardian ad litem (hereafter GAL) or the respondent Maria Stoica.

During the hearing on the temporary guardianship petition which was held on December 24, 1987, the GAL orally reported her findings to the court. As a result of the GAL’s oral report and the written reports of two physicians, the trial court entered an order that appointed the office of the State Guardian as temporary guardian to consent to X rays of Ms. Stoica’s hip and leg area. The GAL’s written report was filed on January 7,1988.

Thereafter, on February 19, 1988, the court granted petitioner’s request to withdraw the petition for guardianship because Ms. Stoica had been discharged from Cook County Hospital on December 31, 1987, and the hospital had no contact with her for follow-up care since that date. The court further ordered the petitioner to pay the costs of the GAL.

On March 11, 1988, the petitioner filed a motion to reconsider and vacate that portion of the February 19 order which required the petitioner to pay the fees and costs of the GAL. The basis of petitioner’s motion was that section 11a — 10(c) of the Act (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 10(c)) precluded recovery of the GAL’s fees and costs from the petitioner but allowed recovery only from the respondent or the State.

On March 18, 1988, the court vacated that portion of the order of February 19, 1988, which required the petitioner to pay the GAL’s fees and scheduled a hearing for March 31, 1988, as to the respondent’s ability to pay those fees. On March 31, 1988, only the petitioner and the GAL appeared before the court for the hearing on the respondent’s ability to pay the fees. Ms. Stoica did not appear. The trial judge stated that since it is “the petitioner’s burden to show that the respondent has funds” to pay the GAL and because there is “no evidence that the respondent does have funds, [he could] hardly direct her [Ms. Stoica] to pay you [GAL].” The judge found that the petitioner was required to pay the fees. The petitioner argued that it was the State’s responsibility to pay the fees if the respondent was unable to do so. In response the judge commented that the legislature had failed to fund the account for payment of such fees and ordered the petitioner to pay the fees of the GAL in the amount of $357.50. He also directed the GAL to sign any necessary papers to allow the petitioner to seek reimbursement from the State.

On April 8, 1988, the petitioner filed a motion to reconsider and vacate the order of March 31, 1988, which the trial court denied on April 22,1988. Thereafter, petitioner filed a timely notice of appeal.

The petitioner argues that the trial court erroneously ordered it to pay the fees of the GAL since payment of such fees is governed by section 11a — 10(c) of the Act, which provides for payment by the respondent or State only. The GAL argues that the trial court properly determined that the petitioner was required to pay the GAL’s fees on the grounds either that: (1) the court has inherent power to compensate a GAL and apportion the fee between the parties as equity requires; (2) the court can order compensation as an element of costs and tax the costs to the losing party; or (3) section 11a — 10(c) provides a cumulative rather than exclusive remedy for a GAL to be compensated. Alternatively, the GAL contends that by application of the doctrine of desuetude, section 11a — 10(c) has lost its force of law and is inapplicable here since the legislature has failed to fund the account contemplated under the statute.

The pivotal issue in this case is not whether a court-appointed guardian ad litem who represents a disabled adult is entitled to be paid fees, but rather who should pay those fees. The Act pertaining to guardians for disabled adults provides in relevant part:

“The court shall appoint a guardian ad litem to represent the respondent, except that the appointment of a guardian ad litem shall not be required when the court determines that such appointment is not necessary for the protection of the respondent or a reasonably informed decision on the petition. The court may allow the guardian ad litem reasonable compensation. *** * * *
If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court shall enter an order upon the State to pay from funds appropriated by the General Assembly for that purpose, all such fees or such amounts as the respondent is unable to pay.” Ill. Rev. Stat. 1985, ch. 110½ pars. 11a — 10(a), (c).

The petitioner contends that taxation of the costs of the guardian ad litem fees to it is contrary to the statutory mandate, and thus, violative of the rules of statutory interpretation as set forth in the third district case of In re Prior (1983), 116 Ill. App. 3d 666, 452 N.E.2d 676. In Prior, this court recognized that allowance and recovery of costs, being unknown at common law, rest entirely upon statutory provisions which must be strictly construed. (Prior, 116 Ill. App. 3d at 668; see also People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194.) The court held that since guardian ad litem fees were to be paid in the “due course of administration” (Ill. Rev. Stat. 1985, ch. 110½, par. 27 — 4), but there being no administration therein, the statute, strictly construed, did not provide for the payment of guardian ad litem fees prior to the administration of the respondent’s estate. Prior, 116 Ill. App. 3d at 669.

Preliminarily, we address the GAL’s contentions that the trial court has inherent power to apportion the fees between the parties or tax such fees as cost to the losing party whom it asserts is the petitioner in this matter. We disagree with both of these arguments because the factual matrix here presented is governed by the provisions of the Act. Where, as here, the governing principle of law is grounded in a statute which is unambiguous, the trial court must hold the statute to mean what it plainly expresses. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12; In re Objections of Loughmiller (1954), 3 Ill. App. 2d 146, 120 N.E.2d 683.) The statute’s plain and certain meaning may not be restricted or expanded. Mier v. Staley (1975), 28 Ill. App. 3d 373, 329 N.E.2d 1.

Moreover, it is well settled that courts have no legislative powers and their sole function is to determine and give effect to the intention of the lawmaking body. (Dean Milk Co. v. City of Chicago (1944), 385 Ill. 565, 53 N.E.2d 612.) Thus, where the language of an act is obvious and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.) Such function does not include supplying omissions or remedying defects in the statute (see People ex rel. Adamowski v. Daley (1959), 22 Ill. App. 2d 87, 159 N.E.2d 18), or adding to a statute conditions which depart from its plain meaning, or otherwise change the law (People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368), under the guise of construction.

Although the trial court clearly understood that one of the primary objectives of the Act was “to give the court an opportunity to fashion an appropriate guardianship arrangement for those that are mentally disturbed adults who may need a guardianship” (see Comments of Senator Nimrod, 80th 111. Gen. Assem., Senate Proceedings, May 22, 1978, at 51),we find the trial court had no legislative authority to enlarge or otherwise add to the Act conditions which depart from its plain meaning. The Act clearly provides that the “court may allow the guardian ad litem reasonable compensation” and further stipulates that “[i]f the respondent is unable to pay the fee *** the court shall enter an order upon the State to pay from funds appropriated by the General Assembly for that purpose.” (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 10.) We have reviewed the record and note that neither the parties below nor the trial court ever determined the respondent’s ability or lack thereof to pay the GAL’s fees. The record is silent as to whether or not the respondent was employed or receiving any type of public assistance or disability income. Moreover, from the time she was released from Cook County Hospital it appears that no one affiliated with the hospital or with this lawsuit had any contact with Ms. Stoica. Thus, we agree with the trial court that it is a reasonable conclusion that the respondent would not pay the fees. However, this reasonable deduction should not have formed the basis of the trial court’s ruling that because it is necessary that a GAL be compensated in such cases, it became the duty of the petitioner to pay the fee. The statute does not provide that where the respondent is unable to pay the fee, the court shall direct the petitioner to pay it; to the contrary, the Act directs the court to order the State to pay the fee under these circumstances.

We are mindful of the trial court’s comments and the GAL’s argument below and on appeal that the legislature has failed to make available the appropriations to pay these fees. Yet, we decline to make a finding that the doctrine of desuetude applies here. While the legislature has made some cutbacks in the budget, it continues to enact law for “An Act to make appropriations for the ordinary and' contingent expenses of the Guardianship and Advocacy and Advocacy Commission.” See e.g., 85th Ill. Gen. Assem., Senate Proceedings, June 23, 1987, at 102.

Furthermore, we are guided by the age-old principles- that the General Assembly intended to enact an effective statute (Pliakos v. Illinois Liquor Control Comm’n (1957), 11 Ill. 2d 456, 143 N.E.2d 47; see also Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835), and where that statute is unambiguous and clearly expresses the intention of the lawmaking body, the court must give effect to such intentions regardless of the consequences. City of Nameoki v. City of Granite City (1950), 408 Ill. 33, 95 N.E.2d 920; Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.

Accordingly, by applying the same strict rules of statutory construction as noted earlier (see Prior, 116 Il. App. 3d 666), we find that it was error for the trial court to direct the petitioner to pay the fees of the court-appointed GAL. On the facts here presented we believe that such a finding, absent clear and express statutory authorization, would not only depart from the letter of the Act, but would also undermine the ability and willingness of governmental agencies like Cook County Hospital to seek the services of the office of the State Guardian to assist respondents such as Ms. Stoica. On the other hand, our ruling today is not intended to discourage GALs from acting on behalf of alleged disabled respondents who become unavailable or are otherwise “unable to pay” their fees once the services have been rendered. Obviously, a delicate balance must be met; however, the responsibility for striking such an accord to either provide another recourse or find the needed appropriation lies with the General Assembly, not the judiciary.

For the foregoing reasons, the judgment of the circuit court of Cook County taxing the costs and fees against the County of Cook in the amount of $357.50 is reversed.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY JUSTICE CAMPBELL,

text:
    MITRI DOZORETZ, Plaintiff-Appellant, v. WILSON FROST et al., Commissioners of the Cook County Board of Appeals, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1— 88—2374
    Opinion filed September 17, 1990.

      Kenneth N. Flaxman and Joel Monarch, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry and Mark R. Davis, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from Mitri Dozoretz’s (plaintiff's) action in the circuit court seeking a declaratory judgment and mandamus relief as to his right to present underassessment complaints to the Cook County Board of Appeals (the Board). Defendants — the Board, Wilson Frost and Thomas Jaconetty, commissioners of the Board — filed motions to dismiss plaintiff’s action under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Plaintiff appeals from the circuit court’s order granting defendants’ motions. We reverse.

Plaintiff owns and pays property taxes on his residence in the Village of Skokie, Niles Township, Illinois. He has served as an elected member of the Board of Education of Cook County School District No. 68 in Niles Township, and he assumed the elected office of school board president in November 1987.

In April 1987, plaintiff filed complaints with the Board alleging that certain commercial parcels of real property in Niles Township were underassessed for the 1986 tax year. The school district adopted a resolution to pay the costs and expenses for prosecution of plaintiff’s under-assessment complaints. Had plaintiff prevailed in these complaints, his taxes would have decreased $20 and the school district and other taxing districts would have received more than $1 million in additional revenue. On May 14, 1987, the Board dismissed plaintiff’s complaints on the ground that he lacked standing to pursue the underassessment complaints before the board.

Following the Illinois Supreme Court’s denial of plaintiff’s motion for leave to bring an action in mandamus in the supreme court, plaintiff, on December 2, 1987, filed an action for declaratory judgment in the circuit court. In his complaint, plaintiff sought a declaration that defendant Wilson Frost, the only sitting commissioner on the Board at the time, had a duty under the Revenue Act of 1939 (the Act) (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.) “to hold a full evidentiary hearing and decide future underassessment complaints that plaintiff will file, notwithstanding plaintiff’s status as a member of the Board of [Education] for the School District and without regard to the fact that the School District will pay the costs and expenses attendant to the prosecution of his underassessment complaints.”

In April of 1988, before the circuit court ruled on plaintiff’s request for declaratory relief, plaintiff filed 12 underassessment complaints with the Board. After a hearing in May 1988, in which plaintiff was not permitted to present any evidence as to the merits of his underassessment complaints, the Board again announced that plaintiff did not have standing to file the underassessment complaints.

On June 16, 1988, the circuit court, upon cross-motions for summary judgment, granted plaintiff summary judgment, holding that plaintiff had standing as a taxpayer to file underassessment complaints with the Board. Plaintiff presented the declaratory order to the Board, but the Board issued a written order denying plaintiff’s underassessment appeals. Plaintiff then filed an emergency motion under section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) for further relief in the circuit court, seeking a writ of mandamus directing the Board to hear and decide plaintiff’s underassessment complaints. Commissioner Frost also filed an emergency motion for reconsideration of the circuit court’s declaratory order.

On June 24, 1988, the circuit court granted the motion to reconsider and agreed to rehear the matter. The circuit court also granted, on June 27, 1988, plaintiff’s motion to add Commissioner Thomas Jaconetty and the Cook County Board of Appeals as party defendants. On June 29, 1988, the defendants moved to dismiss plaintiff’s action.

On July 15, 1988, the circuit court granted defendants’ motion to dismiss plaintiff’s complaint and vacated its prior declaratory judgment order. On appeal from this order, plaintiff contends that the court’s reasons for vacating its declaratory judgment order were error and requests that we reverse the circuit court’s dismissal of his action and reinstate its declaratory order.

The legislature, in section 117 of the Act, has permitted “any taxpayer” to make underassessment complaints to the Board. (Ill. Rev. Stat. 1987, ch. 120, par. 598.) Section 113 of the Act, which sets forth the powers and duties of the Board, provides that, upon an underassessment complaint filed in conformance with the requirements of section 117 of the Act, “[the Board] shall hear complaints and revise assessments.” El. Rev. Stat. 1987, ch. 120, par. 594.

In dismissing plaintiff’s action and vacating its earlier declaratory order, the circuit .court did not change its position as to plaintiff’s rights under these statutory provisions, but found that the declaratory judgment and mandamus relief were not appropriate at that time because (1) the Board had the authority to determine its jurisdiction and its decision as to plaintiff’s standing was the appropriate exercise of its authority; and (2) plaintiff had an adequate remedy under the Act by paying his tax under protest and filing an objection to the application for judgment.

As to the circuit court’s first basis for its dismissal, defendants argue that review of the Board’s decision is not authorized by law because the Board had discretion to determine its own jurisdiction. Defendants overlook, however, that Illinois courts, in determining the scope of an administrative body’s power and authority, have consistently found an administrative body’s jurisdictional determination not to be a discretionary act. (E.g., Ogden-Fairmount, Inc. v. Illinois Racing Board (1986) , 147 Ill. App. 3d 789, 498 N.E.2d 882, rev’d on other grounds (1987) , 119 Ill. 2d 154; Chemetco v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 488 N.E.2d 639; People ex rel. Thompson v. Property Tax Appeal Board (1974), 22 Ill. App. 3d 316, 317 N.E.2d 121.) In Thompson, a case where the Act permitted administrative review of a property tax appeal board’s decision, the court reviewed the determination of the board’s statutory power and authority on the ground that it is a judicial function, not a question to be finally determined by the administrative agency itself. Thompson, 22 Ill. App. 3d at 321, 317 N.E.2d at 125.

Although plaintiff’s complaint in the circuit court did not involve a direct administrative appeal but sought to secure an advance declaration of plaintiff’s rights under section 117 of the Act to file future underassessment complaints before the Board, the court had the same authority to determine the Board’s jurisdiction, as the statutory procedure of declaratory judgment merely affords a new, additional, and cumulative procedural method for the determination of parties’ rights and duties (Ill. Rev. Stat. 1987, ch. 110, par. 2— 701; Ill. Ann. Stat., ch. 110, par. 2 — 701, Historical & Practice Notes, at 6 (Smith-Hurd 1963); Neuchiller v. Neuchiller (1953), 351 Ill. App. 304, 114 N.E.2d 900; Coven Distributing Co. v. City of Chicago (1952), 346 Ill. App. 448, 105 N.E.2d 137.) Moreover, the principle that an agency has jurisdiction to initially determine its own jurisdiction (see Metropolitan Distributors, Inc. v. Department of Labor (1983), 114 Ill. App. 3d 1090, 1092, 449 N.E.2d 1000, 1002) is not violated here because plaintiff’s complaint demonstrates that the Board initially determined its jurisdiction by its prior order dismissing plaintiff’s complaint on standing grounds.

While the circuit court improperly vacated its declaratory order on the basis that it did not have the authority to determine plaintiff’s standing to bring his complaints before the Board, its second finding that plaintiff had an adequate statutory remedy, if correctly determined, would be a sufficient basis for vacating the order and dismissing plaintiff’s action. Although the existence of another remedy ordinarily will not preclude bringing a declaratory judgment action, declaratory relief is unavailable in revenue cases where the statute provides an adequate remedy. (People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 427 N.E.2d 1226; LaSalle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252.) The parties here dispute the existence of an adequate remedy under the Act.

The Act allows taxpayers in Cook County to challenge real estate assessments both in a proceeding before the Board and in a tax objection proceeding in which the taxpayer pays his taxes under protest and files an objection to the application for judgment in the circuit court. (Ill. Rev. Stat. 1987, ch. 120, pars. 675, 716.) Defendant maintains that because the statutory objection procedure has been found to be appropriate for addressing underassessment claims similar to the one filed by plaintiff before the Board (see Schlenz v. Castle (1986), 115 Ill. 2d 135, 503 N.E.2d 241; People ex rel. Kohorst v. Gulf Mobile & Ohio R.R. Co. (1961), 22 Ill. 2d 104, 174 N.E.2d 182) and because this procedure, outside of limited exceptions not applicable here, has been found to be an adequate remedy to preclude actions challenging the validity of tax assessments in equity and declaratory judgment (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299; LaSalle, 57 Ill. 2d 318, 312 N.E.2d 252), plaintiffs declaratory judgment action could not lie. While defendants have correctly set forth Illinois law relating to proceedings challenging the validity of tax assessments, they fail to realize that the relief plaintiff seeks in the declaratory judgment action is not a determination as to the validity of his tax challenge, but a declaration as to his statutory right to a hearing as to the merits of his claim before the Board.

Plaintiff could not have obtained his statutory right to a hearing before the Board in the tax objection proceeding. By the time plaintiff could pay his taxes under protest to obtain a tax objection proceeding, the Board would have lost its statutory authority to revise assessments. (Ill. Rev. Stat. 1987, ch. 120, pars. 606, 716.) Furthermore, a determination of plaintiff’s underassessment claim in the tax objection proceeding would be inadequate not only because plaintiff would be denied a statutory avenue to pursue his claim, but also because plaintiff would bear a greater burden of proof in the tax objection proceeding than that before the Board. The Board has authority to revise any unjust assessment (Ill. Rev. Stat. 1987, ch. 120, par. 597), whereas a court in a tax objection proceeding is limited to reviewing whether the valuation has been fraudulently made (Clarendon, 56 Ill. 2d 101, 306 N.E.2d 299).

Accordingly, the circuit court erred in vacating the declaratory judgment order and dismissing plaintiff’s action on the basis that it did not have authority to determine plaintiff’s standing under the statute, as well as on the ground that plaintiff had an adequate remedy through the tax objection procedure. Nonetheless, because the circuit court’s judgment may be sustained on other grounds having factual support in the record, it is necessary that we consider the contentions raised by defendants in the circuit court and argued now on appeal.

Defendants contend that the circuit court’s finding that plaintiff was a “taxpayer” under section 117 of the Act was error, notwithstanding the fact that he is a resident property owner who pays real estate taxes and would benefit by a $20 tax reduction, because it is evident that the suit is for the benefit of the school district. The legislature’s substitution of the words “any taxpayer” for the words “any person” when it amended section 117’s predecessor (1931-32 Ill. Laws, Spec. Sess., §1, at 65; Ill. Rev. Stat. 1937, ch. 120, par. 314b) has been interpreted by courts as eliminating the Board’s prior jurisdiction over complaints filed by taxing bodies. (People ex rel. Thomas v. Nixon (1933), 353 Ill. 556, 187 N.E. 650; People ex rel. McDonough v. Marshall Field & Co. (1934), 355 Ill. 633, 189 N.E. 885.) Defendants assert that this intended legislative rule would be devoured were the “taxpayer” requirement found to be satisfied under the instant circumstances where plaintiffs legal fees and costs are paid by the school district and his attorney hired by the school district, where plaintiff is the president of the school board, and where plaintiff’s estimated tax savings is minimal compared to the generation of additional revenue for the school districts.

The parties here have not cited any authority which has addressed the application of section 117 of the Act in this context. The circuit court, in granting plaintiff declaratory relief, relied on our supreme court’s decision in Turkovich v. Board of Trustees of the University of Illinois (1957), 11 Ill. 2d 460, 143 N.E.2d 229. Turkovich involved an action brought under the established rule that a taxpayer may enjoin the misuse of public funds. Three individuals there sought to enjoin the expenditure of State funds for the construction of a television station at the University of Illinois based upon their status as taxpayers. The defendant board of trustees raised a standing argument similar to the one raised here under circumstances where a nontaxpayer association without standing to bring suit had violently opposed the operation of the television station, had exerted influence on plaintiffs to file the suit, and had paid plaintiffs’ costs and attorney fees associated with the suit. The court, after noting its prior holdings that courts may go behind the parties on the face of the record where the filing of a suit is for the exclusive benefit of an unnamed party, concluded that plaintiffs had standing from the undisputed evidence that plaintiffs were taxpayers who would benefit from the suit. Turkovich, 11 Ill. 2d at 464, 143 N.E.2d at 231.

Based upon our supreme court’s holding in Turkovich, we agree with the circuit court that plaintiff, who indisputably is a real property owner who pays taxes and who will financially benefit by the suit, is a “taxpayer” under section 117 of the Act. We reject defendants’ argument that the supreme court’s reasoning in Turkovich is inapposite to the interpretation of taxpayer under section 117 of the Act because the legislature’s exclusion of corporations who have a personal stake in assessments evidences an intent not to make personal stake in an assessment the conclusive test of standing under section 17. We read Turkovich as more broadly holding that it is improper to go beyond the party on the face of the record and inquire into his motives where the named party satisfies the requirements for bringing suit and has an interest in filing the suit.

Defendants also contend that we should affirm the circuit court’s dismissal of the action and vacature of its prior declaratory judgment order because plaintiff failed to join the owners of the properties whose assessments plaintiff challenged. Defendants assert that the property owners are necessary parties because their presence was required “to protect an interest which [the owners had] in the subject matter of the controversy which would be materially affected by a judgment entered in [their] absence.” (See Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, 949.) Defendants’ contention is without merit. The property owners’ interests lie in the determination of the underassessment complaints before the Board, not in plaintiff’s statutory right to bring underassessment complaints before the Board — the subject matter of the controversy before the circuit court. Plaintiff’s action to compel the Board to comply with the statute will not conclude the property owners upon any question affecting their interest in the merits of plaintiff’s underassessment complaints. The property owners will have an opportunity to appear before the Board upon a hearing of these complaints. Under these circumstances, the property owners are not necessary parties to this action. See People ex rel. Jones v. Webb (1912), 256 Ill. 36,100 N.E. 224.

Accordingly, the circuit court’s order dismissing plaintiff’s declaratory judgment action and petition seeking a writ of mandamus is reversed and the circuit court is instructed to reinstate the order granting plaintiff a declaratory judgment.

Reversed and remanded.

MANNING, J., concurs.

JUSTICE CAMPBELL,

dissenting:

I respectfully dissent from the majority opinion because it cannot be reconciled with the legislative intent of section 117 of “An Act to revise the law in relation to the assessment of property and the levy and collection of taxes, and to repeal certain Acts herein named” (the Revenue Act) (Ill. Rev. Stat. 1987, ch. 120, par. 598). In construing a statute, it is incumbent upon the court to ascertain and to give effect to the legislative intent by looking at the language of the statute and the purposes to be attained by the statute. (In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 530 N.E.2d 491.) Section 117 was amended in 1931 to eliminate standing to municipal corporations to file over-assessment and underassessment complaints with the Board of Tax Appeals and to limit standing to “taxpayers.” See People ex rel. Thomas v. Nixon (1933), 353 Ill. 556, 187 N.E. 650; People ex rel. McDonough v. Marshall Field & Co. (1934), 355 Ill. 633, 189 N.E. 885.

It is well established that a party cannot circumvent the purpose of a statute by doing indirectly that which he cannot do directly. (Kildeer, 124 Ill. 2d 533, 530 N.E.2d 491.) In my opinion, this is exactly what the school board has done in the present case. Although plaintiff is a taxpayer, it is clear from the record that the real party in interest in this action is the school board. For example, it is undisputed that: (1) plaintiff is president of the school board; (2) the school board instigated the underassessment complaints by formal resolution; (3) plaintiff admitted that he represented the interests of the school board; (4) the school board authorized and directed the hiring of plaintiffs attorneys; and (5) the school board has agreed to pay all costs and expenses attendant to the prosecution of the underassessment complaints. In my opinion, these facts support the conclusion that when the school board recognized that it could not file an underassessment complaint pursuant to section 117 of the Revenue Act, it circumvented the statutory bar and took an indirect route by having plaintiff file the underassessment claim. If this type of flagrant disregard of the statutory mandates of section 117 remains unchecked, municipal corporations will have carte blanche to select a representative taxpayer to file its underassessment claims and thereby obfuscate the legislative intent behind section 117 that municipal corporations be denied standing.

For these reasons, I would affirm the trial court’s order granting defendant’s motion to dismiss plaintiff’s complaint for declaratory judgment.

      The Act provides, in counties other than Cook, for review of a decision of the property tax appeal board in the courts under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 120, pars. 590.1, 592.4; see Schlenz v. Castle (1986), 115 Ill. 2d 135, 142, 503 N.E.2d 241, 244), but does not provide this procedure for a taxpayer in Cook County (see In re Application of Cook County Collector for the 1981 Tax Year (1988) , 173 Ill. App. 3d 821, 822-23, 527 N.E.2d 1045, 1046).


author: JUSTICE CAMPBELL PRESIDING JUSTICE BUCKLEY,

text:
      In re MARRIAGE OF SANDRA HARRIS, Petitioner-Appellant, and HOWARD A. HARRIS, Respondent-Appellee.
    First District (1st Division)
    No. 1— 89—0076
    Opinion filed September 17, 1990.

      Laser, Schostok, Kilman & Frank, of Chicago (Henry S. Frank, Bruce M. Friedman, and Danni J. Haag, of counsel), for appellant.
    Batler and Schwartz, of Buffalo Grove (Jerome Marvin Kaplan, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner, Sandra Harris, appeals from an order entered by the trial court denying her motion to vacate an agreed order entered on October 29, 1987 (the Agreed Order), which terminated the obligation of respondent, Howard A. Harris, to provide maintenance to Sandra, retroactive to August 1, 1987. On appeal, Sandra contends that the trial court erred in failing to vacate or to modify the Agreed Order on the grounds that: (1) her right to receive maintenance terminated by operation of law prior to the entry of the Agreed Order; (2) Howard fraudulently induced Sandra to enter into the Agreed Order; and (3) the invalidation of Sandra’s remarriage effected a fundamental change in circumstances which operated to turn the Agreed Order into an “instrument of wrong.” For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. On April 20, 1982, a judgment dissolving the marriage of Sandra and Howard was entered. The judgment incorporated a written marital settlement agreement, which stated, inter alia, that Howard would provide the unallocated sum of $1,500 per month for maintenance and child support. Subsequently, on November 29, 1984, by an agreed order, the settlement agreement was modified to reduce maintenance payments to $1,166.66 per month.

Thereafter, on May 29, 1987, Howard petitioned the court to terminate child support and maintenance or, in the alternative, to reduce maintenance. As grounds for his request, Howard alleged that there had been a substantial change in the circumstances of the parties, i.e., (1) Sandra had substantial assets to support herself; (2) Sandra had supplemental income; (3) Howard had remarried, thereby incurring additional expenses; (4) the children of the parties are emancipated and no longer need support; (5) the younger of the two children now resides with Howard, rather than with Sandra; (6) Howard can no longer afford to support Sandra as he did in the past; and (7) Sandra’s monthly expenses have decreased. On October 4, 1987, prior to the hearing on Howard’s petition, Sandra remarried. Subsequently, on October 29, 1987, the Agreed Order, from which Sandra appeals, was entered. The Agreed Order provided, in pertinent part:

“1. Article II of the Marital Settlement Agreement is hereby modified to provide that maintenance shall terminate retroactive to August 1, 1987; provided, however, that the Respondent shall pay to Petitioner the arrearage of Three Hundred ($300.00) Dollars.”

On November 14, 1987, Sandra separated from her second husband. Approximately two weeks later, she filed a motion to vacate the Agreed Order, alleging: (1) two of the five life insurance policies that Howard had agreed to maintain had lapsed; and (2) her second marriage was invalid as a matter of fact and law. On December 23, 1987, a declaration of invalidity was entered as to Sandra’s second marriage nunc pro tune to October 4, 1987. The grounds for the declaration of invalidity were the second husband’s false representations prior to marriage that he would be willing to consummate the marriage. Following a hearing on Sandra’s motion to vacate the Agreed Order, the trial court denied the motion. Sandra’s appeal followed.

Sandra initially contends that, pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)), Howard’s obligation to pay maintenance terminated by operation of law upon her remarriage on October 4, 1987, and the Agreed Order was merely an acknowledgement of the earlier termination. Therefore, Sandra argues that the trial court erred in failing to vacate or to modify the Agreed Order. Section 510(b) provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” Ill. Rev. Stat. 1987, ch. 40, par. 510(b).

In the present case, the marital agreement was silent as to the termination of maintenance. Thus, section 510(b) was applicable and acted to terminate, by operation of law, Howard’s obligation to pay future maintenance upon Sandra’s remarriage of October 4, 1987. However, contrary to Sandra’s position, Howard’s obligation to pay maintenance was not reinstated by the subsequent declaration of invalidity of Sandra’s remarriage.

Sandra correctly argues that the pivotal question to resolving the issue of whether the maintenance obligation is reinstated if the remarriage is declared invalid is whether the term “remarriage,” as it appears in section 510(b) of the IMDMA, means the ceremony of marriage or the status of marriage. Sandra contends that “remarriage” means “marital status,” and if the status is subsequently declared void, the parties are placed in the same position as if the remarriage had never occurred. Contrary to Sandra’s position, this court defined the term “remarriage” in In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 425 N.E.2d 1301, to mean a ceremonial marriage rather than a marital status. Although Kolb interpreted the term “remarriage” as it appeared in a settlement agreement and not in section 510(b) of the IMDMA, the Kolb court’s analysis is equally applicable in both contexts.

In Kolb, judgment for divorce was entered on October 20, 1972. The judgment incorporated an oral settlement agreement which specifically provided that maintenance payments were to terminate upon the wife’s death or remarriage. In early August 1978, petitioner initiated post-decree proceedings alleging that respondent’s remarriage on February 12, 1977, had terminated his obligation to make future payments.

At the hearing on the petition, respondent testified that directly after the remarriage ceremony, she and her second husband became involved in a heated argument, he walked out of the reception, and did not return to the hotel. As a result, the marriage was never consummated. Respondent commenced annulment proceedings in August 1977. The trial court entered an order giving full force and effect to the out-of-State annulment decree and the petition to terminate maintenance payments. Petitioner then filed a motion to reconsider. Following a hearing, the trial court found that, pursuant to the divorce judgment, petitioner’s alimony obligation terminated upon respondent’s remarriage and was not reinstated by the annulment of the remarriage.

On appeal, the Kolb court held that unless the parties specifically indicated otherwise or unless special circumstances existed at the time of remarriage, such as lack of consent due to intoxication or where the wife was physically or mentally handicapped, “the term ‘remarriage’ is intended to refer to a ceremonial marriage rather than a marital status.” (99 111. App. 3d at 902.) The Kolb court further stated that this definition “offers a predictable and consistent interpretation of the term ‘remarriage.’ ” (99 111. App. 3d at 902.) In addressing respondent’s argument that it was the parties’ intent that the alimony obligation continue until she had entered into a marriage that would provide her with support, the Kolb court stated:

“|l]t would appear that under respondent’s view, if she entered a marriage with someone who could not support her, petitioner would be required to continue his support because this would not constitute a ‘remarriage’ under the terms of the decree.” 99 Ill. App. 3d at 900.

In the present case, Sandra attempts to distinguish Kolb on the ground that the Kolb court had reached its decision based upon the clear intent of the parties as expressed in their settlement agreement. Although the settlement agreement in the present case was silent as to the parties’ intent regarding termination of maintenance payments upon remarriage, their intent was clearly expressed to the trial court at the hearing on the petition for dissolution:

“THE COURT: Are there any termination provisions in connection with maintenance?
[PETITIONER’S COUNSEL]: No, maintenance will continue as long as she is not married.
THE COURT: Oh now, that is different, is that what it says in the agreement?
[PETITIONER’S COUNSEL]: No, the agreement has no terminating features, the agreement will terminate if at all by law, that means in the event she remarries.
THE COURT: I see, since there is no specific provision, that cannot be modified.
[PETITIONER’S COUNSEL]: Yes, sir.”

Just as the settlement agreement did in Kolb, the aforementioned colloquy manifests the intent of the parties that remarriage would terminate the maintenance obligation. In fact, Sandra’s counsel went one step further than in Kolb by specifically acknowledging that because the obligation terminated by operation of law, it could not be modified. While the plain language of section 510(b) provides that maintenance obligations terminate upon remarriage, it does not provide for reinstatement of those obligations in the event the remarriage is declared invalid. Because it is not within the province of this court to inject provisions not found in a statute (In re Objection of Cook to Referendum Petition of Pierce (1984), 122 Ill. App. 3d 1068, 462 N.E.2d 557), we decline to inject reinstatement provisions into section 510(b). Accordingly, we hold that the term “remarriage” as it appears in section 510(b) of the IMDMA means the ceremony of marriage and not the status of marriage, and the declaration of the invalidity of Sandra’s remarriage did not act to reinstate the maintenance obligation.

In reaching this decision, we note that Sandra’s reliance on In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, and In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 495 N.E.2d 1383, which interpret the term “cohabits” as it appears in section 510(b), is inapplicable to an interpretation of the term “remarriage.” In essence, Sandra argues that because the Bramson and Reeder courts interpreted the term “cohabits” as referring to a status situation rather than to a ceremony, such as interpretation should also apply to the term “remarriage” in that both terms appear in section 510(b). By definition, these terms are fundamentally distinguishable from each other. “Cohabitation” is defined as, “To live together as husband and wife.” (Black’s Law Dictionary 236 (5th ed. 1979).) “Marriage,” on the other hand, is defined as the “[l]egal union of one man and one woman as husband and wife.” (Black’s Law Dictionary 876 (5th ed. 1979).) In Illinois, a “legal union” requires that the marriage between a man and woman be licensed, solemnized and registered pursuant to section 201 of the IMDMA. (Ill. Rev. Stat. 1987, ch. 40, par. 201.) Performance of these requirements constitutes the “ceremony” of marriage. By contrast, the act of cohabiting requires no ceremonial prerequisites. Instead, in determining whether a couple is cohabiting, the court looks to the factual circumstances of the parties’ living arrangements to determine if the status of cohabitation exists. (Bramson, 83 Ill. App. 3d 765, 404 N.E.2d 469; Reeder, 145 Ill. App. 3d 1013, 495 N.E.2d 1383.) Accordingly, the absence of a ceremony as an element of cohabitation renders the judicial interpretation of “cohabits” as a status situation irrelevant to the interpretation of “remarriage.” The mere fact that the terms “cohabits” and “remarriage” appear in section 510(b) does not demonstrate the legislative intent that they be similarly defined.

Our decision that the term “remarriage” refers to the ceremony of marriage and not to the marital status renders it unnecessary to address Sandra’s argument that because her remarriage was rendered void ab initio, her marital status before and after the remarriage remained unchanged. Regardless of her marital status, the ceremony had taken place and remarriage, pursuant to the requirements of the IMDMA, had occurred.

Next, Sandra argues that the trial court erred in failing to vacate the Agreed Order on the grounds that Howard had fraudulently induced her to enter into the Agreed Order. As previously stated, paragraph 1 of the Agreed Order modified the marital settlement agreement by stating that maintenance would terminate retroactive to August 1, 1987, provided that Howard pay the $300 arrearage. The Agreed Order further addressed the division of marital investments, Howard’s obligations regarding the children’s college expenses, and Howard’s obligation to maintain certain life insurance policies.

Sandra contends that Howard induced her to enter into the Agreed Order by representing to her that the insurance policies were in full force and effect. In her memorandum in support of her motion to vacate the Agreed Order, Sandra alleged that after signing the Agreed Order, she received notice that two of the life insurance policies had lapsed. Sandra claims that Howard “must have had knowledge” of the lapsed policies at the time they entered into the Agreed Order. Therefore, Howard had fraudulently induced her to sign the Agreed Order and it should be set aside and her maintenance payments should be reinstated.

In order to establish fraudulent misrepresentation, Sandra must show that Howard made a false statement of material fact, that he knew the statement to be false, that he made the statement for the purpose of inducing Sandra to act in reliance on its truth, and that Sandra actually relied upon the statement. (In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 474 N.E.2d 28.) In the present case, there is no evidence that Howard knew that the policies had lapsed at the time the Agreed Order was entered. Further, other than Sandra’s self-serving statement in her memorandum of law, there is no evidence in the record that Howard had induced Sandra to agree to the termination of maintenance payments by promising that the life insurance policies were in full force and effect. The only condition set forth in the Agreed Order to the termination of maintenance payments was that Howard pay the arrearage of $300. Sandra does not contend that this payment was not made. Moreover, it is incredible that Sandra would agree to give up maintenance payments in return for Howard’s promise to do that which he was already legally obligated to do pursuant to the marital settlement agreement. Finally, even if fraudulent inducement could be shown, it would have no effect on Howard’s obligation to make maintenance payments after Sandra remarried on October 4, 1987, because that obligation terminated by operation of law prior to the entry of the Agreed Order.

Next, Sandra argues that the judgment of invalidity of her remarriage effected a fundamental change in circumstances which transformed the Agreed Order into an “instrument of wrong.” As previously stated, the Agreed Order had no legal effect on Howard’s obligation to make maintenance payments after Sandra remarried on October 4, 1987. Thus, whether the judgment of invalidity of Sandra’s remarriage effected a fundamental change in circumstances for the period commencing October 4, 1987, is irrelevant.

Accordingly, although the trial court may have erred in not modifying paragraph 1 of the Agreed Order to refer only to the period of August 1, 1987, to October 4, 1987, the legal effect of the termination of maintenance payments by operation of law or by the Agreed Order is the same. In either situation, Howard’s maintenance obligation was not reinstated upon a declaration of the invalidity of Sandra’s remarriage.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

MANNING, J., concurs.

PRESIDING JUSTICE BUCKLEY,

dissenting:

I respectfully dissent.

The previous appellate court opinions interpreting “termination of maintenance on remarriage” provisions in settlement agreements or divorce decrees do not control the instant case, nor are their analyses equally applicable to the instant context. These cases applied established contract principles to interpret the “remarriage” provision. Lehmann v. Lehmann (1922), 225 HI. App. 513, found that the parties intended the word “remarriage” to refer to the ceremony of marriage as distinguished from the status of marriage, stressing that the husband’s automatic termination of his alimony payments upon his former wife’s remarriage and the wife’s failure to demand these payments indicated their belief that the payments would terminate upon the ceremony of marriage. In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 425 N.E.2d 1301, concluded that the parties intended the term to refer to the ceremony of marriage rather than the status of marriage by finding no ambiguity in the term as referring to the occurrence of the event of the marriage ceremony. The court, in Thomas v. Thomas (1983), 111 Ill. App. 3d 1032, 444 N.E.2d 826, apparently did not agree that the agreement’s remarriage term was unambiguous when it looked to other evidence of the parties’ intent and found the husband’s actions in resuming alimony payments after the declared invalidity of his former wife’s marriage evidenced an intent that the term remarriage refer to the status of marriage rather than the ceremony of marriage.

In contrast to the above cases, we are confronted here -with a dispute as to the meaning of a statutory provision, where our role is markedly different than the role of determining and giving effect to the intent of interested parties to an agreement. The primary function of a court in interpreting and construing statutes is to ascertain and give effect to the legislature’s intent in enacting the statute. (Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307; Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370.) In performing this function, we must look to the entire statute and consider not only its language but also the reason and necessity of the law, the objective which the statute sought to accomplish, and the evils sought to be remedied. E.g., City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219; People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45; Baksinski v. Corey (1988), 173 Ill. App. 3d 1016, 529 N.E.2d 232, affd (1989), 127 Ill. 2d 316, 537 N.E.2d 323; People v. Moffitt (1985), 138 Ill. App. 3d 106, 485 N.E.2d 513.

Illinois case law interpreting the cohabitation provision in section 510(b) demonstrates the objectives the legislature sought to accomplish in providing for the termination of maintenance in the situations specified in that section. The legislature added the provision terminating maintenance upon the recipient spouse’s cohabitation with another “on a resident, continuing conjugal basis” to end the inequities caused by Illinois’ nonrecognition of common law marriages, when a former spouse who had entered into a nonlegalized husband-wife relationship was still entitled to maintenance. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1017, 495 N.E.2d 1383, 1385; In re Marriage of Ohm (1981), 98 Ill. App. 3d 316, 320-21, 424 N.E.2d 386, 396; In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 614, 405 N.E.2d 1156, 1160-61; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 661, 404 N.E.2d 469, 472.) In construing this “cohabitation” provision, Illinois courts have concluded that the legislative intent behind section 510(b) was to provide for the termination of maintenance whenever the recipient has entered into a husband-wife relationship (Reeder, 145 Ill. App. 3d at 1017, 495 N.E.2d at 1385; In re Support of Halford (1979), 70 Ill. App. 3d 609, 612, 388 N.E.2d 1131, 1134) and that the legislature’s inclusion of such a provision relates to the underlying rationale of maintenance— the need for support by the spouse who is to receive maintenance (Reeder, 145 Ill. App. 3d at 1017-18, 495 N.E.2d at 1385-86; Bramson, 83 Ill. App. 3d at 663, 404 N.E.2d at 473). In so doing, Illinois courts rejected the contention that the legislature was attempting to control public morals by providing for maintenance termination on cohabitation. Reeder, 145 Ill. App. 3d 1013, 495 N.E.2d 1383; Bramson, 83 Ill. App. 3d 657, 404 N.E.2d 469.

I do not believe the legislature’s intent, in providing for termination of maintenance upon “remarriage,” was to pass judgment on the equities of a supporting spouse’s obligation to pay maintenance when the recipient spouse had entered into a ceremony of marriage with another person. Rather, consistent with the conclusions reached by the above courts, I believe the legislature’s objective was to terminate maintenance in situations it believed affected the need for maintenance, namely, where the recipient spouse enters into the status of a husband-wife relationship. Under section 510(b), the marriage certificate itself sufficiently evidences this husband-wife relationship; whereas, in the absence of a legal marriage, the statute describes the conduct the supporting spouse must establish to prove such a relationship — cohabitation with another on a resident, continuing conjugal basis. (See Halford, 70 Ill. App. 3d at 613, 388 N.E.2d at 1134.) It necessarily follows that maintenance is not terminated under the statute where the legal marriage or marriage certificate which evidenced the “status” of marriage or husband-wife relationship is legally declared invalid.

Accordingly since the legal “marriage” which established Sandra’s marriage status was legally declared invalid, I would hold that Howard’s maintenance obligation was not statutorily terminated. This holding would render it necessary to address the issue not reached in the majority opinion of whether the trial court erred in denying Sandra’s motion to vacate the October 29 Agreed Order, entered subsequent to her remarriage and before the order declaring the invalidity of the marriage, on the ground that it did not operate to terminate maintenance under these circumstances.

The parties have-not offered any case law which governs the instant circumstances. Because the provisions of a settlement agreement are to be interpreted by normal contract rules (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 494, 509 N.E.2d 729, 737; In re Marriage ofKloster (1984), 127 Ill. App. 3d 583, 584-85, 469 N.E.2d 381, 383), I believe the application of contract principles governs the determination here.

At the time Sandra entered into the Agreed Order, she believed that Howard’s maintenance obligation was already terminated by her remarriage and by operation of law when, in fact, Howard’s maintenance obligation was not statutorily terminated due to the subsequently declared invalidity of the marriage. Sandra was mistaken as to the law in the inducement to the contract rather than in the writing of it; or, more simply stated, she was mistaken as to the law governing her situation prior to entering into the bargain. See 13 W. Jaeger, Williston on Contracts, §§1588,1589 (3d ed. 1970).

While the general rule is that equity will relieve for mistakes of fact but not mistakes of law (13 W. Jaeger, Williston on Contracts, §1582 (3d ed. 1970)), courts generally recognize an exception where the mistake relates to the private rights of the parties as distinguished from a mistake as to the general law. (E.g., Peter v. Peter (1931), 343 Ill. 493, 500, 175 N.E.2d 846, 850; Esquibel v. Brown Construction Co. (1973), 85 N.M. 487, 513 P.2d 1269; Ryan v. Vickers (1965), 158 Colo. 274, 406 P.2d 794; Furnace v. Furnace (Tex. App. 1989), 783 S.W.2d 682; In re Commonwealth Trust Co. (1947), 357 Pa. 349, 54 A.2d 649.) In Peter, our supreme court explained:

“ ‘Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights *** either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, *** equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.’ ” (Peter, 343 Ill. at 500, 175 N.E.2d at 850, quoting Pomeroy, Equity Jurisprudence, vol. 2, §849 (3d ed. 1905).)

Such a situation exists in the case at bar. Sandra was mistaken as to her existing private legal rights at the time she entered into the agreement. The fact that at the time of the agreement the statute operated to terminate Howard’s maintenance obligation and it only later developed that the statute did not operate to terminate his obligation does not render the exception inapplicable. In Ryan v. Vickers (1965), 158 Colo. 274, 406 P.2d 794, where an agreement was entered into between a lessee and the lessee’s landlord affecting the lessee’s debt obligations under the belief that the landlord’s lien took precedence over a third-party’s lien when, in fact, it was ultimately determined in court that the third-party’s lien had priority over the landlord’s lien, the court held that the above exception applied to vitiate the contract. Ryan, 158 Colo, at 279, 406 P.2d at 797.

In applying these contract principles here, I am cognizant that the cases disclosed by my research have involved situations where the parties were mutually mistaken as to the parties’ private legal rights. The record here does not demonstrate whether Howard was aware of Sandra’s remarriage and therefore mistaken as to the termination of his maintenance obligation at the time he entered into the agreement. • Nonetheless, Illinois law suggests that, under the instant circumstances, the fact that only one party was mistaken in this regard would not preclude equitable relief.

The common law rule that rescission is not available for unilateral mistake except where the other party knows or has reason to know the mistake has been eroded in many jurisdictions by an increasing number of cases which have permitted avoidance where only one party was mistaken. (J. Calamari & J. Perillo, Contracts, §9 — 28 (2d ed. 1979).) Illinois courts have held that a court of equity may rescind an agreement at the request of one party who entered into it without negligence, through a material mistake of fact, where the parties can be placed in status quo. Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 342, 472 N.E.2d 575, 578; McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 686, 462 N.E.2d 682, 686; HarneyMorgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 606, 455 N.E.2d 130, 134; Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 13, 80 N.E. 564, 565.

Equity demands that the Agreed Order be rescinded in the case at bar. The mistake here was material to the contract, as it is inconceivable that Sandra would have assented to relinquish all her rights to maintenance had she been aware that she was legally entitled to maintenance. Additionally, because the Agreed Order was entered within weeks of her remarriage, it cannot be said that she entered into the contract due to any lack of diligence on her part. Finally, by rescinding the Agreed Order, the parties would be placed in status quo, as Howard may proceed with his petition to reduce maintenance before the circuit court. Under these circumstances, I would hold that the trial court’s refusal to vacate the agreed order was an abuse of its discretion.