author: JUSTICE GEIGER

text:
    GARY K. LODOLCE et al., Plaintiffs-Appellants, v. CENTRAL Du PAGE HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 2 — 80—1316
    Opinion filed July 23, 1991.
    — Rehearing denied August 28,1991.

      Alan C. Hoffman, of Alan C. Hoffman & Associates, of Chicago and Francis X. Riley, of Wheaton, for appellants.
    Henry J. Burt, Jr., of Rathje, Woodward, Dyer & Burt, and Lenard C. Swanson and Bruce S. Terlep, both of Wildman, Harrold, Allen & Dixon, both of Wheaton, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiffs, Gary K. Lodolce and Marcena Lodolce, appeal from the trial court’s denial of a petition filed pursuant to section 2 — 1401 of the Code of Civil Procedure (the 2 — 1401 petition) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The 2 — 1401 petition sought to reinstate a medical malpractice action that the trial court had dismissed for want of prosecution. On appeal, the plaintiffs argue that the trial court abused its discretion in refusing to reinstate their action. We dismiss the appeal for want of jurisdiction.

On October 6, 1988, the plaintiffs filed their complaint against Central Du Page Hospital (Central Du Page) and Dr. Harb Boury (Dr. Boury). On November 15, 1989, on Dr. Boury’s motion, the complaint was dismissed for want of prosecution. On December 5, 1989, the plaintiffs obtained an order vacating the dismissal and reinstating the action. On January 2, 1990, Dr. Boury moved to vacate the December 5, 1989, order. On February 15, 1990, the trial court order granted Dr. Boury’s motion and vacated the vacatur of the November 15, 1989, order of dismissal. On March 12, 1990, the plaintiffs moved to vacate the dismissal, and the trial court denied this motion. On March 14, 1990, the plaintiffs moved to reconsider the trial court’s ruling. On April 3, 1990, the trial court denied this motion and ruled that the original dismissal order of November 15, 1989, would stand. On April 24, 1990, the plaintiffs filed a “motion for a rehearing.” On June 13, 1990, this motion was stricken by the trial court. On August 16, 1990, the plaintiffs filed the 2 — 1401 petition. On November 1, 1990, the trial court denied the motion. On November 27, 1990, the plaintiffs brought this appeal.

The facts of this case are more complicated than the foregoing may suggest, and we now set them out in depth.

The plaintiffs’ complaint was a refiling of an action that had been voluntarily dismissed without prejudice on October 19, 1987 (see Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217). The plaintiffs alleged that Dr. Boury and Central Du Page had been negligent in treating Gary Lodolce’s malignant tumor. On November 1, 1988, Dr. Boury entered his appearance and filed an answer, a notice to depose Gary Lodolce on January 20, 1989, and a set of interrogatories. Central Du Page entered its appearance on November 7, 1988, and filed its answer on November 14, 1988. Central Du Page also served the plaintiffs with interrogatories, to which the plaintiffs filed their reply on December 13,1988.

An initial status hearing was set for January 9, 1989. On that date, counsel for Central Du Page appeared. He explained to Judge Peccarelli that he had received a telephone call from the plaintiff’s attorney. She had a “very good reason” for not appearing, though he could not remember what it was. He suggested moving back the status date, and the court set March 10,1989, for a status hearing.

On January 20, 1989, the plaintiffs filed their response to Dr. Boury’s interrogatories. On February 14, 1989, they filed requests for production directed toward both defendants, and on February 27, 1989, filed interrogatories directed toward both defendants.

On March 10, 1989, the court entered an order, drafted by counsel for Dr. Boury, setting the case for status review on May 10, 1989. On that day, counsel for Dr. Boury appeared and informed the judge that discovery was well underway. The judge agreed to continue the case for a status hearing on July 12, 1989, allowing Dr. Boury to depose Gary Lodolce as scheduled meanwhile.

On June 8, 1989, the plaintiffs filed amended interrogatories directed to Dr. Boury. Dr. Boury filed his answers to the interrogatories on July 6, 1989.

On July 12, 1989, counsel for Dr. Boury appeared at the scheduled hearing. He told the judge that one plaintiff’s deposition had been taken, that Dr. Boury had yet to he deposed and would be out of the country until August. He did not know where plaintiffs’ counsel was and suggested another status date. The court ordered the case continued for a status hearing on September 13,1989.

On September 13, 1989, counsel for Dr. Boury appeared at the scheduled hearing before Judge Lewis. Dr. Boury’s attorney informed the judge that he did not know where the plaintiffs’ attorney was, that the plaintiffs had done very little in the case to date, and that he would ask for a dismissal with prejudice if the plaintiffs made no appearance. The court entered an order continuing the case for a status hearing on November 15,1989.

At the November 15, 1989, hearing, counsel for both defendants appeared, but the plaintiffs again were unrepresented. The trial court dismissed the case for want of prosecution.

On December 5, 1989, the plaintiffs filed a motion to vacate the dismissal for want of prosecution. The plaintiffs’ principal attorney, Alan C. Hoffman, submitted an affidavit in support of the motion. The affidavit stated that his absence at the status hearings “was done without any willful or intentional disregard,” but was due to “clinical [sic] and docketing errors.”

On December 5, 1989, at 9 a.m., Judge Lewis heard the plaintiffs’ motion to reinstate. Loretta Ursini of the plaintiffs’ law firm appeared; the defendants were not represented. After Ursini informed Judge Lewis that the defendants had received notice, the court entered an order vacating the dismissal, reinstating the case, and setting a status hearing for February 9,1990.

On January 2, 1990, Dr. Boury moved to vacate the order reinstating the case. Dr. Boury alleged that the plaintiffs never sent him notice of their motion and that he found out about the motion on December 18, 1989, when his counsel received a copy of the December 5 order. The court gave the plaintiffs 14 days to respond to the motion and set February 9, 1990, for a hearing on the motion. The plaintiffs filed their response on January 23, 1990. On February 9, 1990, the court continued the case to February 15, 1990, for a hearing on both the status of the case and the defendant’s motion. The case was assigned to Judge Robert E. Byrne.

On February 15, counsel for Dr. Boury appeared at the hearing. He informed the court that he did not know where the plaintiffs’ attorney was. He agreed with Judge Byrne that the plaintiffs’ motion to vacate had been timely filed, but stated that Dr. Boury had never received notice of the motion or an opportunity to respond. The judge said that it was his understanding that if he granted Dr. Boury’s motion, the plaintiffs could still renotice their motion for hearing because their motion had been timely filed. The court then entered a written order stating that (1) the defendant’s motion was granted; (2) the December 5, 1989, order was vacated; and (3) the order of November 15, 1989, dismissing the cause for want of prosecution hereby stood and the case was “dismissed for want of prosecution as of November 15, 1989.”

On March 5, 1990, the plaintiffs filed their notice of motion to vacate the dismissal for want of prosecution. On March 12, 1990, they filed the motion to vacate the “Dismissal for want of Prosecution entered on February 15, 1990[.]” In support of the motion to vacate the dismissal order, the plaintiffs’ principal attorney attached an affidavit stating that his absence at the status hearings was the result of “clerical and docketing errors” and not of “any intentional or willful disregard.”

The court heard the plaintiffs’ motion on March 12, 1990. Counsel for the plaintiffs and for Dr. Boury were present. The following discussion ensued:

“MR. HOFFMAN: Your Honor, this comes on, on Plaintiff’s [sic] motion to vacate a DWP.
There was a prior DWP entered and the case got somewhat confused.
* * *
THE COURT: There was, on 2/15 an order to — motion to vacate an order of 12/5.
MR. HOFFMAN: There is currently pending — to clarify everything, the most recent thing that we got pursuant to that was a DWP that was entered on that date.
That’s what I want to vacate.
THE COURT: 2/15?
MR. HOFFMAN: 2/15.
THE COURT: Any objection?
MR. TERLIP [sic] [counsel for Dr. Boury]: My objection is simply that his matter has been up before.
The history was that it was DWP’d on November 15th.
* * *
MR. TERLIP [sic]: That motion finally came up on the 15th [of February],
MR. HOFFMAN: That was the day of the snow storm, your Honor.
My associate was supposed to be here. I was unable to be here.
THE COURT: December 5th, motion to vacate.
Now, you’re in a 2 — 1401 situation.
Your motion is certainly not within the grounds of 2 — 1401 if he objects.
We have to follow the rules.
Your motion to vacate will be denied without prejudice.
You can file a 2 — 1401 motion.
If you can meet that burden, I’ll be happy to consider it.
MR. HOFFMAN: It’s still within 30 days.
THE COURT: No, it’s not.
Once the order was vacated, we’re back to the 15th.
MR. HOFFMAN: And there was a prior motion that was filed.
THE COURT: The order of December 5th, vacating the DWP[,] was vacated.
So, now you’re back to November 15th. You’re vacating a November 15th DWP.
You’re not within 30 days.
You’ve got to comply within [sic] 2 — 1401.
MR. HOFFMAN: All right.
THE COURT: So we’ll deny this without prejudice.
And if you can re-file it, do your motion as a 2 — 1401, I’ll be happy to hear it.
MR. HOFFMAN: Thank you, your Honor.”

The court entered a written order stating that the plaintiffs’ motion to vacate the dismissal order of November 15, 1990, was denied “without prejudice.” On March 14, 1990, two days later, the plaintiffs filed a “motion for reconsideration” of the “motion presented on February 15, 1990, and the matter heard on March 12, 1990.” The motion, which was unsworn, stated that the plaintiff’s principal attorney was unable to appear at the February 15 hearing and had assigned the matter to Loretta Ursini, that a severe snowstorm prevented her from getting to court that day, and that on the morning of February 15 Ursini informed opposing counsel that she would be unable to appear. The motion also stated that the original motion to vacate the November 15, 1989, dismissal was timely filed and was properly re-noticed.

The plaintiffs did not appeal the February 15, 1990, order reinstating the dismissal.

On April 3, 1990, the court heard the March 14 “motion to reconsider.” With counsel for both defendants present, the following exchange between the plaintiffs’ attorney and Judge Byrne took place:

“MR. HOFFMAN: I don’t think the Court, last time this matter was up, took into consideration a motion which was pending at the time.
THE COURT: There was a motion to vacate a DWP which I denied.
MR. HOFFMAN: There was also a motion for — at that time, your Honor, to vacate another DWP which was previously filed.
So, it was a motion which had been previously filed.
THE COURT: Let’s see your motion.
MR. HOFFMAN: There were two motions that were present last time.
The Court only ruled on one.
THE COURT: That’s all I have to rule on.
I’m not going to vacate it.
If I’m not going to vacate it, I’m not going to vacate it.
If I don’t vacate your DWP, I don’t have to listen to the other motions.
MR. HOFFMAN: All right. Fine.
THE COURT: Okay.
So, if that’s what you want me to reconsider, that’s denied.
MR. HOFFMAN: I think the Court, as I understand its ruling, refused to vacate the DWP that was entered on which date?
THE COURT: The one that I refused to vacate, 11/15/89.
MR. HOFFMAN: Okay.
And I—
THE COURT: That’s the one I refused to vacate, so it’s DWP’d.
There is nothing to re-consider [sic].
MR. HOFFMAN: I think the Court stated it was too late, the way in which to file the motion on that was 2 — 1401, 6— 1301.
THE COURT: Read your order, Counsel.
I denied the motion pursuant to 2 — 1301.
MR. HOFFMAN: Thank you.”

On that day, April 3, 1990, the court entered a written order stating that, after the hearing on the plaintiffs’ “motion to reconsider this courts [sic] rulings of 11/15/89, 2/15/90 and 3/12/90,” the motion was denied and the ruling of November 15, 1989, dismissing the case for want of prosecution stood.

On April 24, 1990, the plaintiffs filed a “motion for rehearing.” The motion stated that the plaintiffs requested (1) a rehearing of the April 3, 1990, motion to reconsider and (2) that the court vacate the dismissal for want of prosecution.

Attached to this latest motion were a “memorandum in support of motion for a rehearing” and eight exhibits. The memorandum argued that the court erred in vacating the December 5, 1989, order of reinstatement. The motion also argued that the trial court erred in its March 12, 1990, holding that the plaintiffs could attack the ruling of February 15, 1990, only by a section 2 — 1401 petition. The memorandum argued finally that the plaintiffs properly filed their December 5, 1989, motion within 30 days of the dismissal order and, according to Supreme Court Rule 184 (134 Ill. 2d R. 184), were entitled to have that motion heard. The memorandum concluded with a request that the court vacate the dismissal for want of prosecution and reinstate the case. The exhibits included papers already on file with the court. On May 25, 1990, the plaintiffs filed miscellaneous amendments to the memorandum.

On June 8, 1990, the plaintiffs filed a notice of a hearing on the motion to be held before Judge Byrne on June 12, 1990. On June 12, 1990, counsel for Dr. Boury appeared for the hearing. Nobody appeared for the plaintiffs. Dr. Boury’s attorney explained to the judge that the plaintiffs wanted to withdraw the motion for rehearing. He explained further that he had “noticed up” the motion for June 13, apparently while the plaintiffs had “notic[ed] it up” for June 12. The judge suggested simply holding the hearing the next day; Dr. Boury’s attorney agreed. Judge Byrne said that he would make the appropriate notation in the file. He asked Dr. Boury’s attorney, “It’s your motion to hear their motion tomorrow?” and the latter replied, “They have asked to withdraw today. I don’t know what they are doing tomorrow. I want some sort of resolution.”

The next day, Dr. Boury’s attorney appeared alone before Judge Byrne and the following exchange took place:

“THE COURT: Do you want the motion stricken?
MR. TERLIP [sic]: Here’s the problem today, Judge:
There was no notice sent out for today’s date, because my secretary set this date up, but then Plaintiffs noticed up their motion yesterday, if you recall.
THE COURT: Do you want an order, yesterday, striking the motion?
MR. TERLIP [sic]: Correct, Q]ust to show that it’s withdrawn or stricken.
THE COURT: Put it to nunc pro tunc, yesterday.
MR. TERLIP [sic]: Thank you, your Honor.
THE COURT: Okay.
That’s — that’s better. I was thinking of that when no one showed up.
MR. TERLIP [sic]: And I didn’t want it to linger there in space for the next who knows how long.”

The court’s written order of June 13, 1990, stated that the plaintiffs’ motion for rehearing had been heard and that, on the court’s own motion, the motion for rehearing was stricken, nunc pro tunc June 12, 1990.

On August 16, 1990, the plaintiffs filed their “Petition for Relief Pursuant to Section 2 — 1401.” The affidavit stated that the plaintiffs were seeking relief from the November 15, 1989, dismissal for want of prosecution.

Attached to the petition was an affidavit from the plaintiffs’ principal attorney, Alan C. Hoffman, explaining his absences from the November 15, 1989, and February 15, 1990, hearings. The affidavit stated that, rather than resulting from any intentional or willful disregard of the court, his absence at the former hearing was “partially due to an error in docketing.” Specifically, he had telephoned Dr. Boury’s attorney and informed the latter that he might miss the status hearing because he needed to consult with an expert witness in another case and that the "witness was available only on the morning of November 15. Hoffman received the impression from this conversation that Dr. Boury’s attorney would present the case’s status to the court and tell the court of Hoffman’s whereabouts and of the fact that Hoffman could be reached by cellular telephone.

Hoffman’s affidavit also stated that he had assigned an associate to handle the February 15, 1990, hearing and that she could not make it to the hearing because of the severe snowstorm that began the evening of February 14.

The section 2 — 1401 petition stated further that although the plaintiffs noticed their April 24, 1990, “motion for rehearing” for hearing on June 12, 1990, they withdrew the motion shortly before that date on the advice of counsel whom they had retained to argue the motion.

Dr. Boury filed a memorandum in opposition to the petition. In their reply, filed October 23, 1990, the plaintiffs included an affidavit of Linda Bell, one of their attorneys. Bell stated that on June 11, 1990, she telephoned counsel for each defendant and told them that the plaintiffs were withdrawing the “Motion for Rehearing” that was scheduled for hearing the next day.

On November 1, 1990, the court heard the section 2 — 1401 petition. Linda Bell told the court that on June 11 she “spoke to the Court clerk here, or your secretary, and notified her of our intent to withdraw the [April 24, 1990,] motion.” She also stated that she had informed opposing counsel of the plaintiffs’ intent to withdraw the motion. She argued that under local court rule 6.04, Dr. Boury’s motion to strike the motion for rehearing was premature because less than 60 days had passed between April 24,1990, and June 12,1990.

Counsel for Dr. Boury replied that he had simply noticed the plaintiffs’ motion for rehearing and was not moving to strike the motion on June 13. He denied having spoken with the plaintiffs’ counsel on June 11 and stated that he had been unaware of the plaintiffs’ intention to withdraw the motion until he arrived in court on June 12.

After further argument, the trial judge announced that he would deny the section 2 — 1401 petition. Crucial to his decision was that, since the original dismissal, the plaintiffs had failed to exercise diligence in pursuing the matter as required by section 2 — 1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The trial judge emphasized that the plaintiffs’ attorney failed to appear for the February 15, 1990, hearing or to notify the court that he would not appear. The trial judge also explained that he denied the plaintiffs’ March 12, 1990, motion to vacate the order of November 15, 1990, because the motion did not conform to a local court rule which required such motions to be noticed and heard within 60 days of filing. The judge noted that although he told counsel on March 12, 1990, that the plaintiffs would have to bring their motion under section 2 — 1401, the plaintiffs waited five months to file their section 2 — 1401 petition. The court issued its written order denying the section 2 — 1401 petition, and the plaintiffs appealed.

We conclude that we may not reach the merits of this appeal. Although the parties have not raised the matter of our jurisdiction, we must do so sua sponte and dismiss the appeal if jurisdiction is lacking. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539.) For the reasons that follow, we have determined that we may not entertain the plaintiffs’ appeal.

The trial court dismissed the plaintiffs’ cause of action twice: once on November 15, 1989, when it issued an order so stating, and again on February 15, 1990, when it “reinstated” the dismissal by vacating the December 5, 1990, vacatur of the original dismissal. The trial court’s order of December 5, 1990, left the merits pending and was therefore not final or appealable. (See Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 984, rev’d on other grounds (1981), 83 Ill. 2d 559.) Dr. Boury’s motion to vacate the December 5, 1989, order was in essence, therefore, a new motion to dismiss the complaint.

When the trial court granted Dr. Boury’s motion on February 15, 1990, the plaintiffs had 30 days in which to challenge this order by way of a post-judgment motion pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e)). The trial court was therefore incorrect insofar as it held that the plaintiffs’ March 12, 1990, motion to reconsider was untimely and could not be considered. There is simply nothing in the procedural rules that allowed the trial court to make its dismissal order effective “as of November 15, 1989,” three months previous, and thereby cut off the plaintiffs’ opportunity to move for reconsideration of the order pursuant to section 2 — 1301(e). That the December 5, 1989, reinstatement was vacated did not make it void. See American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 920, cert. denied (1982), 458 U.S. 1112, 73 L. Ed. 2d 1375, 102 S. Ct. 3495 (movant’s failure to notify opposing party of intention to move for default judgment does not render default judgment void).

Even if the trial court reasoned unsoundly in denying the plaintiffs’ March 12, 1990, motion, the plaintiffs’ proper recourse was to appeal. The plaintiffs were entitled to a single post-judgment motion only. (Sears v. Sears (1981), 85 Ill. 2d 253; B-G Associates, Inc. v. Giron (1990), 194 Ill. App. 3d 52, 56-57; Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227; Cronin v. Altman (1981), 101 Ill. App. 3d 432.) The plaintiffs did not appeal the March 12, 1990, denial of the one post-judgment motion to which they were entitled; rather, they filed a “motion for reconsideration” on March 14, 1990, within 30 days of the February 15, 1990, dismissal order and a “motion for rehearing” on April 24, 1990, more than 30 days from the dismissal. Even were we to consider the March 14 motion valid (based on the trial court’s written specification that the March 12 motion was denied “without prejudice”), the April 24 motion was not authorized under section 2 — 1301. Not only was it repetitive, but it was filed more than 30 days after the February 15, 1990, order dismissing the complaint. That it was filed within 30 days of the denial of the March 14 motion, even assuming that the March 14 motion was permissible, is immaterial. See Giron, 194 Ill. App. 3d at 57.

When a motion to vacate a judgment is brought more than 30 days after the entry of a final judgment, that motion will ordinarily be construed as a petition for relief from a final judgment under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). (Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 573; Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 115; Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 620; Mehr v. Dunbar Builders Corp. (1972), 7 Ill. App. 3d 881.) We therefore construe the April 24, 1990, “motion for rehearing,” which sought to vacate the dismissal of the plaintiffs’ cause of action, as a petition under section 2 — 1401.

Although the plaintiffs may have intended to withdraw this motion before hearing, they did not in fact ever do so, and the motion was stricken on June 13, 1990. The plaintiffs never appealed from the order striking the motion. The August 16, 1990, section 2 — 1401 petition was therefore the second section 2 — 1401 petition that the plaintiffs filed at the trial level.

A party that has not timely appealed the denial of a section 2 — 1401 petition may not seek relief by filing a second such petition. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 70; Goldstick v. Saporito (1974), 22 Ill. App. 3d 621; Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App. 3d 688, 690.) Where there has been no timely appeal from the denial of the first such petition, an appeal from the second and invalid petition will not vest the appellate court with jurisdiction. (Village of Island Lake v. Parkway Bank & Trust Co. (1991), 212 Ill. App. 3d 115, 123; McGraw, 136 Ill. App. 3d at 71-72; Goldstick, 22 Ill. App. 3d 621; Werth, 16 Ill. App. 3d 688.) We therefore dismiss the appeal.

Appeal dismissed.

INGLIS and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD JUSTICE DUNN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD AUSTIN, Defendant-Appellant.
    Second District
    No. 2 — 89—0534
    Opinion filed July 25,1991.
    — Rehearing denied August 30,1991.

      DUNN, J., dissenting.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Donald Austin, was found guilty in a jury trial conducted in the circuit court of Lake County of two counts of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3) and was sentenced to a 30-year term of imprisonment to run consecutively with a 30-year sentence previously imposed for a separate, unrelated offense.

Defendant raises two issues on appeal: (1) whether the trial court erred by refusing to submit jury instructions regarding the offense of criminal trespass to residence (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 4); and (2) whether his sentence was excessive.

The indictment charged defendant, inter alia, with two counts of residential burglary. One count alleged that on or about July 23, 1986, defendant “knowingly and without authority entered into the dwelling place of Mary Jane Sparks, located at 3310 West 29th Street, Zion, Lake County, Illinois, with the intent to commit therein a theft.” The other count was identical except that it alleged that defendant entered the home with the intent of committing an unlawful restraint.

At trial, Mary Jane Sparks testified that on July 22, 1986, after cleaning up following a dinner party, she took a shower because “it was very hot that night.” A sliding glass door at the rear of the home was open to allow air flow through the room, as it was a “very very muggy” night. After taking a shower, she fell asleep on a living room couch at about 1:30 a.m. At about 2:30 a.m., she awoke and sensed a presence near her. Sparks realized that there was a man, who was not a family member, standing next to her. The man’s knees were a few inches from her, and his face was about three feet from her eyes. The man was wearing yellow “Playtex-type” gloves. His right hand was near her mouth, and his left hand was moving toward the switch on a nearby lamp which was on at that time.

Sparks saw the man’s face for about five seconds. While looking at him, she pulled the glove off his right hand and screamed to her husband that a man was in the house. The intruder then fled, exiting through the patio door. Sparks testified that the intruder never touched her, did not take anything from the home, and did not break anything in the home. She identified defendant as the intruder.

Other testimony revealed that a neighbor of Sparks observed a suspicious car parked in the neighborhood, wrote down the car’s license plate number, and later saw a man run to the car, get in, and drive away. When the police arrived at the Sparks home a few minutes later, the neighbor gave them the license plate number of the car, which was registered to defendant. The police found defendant inside the car shortly thereafter about two miles from the Sparks home.

Defendant did not testify or offer any evidence in his behalf. In his opening statement and later in final argument his counsel argued that defendant was misidentified.

At the instructions conference, however, defendant submitted two proposed instructions concerning the offense of criminal trespass to a residence (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 4), a Class A misdemeanor. The first instruction defined the offense. The second instruction stated that to sustain the charge of criminal trespass to residence, the State would have to prove defendant’s guilt beyond a reasonable doubt. The trial court refused to give the instructions because it felt the evidence showed that defendant was either not guilty of any crime or guilty of residential burglary.

Initially, defendant contends that the trial court erred by refusing to submit to the jury his proffered instructions on the offense of criminal trespass to residence.

An accused cannot be convicted of an offense that was not charged unless the offense of which he is found guilty is a lesser-included offense of the one charged. (People v. Schmidt (1988), 126 Ill. 2d 179, 183, 533 N.E.2d 898.) Under Schmidt, an instruction on a lesser uncharged offense may not be given unless it is a lesser-included offense of the offense charged. (People v. Booker (1991), 214 Ill. App. 3d 286, 288.) A lesser-included offense is one whose elements are subsumed in the greater offense so that it is impossible to commit the greater offense without committing the lesser-included one. (People v. Melmuka (1988), 173 Ill. App. 3d 735, 736, 527 N.E.2d 982.) A person commits the offense of residential burglary if he or she knowingly and without authority enters another person’s dwelling place to commit a theft or felony (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3; People v. Monigan (1990), 204 Ill. App. 3d 686, 688, 561 N.E.2d 1358) whereas a person commits the offense of criminal trespass to residence when without authority he or she knowingly enters or remains within any residence (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 4). Thus, because the elements of criminal trespass to residence are subsumed in the offense of residential burglary, we conclude that criminal trespass to residence is a lesser-included offense of residential burglary.

However, although criminal trespass to residence is a lesser-included offense of residential burglary, the trial court is not necessarily required to give the tendered instructions. In People v. Moore (1990), 206 Ill. App. 3d 769, 565 N.E.2d 154, the defendants, who were convicted of residential burglary, argued that the trial court erred by refusing to instruct the jury on the lesser-included offense of criminal trespass to residence. In Moore, the appellate court, in affirming the circuit court, stated the appropriate rule as follows:

“Although a defendant is entitled to instructions on lesser included offenses (People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189), those instructions will be permitted only if the trier of fact can rationally determine that the evidence is insufficient to support a finding of not guilty of the greater offense, but sufficient for a finding of guilty of the lesser included offense. (People v. Balls (1981), 95 Ill. App. 3d 70, 419 N.E.2d 571.) It is equally true that where the evidence shows that defendants are either guilty of the higher offense or not guilty of any offense, an instruction on the lesser included offense is unnecessary and properly refused. People v. Thompson (1976), 35 Ill. App. 3d 773, 776, 342 N.E.2d 445.” Moore, 206 Ill. App. 3d at 774, 565 N.E.2d at 157.

Similarly, our supreme court has stated that “an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense.” People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250.

In this case, although nothing was taken from the residence and defendant did not touch Mary Jane Sparks, the jury could not have rationally convicted defendant of criminal trespass to residence and acquitted defendant of residential burglary. To prove intent to commit a theft or unlawful restraint, the State presented evidence that at 2:30 a.m. defendant entered the Sparks’ residence through a rear door. Defendant was wearing rubber gloves on a hot, muggy July night. Defendant also had one hand near Mary Jane Sparks’ mouth as his other hand reached to turn off the light. Defendant offered no evidence to refute this testimony. The only defense arising from the evidence and from defense counsel’s arguments was misidentification. Defendant was either guilty of the offenses as charged or not guilty. Thus, the trial court properly refused defendant’s instructions on the lesser-included offense.

The next issue defendant raises is that the sentence imposed was excessive in light of his background and character. Essentially, defendant contends that he received an extended-term sentence of 30 years’ imprisonment to run consecutively with a previous sentence because the State portrayed defendant as a person with a criminal propensity to commit sex-related offenses. Defendant contends that if this propensity was the basis for the sentence which at his age, in effect, amounted to a life sentence, the State should have proceeded under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1989, ch. 38, pars. 105 — 1.01 through 105 — 12). This contention is meritless.

A sentence will not be altered on review absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) An extended term may be imposed when a defendant is convicted of any felony after having been previously convicted in Illinois of the same or greater class felony when such conviction has occurred within 10 years after the previous conviction and such charges are separately brought and tried and arise out of different series of acts. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1).) A trial court may impose a consecutive sentence if, having regard to the nature and circumstances of the offense and history and character of the defendant, it is of the opinion that such a term is required to protect the public from criminal conduct by the defendant. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b).

In this case, defendant was eligible for an extended-term sentence because he was previously convicted on January 23, 1987, of aggravated criminal sexual assault, residential burglary and unlawful restraint. We find no abuse of discretion in imposing the extended term. Further, the trial court found that a consecutive sentence was required to protect the public from defendant. We cannot say that the trial court abused its discretion in requiring that the sentence run consecutively in light of defendant’s prior criminal history. Defendant was sentenced to 3 to 20 years in the Ohio Department of Corrections for a rape conviction; sentenced to one year’s conditional discharge for disorderly conduct resulting from defendant using a stepladder to look into the second-story bedroom window of a teenage girl; and recently sentenced to terms of 30 years for aggravated criminal sexual assault, 15 years for residential burglary and 3 years for unlawful restraint. Based on a careful review of the record, we cannot conclude that the trial court abused its discretion.

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

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent because I believe the trial court committed reversible error by refusing to instruct the jury about the lesser-in-eluded offense of criminal trespass to residence. While the majority opinion correctly sets forth the applicable principles of law with regard to this issue, I disagree with the majority’s application of those principles.

As the majority recognizes, the dispositive question in determining whether defendant was entitled to have the jury instructed on the lesser-included offense is whether a jury could rationally have acquitted defendant of the greater offense while convicting him of the lesser. It is obvious from the evidence that defendant was guilty of criminal trespass to residence. The majority goes on to conclude that it is so clear from the evidence that the sole additional element of the offense of residential burglary, intent to commit a felony, was present that no rational jury could conceivably have concluded otherwise. I cannot agree.

The two residential burglary counts in the indictment charged that defendant intended to commit the offenses of theft and unlawful restraint when he entered the Sparks’ residence. The evidence establishes doubt as to whether defendant intended to commit a theft when he entered the residence because, when Mary Jane Sparks awoke, defendant was standing over her rather than rummaging through the house looking for items to take. Furthermore, defendant did not take anything from the house. The jury could have rationally concluded from the evidence that defendant did not intend to commit a theft when he entered the home.

Although the evidence more strongly indicates that defendant intended to commit the offense of unlawful restraint when he entered the Sparks residence, a rational jury could have concluded to the contrary. Mary Jane Sparks testified that when she awoke, defendant was standing right by her with his hand a few inches from her mouth. The jury could have concluded from this testimony that if defendant had intended to restrain her or harm her he could have done so before she screamed for help. Instead, defendant did nothing for a few seconds and then ran out the back door without touching Sparks after she screamed and pulled the glove off his hand.

The reason a defendant is sometimes entitled to have a jury instructed on a Iesser-included offense is that such an instruction “provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413.) I believe this “important third option” should have been presented to the jury in this case because it could have rationally concluded that defendant lacked felonious intent when he entered the Sparks home and was therefore guilty of criminal trespass to residence rather than residential burglary. I therefore respectfully dissent and would remand the cause for a new trial.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID RYMUT, Defendant-Appellant.
    Second District
    No. 2 — 90—0737
    Opinion filed July 30,1991.

      Peter A. Staben, of Staben & Kopsick, P.C., and Bryan R. Winter, of Fuqua, Winter, Stiles & Anderson, Ltd., both of Waukegan, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and John T. Moran, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, David Rymut, appeals from an order entered by the trial court which modified his terms of probation. The trial court found that defendant was not entitled to a good behavior allowance credit pursuant to section 32 of the County Jail Good Behavior Allowance Act (Act) (Ill. Rev. Stat. 1989, ch. 75, par. 32) because the victim suffered emotional distress that resulted in physical manifestations as a result of defendant’s criminal act. Defendant contends on appeal that the trial court lacked the authority to deny him a statutory good behavior allowance. Defendant also contends that the term “physical harm” contained in the Act does not include emotional distress; therefore, the trial court erred in withholding defendant’s statutory right to a good time allowance based on equating emotional distress with physical harm.

Defendant was charged by indictment with residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)). During the trial, the 13-year-old victim testified that she awoke in her home to find defendant lying next to her. The victim testified that defendant rubbed her stomach and her left breast. The victim asked defendant to leave, and defendant did leave but told the victim not to tell her parents. The victim also prepared a victim impact statement in which she stated that after the incident she was sick to her stomach and had terrible nightmares. She also stated that she was afraid to sleep in her room alone, was suffering from depression, and cried a lot.

After a bench trial, defendant was found not guilty of the residential burglary charge but guilty of aggravated criminal sexual assault. The trial court sentenced defendant to 48 months’ probation with the condition that he serve 180 days in the county jail. Defendant was also required to undergo psychiatric and drug and alcohol testing and treatment, perform 160 hours of community service, pay restitution for the victim’s counseling and to the advocacy center, and finally to have no contact with the victim or her family.

Sentence was pronounced on April 11, 1990. In pronouncing sentence, the trial court made no reference as to whether defendant was entitled to a good behavior allowance credit. Also, the court did not check off the box on the probation order which would have denied defendant a good behavior allowance credit.

On June 26, 1990, defendant filed a motion to clarify or modify the terms of his probation. Defendant asked the trial court either to clarify defendant’s probation order so that it showed defendant was entitled to a good behavior allowance credit or modify the order to show that defendant was entitled to a good behavior allowance credit.

In ruling on defendant’s motion, the trial court recognized that it had made no comments at the time of defendant’s sentencing as to whether defendant was entitled to a good behavior allowance credit. The trial court also admitted that during the sentencing hearings it made no findings in reference to the existence or nonexistence of any physical harm. However, the trial court denied defendant’s motion and stated that the crime required a six-month sentence. The trial court found that defendant had inflicted emotional distress which resulted in physical manifestations upon the victim and this required a denial of the good behavior allowance credit based on section 32 of the Act.

On July 3, 1990, when the trial court announced its decision on defendant’s motion, it did not state that a written order was to follow. A clerk’s minutes were filed with the record which summarized the trial court’s decision; however, it too did not state that a written order was to follow. Also on July 3, 1990, defendant filed his notice of appeal. On July 5, 1990, the trial court entered a written order apparently presented by defendant which again enumerated the court’s decision of July 3.

As his issue on appeal, defendant claims that he is entitled to the good behavior allowance credit pursuant to section 32 of the Act. Defendant first contends that the trial court was without authority to deny him a statutory allowance subsequent to sentencing. Also, defendant contends that the trial court erred in refusing to grant defendant a good behavior allowance credit based on defendant’s infliction of emotional distress upon the victim. According to the statute in question:

“The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment after January 1, 1987 shall entitle such person beginning on the date of sentence to a good behavior allowance, except that: (1) a person who inflicted physical harm upon another person in committing the offense for which he is confined shall receive no good behavior allowance.” (Ill. Rev. Stat. 1989, ch. 75, par. 32.)

Defendant contends that, where the trial court found only that he inflicted emotional distress upon the victim, this was not the same as “physical harm” upon a victim and the trial court erred in equating physical harm with emotional distress.

The State argues that we do not have jurisdiction to hear this appeal because defendant filed his motion to clarify or modify the order of probation more than 30 days after judgment had been entered in the trial court. We disagree. Section 5 — 6—4(f) of the Unified Code of Corrections states:

“The conditions of probation, of conditional discharge and of supervision may be modified by the court on motion of the probation officer or on its own motion or at the request of the offender after notice and a hearing.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f).

In People v. Tipton (1981), 88 Ill. 2d 256, 264-65, the supreme court determined that this section gives the trial court continuing au- - thority to deal with changing conditions during probation. Although under the general rule felony sentences cannot be challenged more than 30 days after judgment (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 8 — 1(c)), here the specific authority of section 5 — 6—4(f) controls over the general rule. (Tipton, 88 Ill. 2d at 265.) Thus, defendant could ask for a modification of his terms of probation after 30 days had passed from the sentencing order.

In the present cause, although defendant asked the court to modify his terms of probation and his request was denied, in actuality, what the trial court did was to modify defendant’s terms of probation. The trial court admitted that it had made no findings during the sentencing phase concerning whether defendant had caused physical harm to the victim so as to be unqualified for the good behavior allowance. The trial court also admitted it had not found defendant ineligible for the good behavior allowance during sentencing. The form which listed defendant’s terms of probation contained a box which could be checked if the good behavior allowance was not to be allowed. This box was not checked. Considering this factual situation, the trial court’s order of denial of defendant’s motion was a modification of defendant’s terms of probation so that he was no longer entitled to a good behavior allowance. Under Supreme Court Rule 604(b), an order modifying probation may be appealed (134 Ill. 2d R. 604(b)); however, an appeal must be taken from a final judgment (see 134 Ill. 2d R. 606(b)); here we find that defendant’s appeal was premature, and, thus, we lack jurisdiction to hear it.

In order to determine whether the notice of appeal was premature, we need to examine Supreme Court Rules 271 and 272. (134 Ill. 2d Rules 271, 272.) Although Supreme Court Rules 271 and 272 are generally applied to civil cases, they have also been applied in criminal cases. See People v. Jones (1984), 104 Ill. 2d 268, 276 (Supreme Court Rule 271 was applied in a criminal case after the State appealed from an order granting a motion to suppress); People v. Mennenga (1990), 195 Ill. App. 3d 204, 209 (Supreme Court Rule 272 was applied to a criminal case where the State appealed from an order of dismissal).

Supreme Court Rule 271 states:

“When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.” 134 Ill. 2d R. 271.

At the time of defendant’s motion, Supreme Court Rule 272 stated:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 134 Ill. 2d R. 272.

If Supreme Court Rule 271 applies, a written order is necessary before an order is appealable. If Supreme Court Rule 272 applies, an oral judgment would be final and appealable after the clerk entered a notation in the record as to the trial court’s decision. Puglisi v. Hansford (1990), 193 Ill. App. 3d 803, 807.

Supreme Court Rule 272 was intended “ ‘to resolve the difficulties which had arisen regarding the timeliness of an appeal where an oral announcement of judgment from the bench antedated the entry of a written judgment order’ [citation], and the rule’s ‘purpose [was] to remove any doubt as to the date a judgment [was] entered.’ [Citation.]” (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293.) Supreme Court Rule 272 was determined to apply in a criminal case where the State appealed from a dismissed indictment. (Mennenga, 195 Ill. App. 3d at 208-09.) In the civil area, Supreme Court Rule 272 applied where a party appealed from a voluntary dismissal. (Swisher v, Duffy (1987), 117 Ill. 2d 376, 379-80.) In Puglisi (193 Ill. App. 3d at 808), the appellate court found that Supreme Court Rule 272 applied to a default judgment because the ruling on the motion for a default judgment was a final adjudication in the cause. “Rule 272’s language is directed toward those circumstances where all of the issues in the cause are concluded by the ruling of the court.” Puglisi, 193 Ill. App. 3d at 808.

In Jones (104 Ill. 2d at 276), however, the supreme court found that a motion to suppress fell under the requirements of Supreme Court Rule 271. Where the State appealed the granting of a motion to suppress, the court held that Rule 271 applied and, thus, the trial court’s oral order was not an order which could be appealed. (Jones, 104 Ill. 2d at 276.) Here, we find that the order of modification of probation was more akin to the type of motion involved in a motion to suppress rather than the types of final orders discussed above and Supreme Court Rule 271 applies in this situation. Thus, there was no final order until a written order had been entered.

Clearly, the motion to either clarify or modify the order of probation was not decided in the course of the trial. Similar to an order granting a motion to suppress, an appeal may be taken from an order of modification. (See 134 Ill. 2d Rules 604(a)(1), (b).) However, again like a decision on a motion to suppress, a ruling on a motion to modify probation does not finally decide all the issues in a cause so that all that is left is to enforce the sentence. As noted in Tipton, section 5 — 6—4(f) of the Unified Code of Corrections provides a mechanism whereby conditions of probation may be modified on a motion by the offender, on the court’s own motion, or by the probation officer as conditions may change during the course of defendant’s probation. Thus, Supreme Court Rule 272 does not apply where a court has issued an order modifying probation as a modification of probation is not an order which finally disposes of all the issues before the trial court or terminates the litigation so that all that is left is to enforce the judgment. This was not an order which terminated a criminal charge with finality. (See Mennenga, 195 Ill. App. 3d at 209.) Because Supreme Court Rule 271 applies in this cause, there was no final order until the court entered its written order. When defendant appealed before the written order was entered, his appeal was premature.

Finally, we note that defendant is not extremely prejudiced by this decision as he appealed presumably knowing that he intended also to have the trial court issue a written order. Knowing that he intended to have the court issue a written order, defendant should have filed his notice of appeal after the written notice had been signed by the trial judge. Defendant may also again ask to modify the terms of his probation under the requirements of section 5 — 6—4(f).

Pursuant to Supreme Court Rule 271, defendant’s appeal was premature, and we must dismiss this cause.

Appeal dismissed.

BOWMAN and DUNN, JJ., concur.


author: JUSTICE NICKELS JUSTICE McLAREN,

text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. ITASCA BANK AND TRUST COMPANY et al., Defendants-Appellants.
    Second District
    No. 2 — 90—0967
    Opinion filed August 1,1991.

      McLAREN, J., dissenting.
    Robert A. McNees, of Carol Stream, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Robert E. Douglas, Malcolm E. Erickson, and Algirdas P. Ambutas, Special Assistant Attorneys General, of Oak Brook, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, the Illinois State Toll Highway Authority, filed an eminent domain action against defendants, Itasca Bank and Trust Company and Richard O. Schwarz, to acquire certain portions of defendants’ property, known as the Schwarz Nursery. The bank held title to the land as trustee, and Schwarz was owner of the beneficial interest in the land trust. Defendants filed a cross-petition for damages to the remainder. The jury awarded $42,272 in just compensation for the land taken, $25,000 in damage to the remainder, and $5,250 for the temporary construction easement. Defendants contend on appeal that a new trial is necessary because the trial court erred in permitting evidence of special benefits from the tollway to the remainder and in failing to strike certain valuation testimony of plaintiff’s witness. Defendants also raise an error concerning costs to cure. No issues are raised with respect to the taking of the property.

The property in question is located on the corner of Army Trail Road and Rohlwing Road in Bloomingdale Township, unincorporated Du Page County, Illinois. It is rectangular in shape, with approximate dimensions of 300 feet by 600 feet, and contains approximately 205,000 square feet or about 4.7 acres. It is zoned as a B-l business with a special-use permit for the operation of the existing retail nursery. A garden center which carries a full range of products for outdoor landscaping is located on the property.

The first of the parcels acquired by plaintiff extends along Army Trail Road. It is approximately 17 feet in width and includes an irregularly shaped area at the corner arc.

Another parcel is a control line prohibiting access from the remainder of the Schwarz property to Army Trail Road along the west 166 feet of frontage. The access control was required to prevent vehicular traffic and safety problems resulting from the North-South Tollway interchange and adjacent ramp operations.

The last parcel is a temporary construction easement consisting of about 4,100 square feet. The two-year temporary easement enabled plaintiff to construct a replacement driveway along Army Trail Road.

Plaintiff’s first witness was Mark Lucas, a licensed Illinois professional civil engineer who specialized in highway and municipal engineering. He has been employed for the last eight years with Envirodyne Engineering, Inc., where he was chief of planning in +V»o fAorl ^£»-nQvfTyíAivj- ort/3 lioo Kaon ■iwtT/VIxTzarl txri-f-lt fV>A XTrvtW-T-t» ullv vVil x vau uvpax umvuu axxu xxuo uwxi aaa V va V v/\x Wauaa I/aaC awa uli South Tollway project since its inception. He testified that the North-South Tollway was a limited access highway facility constructed through the middle of Du Page County.

The Schwarz property was about 150 feet from the northbound entrance ramp of the Army Trail Road interchange. Lucas described this interchange as the north end of the tollway which replaced the previous half-diamond interchange of Route 53. The northbound ramp led to Route 53. The property was about 500 feet from the tollway, which ran south from the Army Trail Road interchange. Lucas testified that the property was taken to widen Army Trail Road, and the access control was for the northbound ramp to Route 53. Lucas called these off-alignment improvements, which he defined as improvements to adjacent intersections. He said that these off-alignment improvements were necessary for and part of the tollway project.

Lucas identified an agreement between plaintiff and the Department of Transportation (DOT) whereby DOT would participate in some right-of-way costs and have title and jurisdiction over certain properties transferred to it after the completion of the project. The Schwarz property taken by plaintiff would be turned over to DOT.

Thomas Collins, a real estate appraiser, testified that in his opinion the highest and best use for the property before the taking was commercial and a nursery was consistent with this opinion. His opinion of the highest and best use of the property after the take reflected a more intense commercial usage than that which currently existed. He therefore assigned no value to the improvements as they related to the whole property because they would have to be razed for the highest and best use of the property. The improvements did not contribute value to the whole so he valued the property as vacant.

Collins valued the whole property before the taking at $1,026,000. He valued the fee taking at $36,500, the temporary easement at $4,100, and the access control at $49,500. Collins valued the remainder as part of the whole property at $990,000 and the remainder after the take at $1,188,000. In Collins’ opinion, the property enjoyed special benefits from the tollway which accounted for the increased value of the remainder after the take. These special benefits offset the damages to the remainder. Total compensation was $41,600.

Another real estate appraiser, David White, testified that in his opinion the highest and best use for the property before and after the take was for a commercial use of a more intense nature than a nursery. White valued the whole property at $1,027,000. His opinion of the value of the part taken in fee was $34,495, and the value of the temporary easement for two years was $4,000. In White’s opinion, the access control taking caused no damage to the remainder and, therefore, had a value of $0. White indicated that before the take, the remainder, as a part of the whole, had a value of $992,505 and that the value of the remainder was unchanged after the take. Total compensation in his opinion was $38,495. Like Collins, White attributed no value to the improvements on the whole property.

Defendants called Joseph Zgonina, an engineer who evaluated the property from a traffic-engineering standpoint before, during and after construction. He indicated that 21 parking spaces had been eliminated as a result of the taking. Zgonina also said that this would be the maximum number of spaces lost if everyone parked correctly and that possibly fewer spaces could be utilized because there was no striping to delineate parking. He prepared an after-take plan for 43 parking spaces. Zgonina indicated that the 9% grade proposed for the Schwarz driveway was unacceptable in his opinion. The driveway of a commercial-use property, according to Zgonina, should have no more than a 6% grade. Prior to the take, the Schwarz driveway was at an 8% grade.

Richard Schwarz testified that he owned the subject property and that he had worked at the Schwarz nursery for 19 years. Schwarz explained the nursery operation and the changes he made to the property subsequent to the take.

Donald Neuses, a real estate appraiser, testified that in his opinion the highest and best use of the property both before and after the taking was its existing use. He valued the whole property at $2,050,000. The value of the part taken in fee was $50,000, and the value of the temporary easement was $7,340. He found damage to the remainder in the amount of $225,000. Neuses considered the following as elements of damage: loss of parking, loss of area to replace the parking, access control and driveway changes.

James Dunn, a real estate appraiser, testified that in his opinion the highest and best use of the property before and after the take was commercial. He valued the whole property at $1,600,000. He valued the part taken at $46,315 and the value of the temporary easement at $8,515. He found damage to the remainder in the amount of $205,000. He considered lost parking, the loss of display area to replace that parking, lost driveways and access and change in driveway grades.

In the first issue, defendants contend that the trial court erred in admitting testimony on the value of special benefits from the tollway. Defendants’ motion in limine to bar testimony on special benefits was denied. They acknowledge that the off-alignment improvements were necessary for the tollway from an engineering perspective. However, since no part of the tollway, the public improvement herein, is on the property, special benefits from the tollway should not be considered. Ill. Rev. Stat. 1987, ch. 110, par. 7— 120.

Plaintiff argues that the off-alignment improvements were part of the tollway project and were necessary for construction of the tollway. Therefore, it was proper to admit evidence of special benefits from the tollway based upon Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5.

The measure of damages for the remainder in an eminent domain proceeding is the difference in the fair-market value of the property as a whole before and after the improvement. (Department of Public Works & Buildings v. Exchange National Bank (1975), 31 Ill. App. 3d 88.) When property is not taken, special benefits may always be offset against damages to the remainder. (Cuneo v. City of Chicago (1948), 400 Ill. 545.) Special benefits are the benefits which flow from the proposed public improvement and which are not simply the advantages of progress accruing to the community at large, but which accrue to the particular land alone or to only the immediate neighborhood. (Exchange National Bank, 31 Ill. App. 3d at 102-03.) Benefits do not become general benefits merely because they are common to other properties in the area. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5,13.

Section 7 — 120 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 120) states in part as follows:

“In assessing damages or compensation for any taking or property acquisition under this Article, due consideration shall be given to any special benefit that will result to the property owner from any public improvement to be erected on such property.” (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 120.)

The evidence established and it is uncontradicted that no part of the tollway is on the subject property. None of the property taken was used for the actual tollway, but was needed for off-alignment improvements deemed necessary as part of the tollway project. The issue then is whether the trial court erred as a matter of law in admitting evidence of special benefits from the tollway.

In Heritage Standard Bank (196 Ill. App. 3d 5), defendants argued that section 7 — 120 of the Code barred consideration of any special benefits resulting to the remainder of the property from the 63d and 75th Street interchanges of the North-South Tollway because the interchanges were not located on the property taken from defendants. We disagreed. We found that the public improvement erected on the property was the tollway, and the entrance and exit ramps at 63d and 75th Streets were part of the tollway project. Therefore, the ramps were part of the public improvement erected on the property taken from defendants. Section 7 — 120 did not prohibit the Illinois State Toll Highway Authority from presenting evidence that defendants specially benefitted from the interchanges.

Section 7 — 120 of the Code requires that special benefits be considered from “any public improvement to be erected on such property.” (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 120.) Although plaintiff contends that, under Heritage Standard Bank, the location of the property is unimportant as long as it is used or needed for part of the public improvement project, we do not read Heritage Standard Bank so broadly. This court reasoned in Heritage Standard Bank that the public improvement erected on the property was the tollway, and the ramps, as part of the tollway project while not on defendants’ property, were part of the public improvement erected on the property taken from the defendants. Unlike Heritage Standard Bank, here the public improvement, the tollway, is not being erected on any part of the defendants’ property. The ramp is part of the tollway project, and the property was taken in connection with the tollway project; however, the actual public improvement is not located on any part of defendants’ property. This fact distinguishes this case from Heritage Standard Bank. Based upon this reasoning and section 7 — 120 of the Code, the trial court erred as a matter of law in admitting evidence of special benefits from the tollway.

Defendants further argue that the property was taken for a DOT project because the northbound ramp leads to a DOT road, Route 53, and Army Trail Road is a DOT street. They point to the intergovernmental agreement between plaintiff and DOT whereby DOT will take control of the off-alignment improvements. However, plaintiff relies on Capitol Building Co. v. City of Chicago (1948), 399 Ill. 113, in its argument that special benefits arising from the tollway are not affected by the agency which ultimately utilizes the off-alignment improvements. Defendants also claim that special benefits were not proven at trial. And, lastly, defendants argue that their modified jury instruction should have been given to the jury. We do not address these three points in view of our finding that special benefits from the tollway should not have been admitted at trial.

Defendants contend in their second issue that the trial court erred in failing to strike Collins’ valuation testimony because he used improper elements in forming his opinion. (Department of Public Works & Buildings v. Butler (1972), 5 Ill. App. 3d 134; see Department of Transportation v. Rasmussen (1982), 108 Ill. App. 3d 615.) Collins valued the whole property as vacant land at a value of $5 per square foot. He then valued the land taken at $5 per square foot but added $3,475 for certain improvements on the part taken. Defendants argue that this was incorrect because the part taken must be valued as part of the whole parcel. (Tri State Park District v. First National Bank (1975), 33 Ill. App. 3d 348.) Defendants claim that Collins undervalued the whole and the remainder by this approach and should have valued the whole with improvements contributing to the value.

The measure of land taken in a condemnation proceeding is the fair-cash-market value of the property for its highest and best use. (Department of Public Works & Buildings v. Oberlaender (1969), 42 Ill. 2d 410.) Fair-market value can be defined as the price for which the property would sell under ordinary circumstances surrounding the sales of property, assuming both an owner willing to sell and purchaser willing, but under no compulsion, to buy. (Oberlaender, 42 Ill. 2d at 415.) Whether just compensation for property taken or damage to the remainder is involved, determinations of market value are based upon the worth of an estate, or portions thereof, as entire entities and not upon the sum of their constituent parts, i.e., land and improvements. (Department of Transportation v. Schlechte (1981), 94 Ill. App. 3d 187.) Where a parcel of land, used as a part of the entire property, is taken for public use, and the land taken is of greater value considered as part of the entire property, than if taken as a distinct and separate piece entirely disconnected from the remainder, the just compensation for the part taken is its fair-cash-market value when considered in its relation to and as part of the entire property and not simply its value as a separate and distinct piece. (Butler, 5 Ill. App. 3d at 136.) Thus, the value of the property taken must be determined as a part of the whole tract before the taking and not as a property separate and disconnected from the rest. Tri State Park District, 33 Ill. App. 3d 348.

Plaintiff contends that Collins did consider the property as a whole, including improvements, but he valued the improvements as having no value. Relying on the rule of law stated in Butler (5 Ill. App. 3d at 136), recited earlier, plaintiff claims that the converse must be true: where the value of the part taken is greater when valued as separate from the whole, it is appropriate to accord it that greater value. We do not address this point because there was no evidence that the part taken had a greater value as a separate and distinct part rather than as part of the whole. The increase in value for the part taken merely resulted from Collins’ method of valuating it.

Plaintiff also notes that even if Collins’ testimony should have been stricken, reversal is not required because no prejudice resulted from it. (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408.) The inclusion of the improvements in the value of the part taken benefitted defendants because instead of the value being $33,025, it was $36,500. However, Collins’ method did slightly affect his calculations of damage to the remainder.

The record herein shows that Collins valued the property as a whole, including the improvements, which was the proper method of appraisal. (Department of Public Works & Buildings v. Lotta (1963), 27 Ill. 2d 455.) The fact that Collins assigned no value to the improvements was not error as he was valuing the property at its highest and best use and, in his opinion, the improvements added no value to the land. This factor went to the weight of Collins’ testimony. Although defendants claim he improperly valued the whole as vacant because the take was essentially vacant, Collins’ testimony on this point was contradictory. He also testified that he valued the whole land as vacant because the improvements were underimprovements and added no value.

Collins indicated that he valued the take as part of the whole. His valuation amount does not reflect this fact, however, because he added the value of improvements to the part taken. In keeping with his appraisal of value for the whole, the part taken should not have been accorded added value for the improvements thereon. Since the cause is being remanded under the first issue, the proper method of valuation shall be applied on remand.

Lastly, defendants argue that if this cause is remanded for a new trial, testimony regarding the dollar amounts for costs to cure should be allowed. Plaintiff made a motion in limine to bar Schwarz from testifying to costs incurred from changing the grade, paving and drainage on the remainder. The discussion was in chambers, and the record provides only a brief exchange on the matter. Defendants were apparently claiming that dollar amounts were admissible as a factor considered by appraisers in arriving at damages to the remainder. They assert that while Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, and several cases clearly hold that specific costs to adapt the remainder to use are not admissible, the rationale in Wilson v. Clark (1981), 84 Ill. 2d 186, Department of Transportation v. Beeson (1985), 137 Ill. App. 3d 908, and City of Chicago v. Anthony (1990), 136 Ill. 2d 169, should be extended to costs to cure.

While we question the propriety of altering Illinois law, we need not decide whether specific costs to cure should be admitted. Defendants failed to make an adequate offer of proof in the trial court and thus have not preserved the issue for review. (Piano v. Davison (1987), 157 Ill. App. 3d 649, 668.) We also note that Wil son v. Clark (1981), 84 Ill. 2d 186, concerns expert testimony whereas in this case Schwarz was not qualified as an expert.

Based upon the foregoing, the judgment of the circuit court is reversed, and the cause is remanded for a new trial to determine just compensation.

Reversed and remanded.

DUNN, J., concurs.

JUSTICE McLAREN,

dissenting:

There is one aspect of the majority opinion with which I disagree and, therefore, I must dissent. The majority interprets the phrase “any public improvement to be erected on such property” too narrowly. (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 120.) I agree that no part of the toll way is on the subject property; however, I believe that the term “public improvement to be erected on such property” relates to the entire project and not just the tollway right-of-way. There was testimony that the realignments which related to this property were necessary and part of the public improvement to be erected on such property. Therefore, the testimony had a proper foundation and should have been admitted so that the trier of fact could determine what weight should be given to this evidence. The majority directs its attention to the Heritage Standard Bank case, rather than directing its attention to section 7 — 120 of the Code. I believe it is a question of fact and not a question of law as to whether evidence concerning special benefits accrued to this particular property. (See Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5, 14.) I believe the trial court did not err in admitting evidence regarding special benefits because there was competent testimony from witnesses establishing the property taken from the defendants was necessary for and part of the public improvement to be erected.


author: JUSTICE REINHARD

text:
    NORTH PARK PUBLIC WATER DISTRICT, Plaintiff-Appellant, v. THE VILLAGE OF MACHESNEY PARK, Defendant-Appellee.
    Second District
    No. 2 — 90—0485
    Opinion filed December 18, 1990.

      Robert A. Fredrickson and H. Emmett Folgate, both of Reno, Zahm, Fóigate, Lindberg & Powell, of Rockford, for appellant.
    Joseph L. Long and Thomas A. Green, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the North Park Public Water District (the Water District), appeals from the entry of summary judgment in favor of defendant, the Village of Machesney Park (the Village). The circuit court of Winnebago County found that the Village is not legally obligated to reimburse the Water District for the cost of relocating its water mains and valve boxes in order to accommodate street improvements undertaken by the Village.

The issues raised on appeal are whether the Water District possesses an easement under the Village’s roads pursuant to section 9 of “An Act in relation to public water districts” (hereinafter the Water District Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 196) and whether the Village is required to reimburse the Water District for the cost of relocating its lines to accommodate improvements to the Village’s right-of-way.

The Water District is a public agency organized under the Water District Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 188 et seq.). Pursuant to section 9 of the Water District Act, the Water District has water mains, valve boxes, and other distribution facilities within the Village’s corporate boundaries and beneath the Village’s roads. These facilities were in place before the Village was incorporated. The Village subsequently began road improvement and drainage work under its “Special Assessment Project No. 8.” The project decreased the depth of coverage over the Water District’s water mains, increasing the danger that they would freeze in the winter, and also changed the elevation of some of the Water District’s valve boxes. The Village’s assessment provided no funds to cover the anticipated expenses of lowering the water mains or readjusting the valve boxes to grade. The Water District does not have the power of special assessment and pays for maintenance and new construction of water distribution facilities through revenues and public revenue bond financing.

The Water District filed this suit and, in an amended complaint for declaratory judgment and money damages, sought a determination that the Village was legally obligated to reimburse it for its anticipated relocation expenses of $38,000. The Water District maintained that its statutory authority to maintain facilities under the Village’s streets gave it an easement which the Village could not damage without compensation.

Following the parties’ filing of a stipulation of facts and cross-motions for summary judgment, the trial court held that the Water District’s statutory right to use the public ways for its facilities was subordinate to the Village’s authority, under the police power, to regulate streets and that, therefore, the Village was not responsible for the Water District’s relocation expenses. Summary judgment was granted in favor of the Village, and the Water District’s motion for summary judgment was denied.

On appeal, the Water District first maintains that it possesses an easement under the Village’s roads which has been damaged and taken without just compensation. The Water District claims that the source of its alleged easement is section 9 of the Water District Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 196), which provides:

“Every public water district organized under this Act is authorized to construct, maintain, alter and extend its water mains as a proper use of highways along, upon, under and across any highway, street, alley or public ground in the State, but so as not to inconvenience the public use thereof, and the right and authority are hereby granted to any such district to construct, maintain and operate any conduit or conduits, water pipe or pipes, wholly or partially buried or otherwise in, upon and along any of the lands owned by said State under any of the public waters therein; provided that the right, permission and authority hereby granted shall be subject to all public rights of commerce and navigation and the authority of the United States in behalf of such public rights, and also to the laws of the State of Illinois to regulate and control the same.”

Although this provision clearly creates certain rights and privileges in favor of water districts to construct and maintain water mains under public roadways of this State, its terms do not specifically give rise to easements in or under public roadways in the State as opposed to some other type of property interest. (See Boland v. Walters (1931), 346 Ill. 184, 188, 178 N.E. 359 (grant of right or privilege to do particular acts upon the land without possessing any estate or interest therein is more appropriately termed a license rather than an easement).) The more fundamental question, and the second argument raised by the Water District on appeal, is whether the Water District’s rights and privileges under section 9 of the Water District Act, whatever they are labeled, were damaged or taken by the Village without just compensation. In other words, we must determine whether the rights conferred under section 9 were granted subject to the Village’s power to repair and maintain its public roadways. If so, then the exercise of the power is consistent with the Water District’s rights under section 9 and does not take any private property right for which the Water District must be compensated.

The parties have cited several decisions from other jurisdictions which they argue are persuasive. Upon review, these cases are of little assistance as they involve different statutes and considerations than those arising under Illinois law. We believe that the most instructive case in this regard is Peoples Gas Light & Coke Co. v. City of Chicago (1952), 413 Ill. 457, 109 N.E.2d 777, which involved the construction of a subway system in the City of Chicago. The city ordinance providing for construction of the subway also called for all public utilities to relocate any equipment located on the public roadways where necessary to accommodate the subway. The plaintiff in Peoples Gas was a natural gas utility company which operated pursuant to a franchise granted by city ordinance. Pursuant to the franchise, the utility had constructed, operated and maintained public utility equipment in and along the streets and alleys of Chicago for more than 90 years. (Peoples Gas, 413 Ill. at 458-60, 109 N.E .2d at 778-79.) The utility brought suit alleging that the city could not constitutionally compel it to bear the expense of relocating its gas lines.

The Illinois Supreme Court held that the utility’s franchise rights were granted subject to the city’s police power, derived from the authority of the State, to operate and maintain the public roadways. (Peoples Gas, 413 Ill. 2d at 463-64, 109 N.E.2d at 781.) The court reasoned that, with regard to “public utilities and service companies authorized by franchise to exercise certain rights of easement in the public streets,” a “city cannot lawfully grant to a utility any rights or privileges which are inconsistent with the public necessities in the way for street purposes.” (Peoples Gas, 413 Ill. at 464, 109 N.E.2d at 781.) The court concluded that, because the utility’s rights under the franchise ordinance were taken subject to the city’s police power, the city’s subsequent exercise of that power in building the subway did not constitute an unconstitutional taking of the utility’s property. Thus, the utility was forced to bear the cost of relocating its gas lines. Peoples Gas, 413 Ill. at 474, 109 N.E.2d at 786.

The Water District argues that Peoples Gas is not applicable here because the utility in that case derived its authority by virtue of a franchise extended by the city through an ordinance, while the Water District’s rights were extended by the State by statute in section 9 of the Water District Act.

We do not find this distinction to be significant. The basis of the decision in Peoples Gas is that a city may not alienate or delegate its police power. The police power is a general term used to express the particular right of a government which is inherent in every sovereign. (16A Am. Jur. 2d Constitutional Law §361 (1979).) It is elementary that a municipality possesses no inherent police power and can only legislate upon, or with reference to, that which is authorized by the State. (See People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, 189, 157 N.E.2d 33.) Thus, a municipality’s power over public streets is merely the power of the State in that regard, such power having been delegated in part to the municipality. Peoples Gas, 413 Ill. at 464, 109 N.E.2d at 781.

The effect of the Water District’s attempt to distinguish Peoples Gas from the instant case would be to conclude that the State could have alienated the police power over the public streets through section 9 of the Water District Act. It is fundamental, however, that the police power is inalienable; neither a State nor its municipalities may surrender or limit such power. (State Public Utilities Comm’n ex rel. Quincy Ry. Co. v. City of Quincy (1919), 290 Ill. 360, 365-66, 125 N.E. 374.) Therefore, just as the city in Peoples Gas could not grant an easement or franchise to the utility in derogation of its police power over public streets (Peoples Gas, 413 Ill. at 464, 109 N.E.2d at 781), neither can the State alienate its sovereign power to control public streets in the public interest through a statute (see Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1970), 45 Ill. 2d 243, 253-54, 258 N.E.2d 569).

There is nothing in section 9 of the Water District Act which indicates that the rights and privileges granted to water districts thereunder impliedly surrendered any of the State’s power and authority to control and improve its streets, and if there were, it would be void. (See Peoples Gas, 413 Ill. at 466, 109 N.E.2d at 782.) In fact, section 9 expressly provides that the authorization granted to water districts shall be “subject to all public rights of commerce and navigation *** and also to the laws of the State of Illinois to regulate and control the same.” Ill. Rev. Stat. 1989, ch. 1112/3, par. 196.

Remembering that “[s]o far as its streets are concerned, a city is only an agency of the State” (Peoples Gas, 413 Ill. at 464, 109 N.E.2d at 781), the following statement from Peoples Gas is appropriate here:

“If the city [acting as an agency of the State] could not change the grade or the width of its streets except upon condition that it make compensation to the *** water company *** for inconvenience and expense thereby occasioned, the duty of the city to protect the public in its use of the streets from time to time, as the community develops, to keep the streets in such condition as will accommodate public safety and convenience, would be seriously interfered with.” Peoples Gas, 413 Ill. at 465, 109 N.E.2d at 782.

Therefore, we conclude that the rights and privileges extended to the Water District under section 9 of the Water District Act were granted by the State subordinate to the Village’s authority, derived from the State, to control and maintain public streets and roadways. There being no argument presented by the Water District that the Village’s construction project was not properly undertaken pursuant to this authority, we hold that the Village did not interfere with the Water District’s rights under section 9 of the Water District Act and that the Water District is not entitled to compensation for the cost of relocating its mains.

The entry of summary judgment in favor of the Village is, therefore, affirmed.

Affirmed.

BOWMAN and DUNN, JJ., concur.


author: JUSTICE DUNN

text:
    ALAN J. BERGER, Plaintiff-Appellant, v. LYLE MATTHEWS et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0995
    Opinion filed August 1,1991.
    — Rehearing denied September 4,1991.
    Alan J. Berger, of Wauconda, appellant pro se.

      Fred L. Foreman, State’s Attorney, of Waukegan (Jack Bartels, Assistant State’s Attorney, of counsel), for appellees Lake County Deputy Sheriff, County of Lake, and Sheriff of Lake County.
    Alice Ralph, Michael A. Loizzi, and Bennet Rodick, all of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights, for appellees Lyle Matthews, David Dato, and Wauconda Volunteer Fire Department, Inc.
    David R. Quade, of Diver, Bollman, Grach & Quade, of Waukegan, for appellees B.J. Goodyear and Village of Wauconda.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Alan Berger, brought suit against defendants, Lyle Matthews et al., for false arrest and imprisonment. After a bench trial, the trial court entered judgment in defendants’ favor. Plaintiff appeals. For the following reasons, we dismiss the appeal.

On November 22, 1989, the court entered an order denying the plaintiff relief on his false imprisonment claim. Plaintiff filed his first notice of appeal on November 27, 1989. This court dismissed the appeal because of pending motions in the circuit court for attorney fees. (Berger v. Matthews (2d Dist. 1990), No. 2 — 89—1238 (unpublished order under Supreme Court Rule 23).) Subsequently, on December 18, 1989, Bernard J. Goodyear and the Village of Wauconda filed a second amended motion for attorney fees under Supreme Court Rule 137 (134 Ill. 2d R. 137), and section 1988 of the Civil Rights Act (42 U.S.C. §1988 (1982)). In addition, the Wauconda Volunteer Fire Department, Inc., Lyle Matthews and David Dato filed a motion for fees also based on Rule 137 and section 1988 on December 22,1989.

On January 29, 1990, the trial court denied defendants’ motions for attorney fees, but awarded costs for depositions and subpoena witness fees. This motion was amended on April 30, 1990, to clarify the January 29 order. The amended order provided that defendants “may file a petition for costs incurred in depositions and subpoena witness fees.” Plaintiff did not file a new notice of appeal until after the petition for deposition costs and subpoena witness fees was granted by the trial court on August 20, 1990. The notice of appeal was filed on September 10,1990.

To qualify as timely, a notice of appeal must be filed within 30 days after 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. (134 Ill. 2d R. 303(a)(1).) A final order or judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties to the litigation. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 118.) The January 29 order meets these criteria.

Although motions for attorney fees under Rule 137 are not “post-trial” motions for jurisdictional purposes, a party cannot appeal an otherwise final judgment where a Rule 137 claim has yet to be resolved unless the court makes a finding pursuant to Rule 304(a) (134 Ill. 2d R. 304(a)) that there is no just reason to delay enforcement or appeal. (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 468.) Accordingly, plaintiff’s November 27, 1989, notice of appeal was premature because defendants’ motions for attorney fees were still pending, and no Rule 304(a) finding was made. However, the January 29 order denied all motions for attorney fees. At this time, the trial court order became a final and appealable judgment in spite of the fact that it appeared to leave pending the amount of subpoena and deposition fees to be awarded.

Our courts have made a distinction between a claim for fees which is brought as part of a principal action and a claim made after the principal action has been decided. (Marsh v. Evangelical Covenant Church, 138 Ill. 2d at 462-63; Servio v. Paul Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 759.) Under Rule 137, a proceeding for attorney fees is within and a part of the underlying civil action, not a separate cause of action, and, therefore, must be resolved before the action becomes appealable unless there is a Rule 304(a) finding. (See Marsh, 138 Ill. 2d at 468.) However, motions for fees collateral to the judgment do not affect the appealability of a final judgment. (Servio, 211 Ill. App. 3d at 761.) Consequently, the petition for deposition costs and subpoena witness fees need not have been resolved before the action became appealable. The plaintiff was required to file his new notice of appeal within 30 days of January 29, 1990. Plaintiff did not file his new notice of appeal until September 10, 1990, well over the 30-day requirement. As such, this court lacks jurisdiction over all matters in this case which were resolved on or before January 29, 1990.

For the aforementioned reasons, we dismiss the appeal.

Appeal dismissed.

REINHARD, P.J., and UNVERZAGT, J., concur.