author: JUSTICE GORDON

text:
    GUY M. STICHAUF, Plaintiff-Appellant, v. CERMAK ROAD REALTY et al., Defendants-Appellees (Richard C. Martin, Defendant).
    First District (5th Division)
    No. 1—89—3160
    Opinion filed October 23, 1992.

      Lundblad, Baker & Martier, of Chicago (Ruth Enright and Robert Baker, of counsel), for appellant.
    James C. Zitzer, of Berwyn, for appellees Richard C. Suwanski and Diane M. Suwanski.
    Dennis E. Both, Town Attorney, of Cicero, and Jenner & Block, of Chicago (Joseph G. Bisceglia and Robert P. Zapinski, of counsel), for appellee Town of Cicero.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kevin Sido and Nancy Lischer, of counsel), for other appellees.
   JUSTICE GORDON

delivered the opinion of the court:

This is an appeal from an action for fraudulent misrepresentation arising from the purchase in 1983 of property at 3019 South 49th Avenue in Cicero, Illinois, by plaintiff Guy M. Stichauf. He bought the property, which was listed for sale by defendant Cermak Road Realty, from defendants Richard C. and Diane M. Suwanski. Plaintiff was represented in the transaction by defendant attorney Richard C. Martin. (Martin is not a party to this appeal.) Plaintiff appeals from the dismissal, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), of three counts of his six-count second amended complaint, the dismissal of two third-amended counts, and the court’s denial of leave to amend. For the reasons set forth below, we affirm in part and dismiss in part.

Facts

The property at issue here, 3019 South 49th Avenue in Cicero, consists of two two-flat buildings on a single lot. In 1977, the Town of Cicero adopted a zoning ordinance which provided “not more than one principal detached building shall be located on a lot.” (Cicero, Ill., Zoning Ordinance §2(c) (1977).) The ordinance also apparently required the abatement of nonconforming buildings no later than July 1, 1980. Cicero, Ill., Zoning Ordinance §2(1)(9) (1977).

When plaintiff purchased the property in 1983, the Town of Cicero issued a certificate of compliance which stated that the “building at 3019 South 49th Avenue — 2 Buildings — 4 Apts.” had been inspected and found “to comply with the Building, Zoning and minimum Housing Codes of the Town of Cicero.” A similar certificate had been issued by the town in 1981 when the Suwanskis bought the property from its previous owners.

In 1986, plaintiff decided to sell the property and contacted Cermak Road Realty, which had previously acted as broker for the Suwanskis, from whom plaintiff had bought the property. He asked Cermak Road Realty to act as his broker in selling the property. He was told by one of its employees that it could not assist him in the sale since the property did not comply with the Cicero zoning ordinance. His application to the town for a variance to allow both buildings to remain was denied, and he contends that his property is therefore unsaleable. This action ensued.

Plaintiff’s original complaint was filed on December 22, 1986, and consisted of three counts. It named as defendants Cermak Road Realty, attorney Richard Martin and the Suwanskis. Essentially, the complaint sought money damages from Cermak Road Realty and from the Suwanskis for their failure to inform the plaintiff, in 1983 when he bought the property, of the zoning ordinance restricting the number of detached buildings on a single lot and its effect on the property. The count directed against Martin alleged legal malpractice.

On April 2, 1987, by agreed order, the court granted Cermak Road Realty’s motion to strike count I against it for failure to state a cause of action, and gave plaintiff 28 days in which to file an amended complaint at law.

On April 8, 1987, plaintiff filed a five-count amended complaint. In addition to the defendants in the original complaint, plaintiff added Emil Knafl, Robert Fiore, and Nicholas Alonzo, who were employed by Cermak Road Realty, and the Town of Cicero as defendants in this complaint.

On September 14, 1988, the court granted the Cermak defendants’ motion to strike counts I and II of the amended complaint, and gave plaintiff leave to file a second amended complaint, which was filed on November 16, 1988.

Plaintiff’s second amended complaint consisted of six counts. Count I was directed against Cermak Road Realty, Knafl, Fiore and Alonzo (hereinafter the Cermak defendants), and alleged that the defendants, in violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1981, ch. 1211/2, par. 261 et seq.), had fraudulently misrepresented the fact that the property at 3019 South 49th Avenue consisted of “two buildings for the price of one” in 1983 when he purchased the property from the Suwanskis. Plaintiff alleged that the Cermak defendants knew that the two two-flats on the single lot did not in fact present such an opportunity, since the two buildings could not be left standing and one building would have to be demolished. Plaintiff alleged that the statement was made to induce him to purchase the property, and that he reasonably relied on the representation by the defendants to his financial detriment, including the cost of demolition of one building and the time and money expended in remodeling the demolished building.

Count II was also directed against the Cermak defendants and contained essentially the same allegations as count I, except that count II alleged common law fraudulent misrepresentation rather than violation of the Consumer Fraud Act.

Count III named plaintiff’s attorney Richard Martin as defendant and alleged legal malpractice and breach of fiduciary duty. This count remains pending in the trial court.

In counts IV and V, the Suwanskis were named as defendants. Count IV sought to hold the Suwanskis liable as principals for the misrepresentations allegedly made by the Cermak defendants acting as their broker agents. In count V, plaintiff alleged that the Suwanskis breached their contract with him by failing to convey marketable title.

Count VI was directed against the Town of Cicero and alleged that the town owed a duty of due care to the plaintiff in its inspection of the property to ascertain compliance with the zoning ordinances. It further alleged that the town fraudulently, intentionally and with a reckless disregard for the truth breached that duty when it issued certificates of compliance, which stated that the property complied with the zoning codes of the town, in May of 1981 and July of 1983. Those certificates, according to plaintiff, constituted misrepresentations of material facts, upon which he reasonably relied, and as a result thereof, sustained pecuniary damages.

At a hearing held May 24, 1989, the court granted the Cermak defendants’ motion to strike and dismiss counts I and II of the second amended complaint with prejudice. On June 19, 1989, the court entered an order finding there to be no just reason to delay enforcement or appeal of the May 24, 1989, order.

On June 1, 1989, there was a hearing on the Suwanskis’ motion to dismiss counts IV and V of the second amended complaint. The court granted the motion, but gave plaintiff 28 days to file third amended counts IV and V. In an order dated June 13, 1989, the court also dismissed, with prejudice, count VI against the Town of Cicero, and included appropriate Rule 304(a) language. 134 Ill. 2d R. 304(a).

The Suwanskis filed a motion asking the court to reconsider its June 1 ruling that allowed plaintiff leave to file third amended counts IV and V, but prior to a hearing on that motion, plaintiff filed the amended counts.

The third amended count IV alleged that the Suwanskis were liable for three misrepresentations made by their agents, the Cermak defendants. The alleged misrepresentations were that the property represented “two buildings for the price of one”; that the plaintiff could live in one apartment and rent out the other three; and that the property complied with all applicable ordinances. Count V alleged that the Suwanskis had breached their contract with the plaintiff by failing to deliver marketable title.

Plaintiff filed a motion for reconsideration on July 11, 1989, seeking to vacate the order of June 13, 1989, dismissing his claim against the Town of Cicero under count VI, and for leave to file an amended count VI. On July 19, 1989, plaintiff filed another motion for reconsideration, this one. seeking vacation of the order of June 19, 1989, making final and appealable the dismissal of counts I and II against the Cermak defendants, and sought leave to amend those counts.

On October 20, 1989, the trial court denied all motions for reconsideration and further ordered that counts IV and V of the third amended complaint were dismissed with prejudice, leaving all counts other than count III against Martin dismissed with prejudice. Plaintiff filed a notice of appeal on November 17,1989.

Opinion'

Prior to considering the issues raised by plaintiff on appeal, we must first address two motions which were taken with the case. The Cermak defendants have moved to dismiss this appeal as it pertains to them and counts I and II of the second amended complaint for lack of jurisdiction. These defendants contend that plaintiff failed to file a notice of appeal within 30 days of the entry of a final judgment as required by Supreme Court Rule 303(a)(1). (134 Ill. 2d R. 303(a)(1).) The defendants assert that plaintiff’s motion for reconsideration was not a proper post-trial motion and did not extend the time for filing a notice of appeal. Alternatively, the individual Cermak defendants (Knafl, Fiore, and Alonzo) contend that this court lacks jurisdiction over them because they were added as defendants through an amendment filed without leave of court. The Town of Cicero has joined in the motion to dismiss on this alternative ground.

We first address the Cermak defendants’ contention that plaintiff’s motion for reconsideration did not extend the time for filing a notice of appeal. Rule 303(a)(1) provides that “if a timely post-trial motion directed against the judgment” is filed, the notice of appeal must be filed within 30 days of the entry of the order disposing of that motion. (134 Ill. 2d R. 303(a)(1).) A post-trial motion “directed against the judgment” sufficient to extend the time for filing a notice of appeal is one which seeks rehearing, retrial, modification or vacation of the judgment or “other relief” similar in nature. (Fultz v. Haugen (1971), 49 Ill. 2d 131, 135-36, 305 N.E.2d 873.) “A motion for leave to file an amended complaint is not encompassed with such ‘other relief’ nor, as stated in Rule 303(a), is it a motion ‘directed against the judgment.’ ” (Fultz v. Haugan, 49 Ill. 2d at 136.) As a result, a motion for leave to amend does not extend the time for filing the notice of appeal under Rule 303(a)(1). Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 347, 549 N.E.2d 1262 (“a motion for leave to amend a complaint, after dismissal with prejudice, does not extend the time for appeal or the time for filing other motions”).

The order dismissing counts I and II of the second amended complaint is dated May 24, 1989, and was made appealable by an order dated June 19, 1989. Plaintiff filed his “Motion for Reconsideration” on July 19, 1989. Plaintiff contends that this motion constitutes a timely post-trial motion sufficient to extend the time for filing an appeal since it specifically requested that the order dismissing his complaint be vacated. We cannot agree. On its face, the motion appears to seek vacation of the order dismissing counts I and II against the Cermak defendants, and also leave to amend. However, a careful review of this motion reveals that it really seeks only leave to amend. The entire motion is directed towards the court’s rulings denying plaintiff’s motions to amend. The motion states that plaintiff “strongly believes that it is capable of amending its complaint to state a cause of action.” The motion does not point to any error by the trial court in its ruling on the merits of defendants’ motion. Nor does it raise any new facts or matters which were not before the trial court when it made its ruling which arguably could have altered the result had the court been aware of such facts. Consequently, this motion did not toll the time for filing a notice of appeal (Andersen v. Resource Economics Corp.), and plaintiff’s notice of appeal from the order dismissing counts I and II, which was not filed until November 17, 1989, was untimely. Therefore we must dismiss the appeal against the Cermak defendants due to lack of jurisdiction.

As to the Town of Cicero, we grant its motion for dismissal of the appeal against it on the alternative basis, i.e., the addition of defendants without leave of court. We also note that this ground for dismissal would be applicable to the individual Cermak defendants joined in counts I and II, and although we have determined above that the appeal against them should be' dismissed for failure to file a timely notice of appeal, we would also dismiss the appeal against them on this basis.

A party may amend a complaint to add a claim against a new party only with leave of court. (Callaghan Paving, Inc. v. Kenneyville Construction Co. (1990), 197 Ill. App. 3d 937, 939, 557 N.E.2d 228.) An amended complaint, adding additional parties, filed without leave of court is a nullity. (Allen v. Archer Daniels Midland Co. (1985), 129 Ill. App. 3d 783, 786, 473 N.E.2d 137, citing Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 452 N.E.2d 7; Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 417 N.E.2d 134; see also George F. Mueller & Sons, Inc. v. Volpe (1979), 74 Ill. App. 3d 879, 394 N.E.2d 51.) A court does not have jurisdiction over a party where leave is not granted to amend the complaint to add that party. Petrella v. Leisky, 92 Ill. App. 3d at 881-82.

The agreed order here which granted plaintiff leave to file his first amended complaint was entered in response to Cermak Road Realty's motion to dismiss for failure to state a cause of action, and ordered that “plaintiff shall be given twenty-eight days *** in which to file an Amended Complaint at Law in this matter.” Plaintiff would construe this order as granting “unrestricted leave to amend,” and urge that it included leave to add the new defendants as well as to amend his cause of action. We disagree.

The case of Callaghan Paving v. Kenneyville Construction Co. (197 Ill. App. 3d 937, 557 N.E.2d 228) is on point. There plaintiff filed his original complaint against Kenneyville Construction and the City of Chicago. Plaintiff was granted leave to amend its complaint against the city, but there was no evidence that leave had been obtained to add an additional defendant, USF&G. USF&G filed a motion to dismiss the count against it under section 2 — 619 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), for failure to comply with the statutory filing requirements for foreclosure of bond claims. The motion was granted. On appeal, USF&G raised for the first time the issue that the amended complaint adding it as a defendant was filed without leave. The court noted that although the plaintiff had received leave of court to file its amended complaint against the city, it neither requested nor received leave to add the additional defendant. As a result, the court concluded, the amended complaint was a nullity as to USF&G, and as such must be disregarded on review. (Callaghan Paving v. Kenneyville Construction Co., 197 Ill. App. 3d at 939.) Similarly, in George F. Mueller & Sons, Inc. v. Volpe (74 Ill. App. 3d at 880), the court held that an order granting “leave to file forthwith an amendment to the complaint demanding a remedy at law, or in the alternative to file an amended complaint for remedy at law,” entered in response to the original defendant’s motion to dismiss the complaint, was held not to allow the addition of other defendants. See also McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 421, 490 N.E.2d 115 (leave to add additional defendants cannot be implied).

Here, plaintiff obtained leave to file its amended complaint against Cermak Road Realty. The agreed order granting plaintiff leave to amend was entered in response to Cermak Road Realty’s motion to dismiss for failure to state a cause of action. There is nothing in the record to indicate that plaintiff either requested or received leave to add the Town of Cicero or the individual Cermak defendants as parties. The record contains no motion by plaintiff seeking leave to add additional defendants, nor does the plaintiff contend that such a request was ever made. There is no order which explicitly grants plaintiff leave to add the additional defendants. There is only an agreed order entered in response to one party’s motion to dismiss. Accordingly, under Callaghan Paving, the amended complaint is a nullity as to the Town of Cicero and the individual Cermak defendants and must be disregarded on review.

Plaintiff, however, urges that the court’s granting of leave to file the second amended complaint, after the additional defendants had been added in the first amended complaint, constitutes leave to name these parties as defendants. He argues that these defendants’ failure to object to the granting of leave to file the second amended complaint should be interpreted as waiver of any jurisdictional argument, citing for support McGinnis v. A.R. Abrams, Inc. (141 Ill. App. 3d 417, 490 N.E.2d 115). In that case, however, the court did not discuss or decide whether any such waiver had in fact occurred because of plaintiff’s failure to raise the issue.

The case of Callaghan Paving, discussed above, did address the waiver argument. There USF&G failed to raise in the trial court the issue of lack of jurisdiction based on an amendment filed without leave of court. In addition, the defendant “was served, appeared and participated in the litigation for more than two years.” (197 Ill. App. 3d at 939.) Notwithstanding these actions by the defendant, the court refused to find that they constituted a waiver, holding that because the issue was jurisdictional, it could be raised at any time. (197 Ill. App. 3d at 940.) The court also noted that plaintiff had cited no authority supporting the position that an objection to an amendment adding a party without leave of court could be waived.

Although it is true that the court did grant leave to file a second amended complaint after the additional defendants had been added, a factor not present in Callaghan Paving, this fact does not alter our conclusion that these defendants were joined improperly. The court did not have jurisdiction over these defendants when the first amended complaint was filed without leave to add additional parties. The order granting leave to file the second amended complaint, like the one granting leave to file the first amended complaint, was entered in connection with the Cermak defendants’ motion to dismiss. This order, like the first one, makes no reference to the additional defendants. As a result, this order cannot be construed as granting leave to add the additional defendants any more than could the first. The second order granting leave to amend suffers from the same infirmity as the first.

Having dismissed this appeal as to the Cermak defendants and the Town of Cicero, we are left with the appeal only as it relates to the counts against the Suwanskis. Plaintiff’s notice of appeal indicates that he is appealing from the dismissal of the third amended counts IV and V. However, plaintiff has not made any argument or reference to count V, which alleged breach of contract by failure to deliver marketable title, either in his brief or oral argument before this court. We therefore presume that he has abandoned his appeal as to the dismissal of count V, and we will apply the well-established rule that points not argued in an appellate brief are waived. 134 Ill. 2d R. 341(e)(7); see also Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 519 N.E.2d 708.

In the third amended count IV, plaintiff sought to hold the Suwanskis liable as principals for fraudulent misrepresentations made by their agents, the Cermak defendants. There were three alleged misrepresentations. The first was the statement in the listing for the property that it represented “two Buildings for the price of one.” The second misrepresentation was that the plaintiff could live in one of the four units on the property and make his mortgage payment from the rent he received on the other three units. Finally, plaintiff alleged misrepresentation in the statement by the realtors that the property complied with the Cicero zoning ordinances.

The elements of a cause of action for fraudulent misrepresentation are: (1) false statement of a material fact; (2) known to be false by the party making it; (3) an intent to induce the other party to act; (4) action by the other party in reasonable reliance on the statement; and (5) damage to the other party resulting from such reliance. Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 335, 463 N.E.2d 1359, citing Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599.

The parties agree that, as a general rule, one is not entitled to rely upon a representation of law because both parties are presumed to be equally capable of knowing and interpreting the law. (Kinsey v. Scott, 124 Ill. App. 3d 329, 463 N.E.2d 1359; Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026.) The dispute here revolves around the question of whether the representations were ones of law or fact.

Plaintiff cites Kinsey v. Scott, Perkins v. Collette (1989), 179 Ill. App. 3d 852, 534 N.E.2d 1312, and Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390, all cases in which the courts held that statements regarding conformity with zoning regulations were statements of fact rather than of law, capable of supporting an action for fraudulent misrepresentation. In Kinsey, the defendant seller told the plaintiff buyer that the building in question was a five-unit apartment building, when, in fact, the defendant had obtained a building permit for construction of a four-unit building, and had built the fifth unit, a basement apartment, in violation of the permit. The building’s status turned on statements the defendant had made to the city in obtaining his permit. In Perkins, the defendant himself had been denied a building permit for a lot, but told the plaintiffs that they would have no trouble obtaining a building permit. In Tan, the violation of the zoning ordinance arose due to misinformation regarding lot size which the defendant had supplied to the city in obtaining its building permit. The only way the violation would have been discovered was through a review of the plat of survey and a calculation of the building’s unit densities and comparison with the ordinance.

Defendants cite City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610, O’Brien v. Noble (1982), 106 Ill. App. 3d 126, 435 N.E.2d 554, and Hamming v. Murphy (83 Ill. App. 3d 1130, 404 N.E.2d 1026), where the courts found that the plaintiffs were not entitled to rely on defendants’ representations regarding the property’s compliance with zoning ordinances. In City of Aurora, the court found that a review of a zoning map and information available at city hall would have alerted the plaintiff to the fact that the property it purchased was in a R-4 district and that the five-unit apartment building was not a permitted use in such a district. In O’Brien, the court held that whether there was sufficient frontage on the property to allow building a house was a matter of public record and, as a result, readily available to the plaintiff. In Hamming, the court held that a representation of the permitted uses of the property under applicable zoning ordinances was a representation of law upon which plaintiff was not entitled to rely.

The court in Perkins reconciled the above cases by noting that “[t]he primary factor which distinguishes Hamming, O’Brien and City of Aurora from Kinsey and Tan is whether the seller’s misrepresentations could have been discovered merely by reviewing applicable zoning or building ordinances.” (Perkins v. Collette, 179 Ill. App. 3d at 859.) In Kinsey and Tan, the courts had found that the defendants’ misrepresentations were not discoverable by the exercise of ordinary prudence, but in Kinsey involved facts known only to the defendant, and in Tan involved a, complicated analysis of the plat of survey and of the ordinances. As stated in O’Brien (106 Ill. App. 3d at 130), “liability will be found when the defendant misrepresents facts of which he possesses almost exclusive knowledge and the truth or falsity of which are not readily ascertainable by the plaintiff.”

Here, the zoning ordinance involved is a matter of public record. It clearly and unequivocally states that no more than one principal detached building shall be located on a lot. The fact that there are two buildings on the lot is also readily apparent. No facts in the exclusive possession of the defendant, or not readily ascertainable by the plaintiff, have been alleged. Even a cursory review of the Cicero zoning ordinance would have put the plaintiff on notice that the property may have been in violation of the ordinance. As a result, we find that the representations of which plaintiff complains do not constitute false statements of material fact sufficient to support an action for fraudulent misrepresentation, and that the trial court was correct in dismissing count IV against the Suwanskis.

It should be noted that this same analysis and conclusion would be equally applicable to the Cermak defendants under counts I and II had they not been dismissed from this appeal on procedural grounds.

In summary, plaintiff’s appeal from the orders of the trial court dismissing counts I, II and VI of plaintiff’s second amended complaint is dismissed, and the order dismissing the third amended counts IV and V is affirmed.

Affirmed in part; dismissed in part.

McNULTY, P.J., and MURRAY, J, concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE ex rel. LA SALLE NATIONAL BANK, as Trustee, Plaintiff-Appellee, v. HOFFMAN ESTATES PARK DISTRICT, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—1985
    Opinion filed October 23, 1992.
    Jack M. Siegel, of Chicago, for appellant.
    Joel S. Feldman and Joel Shapiro, both of Sachnoff & Weaver, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, the Hoffman Estates Park District (Park District), appeals from an order entered after a bench trial ousting it from jurisdiction over land owned by plaintiff, La Salle National Bank, based on a finding that the Park District unlawfully annexed the land. The judge awarded plaintiff $278,136.42 in damages which was a refund of taxes paid and prejudgment interest. The Park District raises several arguments on appeal; we need only consider whether, under the doctrine of law of the case, plaintiff’s action was barred by the one-year statute of limitations. For the following reasons, we reverse.

On August 22, 1978, the Village of Hoffman Estates (Village), pursuant to a petition by the owners, adopted an ordinance annexing six parcels of land totaling about 150 acres. Plaintiff held about 117 acres of this land in trust number 54757 and 19 acres in trust number 103427 for the benefit of Ned-Prop, which was a joint venture. About 10 acres of the annexed land was a public highway. An annexation agreement with the Village allowed for the development of the Poplar Creek Music Theater on the land.

Before the land was annexed to the Village, plaintiff told the Park District that it would also voluntarily annex the land to the Park District if the Park District would support the annexation of the land to the Village. An official of the Park District appeared at a hearing and supported the annexation of the property to the Village. At the time the Village annexed the property, section 3 — 10 of the Park District Code did not limit the period of time within which a park district could pass an ordinance to annex land previously annexed by a municipality. Ill. Rev. Stat. 1977, ch. 105, par. 3 — 10.

Beginning in September of 1978, plaintiff and the Park District discussed the voluntary annexation of the land to the Park District. While plaintiff and the Park District were negotiating, section 3— 10 was amended, effective September 14, 1979, and prohibited a park district from passing an ordinance to forcibly annex land in excess of 120 acres more than one year after a municipality had annexed the land. (Ill. Rev. Stat. 1979, ch. 105, par. 3 — 10.) In April of 1980, negotiations between the Park District and plaintiff broke down and the Village mayor informed plaintiff’s attorney that the Park District would forcibly annex the property. After researching the area, plaintiff’s attorney concluded that the Park District did not have the authority to forcibly annex plaintiff’s property by passing an ordinance under section 3 — 10.

On December 16, 1980, the Park District adopted an ordinance under section 3 — 10 forcibly annexing the same land that the Village annexed in 1978 which included plaintiff’s property. The ordinance was passed on one resolution and one vote. The Park District’s attorney was aware of the amendment to section 3 — 10 when he drafted the ordinance and included the statement that “[ejach parcel shall be considered a separate and distinct annexation of territory to the [Park District].” The ordinance was recorded on December 24, 1980. The Park District posted a notice in its office that the property was annexed and published a notice in a local newspaper. After annexation, the Park District levied taxes on the property.

Plaintiff and the Park District did not communicate from April of 1980 until December 29, 1981. On that date, in a conversation on a different matter, plaintiff’s attorney learned from the Park District’s attorney that the property was annexed to the Park District.

Plaintiff, as trustee under trust number 54757, requested the State’s Attorney and the Attorney General to bring an action on its behalf against the Park District. The requests were denied. Plaintiff instituted this action on June 11, 1982, challenging the Park District’s annexation of its property and requesting a refund of taxes paid. The trial judge, on October 19, 1982, granted plaintiff leave to file a quo warranto complaint. Subsequently, plaintiff filed a motion to add trust number 103427 as a plaintiff which was granted after trial.

The Park District answered the complaint and asserted several affirmative defenses including the statute of limitations.

The Park District moved for summary judgment, arguing that plaintiff’s action was barred by the one-year statute of limitations in section 3 — 14 of the Park District Code (Ill. Rev. Stat. 1991, ch. 105, par. 3 — 14). The trial judge granted the motion and plaintiff appealed. The appellate court reversed and remanded that decision, holding that the resolution of the statute of limitations issue was premature before reviewing the propriety of the Park District’s exercise of its annexation powers. People ex rel. La Salle National Bank v. Hoffman Estates Park District (1985), 134 Ill. App. 3d 571, 481 N.E.2d 12.

On remand, the trial judge, relying on the appellate court’s opinion, struck the Park District’s affirmative defense of statute of limitations.

After a bench trial, the judge found in favor of plaintiff and ordered the Park District ousted from jurisdiction over the land. The judge found that the Park District did not have authority to annex plaintiff’s property under section 3 — 10 because the annexed territory was more than 120 acres. He stated that the Park District’s wording of the ordinance “appealed] to be a calculated attempt to circumvent the language of the amendment to section 3 — 10.” Plaintiff was awarded $231,769.31 as a refund for taxes paid and $46,367.90 for prejudgment interest. The Park District now appeals.

Opinion

. The Park District argues that in the first appeal of this case the appellate court did not conclusively decide whether the Park District could assert a statute of limitations defense. (See La Salle National Bank, 134 Ill. App. 3d 571, 481 N.E.2d 12.) The Park District urges this court to find that plaintiffs action was barred because plaintiff failed to file its cause of action within one year of the annexation to the Park District as required under section 3 — 14 (Ill. Rev. Stat. 1991, ch. 105, par. 3 — 14). Plaintiff did not respond to this argument in its brief.

Under the doctrine of law of the case, an appellate court must adhere to the determinations of law it made in a prior appeal of the same case. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 582 N.E.2d 1362.) However, merely presenting an issue to an appellate court does not foreclose relitigating questions of fact and matters concerning the merits of the controversy which the appellate court did not decide. Callier v. Collier (1986), 142 Ill. App. 3d 407, 491 N.E.2d 505.

In the first appeal of this case, the appellate court considered whether the trial judge properly granted the Park District’s motion for summary judgment based on the finding that the statute of limitations barred plaintiff’s action. The court discussed the legislative history and background of section 3 — 10. At the time the Village annexed plaintiff’s land, section 3 — 10 allowed a park district to pass an ordinance to annex land previously annexed by a municipality without time or acreage restrictions. (Ill. Rev. Stat. 1977, ch. 105, par. 3 — 10.) Subsequently, section 3 — 10 was amended in response to the annexation of half of the Village of Hillside to a park district. Residents within the annexed area did not learn of the annexation until the one-year statute of limitations had passed. The amendment to section 3 — 10, effective September 14, 1979, restricted a park district from annexing territory over 120 acres more than one year after the territory was included in a municipality. Ill. Rev. Stat. 1979, ch. 105, par. 3 — 10.

In its opinion, the court noted that the record showed the Park District knew of the amendment to section 3 — 10 and its legislative history five months before it annexed plaintiff’s land in December of 1980. The court stated that the purpose of a statute of limitations was “ ‘not to shield a wrongdoer [but] to discourage the presentation of stale claims and to encourage diligence in the bringing of actions.’ ” (La Salle National Bank, 134 Ill. App. 3d at 577, 481 N.E.2d at 15, quoting Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 137, 334 N.E.2d 160.) Also, the court stated that annexing land without statutory justification could not be justified. It further stated that

“[the] [P]ark [District attempts to shield itself from a review of the propriety of its actions by invoking the statute of limitations. In 1979, the legislature enacted a remedy to the Hillside incident. At that time, the legislature was aware of the statute of limitations that it enacted in 1975, and it determined that no change was necessary to accomplish its purpose.
The facts of this case are substantially similar to the Hillside incident presented to the legislature for relief. We hold that the isolation and premature disposition of the statute of limitations issue without considering the propriety of the [Park District’s] exercise of its annexation powers does violence to the clear intent of the legislature.” (La Salle National Bank, 134 Ill. App. 3d at 577, 481 N.E.2d at 16.)

The cause was remanded for proceedings consistent with the opinion.

After carefully reviewing the appellate court’s opinion in La Salle National Bank, we believe that it did not decide that the Park District was barred from presenting a statute of limitations defense. The court expressly held that the disposition of the statute of limitations issue was premature and isolated and that the propriety of the Park District’s exercise of its annexation powers should be examined. However, we do not believe that by this statement the appellate court held that the statute of limitations would not apply if the Park District improperly annexed plaintiff’s property. Statutes of limitations apply to claims with merit and those without merit. Although the court noted in its opinion that annexation without statutory justification could not be justified, citing in support People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 155 N.E.2d 635, that case did not consider a statute of limitations defense. As the court in La Salle National Bank noted, when the legislature amended section 3 — 10, it determined that no change was necessary to the statute of limitations in section 3 — 14. We must assume that the legislature intended the statute of limitations to apply to situations similar to the Hillside annexation and the present case.

In this case, the Park District annexed the land under section 3 — 10 on December 16, 1980, and recorded the ordinance on December 24, 1980. The Park District posted a notice of the annexation in its office and published a notice in the local newspaper although section 3 — 10 did not require a park district to notify property owners. (Ill. Rev. Stat. 1991, ch. 105, par. 3 — 10; La Salle National Bank, 134 Ill. App. 3d 571, 481 N.E.2d 12.) Plaintiff filed this action in June of 1982, one year and six months after the annexation became final. These facts establish that plaintiff filed its action after the one-year statute of limitations period expired.

Under these circumstances, the Park District’s affirmative defense of statute of limitations should not have been stricken and plaintiff’s action was barred for failing to file an action within one year of annexation.

Reversed.

McNULTY, P.J., and RAKOWSKI, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL HARRIS, Defendant-Appellant.
    Second District
    No. 2—90—1392
    Opinion filed October 20, 1992.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and David W. Devinger, of Woodstock, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Joseph V. Roddy, of Law Offices of Joseph V. Roddy, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

After a bench trial the defendant, Samuel Harris, was found guilty of first degree murder and unlawful possession of a weapon by a felon. The cause then proceeded to a sentencing hearing at which the death penalty was found to be inappropriate, and the defendant was sentenced to a 100-year term of imprisonment. The defendant argues on appeal that: (1) the victim’s statement while in the hospital following her shooting constituted a dying declaration and should have been admissible; (2) the court erred in refusing to allow cross-examination of a witness regarding the content of a statement, a portion of which was introduced during direct examination; and (3) the sentence of 100 years’ imprisonment was excessive.

Evidence at trial revealed the following relevant events. On the evening of January 10, 1990, a male assailant, wearing a hooded sweatshirt, entered the apartment of Gail Long. His hood was tied around his face, and he was carrying a 12-gauge sawed-off shotgun. Present in the apartment were Gail Long, her two children, Jamall and Jasmine, ages 10 and 1, and her nephew Frederick Crawford. The assailant grabbed Jamall around the neck and announced, “Gail, I want weed, money or cocaine.” Jamall handed his mother her purse and she dumped the contents on the floor. The assailant then said, “Gail, if you don’t give me weed *** or money or cocaine, I’m going to shoot your son.” The assailant was then pointing the weapon at JamaU’s head. Gail Long pleaded with the assailant not to shoot her son, and repeatedly stated, “Please Sam don’t.”

A curl of hair fell out of the assailant’s hood, and he pulled the drawstring tighter and told Gail Long to “shut up.” The assailant then indicated that he would count to five and then shoot her if she did not produce the items he requested. The assailant counted to four, shot Gail Long in the stomach and exited the apartment. Gail Long died at 2 a.m. on January 11, 1990, at St. Therese Hospital, from hemorrhagic shock caused by the shotgun wound to her abdomen.

A week after the occurrence, Frederick Crawford viewed four lineups where the candidates were wearing hoods tied tight around their faces. In two of the four lineups, Crawford identified a person who was not the defendant, but noted that the assailant appeared to have a larger upper body or had something stuffed in his sweatshirt to make him look larger. In the last two lineups Crawford identified the defendant as the assailant.

Roger Eastman testified that he had known the defendant for eight years. He stated that on January 10, 1990, the defendant asked him to obtain a gun for him. Eastman further testified that on that same day he gave the defendant a sawed-off shotgun and a single shell, walked to the apartment building of Gail Long with the defendant, and the defendant told him to wait outside of the building. Eastman testified that after waiting about two minutes he heard a “boom” which sounded like a shotgun discharging, and the defendant ran out of the building. Eastman testified that shortly thereafter the defendant told him that he had needed to shoot somebody in the apartment since the person had been “messing” with him. He also testified that the defendant then returned the shotgun.

Joe Lee White, who was incarcerated in the Lake County jail with the defendant, testified for the State, pursuant to an agreement that he would only be sentenced to three years’ imprisonment on a burglary charge that was pending against him. He testified that the defendant related to him the events that occurred on the night of Gail Long’s death. White’s testimony substantially comported with the testimony of Roger Eastman. White’s testimony added, however, that the defendant told him that he had to shoot Long after she recognized him and that he should have “killed all the people,” including Eastman.

Officer Richard McKissick testified that he went to the emergency room on January 10 to speak with Gail Long. He testified that he noticed a large wound, approximately three to four inches in diameter, on the right side of her abdomen. She had lost a lot of blood and she was being prepared for a blood transfusion. He also thought that she appeared to be experiencing “a lot of pain.” When the defense asked Officer McKissick what Gail Long said to him, the State objected, arguing that her statement was hearsay. The defendant argued that the conversation would have revealed Long’s belief as to who shot her and that it constituted a dying declaration, an exception to the rule against the admission of hearsay. The court sustained the State’s objection and did not allow Gail Long’s statement into evidence.

The defendant was found guilty on all counts, and on September 26, 1990, a sentencing hearing was held to determine his eligibility for the death penalty. The jury returned a finding of eligibility. The cause was continued to September 27, 1990, following the defendant’s waiver of a jury, for a hearing on mitigation and aggravation.

In aggravation, Dr. Larry Blum testified that the victim would have experienced pain with the type of injury she had sustained. Also, Joe Lee White testified that the defendant said that he should have “killed all the people” in the apartment.

In mitigation, numerous witnesses testified. They included relatives, friends, a pastor and a former teacher. Recurrent in the testimony was the defendant’s respect for his family and his fondness for children. The court was informed of the defendant’s relationship with a cousin, whom he had helped cope with cerebral palsy, and his relationship with a youth afflicted with dwarfism.

Following testimony and arguments, the court found the death penalty to be inappropriate and sentenced the defendant to the maximum extended term of 100 years. The court stated that it took into consideration the fact that there were children present during the crime, the defendant’s lack of remorse and the background of the defendant, which included the fact that he was on parole and had a previous armed violence conviction. On November 27, 1990, the defendant filed a motion to reduce the sentence, which was denied after a hearing.

On appeal, the defendant first argues that the court erred in denying admission of Gail Long’s statement as a dying declaration and therefore an exception to the hearsay rule. The defendant asserts that although Gail Long was not told that she was dying, and although she failed to express fear of her impending death, she “must have known she was near death.” The defendant also requests this court to review testimony adduced at the second phase of the defendant’s sentencing hearing and draw the inference that Long was aware of her impending death. The State argues initially the defendant’s argument on appeal should be rejected to the extent that it is based on evidence adduced at the sentencing hearing. It also argues that Gail Long’s statement does not satisfy the requirements of a dying declaration.

A dying declaration is a statement of fact made by the victim, relating to the cause and circumstances of the homicide. (People v. Cobb (1989), 186 Ill. App. 3d 898, 907.) To establish a dying declaration, it must appear that the statement was “made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he [or she] has despaired of life and looks to death as inevitable and at hand.” (Emphasis added.) (186 Ill. App. 3d at 907.) Additionally, the declarant must be in possession of his or her mental faculties in order to sufficiently understand and relate the circumstances concerning the declaration. 186 Ill. App. 3d at 907.

The question on judicial review of the trial court’s denial of admission of a dying declaration is whether the record supports the trial court’s factual determination as to the victim’s state of mind. (See People v. Montague (1986), 149 Ill. App. 3d 332, 345-46.) Our supreme court has stated that it is “ ‘reluctant to disturb the ruling of the trial judge on the admissibility of a purported dying declaration.’ ” 186 Ill. App. 3d at 908, quoting People v. Odum (1963), 27 Ill. 2d 237, 239.

In the instant case, the court found that there was not sufficient evidence to conclude that the declarant was in fear of her impending death. It considered evidence that the medical personnel did not advise Gail Long that she was in danger of dying. Moreover, it considered that Gail Long made no statements to the effect that she believed that she was going to die. The fact that the victim was conscious in the emergency room while the medical personnel were preparing her for a blood transfusion belies the impression that nothing could have been done for her condition. Even if we were to consider the testimony adduced at the sentencing hearing regarding her physical condition, we cannot find that the court abused its discretion in not admitting the statement of the victim. See Odum, 27 Ill. 2d at 239.

The defendant next argues that the court erred in refusing to allow full cross-examination of Officer McKissick regarding the defendant’s voluntary statement. He relies on the fact that a portion of his statement had been referred to on direct examination.

An examination of the record reveals that Officer McKissick, when questioned by the State on direct examination, testified to preparing a report after having a conversation with the defendant about Gail Long. McKissick further testified that after typing the report, which included the defendant’s statement, he gave it to the defendant and asked him to make any necessary corrections to the report. Officer McKissick testified that the defendant changed only his birthdate in the report. McKissick also stated the defendant’s birthdate to the court. No other material from the defendant’s statement was admitted on direct examination. On cross-examination, defense counsel asked Officer McKissick to relate the substance of the statement given by the defendant. The State objected. The court sustained the State’s objection and did not allow the defendant to cross-examine Officer McKissick on the substance of the statement made by the defendant.

As a general rule, cross-examination is limited to the subject matter inquired into on direct examination. (In re W.D. (1990), 194 Ill. App. 3d 686, 702.) However, a criminal defendant is entitled on cross-examination to develop all circumstances within the knowledge of a State’s witness which explain, qualify discredit or destroy his direct testimony. (194 Ill. App. 3d at 702.) The defendant may do this even though it “may incidentally constitute new matter which aids the cross-exam iner’s case.” (Emphasis in original.) (194 Ill. App. 3d at 702.) Thus, the Illinois Supreme Court has held that where a conversation is related by a witness, the opposing party has a right to bring out all of the conversation on cross-examination. (People v. Weaver (1982), 92 Ill. 2d 545, 556.) This is referred to as the doctrine of completeness. In re W.D., 194 Ill. App. 3d at 703.

With regards to the doctrine of completeness, the Illinois courts have vacillated between two positions. One is that the opposing party has a right to bring out all of the conversation on cross-examination, if any of it was referred to on direct examination. (See Weaver, 92 Ill. 2d at 556.) The other position is that the opposing party has a right to bring out .only those portions of the conversation “on the same subject[s]” brought out on direct examination. (People v. Kalpak (1957), 10 Ill. 2d 411, 424; People v. Pietryzk (1987), 153 Ill. App. 3d 428, 438.) A recent Illinois Supreme Court case, People v. Olinger (1986), 112 Ill. 2d 324, examined its earlier Weaver decision and shed light on this controversy.

In Olinger, the defendant argued that he was improperly precluded from bringing out exculpatory portions of his statements to the police, where the State had introduced a portion of these statements on direct. (112 Ill. 2d at 337.) The defendant argued that where part of his statement was admitted into evidence by the State, he had the right to introduce the rest of the statement. (112 Ill. 2d at 337.) The Olinger court found that this assertion of law went beyond the holding of People v. Weaver. The Olinger court noted that in Weaver the additional details which the defendant sought to introduce were necessary to prevent the jury from being misled by the portion of the statement introduced by the State. (112 Ill. 2d at 337.) The Olinger court continued by explaining that the Weaver court, thus, held that additional portions of a statement must be admitted when that is necessary to prevent the jury from receiving a misleading impression as to the nature of the statement. 112 Ill. 2d at 337.

The Olinger court distinguished its facts from the facts in Weaver by noting that Olinger did not argue that the statements introduced by the State were misleading, but only that “when *** a statement is admitted^] the defendant may introduce any other part of [that] statement for any purpose.” (112 Ill. 2d at 337.) The court additionally noted that, in effect, the defendant was merely attempting to introduce his own exculpatory statements without having to take the stand. 112 Ill. 2d at 338.

We find that the facts in the instant case are similar to those in Olinger. (112 Ill. 2d at 338-39.) The only portion of the conversation relayed on direct examination here referred to the defendant’s birthdate. It in no way misled the jury, and the defendant did not wish to introduce other portions of his statement in order to clarify the statement about his birthdate. Rather, he merely wished to introduce the statement for exculpatory reasons. We find that the trial court did not abuse its discretion in limiting the scope of the cross-examination in question. See Olinger, 112 Ill. 2d at 337.

The defendant next argues that the court abused its discretion in imposing the maximum extended term of 100 years’ imprisonment. He also asserts that the court erroneously found that the offense was brutal, heinous and indicative of wanton cruelty.

An extended-term sentence may be imposed when the defendant is convicted of a felony and “the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—3.2(b)(2).) Absent an abuse of discretion on the part of the trial court, a sentence imposed within the statutory limits will not be disturbed on review. People v. Andrews (1989), 132 Ill. 2d 451, 464; People v. Noble (1990), 201 Ill. App. 3d 1056, 1058.

In the first phase of the defendant’s sentencing process, a jury determined that the defendant was eligible for the death penalty. After a hearing on aggravation and mitigation, the trial court found that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. The court noted that the murder took place in the victim’s home in front of both the victim’s 10-year-old child, whose life was threatened, and her one-year-old child. The court also noted the defendant’s lack of remorse, recalling the defendant’s statement after the murder that he should have “killed them all.” The court also took into consideration the defendant’s background, including that he was on parole when he committed the murder and that he had a previous armed violence conviction.

Considering all of the circumstances in this case, we cannot say that the trial court abused its discretion in imposing a 100-year extended-term sentence.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE MURRAY

text:
    GILBERT C. LIBRIZZI et al., Plaintiffs-Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellee (William J. Hart, Indiv. and as Special Adm’r for the Estate of Sandra M. Hart, et al., Defendants-Appellants).
    First District (5th Division)
    Nos. 1—91—3702, 1—91—3824, 1—91—3831, 1—91—4076 cons.
    Opinion filed October 23, 1992.

      John D. Lien, of Foley & Lardner, of Chicago, for appellants Gilbert C. Librizzi and Láveme J. Librizzi.
    Michael Resis, of Querrey & Harrow, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

The plaintiffs filed this declaratory action seeking liability coverage under a personal liability umbrella policy issued to the plaintiff Gilbert C. Librizzi (Gilbert) by State Farm Fire and Casualty Company (State Farm Fire) for injuries arising out of a two-car accident that took place on September 1, 1988. On cross-motions for summary judgment the trial court denied the plaintiffs’ summary judgment motion and found that the policy was not in effect on the date of the accident. The trial court granted State Farm Fire’s motion for summary judgment.

The facts are as follows.

On September 1, 1988, Láveme J. Librizzi (Laverne) was driving a 1985 Oldsmobile Delta 88 in Wisconsin when she was involved in a collision with another automobile driven by William Martinson, Sr. At the time of the collision, Laverne’s five sisters were passengers in the automobile she was driving. As a result of the collision, Sandra M. Hart, one sister, was killed; Marlene Mikolajczyk, another sister, was injured so seriously that she will in all likelihood require supervised care the remainder of her life; and a third sister, Thelma Aleck, was seriously injured. At the time of the collision William Martinson, Sr., had three passengers in his automobile. The three passengers, Kristine Martinson, William Martinson, Jr., and Brian Martinson, incurred personal injuries. Although the Martinson family filed an action against Láveme, that case was settled and dismissed as a result of payments made by State Farm Mutual Automobile Company (State Farm Auto).

At the time of the accident on September 1, 1988, Gilbert owned and was the named insured of the 1985 Oldsmobile Delta with State Farm Auto under policy No. 8615 — 692—C18—13. The bodily injury limits of liability on policy No. 8615 — 692—C18—13 at all relevant times were $100,000 per person and $300,000 per accident.

On or about October 1982 Gilbert contacted the State Farm insurance agency with whom he had done business for 20 years to increase the amount of coverage on his motor vehicle liability policy and his homeowner’s policy. The State Farm agent told Gilbert that the only way his existing coverage could be increased was for him to purchase a personal liability umbrella policy from State Farm Fire. Thereafter Gilbert procured and was the named insured on personal liability umbrella policy No. 13 — 864586 (umbrella policy) from State Farm Fire. This policy provided coverage for personal liability in the amount of $1 million.

On January 31, 1989, William J. Hart, individually and as special administrator for the estate of Sandra M. Hart, filed suit against Laverne in the circuit court of Cook County, Illinois, seeking recovery for wrongful death as a result of the collision on September 1, 1988, and that case is still pending. However, William Hart has entered into a written agreement with Laverne whereby Mr. Hart has accepted a settlement payment from State Farm Auto and has agreed to limit any future recovery to the proceeds of the personal liability umbrella policy issued by State Farm Fire.

On February 24, 1989, Marlene Mikolajczyk filed suit against Laverne in the circuit court of Cook County, Illinois, seeking recovery for personal injuries resulting from the collision on September 1, 1988. That case is still pending.

On April 3, 1990, Thelma Aleck filed suit against Laverne in the circuit court of Cook County, Illinois, seeking recovery for personal injuries resulting from the collision. Although that case is still pending, Thelma Aleck has entered into a written agreement with Laverne, whereby Thelma Aleck has accepted a settlement payment from State Farm Auto and has agreed to limit any future recovery to the proceeds of the personal liability umbrella policy issued by State Farm Fire.

State Farm Auto undertook to provide a defense for Laverne with respect to the above lawsuits pursuant to the terms of liability insurance policy No. 8615 — 692—C18—13. State Farm Fire, however, denied coverage under the personal umbrella liability policy No. 13— 864586, claiming the coverage was cancelled effective December 22, 1986, for nonpayment of the premium due in October 1986.

The plaintiffs thereafter filed a complaint for declaratory judgment against State Farm Fire and the claimants, seeking the court to declare that the umbrella policy issued by State Farm Fire was in full force and effect on September 1, 1988. State Farm Fire filed an answer and affirmative defense to the complaint for declaratory judgment. State Farm Fire asserted that on November 19, 1986, it sent a notice of cancellation of the umbrella policy to the plaintiffs, effective December 22, 1986, for nonpayment of premiums. A copy of a “Notice of Cancellation” was attached to the pleading. The notice indicates: policy No. 13 — 86—4586—7; “Date Cancelled Dec. 22, 1986”; “Date Processed Nov 19, 1986”; “Date Due Oct. 25, 1986”; and “Amount Due $273.00.” State Farm Fire further asserted that on December 22, 1986, coverage under the umbrella policy was terminated and that no policy was in effect on September 1, 1988. The plaintiffs filed an answer to State Farm Fire’s affirmative defenses in which they denied receiving this notice. The plaintiffs admitted that they failed to pay a premium, but denied any premium was due.

State Farm Fire first issued an umbrella policy to the plaintiff, Gilbert, in exchange for a $146 premium, effective for the 12-month period between October 25, 1982, and October 25, 1983, with liability limits of $1 million. As the plaintiffs admitted in their response to State Farm Fire’s request to admit, the umbrella policy was renewed by the payment of an annual premium to State Farm Fire in October 1983, October 1984 and lastly in October 1985.

In its answers to interrogatories, Harold Henson, operation superintendent for State Farm, testified that approximately 45 days prior to the anniversary date of the policy a premium renewal notice was automatically generated by computer based on the information stored on the policy and other general instructions. The premium renewal notice was then placed in an envelope and taken to the post office for mailing to the address listed on the policy. The anniversary date of the policy was the premium due date and indicated in the premium renewal notice. Approximately 25 days following the anniversary date, a cancellation for nonpayment of the premium is printed by computer, placed in an envelope and taken to the post office for mailing to the address listed on the policy.

State Farm Fire claims that on or about November 19, 1986, it mailed a notice of cancellation for the umbrella policy to Gilbert at his home address, and that this notice stated the policy would be can-celled December 22, 1986. The notice was allegedly on the computer produced form FI — 162, as provided in the operation guide.

State Farm Fire admits that (1) it does not have a copy of the premium notice supposedly sent to Gilbert in 1986; (2) it does not have a printed list that would show cancellation; and (3) it does not have a proof of mailing of cancellation on a recognized United States post office form or on any form, all with respect to the umbrella policy.

In an affidavit, Gilbert denied receiving a premium notice or cancellation notice for the personal liability umbrella policy in 1986 or at any time leading up to the accident on September 1, 1988. Gilbert said that he first became aware that State Farm Fire allegedly can-celled his umbrella policy when he contacted his insurance agent in September 1988 to report the accident.

Gilbert also stated that the premium notices for his various State Farm policies came at different times of the year. In addition to the automobile policy insuring the vehicle involved in the accident with State Farm Auto, an entity separate from State Farm Fire, Gilbert also had in effect a homeowner’s policy with State Farm Fire. The renewal notice for the automobile policy was on a six-month cycle between March 18 and September 18 each year. The renewal notice for the homeowner’s policy was on a 12-month cycle for May 1 of each year. Each of these policies and notices bore the same mailing address for the plaintiffs as the umbrella policy.

The plaintiffs filed a motion for summary judgment and supporting memorandum of law. State Farm Fire filed a response to the plaintiffs’ motion, a cross-motion for summary judgment and a supporting memorandum of law. The plaintiffs filed a reply in support of their own motion for summary judgment and a response in opposition to State Farm Fire’s motion for summary judgment. State Farm Fire filed a reply in support of its summary judgment motion.

On October 29, 1991, after argument, the trial court denied the plaintiff’s motion and granted State Farm Fire’s cross-motion finding and declaring that State Farm Fire owed no duty to defend or indemnify the plaintiffs under the umbrella policy for the accident.

The plaintiffs, Gilbert and Láveme Librizzi, as well as defendants, Marlene Mikolajczyk, Thelma Aleck, and William J. Hart, individually and as special administrator for the estate of Sandra M. Hart, have all filed timely notices of appeal. A joint brief was submitted on behalf of all the appellants.

On appeal the appellants raise the following issues:

I. The plaintiffs’ motion for summary judgment should have been granted and State Farm Fire’s motion for summary judgment should have been denied;
II. Even if summary judgment could not be granted for plaintiffs, based upon State Farm Fire’s failure to maintain proof of mailing of the cancellation notice on a United States post office form, summary judgment should not have been granted to State Farm Fire because there were disputed issues of material fact; and
III. The reason given by the lower court to grant State Farm Fire’s motion for summary judgment, namely, that this was a case of “nonrenewal” rather than “cancellation” is wrong.

In response State Farm Fire argues that the trial court properly found that the umbrella policy was not in force at the time the accident took place on September 1, 1988, when the plaintiffs failed to make any payments to renew the policy before it lapsed on December 22, 1986.

A motion for summary judgment should only be granted where the pleadings, depositions, and admissions on file, together with the affidavits, if any, disclose that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); Sons v. Taylor (1991), 219 Ill. App. 3d 923, 925, 579 N.E.2d 1281; Breeze v. Payne (1989), 181 Ill. App. 3d 720, 726-27, 537 N.E.2d 453.) The court must construe the evidence strictly against the movant and liberally in favor of the opponent. (Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.) When determining the existence of a material fact, the court must find such an issue supported by evidentiary facts revealed in the record. (Riverton Area Fire Protection District v. Riverton Volunteer Fire Department (1991), 208 Ill. App. 3d 944, 951, 566 N.E.2d 1015.) Construction of the terms of an insurance policy and satisfaction of statutory requirements are questions of law properly decided on a motion for summary judgment. John Bader Lumber Co. v. Employers Insurance of Wausau (1982), 110 Ill. App. 3d 247, 441 N.E.2d 1306.

The use of summary judgment is encouraged under Illinois law as an aid to the expeditious disposition of a lawsuit. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) However, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Sons v. Taylor (1991), 219 Ill. App. 3d 923, 925, 579 N.E.2d 1281.) Although the plaintiff does not have to try his case, he must provide a factual basis which would arguably entitle him to judgment. (Handy v. Sears, Roebuck & Co. (1989), 182 Ill. App. 3d 969, 972, 538 N.E.2d 846.) A reviewing court will not reverse the determination that summary judgment is appropriate absent an abuse of the trial court’s discretion such that the plaintiff’s right to fundamental justice is violated. Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 956, 578 N.E.2d 33.

For the following reasons, we affirm the decision of the trial court.

I

The appellants argue that the plaintiffs’ motion for summary judgment should have been granted and State Farm Fire’s motion for summary judgment should have been denied. Appellants maintain the following. First, the umbrella policy stated that it would be automatically renewed unless cancelled. Second, the Illinois Insurance Code in effect at the time required: (1) that the umbrella policy issued to Gilbert contain a cancellation provision setting out the manner in which the policy could be cancelled; (2) that no notice of cancellation should be effective unless the notice was mailed to the insured; and (3) State Farm Fire was required to maintain proof of mailing of the cancellation notice on a recognized United States post office form. Third, although State Farm Fire claims it mailed a notice of cancellation to Gilbert, Gilbert denies receiving any notice of cancellation and State Farm Fire disregarded the Illinois Insurance Code by deliberately not maintaining proof of mailing of the cancellation notice, if any, on a recognized United States post office form. Fourth, allowing State Farm Fire to disregard the policy and the cancellation requirements of the Illinois Insurance Code would nullify the Code requirement that insurers must prove mailing of notices of cancellation by a standard of proof greater than normal and customary mailing practices.

In Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129, the Illinois Supreme Court clearly imposed the duty on an insured to renew his, her or its automobile liability policy by payment of a renewal premium before its maturity date in those cases where the insurer has indicated a willingness to renew the policy. The court stated:

“We think it is clear that ‘cancellation’ refers to a unilateral termination by an insurer before the end of a policy period, while ‘nonrenewal’ refers to the automatic expiration of a policy at the end of the policy period.” (Shiaras, 61 Ill. 2d at 167.)

Since Shiaras, the Insurance Code has been amended as follows:

“ ‘Cancellation’ or ‘cancelled’ means the termination of a policy by an insurer prior to the expiration date of the policy. A policy of automobile or fire and extended coverage insurance which expires by its own terms on the policy expiration date unless advance premiums are received by the insurer for succeeding policy periods shall not be considered ‘cancelled’ or a ‘cancellation’ effected by the insurer in the event such premiums are not paid on or before the policy expiration date.” (Ill. Rev. Stat. 1987, ch. 73, par. 755.13(g).)

Since the amendment our courts have held that cancellation and non-renewal are not the same. See First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 530 N.E.2d 521.

The appellants direct this court to the following cancellation clause contained in the umbrella policy:

“If we choose to cancel the policy, we will send notice to the address shown in the policy, We will give at least 30 days’ notice of the date of our cancellation.”

The appellants argue that the umbrella policy did not automatically lapse or expire because of the passage of time or nonpayment of the premium. The appellants maintain that, by the terms of the policy that State Farm Fire wrote, the only way for State Farm Fire to terminate the umbrella policy was to send plaintiffs notice of cancellation at least 30 days prior to the date of cancellation.

The appellants argue that the following provision of the Illinois Insurance Code in effect in 1986 is relevant to the present case:

“§143.11 Cancellation provisions. All companies authorized to transact in this State the kinds of business enumerated in Section 4 of the ‘Illinois Insurance Code’ shall include in their policies *** a cancellation provision setting out the manner in which such policies may be cancelled.” (Ill. Rev. Stat. 1985, ch. 73, par. 755.11.)

The appellants maintain that in addition to the statutory requirement that the policy contain a cancellation provision, another section of the Illinois Insurance Code required State Farm Fire to mail the notice of cancellation to plaintiff, and to maintain proof of mailing on a recognized United States post office form. In 1986, section 143.14 of the Illinois Insurance Code provided:

“Notice of Cancellation. No notice of cancellation of any policy of insurance, to which Section 143.11 applies, shall be effective unless mailed by the company to *** the last mailing address known by the company. The company shall maintain proof of mailing of such notice on a recognized U.S. Post Office form. A copy of all such notices shall be sent to the insured’s broker if known, or the agent of record.” Ill. Rev. Stat. 1985, ch. 73, par. 755.14.

At the hearing on the motions for summary judgment, the trial court stated:

“THE COURT: It’s the finding of the court it is not necessary to rely on what has to be done in cases of cancellation because this was not a cancellation. Everybody in this room and everybody knows if you don’t pay your premium your policy isn’t renewed. The motion for summary judgment for Librizzi is denied. And the motion for summary judgment for State Farm [Fire] is granted.”

The declarations page to the first policy on which the appellants rely provides in relevant part:

“Automatic Renewal: If the policy period is shown as twelve months, this policy will be renewed automatically subject to the premiums, rules, and forms in effect for each succeeding policy period. If the policy is terminated, we will give written notice in compliance with the policy provisions or as required by law.”

The policy also provides:

“PERSONAL LIABILITY UMBRELLA POLICY AGREEMENT
We will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy.”

The applicable definition of “premium” states: “The sum paid or agreed to be paid by an insured to the underwriter (insurer) as the consideration for the insurance. The price for insurance protection for a specific period of exposure.” (Black’s Law Dictionary 1063 (5th ed. 1979).) Black’s Law Dictionary defines “subject to” as: “Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable for.” Black’s Law Dictionary 1278 (5th ed. 1979).

. Plaintiffs maintain that the umbrella policy did not “automatically” lapse or expire because of the passage of time and nonpayment of the premium, but rather that the umbrella policy “automatically” renewed and remained in effect, until or unless State Farm Fire complied with the applicable “cancellation” requirements. If we accept the plaintiffs’ argument, the umbrella policy automatically renewed for two consecutive 12-month periods with no premium payments.

State Farm Fire argues:

“It is not true, as the plaintiffs urge, that the policy automatically renewed even if they failed to pay the premium. Rather, State Farm agreed to renew the policy ‘automatically’ (rather than at its sole option) ‘subject to the premiums’ and ‘in return for the premium’ which the plaintiffs admitted never paying in 1986,1987 or at any time in 1988 prior to the accident.”

Everything the appellants assert about cancellation is correct albeit irrelevant. State Farm Fire did not take any action to cancel Gilbert’s policy before the end of the 12-month policy period. Although Gilbert maintains that he did not receive the premium renewal notice, the terms of the policy itself manifested State Farm Fire’s willingness to renew the policy. We agree with State Farm Fire and find that the present case involves a nonrenewal on the part of the Librizzis, rather than an attempted cancellation on the part of State Farm Fire.

Since we have determined that this case involves a nonrenewal rather than a cancellation, the aforementioned provisions of the Illinois Insurance Code relating to cancellation are inapplicable to the present case. Accordingly, we need not address the question of whether or not State Farm Fire acted in accordance with these provisions.

II

Appellants argue that even if summary judgment could not be granted for Gilbert based upon State Farm Fire’s failure to maintain proof of mailing of the cancellation notice on a United States post office form, summary judgment should not have been granted to State Farm Fire because there were disputed issues of material fact as to whether State Farm Fire mailed a premium notice or cancellation notice to Gilbert and whether the alleged mailing of the cancellation notice would have reached Gilbert within 30 days of mailing.

In order to defeat a motion for summary judgment, the disputed issues of fact must be material and do not warrant the denial of summary judgment if they are not related to the essential elements of the defense. (Solomon v. Baron (1984), 123 Ill. App. 3d 255, 261, 462 N.E.2d 756.) Appellants’ argument is premised on the idea that proof of mailing is required in this case. We have found that this was a case of nonrenewal rather than cancellation; proof of mailing was not required under the facts of this case either under the Illinois Insurance Code or the umbrella policy. Accordingly, the alleged disputed issues of fact are not material to the essential elements of the defense.

III

Finally, appellants argue that the reason given by the trial court in granting State Farm Fire’s motion for summary judgment, namely, that this was a case of “nonrenewal” rather than “cancellation,” is wrong because: (1) the umbrella policy did not contain a lapse or nonrenewal provision; (2) by its own terms the personal umbrella policy was automatically renewed each annual anniversary date; (3) the alleged cancellation notice was allegedly mailed one month after the 1986 anniversary date, when the policy had automatically been renewed to October 25, 1987, so the alleged termination of the policy could not have been a nonrenewal; and (4) State Farm Fire itself designated the alleged termination notice a “notice of cancellation.” The Illinois Insurance Code distinguishes “cancellation” and “non-renewal.”

“(d) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; however, any successive policies issued by the same insurer to the same insured, for the same or similar coverage, shall be considered a renewal policy.
* * *
(g) ‘Cancellation’ or ‘cancelled’ means the termination of a policy by an insurer prior to the expiration date of the policy. A policy of automobile or fire and extended coverage insurance which expires by its own terms on the policy expiration date unless advance premiums are received by the insurer for succeeding policy periods shall not be considered ‘cancelled’ or a ‘cancellation’ effected by the insurer in the event such premiums are not paid on or before the policy expiration date.” Ill. Rev. Stat. 1987, ch. 73, par. 755.13.

The Insurance Code also contains a provision dealing with giving notice of an intention not to renew.

“a. No company shall fail to renew any policy of insurance, defined in subsections (a), (b) and (c) of Section 143.13, to which Section 143.11 applies, unless it shall send by mail to the named insured and the mortgagee or lien holder, at the last mailing address known by the company, at least 30 days advance notice of its intention not to renew. The company shall maintain proof of mailing of such notice on a recognized U.S. Post Office form or a form acceptable to the U.S. Post Office. An exact and unaltered copy of such notice shall also be sent to the insured’s broker, if known, or the agent of record and to the last known mortgagee or lien holder as named in the policy at the mortagee’s last known address. However, where cancellation is for nonpayment of premium, at least 10 days notice of cancellation shall be given.
(b) This Section does not apply if the company has manifested its willingness to renew directly to the named insured.” Ill. Rev. Stat. 1987, ch. 73, par. 755.17.

We have already determined that the trial court was correct in determining that this was a case of nonrenewal rather than cancellation. Appellants maintain that the policy was “renewed automatically” at the expiration of each policy period, thus the policy could never not automatically renew. We disagree as previously stated, the plaintiffs’ failure to pay the premium for the subsequent 12-month period resulted in a nonrenewal of the policy by the plaintiffs. The appellants also point out that the Librizzis dispute having received the premium renewal notice. However, State Farm Fire manifested its willingness to renew the policy directly to the Librizzis, in the policy itself, by providing for “automatic renewal,” subject at all times to the premium and in return for it.

Appellants further argue that the alleged notice of cancellation was allegedly issued November 19, 1986, after the policy had automatically renewed. We find the fact that State Farm Fire would allow a grace period to pay the premium fails to indicate that this was a case of cancellation rather than a nonrenewal.

Appellants indicate that the final problem is that in 1986 State Farm Fire had itself concluded that a notice of cancellation was necessary because it claims to have sent out the notice of cancellation. Appellants acknowledge that the cancellation provisions of the insurance code do not pertain to situations in which the policy automatically expires at the end of the policy period. (First National Bank v. Country Mutual Insurance Co. (1988), 175 Ill. App. 3d 860, 530 N.E.2d 521.) State Farm Fire offered to extend the time for payment, without any interruption in coverage, to December 22, 1986. The failure of the plaintiffs to remit the premium on or before the extended due date did not mean, under the provisions of the policy, that State Farm Fire had cancelled the policy as opposed to the Librizzis failing to renew the policy.

This case arose as the result of a tragic accident. It appears that the failure to pay the insurance premium was not a conscious decision on the part of the insured. However, no matter how much we dislike the result where the inadvertent or unconscious failure to renew a policy by a long-time policy holder precludes adequate insurance coverage, we must follow the decisions of the Illinois Supreme Court as well as the State legislature.

Accordingly, for all the reasons set forth above we must affirm the decision of the trial court.

Judgment affirmed.

McNULTY, P.J., and GORDON, J., concur.