text:
      In re MARRIAGE OF JANET DIANE BENNETT, Petitioner-Appellee, and DAVID ARTHUR BENNETT, Respondent-Appellant.
    Fourth District
    No. 4 — 91—0244
    Opinion filed January 31, 1992.
    Howard W. Feldman and Fredric Benson, both of Feldman & Wasser, of Springfield, for appellant.

      Thomas R. Appleton and Elizabeth W. Anderson, both of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner, Janet Bennett, petitioned for dissolution of marriage and permanent custody of the parties’ two minor children. Respondent filed a counterpetition for dissolution of marriage and for temporary and permanent child custody and support or, in the alternative, joint custody with a specific requirement the children be raised in the Jewish faith. Respondent contended an agreement existed between the parties to raise their children Jewish, and since he is Jewish, the court should grant him custody to insure the children are raised in the Jewish faith. In response, petitioner argued that respondent’s contention religious preference and the existence of an agreement entitled him to primary consideration as the custodial parent violated the establishment clause of the United States Constitution.

In a letter dated January 12, 1990, the circuit court stated:

“No formal contract concerning the religious upbringing of the children was entered into by the parties — either in the form of an antenuptial agreement or a settlement agreement.”

The circuit court went on to assert the case of Gottlieb v. Gottlieb (1961), 31 Ill. App. 2d 120, 175 N.E.2d 219, was inapposite because in that case the parties had agreed at the time of dissolution it was in the best interests of the children to be raised in the Jewish faith. Their written agreement was approved by the court. The circuit court here emphasized that the parties in Gottlieb made the religious training of the children a factor in determining the best interest of the children rather than it being a court-determined factor. The court here also held it would be violative of the establishment clause to consider the religious beliefs of the parties in awarding custody.

On April 26, 1990, the court entered a judgment order and granted permanent custody to the petitioner with respondent receiving liberal visitation rights, including Jewish holidays. The order did not mention the religious upbringing of the children.

The respondent filed a motion to reconsider the judgment order, contending the circuit court was empowered to order the petitioner to raise their children in the Jewish faith and that this action did not infringe on first amendment rights. In a letter dated August 27, 1990, the court asserted, assuming a contract existed between the parties to raise the children in the Jewish faith, it would have to determine if the enforcement of the contract violated the establishment clause of the first amendment. Applying the standard delineated in In re Marriage of Goldman (1990), 196 Ill. App. 3d 785, 554 N.E.2d 1016, the court concluded, without specifically finding a contract existed, that enforcement of such a contract would violate the establishment clause. Accordingly, the court denied respondent’s request and this appeal followed.

The issues presented on appeal are whether an implied contract to raise the children in the Jewish faith existed and whether such a contract can be enforced.

Before we can determine whether a contract specifying the religious upbringing of children is constitutionally enforceable, we must first ascertain whether a contract existed. A constitutional question will not be considered if the case can be determined and disposed of on other grounds. Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316, 243 N.E.2d 193; In re Harrison (1983), 120 Ill. App. 3d 108, 458 N.E.2d 146; Lake Louise Improvement Association v. Multimedia Cablevision of Oak Lawn, Inc. (1987), 157 Ill. App. 3d 713, 510 N.E.2d 982.

Even though the circuit court, in its January letter, stated no formal contract existed, we conclude the circuit court did not determine whether an enforceable implied contract existed. Rather, in stating no formal contract existed, the circuit court must have meant that no written contract existed. This assertion accords with the court’s analysis of Gottlieb and its conclusion that, in the absence of a written agreement, the religious training of the children could not be determined by the court. This determination is reinforced by the circuit court’s August letter, in which it specifically declined to resolve the issue of whether a contract existed. Instead, the court assumed, for purposes of analysis, that a contract existed and applied the analysis employed in Goldman to determine whether the enforcement of the alleged contract would violate the establishment clause.

Courts of review function to review rulings and judgments of the circuit courts and generally will not pass upon any question as to which the circuit court failed to make a decision. (Shortridge v. Sherman (1980), 84 Ill. App. 3d 981, 406 N.E.2d 565; Board of Education v. Chicago Teachers Union, Local 1 (1975), 26 Ill. App. 3d 806, 326 N.E.2d 158; Somerset House, Inc. v. Board of Appeals (1970), 131 Ill. App. 2d 569, 266 N.E.2d 508.) Normally, the existence of a contract is a question of fact for the trier of fact to determine. (Sanchez v. Walls (1978), 59 Ill. App. 3d 75, 78, 375 N.E.2d 138, 140, citing Trustees of Schools of Township 42 v. Schroeder (1971), 2 Ill. App. 3d 1009, 278 N.E.2d 43.) However, for purposes of judicial economy and pursuant to the court’s authority under Supreme Court Rules 366(a)(4) and (a)(5) (134 Ill. 2d Rules 366(a)(4), (a)(5)), we will resolve the issue of the existence of a contract rather than remanding the case to the circuit court.

The respondent argued an implied-in-fact contract existed to raise the children in the Jewish faith. The respondent cited Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 433 N.E.2d 315, which defined an implied-in-fact contract as a contract which “arises not by express agreement but by a promissory expression which may be inferred from the facts and circumstances which show an intent to be bound.” (Gary-Wheaton Bank, 104 Ill. App. 3d at 775, 433 N.E.2d at 323, citing Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 498, 381 N.E.2d 705, 708.) However, after defining an implied-in-fact contract, GaryWheaton Bank continued that both categories of implied contracts were “based on quantum meruit or unjust enrichment; a party should not receive a benefit which would be unjust for him to retain without paying for it.” (Gary-Wheaton Bank, 104 Ill. App. 3d at 775, 433 N.E.2d at 323.) If an implied-in-fact contract is based on the theory of quantum meruit, then this legal theory is inapplicable here. It would be absurd to conclude petitioner received a benefit from respondent by allegedly agreeing to raise their children in the Jewish faith, was unjustly enriched as a result, and must pay him to retain the benefit.

Furthermore, a contract implied in fact must contain all the elements of an express contract. It consists of obligations arising from an agreement where an agreement has not been expressed in words. The only difference between an implied contract and an express contract is that an express agreement is derived from an actual agreement, either verbal or written, and a contract implied in fact is inferred by consideration of the facts and conduct of the parties. (Litow v. Aurora Beacon News (1965), 61 Ill. App. 2d 127, 133, 209 N.E.2d 668, 671, citing People v. Dummer (1916), 274 Ill. 637, 640-41, 113 N.E. 934, 935; In re Estate of Brumshagen (1960), 27 Ill. App. 2d 14, 23, 169 N.E.2d 112, 116-17.) Therefore, to prevail on this theory, the respondent had to prove the essential elements of a contract, supplied by implication from the parties’ conduct or actions. O’Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11,14, 365 N.E.2d 316, 319.

•4 The elements of a contract are an offer, a strictly conforming acceptance to the offer, and supporting consideration. (Marlin v. Government Employees Insurance Co. (1970), 206 Ill. App. 3d 1031, 565 N.E.2d 197.) Based on the evidence, respondent failed to establish the existence of the elements necessary for an enforceable contract.

An offer is defined as “an act on the part of one person whereby he gives to another the legal power of creating the obligation called contract.” (McCarty v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 507, 411 N.E.2d 936, 942.) Nothing in the record evidenced conduct by the respondent which would indicate an offer. Respondent never argued an offer was made. Rather, he continued to insist petitioner agreed to raise the children in the Jewish faith because she participated in the “bris.” This statement alone is insufficient to establish a contract. A court cannot assume an offer was made by respondent’s statement that petitioner agreed to raise the children Jewish.

Assuming an offer was made, respondent had to prove an unequivocal acceptance. An acceptance is a manifestation of assent to the terms of the offer. Had an offer been proved, respondent could arguably have proved the petitioner agreed to raise the children in the Jewish faith. We note petitioner agreed to raise the children Jewish. She participated in Jewish ceremonies, including the “bris,” attended Temple and began conversion classes. Although petitioner did not complete the conversion process and, therefore, did not promise that all children would be raised in the Jewish faith, her participation in Jewish activities with the children evidenced an intent to raise the children Jewish. However, without an offer, there can be no acceptance and no contract.

Finally, a contract will not be enforced without the existence of consideration. Consideration is “any act or promise which is a benefit to the party or [detriment] to the other.” (Libertyville Township v. Woodbury (1984), 121 Ill. App. 3d 587, 592, 460 N.E.2d 66, 71, citing Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) Detriment means “giving up something which immediately prior thereto the promisee was privileged to retain, or doing or refraining from doing something which he was then privileged not to do, or not to refrain from doing.” (1 S. Williston, Contracts §102A, at 380-82 (3d ed. 1957).) Benefit means “the receiving as the exchange for his promise of some performance or forbearance which the promisor was not previously entitled to receive.” (1 S. Williston, Contracts §102A, at 380-82 (3d ed. 1957).) The concepts of benefit and detriment are not present in this case. Petitioner, the promisor, received no benefit in exchange for her promise to raise the children in the Jewish faith. Likewise, the respondent, in whose favor the alleged contract was made, did not part with a right which he might otherwise have exerted in exchange for the promise of petitioner. Based on the discussion of the elements of a contract, it is evident a contract implied in fact does not exist.

As a matter of law, respondent has failed to establish the existence of a contract and, therefore, the order of the circuit court denying the respondent’s request to require the petitioner to raise the children in the Jewish faith is affirmed.

Even if a contract existed, we would still affirm. In In re Marriage of Nuechterlein (1991), 225 Ill. App. 3d 1, this court held that in dissolution proceedings, the circuit court is not bound by a premarital agreement purporting to fix the religion in which the parties’ children will be raised. Rather, the court is charged with the duty to protect the welfare of the children by making a careful and independent determination of matters pertaining to custody. While the trial judge made no specific ruling under section 608(a) of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1989, ch. 40, par. 608(a)), in the interest of judicial economy and because the record is such that a determination may be made, we choose to address the issue. Respondent could only prevail if he proved the absence of a specific limitation on the custodian’s authority would be contrary to the best interests of the children. There is insufficient evidence to establish the need for any limitation on the custodian regarding the religious training of the children.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
      In re ESTATE OF CLEMENT L. STOKES, Deceased (Lois Botsford, Plaintiff-Appellee, v. Leo Stokes, Defendant-Appellant).
    Fourth District
    No. 4 — 91—0475
    Opinion filed January 31, 1992.
    David B. Radley, of Baymiller, Christison, Radley & Covey, of Peoria, for appellant.
    G. Patrick Riley, of Harrod Law Firm, of Eureka, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Coexecutor Leo Stokes (defendant) appeals a trial court ruling which (1) set aside a family settlement agreement and deeds executed according to its terms; (2) ordered the executor to pay the estate all proceeds from sales of the real estate plus interest, less a credit for satisfaction of estate debts; (3) ordered the farm machinery reconveyed by defendant to the estate; and (4) removed defendant from his office. On appeal, defendant claims that the trial court based its ruling on the erroneous belief that title to the real estate did not pass to the devisees when the will was admitted to probate, that the recitations contained in a divestiture petition filed by defendant were true, and that the court erred in setting aside the deeds from two devisees who were not parties to the action.

Clement Stokes died testate on December 31, 1987. His will left his residence to his wife Madelyn and the residuary to his four children — defendant, Lois Botsford (plaintiff), Edward Stokes, and Irene Douglas — in equal shares. The will was admitted to probate on February 11, 1988, and Madelyn and defendant were appointed coexecutors. They hired the Roanoke law firm of Huschen & Huschen to represent them.

The residue consisted of two tracts of unimproved land approximately one-half mile apart. Tract No. 1, 126.13 acres, contained 30 acres of pasture and 96.13 acres of timber. Part of tract No. 1 was platted in 1950 for 20 residential lots. Since that time, only one sale consisting of four lots was made to be used for a single-family home. The remainder of tract No. 1 was unimproved and used only as pasture for the 37 years prior to testator’s death.

Tract No. 2 is a six-acre parcel which was platted into 16 lots in 1978. Tract No. 2 had no sewers and no lots had been sold, although attempts have been made to do so. The First Bank and Trust Company of Gridley (Bank) held a mortgage on tract No. 2, for approximately $62,000.

The estate’s attorneys obtained appraisals of tract No. 1 from Harold Zobrist, a licensed real estate broker and auctioneer. He valued tract No. 1 at $35,280, or $280 per acre. Zobrist believed 20 acres to be pastureland, and the remainder to be very rough, containing second-growth timber, gullies, and brush.

An appraisal of the 16 lots (six acres) comprising tract No. 2 was obtained from Mickey DeWitt. He valued tract No. 2 at $4,200 per lot ($67,000), if sold as such, or $1,500 per acre ($9,000), if sold as an entire tract.

Plaintiff, with the coexecutors’ permission, directed the estate attorneys to hire Arthur Korte to do a second appraisal of tract Nos. 1 and 2. Korte found tract No. 1 to contain 30 acres of good grassland valued at $800 per acre ($24,000), and 96.13 acres of rough, rolling timberland valued at $150 per acre ($14,419.50). He appraised tract No. 1 at $38,419.50. Tract No. 2 was six acres of grassland valued at $1,000 per acre ($6,000). The value of both tracts totaled $44,419.50. These values were based on Korte’s belief that the highest and best use of both tracts was as pastureland. Plaintiff had believed the total value of the two tracts to be $145,000.

The attorneys for the coexecutors then obtained an appraisal of the farm machinery from Lewis Martin. He valued the farm machinery at a total of $5,900.

During administration of the estate, defendant filed a claim against the estate totalling $22,538.11. The claim consisted of $6,785.42, which he paid to return his dying father from Texas to Illinois via air ambulance, $6,488 for farm expenses on his father’s farm in 1987, and $9,264.69 for an acreage discrepancy involving a prior real estate transaction between him and his father.

Attorney B.H. Huschen wrote plaintiff to tell her the estate was virtually insolvent and the Bank would surely foreclose on the mortgage. Huschen advised plaintiff that the Bank could get a deficiency decree and take Madelyn Stokes’ home to satisfy the deficiency.

After extensive correspondence and negotiations, the parties reached an agreement. First, defendant would satisfy the mortgage due the Bank. Second, he would release his claim against the estate. Third, defendant would take title to the farm machinery. Finally, the other three sibling devisees would deed their interests in both tracts to defendant.

Edward Stokes and Irene Douglas both executed warranty deeds conveying their interest in the property to defendant (signatures notarized), and returned the deeds to the estate’s attorney. Plaintiff executed her deed to defendant (signature notarized), but she crossed out the warranty language. She sent this deed to Huschen on September 20, 1988. Plaintiff also sent a letter along with her executed deed, which read, in pertinent part:

“9. The three tracts have been appraised only for agricultural purposes and are purchased for that basis only.
The acceptance and recording of this deed shall constitute an acceptance by the Estate and Leo of these representations and that the probate of the estate shall be concluded as has been represented. In the event there is any deviation from what has been represented, the consideration for this deed will fail.”

The letter also alleged that Huschen had coerced and misled her into conveying her interest in the real estate to defendant.

After receiving the deeds, defendant satisfied the mortgage held by the Bank. A release of the Bank’s claim was filed on November 22, 1988. Defendant executed a release of his claim against the estate, but that release was not filed with the circuit clerk. The deeds from the three heirs to defendant were recorded on November 23, 1988. At trial, defendant testified that on October 3, 1988, he first had a conversation with Mr. and Mrs. Johnson about sale of part of tract No. 1. He subsequently sold them 20 acres of pastureland, pursuant to an agreement entered into on October 29, 1988, for $40,000. On November 11, 1988, counsel for the coexecutors filed a petition for divestiture of the two tracts of land. No notice was given to any of the heirs. On that same date, an order was entered by the court granting the petition. The petition alleged that the real estate was to be sold by the heirs and not by the estate and that the real estate would not be needed for the payment of claims, administration expenses, taxes, or legacies. Sometime after the order of divestiture was entered, the sale by defendant to the Johnsons was completed.

On May 4, 1989, defendant sold one of the lots in tract No. 2 for $4,500. On June 12,1989, he sold another lot in that tract for $7,000.

After plaintiff learned of these sales, she filed an objection to the coexecutors’ final account, objecting to the settlement agreement. No objections or appearances were filed by Irene Douglas or Edward Stokes. They were given notice of filing of the final account and of plaintiff’s objection thereto, but the record is unclear as to whether they received notice of any of the proceedings which followed.

Plaintiff’s objection contained three counts: count I alleged actual fraud; count II alleged defendant had breached his fiduciary duty as coexecutor, and count III was a complaint for a constructive trust. On defendant’s motion, the trial court dismissed this last count and plaintiff filed an amended count III. This count alleged that the representations made in the petition for divestiture were untrue and that without the value of the land divested, there were insufficient assets in the estate to pay either the claims of defendant or of the Bank. It also alleged that no notice was given to the heirs of the hearing on the petition. It asked for judgment against defendant for the proceeds of sale of the 20 acres and the two lots, that the deeds executed in pursuance of the family settlement agreement be set aside, that defendant be removed as coexecutor, for restoration to the estate of the farm machinery defendant had received, for the establishment of a constructive trust to hold the proceeds of sale of the real estate received by defendant and for the denial of executor’s fees to defendant.

Defendant filed an answer to this amended count III, alleging the representations made by the petition for divestiture were true because defendant was bound by the family settlement agreement to pay the Bank’s claim and to release his own claim against the estate, both of which defendant had done. He also alleged that no notice to plaintiff of the hearing on the divestiture petition was necessary because she had previously delivered her deed to defendant of her interest in the real estate and thereby had demonstrated her acquiescence to the entry of the order of divestiture.

Attorney John Huschen testified that his firm was retained by defendant to represent the estate. His office also prepared the deeds sent to defendant’s siblings and filed the petition for divestiture of the real estate from the estate. He stated that he was unaware of any potential buyer of the real estate prior to filing the divestiture petition. Finally, he testified that he only filed the petition to divest because it was required by the title insurer in connection with defendant’s real estate sale to the Johnsons.

At the conclusion of the bench trial, the court found in defendant’s favor as to count I. Count II was withdrawn by plaintiff after the court ruled in her favor as to count III.

Defendant first claims on appeal that the trial court based its ruling on the erroneous belief that title to the real estate was vested in the executors. He argues that this view of the law caused the trial court to conclude that notice to the other heirs of the hearing on the divestiture petition was necessary. We agree that the trial court was mistaken on this point.

Defendant argued that no notice was necessary or, if technically necessary, the failure to give it was harmless since the other devisees had conveyed the property to defendant prior to divestiture. After hearing this argument, the court stated:

“THE COURT: *** They didn’t hold any interest in this property at that point in time. Would you concede that, or do you think they did?
MR. RADLEY [Defense attorney]: I think they did subject to any claim of the executor, and I think that’s why up until recently the title conditions didn’t even bother to require this procedure of divestiture. I think it’s—
THE COURT: By what mechanism would they have been a part of the title to this property on the date that they executed these deeds?
MR. RADLEY: Well, the property was left to them by virtue of the will. I think the—
THE COURT: You mean they were some kind of survivor-ship owners?
MR. RADLEY: Well, I think the will left everything to the four of them in equal shares, speaking from memory, so I think there were four owners of the real estate. True, subject to the possibility that the executor would petition to sell to pay debts, but subject to that I think they were the four owners of the property.
THE COURT: Do you have any authority that would support that proposition?
MR. RADLEY: I don’t have it with me, Your Honor, because I didn’t know it would be an issue. But I’ll—
THE COURT: Mr. Riley certainly has raised it.
MR. RADLEY: I would be happy to submit authority.
THE COURT: That in effect they’re title holders of some undivided what, undivided one-fourth or something while the estate is in probate?
MR. RADLEY: Yes. Subject to the possibility—
THE COURT: Do you agree with that, Mr. Riley?
MR. RILEY [counsel for plaintiff]: No.
THE COURT: Okay. I didn’t think he did. I’ll need your authority. That’s news to me, but I will be glad to look at your authority.”

It is well settled that, upon the admitting of a will to probate, title to real estate vests in the devisees. (Craig v. Trotter (1911), 252 Ill. 228, 230, 96 N.E. 1003, 1004; Epley v. Epley (1927), 244 Ill. App. 237, 237.) Once admitted to probate, the will is considered valid for vesting title to the realty in the devisees. (Scott v. Scott (1989), 179 Ill. App. 3d 489, 492, 534 N.E.2d 174, 176, citing Stull v. Veatch (1908), 236 Ill. 207, 86 N.E. 227; Havill v. Havill (1928), 332 Ill. 11, 163 N.E. 428.) As stated in Scott:

“ ‘A will speaks from the death of the testator. At the moment of his death the rights of his heirs and devisees to succeed to his estate are fixed and vested ***. ***
***
*** The effect of the probate of a will is to vest the title in the devisee as completely as a deed from the owner of property vests the title in his grantee and is subject to no greater contingency.’ ” Scott, 179 Ill. App. 3d at 492, 534 N.E.2d at 176, quoting Havill, 332 Ill. at 15-16, 163 N.E. at 429-30.

Administrators of estates take no title or interest in the real estate of a decedent, except naked power to sell it if the estate assets are insufficient to satisfy debts. (People v. Weinstein (1968), 105 Ill. App. 2d 1, 6, 245 N.E.2d 788, 790.) Given the above authority, it is clear that the trial court had an erroneous understanding of the law. Title vested in the devisees on February 11, 1988, when the will was admitted to probate, subject only to the coexecutors’ right to sell it to pay claims and expenses.

Defendant next contends that the recitations in the divestiture petition were true. Defendant sought to divest the estate of the property conveyed to him by deeds from the devisees in return for the consideration outlined above. The divestiture petition stated, in pertinent part:

“Said real estate is to be sold by the individual beneficiaries and not by the estate, pursuant to Chapter 110½, Section 20—1(c). Neither the real estate nor the income therefrom will be needed for the payment of claims, administration expenses, taxes or legacies.”

Count III of plaintiff’s objection supplied the basis for the court’s ruling. In ruling on count III, the trial court stated its reasons:

“The presumption in the law is that if such a fiduciary deals with the property of the relationship and benefits from that dealing, the presumption is that the fiduciary relationship has been breached and that what is called fiduciary fraud has occurred.
Now, the use of the term ‘fraud’ in that context has caused the courts over the years unending difficulty. And therefore, I use it only because the cases use it. I do not consider that to be fraud. But the results, perhaps, are the same. It is clear to me that Mr. Stokes from the beginning of his responsibilities as a fiduciary, if not before that, had an individual interest in acquiring estate property.
Now, the law does not prevent him from having those interests, doesn’t prevent him from pursuing them. It does, however, prevent him from pursuing them if ever his pursuit is different than or in conflict with the interests of the estate and/or the beneficiaries of the estate. In this case he happens to be one of them. That does not make it any different.
When he embarks upon that course of activity, be he a lay person, be he uneducated, be he whatever, his actions are subjected to the strictest of scrutiny by the courts. His actions in this case do not survive that scrutiny. In particular, they do not survive it when he accepts deeds from people who, as far as I’m concerned, at that point in time have no interest to convey. They may have a future interest and, therefore, the effort to obtain warranty deeds may have solved that problem.
The problem is that one of these deeds, as best I can tell, is not a warranty deed, does not warrant, at least clearly warrant, the transfer of after-acquired title.
Therefore, assuming for the sake of this discussion that the transfer or transmittal of those deeds, be it a warranty or less than that, transferred to him some conclusion or logical feeling that he did not have to give them notice of the divestiture he, nevertheless, had not legally obtained title to that property up and until the time he requested the divestiture to him. At the time that that was done not only was the estate insufficient after the property was gone to satisfy the debts of the estate, there was not to be a sale of the property by the heirs, second of those two things being the less important of the two inaccuracies contained in the Petition.
Now, the fact that someone is promising to do something in the future and that others are willing to rely upon the hope that that promise is fulfilled does not explain or justify the misrepresentation to the Court, because it is the Court who holds the obligation — which holds the obligation to the decedent that must be satisfied that the decedent’s interests are being protected.
[The] court is the last bastion upon which the decedent can rely independent of the activities of the heirs or the representatives. Mr. Stokes, at least it would appear from the evidence, has benefited from his activities in pursuit of his own interests while attempting to act as the fiduciary in this case.
Therefore, with regard to Count III, which I believe most closely approximates that problem, I find the objections to be established.”

The trial court ruled that the defendant breached his fiduciary duty; however, there were no allegations before the court in count III that support this finding. The only allegations before the court were that defendant improperly failed to notify devisees of the divestiture proceeding, and that defendant misrepresented that the real estate would not be needed to pay claims of the estate. We decline to decide whether defendant breached his fiduciary duty, as no such allegation was before the court in count III; therefore, it was improper for the trial court to rule on that issue.

Although giving notice to the devisees may have been proper, any error in failing to give such notice was harmless. The devisees conveyed all their interest in the land to defendant. They had no interest in the land to protect. In fact, two of the three devisees did not join plaintiff in her objections.

There was no evidence that defendant made any misrepresentations in his divestiture petition. He stated that the property being divested was not needed to satisfy any claims against the estate. Section 20— 1(c) of the Probate Act of 1975 states:

“Upon petition of any interested person, the court may grant possession of real estate on such terms as it deems appropriate to the heir or legatee thereof, if it appears that the real estate or income therefrom will not be needed for the payment of claims, expenses of administration, estate or inheritance taxes or legacies. An order granting possession of real estate does not constitute a determination of title to the real estate.” (Ill. Rev. Stat. 1989, ch. 110½, par. 20—1(c).)

The land was not needed to pay any outstanding claims. Defendant agreed to pay all major outstanding claims, pursuant to the settlement agreement. No claims remained requiring use of the property.

Having decided that the trial court’s order granting the prayer of count III must be reversed, we need not reach the question defendant raises concerning the propriety of the court’s order as to the interests of Irene Douglas and Edward Stokes.

Reversed.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE ex rel. JEREMY MARGOLIS, Director of the Department of the State Police, Plaintiff-Appellee, v. MICHAEL ROBB et al., Defendants-Appellants.
    Fourth District
    No. 4 — 91—0388
    Opinion filed February 13, 1992.

      Edward H. Rawles, of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellants.
    Joseph J. Duffy and Heidi Dalenberg, both of Schiff, Hardin & Waite, of Chicago, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The Director of the Illinois State Police (State Police) filed charges with the Illinois State Police Merit Board (Merit Board or Board), alleging defendant Michael Robb had improperly provided three documents—relating to allegations made against an elected official, the coroner—to the official who was the subject of the allegations. The three documents were: (1) an investigative report prepared by Master Sergeant C.F Gross (petitioner’s exhibit No. 1); (2) an office memorandum from Gross to Major Thomas Schumpp (petitioner’s exhibit No. 2); and (3) an office memorandum from Schumpp to Deputy Superintendent Larry Dowdy (petitioner’s exhibit No. 3). Based on this alleged conduct, the complaint charged defendant violated the rules of conduct (ROC) of the State Police: ROC-1, paragraph 1—27 (dissemination of information); ROC-1, paragraph 1—3(a), and official policies (OPS), OPS 18—3 (dissemination of intelligence and investigative information), OPS 18—3(a) (assisting criminals), and OPS 18—3(b) (compromising criminal cases); ROC-3 (code of ethics); and ROC-1, paragraph 1—6 (unbecoming conduct).

Originally, zone 6 of the State Police obtained information relating to allegations of unlawful conduct and wrongdoing by the official. Gross compiled information, including exhibit Nos. 1 and 2, copies of the official’s telephone records and other items, and forwarded them to zone 10 of the State Police. At this time, no case number had been assigned to the matter, nor had an official investigative file been opened.

Defendant Robb, along with two other officers from zone 10, took the documents received from zone 6 to the Champaign County State’s Attorney’s office to be reviewed to determine whether further investigation was warranted for that office to bring criminal charges. On December 11, 1987, the State’s Attorney’s office informed defendant Robb, for the benefit of the State Police, that it did not wish to pursue the matter but had forwarded the material to the Attorney General’s office for an independent determination.

In April 1988, the official approached defendant Robb and inquired about the status of the investigation. Robb responded that the State Police was not conducting an investigation, but the matter had been referred to the State’s Attorney’s office. The official indicated he was aware of the State’s Attorney’s involvement and that the matter had been referred to the Attorney General’s office. He then asked Robb if he could obtain a copy of the original documents received by the State Police. Later, Robb delivered the State Police’s copy of the documents that had been provided to the State’s Attorney’s office to the business with which the official was affiliated in an envelope on which Robb had written the official’s name. Robb stated the documents were bound together by an “Acco” clip. On July 20, 1988, the Attorney General’s office executed a search warrant on the official’s office. During the search, copies of the exhibits were found in the official’s briefcase. The exhibits were in an envelope and did not appear to have any punch holes which would indicate they had been fastened with other documents.

The Attorney General’s office and the State Police questioned Robb to determine how the official had obtained the documents. Robb responded he had given the official the documents he had received from zone 6 and which had been delivered to the State’s Attorney’s office. During the Attorney General’s interview, Robb was not shown all of the exhibits, and, therefore, it was unclear whether the documents Robb admitted delivering to the official were the same as the exhibits. During the disciplinary hearing, Robb testified he did not recall petitioner’s exhibit Nos. 1 and 3 as being included in the documents he had given over to the official. However, he did admit that if petitioner’s exhibit No. 2 was not one of the documents he gave over to the coroner, it was very similar to it. Robb further testified he regarded the coroner as part of the law enforcement community.

The State’s Attorney testified that exhibit No. 2 had been the top document on the sheath of papers which he had been asked to review and which he had forwarded to the Attorney General’s office for an independent assessment. Robb’s superior testified it would be incorrect to provide someone, including another police officer, police agency, or another governmental agency, with documents containing information relating to allegations made against that person or agency.

Additionally, at the hearing, conflicting testimony was heard regarding which of the exhibits were included in the papers taken to the State’s Attorney’s office, but there was uncontroverted evidence the State Police did not commence an investigation of the elected official or open an official investigative file, pursuant to departmental procedures.

Based on this evidence, the hearing officer held plaintiff had failed to establish Robb violated its rules. To reach this conclusion, the hearing officer maintained that plaintiff failed to prove Robb actually delivered petitioner’s exhibits Nos. 1 and 3 to the official. He relied on the fact the exhibits did not appear to have been fastened at the top as described by Robb. As to petitioner’s exhibit No. 2, he stated Robb admitted providing that document, along with other items, to the official. However, he noted petitioner’s exhibit No. 2 was an interoffice memorandum and not an investigative file as, he stated, had been pleaded. (This was erroneous as the charges had identified exhibit No. 2 as an “inter-office memorandum.”) The officer concluded ROC 1—27 prohibited only the dissemination of investigatory information. Since petitioner’s exhibit No. 2 was not an investigatory document, the State Police had not commenced an investigation of the official or opened an investigatory file, and there was no evidence before him concerning “established departmental procedures” for the dissemination of noninvestigatory material, he held the plaintiff failed to prove Robb had violated the rules by providing the coroner with petitioner’s exhibit No. 2. Further, he held Robb’s admission of providing other documents to the coroner was not a per se violation of ROC 1—27. As a result of plaintiff’s failure to establish a violation of ROC 1—27, he found no violation of OPS 18—3, OPS 18—3(a) and OPS 18— 3(b). The hearing officer further found no violation of ROC-3 (the code of ethics), or ROC-1, paragraph 1—6 (unbecoming conduct). On November 8, 1989, the Merit Board adopted the findings of the hearing officer.

The plaintiff petitioned for administrative review, and on August 7, 1990, the circuit court reversed the decision of the Merit Board and remanded the case to it to enter findings and conduct further proceedings. Pursuant to the circuit court’s order, the Merit Board accepted that plaintiff had proved the charges against Robb and ordered him suspended for 15 days. Later, plaintiff filed a supplemental complaint for administrative review, seeking Robb’s discharge or additional hearings to determine the appropriate disciplinary action against Robb. Additionally, Robb filed a petition for reconsideration of the circuit court’s August 7 ruling. On May 6, 1991, the circuit court denied plaintiff’s supplemental complaint and denied Robb’s motion for reconsideration. Robb appeals the circuit court’s August 7 order reversing the decision of the Merit Board, contending the Merit Board’s original decision was not against the manifest weight of the evidence and should be reinstated.

The Merit Board’s findings and conclusions on questions of fact will not be disturbed on review unless contrary to the manifest weight of the evidence. (Lyles v. Department of Transportation (1989), 183 Ill. App. 3d 901, 907, 539 N.E.2d 833, 837, citing Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434, 437.) A finding is against the manifest weight of the evidence if all reasonable and unbiased persons could agree an opposite conclusion is “clearly evident.” (Lyles, 183 Ill. App. 3d at 908, 539 N.E.2d at 837 (and cases cited therein); Jackson v. Department of Labor (1988), 168 Ill. App. 3d 494, 499, 523 N.E.2d 5, 9 (and cases cited therein).) A reviewing court cannot reweigh the evidence, make independent determination of facts or substitute its judgment for that of the Board, even if it believes the opposite conclusion might be reasonable. The court’s function is limited to ascertaining whether the Board’s decision was against the manifest weight of the evidence. (Lyles, 183 Ill. App. 3d at 908, 539 N.E.2d at 837; Jackson, 168 Ill. App. 3d at 499, 523 N.E.2d at 8-9.) Conflicting evidence is insufficient to reverse the Board’s decision. (Lyles, 183 Ill. App. 3d at 908, 539 N.E.2d at 837, citing Fox v. Illinois Civil Service Comm’n (1978), 66 Ill. App. 3d 381, 388, 383 N.E.2d 1201, 1206.) Since the weight of the evidence and credibility of the witnesses are within the province of the Board, there only needs to be some competent evidence in the record to support the Board’s decision. Jackson, 168 Ill. App. 3d at 499, 523 N.E.2d at 9 (and cases cited therein).

Based upon the aforementioned principles and consideration of the record, we affirm the circuit court’s decision. We do not reach the issue of whether it was against the manifest weight of the evidence for the Board to conclude Robb had not provided the official with petitioner’s exhibit Nos. 1 and 3 because, by defendant’s own admission, he provided the elected official with petitioner’s exhibit No. 2. We now turn to determine whether it was against the manifest weight of the evidence for the Board to conclude dissemination of this document did not violate the rules of the State Police. In doing so, we note that although an agency’s interpretation of its own rules or the statute it is charged with administering is to be accorded some deference, courts of review are not bound to give the same degree of deference to an agency’s construction of, for example, a statute, contract, or rules, as given to its findings of fact. Therefore, it has been held, for example, that a decision based upon an erroneous, arbitrary or unreasonable construction of a statute will not stand. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072, 1073-74.) The resolution of this issue in this case turns on the interpretation given to the State Police’s rules by the hearing officer and adopted by the Merit Board.

Count I alleged Robb violated ROC-1, paragraph 1—27, which states:

“Officers shall treat the official business, evidence, documents and photographs of the Department as confidential. Information regarding official business shall be disseminated in accordance with established Departmental procedures. Officers may remove or copy official records or reports from a police installation only in accordance with established Departmental procedures. Officers shall not divulge the identity of persons giving confidential information except as authorized by proper authority or release items of evidence, documents, photographs, etc. to members of the news media or others outside the criminal justice system without the express permission of the applicable Division Head.”

The hearing officer held this rule prohibited only the dissemination of investigative material. However, this interpretation is clearly erroneous. The rule makes no distinction between investigative and noninvestigative material. Rather, the rule precludes the dissemination of the “official” business, et cetera, of the State Police. Although “official” is not defined, it is incomprehensible to conclude petitioner’s exhibit No. 2 was not within the meaning of “official business, evidence or documents *** of the Department.” Zone 10 received the information during the course of its work and in its capacity as a facet of the State Police. This was official business, regardless of whether an investigation was pending, case number assigned or an official file opened.

Count II alleged Robb violated ROC-1, paragraph 1—3(a), in that he violated the following policies of the State Police: OPS 18—3, OPS 18—3(a) and OPS 18—3(b), which state:

“DISSEMINATION OF INFORMATION The dissemination of information that is in possession of this Department is permitted on a need-to-know basis. No Departmental employee shall confirm the existence or non-existence of any intelligence, investigative, criminal, or any other Departmental record or information to any person or agency not specifically authorized to receive such information. Those authorized to receive such information shall be limited to members of this Department or another criminal justice agency if,
and only if they have need for the information in the performance of their official duties. All employees shall treat as confidential the business of the Department.
{a) Assisting Criminals
Employees shall not knowingly communicate in any manner, directly or indirectly, any information in possession of the Department which might assist persons guilty or suspected of criminal acts to escape detection, arrest, prosecution, or punishment, or which may enable them to dispose of or to secret evidence of unlawful activity or money, merchandise, or other property unlawfully obtained.
(b) Compromising Criminal Cases
Employees shall not interfere with or interrupt any investigatory or legal process, nor without authorization discuss the content of any on-going investigation other than as may be required in the performance of their official duties.”

According to OPS 18—1, the purpose of the OPS rules is to maintain “the security and confidentiality of intelligence and investigative information.” According to OPS 18—2, the policy of the State Police is to adopt procedures to “prevent the unauthorized disclosure of intelligence or investigative information in order to preserve the integrity of the investigative process, to promote adherence to the principles of due process, and to insure the safety of its officers.” Clearly, Robb’s conduct violated these policies.

Section 18—3 specifically prohibits the dissemination of information “in the possession of the Department.” Zone 6 compiled the information through the course of its work and forwarded it to zone 10. The information dealt with allegations against an elected official and obviously was departmental business, regardless of whether it was technically classified as investigative or intelligence information and irrespective of whether a case number had been assigned or an official file opened. Upon receipt of the information, Robb, along with other officers, took the material to the State’s Attorney’s office to determine whether that office would conclude further investigation was warranted. Later, the State’s Attorney’s office informed Robb, for the benefit of the State Police, that it was forwarding information to the Attorney General’s office for an independent assessment. When Robb gave the official the State Police’s copy of the documents, he was aware the Attorney General’s office was in possession of the same documents.

To conclude Robb did not disseminate information in the possession of the State Police, and within the purview of OPS 18—3, defies logic. To hold otherwise would render much of the policies’ language meaningless or superfluous. The use of the terms “any intelligence, investigative, criminal or any other departmental record or information” demands they be given broad meaning to maintain the security and confidentiality of information received by the State Police. If information given to the State Police were not treated as confidential and could readily be given to the subject of the material, the investigative process would be severely undermined. A police officer should be aware giving documents relating to the allegations against an elected official, which had also been given to the State’s Attorney’s office and forwarded by that office to the Attorney General’s office, to the very official who was the subject of the allegations violated departmental policy. This interpretation gives meaning and effect to all of the language of the policy and accords with the principle that a court should not adopt a construction that would render language meaningless or superfluous. (See People v. Parvin (1988), 125 Ill. 2d 519, 525, 533 N.E.2d 813, 815; In re Application of Rosewell (1989), 127 Ill. 2d 404, 409-10, 537 N.E.2d 762, 765.) Neither should the Merit Board.

Based on this analysis, it equally is necessary to conclude Robb violated the code of ethics, which states, in pertinent part: “Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in performance of my duty.” Further, it is logical to conclude Robb violated ROC-1, paragraph 1—6, unbecoming conduct, which states:

“Officers shall conduct themselves on and off duty in such a manner as to reflect favorably on the Department. Officers will not engage in conduct which discredits the integrity of the Department or its employees, or which impairs the operations of the Department. Such actions shall constitute conduct unbecoming an officer.”

To give such a limited reading to the rules and policies of the State Police as did the hearing officer is more than unwise; it defies all reason. Our interpretation gives meaning to all the language of the State Police’s rules and policies. The decisions of the hearing officer and of the Merit Board were against the manifest weight of the evidence. Therefore, we affirm the circuit court’s ruling.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    A.Y. McDonald MANUFACTURING COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0255
    Opinion filed February 13, 1992.

      John T. Pratt, of Pratt & Pratt, P.C., of Bloomington, for appellant.
    Jeffrey Alan Ryva, of Husch & Eppenberger, of Peoria, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On October 13, 1987, plaintiff A.Y. McDonald Manufacturing Company brought suit in the circuit court of McLean County pursuant to the Mechanics Liens Act (Act) (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.) seeking to foreclose a mechanic’s lien against property owned by defendant State Farm Mutual Automobile Insurance Company (State Farm). Also named as defendants were the general contractor and various subcontractors involved in a contract for the improvement of real estate belonging to State Farm. Plaintiff filed a motion for a summary judgment determining it had a valid lien against State Farm. Plaintiff did not request a determination as to the amount of the lien. Defendants filed motions requesting a summary judgment against plaintiff in bar of action. After a hearing, the court entered an order on March 8, 1991, denying plaintiff’s motion and entering judgment in bar of action against plaintiff and in favor of all defendants.

The circuit court concluded that plaintiff’s claim for lien was invalid because the notice which it had given State Farm pursuant to section 24 of the Act (Ill. Rev. Stat. 1989, ch. 82, par. 24) was inadequate for failure to name the party (subcontractor) with which plaintiff had contracted. Plaintiff has appealed maintaining the court erred in ruling its notice was insufficient in form. Plaintiff also disputes the other grounds which defendants maintain support the summary judgment for them. These claims are that (1) the service of the foregoing notice was insuffident and untimely; (2) the Act does not provide lien rights to a third-tier subcontractor; and (3) any lien plaintiff might otherwise have was defeated because nothing was due to the subcontractor with whom it had contracted. We agree with plaintiff and reverse and remand with directions to enter a summary judgment determining that plaintiff has a valid lien against the premises involved and to proceed with the case from that point.

Summary judgment shall be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) This is an appropriate case for entry of a summary judgment as the issues concern conclusions of law arising from undisputed facts which we now set forth.

State Farm entered into a contract with defendant Mellon-Stuart Company (general contractor) for construction of major improvements on State Farm’s property in Bloomington, Illinois. The general contractor entered into a subcontract with defendant Natkin and Company, the first subcontractor (Natkin). Natkin then entered into a contract with defendant Pioneer Sheet Metal, the second subcontractor (Pioneer). Pioneer then entered into a contract with plaintiff, the third subcontractor, for plumbing materials and supplies for use on State Farm’s project.

Between July 7, 1986, and February 4, 1987, plaintiff supplied plumbing materials which were incorporated into improvements on State Farm’s property. On February 5, 1987, Natkin terminated its contract with Pioneer, allegedly due to the latter’s breach of its subcontract. On February 19, 1987, plaintiff recorded its statement of claim for lien as required by section 28 of the Act (Ill. Rev. Stat. 1989, ch. 82, par. 28). It then sent a copy of that document to State Farm by regular mail. In pertinent part, that document stated:

“[McDonald] *** claims a mechanic’s lien for (1) materials in and about the improvement of the following described real estate ***. Which said real estate at the time of making of the contract hereinafter mentioned was, and now is, owned by State Farm Mutual Automobile Insurance Company. That on the 7th day of May, A.D. 1986, claimant and said owner and its agents entered into contract which was (2) not in writing, wherein it was provided that claimant should (3) provide materials and supplies in the construction of improvements and structures on the above-described premises on an open account on said above described real estate, and that said owner or its agent should pay claimant therefor the sum of [$38,642.32] ***.”

State Farm acknowledged receipt of this document.

Plaintiffs first two contentions concern the question of whether, by sending the foregoing document to State Farm, it complied with the requirements of section 24 of the Act, which provides as follows:

“Sub-contractors, or party furnishing labor or materials *** shall *** cause a written notice of his or her claim and the amount due or to become due thereunder, to be sent by registered or certified mail, with return receipt requested, and delivery limited to addressee only, to or personally served on the owner of record or his agent or architect ***. ***
The form of such notice may be as follows: To (name of owner): You are hereby notified that I have been employed by (the name of contractor) to (state here what was the contract or what was done, or to be done, or what the claim is for) under his or her contract with you, on your property at (here give substantial description of the property) and that there was due to me, or is to become due (as the case may be) therefor, the sum of $.....” Ill. Rev. Stat. 1989, ch. 82, par. 24.

The circuit court’s conclusion that the foregoing notice was invalid for failure to name the contractor with whom the plaintiff had contracted was based in part upon the decision in LaCrosse Lumber Co. v. Grace Methodist Episcopal Church (1913), 180 Ill. App. 584. That case involved a subcontractor’s notice to the owner of a claim for lien under statutory language substantially the same as that in the current section 24 of the Act. (See Ill. Rev. Stat. 1909, ch. 82, par. 38.) In holding that a notice which failed to name the contractor was invalid, that court stated that the name of the contractor was “a very material” part of the requirements of notice to owners. LaCrosse, 180 Ill. App. at 590.

Plaintiff argues the statutory requirements of section 24 are that notice (1) be in writing, (2) contain the name of the claimant, (3) specify the amount due, and (4) be delivered to the owner of record — all elements with which its notice complied. (See Ill. Rev. Stat. 1989, ch. 82, par. 24.) Defendants implicitly acknowledge that as LaCrosse is an appellate opinion issued prior to 1935, it is not authoritative precedent. See Hughes v. Medendorp (1938), 294 Ill. App. 424, 427-28, 13 N.E.2d 1015, 1017; United Mine Workers of America Union Hospital v. United Mine Workers of America District No. 50 (1972), 52 Ill. 2d 496, 499, 288 N.E.2d 455, 457.

Defendants assert Hill Behan Lumber Co. v. Irving Federal Savings & Loan Association (1984), 121 Ill. App. 3d 511, 459 N.E.2d 1066, rejuvenates LaCrosse as authoritative precedent. While Hill Behan cites to the pages in LaCrosse addressing omission of the contractor’s name, the specific defects leading to failure of the section 24 notice in that case are not set forth. Therefore, Hill Behan does not expressly adopt the LaCrosse interpretation of the content of notice required by section 24.

Defendants argue the legislature may have intended that a claimant’s contracting party be named in order to inform owners of where claimants “fit” in the overall construction scheme, particularly where different lines of subcontractors are responsible for different portions of the project. This would afford the owner a means of identifying the area of the project from which the claim arises.

However, we note that section 24 notice is not the only basis under the statutory scheme for advising the property owner of where all subcontractors fit within the construction project. Section 5 of the Act imposes an affirmative duty on the property owner, prior to payment of any monies due the contractor, to “require” the contractor to submit a verified written statement of sums due “all parties furnishing materials and labor.” (Ill. Rev. Stat. 1989, ch. 82, par. 5.) State Farm admits that it failed to obtain this section 5 statement, which would have independently apprised it of plaintiff’s “fit” in the construction project without resort to the section 24 notice, which is required only when a claim for hen arises. Any disadvantage occasioned by omission of the contracting party’s name in the lien notice was reinforced by State Farm’s failure of its statutory duty to obtain the statement prior to payment to its general contractor.

Notably, section 24 makes no express provision requiring that the name of the contractor with whom the claimant subcontractor dealt be set forth in the notice. Rather, the legislature opted to state that the notice “may” be in a form which names that contractor. When the General Assembly intends to impose a mandatory duty, the word “must” is often used. Although the word “shall” sometimes is interpreted to be mandatory (see Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 268, 356 N.E.2d 59, 62; Cooper v. Hinrichs (1957), 10 Ill. 2d 269, 272, 140 N.E.2d 293, 295), the word “may” means “must” or “shall” only in cases where the public interest and rights are concerned and where the public or third persons have a claim de jure that the power should be exercised, or where it is necessary to so construe it to carry out the intention of the legislature. (See Boddiker v. McPartlin (1942), 379 Ill. 567, 578, 41 N.E.2d 756, 761 (and case cited therein); Foutch v. Zempel (1928), 332 Ill. 192, 199, 163 N.E. 546, 549-50 (and cases cited therein); In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298, 478 N.E .2d 326, 329.) Particularly in view of the protection given owners by section 5 of the Act, we see no reason to construe the provisions of section 24 in regard to the form of notice such that “may” be used as being mandatory.

Case law has required strict construction of the Act but generally this has applied to substantive provisions of the Act. (See, e.g., Maikov Lumber Co. v. Serafine Builders, Inc. (1971), 1 Ill. App. 3d 543, 273 N.E.2d 654.) Section 39 of the Act provides that “[t]his Act is and shall be liberally construed as a remedial act.” (Ill. Rev. Stat. 1989, ch. 82, par. 39.) Accordingly, we hold the notice given by plaintiff to State Farm was not invalid for failing to name the party with which plaintiff had contracted.

State Farm argues that even if the content of the notice is sufficient, it fails to comport with the timing requirements of section 28 of the Act (Ill. Rev. Stat. 1989, ch. 82, par. 28) in that notice did not precede recording of the lien by 10 days. Under this analysis, since plaintiff both recorded its hen and sent a copy thereof on the same date, notice was insufficient because it did not precede recording by 10 days. This argument is without merit. Section 28 of the Act addresses the requirements for the recording and enforcement of liens and not notice. (Ill.Rev. Stat. 1989, ch. 82, par. 28.) It does not require that section 24 notice predate recording by 10 days but rather that a claim for lien or a complaint to enforce a lien may be filed 10 days after notice if payment has not been made. Plaintiff filed its lien and sent notice to State Farm on February 19, 1987. It then filed its complaint to enforce its lien on October 13, 1987, more than 10 days after notice to State Farm. Therefore, plaintiff has complied with section 28 of the Act. Section 24 does not impose any timing requirements for the giving of notice vis-a-vis recording of the lien.

State Farm next argues that service of the notice by regular mail does not comport with the statutory requirement of delivery by certified or registered mail, return receipt requested, limited to the addressee only. Citing Watson v. Auburn Iron Works, Inc. (1974), 23 Ill. App. 3d 265, 318 N.E.2d 508, the trial court specifically found that regular mailing would satisfy the statutory requirements of notice where, as here, actual receipt of notice is acknowledged. The Watson court found that failure to limit delivery to the addressee only did not result in a lack of notification and did not invalidate the claim of lien. (Watson, 23 Ill. App. 3d at 272-73, 318 N.E.2d at 514.) Similarly, in Matthews Roofing Co. v. Community Bank & Trust Co. (1990), 194 Ill. App. 3d 200, 550 N.E.2d 1189, a notice of claim addressed to plaintiff’s attorney was found effective even though the return receipt was signed by someone other than the addressee.

“Illinois courts have interpreted the strict requirements of notice by examining how effectively a party did in fact notify the other side rather than simply basing rights solely on whether every phase of the statute was followed in exact detail.” Matthews, 194 Ill. App. 3d at 205, 550 N.E.2d at 1193.

In the case at bar statutory notice was delivered to State Farm by regular mail and State Farm has acknowledged actual receipt. The circuit court correctly ruled that the manner of service, in view of defendants’ acknowledged receipt of notice, satisfied the requirements of section 24 of the Act.

State Farm next argues that even if the notice provisions of section 24 have been met, the Act does not extend lien rights to third-tier subcontractors like plaintiff. State Farm did not raise this issue before the trial court, but since State Farm stands in the position of appellee, and the factual basis for the contention was before the circuit court, it is properly raised on appeal. See Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285.

State Farm contends that although section 21 of the Act extends lien rights to first-tier subcontractors who work “for the contractor” (Ill. Rev. Stat. 1989, ch. 82, par. 21) and section 22 extends those rights to second-tier subcontractors (Ill. Rev. Stat. 1989, ch. 82, par. 22), there is no provision enlarging the scope of persons entitled to the statutory protection to those of more remote degree. State Farm cites the rule that since the Act is in derogation of the common law, its terms must be strictly construed. (North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 129 N.E. 273.) State Farm also cites Schaar & Koch v. Knickerbocker Ice Co. (1894), 149 Ill. 441, 37 N.E. 54, wherein our supreme court determined that lien rights were not available to second-tier subcontractors under the then-existing statutory scheme. However, the 1903 version of the Act superseded all prior enactments (see Ill. Ann. Stat., ch. 82, par. 24 (Jones & Addington, 2d Supp. 1903)); laws affecting mechanic’s liens in effect in 1894 (Starr & Curtis’ Ann. Stat., Supp. 1892, ch. 82, par. 29) (which State Farm did not cite) have no application to current statutory requirements.

Section 21 of the Act provides in pertinent part as follows:

“Subject to the provisions of section 5, every mechanic, worker or other person who [1] shall furnish any materials, apparatus, machinery or fixtures, or [2] furnish or perform services or labor for the contractor, or [3] shall furnish any material to be employed in the process of construction as a means for assisting in the erection of the building or improvement in what is commonly termed form or form work where concrete, cement or like material is used in whole or in part, shall be known under this act as a sub-contractor, and shall have a lien for the value thereof ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 82, par. 21.

State Farm has misconstrued the provisions of section 21 of the Act and failed to distinguish the clause modified by the language “for the contractor” from the preceding clause. Section 21 of the Act provides for three distinct categories of potential lien claimants, each of whom is designated a “sub-contractor”: (1) persons furnishing material or machinery, (2) persons furnishing services or labor for the contractor, and (3) suppliers of materials used in concrete form work.

As plaintiff has furnished plumbing materials incorporated in the construction project on State Farm’s property, it is deemed a subcontractor under the provisions of section 21. The scope of persons supplying materials and entitled to the statutory protection is not expressly limited to those in direct contractual relation with the original contractor so as to exclude second-tier subcontractors supplying materials or those, like plaintiff, in the third or still more remote degree.

Other sections of the Act support this construction. As we have indicated section 5 of the Act requires the owner to obtain from the contractor a written statement of “all parties furnishing materials and labor.” (Ill. Rev. Stat. 1989, ch. 82, par. 5.) Section 22 of the Act extends lien rights to second-tier subcontractors who furnish labor or materials when the contractor has subcontracted a portion of his contract to a subcontractor. (Ill. Rev. Stat. 1989, ch. 82, par. 22.) The provision of section 21 of the Act which confers a lien upon those furnishing material for “form work” makes no distinction between furnishing those materials to a general contractor or a subcontractor of any tier. In construing the Act as a whole there appears no legal reason for arbitrary line drawing so as to cut off subcontractors like plaintiff who furnish materials used to improve realty based on degrees of remoteness from privity with the contractor. Therefore, we hold that third-tier subcontractors, such as plaintiff, if they comply with the other provisions of the Act, are afforded lien rights under section 21.

State Farm last argues that even if plaintiff is within the scope of subcontractors entitled to lien rights, its recovery is limited to the amount owed by Natkin to Pioneer, its immediately preceding subcontractor. State Farm claims that since Pioneer defaulted and is owed nothing, plaintiff has no valid mechanic’s lien. Plaintiff argues that its lien is not limited to sums due Pioneer, and, in any event, the question of whether Pioneer is owed anything under its contract with Natkin is still at issue.

In support of its view State Farm cites Koenig v. McCarthy Construction Co. (1951), 344 Ill. App. 93, 100 N.E.2d 338, wherein the lien of a subcontractor was limited to sums due the defaulting subcontractor with whom it had contracted, and Gunther v. O’Brien Brothers Construction Co. (1938), 369 Ill. 362, 16 N.E.2d 890, wherein the subcontractor’s lien was limited to sums due the defaulting contractor at the time of default. In both cases, a lien was imposed against public funds under a contract for public improvements pursuant to section 23 of the Act. As other sections of the Act do not deal with liens against public funds, but rather liens against private property, there is an absence of relationship between section 23 and the rest of the Act. Alexander Lumber Co. v. Coberg (1934), 356 Ill. 49, 54,190 N.E. 99,101.

Much more in point is the decision in Brady Brick & Supply Co. v. Lotito (1976), 43 Ill. App. 3d 69, 356 N.E.2d 1126. There, the circuit court permitted a subcontractor furnishing material to a general contractor to foreclose a mechanic’s lien against the property being improved under a contract with the owner. The beneficial owners of the property, which was subject to a trust, and the general contractor got into a dispute and the general contractor refused to do further work and failed to make payments to the subcontractor seeking the lien. On appeal, the owners argued that the duty to pay the claimant was on the general contractor who had contracted with the claimant. In affirming, the appellate court responded to that argument by noting that the owners ignored “the fact this is a mechanics’ lien case” and stated:

“It was precisely for this type of situation that the Mechanics’ Liens Act was enacted, to protect materialmen, who in good faith furnish materials for the construction of a building and to allow the materialman to collect his bill from the owner via a mechanic’s lien foreclosure suit, when the contractor, subcontractor, and or owner fail to pay the materialman.” Brady, 43 Ill. App. 3d at 72, 356 N.E.2d at 1129-30.

The Brady court further noted that an owner does have statutory protection that generally prevents the owner from being required by the Act to pay out to the general contractor and subcontractors more than the contract price. There, the owners were being required to pay out a total of $26,750 when the contract price with the general contractor was only $21,000. There, as here, however, the owners had made payments to the general contractor in violation of the provisions of section 5 by failing to require from the contractor the verified statement of parties furnishing materials and labor, prior to making those payments. The court explained that “if the owner makes any payments to the original contractor which are in violation of the rights of any subcontractor, then as to such person, such payments are wrongfully made, and the owner is not entitled, in his controversy with that person, to any credit for those payments.” Brady, 43 Ill. App. 3d at 73, 356 N.E.2d at 1130.

State Farm maintains Brady is inapplicable here because it is not claiming plaintiff’s claim is limited by the amount to be paid under the general contract. Rather, State Farm asserts, it is contending plaintiff’s claim is limited by the amount due Pioneer from Natkin after Pioneer had defaulted. We do not agree with this argument. By the statement of its argument, State Farm acknowledges it is not relying upon the amount it agreed to pay its general contractor to limit its obligation, if any, to plaintiff. No other ceiling is placed by the Act upon an amount an owner may have to pay to unpaid subcontractors. The major thrust of the Brady decision was that the claimant there was required to be paid on its claim when the contractor in the tier above it, with which it had contracted, refused to pay. The court then went on to state that the owners would still have been protected against being required to make payment above the contract price had it complied with section 5 of the Act. Here, as under Brady, plaintiff only need show that it has furnished materials pursuant to contract which were used in the building of the improvement and that the subcontractor for which it furnished the material had failed and refused to pay.

As we have indicated, we reverse the judgment of the circuit court granting judgment to defendants as to plaintiff’s request for foreclosure of a lien and denying plaintiff's motion for summary judgment against State Farm. We remand the cause to the circuit court of McLean County with directions to enter a summary judgment for plaintiff against State Farm decreeing the existence of a mechanic’s lien against the premises alleged. The circuit court shall then proceed to determine the amount of the lien and to proceed further as may be appropriate.

Reversed and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


text:
      In re TAX DEED PETITION OF OPAL THOMAS (Citizens Federal Bank, as successor to American Savings Bank, as successor to Champaign Loan and Building Association, Petitioner-Appellant, v. Opal Thomas, Respondent-Appellee (Cle Easley, Defendant)).
    Fourth District
    No. 4 — 91—0559
    Opinion filed February 20, 1992.
    James E. Trausch, of Jaros, Tittle & O’Toole, Ltd., of Chicago, for appellant.
    David C. Thies and Alan R. Singleton, both of Webber & Thies, P.C., of Urbana, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Champaign County, denying Citizens Federal Bank’s motion under section 2—1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401), seeking to set aside an order granting respondent Opal Thomas’ application for a tax deed. The trial court held relief under section 2—1401 of the Code required the presence of fraud and found insufficient evidence of fraud “to allow the vacating of the tax deed.” We reverse.

The subject real estate was encumbered by a mortgage given to American Savings Bank and recorded September 21, 1979. Petitioner is the successor of American Savings Bank. The real estate was sold for taxes to a tax-sale buyer named Noble, and the initial redemption date was October 20, 1989. Respondent is an assignee from Noble. As the redemption deadline approached, respondent arranged for a search of records for the purpose of finding title owners and parties who had interest in the title. By mistake, respondent determined that the petitioner’s mortgage had been released, and no notice of the redemption deadline or the application for a deed was given to petitioner. An order was entered allowing the application for the tax deed. Subsequently, the section 2—1401 motion was filed.

The sale of real estate for taxes and the obtaining of a tax deed consists of a two-step process. First, there is a tax sale as provided by sections 224, 229, 230, and 232 of the Revenue Act of 1939 (Act) (Ill. Rev. Stat. 1989, ch. 120, pars. 705, 710, 711, 713). Under section 253 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 734), redemptions are allowed for a period of two years from the date of the tax sale. Section 263 of the Act provides that a tax deed may be obtained after the period of redemption has expired but, prior to the issuance of that deed, notice must be given “not less than 3 months nor more than 5 months prior to the expiration of the period of redemption *** to the owners, occupants and parties interested in the premises.” (Ill. Rev. Stat. 1989, ch. 120, par. 744.) Section 266 of the Act (Ill. Rev. Stat. 1989, ch. 120, par. 747) provides for the petition, notice, and issuance of the deed.

Our supreme court has held that a tax sale proceeding is in rem and the court acquires jurisdiction when the county collector makes application for judgment and order of sale and this jurisdiction is retained, not only to effect the sale, but also to order issuance of the tax deeds. Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159.165. 449 N.E.2d 812. 814.

Regardless of the jurisdiction over the real estate, the notice requirements to “parties interested” to be given at the time of the tax-sale procedures are not as stringent as those provided for the required notice to be given near the end of the redemption period. Mortgagees are “parties interested.” (Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 459 N.E.2d 966.) Rosewell holds that actual notice to a mortgagee of the tax sale is not required to satisfy due process. (Rosewell, 99 Ill. 2d at 412-14, 459 N.E.2d at 968-69.) However, that determination is based in part upon the factors that mortgagees can avoid forfeiture by redeeming (Rosewell, 99 Ill. 2d at 413, 459 N.E.2d at 969), and notice of the expiration of the redemption period is given the mortgagee (Rosewell, 99 Ill. 2d at 416, 459 N.E.2d at 970).

Our supreme court has stated that “we adhere to our previous holdings that section 72 [(now section 2 —1401)] relief in tax-deed cases is limited to those cases where fraud is proved or the judgment is void.” (In re Application of County Treasurer (1982), 92 Ill. 2d 400, 408, 442 N.E.2d 216, 220 (hereinafter Congua).) That decision specifically held the error by the deputy sheriff in service of notice and reliance on the sheriff’s erroneous return did not establish fraud in the section 72 tax fraud proceedings. (Congua, 92 Ill. 2d at 408-09, 442 N.E.2d at 220.) However, the court further stated the following: “Nor do we believe that a policy of favoring the validity of tax deeds in a collateral proceeding in any way undermines the trial court’s obligation to insist upon strict compliance with the statutory requirements.” (Congua, 92 Ill. 2d at 406, 442 N.E.2d at 219.) The mortgagee in the application in the Congua case did receive written notice of the redemption deadline by registered mail.

We conclude that the facts in the present case call for either a finding of lack of due process or a finding that fraud existed as a matter of law. It is obvious that one seeking the issuance of a tax deed must provide for the title search. If an adequate search and a careful review of that search had taken place in the present case, the petitioner’s mortgage and the name of the petitioner would have been discovered. In other words, absent negligence or actual fraud, the petitioner would have been given notice of the forthcoming termination of the redemption period.

We hold that under these facts fraud should be deemed to exist as a matter of law. This case is not like Congua, where a sheriff’s deputy made the mistake. That mistake was outside the control of the party seeking the tax deed. In this case, the mistake was made by the respondent or her agent. If we are going to allow one applying for a tax deed to claim mistake in checking titles as justification for failing to give statutory notice, we are going to invite actual fraud. The burden on tax-deed purchasers to give notice to parties interested in the premises is correctly placed on those who will benefit from the tax deed. They should not be able to avoid statutory requirements by relying on their own mistakes.

The trial court’s decision is reversed and the cause remanded, so that petitioner shall now have the opportunity to avoid the forfeiture.

Reversed and remanded with directions.

McCULLOUGH and COOK, JJ., concur.