text:
    GILBERT SERVIO, Plaintiff-Appellant, v. PAUL ROBERTS AUTO SALES, INC., et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1—89—0073, 1—89—1875 cons.
    Opinion filed March 25, 1991.

      Llwellyn L. Greene-Thapedi, of Chicago, for appellant.
    Law Offices of Michael Brown, Ltd., of Chicago (Mark S. Schwartz, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Gilbert Servio, appeals from orders of the circuit court of Cook County in an action against Paul Roberts Auto Sales, Inc. (Paul Roberts), and Chicago Acceptance Corporation (CAC) for damages arising from the sale, repossession and resale of a used automobile. For the following reasons, we dismiss the appeal as to all matters, except for an order granting defendants attorney fees, which we affirm.

The facts necessary to the disposition of this appeal are as follows.

On May 20, 1980, plaintiff purchased a used automobile from defendant Paul Roberts under the terms of an installment sales contract. This purchase was financed by defendant CAC; the sale was later assigned by Paul Roberts to CAC. Plaintiff’s account subsequently fell into arrears, at which time CAC repossessed the automobile, resold it to the Illinois Motor Sales Company and sent a notice of a deficiency balance to plaintiff.

Plaintiff initially filed suit against defendants in 1982. Plaintiff subsequently amended his complaint on October 13, 1982, alleging in five counts that: (I) CAC violated the Federal Truth in Lending Act (15 U.S.C. §1610 (1988)) and Regulation Z (12 C.F.R. §226 (1990)); (II) CAC violated Illinois’ version of the Uniform Commercial Code (see Ill. Rev. Stat. 1987, ch. 26, par. 9—504); (III) defendants violated the Motor Vehicle Retail Installment Sales Act (MVRISA) (Ill. Rev. Stat. 1987, ch. 121½, pars. 562.9, 565(10), 569, 569.01); (IV) defendants violated the Consumer Fraud and Deceptive Business Practices Act (CFDBPA) (Ill. Rev. Stat. 1987, ch. 12I½, par. 262 et seq.); and (V) CAC converted plaintiff’s property by means of an invalid wage assignment.

The trial court granted defendants’ motion to strike count I of the complaint as barred by the applicable statute of limitations on January 12, 1983. The trial court also entered summary judgment in favor of defendants as to count III of the complaint, which sought a private remedy for alleged violations of the MVRISA, on May 27,1986.

The trial of the case began on September 9, 1986, but was then continued on numerous occasions and was dismissed for want of prosecution (DWP) on January 26, 1987. The trial court granted plaintiff’s motion to vacate the DWP on May 15, 1987, but reserved ruling on defendants’ previously filed motion for witness and attorney fees. Plaintiff’s motion for mistrial and reassignment of the case, predicated on the fact that the court in which the case was to be tried had no regularly sitting judge, was granted on February 2, 1988, with the proviso that defendants be allowed to set off witness and attorney fees against any judgment exceeding $1,000.

The case was then assigned to Judge Carlson for trial. On July 18, 1988, following pretrial motions and opening statements, the court declared a mistrial because it was likely that plaintiff’s attorney would be a witness for plaintiff, thus disqualifying the attorney under Disciplinary Rules 5—101 and 5—102 of the Illinois Code of Professional Responsibility (107 Ill. 2d Rules 5—101, 5—102 (repealed and superseded by new rules effective August 1, 1990)). The court reversed this ruling on October 24, 1988, due to the hardship that would be placed on plaintiff by the lack of attorneys willing to take the case.

The bench trial then commenced. Following the close of plaintiff’s case, the court entered a directed finding for defendants on count V of the complaint and as to all of the allegations in count IV except for the claim alleging the resale of the automobile violated section 2G of the CFDBPA. At the close of the trial, the court found for plaintiff on count II of the complaint, awarding $1,037.88 in damages. The court found in favor of the defendants on all other counts of the complaint. This judgment was entered on December 16, 1988.

Plaintiff filed a notice of appeal from these orders on January 6, 1989. Defendants then filed three motions in the trial court on January 13, 1989: (1) a motion for reduction in judgment as to count II, pursuant to the trial court’s previous order concerning setoff of witness and attorney fees; (2) a petition for attorney fees pursuant to section 2—611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611, now preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137)); and (3) a motion for attorney fees pursuant to section 10a(c) of the CFDBPA (Ill. Rev. Stat. 1987, ch. 121½, par. 270(c)). On May 30, 1989, the trial court granted the motion for reduction in judgment, denied the section 2—611 petition and granted the Section 10a(c) motion for attorney fees, but continued that motion until June 14, 1989, when an order to award defendants $450.50 in attorney fees was entered. On July 12, 1989, plaintiff filed a second notice of appeal to this court.

Initially, we note that plaintiff’s brief, which was filed on November 13, 1989, contains no jurisdictional statement. The defendants’ brief, filed on February 9, 1990, raises the issue of whether this court has jurisdiction to consider this appeal. In his reply brief, plaintiff addressed the issue of this court’s jurisdiction and cited authority in support of a finding of jurisdiction. However, plaintiff never sought leave of this court to file a jurisdictional statement.

The question of jurisdiction of the appellate court must be determined prior to deciding the merits of an appeal. (Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800, 506 N.E.2d 381, 383.) The purpose of the jurisdictional statement is to set forth the jurisdictional basis for the appeal. Where our jurisdiction is far from clear, failure to file a jurisdictional statement may be grounds for dismissal of an appeal. Dillard v. Kean (1989), 183 Ill. App. 3d 28, 538 N.E.2d 914; 107 Ill. 2d R. 341(e)(4).

In this case, the basis of our jurisdiction is far from clear. Unlike Dillard, however, plaintiff in this case has cited authority in support of a finding of jurisdiction. Consequently, in consideration of fairness to the parties, we will proceed to determine whether this court has jurisdiction to hear this appeal.

On appeal, defendant maintains that neither of plaintiff’s notices of appeal was timely filed. The supreme court rules govern the timeliness of plaintiff’s appeal. Rule 303 provides, in relevant part, as follows:

“(a) Time; Filing; Transmission of Copy.
(1) Except as provided in paragraph (b) below, the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.
(2) When a timely post-trial motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending post-trial motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-trial motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the post-trial motion, as provided in subparagraph (a)(1) of this rule.” (107 Ill. 2d R. 303(a).)

In short, a party must wait until the trial court rules on any pending post-trial motions before bringing an appeal. A notice of appeal that a party files before the circuit court has disposed of a timely post-trial motion has no effect. (In re Marriage of Uphoff (1983), 99 Ill. 2d 90, 95, 457 N.E.2d 426, 428.) It makes no difference whether the post-trial motion is filed before or after the notice of appeal. Chand v. Schlimme (1990), 138 Ill. 2d 469, 563 N.E.2d 441; 107 Ill. 2d R. 303(a)(2).

Neither party in this case disputes that the trial court rendered a final judgment .on December 16, 1988. However, there does appear to be a dispute over the scope of that judgment as it related to attorney fees under the CFDBPA (see Ill. Rev. Stat. 1987, ch. 121½, par. 270a(c)).

The half-sheet is part of the official record in the municipal department of the circuit court of Cook County. (Cir. Ct. General Order No. 6.5; Sampson v. Ambrose (1984), 123 Ill. App. 3d 742, 744, 463 N.E.2d 783, 785.) Absent draft orders indicating otherwise, the half-sheet entries are the official recordation of orders entered. (City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 525 N.E.2d 915.) Nevertheless, a circuit court order must be interpreted in its entirety, having reference to other parts of the record, including the pleadings and issues. Gagliano v. 711 Sheridan Venture (1986), 144 Ill. App. 3d 854, 858, 494 N.E.2d 1182, 1186; Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 789, 424 N.E.2d 911, 917.

In the present case, the half-sheet indicates an entry dated December 16, 1988, which reads:

“Trial by court finding issue versus defendant:
Chicago Acceptance Corp.
Damages_dollars ($1037.88)
Judgment on finding versus defendant Chicago Acceptance Corp. _ dollars ($1037.88) & Costs on Count II all other Counts Court finds for Def’ts.”

The record on appeal does not contain any draft orders. The recordation of judgment, therefore, is silent on the issue of attorney fees. The transcript of proceedings, however, contains two passages relating to attorney fees. In the first passage, which follows the court’s reasons for finding in favor of defendants on count IV (the CFDBPA claim), the court states that “[tjhere will be no judgment to award attorneys’ fees concerning Count IV.” The second passage is a colloquy which reads as follows:

“MR. SCHWARTZ [Defense counsel]: We would likewise reserve the right to file appropriate motion within 30 days, pertaining to an award of attorneys’ fees or otherwise.
THE COURT: Since I feel it might be safe to say it would not be unreasonable to conclude that motions will be filed [,] [s]hould I set a status date at this time?
MS. GREENE-THADEPI [Plaintiff’s counsel]: I would rather notice it up, your Honor.
THE COURT: All right, we will do it by notice so long as it’s within the 30 days that there is filing, we have no problem.”

The record thus indicates that the court both denied attorney fees which plaintiff sought on count IV or entered no judgment on the issue as to either party and also contemplated that defendants’ request for attorney fees, if such request should be made, would be made by motion within 30 days of the judgment.

This exposition of the record is necessary in order to characterize the motions and orders which followed the judgment of December 16, 1988. Plaintiff filed his first notice of appeal on January 6, 1989. Defendant filed three motions with the trial court on January 13, 1989. The first question presented to this court, then, is which of these motions were “post-trial motions” under Rule 303.

Section 2—1203 of the Civil Practice Law, which allows the filing of post-trial motions (Ill. Rev. Stat. 1985, ch. 110, par. 2—1203), states in relevant part:

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment *** file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”

For a motion to qualify as a “post-trial motion,” one or more of the types of relief specified in section 2—1203 must be specifically requested; any “other relief” as specified in section 2—1203 must be similar in nature to the other forms of relief enumerated in the section. Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 563 N.E.2d 459; Fultz v. Haugan (1971), 49 Ill. 2d 131, 305 N.E.2d 873, 876.

Defendants’ motion for reduction in judgment as to count II is clearly the sort of “post-trial motion” contemplated by section 2—1203, for a reduction in judgment is by necessity a modification of that judgment.

Defendants’ petition for attorney fees pursuant to section 2—611 is not a “post-trial motion” for jurisdictional purposes, even if it could be construed as seeking to modify the judgment, because it is not “directed against the judgment” within the meaning of Rule 303(a). The question of whether section 2—611 sanctions were appropriate required an independent determination, entirely distinct from judgment previously entered. (Marsh, 138 Ill. 2d at 462-64, 563 N.E.2d at 462.) Nevertheless, following the 1986 amendment of section 2—611, a party cannot appeal an otherwise final judgment where a 2—611 claim has yet to be resolved, unless the court makes a finding pursuant to Rule 304(a) (107 Ill. 2d R. 304(a)) that there is no just reason to delay enforcement or appeal. Marsh, 138 Ill. 2d at 468, 563 N.E.2d at 464.

Defendants’ motion for attorney fees pursuant to section 10a(c) of the CFDBPA is also not a “post-trial motion” “directed against the judgment” in this case, for the same reasons that a pre1986 section 2—611 petition was not a “post-trial motion.” The determination of whether a prevailing party is entitled to attorney fees and, if so, the calculation of those fees, are determinations independent of the underlying judgment. Therefore, a motion pursuant to section 10a(c) of the CFDBPA did not need to be resolved in this case before the last “post-trial motion” was disposed of for the purposes of Rule 303.

Nevertheless, Marsh suggests that we need to examine whether a Rule 304(a) finding was required while the section 10a(c) motion remained unresolved. Supreme Court Rule 304(a), which governs the timing of appeals from final orders not disposing of all matters presented to the court, states:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (107 Ill. 2d R. 304(a).)

Under Rule 304(a), if a trial court’s order disposes of fewer than all of the claims in an action, the court must make an express written finding that there is no just reason for delaying enforcement or appeal. Otherwise, a final order disposing of fewer than all of the claims is not appealable and does not become so until all of the claims have been resolved. Marsh, 138 Ill. 2d at 464, 563 N.E.2d at 463.

Our courts have recognized a distinction between a claim for fees which is brought as part of a principal action and a claim made after the principal action has been decided. (Marsh, 138 Ill. 2d at 462-63, 563 N.E.2d at 462 (distinguishing Benet Realty Corp., Inc. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227; Hernandez v. Fahner (1985), 135 Ill. App. 3d 372).) In the latter situation, a Rule 304(a) finding is not required.

For example, in Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372, the court held that when a section 2—611 motion is filed after disposition of the main claim, rather than as part of the responsive pleading, the pendency of the section 2 — 611 claim will not prevent the order disposing of the main claim from being final and appealable without a Rule 304(a) finding. (See Hise, 116 Ill. App. 3d at 684, 452 N.E.2d at 375.) The Hise court compared the situation to one in which a defendant has a claim against a plaintiff which he may bring either as a counterclaim in the plaintiff’s action or as a separate action. If the defendant raises his claim as a counterclaim, it must be resolved or a Rule 304(a) finding must be entered before the order disposing of the plaintiff’s claim is appealable. In contrast, if the defendant brings his claim as a separate action, the trial court’s failure to rule on the motion will not prevent the order disposing of the original claim from being appealable without a Rule 304(a) finding. Hise, 116 Ill. App. 3d at 684-85, 452 N.E.2d at 375.

The Hise court explicitly limited its holding to post-judgment motions pursuant to section 2—611. (Hise, 116 Ill. App. 3d at 685, 452 N.E.2d at 375.) In Haskell v. Blumthal (1990), 204 Ill. App. 3d 596, 599-600, 561 N.E.2d 1315, 1317, a case involving the interpretation of section 10a(c), this court noted that:

“Andrea Saltzman, a member of the Illinois and California bars, [has] set forth a list of some 88 Illinois statutes which provide for the award of attorney fees. (Saltzman, A Brief Look at Statutory Attorneys’ Fees in Illinois, 73 Ill. B.J. 266 (1985).) Of these statutes, eight provide for an award of fees for a ‘prevailing party.’ Subsequent research has revealed that six other statutes now so provide.”

The Hise reasoning has been applied in two later cases concerning statutes other than section 2—611 which permit recovery of attorney fees. Brotherhood Mutual Insurance Co. v. Roseth (1988), 177 Ill. App. 3d 443, 532 N.E.2d 354 (seeking fees under the Insurance Code); Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 504 N.E.2d 1305 (seeking fees under section 7—123 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 7—123)).

Moreover, this court has looked to the interpretation of similar Federal statutes in interpreting the CFDBPA (Haskell, 204 Ill. App. 3d at 600-02, 561 N.E.2d at 1317-18 (analogizing to attorney fee provisions of the Employee Retirement Income Security Act at 29 U.S.C. § 1132(g)(1) (1982) and the Civil Rights Attorney’s Fees Awards Act of 1976 at 42 U.S.C. §1988 (1988) to decide who is a “prevailing party” under the CFDBPA)). The Federal courts generally interpret attorney fee claims under those statutes as collateral as not affecting the finality or appealability of the judgment in the principal action. (White v. New Hampshire Department of Employment Security (1982), 455 U.S. 445, 451-53 nn.13-14, 71 L. Ed. 2d 325, 331-32 nn.13-14, 102 S. Ct. 1162, 1166-67 nn.13-14 (interpreting 42 U.S.C. §1988 (1988)); Bittner v. Sadoff & Rudoy Industries (7th Cir. 1984), 728 F.2d 820 (interpreting 29 U.S.C. § 1132(g)(1) (1982)).) However, where the judgment sought to be appealed includes an order to pay attorney fees, but leaves the calculation of those fees for a later date, the judgment is not final for the purpose of Federal appellate jurisdiction. Szabo v. United States Marine Corp. (7th Cir. 1987), 819 F.2d 714, 717.

In this case, therefore, where the section 10a(c) motion raised claims that were collateral to the underlying action, the order of the trial court disposing of the last timely post-trial motion was appealable without a Rule 304(a) finding.

In sum, defendants filed three motions after the judgment of December 16, 1988. The motion for reduction in judgment was a “post-trial motion” within section 2 — 1203 and was “directed against the judgment” within Rule 303(a). The filing of this motion had the effect of nullifying plaintiff’s first notice of appeal. (Chand, 138 Ill. 2d at 478, 563 N.E.2d at 445.) Consequently, plaintiff was required to file a new notice of appeal within 30 days of the entry of the order which disposed of the last timely post-trial motion. See 107 Ill. 2d R. 303(a)(2).

The motion for reduction in judgment was disposed of by the circuit court on May 30, 1989. The section 2 — 611 motion was not “directed against the judgment” within Rule 303, but an appeal could not lie until the circuit court resolved it or issued a Rule 304 finding. (Marsh, 138 Ill. 2d at 468, 563 N.E.2d at 464.) The section 2—611 motion was also resolved on May 30, 1989.

The only motion not resolved as of May 30, 1989, was the motion for attorney fees pursuant to section 10a(c) of the CFDBPA, which was granted but left the determination of the amount to June 14, 1989. (See Szabo, 819 F.2d at 717.) Yet this motion did not need to be resolved because a post-judgment petition for attorney fees under section 10a(c) is collateral and does not affect the appealability of a final judgment. Therefore, plaintiff was required to file his new notice of appeal within 30 days of May 30, 1989. Plaintiff did not file his new notice of appeal until July 12, 1989, more than 30 days after May 30, 1989. Consequently, this court lacks jurisdiction over all matters in this case which were resolved on or before May 30, 1989.

Nonetheless, plaintiff’s new notice of appeal was filed within 30 days of the order awarding defendants attorney fees pursuant to section 10a(c) of the CFDBPA. Moreover, the new notice of appeal specifically asks this court to reverse the award. This court has jurisdiction to review that order. Plaintiff, however, has failed to argue the issue in his brief, thus waiving the issue on appeal. See 107 Ill. 2d R. 341(e)(7).

For the aforementioned reasons, we dismiss the appeal as to all matters except the June 14, 1989, order awarding attorney fees to defendants, which we affirm.

Appeal dismissed in part; affirmed in part.

BUCKLEY and O’CONNOR, JJ., concur.

      The automobile in question is a 1974 Mercury Comet. The trial court characterized it as “a 1974 automobile with 82,000 miles that had some grille damage, had poor brakes, testified to [as] being unsafe * * * for operation on the streets of the city.”

      The Hise court also held that a request for attorney fees pursuant to section 2— 611 is a “claim” within the meaning of Supreme Court Rule 304(a); that holding is unaffected by the subsequent 1986 amendment of section 2— 611. Marsh, 138 Ill. 2d at 468. 563 N.E.2d at 464.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    JOHN GUNIA, Plaintiff-Appellant, v. COOK COUNTY SHERIFF’S MERIT BOARD et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0215
    Opinion filed March 25, 1991.

      Kenneth N. Flaxman and Elizabeth Dale, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Frank J. Oles, and Steven B. Borkan, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

John Gunia (plaintiff) appeals from an order of the circuit court of Cook County, which affirmed the Cook County Sheriff’s Merit Board’s (the Board’s) decision to terminate him from his position as a correctional officer with the Cook County Department of Corrections (the Department). Plaintiff contends that (1) the Board lost jurisdiction over the action when it failed to act promptly on the charges against him; (2) the hearing before the Board is void because the Board acted outside statutory authority; (3) the evidence at the administrative hearing was insufficient to establish cause to terminate him; and (4) the hearing officer’s rulings on the burden of proof and the admissibility of evidence require a new hearing. We affirm.

On September 2, 1986, Richard Elrod, then sheriff of Cook County, filed a complaint against plaintiff with the Board. The complaint alleged that plaintiff had violated certain Department and Board rules and regulations regarding absences from duty and sought plaintiff’s discharge from his employment as a correctional officer with the Department. Plaintiff was suspended from his employment pending the outcome of the Board hearing.

On the first scheduled hearing date, September 26, 1986, the matter was continued to October 27, 1986, so that the sheriff could file a written response to plaintiff’s motion to dismiss the complaint and his motion to request the production of documents. On that date, the matter was continued to November 19, 1986, because the sheriff failed to comply with plaintiff’s discovery request.

Due to the absence of the sheriff’s attorney on November 19, the parties agreed to continue the matter to December 8, 1986. The sheriff filed a discovery request on December 8, and the hearing officer allowed plaintiff 10 days to respond to the request. The hearing officer set a trial date of January 12, 1987. Both parties answered ready for a hearing on January 12, 1987, but the hearing was continued apparently due to administrative reasons.

The hearing commenced on January 26, 1987, before Officer James Garbutt. On plaintiff’s request, the hearing was continued to February 23, 1987. During the hearing, Elizabeth Hill, an assistant supervisor of personnel for the Department, testified to the authenticity of plaintiff’s attendance records. The records indicated the following.

During the period August 1985 through August 1986, plaintiff was scheduled on 265 days to work the 4 p.m. to midnight shift. The schedule provided that plaintiff would work four consecutive work days, followed by two nonworking days. At the beginning of August 1985, plaintiff had accumulated 27 sick days.

Plaintiff was voluntarily absent from work a total of 62 days, including two compensatory days, four personal days, 14 vacation days, 39 medical days, a sick day for which his pay was docked, and an unexplained absence. Plaintiff was suspended for five days for disciplinary reasons and sent home another day for being out of uniform. In addition, 31 of the 39 paid medical absences, as well as the unpaid sick day and the compensatory days, followed scheduled nonworking days. Plaintiff also took sick days on the holidays of Christmas day, New Year’s Eve, and New Year’s day.

Hill admitted on cross-examination that the general orders of the Department provide that sick leave may be accumulated not to exceed 175 working days at a rate of 12 working days per year and that an employee need not provide any medical certification as proof of illness unless he takes five consecutive sick days.

Plaintiff testified that, in October 1985, he began to see a doctor at the Anchor HMO in Chicago Ridge, Illinois, because he was “under a lot of stress on the job and feeling nauseous, insomnia, headaches, and things of that nature.” On November 30, 1985, he began taking medications and twice thereafter changed medications due to reactions to the medication. His sick-day absences were the result of the medicine reactions and the worsening of his symptoms.

Plaintiff signed a medical release form on August 29, 1986, for the Department to obtain medical records from the Anchor HMO for the period in question. Although the hearing officer did not allow plaintiff to give medical-related testimony as to his visits to the Anchor HMO, the officer allowed plaintiff's counsel to submit a list of the dates that plaintiff contacted the Anchor HMO from its medical records subpoenaed by plaintiff. The chart prepared by plaintiff’s counsel and submitted after the hearing listed 13 dates from October 30, 1985, to August 28, 1986, on which plaintiff either visited or telephoned the Anchor HMO.

Plaintiff admitted on cross-examination that, since March 1983, he has filed numerous charges against the Department with various administrative agencies and that he feels he has been subjected to unfair treatment by the Department.

On April 27, 1987, the Board entered an order terminating plaintiff’s employment with the Department. The Board subsequently withdrew its order upon plaintiff’s motion to reconsider the order and entered an order on July 27,1987, terminating plaintiff’s employment.

On administrative review in the circuit court, plaintiff raised numerous issues for review, including the fact that the hearing officer, who had left his employment with the Board before the issuance of its decision, had not signed the termination order. The circuit court remanded the case to the Board “for either a complete rehearing by an individual hearing officer who will make the decision and write the decision or to have the hearing officer or officers who heard this case to make a decision.” The court further noted that it was not reaching the other issues raised in plaintiff’s brief on administrative review at that time.

On remand, the former hearing officer who had heard plaintiff’s case prepared a “recommended order and decision,” recommending that plaintiff be terminated from his employment. The record does not contain any subsequent order entered by the Board. In plaintiff’s “motion to renew his petition for administrative review and for ruling,” filed on December 15, 1988, plaintiff states: “The Merit Board has not formally adopted [the hearing officer’s recommendation], but on December 15, 1988 plaintiff’s undersigned counsel was advised that the Merit Board intended to rest on its July 27, 1987 order terminating plaintiff because that decision was supported by the [hearing officer’s] recommendation.”

On December 27, 1988, the circuit court entered a written order denying plaintiffs “motion to renew” and further ordered that the “decision of the Merit Board terminating petitioner and entered on July 27,1987 [be] sustained.”

Before addressing the four delineated contentions in plaintiffs appellate brief, we note that plaintiff has further suggested that the circuit court improperly refused to consider issues raised by him after it had reserved its ruling on these issues pending remandment to the administrative agency. While the record indicates that the court stated that it was not reaching these issues at the time it remanded the case, the record does not demonstrate that the court failed to consider these issues, fully briefed and argued by the parties, before it rendered its final decision on December 27,1988.

Plaintiffs first contention on appeal is that the over four-month delay before his hearing on the charges deprived the Board of jurisdiction over the matter because it violated the policy of the State civil service laws to afford every public employee the right to a speedy disciplinary hearing. In response, the Board maintains that no statutory requirement exists that plaintiff be given a hearing within a specified time and that plaintiffs constitutional right to a prompt hearing was not violated since much of the delay is attributable to plaintiff.

Addressing first the statutory issue raised by the parties, plaintiff concedes that no statutory provision expressly requires that he be given a prompt disciplinary hearing. Section 12 of the “Act in relation to the Cook County Sheriffs Merit Board” (the Act) provides for a Board hearing before a Department employee is removed or suspended, but it is silent as to time frame in which the hearing must be held. (Ill. Rev. Stat. 1987, ch. 125, par. 62.) Rather, plaintiff argues that we should determine from the Personnel Code (Ill. Rev. Stat. 1987, ch. 127, par. 63b111) that the policy underlying this State’s civil service statutes is to give merit employees a disciplinary hearing within 30 days from the date of the charges and then read such a requirement into section 12 of the Act.

Plaintiff bases his theory on Wagner v. Kramer (1985), 108 Ill. 2d 413, 484 N.E.2d 1073. In Wagner, the supreme court affirmed the appellate court’s order reversing the sheriff’s merit commission’s order refusing to review a five-day suspension summarily issued against the plaintiff by the sheriff’s board of inquiry, even though the statutory provision did not provide for review of suspensions of less than 30 days. In concluding that the statute must be construed to provide some method of review of disciplinary suspensions imposed by the sheriff, the court relied on its reasoning in Kropel v. Conlisk (1975), 60 Ill. 2d 17, 322 N.E.2d 793.

The Kropel court, in reaching its conclusion that a similar statutory provision had to be construed “to provide for some manner of review,” observed (1) that the public policy of the State, as ascertained from an examination of public employee disciplinary statutes in pari materia, had been to provide for some form of review, and (2) the provision authorizing summary suspension would not survive a constitutional attack on due process grounds without providing for some manner of review. Kropel, 60 Ill. 2d at 26, 322 N.E.2d at 798.

Contrary to plaintiff’s broad interpretation of the above cases, we interpret Wagner and Kropel as reading into a statute a requirement recognized as the public policy of the State so that the statute could withstand the constitutional due process mandate that a public employee is entitled to an adequate hearing before he is deprived of his property interest in continued employment. (See Cleveland Board of Education v. Loudermill (1985), 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487.) In both Wagner and Kropel, the statute provided only for summary disciplinary action and therefore on its face violated the employee’s due process rights. Here, in contrast, the statute does not foreclose the employee’s due process right to a prompt hearing. Thus, it would be inappropriate in our judicial function under these circumstances to read into the statute a requirement not provided for by the legislature. This is especially true with regard to the 30-day time requirement urged by plaintiff here, the specifics of which cannot be said to be necessary for constitutional due process (see Loudermill, 470 U.S. at 547, 84 L. Ed. 2d at 507, 105 S. Ct. at 1496).

This is not to say that plaintiff’s due process rights in the case at bar may not have been violated by an unreasonable delay. The appropriate inquiry, however, is not a construction of the statute to provide a time limit for conducting a hearing, but an evaluation of whether the statute as applied in .the instant circumstances violated plaintiff’s individual due process rights.

The due process clause does not require a specific time frame in which to provide a hearing, but requires a hearing “at a meaningful time.” (Loudermill, 470 U.S. at 547, 84 L. Ed. 2d at 507, 105 S. Ct. at 1496, citing Armstrong v. Manzo (1965), 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66, 85 S. Ct. 1187, 1191.) In arguing that plaintiff’s constitutional right to a prompt hearing has not been violated, the Board asserts that plaintiff made no demand for trial and acquiesced to and benefitted from the delay.

The record reveals that 147 days elapsed before the hearing on the charges. A 23-day delay occurred because the sheriff failed to comply with discovery, and a 35-day delay resulted when the sheriff filed a late discovery request. As to the remaining days, administrative delays account for 38 of the days, 31 days are attributable to plaintiff’s discovery request, and plaintiff expressly agreed to a 20-day continuance due to the absence of the sheriff’s attorney. Thus, a significant portion of the delay may be attributed to plaintiff based upon his actions. Plaintiff acquiesced to the remaining delay by failing to object to the continuances or at any time demand trial. (See Brown v. Sexner (1980), 85 Ill. App. 3d 139, 405 N.E.2d 1082.) Under these circumstances, plaintiff has not demonstrated that his due process rights have been violated by the delay before his hearing on the charges.

Plaintiff also directs us to the delay occasioned during the hearing and preceding the final decision. The record reveals that a 28-day delay resulted during the hearing because plaintiff requested a continuance. After the hearing, 65 days elapsed before issuance of the first written opinion. This court has previously held, on the issue of a prompt disposition once a hearing is initiated, that there must be “ ‘proof of the normal time necessary to dispose of a similar proceeding or of facts tending to show a dilatory attitude on the part of the [agency] or its staff.’ ” (Brown, 85 Ill. App. 3d at 151, 405 N.E.2d at 1091, quoting Wright v. Califano (7th Cir. 1978), 587 F. 2d 345, 352.) As no such proof exists here, we find no due process violation by the delay in this adjudication.

Plaintiff next contends that the hearing is void because it was conducted before a single Board member and because the Board delegated its decision-making authority to a former Board member.

The authority of an administrative agency to adopt rules and regulations is defined by the statute creating it; in the exercise of this authority, an administrative body cannot extend or alter the operation of a statute. (Popejoy v. Zagel (1983), 115 Ill. App. 3d 9, 11, 449 N.E.2d 1373, 1374-75.) Thus, a rule or regulation which conflicts with the statute will be held invalid. Popejoy, 115 Ill. App. 3d at 12, 449 N.E.2d at 1375.

The Board rule allowing hearings before a single Board member is invalid, plaintiff asserts, because it conflicts with provisions in the enabling statute.

Section 6 of the Act provides that the “Board shall formulate, adopt, and put into effect rules, regulations and procedures for its operation and the transaction of its business.” (Ill. Rev. Stat. 1987, ch. 125, par. 56.) Pursuant to this section, the Board enacted rules allowing “any member” of the Board to hear the case and receive evidence thereto, after which “the Board shall review the evidence, may review, at its discretion, the hearing transcripts and then the Board shall make its findings and determine its order.” Rules and Regulations of the Cook County Sheriff’s Merit Board, Art. IX, §§C(1), D(1).

The statutory provision with which plaintiff claims these rules directly conflict is section 12 of the Act, which provides, in pertinent part:

“[N]o employee in the County Department of Corrections shall be removed, demoted or suspended except for cause, upon written charges filed with the Board by the Sheriff and a hearing before the Board thereon upon not less than 10 days’ notice at a place to be designated by the chairman thereof. *** Each member of the Board shall have the power to administer oaths or affirmations. If the charges against an accused deputy sheriff are established by a preponderance of evidence, the Board shall make a finding of guilty and order either removal, demotion, suspension for a period of not more than 180 days, or such other disciplinary punishment as may be prescribed by the rules and regulations of the *** offense merits.” (Ill. Rev. Stat. 1987, ch. 125, par. 62.)

Plaintiff argues that the Board rule permitting hearings before single Board members conflicts with this statutory provision because the provision specifically mandates that cases against employees be heard by “the Board,” defined under the Act as “consisting of 3 members” (Ill. Rev. Stat. 1987, ch. 125, par. 52). The Board, however, points out that the statute does not contain language providing that the entire Board hear the evidence. The Board maintains that the rules satisfy statutory mandates because the rules provide that the Board render the ultimate decision. The Board further maintains that the statutory language conferring on each member of the Board the power to administer oaths in fact contemplates that a single member may conduct a hearing.

In support of his contention, plaintiff misplaces his reliance on The Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785, and Jones v. Department of Human Rights (1987), 162 Ill. App. 3d 702, 515 N.E.2d 1255, where courts held agency actions void because they conflicted with statutory provisions governing hearing procedures. The courts in those cases found fault with the number of board members involved in the ultimate decision, in contravention to explicit statutory language requiring the particular decision be made by the “entire Board” (Homefinders, 65 Ill. 2d at 127, 357 N.E.2d at 785) or the “full [Commission” (Jones, 162 Ill. App. 3d at 706, 515 N.E.2d at 1255). In contrast, no conflict exists here because the statute does not contain language specifying that the “entire” Board hear the evidence, and the rules require the Board to review the evidence and render the ultimate decision.

Plaintiff is mistaken in his second assertion that the Board delegated its decision-making authority to a former Board member. When the circuit court remanded the case to the Board, the Board referred the case to the former member merely to enter a proposed order of his findings on the evidence he heard as a Board member. Plaintiff himself admitted in his motion to renew his petition for administrative review that he was advised after the former member signed the proposed order that “the [Board] intended to rest on its July 27, 1987 order terminating plaintiff because that decision was supported by the [hearing officer’s] recommendation.” It is evident, therefore, that the Board did not delegate its decision-making authority to the former Board member.

Addressing now plaintiff’s contention that the evidence does not establish “cause” to terminate him, we initially note that some confusion exists over the precise rule violations found by the Board to warrant discharge. In his initial brief filed with this court, plaintiff concedes that the Board terminated him based upon the Department rule prohibiting “excessive, prolonged or consistent pattern of unexcused absences from duty” (Rules and Regulations of the Cook County Department of Corrections, General Order 4.1, §III, par. 6), and his argument addresses this finding. In his reply brief, however, plaintiff responds that the Board cannot rely on the “excessive absenee[s]” in its argument in support of the decision to terminate him because the Board’s July 27, 1987, order was based only upon the Board rule prohibiting “absentees] without leave or appropriate permission” (Rules and Regulations of the Cook County Sheriff’s Merit Board, Art. VIII, §B, par. 13).

Although the Board’s July 27, 1987, order refers only to the Board rule violation, the Board’s April 27, 1987, order terminating plaintiff and the hearing officer’s October 13, 1988 “recommended order and decision” state that plaintiff violated rules of conduct of both the Board and the Department. The Board’s inaction after the hearing officer’s October 13, 1988, proposed order setting forth both rule violations indicates that the Board incorporated those findings in its July 27, 1987, order. Moreover, because plaintiff did not raise this argument in his initial brief, and in fact based his argument on the finding, he has waived this issue on review. See 134 Ill. 2d Rule 341(e)(7).

Plaintiff contends that the Board’s decision to terminate him is against the manifest weight of the evidence because he complied with the general orders of the Department which allow an employee to use accumulated sick days for illness (175 sick days, at a rate of 12 sick days per year) without medical certification as proof of illness, unless the employee takes five consecutive sick days. The record indicates that plaintiff had accumulated 27 sick days as of August 1985 and 12 additional days for the period August 1985 to August 1986, and the hearing officer found that plaintiff had been absent from duty on 36 days during this period. The record also shows no five consecutive absences to require medical certification.

In response, the Board initially directs us to Holliday v. Civil Service Comm’n (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358, and Kammann v. City of Chicago (1906), 222 Ill. 63, 78 N.E. 16, for the proposition that no specific rule prohibiting the conduct is required to find cause for discharge. This proposition does not aid us here since plaintiff is not objecting to the absence of a rule governing his conduct. Rather, the crux of plaintiff's contention is that the Board’s factual findings that plaintiff violated certain Department and Board rules are not supported by the evidence since these findings directly conflict with the Department’s general orders regarding sick leave.

Although the general rules allow an employee to accumulate sick days and use them in a given year, implicit in these rules is that the days be taken for illness. The fact that the Department procedures do not require an employee to provide medical certification as proof of illness does not shield an employee from the consequences of abuses of sick-day allowances. The hearing officer here examined plaintiff’s attendance record and found that of plaintiff’s 36 absences, 21 were taken in conjunction with regular days off, 16 on Saturdays or Sundays and three on holidays. The officer also listened to plaintiff’s substantially uncorroborated testimony regarding the illnesses he suffered on these dates. We cannot conclude,.based upon this evidence, that the hearing officer’s findings that plaintiff had an excessive pattern of unexcused absence and was absent without appropriate permission are against the manifest weight of the evidence.

Having found that the agency’s factual findings are supported by the evidence, our next inquiry is to determine if the findings provide a sufficient basis for the agency’s conclusion that cause for discharge is warranted. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115, 117; Bultas v. Board of Fire & Police Commissioners (1988), 171 Ill. App. 3d 189, 193, 524 N.E.2d 1172, 1174.) The agency’s decision to discharge may not be reversed unless it is found to be unreasonable, arbitrary or unrelated to the requirements of service. (Walsh, 96 Ill. 2d at 105, 449 N.E.2d at 117.) In reaching this determination, courts are assisted by the general guideline that the conduct must constitute some substantial shortcoming which renders the continued employment a detriment to the discipline and efficiency of the service. Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275, 277; Onesto v. Police Board (1980), 92 Ill. App. 3d 183, 187, 416 N.E.2d 13, 16.

As argued by plaintiff, the detriment of plaintiff’s continued employment to the discipline and efficiency of the Department is obvious. Plaintiff’s excessive pattern of unexcused absences indicates a lack of responsibility and willingness to perform his duties as a correctional officer. Such conduct threatens the penal institution’s ability to staff itself and seriously jeopardizes its security. We conclude, therefore, that the sanction of discharge was not unreasonable, arbitrary or unrelated to the needs of the Department.

Finally, we turn to plaintiff’s contention that procedural errors at the administrative hearing require that he be granted a new hearing. Plaintiff initially argues that the hearing officer improperly placed the burden of proof on plaintiff to prove that his use of sick days was justified, where the burden properly rested on the sheriff to establish the charges against him by a preponderance of the evidence (Ill. Rev. Stat. 1987, ch. 125, par. 62; Prince Manufacturing Co. v. United States (N.D. Ill. 1977), 437 F. Supp. 1041, 1045).

Plaintiff first refers to the hearing officer’s remarks to plaintiff’s counsel at the January 12, 1987, hearing during a discussion regarding the type of evidence to be submitted at the upcoming trial: “[T]he excuse for the absence can be proven by appropriate evidence and not by somebody purporting to have a medical complaint and doing it by submitting a piece of paper from God knows who.” It is fairly evident that the hearing officer’s comments referred to the evidentiary rules which would be applicable to plaintiff’s defense, as opposed to burden of proof.

Plaintiff also directs us to the hearing officer’s remarks on plaintiff’s motion to dismiss at the close of the evidence at the January 23, 1987, trial. In her oral motion, plaintiff’s counsel asserted that the sheriff had to prove that plaintiff was not sick in order to prevail. She argued that she did not believe that the sheriff had met that burden. Plaintiff maintains that the hearing officer’s denial of his motion on that basis indicates that the court put the burden of proof on plaintiff to disprove the violations. The explanation offered by the hearing officer, however, demonstrates that the denial was based upon the sufficiency of the sheriff’s evidence:

“The Sheriff alleged *** [a] consistent pattern of unexcused absences from duty. *** The pattern, abusing these days in conjunction with days off so as to develop a pattern of taking days following either or preceding two days off from his regular day off, giving him three to four days over a period of time is a pattern. *** I see a number of instances where the days were taken *** which were obviously days off, weekends *** [that] show absences due to a claim of illness in conjunction with two days they would have coming off, and that creates a question of whether that is a pattern. So I am going to deny your motion. I think they have raised — at least submitted the facts to show what they can argue to be a pattern.”

Thus, the hearing officer properly denied plaintiff’s motion on the basis that the sheriff satisfied his burden through the introduction of the attendance card.

The other procedural error claimed by plaintiff is the hearing officer’s ruling allowing the admission of testimony that plaintiff had filed administrative charges against the Department with administrative agencies. Plaintiff asserts that this evidence is irrelevant to the administrative charges against him. We believe this evidence is relevant to show plaintiff’s state of mind regarding his employment, as well as his motivation for engaging in a pattern of unexcused absences.

For the reasons stated above, the circuit court’s order affirming the Board’s decision to terminate plaintiff from his position as a correctional officer is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE CAMPBELL

text:
    THE VILLAGE OF MAYWOOD, Plaintiff-Appellee, v. REGINAL BARRETT et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—89—1388
    Opinion filed March 25, 1991.

      Georgette Nabhani, of Chicago, for appellants.
    Stanley L. Hill & Associates, P.C., of Chicago (Lawrence E. Sommers, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants, Reginal and Rose Ann Barrett, appeal from orders entered by the trial court authorizing plaintiff, Village of Maywood (the Village), to demolish an unoccupied, single-family dwelling owned by defendants, located at 1236 S. 18th Avenue, Maywood (the Premises). The sole issue raised on appeal is whether the trial court abused its discretion in denying defendants’ oral motion for a continuance of the demolition proceedings. For the following reasons, the judgment of the circuit court is affirmed.

The record sets forth the following events leading up to the order to demolish the Premises. On March 10, 1988, pursuant to section 11—31—1 of the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11—31—1), the Board of Trustees of the Village passed an ordinance which provided that as the result of certain violations of the Maywood Village Code, enumerated in the ordinance, the Premises was found to be “dangerous and unsafe” and a “hazard to the health and safety of the residents of the Village of Maywood.” Accordingly, on April 15, 1988, the Village mailed a 15-day violation notice to Reginal, as owner of record, demanding that he either repair or demolish the Premises within 15 days. The notice further stated that if he failed or refused to repair or to demolish the Premises within that time, the Village was authorized to file a petition in the circuit court of Cook County, seeking a court order for the Village to repair or to demolish the Premises, with the costs for doing so becoming a lien on the property.

When Reginal failed to repair or to demolish the Premises within the 15-day period, on June 3, 1988, the Village filed a “petition to demolish or repair unsafe building” in the circuit court of Cook County. In the petition, the Village sought an injunctive order requiring Reginal to repair or to reconstruct the dangerous and unsafe Premises. In the alternative, the Village sought an order authorizing and directing the Village to demolish and to wreck the Premises, and to assess a fine against Reginal in the amount of $500 per day for each day he failed to repair or to reconstruct the dangerous and unsafe Premises.

In his response to the Village’s petition, dated June 29, 1988, Reginal claimed, inter alia, that the Premises was boarded up and unoccupied; that no conditions required emergency action; that he had put on a new roof and had installed new drywall on interior surfaces; that he had never received the September 18, 1987, violation notice; that the 15-day time frame was arbitrary and unreasonable; that enforeement of the Maywood Village Code was arbitrary and inconsistent; and that the Premises would be repaired that summer. Reginal then requested that he be given sufficient time to make the improvements and that he be allowed to proceed on an agreed schedule without being assessed any fines.

Thereafter, on July 19, 1988, the trial court entered an order dismissing the cause for want of prosecution. That order was vacated and the cause was reinstated on September 27, 1988, with a status hearing set for October 26, 1988, to consider a repair schedule. Reginal failed to appear at the October 26 hearing, and the court found that Reginal had also failed to provide the Village with a repair schedule per his representation to the Village at the September status hearing. The cause was set for another status hearing on November 2, 1988.

At the November 2 status hearing, Reginal appeared pro se. At that time, the trial court granted the Village leave to add Melrose Park National Bank, land trust No. 5187; Melrose Park Savings and Continental Illinois National Bank and Trust as necessary parties. The cause was then set for a status hearing on December 14, 1988. In the interim, on November 9, 1988, the Village added Rose Ann Barrett, Reginal’s wife, as a defendant.

Following the hearing on December 14, 1988, the trial court entered an order, directing defendants to correct certain of the enumerated violations within 30 days and to correct others within 60 days. If the violations were not corrected so as to comply with the Maywood Village Code within the time periods specified, the Village would be granted its motion for a hearing and defendants would be fined $500 per day per violation. The cause was then set for a status hearing on January 18, 1989, at which time compliance was to be evaluated. The order further stated that no further extensions were to be granted for defendants’ compliance.

On January 18, 1989, the trial court entered an order setting February 28, 1989, as the next hearing date and ordered defendants to permit the Village to gain entry to the Premises to make inspections within seven days of the hearing. On February 28, an order was entered granting defendants’ motion to substitute judges. The cause was then continued to March 22, 1989. On March 22, on the court’s own motion, the cause was continued to March 29, 1989.

At the March 29, 1989, hearing, defendants requested another continuance on the grounds that: (1) the attorney who had been helping Reginal prepare his defense had died three weeks ago; (2) defendants would be closing on the sale of another of their buildings within 10 to 15 days which would net them $70,000, giving them enough money to either make the necessary repairs to the Premises or to hire an attorney; (3) the Village had backed out on an agreement regarding the repairs; and (4) they would be receiving $15,000 from the Internal Revenue Service in four weeks which they were willing to put in escrow for the repairs.

The trial court then recessed the trial for a short pretrial conference to further enable defendants and the Village to reach some type of agreement. Following the conference, the Village informed the trial court that it intended to proceed with the hearing because defendants’ source of funding was “nebulous” and it could not come to a firm agreement with defendants. The Village further indicated that if the demolition order issued, the Village would be inclined to stay the order if defendants complied within 30 days. Further, if defendants could come up with the proper funding to put the Premises in compliance with the Maywood Village Code, the Village would vacate the order within the 45-day period. Defendants replied that they had asked the Village for an extension to April 30 and had offered to put up a $50,000 performance bond by April 15. However, the Village would not agree.

The court then denied defendants’ request for a continuance and recessed the proceedings for lunch. In reaching its decision, the trial court noted that defendants had indicated that they were short of funds to hire an attorney. However, the trial court found that it was not dealing with normal indigence, just a “shortness of funds.” Further, it found that there had been a substantial amount of time from the filing in April 1988 to the present within which defendants could have hired an attorney.

Following lunch recess, defendants did not return to the courtroom. The court informed those present that during the lunch recess, Reginal had given the court clerk a document to be given to the court. The clerk then stated for the record that during recess, Reginal had approached his desk with two written orders and requested that the clerk deliver one to the court. When the clerk told Reginal that it would be better if he delivered them to the court personally, Reginal said, “There’s no need of me going there.” As a result, the clerk took the orders and gave them to the trial court.

The trial court then indicated that the order it had received from Reginal was entitled “A Notice to Stay,” issued by the Bankruptcy Court, dated March 28, 1989. The debtor was “Diversified New Dimensions, Inc.” and the stay was signed by Reginal Barrett, as president of the debtor company. The Village indicated that pursuant to its records and its title search of the Premises, Diversified New Dimensions had no interest in the Premises. After reviewing its records, the trial court found that the notice of stay had no bearing on this case. The trial court then noted defendants’ continued absence from the proceedings, found their absence to be voluntary, and allowed the Village to proceed ex parte.

The Village then presented its case in chief. Lawyer Smith and Manual Cathright, neighbors to the Premises, testified that the Premises was detrimental to neighborhood property values. Smith further testified that the Premises had been in this condition for 10 to 12 years, was vacant, and was accessible to vagrants.

Next, Motiryo Keambiroiro, Maywood village manager,, testified as an expert witness in the field of architecture. Keambiroiro enumerated the structural deficiencies and stated that, in her opinion, the Premises was extensively damaged, was structurally unsound, was a hazard to the community, and would require approximately $50,000 to $60,000 in repairs to bring the Premises up to the Maywood Village Code standards.

Eric Stith, licensed real estate broker and appraiser, testified that, in his opinion, the fair market value of the home in its present condition was $15,000. By contrast, the fair market value of other homes in the area was $45,000 to $50,000. Further, even if totally reconstructed, it would not likely sell for more than $45,000.

Next, Kenneth Massa, director of code enforcement for the Village, testified that originally he had inspected the Premises on September 15, 1987, at which time a violation notice had been issued to Reginal. Massa stated that a violation notice also had been sent on March 11, 1981. At Massa’s most recent inspection of the Premises on February 24, 1989, he found it in substantially the same condition as in 1987. Some repair attempts had been made, but none of them were up to the Maywood Village Code standards. In Massa’s opinion, the Premises was over 80% damaged and it would cost approximately $50,000 to bring the Premises up to the Maywood Village Code standards.

Anthony Thomas, code enforcement officer for Maywood, testified that when he inspected the Premises in February 1989, he found it to be in a substandard and unsafe condition. Thomas adopted the testimony of Keambiroiro and Massa regarding the condition of the Premises.

Following the testimony, the trial court found that the Premises was unsafe and a menace to the health, safety and welfare of the residents. Accordingly, it found in favor of the Village regarding the issuance of an order of demolition. The court then continued the matter for 28 days so that if defendants were able to acquire some money, they could renovate the Premises. The trial court put the matter over for a status hearing in 28 days, at which time the court would either: (1) enter an order of demolition in accordance with its findings; or (2) if action had been taken by defendants, continue the matter to permit possible remodeling; and (3) determine any fines at that time. The trial court requested the Village to personally serve defendants a copy of the order.

Subsequently, on April 25, 1989, one day before the scheduled status hearing, defendants filed a premature notice of appeal from the March 29, 1989, order. Defendants failed to appear for the scheduled status hearing the following day. As a result, pursuant to the March 29, 1989, order, judgment was entered in favor of the Village and the Village was authorized to abate the nuisance by demolishing and wrecking the Premises. The order further provided that the Village was absolved from any liability caused by the wrecking; that the Village was granted the right to seek judgment against defendants to recover costs; that the trial court retained jurisdiction to enforce the order; and that the order was final and appealable.

The following day, the Premises was demolished by fire pursuant to the Village’s instructions. Thereafter, on May 1, 1989, defendants filed an amended notice of appeal from the March 29, 1989, and April 26, 1989, orders.

Although defendants state that the sole issue on appeal is whether the trial court abused its discretion in denying their oral motion for a continuance made at the March 29, 1989, hearing, in arguing that issue, defendants have incorporated the contention that they were not given a reasonable opportunity to repair the Premises before the order of demolition issued as well as various contentions as to errors in the pleadings and in the proceedings below.

Regarding defendants’ request for a continuance, section 2— 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1007) provides:

“[I]n actions involving building code violations or violations of municipal ordinances caused by the failure of a building or structure to conform to the minimum standards of health and safety, the court shall grant a continuance only upon a written motion by the party seeking the continuance specifying the reason why such continuance should be granted.”

The well-established purpose of section 2—1007 is to give the municipality a quick and effective means of removing unused and dilapidated structures that present danger and blight. (City of Chicago v. James E. Mulligan Enterprises, Inc. (1960), 27 Ill. App. 2d 481, 170 N.E.2d 13.) Pursuant to the “Supplement to Historical and Practice Notes” following section 2—1007 (Ill. Ann. Stat., ch. 110, par. 2—1007, Supplement to Historical & Practice Notes, at 43 (Smith-Hurd Supp. 1990)), that portion of section 2—1007 set forth above was added in response to the “well-publicized instances of endless delays in the prosecution of actions relating to structural defects, which mitigated' the consequences to building owners of disregarding the condition of their properties and imperiled the lives of occupants and others *** [and] was enacted in order to underscore the importance of finding good cause for a continuance, which was already required by the section.”

In the present case, on the date of the scheduled hearing, defendants orally requested a continuance predicated on the grounds that the attorney who had been helping Reginal prepare for his court appearances had died three weeks earlier and that defendants would be receiving approximately $70,000 in 10 or 15 days from the sale of another property with which they could either make repairs or hire another attorney. In addition, defendants claimed that they would be receiving $15,000 from the Internal Revenue Service in approximately four weeks. However, defendants never presented a written motion requesting a continuance. Pursuant to section 2 — 1007, a written motion is a condition precedent to the trial court’s granting a continuance in actions involving building code violations. Thus, without a written motion, the trial court could not have abused its discretion in denying a continuance because it is not within the trial court’s discretion to grant a continuance without a written motion.

However, even if defendants had filed a written motion for a continuance pursuant to section 2—1007, the trial court would not have abused its discretion in denying defendants’ motion for a continuance. There is no absolute right to a continuance. Generally, the decision to grant or to deny such a motion lies within the sound discretion of the trial court (Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 562 N.E.2d 1086) and will not be disturbed absent a manifest abuse of such discretion or unless a palpable injustice appears in the record on appeal. (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505 N.E.2d 1213.) An important factor in determining whether the trial court has abused its discretion in denying a motion for continuance is whether the movant has shown diligence in proceeding with the cause. (Lipke v. Celotex Corp., 153 Ill. App. 3d 498, 505 N.E.2d 1213.) Further, once a case has reached the hearing stage, no motion for continuance is to be heard without sufficient excuse being shown for delay in so moving, and without grave reasons being presented to support the request. Mireles v. Indiana Harbor Belt R.R. Corp. (1987), 154 Ill. App. 3d 547, 507 N.E.2d 129.

In the present case, defendants have not shown due diligence in following the orders of the court, have not given a sufficient excuse for waiting until the day of the hearing to request a continuance, and have not presented grave reasons to support their request. First, with respect to defendants’ diligence, the record indicates that a violation notice was sent to Reginal on April 15, 1988, stating that the Premises had to be repaired within 15 days or the Village would file a petition to demolish or to repair. When no steps were taken to repair the Premises, the Village filed its petition. Reginal responded on June 29, 1988, stating, inter alia, that the Premises were unoccupied; that the windows on the Premises were boarded; that he had put on a new roof and had installed new drywall in the interior; and that the steps had been stolen from the Premises in fall 1987. The cause was dismissed for want of prosecution on July 19, 1988, then reinstated on September 27, 1988, and set for a status hearing on October 26, 1988, at which time the parties were to consider a repair schedule. Reginal failed to appear on October 26 and did not provide the Village with a repair schedule. The cause was then set for another status hearing on November 2, 1988. Defendant appeared pro se, and the Village added necessary parties. Status was then set for December 14, 1988. In the interim, on November 9, 1988, the Village added Rose Ann Barrett, Reginal’s wife, as a defendant. On December 14, 1988, the trial court entered an order stating that defendants were to correct certain specifically enumerated violations of the Maywood Village Code within 30 days, and to correct others within 60 days. All repair work was to comply with the Maywood Village Code. The cause was set for a status hearing on January 18, 1989. The order further stated that no further extensions would be granted to defendants for compliance.

On January 18, 1989, defendants were ordered to permit the Village to gain entry to the Premises to make an inspection within seven days of the hearing, set for February 28, 1989. On that date, an order was entered substituting judges and continuing the cause to March 22, 1989. On March 22, 1989, the hearing was continued to March 29, 1989, on the trial court’s own motion.

On March 29, the day the hearing was to commence, defendants orally requested a continuance. Defendants claimed that Reginal had made the repairs which were supposed to have been made by January 24, but that he had then injured his back. Defendants further claimed that there was new drywall, a new roof, new sidewalk and 80% new siding. After the trial court denied the continuance, it recessed the proceedings for lunch. When defendants did not appear after recess, the trial court commenced the proceedings ex parte. At the hearing, Motiryo Keambiroiro, Maywood village manager, testified that on her last inspection of the Premises on March 21, 1989, she observed that defendants had done some work on the Premises, but the work was not in compliance with the Maywood Village Code. For example, defendants had enclosed the exterior of the Premises with interior paneling in a substandard manner, completely covering over window openings. The paneling was nailed in place only as far as Reginal could reach, even though the paneling extended to the roof. Defendants had removed the chimney and still had not installed any downspouts or drains. Dog feces and a decomposing cat were on the Premises grounds. Keambiroiro stated that although some intermittent work had been done, the Premises remained hazardous to the community’s safety. In fact, the work done had added an additional weight load to the Premises which it was not structurally equipped to support.

Kenneth Massa, director of code enforcement for Maywood, agreed with Keambiroiro’s assessment of defendants’ attempts to repair the Premises. Massa noted that an attempt had been made to reconstruct the front steps, but defendants had not applied for a permit, and the steps had no guard rails or railings and were not up to standard. Further, the paneling used on the exterior was a low-grade, interior plywood-type paneling that was not water-tight, had not been nailed properly and did not meet the Maywood Village Code standards. Anthony Thomas, code enforcement officer for Maywood, agreed with the testimony of Keambiroiro and Massa.

As the foregoing indicates, during the 11-month period from the issuance of the violation notice to the March 29 hearing, defendants had done some work on the Premises. However, this work was not done in good-faith compliance with the Maywood Village Code and did not alter the structural defects or the general inhabitability of the Premises. This court has held that temporary measures cannot be allowed to circumvent the effect of section 11—31—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11—31—1) and to “borrow time” for the necessary renovation. Further, temporary measures will not be considered in reaching a determination as to whether the building was dangerous and unsafe. (City of Alton v. Carroll (1982), 109 Ill. App. 3d 156, 440 N.E.2d 290.) Accordingly, defendants’ failure to make repairs in compliance with the Maywood Village Code, as well as their failure to submit a good-faith schedule of repairs, demonstrated their lack of diligence.

Regarding the sufficiency of an excuse for waiting until the day of the hearing to request a continuance, the record is void of any attempt by defendants to explain why they could not have requested a continuance at an earlier date. The alleged grounds for the continuance had clearly arisen prior to the day of the hearing: the attorney who allegedly had been helping Reginal prepare his representation had died three weeks earlier, and the sale of defendants’ other property had been negotiated at an earlier time.

Finally, regarding the gravity of the reasons given by defendants for a continuance, the trial court noted that defendants were not indigent; they just had a “shortness of funds.” Furthermore, the trial court found that there had been a “substantial amount of time” from the time of filing to the present for defendants to have hired counsel. In addition to the findings of the trial court, the record indicates that defendants offered no evidence that the sale of another property owned by them was imminent. They presented only a copy of a title report, which is not proof that a contract has been entered into for the sale of property or that financing has been approved. Furthermore, defendants vacillated as to the availability of the funds from that alleged sale. Initially, defendants stated that the sale would close in 10 to 15 days from the date of the hearing. Then, when the Village agreed to have defendants put $25,000 in escrow within 15 days of the hearing, defendants wanted an additional two weeks because “mortgages don’t pay out as scheduled.” Based on the aforementioned, even if it had been within the trial court’s discretion to grant the continuance without a written motion, the trial court would not have abused its discretion in denying the motion.

Moreover, although the trial court denied the continuance on March 29, it reserved its ruling until April 26, at which time a status hearing was held to check on any repairs made by defendants. By reserving its ruling, the trial court allowed defendants an additional 28 days within which to acquire the necessary funds to renovate the Premises. Thus, in effect, defendants were given the additional time they had requested. In our view, defendants’ failure to make any attempts to repair the Premises or to appear at the April 26 hearing is further evidence of their lack of good faith and diligence.

Defendants’ additional argument that they were not given reasonable time to repair the Premises is unpersuasive. As indicated, defendants had one year from the time the violation notice issued to the final status hearing when the order of demolition was entered. During that time, they made some attempts at cosmetically improving the Premises, but there is no evidence that any structural work was attempted to make the Premises safe, or that any of the work done was in compliance with the Maywood Village Code. (City of Chicago v. General Realty Corp. (1971), 133 Ill. App. 2d 662, 273 N.E.2d 712 (10 months was a reasonable time within which to repair a building).) Further, in Village of Gurnee v. Miller (1975), 25 Ill. App. 3d 915, 323 N.E.2d 416, the court affirmed demolition of private property on the grounds that the owners had allowed the property to remain vacant with ready access to vagrants for seven years. In the present case, testimony at the hearing indicated that the Premises had been vacant with ready access to vagrants for 10 to 12 years. Accordingly, we find that defendants had been given a reasonable opportunity to repair the Premises.

Those cases relied upon by defendants in which the reviewing court reversed the demolition order are factually distinguishable from the present case. City of Aurora v. Meyer (1967), 38 Ill. 2d 131, 230 N.E.2d 200 (cause remanded to obtain evidence as to the cost of repair compared to the value of the structure); City of Chicago v. Busch (1971), 132 Ill. App. 2d 486, 270 N.E.2d 249 (plaintiff’s witnesses testified that the building had depreciated no more than 18%; the record was silent as to the property’s value, the cost of repairs or the condition of the structure; defendant had obtained a permit to make the repairs and had applied to the plaintiff city for a loan); City of Chicago Heights v. Furrer (1981), 99 Ill. App. 3d 414, 425 N.E.2d 1125 (evidence established that structure was repairable; no record of grounds for trial court’s conclusion that the building was unsafe and dangerous).

In addition, defendants contend that the Village’s amended petition to demolish or to repair was insufficient to apprise defendants of the defects to the Premises. Further, defendants argue that had they been represented by competent counsel, they would not have erroneously believed that the bankruptcy stay applied to these proceedings, they would not have filed a premature notice of appeal, they would not have failed to appear at the final status hearing when the order to demolish was entered, and they would have had an effective cross-examination of Motiryo Keambiroiro, Maywood village manager. With respect to the sufficiency of the pleadings, defendants have waived this issue on appeal by failing to object to the notice at trial court. (City of Peru v. Bernardi (1976), 43 Ill. App. 3d 31, 356 N.E.2d 636.) As to defendants’ argument that had they been represented by counsel, the outcome would have been different, mere speculation and the raising of possibilities do not provide grounds for reversal. (See Norman v. Ford Motor Co. (1987), 160 Ill. App. 3d 1037, 513 N.E.2d 1053; Dugan’s Bistro, Inc. v. Daley (1977), 56 Ill. App. 3d 463, 371 N.E.2d 1116.) Further, as previously stated, defendants had had ample time within which to hire legal counsel. They cannot now claim their lack of diligence in doing so as grounds for reversal.

Based on the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

      Initially, Reginal Barrett was the sole defendant.

      The record also contains a Village of Maywood violation notice, dated March 11, 1981, and a Village of Maywood violation notice, dated September 18, 1987, regarding the Premises, addressed to Reginald Barrett, 1607 S. 10th Ave., Maywood, IL 60153. Each notice requested that the specifically enumerated zoning violations be corrected within 30 days.

      Reginal appeared on behalf of himself and Rose Ann.

      This court observes that the orders from which defendants appeal do not refer to Rose Ann Barrett in the captions. Yet, she did file an amended notice of appeal. No issue has been raised as to this apparent discrepancy. Therefore, it is not before this court.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MASON, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2383
    Opinion filed March 25, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Ira Chur gin, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal by defendant Mark Mason from his conviction for burglary following a bench trial in the circuit court of Cook County. Defendant was sentenced to 14 months’ probation. The issue to be considered on appeal is whether the State’s evidence was sufficient to prove guilt beyond a reasonable doubt of burglary.

In the early morning May 3, 1988, Officer Anthony Myers was riding in a patrol car that was proceeding west on Augusta Avenue between Central Park Avenue and Lawndale Avenue with his partner when he observed a car which was blocking the alley behind a garage on Lawndale. When the officers pulled the squad car into the alley to investigate, Myers, who at this time remained seated inside the vehicle, saw three male blacks coming from the gangway at the side of the garage. The men were walking in a single file; Myers identified defendant as the first person in line and stated that a third person, whom he later learned was “Red,” had something in his hand. Myers further testified that when the men saw the officers, they turned and ran westbound through the gangway. Myers exited his vehicle and ran west down Augusta toward Lawndale at which time he again saw the three men as they ran past the garage; however, he saw nothing in the hands of any of the three men.

When Myers and his partner continued to chase the three men, they split up, with Red continuing west towards Lawndale while defendant and the second man turned around and ran east towards the alley. Myers caught and arrested defendant and the second man but was unable to apprehend Red. When Officer Myers returned to the garage, he noticed a car battery with cut cables lying on the ground alongside the garage. The side door of the garage was open and pry marks were found around the lock. Inside the garage, Myers observed a car with both the door and hood open and saw that the cables were cut and the battery was missing.

It was stipulated that, if called to testify as a witness, Miguel Cordero would state that he is the owner of the garage and car in question and that he had parked his car in the garage at about 5 p.m. on the night before, at which time the side door of the garage was not damaged and the car battery was intact. He would further testify that at approximately 6:15 a.m. on May 3 he was notified by the police and observed his car battery on the ground near his garage, but he had not given permission to anyone to enter or remove anything from the garage. After the State rested, defendant moved for a directed finding, which the court denied. Defendant neither testified nor presented any witnesses or evidence in his own behalf and the defense rested. Following argument from both parties, the trial judge found defendant guilty.

Defendant then presented motions for reconsideration and for a new trial based on reasonable doubt, both of which were denied. On appeal, defendant contends that although the State’s evidence established the fact of a burglary, the State failed to prove defendant either personally committed or was accountable for the burglary. He argues that proof of Red’s culpability is tenuous and that, even if the evidence does implicate Red, it does not establish defendant’s accountability for Red. We agree.

The due process clause of the fourteenth amendment (U.S. Const., amend. XIV), mandates that an accused only be convicted upon proof beyond a reasonable doubt of every element necessary to constitute the offense for which he is charged. (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1078.) In Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89, the Supreme Court articulated the proper standard of review to be applied when a defendant asserts he was convicted in the State court upon insufficient evidence:

“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be *** to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]”

See also People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

Applying those principles to the case at bar and after carefully reviewing the record, we conclude that the evidence is insufficient to sustain defendant’s conviction. There was no evidence that defendant entered the garage or removed anything from it. Myers testified that he got a good look at the men, and when he first observed defendant and two other men walking through a gangway at the side of the garage, the third man, “Red,” had “something” in his hands. However, he gave no description of the object as to color, size, weight or shape. There was no evidence that defendant was found in possession of the car battery. Although Myers testified that there were pry marks on the door lock, no burglary tools were recovered. Although a car was parked in the alley very close to the garage, there was no showing that the car was registered to defendant or any of the men in the group.

The State asserts that in addition to defendant’s presence at the scene and his flight therefrom, the evidence also establishes that when Myers saw Red the second time, he noticed that Red had nothing in his hands. Even if the trial court assumed that the “something” in Red’s hands was the car battery and that he had recently taken it from the car and dropped it during the police chase, the evidence is lacking that defendant participated in the burglary of the battery, that he had any control over the battery after it was stolen, that he knew it to be stolen or that he specifically aided Red in the burglary. Although the evidence may have established a strong suspicion that defendant was somehow involved, as he was near the scene of a crime, “suspicions and probabilities are not enough to convict.” (People v. Johnson (1976), 43 Ill. App. 3d 428, 431, 356 N.E.2d 1373, 1375-76; see also People v. Ramirez (1986), 151 Ill. App. 3d 731, 734, 502 N.E.2d 1237.) Accordingly,' we find that the circumstances are not a sufficient ground for accomplice liability.

A person is accountable for the conduct of another person if, “[either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).) Although one may aid and abet another without actively participating in the offense, mere presence at the scene and flight therefrom do not prima facie establish accountability. Moreover, knowledge that a crime is being committed does not of itself constitute aiding or abetting. (Ramirez, 151 Ill. App. 3d at 735.) Here, there was no evidence of fingerprints or accomplice testimony. There was no proof demonstrating that the group of men had been together for a length of time or that defendant was acting as a lookout. The cases cited by defendant which were reversed for insufficient evidence support our conclusion that the instant evidence was insufficient to establish that defendant intended to promote or facilitate the commission of the offense. See generally Ramirez, 151 Ill. App. 3d 731; People v. Thruman (1977), 52 Ill. App. 3d 13, 367 N.E.2d 379; People v. Thompson (1975), 35 Ill. App. 3d 105, 340 N.E.2d 631; People v. Banks (1975), 28 Ill. App. 3d 784, 329 N.E.2d 504. See also People v. Perruquet (1988), 173 Ill. App. 3d 1054, 527 N.E.2d 1334; People v. Underwood (1982), 108 Ill. App. 3d 846, 439 N.E.2d 1080; People v. Rodriguez (1980), 89 Ill. App. 3d 941, 412 N.E.2d 655.

For the foregoing reasons, we must reverse defendant’s conviction, because after viewing the evidence in the light most favorable to the prosecution, we believe that the defendant’s accountability for Red’s alleged burglary was not proven beyond a reasonable doubt.

Reversed.

BUCKLEY and O’CONNOR, JJ., concur.


text:
      In re MARRIAGE OF ROBERT GLICKMAN, Petitioner-Appellee, and HARDEYE S. GLICKMAN, Respondent-Appellant.
    First District (1st Division)
    No. 1—89—2525
    Opinion filed March 25, 1991.

      Kalcheim, Schatz & Berger, of Chicago, for appellant.
    Grand, Marcus, McNish, Knabe & Nadler, of Chicago (David I. Grand and Linda J. Kroning, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal from an order granting the motion of petitioner Robert J. Glickman to dismiss the amended petition of respondent Hardeye S. Glickman for an increase in child support and to terminate unallocated maintenance and child support. On appeal, respondent claims that child support is always subject to modification upon a showing of a substantial change in circumstances.

On May 25, 1983, the parties obtained a judgment for dissolution of marriage which incorporated a marital settlement agreement. That agreement provided, inter alia, that (1) both parties would have joint custody of their two minor children; (2) petitioner agreed to make monthly payments for the unallocated support and maintenance of the children and respondent with the payments based on a decreasing scale and terminating in the year 2002; all payments were taxable to respondent and deductible to petitioner for the purposes of Federal income taxes; (3) in the event of respondent’s remarriage, the unallocated support and maintenance payments would be reduced by 50%; and (4) respondent agreed not to seek additional child support or maintenance from petitioner by court action or otherwise and agreed to indemnify him and hold him harmless from additional support.

In 1987, respondent, who remarried three days after filing the petition, sought an increase in child support and to terminate unallocated maintenance and child support. In 1989, the trial court granted petitioner’s motion to dismiss the petition and stated the following reasons: (1) the petition was inadequate in its specificity as to a change in circumstances; (2) the parties’ marital settlement agreement contemplated respondent’s remarriage; and (3) the issue as to the modifiability of the marital settlement agreement was not adequately addressed in the petition. The court granted respondent 21 days to file an amended petition.

Respondent then filed an amended petition to increase child support and to terminate unallocated maintenance and child support. Respondent made the following allegations: (1) at the time when judgment for dissolution of the marriage was entered, the children’s monthly expenses were $3,359.30; (2) the children’s monthly expenses were $5,225.48 when the amended petition was filed; (3) petitioner’s income had substantially increased while the payments for unallocated maintenance and child support have decreased; (4) the children were entitled to have the standard of living they would have enjoyed had the marriage not been dissolved; and (5) her agreement not to seek additional child support or maintenance was unenforceable and contrary to public policy in Illinois.

The trial court granted petitioner’s motion to dismiss the amended petition for an increase in child support and to terminate unallocated maintenance and child support. In so ruling, the court stated that “the standard of living and modifications have not been adequately pleaded. I don’t think they can be pleaded outside of some catastrophic incident that has taken place between the entry of the judgment for dissolution and today’s date.” A timely notice of appeal followed.

Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act provides that except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of the terms if the agreement so provides. Ill. Rev. Stat. 1981, ch. 40, par. 502(f).

Respondent claims that In re Support of Burks (1981), 100 Ill. App. 3d 700, 427 N.E.2d 353, supports the proposition that child support is always modifiable despite any terms otherwise set forth in a marital settlement agreement. We agree. In Burks, the settlement agreement provided for a series of installment payments which represented a lump sum property settlement in lieu of alimony and child support. We held that the portion of the payment relating to the disposition of the parties’ property was not modifiable. However, we did state that child support is modifiable even when combined with non-modifiable alimony or maintenance. The case was remanded to the trial court for a determination as to whether the judgment should be modified insofar as it related to child support and, if so, to what extent it should have been modified. Thus, the trial court was to exercise its discretion in determining whether a substantia] change in circumstances had occurred to warrant a modification of child support.

Petitioner counters that a marital settlement agreement, which has been incorporated in the judgment dissolving the marriage, will be interpreted according to the same principles of construction applied to other contracts. The contract must expressly state the parties’ intent to limit modification to specific circumstances. Where the judgment expressly precludes or limits by clear and precise language any modification, the trial court must give effect to that expression of the parties’ intentions. In re Marriaqe of Mateja (1989), 183 Ill. App. 3d 759, 540 N.E.2d 406.

Although the Mateja court upheld a provision in the settlement agreement which stated “[t]he parties further agree that the terms of the agreement shall be non-modifiable,” Mateja is distinguishable from the case at bar. Mateja held that a judgment may expressly preclude or limit modification of the terms pertaining to maintenance if the settlement agreement so provides (Mateja, 183 Ill. App. 3d at 761); however, here the issue involves modification of child support, and our legislature and courts have clearly enunciated that a judgment or settlement agreement incorporated therein cannot preclude or limit modification of terms concerning support, custody or visitation of children. Ill. Rev. Stat. 1981, ch. 40, par. 502(f); Burks, 100 Ill. App. 3d 700.

Once a petition for modification of child support has been presented, the court’s paramount consideration must be whether, a substantial material change in circumstances has occurred since the entry of the judgment which would allow the court to alter the existing award of child support. The modification of such support lies within the sound discretion of the trial court. Absent an abuse of discretion, the trial court’s decision will not be disturbed on appeal. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.

Petitioner urges that the holding in In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 523 N.E.2d 1258, is applicable here. In Stadheim, petitioner sought an increase in her unallocated maintenance and child support payments. The trial court determined that a substantial change of circumstances had occurred since entry of the divorce decree and an increase in child support was warranted to compensate for the effects of inflation and the increased needs of the children as they matured. In reversing the trial court on this issue, this court held that a substantial material change in circumstances had not been shown beyond that contemplated and ultimately provided for by the parties in their settlement agreement. However, in Stadheim, we further stated that the evidence presented by Barbara “consisted mainly of incomplete, uninformative ‘guesstimates’ ” and that “the only semi-articulate arguments advanced by Barbara were that the cost of living has increased and that the children have grown older.” Stadheim, 170 Ill. App. 3d at 25.

In the present case, respondent also has argued for an increase in child support because the cost of living has increased and the children have grown older. However, she has additionally pleaded that the petitioner’s income has substantially increased and the expenses of the children have substantially increased since the entry of the judgment. With respect to such allegations, the respondent submitted a copy of her average monthly expenses affidavit prepared in 1984 which listed the children’s monthly expenses as $3,359.30 and a current affidavit which showed their total monthly expenses as $5,225.48.

We have reviewed the record and based upon that review found that the judgment of dissolution provided that respondent would receive $6,375 per month from May 1, 1983, to April 1, 1993, as and for unallocated support and maintenance. In the event of her remarriage during this time period, the unallocated support and maintenance would be reduced by 50% to $3,187.50. The 50% reduction approximates the children’s expenses then listed as $3,359.30. In her amended petition, respondent asserted that the children’s expenses increased by $1,866.18, which represents an increase in household, automobile, and their total personal expenses. She further alleged that “Robert’s 1987 Federal income tax return stated that his total income was $717,279” while the income shown for 1982 and 1983 was $101,500 and $250,137, respectively. Our courts have held that where a former spouse’s ability to pay is shown, the fact that the children have grown older and the cost of living has risen are proper bases for establishing increased need. (In re Support of Whitney (1980), 90 Ill. App. 3d 734, 413 N.E.2d 872; Addington v. Addington (1977), 48 Ill. App. 3d 859, 363 N.E.2d 151; see also Schmerold v. Schmerold (1980), 88 Ill. App. 3d 348, 350, 410 N.E.2d 629.) However, an actual increase in the children’s living expenses must be shown, rather than a mere increase in the cost of living generally (Harner v. Harner (1982), 105 Ill. App. 3d 430, 434 N.E.2d 465), and the increase in the children’s needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred which creates a substantial imbalance between the childrens’ needs and the parents’ support capabilities, modification is required. Schmerold, 88 Ill. App. 3d at 350-51; In re Sharp (1978), 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279.

Accordingly, we believe that the trial court’s dismissal of respondent’s amended petition for increase in child support and to terminate unallocated maintenance and child support was improper. Moreover, section 505 delineates the factors the trial judge must consider before modifying the support obligation. Here, as the trial judge failed to conduct a hearing, there was no evidence of the parties’ income and expenses, the financial resources of the children, if any, or the standard of living the children would have enjoyed had the marriage not been dissolved except the petition and affidavit of respondent. In our opinion, a review of the record based upon these documents alone demonstrates that respondent sufficiently pleaded facts to show that there has been an increase in the needs of the children and of the household. For that reason we reverse the trial court’s order as it relates to child support and remand for a hearing.

Order reversed and remanded.

BUCKLEY and O’CONNOR, JJ., concur.