author: JUSTICE BOWMAN

text:
    THE COUNTY OF KENDALL, Plaintiff-Appellant, v. AURORA NATIONAL BANK TRUST No. 1107 et al., Defendants-Appellees.
    Second District
    No. 2—90—0496
    Opinion filed October 10, 1991.
    Rehearing denied November 5, 1991.

      Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Joseph H. Barnett, of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, Wilson Burnell, and Truemper, Hollingsworth & Wojtecki, all of Aurora, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, the County of Kendall (County), appeals the judgment of the circuit court dismissing its complaint for an injunction against defendants, Aurora National Bank, as trustee under trust No. 1107, and Donald and Carol Hamman, the beneficiaries of the land trust. The County sought to enjoin defendants from extracting and removing sand from land held by the trust. This is the second time the parties have been before this court.

The factual basis of this case is well set forth in our previous opinion (County of Kendall v. Aurora National Bank Trust No. 1107 (1988), 170 Ill. App. 3d 212) (Kendall County I). The particular facts relevant to this appeal may be summarized from the earlier opinion, the well-pleaded facts in plaintiff’s complaint, and affidavits filed by the defendants in support of a motion to dismiss. Defendants’ land is located in an A-l agricultural district pursuant to the Kendall County zoning ordinance. Prior to May 12, 1987, defendants planted 90 acres of grass sod on their 250-acre parcel at a cost of $58,900 including the purchase of seed and the necessary equipment. They moved in heavy machinery to excavate a 7- to 10-acre pond to contain the water necessary to irrigate the sod. They planned to remove 2 to 3 feet of top soil and 24 to 25 feet of sand before hitting the subsurface of clay. The sand would be sold commercially. The banks of the pond would be sloped to make the property attractive for possible future residential zoning, and the depth of the pond would not exceed 28 to 30 feet.

The County sued to prevent excavation of the sand which needed to be removed in order to create the pond. The trial court granted an injunction, finding that the excavation was mining and a violation of the County zoning ordinance which prohibited mining in an agricultural zone. On appeal, this court reversed the lower court, holding that removal of the sand served an agricultural purpose, namely, construction of a pond to irrigate the sod, and was protected from zoning regulation by the agricultural purpose exemption found in section 1 of “An Act in relation to county zoning” (Act) (Ill. Rev. Stat. 1987, ch. 34, par. 3151). At the time the Act stated:

“For the purpose of promoting the public health, safety, morals, comfort and general welfare, *** the board of supervisors *** of each county, shall have the power to regulate and restrict the location and use of buildings, structures and land ***.
The powers by this Act given shall not be exercised so as to *** impose regulations or require permits with respect to land used or to be used for agricultural purposes ***.” (Ill. Rev. Stat. 1987, ch. 34, par. 3151.)

In our opinion of June 1, 1988, the cause was remanded to the circuit court with directions to vacate the injunction. (County of Kendall, 170 Ill. App. 3d 212.) We subsequently denied a petition for rehearing, and the supreme court denied a petition for leave to appeal (County of Kendall v. Aurora National Bank Trust No. 1107 (1988), 122 Ill. 2d 576). The trial court vacated the injunction on January 6,1989.

During the injunction, defendants managed to irrigate the sod at a cost of $58,000 by piping in water over another property, but, according to Donald Hamman’s affidavit in this case, that method is no longer available because the neighboring property has been subdivided and the temporary easement has been lost. The sod planted in 1987 was harvested in October and November 1988. In August and September 1989, after dissolution of the temporary and permanent injunctions, defendants planted 120 acres of sod. They also spent $2,000 to install new road culverts and $2,500 for highway permits to move in heavy equipment. In his affidavit Donald Hamman alleged that the market value of the 1989 sod was $425,000 and that if the pond was not built to help irrigate it, the crop was in danger of becoming a total loss. The major differences in facts between 1987 and 1989 were that defendants intended to use the 7- to 10-acre pond to irrigate 120 rather than 90 acres of sod, their investment had increased, and the alternate water supply used in 1987 and 1988 had been lost.

Subsequent to our opinion in Kendall County I, but prior to the lifting of the injunction, the legislature changed the law concerning the agricultural purpose exemption. Section 1 of the Act was amended (Pub. Act 85 — 1421, art. I, §3, eff. Dec. 15, 1988), repealed and reenacted as section 5 — 12001 of the Counties Code. The amendment added the following language:

“As used in this Act, ‘agricultural purposes’ do not include the extraction of sand, gravel or limestone, and such activities may be regulated by county zoning ordinance even when such activities are related to an agricultural purpose.” Ill. Rev. Stat. 1989, ch. 34, par. 5 — 12001.

The amendment became effective on December 15, 1988. On December 18, 1989, the plaintiff filed a complaint identical to the one filed in 1987, again requesting an injunction against the defendants on the ground that they planned to engage in mining in an agricultural zone and that mining was allowed only on lands zoned “M3 Gravel Mining District.” While the complaint did not specifically allege reliance on the amendment to the statute, plaintiff expressly acknowledges in its appellate brief that it did not in the trial court, and does not in this court, deny reliance on the amendment.

The defendants moved to dismiss the complaint on the grounds of res judicata, retroactive legislation, violation of separation of powers, due process, equal protection, vested rights and other grounds. Although the motion was not precisely labeled, the trial court expressly noted that it considered it to be a motion pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619), which provides for involuntary dismissal on the ground that a claim is barred by affirmative matters which avoid the legal effect of or altogether defeat the claim.

The trial court initially denied each ground of defendants’ motion to dismiss because it determined that the facts had changed between 1987 and 1989. On reconsideration, however, while the court again denied relief on all of the other grounds raised by defendants, it concurred with their contention that application of the statutory amendment constituted a violation of the separation of powers doctrine. The court relied on Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, where our supreme court explained the manner in which legislation may offend the principles of separation of powers:

“The General Assembly may enact retroactive legislation which changes the effect of a prior decision of a reviewing court with respect to others whose circumstances are similar but whose rights have not been finally decided. Subject to due process and impairment-of-contracts limitations discussed later, the legislature has the authority to change the law for future cases arising from facts existing prior to the effective date of the legislation which made the change. This power extends to decisions in which the law changed by the legislature resulted from a reviewing court’s interpretation of a statute as well as from a reviewing court’s interpretation of the common law. What the General Assembly may not do is pass a statute in an attempt to change the result of a decision which has been finally decided as between the parties to that case.” (Emphasis in original.) 108 Ill. 2d at 10.

The trial court ruled that a final determination of the facts had been made in Kendall County I and that there was no material difference between the planned excavation in the earlier cause and the defendants’ current plans. Accordingly, since the principle of separation of powers prohibited the legislature from altering a final judgment, the amendment of the statute could not be used to change the result of the prior case. The complaint was dismissed, and this timely appeal followed.

While the County does not dispute the trial court’s finding that there was no material change of facts between the previous action and the present action, it contends that the court’s reliance on Sanelli was misplaced. Plaintiff argues that Sanelli was concerned with the retroactive application of new legislation to a matter which has already been finally decided, while the County’s conduct in this case involves only the prospective application of new legislation. Plaintiff also focuses on the nature of the dispute, which it asserts is not concerned with a matter which remains static, such as a claim for a money judgment, but involves the future use of land and urges that, for purposes of applying the separation of powers doctrine, the parties’ conflict was not “finally decided” by our prior decision.

Defendants respond by stressing that, on the particular facts of the previous case, the court decided that the excavation of sand by defendant was agricultural in nature and could not be regulated under the plaintiff’s zoning ordinance. Further, that decision involved the same facts and the same parties as does this case. Under those circumstances, according to defendants, application of the amendment now to allow zoning regulation of its proposed pond excavation attempts to do precisely what Sanelli held could not be done through new legislation, i.e., “change the result of a decision which has been finally decided as between the parties to that case.” (Sanelli, 108 Ill. 2d at 10.) Defendants vigorously insist the County is impermissibly trying to apply the amended statute retroactively. The defendants’ position cannot be sustained.

In Sanelli the court discussed Roth v. Yackley (1979), 77 Ill. 2d 423, where the plaintiffs sought the return of fines previously paid by defendants in criminal cases as conditions of probation under section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56V2, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56V2, par. 1410). The Roth plaintiffs relied on People v. DuMontelle (1978), 71 Ill. 2d 157, where the court had held that fines were not authorized by section 10 of the Cannabis Control Act. However, about three months after DvMontelle was decided, both section 10 of the Cannabis Control Act and section 410 of the Controlled Substances Act were amended to authorize fines and costs as conditions of probation. The amendment specifically provided not only that the changes were declaratory of existing law but also that they were applicable to events which occurred prior to the effective date of the amendatory legislation. The Roth court held that the amending act violated the principle of separation of powers. The Sanelli court explained that the legislation examined in Roth violated separation of powers in two ways. First, the legislature attempted, through subsequent legislation, to construe a prior statute contrary to the construction the court had already given that statute. Second, the legislature had tried to reverse previously made decisions of the court by the retroactive application of the amendment. We can find neither of these flaws connected with application of the amendment at issue in the case before us. A statute is not retroactive simply because it relates to prior events or draws upon antecedent events for its operation. Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 905.

First of all, it is self-evident and not contested by defendants that there is nothing on the face of the amendment expressly making it retroactive. Nor is there any implication in its language that it is meant to be retroactive legislation. Consequently, we do not perceive any attempt to interfere with or modify the construction we gave to the Act in Kendall County I.

As to the second problem described in Sanelli, defendants posit that the County’s insistence that it can now regulate their pond excavation through its zoning ordinance is an attempt to use the amendment to reverse our decision in Kendall County I. There is no question that, under the law as we interpreted it in Kendall County I, defendants could excavate for their pond. However, there is no vested right in the continuance of a law, and a legislative body has an ongoing right to amend a statute or ordinance. (Fallon v. Illinois Commerce Comm’n (1948), 402 Ill. 516, 526; Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 404.) It is within the prerogative of the General Assembly to decide that a particular practice is not in the best interest of the public and to enact legislation to correct that practice for the future. Sanelli v. Glenview State Bank (1985), 108 Ill. 2d 1, 43 (Simon, J., dissenting).

Just as there is no vested right in the continuation of a zoning ordinance (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 577; Citizens Bank & Trust Co. v. City of Park Ridge (1972), 5 Ill. App. 3d 77, 81), we do not think a property owner has a vested right in the indefinite continuation of what was determined to be a particular, permissible use of his property at a specific point in time. Defendants’ rights were vindicated in Kendall County I because, as we interpreted it, the statute gave those rights. Our opinion was filed in June 1988. The County did not file this suit until a year and a half later, in December 1989. In effect, the rights secured to defendants in Kendall County I were viable from the time we found them to be protected by the statute, or, at the very least, from the time the injunction was vacated in January 1989, until the time this challenge was initiated. By that time the statute had changed. The County now seeks to rely on the amended statute. We do not perceive this sequence of events as an attempt to apply the amendment in a retroactive fashion. On the contrary, we believe it to be merely an attempt by the County to enforce its zoning ordinance in conformance with the law as it existed at the time the complaint was filed. The County’s conduct in no way reaches back and changes the rights secured in Kendall County I. Since this case does not involve retroactive application of new legislation, the County’s reliance on the amendment to the Act does not violate the principles of separation of powers, and plaintiff’s claim is not barred on these grounds.

Even though we agree with the County that the facts of this case do not present a separation of powers issue and have disposed of the only issue formally raised on appeal accordingly, we do not consider our review complete. A reviewing court, upon its own motion, may rely on other grounds to reach a just result and maintain a sound and uniform body of precedent. Wozniak v. Segal (1974), 56 Ill. 2d 457, 460-61; Hux v. Raben (1967), 38 Ill. 2d 223, 224-25; Sanderson v. De Kalb County Zoning Board of Appeals (1974), 24 Ill. App. 3d 107, 110.

Defendants claimed in the court below that application of the statutory amendment would violate their due process rights. The trial court addressed defendants’ concerns, saying that it was necessary to determine whether the amendment constituted a taking of property without due process of law. Citing Sanelli for the proper approach to due process analysis, the court focused its inquiry on whether defendants had suffered a substantial impairment to their rights. After noting Donald Hamman’s affidavit statement regarding loss of the easements which had been utilized to pipe in water for the sod, the court remarked that no evidence had been presented by defendants to show that some watering method, other than a pond, would be “so unreasonable.” Recalling evidence offered in Kendall County I regarding the use of a well for watering and Donald Hamman’s testimony, also in Kendall County I, that if it became necessary he would dig an auxiliary well, the court concluded, “Therefore, based upon the Defendant’s failure to meet his burden in establishing a substantial impairment, the due process argument must fail.” The trial court obviously found that, since defendants’ use of their property would be only minimally impaired if they were not allowed to build a pond, there was no due process violation.

The trial court relied on Sanelli, where due process concerns were triggered by an express provision for retroactive application of the legislation at issue there. The Sanelli court framed its inquiry as whether such application constituted a taking without due process of law. In contrast, in the instant case we have determined that the County is not attempting to apply the amendment retroactively. Consequently, due process issues arise in a slightly different context. In their motion to dismiss, motion to reconsider, and at oral argument, defendants asserted that their right to excavate and create a pond for irrigation purposes was “vested” by our decision in Kendall County I and was “sheltered” or “grandfathered” from the effects of legislation adopted after Kendall County I. They also repeatedly refer to their “vested” rights, without citation to authority, in their appellate brief. While defendants have not made a specific, clearly delineated “vested rights” argument, it is plainly evident that they claim their right to excavate and remove sand from their property was secured by Kendall County I and cannot be taken away from them. They characterize the County’s effort to block such excavation as an attempt to deprive them of “vested” property rights without due process of law.

As we discussed above, no one has a vested right in any rule of law entitling him to insist that it should remain unchanged for his benefit. (Maki v. Frelk (1968), 40 Ill. 2d 193, 196.) Nevertheless, the right of a legislative body to amend or repeal legislation is limited by the prohibition on legislation which affects vested rights. (Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill. App. 3d 401, 404.) However, a vested right is more than a mere expectation based upon anticipation of the continuance of existing law; it must have become a title, legal or equitable, to the present or future enjoyment of property. (Ho gan v. Bleeker (1963), 29 Ill. 2d 181, 188; Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 905.) In the event an existing law changes through amendment or appeal prior to the vesting of a right, there is no cause to object. (Griffin, 112 Ill. App. 3d at 905.) A right is said to be vested when it has been so far perfected that it cannot be taken away by statute. (Sanelli, 108 Ill. 2d at 20.) These principles are often applied in cases challenging changes in zoning classifications or the denial or revocation of building permits. In People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove (1959), 16 Ill. 2d 183, the court set forth the rule as follows:

“[Wjhere there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification.” Skokie Town House Builders, 16 Ill. 2d at 191.

Accord Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 522-23; Fifteen Fifty North State Building Corp. v. City of Chicago (1958), 15 Ill. 2d 408, 416.

In Skokie Town House Builders the plaintiff landowner, in reliance on the existing village zoning ordinance, paid to have plans prepared for the construction of townhouses and paid the village $1,630 for permits and $200 as a deposit for sidewalks. The zoning ordinance was then amended in such a way as to preclude plaintiff’s proposed construction. The monies paid to the village were not tendered back to plaintiff. The court found plaintiff had a vested right under the zoning ordinance prior to its amendment and was entitled to complete construction of the townhouses. While not all expenditures and actions taken in reliance on a zoning classification are sufficient to create a vested right (O’Hare International Bank v. Zoning Board of Appeals (1976), 37 Ill. App. 3d 1037, 1040), the rule which makes vesting dependent upon a substantial change of position is based on the unfairness of halting a project after expenditures have been made and obligations incurred in a good-faith reliance on the issuance of a permit (Osina v. City of Chicago (1975), 28 Ill. App. 3d 955, 961).

Defendants in this case seek to establish a vested interest under our interpretation of the statute in Kendall County I, rather than under a zoning ordinance or building permit. However, like the latter situations, this case is one where the landowner claims to have begun a project on his land in reliance on, and in accord with, existing land use law only to have the law change before he could complete the project. We think the principles enunciated in the zoning cases are equally applicable here.

Whether defendants have a vested right to complete their pond depends on the extent to which they changed their position or made expenditures in reliance on the law as it existed following Kendall County I. In this regard it must be noted that defendants’ opportunities to pursue their rights were somewhat circumscribed in that they could not act pursuant to the favorable ruling they received in Kendall County I until January 1989 when the injunction was lifted. Within this limitation, according to Donald Hamman’s unrefuted affidavit, defendants did change position and make expenditures related to the pond. Accordingly, there was evidence before the trial court on the issue of vested rights. It does not appear to us, however, that the trial court made any findings or determinations on this particular aspect of due process. In the portion of its order dealing with due process the court spoke only of substantial impairment and stated that it would not be unreasonable for defendant to secure water from a source other than a pond. As mentioned above, since the court was following Sanelli, it evidently considered the statute to have been applied retroactively — contrary to our ruling here — and the vested rights analysis set forth above never came under consideration.

Defendants have asserted both here and in the court below that they have vested rights. Since the trial court made no findings or fact determinations on this issue, we do not have an adequate record on which to base a proper review. The matter must be remanded to the trial court for consideration and appropriate findings regarding the question of whether defendants’ actions subsequent to Kendall County I gave them a vested property right to excavate and remove the sand which they claim is necessary in order to construct an irrigation pond.

On a final note, we will briefly address one other point argued by defendants in the trial court because, if, upon remand, the lower court finds plaintiff’s action is not barred by vested rights considerations, we are confident the issue will be raised again.

Plaintiff alleged in this case, as it did in Kendall County I, that defendants’ proposed excavation constitutes mining. Defendants charge that this claim flies in the face of our ruling in Kendall County I that they are engaged in agriculture, not mining. However, in our earlier case we did not say that defendants’ extraction and removal of sand and gravel did not constitute mining. What we said was that the basic, overall use of defendants’ land was agricultural in nature and that defendants’ excavation was proposed for an agricultural purpose. As such, because of the statute, that excavation was beyond the reach of the County zoning laws. Once we determined that an agricultural purpose was being served we found it unnecessary to go further. Consequently, we made no determination as to whether defendants were mining or not mining.

It is not disputed that the basic facts of this case have not changed since Kendall County I was decided. Accordingly, the conclusion is warranted that defendants’ use of their land is still basically agricultural. However, removal of sand, gravel, and limestone, even when serving an agricultural purpose, is no longer sheltered from application of the zoning ordinance. If the mining ordinance is applicable to the facts here, the ordinance can be used to prohibit mining in an agricultural zone just as other sections of the ordinance can be used, for example, to prohibit industry or manufacturing in a residential zone. We do not agree, as urged by defendants, that the statutory amendment merely constituted enabling legislation, and the County needs to amend its zoning ordinance to regulate, specifically, extraction of sand and gravel when related to agricultural purposes. In this regard we note that, by its express language, the amendment precludes such extraction from being an “agricultural purpose.” We think the effect of the amendment was only to narrow the scope of the agricultural purposes exception to the exercise of the zoning power, not to give the County new power to regulate through zoning.

Having said all of the above, we emphatically stress that the zoning ordinance itself is not before us, and we make no determination as to whether the “M3 Gravel Mining District” provision of the Kendall County zoning ordinance contains language making it applicable to the particular facts of this case.

Based on the reasons set forth above, the order of the circuit court of Kendall County dismissing Kendall County’s complaint is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McLaren and GEIGER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE VILLAGE OF MUNDELEIN, Plaintiff-Appellee, v. THE VILLAGE OF LONG GROVE, Defendant-Appellant.
    Second District
    No. 2—90—0822
    Opinion filed October 10, 1991.

      John M. Mullen, of Libertyville, for appellant.
    Donald M. Lonchar, Jr., Thomas A. Morris, Jr., and Thomas K. Gerling, all of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Charles F. Marino and C. Dirk McElravey, of counsel), for appellee.
    Adeline J. Geo-Karis & Associates, of Zion, Berle L. Schwartz, of Highland Park, and Bruce A. Slivnick, of Deerfield (Adeline Geo-Karis, of counsel), for Village of Vernon Hills.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, the Village of Mundelein (Mundelein), challenged an annexation by defendant, the Village of Long Grove (Long Grove), through a complaint in quo warranto. The territory annexed by Long Grove was substantially the same as territory annexed also by Mundelein. The circuit court of Lake County granted Mundelein’s motion for summary judgment. Long Grove appeals, contending that summary judgment in favor of Mundelein was error because (1) the court failed to examine the validity of the Mundelein annexations, (2) Mundelein’s annexation ordinances were void, and (3) Long Grove’s annexation was valid. We affirm.

In March 1987 a petition for annexation of their property was filed with Mundelein by the trustee/owners and beneficiary/owner of a parcel of land, known as the Livaditis parcel, located in unincorporated Lake County, near the intersection of Routes 45 and 83. Subsequently, the Livaditis parcel was the subject of public hearings regarding zoning, special use, and an annexation agreement for the property. The parcel was also discussed at a public meeting of the Mundelein Village Board on November 21, 1987.

On December 31, 1987, and again on January 2, 1988, Long Grove published a notice in the Chicago Tribune that on January 12, 1988, it would forcibly annex approximately 56.7 acres of property situated at or near the intersection of Routes 45 and 83. The territory Long Grove proposed to annex included the Livaditis parcel.

Before Long Grove could act on its proposed annexation, owners of 11 of the parcels in the area to be annexed filed petitions for annexation with Mundelein. Three petitions were filed on January 8, 1988, and eight were filed on January 11,1988.

On January 12, 1988, Mundelein gave notice to other pertinent taxing districts and officials that, at a meeting on January 23, 1988, the Mundelein Village Board would consider annexation of the parcels for which it had received annexation petitions. That day Mundelein also notified Long Grove in writing both that it was actively considering annexation of the Livaditis parcel and that it had received petitions for annexation of 11 other parcels. Mundelein requested Long Grove to defer any action to annex those properties.

The same evening, January 12, 1988, Long Grove adopted ordinance No. 88 — 0—1, which annexed 56.7 acres of property. The acreage annexed included the Livaditis parcel, the 11 parcels whose owners had requested to be annexed by Mundelein, and a segment of Commonwealth Edison (Edison) right-of-way. With the exception of one area the annexed territory was surrounded by the Villages of Long Grove, Mundelein, and Vernon Hills. The exception was 210 feet in length and occurred where the Edison right-of-way continued on beyond Long Grove’s annexation territory. After passing through Mundelein, the unincorporated right-of-way ran south through Vernon Hills. Long Grove’s plat of annexation included a part of the section of right-of-way that passes through Vernon Hills and designated it as parcel 10 of the area to be annexed. (See Fig. 1.) A short distance south of parcel 10 the Edison property was incorporated into Vernon Hills. However, between the south edge of parcel 10 and the point where Edison’s land became part of Vernon Hills there lay a strip of right-of-way 830 feet long and 210 feet wide. This parcel was not included by Long Grove in its annexation. The property consisted of 4.0048 acres and was surrounded to the south, west and east by Vernon Hills. See Fig. 1, “Omitted Parcel.”

At a public meeting of the Village Board on January 23, 1988, Mundelein adopted ordinance No. 88 — 1—8, which annexed the 11 parcels the Village had been asked to annex. Subsequently, the owners of the Livaditis parcel filed an amended petition for annexation, and, on February 20,1988, Mundelein annexed the Livaditis property.

Between March and May 1988 Mundelein, Vernon Hills, and Commonwealth Edison all filed applications for leave to file complaints in quo warranto challenging Long Grove’s annexation. The applications were consolidated, all three applicants were granted the requested leave, and, by the end of November, the parties’ quo warranto complaints were filed. Long Grove then also applied for leave to file a complaint in quo warranto, but its request was denied. Long Grove’s subsequent petition for rehearing was also denied, as was its request for leave to file a counterclaim in quo warranto.

Long Grove filed answers to all three complaints. Its answer to Mundelein’s complaint asserted the invalidity of Mundelein’s annexation ordinances as an affirmative defense. Each plaintiff then filed a motion for summary judgment, and Long Grove responded with a summary judgment motion of its own, based solely on the alleged invalidity of Mundelein’s ordinance.

Upon finding that Long Grove’s annexation violated statutory requirements, the trial court granted plaintiffs’ and denied defendant’s respective motions for summary judgment. In a final judgment order the court declared Mundelein’s annexation to be valid, held Long Grove’s annexation ordinance No. 88 — 0—1 to be null and void, and declared that Commonwealth Edison’s right-of-way remained in unincorporated Lake County. Long Grove then timely filed this appeal.

While a final judgment order was ultimately filed in this case, the trial court resolved the dispute after the parties filed and argued motions for summary judgment. A motion for summary judgment should be granted where the pleadings, depositions, admissions and affidavits on file demonstrate that no genuine issue as to any material fact remains to be resolved and the movant is entitled to judgment as a matter of law. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34; People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 404.) Long Grove contends that neither requirement for summary judgment was satisfied.

Long Grove initially attacks the trial court’s refusal to allow a challenge to the validity of Mundelein’s annexation ordinance. The court did not permit Long Grove to raise the issue in either a separate quo warranto complaint or as a counterclaim in Mundelein’s quo warranto action. While Long Grove asserted the invalidity of Mundelein’s ordinance in the form of affirmative defenses to Mundelein’s complaint, and again in its motion for summary judgment, the trial court refused to address the question. The court rebuffed Long Grove’s efforts for two reasons. First, in its order granting Mundelein’s application for leave to file a quo warranto complaint, the court found that Mundelein’s annexation proceeding enjoyed priority over that of Long Grove. Second, in its memorandum opinion granting summary judgment for plaintiffs, the court noted that, in the quo warranto proceeding against it, Long Grove had to justify its own annexation before it could challenge Mundelein’s annexation proceedings. However, the court had found Long Grove’s annexation to be void because it violated the statutes controlling forcible annexations. Accordingly, the court determined that the validity of Mundelein’s annexation was not at issue. Long Grove asserts that the court erred both in finding that Mundelein’s proceedings had priority over its own and in holding Long Grove’s annexation to be null and void.

As we read it, Long Grove’s initial argument is that Mundelein’s annexation proceedings are not entitled to priority because the annexation petitions presented to Mundelein suffered from various defects. Long Grove complains that priority could not attach if the enabling statutes were not followed. This argument is without merit.

Priority, as the term is applied to competing annexations, is not dependent on the correctness or validity of annexation petitions. Rather, priority refers to the well-established concept that multiple overlapping annexation proceedings must generally be considered and completed in the order in which they were initiated. (City of Countryside v. Village of La Grange (1962), 24 Ill. 2d 163, 166; In re Petition of Village of Long Grove to Annex Certain Territory (1987), 156 Ill. App. 3d 1056, 1059.) Long Grove adopted its ordinance pursuant to section 7 — 1—13 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, eh. 24, par. 7 — 1—13), which allows a municipality forcibly to annex property by the passage of an ordinance. Mundelein’s annexation proceeded pursuant to section 7 — 1—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8), which provides for annexation at the request of landowners and electors residing in the territory to be annexed.

Section 7 — 1—8 voluntary annexation proceedings are initiated by the filing of petitions by the landowners. (People ex rel. Village of Worth v. Ihde (1961), 23 Ill. 2d 63, 67-68; People ex rel. Village of Buffalo Grove v. Village of Long Grove (1988), 173 Ill. App. 3d 946, 951.) Section 7 — 1—13 forcible annexations are initiated by passage of an annexation ordinance. (People ex rel. City of Leland Grove v. City of Springfield (1988), 166 Ill. App. 3d 943, 946-49; Village of Buffalo Grove, 173 Ill. App. 3d at 951.) In this case it is undisputed that petitions for voluntary annexation were filed with Mundelein in March 1987 and on January 8 and 11, 1988, and that Long Grove did not adopt its ordinance annexing the overlapping territory until January 12, 1988. Accordingly, the trial court correctly held that Mundelein’s annexation enjoyed priority over Long Grove’s proceedings.

Priority in the present context means only that Mundelein was entitled to have its claims as to the overlapping territory considered and resolved before the court could consider the matter of Long Grove’s claims. The validity of Mundelein’s proceedings could be raised by a proper party during that consideration. But to assert that the invalidity of the ordinance deprived plaintiff of priority is to put the cart before the horse. In other words, Mundelein had to invoke successfully the aid of the court before its ordinance could be attacked, and it had to have priority in order to secure properly the aid of the court.

The argument made here by Long Grove was also made in Village of Kildeer v. Village of Lake Zurich (1988), 167 Ill. App. 3d 783. Lake Zurich argued that Kildeer did not have standing to seek relief from an overlapping annexation in a quo warranto suit because Kildeer’s own annexation ordinances were invalid at the outset. We noted that this contention was raised in response to the quo warranto complaint and indicated that standing could not be made to depend on resolution of an issue raised within the quo warranto action itself. While Long Grove casts its argument in terms of priority rather than standing, the result Long Grove seeks is the same. Long Grove, like Lake Zurich in Kildeer, seeks to prevent plaintiff from proceeding with its quo warranto action. However, Mundelein’s proceedings enjoy priority, and that priority gives Mundelein, just as it did plaintiff in Kildeer, standing to challenge its adversary in quo warranto. While a municipality may ultimately lose its bid to annex property because of various flaws in its proceedings, if it has priority it will not lose its opportunity to be heard first because of those flaws.

Long Grove challenges also the trial court’s determination that its ordinance was null and void. The court found that Long Grove’s annexation did not comport with the statutory requirements and, therefore, refused to recognize Long Grove’s annexation. We find no error.

Long Grove proceeded under section 7 — 1—13, which states in pertinent part, “[wjhenever any unincorporated territory containing 60 acres or less, is wholly bounded by (a) one or more municipalities, *** that territory may be annexed by any municipality by which it is bounded in whole or in part” (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1— 13). Territory sought to be annexed pursuant to this section of the statute must be bounded on all sides as called for by the statute, and any ordinance annexing territory not so bounded is a nullity and of no legal effect. (People ex rel. Universal Oil Products Co. v. Village of Lyons (1948), 400 Ill. 82, 87 (construing Ill. Rev. Stat. 1947, ch. 24, par. 7 — 11, predecessor of Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—13).) It is not disputed that the territory annexed by Long Grove is surrounded by Mundelein, Long Grove, and Vernon Hills, except for a 210-foot-wide span where the annexed property meets a strip of land owned by Commonwealth Edison. Mundelein and Commonwealth Edison assert that the Edison property is unincorporated and that the territory to be annexed, therefore, does not meet the requirement that such territory be wholly bounded by one or more municipalities. Long Grove insists that the strip of land in question is incorporated. Alternatively, Long Grove urges that if there is a gap in the bounding of its annexation, it is de minimis and should not defeat its ordinance.

Regarding Long Grove’s first argument, it is clear from the court’s memorandum order that it found the Edison parcel to be unincorporated. While the order does not set forth the basis for the court’s conclusion, the record presented to the court reflects the following uncontested facts. The property immediately adjacent to the strip of land owned by Edison, to both the east and the west, is owned by the Fiore family. In 1960 the Fiores voluntarily annexed their property to the Village of Indian Creek. The legal description of the land annexed included the strip belonging to Edison. According to the unrefuted affidavit of James J. Bruen, Edison land management supervisor, Edison never petitioned for annexation of the strip to Indian Creek, and, if it was annexed, the annexation was accomplished without Edison’s knowledge or consent.

Subsequently, in 1986, the Fiore family petitioned the court to disconnect their property from Indian Creek, pursuant to section 7 — 3—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7 — 3— 6). The Fiores and the Village of Indian Creek entered into a settlement agreement in 1987, and, as part of a settlement order which incorporated the agreement, all of the territory that had been annexed in 1960, including Edison’s land, was disconnected. James Bruen’s affidavit indicates that Edison was not a party to and had no knowledge of either the disconnection proceedings or the settlement reached by the parties. However, it is stated in the affidavit that Edison “does not object to, and agrees with” the disconnection of its property from Indian Creek. After the disconnection the Fiore parcels, but not the Edison strip, were annexed to Vernon Hills. The Edison property then lay one-quarter to one-half mile away from the corporate limits of Indian Creek.

Long Grove takes the position that the settlement order entered in the Fiore disconnection proceedings was void as to the Edison parcel since Edison was never made a party to the proceedings and the court, therefore, lacked both subject-matter and personal jurisdiction as to Edison and its property. Accordingly, Long Grove insists that the Edison land was not disconnected but remained part of Indian Creek and, as such, could not be annexed by Long Grove in its 1988 annexation ordinance. Furthermore, since Edison’s land was part of Indian Creek, the territory to be annexed was totally surrounded by other municipalities. Plaintiffs respond that Long Grove does not have standing to attack the 1986 disconnection proceedings because it was not a party to those proceedings. While it is true, as Long Grove emphasizes, that a void judgment can be attacked at any time, either directly or collaterally (People v. Pine (1989), 129 Ill. 2d 88, 120), the order challenged here was not rendered void for lack of personal jurisdiction and is not vulnerable to Long Grove’s challenge.

The record discloses that the relevant order resulted from a settlement agreement between the Fiores and Indian Creek. It was designated a “Settlement Order” and incorporated the parties’ agreement. An agreed or consent order is tantamount to a contract. (Board of Education of Community High School District No. 218 v. Falk (1972), 8 Ill. App. 3d 696, 699.) Further, a judgment by consent derives its validity from the consent of the parties, not from adjudication by the court, and is treated as a contract. (Cwik v. Condre (1955), 4 Ill. App. 2d 380, 384.) A consent judgment, which constitutes a mere recitation of the parties’ settlement agreement (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983), is an independent undertaking which may take precedence over pleadings and evidence and may even delineate and limit the relief to be granted (Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 127). In light of these principles, Long Grove’s insistence that the disconnection order was void as to Commonwealth Edison’s property is not persuasive.

Since the settlement agreement between the Fiores and Indian Creek is to be treated as a contract, the validity of the court’s order is a matter of the consent of the parties and is not dependent upon whether the court had jurisdiction over the parties. In essence, both the Fiore and Edison properties were disconnected, not as a result of a judicial determination that disconnection was proper and permissible, but because the Fiores and Indian Creek agreed that the property should be disconnected. The court order memorialized and confirmed their agreement and made it effective with regard to the legal status of the property. In no sense was disconnection imposed upon the property or the parties by the court.

It is true that, since Edison was not a party to the disconnection proceedings, it was not bound by the settlement agreement at the time it was executed and the court order was not enforceable against Edison. However, this is not the same as saying the order of the court was void for lack of jurisdiction and therefore subject to a collateral attack. At best, the order was voidable at Commonwealth Edison’s option. That is, since its property was affected Edison had the choice of either challenging or ratifying the settlement agreement and order. A party named in a contract may, by its acts and conduct, indicate assent to the contract terms and become bound by the contract provisions even though the party has not signed the contract. (Landmark Properties, Inc. v. Architects International-Chicago (1988), 172 Ill. App. 3d 379, 383.) In fact, the record reveals that Edison did subsequently assent to the terms of the settlement agreement. Prior to that assent, however, the validity and binding effect of the settlement order, as to Edison and its property, were dependent on Edison itself, not the jurisdiction of the court over Edison. Since the order was voidable, rather than void, it was not subject to a collateral attack by Long Grove. See Chicago Title & Trust Co. v. Village of Mount Prospect (1987), 160 Ill. App. 3d 851, 856.

Even if we were to find the settlement order void as to the Edison property, we would still find Long Grove’s position to be questionable. The annexation statute plainly calls for the inclusion of all adjacent unincorporated areas in an involuntary annexation. As will be discussed shortly, the exclusion of such areas is contrary to the purpose of the statute. The Edison property consists of less than five acres and would have been easy enough for defendant to include in its annexation. We recognize Long Grove’s position that the reason it excluded those few acres was because they were already part of Indian Creek. We are mindful also, however, of the suggestion in the record that inclusion of the property may have resulted in an annexation territory of more than 60 acres and thus may have precluded altogether the forcible annexation by Long Grove. In any event it appears to us that Long Grove is not concerned with whether the property is part-of, specifically, Indian Creek. Nor is it concerned with how the property is affected by an incorporated, as opposed to unincorporated, status. Rather, defendant is concerned only that the property be incorporated for incorporation’s sake. It does not matter where it is incorporated but only that it be incorporated since Long Grove did not include it in its annexation. Long Grove does not invoke purported flaws in the disconnection order to protect any of its present interests but to avoid noncompliance with the statutory requirement that land annexed be “wholly bounded” by other municipalities. At best, Long Grove’s interest in the validity of the disconnection order may be characterized as remote.

Moreover, Long Grove’s argument that Edison’s property remained incorporated in Indian Creek leads to an absurd outcome. The Fiores sought disconnection under section 7 — 3—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7 — 3—6), which provides that disconnection of territory may “not result in the isolation of any part of the municipality from the remainder of the municipality.” Yet, this is precisely the result which must be acknowledged if we accept Long Grove’s position. Like a small island, the Edison property lies at least a quarter mile distant from the Indian Creek village limits and is surrounded on three sides by Vernon Hills and on the remaining side by unincorporated Lake County. It is evidently ignored by Indian Creek. We do not think that such an incongruous state of affairs should be supported or perpetuated. Just as the disconnection statute should be given a sensible, intelligent, and reasonable meaning (Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 550), we think an agreement to disconnect must bring about a sensible, intelligent, and reasonable result. In this regard, it is noteworthy that, as our supreme court recently observed, the disconnection statutes have consistently been given a liberal construction in favor of disconnection. (Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill. 2d 146, 154.) Absent some complaint from Commonwealth Edison, a challenge to the disconnection of Edison’s land must be greeted with skepticism.

We note also that the plat of annexation attached to Long Grove’s annexation ordinance shows the Villages of Long Grove, Mundelein, and Vernon Hills bordering the territory to be annexed. Nowhere, including the southern boundary, does the plat show Indian Creek abutting the annexation territory. Thus, there is some indication that, at the time it adopted its annexation ordinance, Long Grove itself did not think the territory it sought to annex bordered Indian Creek at any point.

Collectively, the points just discussed are persuasive that Long Grove would not have had standing to challenge the settlement order collaterally, even if it was void. Furthermore, we think these points are responsive to another approach employed by Long Grove. In its reply brief, and again at oral argument, defendant urged that it did not ask the trial court, and does not ask this court, to rule specifically that the disconnection is void as to the Edison parcel or to determine the exact status of that parcel. Rather, defendant requests only that we hold that it was not required to include the parcel in its annexation. The implication of this request is that defendant believes the status of the Edison land is not critical to its annexation. We find this belief to be misplaced.

After consideration of all the circumstances, we are of the opinion that it was sufficiently clear that Edison’s land either was disconnected or should be treated as disconnected, and thus unincorporated, that defendant should be held to the requirements set forth in the statute for including unincorporated property in its involuntary annexation. As we explain below, we do not consider the exclusion of Edison’s property to be de minimis in nature, either. We decline to rule that Long Grove was not required to include the Edison parcel.

Long Grove urges in its supplemental brief that the order is binding only on the parties and, as to all others, the Edison property is still incorporated in Indian Creek. As we have discussed, this argument yields an unreasonable and unacceptable result. It also does not take into account the statutory disconnection procedures. The Fiores petitioned for disconnection pursuant to section 7 — 3—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7 — 3—6). This section states that if the court finds the petition to be accurate and that the territory is entitled to disconnection “it shall order the specified land disconnected from the designated municipality.” Although the parties were ultimately able to reach an agreement regarding disconnection, the statutory process was already underway, and the actual, legal disconnection could be accomplished only in accordance with that process, i.e., through an order of the court. In our view the court’s order effectively disconnected all of the territory included in the petition. While the order may have been voidable as to Edison, in the absence of a challenge by Edison the land was disconnected and, thus, unincorporated as to all third parties as well as the parties involved in the court disconnection proceedings.

Long Grove next urges that, even if the territory it sought to annex is not totally bounded by one or more municipalities, the gap is de minimis and does not affect the validity of its annexation. Defendant focuses on the affidavit of its surveyor which establishes that the area not bounded constitutes less than 1.5% of the perimeter of the total annexation. Plaintiffs, on the other hand, strongly urge that the gap should not be considered de minimis and assert that Long Grove stopped short of annexing the last 830 feet of the Edison right-of-way only in order to assure the viability of its annexation.

Plaintiff points out that section 7 — 1—13 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—13) limits forcible annexations to territory containing 60 acres or less and that section 7 — 3—6 of the Code (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 3—6) allows an owner or owners of 20 or more acres to seek disconnection. Plaintiffs claim that if Long Grove had annexed the additional four acres of right-of-way, the total annexation would have been more than 60 acres and the total Edison property annexed would have been over 20 acres. Thus, according to plaintiff, Long Grove excluded Edison’s property in order to comply with the statutory acreage limitation and to deter Edison from initiating proceedings to disconnect its property from Long Grove. Long Grove responds that the amount of acreage involved raises questions of fact which could not be resolved in a motion for summary judgment. While we agree that plaintiffs’ argument prompts factual issues, we do not believe those issues need to be reached in order to resolve the question of whether the gap in the territory to be annexed was de minimis.

Plaintiffs have cited, and we have found, only one case directly on point on the issue of de minimis errors in annexation proceedings. In People ex rel. Chicago Title & Trust Co. v. City of Des Plaines (1966), 76 Ill. App. 2d 243, the city annexed territory pursuant to section 7— 1 — 13. The territory was completely encircled by the city except for a 49-foot gap where it met unincorporated property. The gap equaled eight-tenths of 1% of the total boundary between the city and the proposed annexation. The court found the gap to be trivial and not sufficient to defeat the “wholly bounded” requirement of the statute.

We do not find City of Des Plaines to be dispositive of the matter before us. First of all, it is noteworthy that the court in City of Des Plaines pointed out that the plaintiff did not appear to contend that the gap alone prevented the property from being “wholly bounded.” In fact, the primary issue in the case was whether the city could annex a railroad right-of-way which lay between the city and one of four sides of the property to be annexed. Without the right-of-way the annexation territory was not wholly bounded by the city. Plaintiffs here, on the other hand, direct our full attention to the effect of the gap in Long Grove’s annexation boundary.

We perceive that, in and of itself, the gap in this case is not significantly greater, in terms of the ratio of gap to overall boundary, than that in City of Des Plaines. However, we do find it significant that, as noted by the court, the 49 feet in City of Des Plaines were inadvertently omitted in the course of the city’s annexation of other territory adjoining the southern boundary of the property in question. In other words, it appears the city intended to annex an island of property which it thought was already encompassed within itself. In contrast, Long Grove intentionally omitted the 210 feet from its annexation on the ground that the adjoining section of the Edison right-of-way was already incorporated — a ground which we have determined to be unfounded.

There was no inadvertence here stemming from prior Long Grove annexations. On the contrary, the point where the gap occurs is the southern tip of a long, narrow strip of right-of-way, which extends south from the bulk of the annexation territory. The strip to be annexed, as well as the parcel omitted, is surrounded to the east and west by the Village of Vernon Hills. (See Fig. 1.) The 210-foot break in its proposed boundary, which Long Grove would have us declare de minimis, constitutes the entire southern edge of the territory Long Grove seeks to annex. These facts, unlike those in City of Des Plaines, do not lend themselves to the conclusion that the gap in Long Grove’s proposed boundary is de minimis.

We are reenforced in our conclusion by Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, where the city sought an annexation by referendum. The proposed annexation would have left an unincorporated island surrounded by the city and the area sought to be annexed. Although the issue in Spaulding revolved around contiguity, the court discussed section 7 — 11 (Ill. Rev. Stat. 1957, ch. 24, par. 7 — 11), the predecessor of section 7 — 1—13. According to the court the “wholly bounded” language of the section reflected an acknowledgement by the legislature that unincorporated islands of property existed and provided for the ultimate absorption of such areas into a municipality. While the court’s remarks constitute dicta, we nevertheless find them persuasive that the legislature devised and intended section 7 — 1— 13 to be a mechanism whereby relatively small, unincorporated parcels, left over after the incorporation of surrounding property, could be easily annexed by a contiguous municipality. Implicit in the “wholly bounded” language used by the legislature is the intent that such annexations should swallow up all of the unincorporated land sandwiched in amongst already existing municipalities. Thus, it appears the “wholly bounded” language serves a distinct purpose and should be given full effect. Accordingly, under the circumstances of this case, we decline to disregard the lack of compliance with the statute on the de minimis grounds urged by Long Grove.

Having found that Mundelein’s annexation proceedings had priority and that Long Grove’s annexation was void, the trial court concluded that the validity of Mundelein’s annexation was not at issue. Long Grove steadfastly insists that the court’s failure to examine Mundelein’s proceedings was error. In its brief Long Grove has argued this issue primarily in the context of priority, which we have already discussed. However, in certain of the authority cited by Long Grove the issue arises at a different point in the trial proceedings. We think it proper to address briefly Long Grove’s contentions against this background also.

As we have indicated, Mundelein’s annexation proceedings were initiated before those of Long Grove. Quo warranto is the proper remedy for testing the legality of the proceedings by which territory has been annexed to a municipality. (People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill. App. 3d 88, 91; People ex rel. Gordon v. City of Naperville (1975), 30 Ill. App. 3d 521, 523.) A city whose territory is alleged to have been annexed by another city qualifies as a citizen who may institute a quo warranto proceeding. (People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 162 Ill. App. 3d 340, 345; City of North Chicago, 116 Ill. App. 3d at 92.) In a quo warranto proceeding the burden is on the defendant to justify the exercise of jurisdiction (People ex rel. City of Leland Grove v. City of Springfield (1988), 166 Ill. App. 3d 943, 945) and to prove its title or additional facts it relies on to bar the suit. (People ex rel. Village of Northbrook v. City of Highland Park (1976), 35 Ill. App. 3d 435, 439.) Thus, once it was determined that Mundelein, because of its priority, properly brought a quo warranto suit, the burden was on Long Grove to demonstrate that its annexation proceedings were legal, i.e., that they conformed to the statute. Such a showing would have confirmed Long Grove’s interest, and attendant rights, in the territory it wished to annex. The burden would then have shifted to Mundelein to prove that its annexation had been proper. However, Long Grove could not establish the necessary premise. Unable to carry its burden, Long Grove could claim no rights in the annexed territory and had no basis from which to challenge Mundelein’s prior interest. Accordingly, the validity of Mundelein’s ordinances never became an issue, and the trial court properly granted summary judgment for Mundelein. We are of the opinion that, were we to rule otherwise, the concept and function of priority of conflicting annexation proceedings would be rendered meaningless. Too, we stress that Mundelein acted on its annexation in response to petitions from the landowners and electors and that neither any landowners, electors, or residents on the land challenged Mundelein’s actions.

Long Grove invokes Village of Kildeer v. Village of Lake Zurich (1988), 167 Ill. App. 3d 783, to support its position that the trial court should have considered the defects in Mundelein’s annexation. As we have already pointed out, the trial court in Kildeer correctly refused to consider Lake Zurich’s attack on the validity of Kildeer’s ordinance when determining the preliminary question of whether Kildeer had standing to bring a quo warranto suit. Kildeer’s standing was conferred by the priority of its ordinance. However, the trial court also found that Kildeer’s ordinance, solely because it had priority and was undefeated, rendered Lake Zurich’s annexation invalid, and Kildeer’s motion for summary judgment was granted. On appeal, we found the court’s failure to consider alleged flaws in Kildeer’s annexation to be error because, as we explained, quo warranto is the kind of forum in which the matter before the court should be completely resolved and the rights of all the parties determined. We indicated that the court should have settled the issues raised by both the Kildeer and Lake Zurich annexation proceedings. (Kildeer, 167 Ill. App. 3d at 788-89.) Long Grové insists that, pursuant to Kildeer, its challenge to Mundelein should have been heard. We find no inconsistency between Kildeer and the outcome of this case.

Essentially, Kildeer means that a quo warranto inquiry need not end once priority is determined. Validity issues properly raised by the parties should be resolved. But Kildeer does not mean that quo warranto trial procedures should be ignored or that an annexing community should be subject to attack from a neighboring community which can show no interest in the annexation territory.

The Kildeer parties were subject to the same requirements for burden of proof that were imposed upon the parties in this case. The difference is that Kildeer did not progress as far as this case. Here, after determining priority, the trial court went forward and examined Long Grove’s annexation. In Kildeer the trial court considered the fact, and only the fact, that Kildeer’s proposed annexation was still pending. As a result, the proceedings never got beyond the priority issue. If they had, Lake Zurich would have had the exact same burden as Long Grove here. Only if Lake Zurich was successful in justifying its own annexation proceedings could the court have moved on to consider Kildeer’s annexation. In this regard it is worthy of note that Kildeer, unlike Mundelein here, evidently did not attack the validity of Lake Zurich’s annexation in terms of statutory compliance. Rather, Kildeer relied wholly on the priority of its own proceedings.

We conclude that, by following the proper procedure, the trial court in this case “adjudicate[d] the parties’ rights, and [disposed] of the entire matter,” as called for by Kildeer. (Kildeer, 167 Ill. App. 3d at 789.) In essence, when it was determined that Long Grove’s annexation was void, Long Grove lost any rights it might otherwise have had in regard to the contested territory. Thus, there were no longer any conflicting rights to be settled.

In summary, we conclude that the trial court correctly found in favor of Mundelein on the legal issues of Mundelein’s priority and the invalidity of Long Grove’s annexation ordinance. Further, the trial court properly declined to scrutinize Mundelein’s annexation proceedings since questions regarding the validity of those proceedings were not at issue. Accordingly, we need not consider Long Grove’s numerous arguments asserting various defects in Mundelein’s proceedings. (See People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 162 Ill. App. 3d 340, 350-51.) Since Mundelein was entitled to judgment as a matter of law, and no pertinent factual questions remained unsettled, summary judgment in favor of Mundelein and against Long Grove was properly granted by the trial court. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34.

In accordance with the reasons set forth above the judgment of the circuit court of Lake County is affirmed.

Affirmed.

NICKELS and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff-Appellee, v. ERNEST KETTELSON, Defendant-Appellant.
    Second District
    No. 2—91—0265
    Opinion filed October 17, 1991.
    Rehearing denied November 4, 1991.

      Ernest S. Kettelson, of Kettelson Law Offices, Ltd., of Joliet, appellant pro se.

    Darren L. Besic, of Simpson & Cybak, of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Ernest Kettelson, appeals from an order of the circuit court of Du Page County entered in favor of plaintiff, General Motors Acceptance Corporation (GMAC), pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304). The order in question, entered June 8, 1990, dismissed, inter alia, count V and the “cross claim” on behalf of a class contained in defendant’s first amended counterclaim. The order also denied defendant’s motion to certify the class. On appeal, defendant contends that (1) the finance charge imposed in the retail installment contract was usurious and (2) the usury issue satisfies all the elements to be certified as a class action. We affirm.

On August 19, 1985, defendant entered into a retail installment sales contract with Talty Chevrolet, Buick, Cadillac, Inc., for the purchase of a 1985 Cadillac Seville. The balance of $25,106.10 was to be paid in 48 monthly installments of $673.53 beginning September 17, 1985. The annual percentage rate was 13%, with a total finance charge of $7,223.34. Defendant paid 36 monthly payments, but stopped paying in August 1988.

Plaintiff filed a complaint on November 9, 1988, seeking possession of the vehicle or, in the alternative, damages equivalent to the value of the vehicle. Defendant filed an answer and a three-count counterclaim. Count I alleged the contract was void ab initio for failure to comply with the advertised finance rate and for violations of the Federal Consumer Credit Protection Act (15 U.S.C. §1601 et seq. (1988)), the Consumer Installment Loan Act (Ill. Rev. Stat. 1987, ch. 17, par. 5401 et seq.) and the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6401 et seq.). Count II alleged fraud in that the number of payments under the contract had been changed from 36 to 48. Count III alleged the finance charge imposed was a usurious interest rate in violation of Illinois law.

After the trial court dismissed counts I, II and III of defendant’s counterclaim without prejudice, defendant filed his first amended counterclaim. The amended counterclaim alleged fraud in count IV, usury in count V and contained a “cross claim” for usury on behalf of a class. On June 8, 1990, the trial court entered an order dismissing counts IV, V and the “cross claim,” with prejudice, and denied defendant’s motion to certify the class. The defendant filed a motion to vacate the order or, alternatively, to enter an order for interlocutory appeal pursuant to Supreme Court Rule 308.

On September 21, 1990, the court denied defendant’s motion, but granted leave to file a second amended counterclaim. The defendant filed a second amended counterclaim on October 11, 1990, which included only one count, count IV based on fraud. On the same day, defendant filed a motion pursuant to Supreme Court Rule 304, requesting the trial judge to find no just reason for delaying enforcement or appeal of the court’s order dismissing count V, the “cross claim” and the denial to certify the class. The motion requesting this written finding was denied on November 30,1990.

On February 14, 1991, the parties agreed to dismiss plaintiff’s complaint and defendant’s second amended complaint. As a condition to the settlement, the order of June 8, 1990, dismissing count I V and the “cross claim” for a class action, was deemed final and appealable by the trial judge. Notice of appeal was filed on March 4,1991.

The court in Spitz v. Goldome Realty Credit Corp. (1991), 210 Ill. App. 3d 215, announced the standard that applies in reviewing an order granting a motion to dismiss:

“A reviewing court *** must determine whether the allegations of the complaint interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief can be granted. Although the granting of a motion to dismiss is within the discretion of the trial court, the reviewing court can exercise its own judgment in determining if such a motion should be entertained.” Spitz, 210 Ill. App. 3d at 218.

Defendant argues that the finance charge exacted by the plaintiff is a usurious “interest rate.” As authority, defendant cites sections 4(1) and 4a(a) of the Interest Act (Ill. Rev. Stat. 1989, ch. 17, pars. 6404(1), 6410(a)). In interpreting section 4a(a), the defendant believes that statute disallows an interest rate of greater than 9% if the amount financed exceeds $25,000. This interpretation is misplaced. The statute reads:

“On money loaned to or in any manner owing from any person, whether secured or unsecured, except where the money loaned or in any manner owing is directly or indirectly for the purchase price of real estate or an interest therein and is secured by a lien on or retention of title to that real estate or interest therein, to an amount not more than $25,000 (excluding interest) which is evidenced by a written instrument providing for the payment thereof in 2 or more periodic installments over a period of not more than 181 months from the date of the execution of the written instrument, it is lawful to receive or to contract to receive and collect either:

(i) interest in an amount equivalent to interest computed at a rate not exceeding 9% per year ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 17, par. 6410(a).

The $25,000 limitation only applies to the real estate exception, not to the entire statute. But, the defendant is correct in interpreting this statute to mean that an interest rate imposed on money loaned may not exceed 9%, absent an exception.

The next issue is whether a retail installment contract is a “loan” so that the Illinois Interest Act applies. Usury is defined as an illegal profit received by the lender on a sum of money loaned to a borrower. (Tyrcha v. Wesolek (1989), 187 Ill. App. 3d 354, 357.) The elements of usury are: (1) a loan or forbearance; (2) a loan of money or something circulating as money; (3) the loan must be repayable absolutely; and (4) something in addition to lawful interest must be required. (Tyrcha, 187 Ill. App. 3d at 357.) But, if the transaction involves a sale, it is not a “loan” subject to the interest limitations:

“Furthermore, it is well settled that the usury statute applies only to those contracts which in substance involve a loan of money or forbearance to collect money due [citation] ***. A bona fide sale is not a loan *** and is not subject to the usury statute. [Citations.] *** The parties to the contract could agree that [purchaser] would pay interest at a rate higher than the maximum rate provided in the usury statute.” Computer Sales Corp. v. Rousonelos Farms, Inc. (1989), 190 Ill. App. 3d 388, 392.

Illinois courts have held differing transactions to be sales, and not loans subject to the Illinois Interest Act. (Computer Sales Corp., 190 Ill. App. 3d 388 (installment sale of computer equipment); Tyrcha, 187 Ill. App. 3d 354 (installment sale of stock); First National Bank v. Larkins (1983), 111 Ill. App. 3d 953 (installment sale of property); Johnson v. Sears Roebuck & Co. (1973), 14 Ill. App. 3d 838 (department store revolving charge accounts).) The purchase and sale of an automobile is analogous to these situations, and, as such, no section of the Illinois Interest Act cited by defendant pertains to the contract in question.

The statute that is relevant in this appeal is section 21(c) of Motor Vehicle Retail Installment Sales Act (Act), which states:

“(c) Notwithstanding the provisions of any other Statute, and notwithstanding the rate limitations expressed in subdivisions (a) and (b) of this Section, for motor vehicle retail installment contracts executed after the effective date of this amendatory Act of 1981, there shall be no limit on the finance charges which may be charged, collected and received.” Ill. Rev. Stat. 1989, ch. 121V2, par. 581.

The Act applies only to retail installment contracts, defined in section 2.5 as “an instrument *** prescribing the terms of a retail installment transaction.” (Ill. Rev. Stat. 1989, ch. 12IV2, par. 562.5.) A “[r]etail installment transaction” is “a credit sale of a motor vehicle by a retail seller to a retail buyer for a deferred payment price payable in *** installments.” (Ill. Rev. Stat. 1989, ch. 121V2, par. 562.4.) Plaintiff is a “sales finance agency,” defined as one “engaged *** in the business of purchasing or making loans upon the security of retail installment contracts.” Ill. Rev. Stat. 1989, ch. I2IV2, par. 562.11.

A credit union is not a sales finance agency because it does not purchase or make loans based on the assignment of retail installment contracts. (Micro Switch Employees’ Credit Union v. Collier (1988), 175 Ill. App. 3d 828, 831.) Similarly, a credit union automobile installment loan is not a retail installment transaction because a third party is providing the money with which to purchase the vehicle, in other words, a loan. (Micro Switch, 175 Ill. App. 3d at 831.) But, GMAC is a sales finance agency dealing with retail installment contracts as defined under the Act. The retail installment contract was executed after September 25, 1981, the effective date of the amendment to section 21, which added subsection (c). Since section 21(c) explicitly supersedes the other provisions within the statute or any other statute, there was no statutory limit on the finance charge exacted by plaintiff.

Defendant argues that plaintiff has charged a 13% “interest rate,” which is different than a “finance charge.” As support for this argument, defendant cites the answer to defendant’s interrogatory asking the interest rate the plaintiff used to determine the finance charge, which was answered 13%. Defendant also relies on plaintiff’s failure to respond to defendant’s request for admission that the interest rate stated in the contract is 13% and that the interest rate exceeded a rate allowed under Illinois law.

The true answer lies in the interpretation of the retail installment contract, not with the plaintiff’s interchangeable use of the phrases “finance charge” and “interest rate.” The meaning of a written contract is ascertained by the contract language and is ordinarily a question of law. (Szczerbaniuk v. Memorial Hospital (1989), 180 Ill. App. 3d 706, 713.) The contract explicitly states the “annual percentage rate” is 13%. The “finance charge” is the monetary amount determined by computing the amount financed with the annual percentage rate. Section 21(c) of the Act provides no limit on the amount of finance charges assessed. Thus, the finance charge was not usurious.

Because we find the finance charge not to be usurious, the issue concerning the propriety of a class action is moot. We affirm the order of the trial court.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT PHILLIPS, Defendant-Appellant.
    Second District
    No. 2—90—0260
    Opinion filed October 3, 1991.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Vincent Phillips, was indicted on three counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of aggravated kidnapping. (Ill. Rev. Stat. 1989, ch. 38, pars. 12-14(a)(2), (a)(3), (a)(4), 12-13(a)(l), 10-2(a)(3).) All charges stemmed from the abduction and sexual assault of a woman in Rockford by the defendant and his codefendant, Marlin Paige. After observing the woman at a gas station, the codefendants followed her and intentionally struck her vehicle with theirs. While the parties were exchanging necessary accident-related information, the codefendants forced the woman into their car and drove to a dark location near a school parking lot where the codefendants separately sexually assaulted her once and then, jointly, once again. The codefendants then drove off, taking the woman’s purse and all her clothes with them.

In exchange for dismissal of counts II through IV, the defendant entered a partial negotiated plea of guilty to count I (aggravated criminal sexual assault) which the court accepted. In a hearing on March 8, 1990, the court sentenced the defendant to 20 years in the Department of Corrections and properly admonished him concerning his right to appeal according to Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)). Without filing either a motion to withdraw his guilty plea (134 Ill. 2d R. 604(d)) or a motion for reconsideration of his sentence (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c)), the defendant filed his notice of appeal on March 12, 1990.

In this court, the defendant does not challenge the voluntariness of his plea, but, rather, seeks only to challenge his 20-year sentence, claiming (1) that it is unduly disparate from that of his codefendant, Marlin Paige, whose participation in the instant offense defendant contends was more culpable, and (2) that it is excessive under the circumstances and in light of his character, prior criminal history and potential for rehabilitation. Inasmuch as Marlin Paige’s appeal is presently pending before this court (docket No. 2 — 90—0362), we may take judicial notice, as requested by the defendant, that Marlin Paige was convicted in a jury trial of aggravated criminal sexual assault and aggravated kidnapping and sentenced to a 20-year term in the Department of Corrections by the same judge who imposed the defendant’s sentence here.

No doubt in anticipation of our consideration of the issue sua sponte, defendant first asks that we find he “retained” his right to appeal, notwithstanding his failure to file a motion to reconsider his sentence, because case law at the time of the filing of his notice of appeal — specifically, our opinion in People v. Kennedy (1989), 188 Ill. App. 3d 1 — found that no motion to reconsider is necessary to preserve review of errors in sentencing under the supreme court rules. Defendant relies on People v. Smith (1990), 198 Ill. App. 3d 695, in support of his argument. The Smith court rejected the State’s motion there to dismiss the defendant’s appeal though he filed neither a motion to withdraw his plea nor a motion to reconsider his sentence. The defendant there relied on People v. Kennedy in his belief that he faced no jurisdictional prerequisite other than the filing of a direct appeal. The court allowed the defendant’s appeal in light of the “inability of courts of review to apply With [People v. Wilk (1988), 124 Ill. 2d 93] on a consistent basis,” referring to our rejection in People v. Carroll (1990), 195 Ill. App. 3d 445, of our earlier decision by a divided panel in People v. Kennedy.

The State argues the defendant’s appeal should be dismissed since any confusion generated in the appellate districts following the supreme court’s opinion in People v. Wilk has now been clarified in People v. Wallace (1991), 143 Ill. 2d 59. Wallace held that a defendant convicted on a plea of guilty who objects on appeal only to the sentence imposed must, as a prerequisite to appeal from that sentence, file a motion to reconsider the sentence. Defendant offers no reply to the State’s argument. We agree the defendant’s appeal should be dismissed.

It is the general rule in this State that a decision will be applied retroactively unless the court expressly declares that “its decision is a clear break with the past, such as when a court explicitly overrules its own past precedent, disapproves a practice that it has previously approved, or overturns a well-established body of lower court authority.” (People v. Perruquet (1989), 181 Ill. App. 3d 660, 662.) A decision applied retroactively affects all whose cases remain pending at the time it was decided. Perruquet, 181 Ill. App. 3d at 662.

We find the general rule of retroactivity applies to Wallace since that decision merely clarified its earlier decision in People v. Wilk. (People v. Ishmon (1991), 213 Ill. App. 3d 653, 656.) In Wilk, the supreme court considered four cases which raised similar questions of law related to Supreme Court Rule 604(d). Each of those four defendants pleaded guilty, was sentenced, and filed a notice of appeal without moving to withdraw his guilty plea. Two of the defendants, however, filed timely motions to reconsider their sentences which were denied prior to the filing of their notices of appeal. Each of the appeals was dismissed at the appellate level.

In their appeal to the supreme court, the defendants individually raised claims peculiar to their own cases but all raised the issue (1) that the appellate court erred in dismissing their appeals, (2) their attorneys’ failure to comply with Rule 604(d) amounted to the ineffective assistance of counsel and (3) their requests for remand to the trial court to afford them an opportunity to comply with Rule 604(d) should have been granted.

In the case of two of the defendants, the court determined that counsels’ failure to comply with Rule 604(d) required dismissal of their appeals since that rule “establishes a condition precedent for an appeal from a defendant’s plea of guilty” adhering, in that regard, to its holding in People v. Stacey (1977), 68 Ill. 2d 261, 267. (Wilk, 124 Ill. 2d at 105.) The court noted that the remedy for those defendants lay in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) inasmuch as the sixth amendment right to the effective assistance of counsel may involve consideration of whether a defendant’s counsel has adequately presented certain nonconstitutional issues. Wilk, 124 Ill. 2d at 107.

Turning to the cases of the two defendants who filed motions to reconsider their sentences, the Wilk court distinguished them on the basis they did not challenge their guilty pleas but, rather, only the denial of their motions to reconsider, and, therefore, it was not necessary for them to file a Rule 604(d) motion. (Wilk, 124 Ill. 2d at 110.) Because those defendants made their motions to reconsider the sentence prior to filing the notice of appeal, “[t]he trial court had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any.” (Wilk, 124 Ill. 2d at 110.) Consequently, the court found the appellate court could exercise its proper function of reviewing the trial court’s rulings on those motions, and it reversed and remanded the causes. In concluding its opinion, the court stated, “[t]o the extent that Stacey is inconsistent with this opinion, the holding in that case is disavowed.” (Wilk, 124 Ill. 2d at 110. ) In Stacey, the court had held that a defendant, sentenced on a plea of guilty, who wished to appeal only the sentence entered thereon, must nevertheless file a Rule 604(d) motion to withdraw his plea and vacate the judgment thereon before undertaking an appeal. (People v. Stacey (1977), 68 Ill. 2d 261, 267.) Thus, after Wilk, a defendant who was convicted on a plea of guilty who wished to appeal only the sentence imposed need not file a Rule 604(d) motion but only a motion to reconsider the sentence.

Acknowledging Wilk, we stated in People v. Favelli (1988), 176 Ill. App. 3d 618, 623, that, “we read Rule 604(d) to require any defendant who has entered a guilty plea to file a motion to reconsider his sentence as a prerequisite to an appeal of the sentence.” (Cf. People v. Israel (1989), 181 Ill. App. 3d 851, 859 (court had jurisdiction of defendant’s appeal of his sentence where defendant, who pleaded guilty, filed a motion to reconsider his sentence in the trial court and, therefore, was not required to file a motion to withdraw his guilty plea).) A different panel of this court subsequently declined to follow Favelli, with one justice dissenting, stating, “we do not read Wilk as establishing a rule of procedure requiring a motion to reconsider the sentence be filed in the trial court in cases where there has been a plea of guilty.” People v. Kennedy (1989), 188 Ill. App. 3d 1, 4.

Yet another panel of this court later decided that the decision in Favelli more accurately interpreted and applied Wilk and held, contrary to Kennedy, that a defendant who pleaded guilty and who failed to raise an issue pertaining to sentencing in a motion to reconsider the sentence waived review of the issue. (People v. Carroll (1990), 195 Ill. App. 3d 445.) We agreed in Carroll with Favelli that appellate consideration of a sentencing issue which had not been raised in either a motion to reconsider or a motion to withdraw a guilty plea would modify Rule 604(d) in such a way as to obliterate its purpose. We also found in Carroll that the Favelli rationale was compatible with the basic appellate review rule that issues not objected to at trial and raised in a post-trial motion are waived. (Carroll, 195 Ill. App. 3d at 447, citing People v. Enoch (1988), 122 Ill. 2d 176, 186.) Our opinion in Carroll was filed March 21, 1990, which was nine days after the defendant here filed his notice of appeal.

During the pendency of the defendant’s appeal, we filed our opinion in People v. Fern (1990), 199 Ill. App. 3d 983. Therein, we considered sua sponte whether the defendant’s failure to file either a motion to withdraw his guilty plea or a motion to reconsider his sentence waived the sentencing issues he sought to raise on appeal. Noting that the question had been a subject of disagreement in our court, and with no discussion of the relative merits of Kennedy vis-a-vis Favelli and Carroll, we declared that, “we will follow the most recent decision on the subject, Carroll, in this case and in future cases.” (Emphasis added.) (Fern, 199 Ill. App. 3d at 984.) Accordingly, consistently with Carroll, we found the defendant’s failure to raise the sentencing issues in either a motion to withdraw his guilty, plea or a motion to reconsider his sentence waived any issue pertaining to sentencing, and we affirmed the judgment.

The supreme court’s opinion in Wallace was filed March 28, 1991. The supreme court noted that its decision in Wilk effectively broadened Rule 604(d) in that Wilk determined that if a defendant convicted on a guilty plea is complaining only about his sentence on appeal, “it is sufficient” that he file a motion attacking only the sentence prior to appeal. Clarifying in what manner such a motion was “sufficient,” the court in Wallace concluded that the filing of a motion to reconsider a sentence is a-prerequisite to an appeal from that sentence. Wallace, 143 Ill. 2d at 60.

Recently, adhering strictly to Wallace, this court in People v. Ishmon (1991), 213 Ill. App. 3d 653, sua sponte dismissed the appeal of a defendant convicted on a plea of guilty who sought to appeal only his sentence but who filed no motion to reconsider same and whose motion to withdraw his guilty plea did not raise the sentencing issue. We specifically noted there that dismissal, rather than just a waiver of sentencing issues, was the appropriate disposition under the authority of Wallace. Ishmon, 213 Ill. App. 3d at 656; see also People v. Theis (1991), 220 Ill. App. 3d 24.

In his brief, the defendant here acknowledged the pendency of Wallace in the supreme court, but argued that “in the meantime” we should allow his appeal because Kennedy was the court’s most recent pronouncement at the time he filed his notice of appeal.

“Afterward” has arrived, however, with the supreme court’s decision in Wallace. We must, therefore, reject defendant’s reliance on People v. Smith (1990), 198 Ill. App. 3d 695, as authority for us to give him essentially “a pass” this time. To do so would further serve to abrogate Rule 604(d). (Carroll, 195 Ill. App. 3d at 447, citing Favelli, 176 Ill. App. 3d at 623; People v. Bronson (1991), 216 Ill. App. 3d 839, 576 N.E.2d 449.) Moreover, the defendant has not argued that he actually relied on Kennedy in not filing any motion, as opposed to simply omitting to do so, nor did he avail himself after our decision in Carroll of Supreme Court Rule 309, which would have allowed him to petition the trial court to dismiss his notice of appeal, thus revesting the trial court with jurisdiction. (Theis, 220 Ill. App. 3d at 27.) The defendant then could have moved for reconsideration of his sentence. Finally, defendant’s lack of rebuttal to the State’s argument for dismissal based on Wallace impliedly concedes Wallace’s applicability (see Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 779-80), and we find such applicability entirely consistent with the general principles of retroactive application noted above.

Accordingly, the defendant’s appeal is dismissed.

Appeal dismissed.

REINHARD, P.J., and NICKELS, J., concur.