author: JUSTICE BOWMAN

text:
    JENSEN DISPOSAL COMPANY, Plaintiff-Appellant, v. THE TOWN OF WARREN, Defendant-Appellee.
    Second District
    No. 2-90-1282
    Opinion filed August 30, 1991.

      Fred Weiszmann, of Northbrook, for appellant.
    Rudolph F. Magna, Jr., of Gurnee, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Jensen Disposal Company (Jensen), appeals from the denial of Jensen’s motion for summary judgment and from the subsequent final judgment order entered in favor of defendant, the Town of Warren, a township in Lake County, Illinois (Township). Jensen presents the following issues for our review: (1) whether the trial court erred in finding that the Township was not barred from exercising the powers of the Township Refuse Collection and Disposal Act (Act) (Ill. Rev. Stat. 1989, ch. 139, par. 331 et seq.); (2) whether the trial court erred in finding that a contract between the Township and Waste Management of Illinois, Inc., was a valid exercise of the powers granted under the Township Refuse Collection and Disposal Act; (3) whether the trial court erred in finding that the contract between the Township and Waste Management was not void for lack of consideration; and (4) whether the trial court erred in finding that the contract was void for lack of mutuality of obligation. The Township, in addition to responding to Jensen’s arguments on appeal, further contends that Jensen lacks standing to challenge the contract between the Township and Waste Management. For the reasons that follow, we affirm in part, reverse in part and remand with directions.

For a number of years prior to 1990, Jensen, a corporation engaged in the business of collecting and disposing of garbage and other refuse, conducted its business in and about Warren Township. By early 1990, Jensen had approximately 6,000 residential garbage service customers in Warren Township. By a letter dated January 24, 1990, the Township, along with the Village of Gurnee, solicited bids for a contract to provide garbage disposal, landscape waste disposal, and curbside recycling services. Attached to the letter was a proposed agreement which provided, inter alia, that the Township would have to pass a referendum in order to participate in the contract; that there would be approximately 10,000 Township residential units served; that collections were to be from each residence, townhouse, duplex or condominium up to eight units; that the contractor would be operating as an independent contractor and not as an agent of the Township; that the contractor would remove landscape waste from all individually maintained residences; that Township residents would be paying for their landscape waste collection; that the billing rate for garbage collection service would be as set forth in the contract; and that the contractor would bill and collect its fees from the Township residents.

On March 6, 1990, Jensen brought a declaratory judgment action (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701) against the Township. The complaint alleged that the proposed contract was not authorized or permitted under the Act (Ill. Rev. Stat. 1989, ch. 139, par. 331 et seq.) or any other provision of the Township Law of 1874 (HI. Rev. Stat. 1989, ch. 139, par. 1 et seq.), and that any attempt to exercise the powers conferred by the Act would be ultra vires the powers of the Township and invalid. On March 9, 1990, Jensen filed a motion for a preliminary injunction asking the court to enjoin the Township from submitting to the voters of the unincorporated areas of the Township a referendum proposition, scheduled for March 20, 1990, to authorize the Township to exercise the powers conferred by the Act. The trial court denied the motion on March 12,1990.

Subsequently, the Township conducted the March 20, 1990, primary election at which the referendum was passed by a majority vote of 1,580 to 924, thus authorizing the Township to exercise the powers conferred under the Act. At some point thereafter, the Township and Waste Management entered into a “Contract For Pick-Up And Disposal Of Garbage Recycling And Landscape Waste Removal.” The agreement between the Township and Waste Management contained generally the same provisions as those set forth in the proposed contract referenced above.

On May 31, 1990, Jensen filed a motion for summary judgment alleging that the Township was not authorized or permitted to enter into the contract with Waste Management or to exercise the powers conferred by the Act. The trial court denied Jensen’s motion on June 18, 1990, concluding that the Township was not barred from exercising the powers of the Act. Jensen filed a supplementary motion for summary judgment on June 21, 1990, alleging that the agreement was not a valid contract at law in that it lacked mutuality of obligation; that the contract was not a valid exercise of the powers set forth in the Act; and that the agreement was merely a device to license the garbage business, which power was not conferred by the Act. On August 9, 1990, the trial court also denied Jensen’s supplementary motion for summary judgment. On November 5, 1990, the trial court, having been advised that the parties would stipulate to the facts and evidence and would readopt their respective memoranda of law and arguments previously filed on plaintiff’s motion for summary judgment as their argument and law at trial, entered its final judgment order in favor of the Township. Jensen filed its notice of appeal on November 15,1990.

We first consider the Township’s contention that Jensen does not have standing to challenge the contract between the Township and Waste Management. Specifically, the Township argues that Jensen does not have a sufficient property interest to challenge the validity of consideration or mutuality aspects of the contract. In support of its argument in this regard, the Township cites Illinois Commerce Comm’n v. Central Illinois Public Service Co. (1975), 25 Ill. App. 3d 79, 81, for the general proposition that “one who is not a party to a contract cannot complain that it is not mutual in character.” In reply, Jensen argues that the issue of standing should be deemed waived on appeal in that the Township raised the issue for the first time in its appellate brief.

It is the general rule that a defense not raised in the trial court is regarded as waived and may not be raised for the first time in the reviewing court. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147; Jackson v. Chicago Board of Education (1989), 192 Ill. App. 3d 1093, 1099.) Lack of standing in a civil case is an affirmative defense which, if not raised in a timely fashion in the trial court, is waived on appeal. (Olivieri v. Coronet Insurance Co. (1987), 173 Ill. App. 3d 867, 871, citing Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 508.) While this is the rule insofar as the appellant is concerned, the appellee may defend the judgment on appeal, or urge any point in support of said judgment, even though not directly ruled on by the trial court, so long as the factual basis for the determination of such point was before the trial court. (Kravis, 60 Ill. 2d at 147; Jackson, 192 Ill. App. 3d at 1099.) Otherwise, the points argued on appeal are required to be commensurate with the issues presented at trial. Kravis, 60 Ill. 2d at 147.

Our review of the record clearly indicates that the sole theory of the Township’s defense at trial was not that Jensen lacked standing to seek a declaratory judgment, but rather that its contract with Waste Management was valid. The pleadings relative to the declaratory judgment action do not even remotely suggest a defense theory based on lack of standing. As Jensen correctly points out, the only reference to this issue in the trial court was a parenthetic remark by the trial judge in ruling on Jensen’s supplementary motion for summary judgment. The judge stated, “I’ll address this issue on the merits as the parties have done. Although I do note the case of Illinois Commerce Commission v. Central Illinois Public Service Company, 322 N.E.2d 520 at page 522 (Fourth District 1975), which states that generally one not [a] party to a contract can’t complain that it’s not mutual in character.” The Township did not raise or address the question of standing in its answer to Jensen’s complaint for declaratory judgment or in response to Jensen’s initial and supplementary motions for summary judgment. Indeed, the attorney for the Township stated at oral argument that “the Township chose to respond” to the issues on the merits “because of the climate at the time” and because it was the first township in the area to implement the provisions of the Act. Moreover, it cannot be said in the instant case that the Township, by raising the standing issue, is seeking to “defend the judgment on appeal” or “urge a point in support of” said judgment. (Kravis, 60 Ill. 2d at 147; Jackson, 192 Ill. App. 3d at 1099.) Rather, by attempting to address standing the Township is actually asking for a wholly different judgment than that rendered by the trial court. Under these circumstances, we conclude that the Township is precluded from raising this argument on appeal.

Next, we consider Jensen’s contention that the trial court erred in finding that the Township was not barred from exercising the powers of the Act. Specifically, Jensen argues that since the Lake County Board, on September 12, 1989, passed a resolution “accepting and approving the Lake County Solid Waste Management Plan,” the Township is not authorized to enter into contracts relating to garbage collection and disposal. In support of its argument in this regard, Jensen relies on the last provision of section 2 of the Act, which states that the Act “does not apply in any township in which a county ordinance or resolution is in effect regulating the collection and disposal of refuse, garbage and ashes” (Ill. Rev. Stat. 1989, ch. 139, par. 332). The Township, on the other hand, argues that the Lake Comity solid waste management plan does not “regulate” the collection and disposal of refuse, garbage and ashes within the meaning of the Act and is therefore not a limitation on the power of the Township to adopt and implement the powers of the Act. The trial court, in ruling against Jensen on this issue, stated that the Lake County resolution and the solid waste management plan “propose and contemplate but do not establish regulations or put into effect procedures for the collection or disposal of refuse or for recycling.” Rather, the court concluded that “the resolution is merely a plan that at some future date may be put into effect in part or in whole.”

We agree with Jensen that the solid waste management plan, a 184-page document, thoroughly and extensively covers the issues, problems and methods of implementing a system of refuse collection and disposal. However, we believe that several key provisions in the plan, relied upon by Jensen in support of its argument that the resolution and plan together serve to “regulate” the collection and disposal of refuse, actually support the Township’s argument and the court’s conclusion to the contrary. For example, the plan, by its own terms, serves to provide “an outline of prioritized steps and actions that need to be taken to achieve” certain goals, and “functions as a formalized guideline” for establishing and implementing those goals. According to the plan, “[t]he first eight sections *** discuss *** and summarize key subjects, including current solid waste management systems, an assessment of future needs, solid waste management options, system configuration considerations, material and energy markets, environmental issues, and siting and permitting requirements.” The three final sections “present the recommended plan of action to implement the Plan, a summary of the legislative framework for implementation, and a description of the major programs recommended to undertake a comprehensive management system.” In addition, as noted by Jensen, the solid waste management plan proposes the use of an implementing agency as the actual operating entity under the plan. That agency is to be created by intergovernmental agreements between the county and the various municipalities within the county. According to the plan:

“The Implementing Agency and the member units of government must be able to regulate the management and disposal of waste ***. The exercise of the regulatory control is referred to generally as ‘flow control’ and is usually implemented through adoption of ordinances and through control mechanisms, such as permitting or licensing of haulers, that would be established by the member municipalities and the County.”

Based on the foregoing, we conclude that the record fails to indicate that any of the above aspects or provisions of the plan, relied upon by Jensen in support of its argument, had actually been implemented at the time the Township established its waste and recycling regulations and entered into its agreement with Waste Management. Although the Lake County resolution which adopted the plan directs the county administrator to “initiate, in a timely manner, those actions necessary to begin implementation” of the plan, such actions have not yet taken place. Indeed, the parties stipulated to the fact that, as of the date of trial, no implementing regulations for the plan had been adopted or enacted. Clearly, additional steps need to be taken before it can be said that “a county ordinance or resolution is in effect regulating the collection and disposal of refuse, garbage and ashes” under the Act (HI. Rev. Stat. 1989, ch. 139, par. 332). Thus, we cannot say that the trial court erred in denying Jensen’s motion for summary judgment on this issue.

Jensen next contends that the trial court erred in finding that the contract between the Township and Waste Management was a valid exercise of the powers granted under the Act. Specifically, Jensen argues that the Act only authorizes contracts in which the Township, and not the individual citizen, makes the payments under the contract, said payments to be derived from taxation. The Township’s argument, with which the trial court agreed, is that the Act requires an appropriation and tax only when there is money due and payable under a contract.

Both parties focus primarily on the language in section 5 of the Act (HI. Rev. Stat. 1989, ch. 139, par. 335) in support of their respective arguments. The language in section 4 (HI. Rev. Stat. 1989, ch. 139, par. 334), however, though barely mentioned by the parties, is equally important. Section 4 provides as follows:

“The township board of trustees, when authorized by the electors of the unincorporated area of such township to exercise the powers conferred by this Act, may make contracts with any city, village, or incorporated town, or with any person, corporation, or county for more than one year and not exceeding 15 years (i) relating to the composting or recycling of garbage, refuse and ashes within the unincorporated area of the township or (ii) relating to the collection and final disposition, or relating solely to either the collection or final disposition of garbage, refuse and ashes within the unincorporated area of the township. For this purpose, the township board of trustees shall declare the unincorporated area of the township a special refuse collection and disposal district for tax purposes, proof of which authorizes the county clerk to extend a tax upon the special refuse collection and disposal district ***.” (Ill. Rev. Stat. 1989, ch. 139, par. 334.)

Section 5 of the Act provides:

“Whenever the township board of trustees makes a contract that is authorized by this Act, the township board of trustees shall include in the annual budget and appropriation ordinance for each fiscal year an appropriation of a sum of money to be derived from taxation extended upon the special refuse collection and disposal district sufficient to pay the amount which, by the terms of the contract, is to become due and payable.” (Ill. Rev. Stat. 1989, ch. 139, par. 335.)

When the above two sections are read in conjunction, we believe the intent of the legislature is clearly discernible.

The Township’s argument that the Act requires an appropriation and tax only when there is money due and payable under the contract misses the point. Such a conclusion might seem reasonable if we were to focus solely on the last phrase of section 5, to wit, the amount to be appropriated shall be “the amount which, by the terms of the contract, is to become due and payable.” (Ill. Rev. Stat. 1989, ch. 139, par. 335.) However, the intent of the legislature in enacting a statute must be determined by examining the entire statute and by construing each material part of the legislation together. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318.) Courts should consider each part or section of a legislative act in connection with every other part or section, and not each part alone, in determining the purpose or intent of the legislature. (Castaneda, 132 Ill. 2d at 318; Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 979.) We must, whenever possible, attribute some reasonable meaning to every word, clause, or section of a statute. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297.) Moreover, in construing a statute, each provision and word should be given a reasonable meaning, and the statute will not be presumed to contain surplus-age within its provisions. Bloese v. Board of Education of Community Unit School District No. 300 (1985), 138 Ill. App. 3d 460, 464.

With these guidelines in mind, we believe that the thrust of sections 4 and 5 of the Act is that townships, when entering into contracts for the collection and disposal of garbage, will declare special taxing districts for the express purpose of appropriating sums of money sufficient to pay for services rendered under the contract. The Township’s interpretation to the contrary, derived by focusing on an isolated phrase within section 5, renders the remainder of section 5 and much of section 4 mere surplusage.

Therefore, we conclude that the Township’s argument, and the trial court’s conclusion, that the subject contract is valid and of a type of authorized under the Act is erroneous. Townships, like all other non-home-rule units, have no inherent powers, but only those granted to them by the Constitution or authorized by statute. (Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 857.) Moreover, the language of sections 4 and 5 of the Act, relating to the establishment of special taxing districts, and the appropriation of funds to be derived therefrom, is mandatory and not permissive in nature. According to the Act, “the township *** shall declare *** a special refuse collection and disposal district for tax purposes ***” and “shall include in the annual budget and appropriation ordinance *** an appropriation of a sum of money to be derived from taxation extended upon the special refuse collection and disposal district.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 139, pars. 334, 335.) The Township in the instant case has failed to take these steps. Thus, we agree with Jensen that a contract, such as that in the instant case, which requires direct payment by the individual residents to the contractor, simply falls outside the powers granted to townships under the Act. It necessarily follows that the contract between the Township and Waste Management, as it was not authorized by, nor does it comply with, the provisions of the Act, is invalid.

Having so concluded, we need not address plaintiff’s contentions regarding the sufficiency of contract consideration or mutuality of obligation. The trial court’s determination that the Township was not barred, due to the existence of the Lake County Solid Waste Management Plan, from exercising the powers of the Act is affirmed. The trial court’s determination that the contract between the Township and Waste Management was a valid exercise of the powers granted under the Act, however, is reversed, and the cause is remanded to the trial court with instructions to enter judgment in favor of Jensen.

Affirmed in part; reversed in part and remanded with directions.

DUNN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD GAFFORD, Defendant-Appellant.
    Second District
    No. 2-90-0515
    Opinion filed August 29, 1991.

      Stephen M. Komie, of Komie & Associates, and Marco A. Raimondi, of Drunk Driving Defense Lawyers of Illinois, Ltd., both of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Ronald Gafford, appeals from an order of the circuit court of Du Page County which denied his petition to rescind the statutory summary suspension of his driver’s license. Defendant raises two issues on appeal: (1) whether the trial court erred in denying his petition where the State presented no testimony to refute defendant’s testimony that no warnings were given by the arresting officer before defendant submitted to a breathalyzer test; and (2) whether the trial court erred in denying defendant’s motion for judgment on the pleadings where the record contains no proof that defendant was served with notice of the summary suspension of his driving privileges. We affirm.

Defendant was stopped by a law enforcement officer at approximately 11:08 p.m. on January 19, 1990. He was charged with the offenses of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(2)), driving with an alcohol concentration in his blood or breath in excess of 0.10 (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1)), and improper lane usage (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 709). A law enforcement sworn report was filed on January 26, 1990. The report stated that defendant submitted to testing on January 20, 1990, at 12:16 a.m. The test disclosed an alcohol concentration of 0.15. The report also stated that notice of the statutory summary suspension was given on January 20, 1990. The report form contained two boxes to indicate whether notice was served immediately or was mailed. Neither box was checked.

A warning to motorist form was also filed. The form listed the consequences to a motorist arrested for violating section 11 — 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501) who refuses to take a chemical test or who takes a test disclosing an alcohol concentration of 0.10 or more. The form stated that the warning was issued to defendant. The date and time noted on the form was January 19,1990, at 11:47 p.m.

Both forms were signed by the arresting officer under the following language:

“Under penalties as provided by law pursuant to Section 1— 109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.”

A confirmation of statutory summary suspension was filed on February 2, 1990, and stated that defendant’s driver’s license would be suspended on March 7, 1990, for a period of three months. On January 29, 1990, defendant filed his petition to rescind the statutory summary suspension of his driver’s license. The petition alleged, among other things, that defendant was not properly warned by the arresting officer as required by section 11 — 501.1 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(c)) and defendant was not properly served with notice of the summary suspension. The petition was verified by defendant.

On February 9, 1990, defendant filed a “motion to dismiss” asking that the statutory summary suspension proceeding against defendant be dismissed pursuant to sections 2 — 610, 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2— 610, 2 — 615, 2 — 619). In this motion, defendant stated:

“1. That on January 19, 1990, the Defendant, RONALD GAFFORD, was arrested for driving under the influence and given a Notice of Summary Suspension pursuant to Section 11 — 501.1 of the Illinois Vehicle Code. Said notice is attached hereto and made a part hereof as Exhibit ‘A’.”

The motion was signed by defendant’s attorney and requested that the proceeding be dismissed because the law enforcement sworn report failed to state a cause of action. There is no exhibit A attached to the motion. However, the record does contain a copy of a notice of summary suspension. This form is identical to the law enforcement sworn report filed on January 26, 1990, except that it is entitled “Notice of Summary Suspension” and contains a notation on the bottom which states “POLICE OFFICER-GIVE TO MOTORIST.” Also, it appears from the copy contained in the record that a “notice to the motorist of right to a hearing” was included on the back of the notice. The copy of the notice is not file stamped but is included in the record in between documents filed by defendant.

A hearing was held regarding defendant’s petition on March 23, 1990. The State informed the court that the arresting officer was on vacation and requested a continuance in order to have the officer available. Defense counsel stated that he did not intend to call the officer as a witness and objected to a continuance. The court decided that the hearing would begin that day. Defendant then asked for judgment on the pleadings, arguing that the law enforcement sworn report did not indicate that the officer served notice on defendant as required by statute. The trial court denied this oral motion on the basis that defendant’s written motion filed on February 9, 1990, stated that he was given notice of the summary suspension.

Defendant then testified that he was driving on January 19, 1990, fell asleep at the wheel and drove his car into a ditch. Shortly thereafter, the arresting officer approached his car. The officer asked defendant for his driver’s license, and defendant told the officer that he was an attorney. After performing field sobriety tests, defendant was taken to the police station for further testing.

Defendant testified that the officer told him that he wanted him to take a breathalyzer test. Defendant stated that the officer said “basically that because I was an attorney, if I took the test I’d probably just come to court; I would be all right; if I didn’t take the test, that then I would lose my license.” Defendant testified that he then took the breathalyzer test. Defendant claimed that he did not see the warning to motorist form at the police station nor did the officer read it to him. A copy of the warning to motorist was marked as defendant’s exhibit No. 1.

During cross-examination, defendant testified that the only paper work the officer gave him that night was a ticket. During redirect examination, defendant stated that he does not practice criminal law. His practice is a civil practice, mainly real estate and small business.

Following this testimony, the State orally moved for a directed finding, arguing that defendant’s testimony was not sufficient to meet his burden to show that the summary suspension should be rescinded. The court denied the motion. It noted that defendant had not sustained his burden on most of the issues raised, but found that defendant had, at that point, made a prima facie case with regard to the issue of whether he was adequately warned prior to submitting to the breathalyzer test. The court stated that, even though defendant is an attorney, the officer had a duty to admonish him properly.

The State then asked that the court take judicial notice of the carbon copy of the warning to motorist form presented by defendant and also the warning to motorist form included in the court file. The State also asked that the officer’s police report be admitted into evidence. The report was admitted, over defendant’s hearsay objection. The police report is not included in the record. However, the trial court noted that the report stated that the warning to motorist was read at 11:47 p.m. and that the breath analysis was performed at 12:16 a.m.

The State then recalled defendant to testify. Defendant again testified that he was not given the warning to motorist form by the officer the evening he was arrested. He also stated that the form was not mailed to him and that the officer gave him only three tickets on the night of his arrest.

The trial judge denied defendant’s petition to rescind the summary suspension of his driver’s license. He stated that he found from the evidence that defendant was properly advised of the warnings and was given a copy of the warning to motorist form the evening in question.

Defendant filed a motion to reconsider which was denied on April 19, 1990. This timely appeal followed.

On appeal, defendant first argues that the trial court’s finding that he was given the necessary warnings was against the manifest weight of the evidence because defendant’s testimony that no warnings were given was rebutted only by uncorroborated hearsay.

Section 11 — 501.1(c) of the Code provided, at the time of defendant’s arrest:

“A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle as provided in Section 6 — 208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person’s blood or breath is 0.10 or greater, a statutory summary suspension of such person’s privilege to operate a motor vehicle, as provided in Sections 6 — 208.1 and 11 — 501.1 of this Code will, be imposed.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 501.1(c).)

Therefore, defendant is correct that warnings were required prior to the administration of the breathalyzer test. Failure to give the required warnings is grounds for rescission of the statutory summary suspension. (See Ill. Rev. Stat. 1989, ch. 95x/2, par. 2 — 118.1(b)(4); People v. Znaniecki (1989), 181 Ill. App. 3d 389, 392.) We conclude, however, that the trial court’s finding that the required warnings were given was not against the manifest weight of the evidence.

The summary suspension system enacted by our legislature is separate from the criminal proceeding and serves the salutary purpose of promptly removing impaired drivers from the road. (People v. Moore (1990), 138 Ill. 2d 162, 166; see also People v. Teller (1991), 207 Ill. App. 3d 346, 349.) A summary suspension rescission hearing is therefore civil in nature and was intended by the legislature to be swift and of limited scope. (Moore, 138 Ill. 2d at 167, 169; Teller, 207 Ill. App. 3d at 349, 351.) The burden is on the motorist to prove that the suspension should be rescinded (People v. Orth (1988), 124 Ill. 2d 326, 337-38), and the decision of the trial court in this regard will not be reversed unless it is against the manifest weight of the evidence (People v. Davis (1990), 205 Ill. App. 3d 431, 435).

Section 2 — 118.1 of the Code provides, in pertinent part:

“The hearing may be conducted upon a review of the law enforcement officer’s own official reports; provided however, that the [motorist] may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.” (Ill. Rev. Stat. 1989, ch. 95x/2, par. 2 — 118.1(b).)

The purpose of this provision is to relieve arresting officers from undue loss of time by appearance at hearings regarding requests for rescission of summary suspensions. (People v. McCollum (1991), 210 Ill. App. 3d 11, 13.) Under this provision, therefore, an officer’s reports are admissible in evidence at the hearing (McCollum, 210 Ill. App. 3d at 13-14), and the State is not required to have the arresting officer testify (Moore, 138 Ill. 2d at 169). The officer need not appear, and a court may rely on the officer’s official reports (Moore, 138 Ill. 2d at 167; Teller, 207 Ill. App. 3d at 351), provided that the arresting officer has not been subpoenaed by the defendant. See People v. Clayton (1990), 201 Ill. App. 3d 163, 165; People v. Johnson (1989), 186 Ill. App. 3d 951, 954.

There is nothing in the record to show that defendant subpoenaed the arresting officer, and defendant stated that he did not intend to call the officer as a witness. Under these circumstances, the trial court could properly rely on the officer’s reports as evidence that the required warnings were given. We therefore cannot agree with defendant’s assertion that hearsay evidence contained in the reports cannot be the basis for a trial court’s determination when there is testimony that directly contradicts it. We conclude that the trial court could properly find that defendant’s testimony that no warnings were given was not credible based upon the reports which were admitted into evidence. In light of the clear language in the statute, we decline to follow dicta contained in In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, relied upon by defendant, which suggests that testimony that the officer read the form to the defendant would be necessary. See Trainor, 156 Ill. App. 3d at 925.

Defendant devotes a considerable portion of his argument to his contention that the State, by calling defendant as its witness, vouched for defendant’s veracity. Defendant relies on People v. Stout (1982), 108 Ill. App. 3d 96, and several other cases decided prior to 1982. We acknowledge that we stated in Stout that a party calling a witness vouches for the credibility of the witness and that a party may not call a witness for the sole purpose of impeaching him. Stout, 108 Ill. App. 3d at 102.

However, Supreme Court Rule 238 was amended, effective April 1, 1982, to state that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” (134 Ill. 2d R. 238(a).) Under this rule, a party may call a witness solely for the purpose of impeachment (see People v. Morgan (1991), 142 Ill. 2d 410, 457) and, therefore, does not vouch for the credibility of the witness. The fact that some of defendant’s testimony was given after he was called as a witness by the State does not in any way bolster the credibility of the testimony.

In his reply brief, defendant complains that the trial court should not have relied on “unsworn police reports.” He contends that only “sworn” reports are “official” reports for purposes of section 2 — 118.1(b) of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 2— 118.1(b)). (See People v. Badoud (1988), 122 Ill. 2d 50, 54.) As the warning to motorist form was properly sworn, defendant is apparently referring to the police report. However, defendant did not object to the admission of the police report in the trial court on the basis that it was unsworn. Questions not raised in the trial court are considered waived and may not be raised for the first time on appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568.) Also, Supreme Court Rule 341(e)(7) states that points not raised in an appellant’s initial brief “are waived and shall not be raised in the reply brief.” (134 Ill. 2d R. 341(e)(7); In re Liquidations, 122 Ill. 2d at 568.) The issue of the admissibility of an unsworn police report has therefore been waived. We note, however, that it has been held that unsworn police reports may properly be admitted in a summary suspension proceeding. See In re Summary Suspension of Driver’s License of Vaughn (1987), 164 Ill. App. 3d 49, 52.

Finally, we are also not persuaded by defendant’s impassioned plea that he did not have a fair and just hearing because he was denied the opportunity to cross-examine and impeach the “vacationing” police officer. Defendant cannot now complain that he did not have this opportunity when he did not take advantage of his right to subpoena the officer and objected to the State’s request for a continuance so that the officer could be present.

Defendant next argues that the trial court erred in denying his motion for judgment on the pleadings because the law enforcement sworn report does not indicate that notice was served on defendant and was not amended to state that notice was given. We agree with defendant that the Code requires that a defendant be given immediate notice of the statutory summary suspension and the right to a hearing. (Ill. Rev. Stat. 1989, ch. 95^2, pars. 2 — 118.1(a), 11 — 501.1(f); People v. Osborn (1989), 184 Ill. App. 3d 728, 729.) The Code also provides that the statutory summary suspension does not take effect until the 46th day following the date notice was given. Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.1(g).

In this case, however, the law enforcement sworn report states that notice was given on January 20, 1990. The form just fails to specify whether notice was given by immediate service or by mail. In fact, according to section 11 — 501.1(f) of the Code (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 — 501.1(f)), notice could only have been given by immediate service on defendant because defendant submitted to a breathalyzer test. Service by mail is permissible only in cases where the blood-alcohol concentration is established by a subsequent analysis of blood or urine. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(f).) Therefore, we conclude that the form itself was sufficient to establish that proper notice was given. We also note that defendant admitted, in his motion to dismiss, that he was given notice and that the record contains a copy of a notice of summary suspension which was apparently filed by defendant.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID TANNENBAUM, Defendant-Appellant.
    Second District
    No. 2-90-1421
    Opinion filed August 30, 1991.

      David Tannenbaum, of Beach Park, appellant pro se.

    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court;

Defendant, David Tannenbaum, appeals from the entry of the nolle prosequi of a traffic charge filed against him. Since an order granting the State’s motion for a nolle prosequi is interlocutory rather than final, defendant may not appeal the order. We therefore dismiss the appeal.

On July 3, 1990, defendant was charged by uniform citation and complaint with improper lane usage (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 709). Defendant filed various motions seeking to dismiss the charge or to quash the complaint for lack of proper verification. On October 26, 1990, the trial court denied defendant’s motion to dismiss and found that the citation complied with verification requirements.

On November 2, 1990, defendant filed a motion to reconsider the denial of his motion to quash, and the motion was denied on November 8, 1990. On November 16, 1990, defendant moved to set aside the complaint, again raising the issue of inadequate verification. The minute order in the record dated November 28, 1990, indicates that the State’s motion to nol-pros was granted. However, the agreed statement of facts indicates that the hearing actually took place on November 26 and that defendant expressly indicated that he had no objection to the nolle prosequi.

On December 10, 1990, defendant filed a motion to amend or vacate the order of November 26. Although defendant was to present this motion on December 17, 1990, the record does not show whether he did so, or whether any action was taken on the motion. Instead, the record shows that, on December 17, defendant filed a notice of appeal from the nolle prosequi.

Defendant raises three issues for review: that it was error for the trial court (1) to deny his motions to quash and to reconsider; (2) to allow the matter to be set for trial; and (3) to grant the State’s motion to nol-pros the charge. The State has filed a motion to dismiss the appeal, arguing without citation to authority directly on point, that the entry of a nolle prosequi is unappealable. Additionally, the State has moved to strike portions of defendant’s reply brief for presenting matters not of record. Defendant has filed objections to both motions, but has not adequately addressed the matter of our jurisdiction to hear this appeal.

A reviewing court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.) This court has not had occasion to address the appealability of a nolle prosequi in the circumstances presented here. In a case cited by neither party, our supreme court has made it clear that an order granting the State’s motion for a nolle prosequi is interlocutory and that a defendant cannot appeal from such a nonfinal order. (People v. Woolsey (1990), 139 Ill. 2d 157, 163. But see People v. Zeigler (1982), 106 Ill. App. 3d 783, 784.) The entry of a nolle prosequi is not a final disposition of a case; it is a procedure which reverts the matter to the same condition which existed before the commencement of the prosecution. (Woolsey, 139 Ill. 2d at 163, citing People v. Watson (1946), 394 Ill. 177, 179.) The effect of a nolle prosequi is to dismiss the charging instrument and to permit the defendant to be free without entering into a recognizance to appear when called. The procedure does not bar subsequent prosecution for the same offenses if it is entered before jeopardy has attached. Woolsey, 139 Ill. 2d at 163.

No criminal charge remains pending against the defendant when a charge is nol-prossed, and the State must file a new charging instrument to reinstate its prosecution. (Woolsey, 139 Ill. 2d at 168.) However, a trial court may not permit the State to use the nolle pro-sequi to obstruct a defendant’s right to a speedy trial, and the court should first consider a potentially dispositive defense motion, such as a motion to dismiss on speedy trial grounds, before allowing the State to nol-pros the charging instrument. (Woolsey, 139 Ill. 2d at 171.) There is no such claim in the case at bar. Here, the trial court twice ruled on defendant’s motion to dismiss and found the charging instrument adequate. Defendant then agreed to the nolle prosequi, thereby waiving any further objection to its entry. Since there is no final and appealable order for us to review, we conclude that we have no jurisdiction to consider the merits of defendant’s arguments.

Accordingly, the State’s motion to dismiss the appeal is allowed, and the motion to strike portions of defendant’s reply brief is mooted.

Appeal dismissed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE DUNN PRESIDING JUSTICE REINHARD,

text:
    JOHN MARCO, Plaintiff-Appellant, v. THE COUNTY OF McHENRY, Defendant-Appellee (Calvin L. Skinner, Sr., Defendant).
    Second District
    Nos. 2-90-0769, 2-90-0855 cons.
    Opinion filed August 22, 1991.

      A. Denison Weaver, of A. Denison Weaver, Ltd., of Chicago, for appellant.
    Deneen, Stone & Neese, of Woodstock, Thomas F. Baker, of Cowlin, Ungvarsky, Kukla & Curran, of Crystal Lake, and David R. Akemann, of Elgin, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, John Marco, appeals from an order of the circuit court of McHenry County granting summary judgment to defendant, County of McHenry (County). Marco alleged in his complaint that the County was vicariously liable for the negligence of defendant, Calvin Skinner, Sr., a McHenry County Board member whose automobile struck Marco while Skinner was driving to a meeting of the board’s health and agriculture committee. The parties raise the following issues on appeal: (1) whether the principal is liable for physical harm caused by the negligent physical conduct of a nonservant agent, and (2) whether driving to a legislative committee meeting was an action within the scope of Skinner’s official duties. We affirm.

The evidence submitted in connection with the County’s motion for summary judgment established the following facts which are essentially undisputed. On August 8, 1988, Skinner, a long-standing member of the McHenry County Board, was driving to a meeting of the board’s health and agriculture committee. The meeting was scheduled to take place at 7:30 that evening at the County courthouse. While traveling down Country Club Road on his way to the meeting, Skinner’s car struck Marco, who was standing in the roadway and attempting to remove an obstruction. Marco was seriously injured. The accident took place some time between 7 and 7:10 p.m.

The evidence further established that attending meetings of the health and agriculture committee was a part of Skinner’s regular duties as a board member. According to County records, there were 13 meetings of the committee between December 21, 1987, and August 8, 1988, including two scheduled for the latter date. All were held at the County courthouse in Woodstock. Skinner attended each of these meetings with the exception of the 7:30 p.m. meeting on August 8.

County Board rules provided that members could receive mileage reimbursement for travel to and from committee meetings. Skinner sought such reimbursement for the afternoon committee meeting on August 8 but did not seek it for the 7:30 p.m. meeting.

The trial court granted the County summary judgment on the basis that Skinner was at most a nonservant agent of the County and, under the Second Restatement of Agency, a principal is not liable for physical harm caused by negligent physical conduct of a nonservant agent. (Restatement (Second) of Agency §250 (1958).) The instant appeal ensued. Skinner died while this cause was pending in the circuit court. His estate is not a party to this appeal because it reached a settlement with Marco shortly after summary judgment was granted to the County.

A motion for summary judgment should be granted only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240-41.) Summary judgment is a drastic means of resolving litigation and should be granted only if the right of the movant is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

The doctrine of respondeat superior is an exception to the general rule that a person injured by another’s negligence may only seek redress from the individual who caused the injury. (McConnell v. Freeman United Coal Co. (1990), 198 Ill. App. 3d 322, 325.) Under this doctrine a master is liable for the negligence of a servant or agent if the negligent act was committed within the scope of employment. (Darner v. Colby (1941), 375 Ill. 558, 566.) Whether such a relationship exists is a factual question which will depend upon the relationship between the parties as shown by the evidence. (Darner, 375 Ill. at 560.) One who hires an independent contractor is generally not liable for any negligent acts on the part of the independent contractor. (Dumas v. Lloyd (1972), 6 Ill. App. 3d 1026, 1030.) An individual who is hired by another will be considered an independent contractor rather than an employee if he or she undertakes to achieve a given result without being controlled in any manner as to the method used to achieve it. Dumas, 6 Ill. App. 3d at 1029.

The County contends that the circuit court acted correctly in applying the rule set forth in section 250 of the Second Restatement of Agency that a principal is not liable for physical harm resulting from negligent physical conduct of a nonservant agent. Plaintiff does not dispute the County’s assertion that Skinner was a nonservant agent. According to plaintiff, however, Illinois law makes no distinction between the liability of a master for a servant’s tort and the liability of a principal for an agent’s tort. Plaintiff further argues that, under this court’s decision in Holda v. County of Kane (1980), 88 Ill. App. 3d 522, counties are vicariously liable for negligent acts of elected county officials committed within the scope of their official duties. In Holda, this court held that the defendant county was liable for the negligent conduct of its sheriff in operating the county jail even though the county board had no power to control the sheriff in the operation of the jail. (Holda, 88 Ill. App. 3d at 531-32.) The County contends that Holda should be reconsidered and overruled and, even assuming its continued viability, it would not render the County liable under the circumstances of this case.

We do not find it necessary to decide whether section 250 of the Second Restatement of Agency was correctly relied upon by the trial court or whether Holda should be overruled. Instead, we agree with the County that, assuming the continuing viability of Holda, that decision does not render the County liable in the present case. Although this court determined in Holda that the defendant county was liable under the doctrine of respondeat superior (88 Ill. App. 3d at 531), it is not clear whether this court considered the sheriff to be an agent or employee of the county. This court stated as follows:

“[W]e believe it is self-evident that the county may be liable on a vicarious liability theory for the negligence of its sheriff occurring in the course of his duties.” 88 Ill. App. 3d at 532.

Even if we assume solely for the sake of argument that the above statement applies with equal force to the negligence of county board members occurring in the course of their duties, summary judgment was appropriate because the accident did not occur in the course of Skinner’s official duties. In Pyne v. Witmer (1989), 129 Ill. 2d 351, our supreme court stated that an employer is only liable for an employee’s tort under the doctrine of respondeat superior if the tort was committed within the scope of the employment. (Pyne, 129 Ill. 2d at 359.) The court also stated that an employee traveling to or from work is not acting within the scope of employment unless: (1) the employer causes the employee to travel away from a regular workplace or (2) the employee’s travel is at least partially for the employer’s purpose and is not merely intended to convey the employee to or from a regular jobsite. Pyne, 129 Ill. 2d at 356.

Although the case at bar does not necessarily involve an employer-employee relationship, the standard of whether Skinner was acting within the scope of his official duties is essentially the same as set forth in Pyne: whether the employee was acting within the scope of employment. Accordingly, we consider Pyne to be controlling here. Marco argues that an issue of fact exists as to what, if anything, constituted Skinner’s “normal place of employment” as a board member, citing evidence that Skinner did much of his board work at home.

This evidence does not create a genuine issue of material fact, however. The court in Pyne did not refer to a single, normal workplace; instead, it referred to “a regular jobsite.” (129 Ill. 2d at 352.) The evidence presented to the trial court established that Skinner often attended board committee meetings at the McHenry County courthouse as a part of his duties as a board member. Therefore, Skinner was clearly driving to “a regular jobsite” when he was driving to the health and agriculture committee meeting on August 8, 1988. Neither of the exceptions mentioned in Pyne is applicable because the Board did not cause Skinner to travel away from a regular workplace and Skinner’s travel served merely to convey him to a regular jobsite; it was not otherwise at all intended to serve the Board’s purposes. Accordingly, under Pyne, Skinner was not acting in the course of his duties as a board member at the time of this accident.

A judgment may be sustained upon any ground warranted by the record even if the trial court did not rely upon that ground. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) We therefore conclude that summary judgment was appropriate in this case on the basis that, at the time of the accident, Skinner was not acting within the course of his official duties as a board member.

Marco also argues that travel to a board committee meeting should be considered within the scope of Skinner’s official duties when he was reimbursed for such travel pursuant to statute (Ill. Rev. Stat. 1987, ch. 34, par. 403 — 2) and the rules of the County Board. This does not affect our conclusion that Skinner’s accident was not within the scope of his official duties as a board member. (See Public Service Co. v. Industrial Comm’n (1938), 370 Ill. 334, 335 (employee’s accident on way home from work not within course of employment although employee reimbursed for travel to and from work).) Since the principles enunciated in Pyne clearly indicate that Skinner was not acting within the scope of his official duties at the time of the accident, we conclude that the trial court properly granted summary judgment to the County.

For the above reasons, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

UNYERZAGT, J., concurs.

PRESIDING JUSTICE REINHARD,

specially concurring:

While I do not disagree with the conclusion that Calvin Skinner, Sr., was not acting within the scope of his official duties when the accident with plaintiff occurred, I believe a different analysis is appropriate here.

Initially, I observe that, while the parties did not brief or argue the issue, I am not convinced that Skinner under these circumstances is an agent of the county. Generally, an individual county board member has no authority to act on behalf of the county. See Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 526; Pauly v. County of Madison (1919), 288 Ill. 255, 260.

Furthermore, even if Skinner were an agent of the county, he would be a nonservant agent. I believe the trial court correctly concluded that, in accordance with section 250 of the Restatement of Agency (Restatement (Second) of Agency §250 (1958)), a principal is not liable for the physical harm caused by a nonservant agent’s negligence. See 3 Am. Jur. 2d Agency §280, at 784 (1986).

The rule in section 250 does not conflict with the doctrine of re-spondeat superior, but in fact complements it. Even though respon-deat superior can apply to agents, the doctrine is fundamentally rooted in the master-servant relationship; where respondeat superior is applied to an agent, the question is still whether the agent-employee was acting within the scope of his employment. (See 3 Am. Jur. 2d Agency §280 (1986).) Because respondeat superior is dependent upon the master-servant relationship (see Palmer v. Miller (1942), 380 Ill. 256, 259), the doctrine does not apply to an agent who is not also acting in a master-servant relationship.

Finally, I note that the case of Holda v. County of Kane (1980), 88 Ill. App. 3d 522, in which no opinion was joined by a majority of the justices on the panel, does not compel a contrary conclusion. Although Justice Lindberg’s opinion in Holda spoke of the county’s “vicarious liability *** for injuries occasioned by the sheriff’s negligence,” the facts of that case reveal that the negligent acts were those committed by the “jailers” employed by the defendant county. Holda, 88 Ill. App. 3d at 526-27, 532.

For the above-stated reasons, I concur in the affirmance of the trial court’s entry of summary judgment in favor of the county.


text:
    POPLAR GROVE STATE BANK, Plaintiff-Appellant, v. ROGER J. POWERS et al., Defendants-Appellees (Lynn A. Bullard et al., Defendants).
    Second District
    No. 2-90-1359
    Opinion filed August 29, 1991.

      Craig R Thomas and Wesley E. Lindberg, both of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellant.
    Lois Cannell Ramon, of Belvidere, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Poplar Grove State Bank, obtained a money judgment against defendants Lynn A. Bullard and C. Bernice Bullard. Plaintiff then initiated a supplementary proceeding to discover assets belonging to Lynn and C. Bernice Bullard (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1402), seeking in the process to set aside Bernice’s allegedly fraudulent conveyance to defendant John Bullard of part of her interest in payments from defendant Roger Powers under an installment note. John Bullard entered a special appearance (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301) to object to the trial court’s jurisdiction over him. The trial court held that it lacked in personam jurisdiction over John Bullard and dismissed him from the proceeding. Plaintiff then brought this appeal (see 134 Ill. 2d R. 304(b)(4)).

On appeal, plaintiff argues that (1) John Bullard waived his jurisdictional objections by arguing matters other than in personam jurisdiction in his special appearance; and (2) the trial court erred in holding that John Bullard, a resident of Iowa at all relevant times, was not amenable to service of process pursuant to the Illinois “long-arm” statute (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209). We affirm.

Plaintiffs complaint in the underlying action, filed September 8, 1988, alleged that Lynn Bullard and his mother, C. Bernice Bullard (Lynn and Bernice herein), had defaulted on payments under a note that they and plaintiff had executed on July 22, 1978. The note represented a loan of $30,279.08 that Lynn took out to finance his gasoline station, which he operated from 1984 to 1988 on Boone County property. The note was secured by the inventory, equipment and accounts of the station. Robert and Bernice signed the note as accommodation makers, but received no money under the loan. Robert Bullard died in January 1988.

Robert and Bernice originally owned the property on which Lynn’s gas station stood. On or about August 1984, Robert and Bernice sold the property to Roger Powers, an Illinois resident. Lynn thereafter rented the property from Powers. The sale from the Bullards to Powers was secured by a note and mortgage of August 15, 1984. The note obligated Powers to pay Bernice $58,000 plus interest at the rate of $538 per month. The note was secured by a third mortgage on the property, with Powers as mortgagee and Bernice as mortgagor. The note specifies that all payments are to be made at an address in Machesney Park, Illinois. Although the mortgage describes Bernice as being from Winnebago County, she testified at the June 2, 1989, hearing that 1989 was “the sixth year” that she had resided in Lakeland, Florida, part of the year and Lake Mills, Wisconsin, part of the year.

In February 1988, Powers informed Lynn that the latter would have to vacate the property; as a result of his having to close the gasoline station, Lynn was unable to make the payments on the loan from plaintiff. Plaintiff brought the suit on the loan shortly thereafter. On June 8, 1989, the trial court entered judgment against Lynn and Bernice for $34,309.99, including principal, interest, and attorney fees.

Plaintiff next commenced a supplementary proceeding to discover assets, naming and serving Powers as citation defendant. On July 12, 1989, the court heard testimony in the supplementary proceeding. Powers testified that as of June 12, 1989, he owed Bernice $45,776.88 on the note.

Plaintiff introduced an exhibit that Powers identified as an assignment from Bernice to her son John. The assignment, dated January 10, 1988, stated that Bernice thereby assigned 40% of her right, title and interest in the note to John Bullard of Cedar Rapids, Iowa, with all payments on the note to be made to Bernice at the Bank of Lake Mills in Wisconsin. Underneath Bernice’s signature, Powers signed to acknowledge that he received the assignment and accepted its terms. Powers testified that one of the Bullards, possibly Bernice’s son Frank, called him and asked if he would object to signing the document; Powers had no objection and did so on January 10, 1988. Powers had previously sent his checks to Bernice’s account with plaintiff, but now sent them to her bank in Wisconsin. In March 1989, a member of the Bullard family called Powers and asked him to start making out the checks to John or Bernice and sending the checks to John in Iowa, as he would be handling Bernice’s money for her. Powers complied.

On July 17, 1989, the court entered an order requiring Bernice, after taking a $2,000 statutory exemption from judgment, to convey 60% of her payments from Powers to plaintiff. The court reserved ruling on the validity of the assignment of the other 40% to John Bullard. The court then granted plaintiff leave to commence supplementary proceedings against John Bullard.

On August 2, 1989, plaintiff filed a citation to discover assets directed to John Bullard. The citation was dated July 14, 1988. The citation was served on John Bullard at Cedar Rapids on July 19, 1989. John was not served with process again, although on August 28, 1990, plaintiff filed a notice to John Bullard of a hearing on the supplemental proceeding. On August 4, 1989, John Bullard wrote directly to plaintiff’s attorney. He stated that his attorney had told him that, as a resident of Iowa, he need not appear at the supplementary proceeding. He then explained that he had, after years of effort, persuaded Bernice to agree to the assignment so that Bernice would not end up giving away all of her assets to Lynn Bullard.

On August 28, 1990, shortly after obtaining a judgment against Lynn Bullard in a supplementary proceeding, plaintiff filed its “Complaint and Amended Supplemental Proceedings under section 2— 1402” naming Bernice Bullard, John Bullard and Roger Powers as defendants. Plaintiff alleged that the assignment from Bernice to John Bullard was a fraudulent conveyance. It asked that the court declare the assignment void and turn over the obligation thereunder to plaintiff, to be applied against the judgment in the original suit.

On September 11, 1990, John Bullard filed his “Special and Limited Appearance,” moving to quash service on him. He stated that he had been a resident of Cedar Rapids, Iowa, for over 10 years and had done no act that would subject him to the jurisdiction of Illinois courts pursuant to the Illinois “long-arm” statute (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209). He also argued that because plaintiff itself had admitted that John Bullard had no property of the judgment debtor in his possession, plaintiff could not bring a supplementary proceeding under section 2 — 1402 against John Bullard; that the court had ruled, on August 23, 1989, that a prior attempt to bring John Bullard before the court in a supplementary proceeding had been ruled invalid; and that plaintiff had not obtained leave of court to commence another supplementary proceeding against John Bullard.

The court heard arguments on John Bullard’s objection to personal jurisdiction. The parties also submitted briefs on the matter, but these are not part of the record on appeal. Plaintiff’s attorney stressed that the court had jurisdiction over John Bullard because John had transacted business in Illinois (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1)) and also argued that the assignment was void as a fraudulent conveyance. John Bullard’s attorney argued that the court had no jurisdiction over him because he lacked sufficient contacts and also because a supplementary proceeding under section 2— 1402 was not a permissible way to set aside an allegedly fraudulent conveyance. The trial judge suggested that, by making this latter argument, John Bullard’s attorney might be waiving his jurisdictional argument. The attorney responded that because plaintiff had brought both a supplementary proceeding and a complaint directed toward the allegedly fraudulent conveyance under the same proceeding, she had to address the jurisdictional question under both headings. She argued that John Bullard could not be brought into court for the supplementary proceeding unless it was undisputed that he held assets of the judgment debtor.

On November 2, 1990, the trial court issued a “memorandum of decision” dismissing the proceeding against John Bullard for lack of personal jurisdiction. The judge explained first that although he did not accept John Bullard’s argument that a fraudulent conveyance could not be set aside by a supplementary proceeding, John Bullard had not waived his objection to jurisdiction by making this argument. This argument was part of the objections to both in personam and in rem jurisdiction.

The judge explained next that, as John Bullard had properly been served with the citation, the only issue was his amenability to process under the Illinois “long-arm” statute. The judge concluded that John had committed none of the acts listed in the statute as constituting submission to the jurisdiction of Illinois courts (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)). The judge stated further that, although neither party had raised the issue, he had also considered the latest amendment to the statute, effective September 7, 1989, allowing a court to exercise jurisdiction on any basis permitted by the Illinois and Federal Constitutions (see Ill. Rev. Stat. 1989, ch. 110, par. 2— 209(c)). The judge concluded that, even stretched to the limits of due process, the statute did not grant personal jurisdiction over John Bullard because John Bullard lacked sufficient “Minimum contacts” with Illinois.

Plaintiff moved to reconsider. The trial court denied the motion, and plaintiff timely appealed.

Plaintiff argues first that John Bullard waived his objections to the court’s jurisdiction when he challenged the court’s power to adjudicate whether the assignment was a fraudulent conveyance. Plaintiff argues that by addressing the court’s in rem jurisdiction as well as its in personam jurisdiction, John Bullard converted the special appearance into a general appearance. We disagree.

We note that plaintiff did not raise the waiver issue below and did not argue waiver in its motion for rehearing. Nonetheless, because the trial judge considered the issue after raising it sua sponte, we will also address the argument despite plaintiff’s failure to pursue the matter more vigorously.

Section 2 — 301(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301(a)) provides that a special appearance may be made “for the purpose of objecting to the jurisdiction of the court over the person of the defendant. *** Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.” A defendant who asks for affirmative relief on the merits from the trial court waives objections to the court’s in personam jurisdiction over him. He may not, by his voluntary action, invite the court to exercise its jurisdiction over him while he simultaneously denies that the court has such jurisdiction. Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511, 525; Kotlisky v. Kotlisky (1990), 195 Ill. App. 3d 725, 731.

Plaintiff argues that John Bullard waived his objections to in personam jurisdiction when he argued additionally that the court lacked in rem jurisdiction. This argument rests on a faulty premise. A challenge to the court’s in rem jurisdiction may be made by a special appearance, for in rem jurisdiction is simply a limited form of jurisdiction over the person. (Davis v. Davis (1973), 9 Ill. App. 3d 922, 929.) A defendant does not convert a special appearance into a general appearance merely by arguing that the court lacks jurisdiction over the res in an action in rem. Kotlisky, 195 Ill. App. 3d at 732.

John Bullard’s argument that the court lacked authority to adjudicate a claim of a fraudulent conveyance was offered to support his challenge to the court’s jurisdiction over the assignment (and therefore over him). In challenging the court’s jurisdiction over the res — his interest in the Powers note — John Bullard was not asking for affirmative relief or arguing the merits of plaintiff’s claim that the assignment was fraudulent. He was not inconsistently denying the court’s jurisdiction over him while attempting to invoke that jurisdiction in his favor. As he did not go beyond arguing jurisdiction in his special appearance, he did not waive his jurisdictional objections.

Plaintiff gives several reasons why the trial court erred in quashing service on John Bullard. Plaintiff argues initially that John Bullard was amenable to service in Illinois pursuant to an amendment to the long-arm statute, effective September 7, 1989, allowing a court to exercise jurisdiction on any basis “now or hereafter permitted by the Illinois Constitution and the Constitution of the United States” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(c)). Plaintiff argues that section 2 — 209(c) allows a court to exercise personal jurisdiction to the extent permitted by due process and that due process allowed the court here to exert jurisdiction over John Bullard.

Plaintiff did not invoke the new section 2 — 209(c) at the trial level. Although the trial judge raised this amendment sua sponte, neither he nor the parties discussed its applicability where the accrual of the cause of action, the filing of the suit and service on the defendant have all preceded the effective date of the amendment. Plaintiff’s appellate brief simply assumes that the amendment applies in this case.

Moreover, plaintiff’s brief further assumes that the amendment carries personal jurisdiction to the limits of due process. Plaintiff also makes minimal argument or citation to relevant authority to show that this case falls within those limits.

Because the applicability and effect of the amendment were not argued before the trial court and have been raised only in the most haphazard manner on appeal, we conclude that plaintiff has waived any right to invoke the amendment. We do note that whether to apply statutes retroactively, even as to purely procedural matters, commonly raises difficult questions of legislative intent. (See, e.g., Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223; Salzbrenner v. Beckham (1986), 145 Ill. App. 3d 941.) An appellate court is entitled to have such an issue defined clearly and argued with citation to relevant authority and is not a depository in which an appellant may dump the burden of argument and research. (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825-26.) An issue that an appellant raises only inadequately is waived. (134 Ill. 2d R. 341(e)(7); Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401; Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc. (1991), 213 Ill. App. 3d 675, 680; Pecora, 109 Ill. App. 3d at 826.) We therefore consider the effect of the new section 2 — 209(c) no further.

Plaintiff argues that John Bullard was amenable to process in Illinois because he committed several acts that the long-arm statute considers submission to the jurisdiction of the Illinois courts. Specifically, plaintiff argues that John Bullard has (1) transacted business within the State; (2) committed a tortious act within the State; and (3) acquired ownership, possession or control of an asset or thing of value present within the State when ownership, possession or control was acquired. (See Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 209(a)(1), (a)(2), (a)(10).) John Bullard argues that his conduct fits within none of these statutory categories and that, even if it does, service on him was properly quashed as inconsistent with constitutional due process. We agree with John Bullard that his conduct does not fall within any of the statutory categories upon which plaintiff relies and hold that the trial court properly quashed service on him. We therefore need not reach his due process argument.

The scope of the long-arm statute, at least disregarding the amendment that we have declined to consider, is not coterminous with the reach of constitutional due process. (Rollins v. Ellwood (1990), 141 Ill. 2d 244, 271.) Rather, due process sets an outer limit even where jurisdiction exists under statutory criteria. (Rollins, 141 Ill. 2d at 271-72.) To find that a nonresident defendant is amenable to service, a court must conclude both that the requirements of the long-arm statute have been met and that the exercise of jurisdiction over the defendant comports with due process under the Illinois and United States Constitutions. (Rollins, 141 Ill. 2d at 274-75; Ideal Insurance, 213 Ill. App. 3d at 678.) Therefore, where the statute is not satisfied, the court need not consider whether due process would also bar the exercise of jurisdiction over the defendant. R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 311.

A plaintiff has the burden to show a valid basis for jurisdiction over a nonresident defendant. (R.W Sawant & Co., 111 Ill. 2d at 310; Konicki v. Wirta (1988), 169 Ill. App. 3d 21, 24.) The plaintiff must show that the defendant has committed an act or acts satisfying one of the criteria of section 2 — 209(a) of the long-arm statute. Only causes of action arising from such acts may be asserted against a defendant. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(f) (formerly section 2 — 209(c)); Ideal Insurance, 213 Ill. App. 3d at 679.) Although the original suit against Lynn and Bernice Bullard did not involve the assignment between Bernice and John, the relevant cause of action here — plaintiff’s supplementary proceeding against John Bullard — does arise out of the latter’s participation in the allegedly fraudulent assignment.

Plaintiff asserts that John Bullard is amenable to service in Illinois because he has transacted business within the State. Plaintiff appears to argue that by agreeing to receive payments from an Illinois resident, Roger Powers, under the assignment, John Bullard entered into a contractual relationship involving Illinois and therefore “transacted business” within Illinois. We do not find plaintiff’s argument persuasive.

A defendant transacts business in Illinois when substantial performance of contractual duties is to be rendered in Illinois or when the defendant invokes the benefits and protections of Illinois law in the contractual relationship. (Arthur Young & Co. v. Bremer (1990), 197 Ill. App. 3d 30, 36.) The term “transaction of business” refers to business in the commercial sense. (Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 613.) Essentially, the statute requires that a plaintiff’s claim lie in the wake of the commercial activities by which a defendant submitted to the jurisdiction of Illinois courts. (Ideal Insurance, 213 Ill. App. 3d at 680; Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 833.) Only the acts of the defendant may be considered to determine whether business was transacted in Illinois. Ideal Insurance, 213 Ill. App. 3d at 680.

In determining whether a given transaction amounts to transacting business in Illinois, courts look to factors such as who initiated the transaction, where the contract was entered into, and where performance of the contract was to take place. (Gordon v. Tow (1986), 148 Ill. App. 3d 275, 280-81.) Assuming arguendo that John Bullard transacted business “in the commercial sense” when he acquired, for no consideration, a portion of Bernice Bullard’s interest in the Powers note, we must conclude that this was not the transaction of business in this State.

There is nothing to indicate that John Bullard performed contractual duties in Illinois. John Bullard has not at any relevant time set foot in Illinois. He negotiated the assignment while in Iowa. His “duty” under the assignment is to deposit checks, which he has done only in Iowa. Although he apparently took the initiative in procuring the assignment, he did so through contact with Bernice Bullard, a Wisconsin resident. Plaintiff points out that Roger Powers acknowledged the assignment in Illinois, but does not argue (and points to nothing to indicate) that this acknowledgment was necessary to effect the assignment, at least to the extent of giving John Bullard the right to receive payments from Bernice Bullard. Moreover, such a formality of contract execution is not determinative of in personam jurisdiction. (Ideal Insurance, 213 Ill. App. 3d at 681-82; Kotlisky v. Kotlisky (1990), 195 Ill. App. 3d 725, 737; Northern Trust Co. v. Randolph C. Dillon, Inc. (N.D. Ill. 1983), 558 F. Supp. 1118, 1122.) It is also irrelevant that Powers sent defendant checks from Illinois. As we have noted, only the defendant’s acts may be considered in determining personal jurisdiction; similarly, a defendant does not transact business in Illinois merely by entering into a contract that involves an Illinois resident. Golden Rule Insurance Co. v. Michely (1990), 198 Ill. App. 3d 314; Natural Gas Pipeline Co. of America v. Mobil Rocky Mountain, Inc. (1986), 155 Ill. App. 3d 841, 846; City of East Moline v. Bracke, Hayes & Miller (1985), 133 Ill. App. 3d 136, 141.

There is also no indication that John Bullard has sought to invoke the benefits or protections of Illinois law. Nothing in the assignment states that the law of Illinois is to govern the contractual relationship between John Bullard, an Iowan, and Bernice Bullard, a resident of Wisconsin. (See Michely, 198 Ill. App. 3d at 321.) Even if John Bullard could sue in Illinois courts to enforce the note against Powers, this is not, contrary to plaintiff’s assertion, a sufficient basis for jurisdiction over him in the present case. (Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App. 3d 343, 351.) We therefore conclude that John Bullard is not amenable to service under section 2— 209(a)(1) of the long-arm statute.

We also reject plaintiff’s argument that John Bullard has committed a tortious act within the State (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(2)). Plaintiff asserts that the allegedly fraudulent conveyance occurred in Illinois because, as plaintiff is an Illinois corporation, Illinois is where the injury will be felt. This argument ignores the established rules that the place of a wrong is where the last event necessary to make the defendant liable took place (Yates v. Muir (1986), 112 Ill. 2d 205, 209; Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 437-38; Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432) and that loss felt in a plaintiff’s “Illinois pocketbook” is not sufficient to establish jurisdiction where the tortious acts all took place outside of Illinois. (R.W. Sawant & Co., 111 Ill. 2d at 312; Green, 86 Ill. 2d at 437-38; Longo v. AAA-Michigan (1990), 201 Ill. App. 3d 543, 552.) Insofar as the assignment here was fraudulent, the fraud was completed by tortious behavior by nonresidents acting outside the State. Even assuming that Powers’ acknowledgment was the last act necessary to make the assignment valid as to him (see Grunloh v. Effingham Equity, Inc. (1988), 174 Ill. App. 3d 508, 521), the actions of John Bullard and Bernice Bullard were sufficient to make the assignment valid between these two nonresidents. (See Overseas Development Disc Corp. v. Sangamo Construction Co. (7th Cir. 1982), 686 F.2d 498, 504.) Plaintiff therefore has not shown that John Bullard committed a tortious act within this State.

Plaintiff argues finally that John Bullard has submitted to the jurisdiction of Illinois courts by acquiring ownership, possession or control of an asset or thing of value present within the State when ownership, possession or control was acquired (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(10)). Plaintiff maintains that because the note between Powers and Bernice Bullard was created in Illinois, John Bullard acquired possession of 40% of this Illinois “thing of value” when he entered into the assignment.

Section 2 — 209(a)(10) was added to the long-arm statute effective September 7, 1989, the same time as section 2 — 209(c). The parties’ trial briefs are not part of the record on appeal, and nothing else indicates that the trial judge was presented with this argument prior to the motion to reconsider. Assuming arguendo that the amendment applies retroactively and that plaintiff has not waived the issue by failing to raise it below or by supporting it here with only a one-paragraph argument devoid of citation to authority, we conclude that the argument is without merit.

We believe that the plain meaning of section 2 — 209(a)(10) is that, for purposes of in personam jurisdiction, the asset or thing of value involved must have been present in the State when the defendant acquired his “ownership, possession or control” of it. Here, however, Bernice Bullard was residing out of State when John Bullard received part of her interest in the payments on the Powers note. Assuming that this interest is an “asset or thing of value” within the meaning of section 2 — 209(a)(10), we conclude that it was not in the State when John Bullard acquired his share of it. Under Illinois law, the situs of a debt, insofar as there can be one, is the domicile of the creditor. (Lancashire Insurance Co. v. Corbetts (1897), 165 Ill. 592, 596-97; Holbrook v. Ford (1894), 153 Ill. 633, 645-46; Little Audrey’s Transportation Co. v. Beverly Bank (S.D. Ill. 1964), 236 F. Supp. 352, 353.) Plaintiff has not shown that Bernice Bullard had an Illinois domicile at the time of the assignment. We thus conclude that plaintiff has not met its burden to show in personam jurisdiction over John Bullard under this or any other section of the long-arm statute.

Because we find no statutory basis for the trial court to exert jurisdiction over John Bullard, we need not address his argument that an attempt to do so would violate due process.

For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.

Affirmed.

McLAREN and INGLIS, JJ., concur.