text:
    JAMES V. STRUBE, Plaintiff-Appellee, v. C L C OF AMERICA, INC., d/b/a Clinton Harbor Service, and/or American River Transportation Company, and/or Archer-Daniels-Midland Company, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0698
    Opinion filed June 16, 1993.
    Alan K. Goldstein and Milton I. Goldstein, both of Goldstein & Price, of St. Louis, Missouri, for appellants.
    lee. Robert H. Gregory, of The Lakin Law Firm, of Wood River, for appellee
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, James V. Strube, filed an action in the circuit court of Madison County to recover damages for personal injuries he sustained in an accident which occurred while he was employed by defendant, Clinton Harbor Service, a division of Archer-Daniels-Midland Company, as a tugboat pilot. His complaint alleges a cause of action under the Jones Act (46 U.S.C.A. §688 et seq. (West 1975)). Following preliminary discovery, defendant filed a motion to dismiss or transfer the action under the doctrine of forum non conveniens. Defendant’s motion was denied by the circuit court. This court then granted defendant’s petition for leave to appeal pursuant to Supreme Court Rule 306(a)(l)(ii) (134 Ill. 2d R. 306(a)(l)(u)), and the sole issue now before us is whether the circuit court abused its discretion in refusing to transfer the cause. We affirm and remand for further proceedings.

Plaintiff’s complaint alleges that he was injured on June 2, 1990, while aboard the MW Saratoga, when the port-side pilot-house door blew shut in front of plaintiff, shattering the window and causing damage to his right foot. There is no dispute that the accident occurred at approximately mile 512.6 of the upper Mississippi River, which is adjacent to Whiteside County, Illinois. Plaintiff is a resident of Clinton, Iowa. Defendant does business in Madison County, Illinois. Plaintiff received medical treatment for the injuries at issue in this case from facilities in Clinton, Iowa. The persons identified as having knowledge pertaining to the June 2, 1990, accident, aside from plaintiff, include two witnesses from Iowa.

Plaintiff asserts that expert witnesses residing in Madison County or nearby St. Clair County may be called as expert witnesses. Plaintiff is represented by a law firm which maintains its offices in Wood River, Madison County, Illinois. Defendant is represented by a law firm which maintains its offices in St. Louis, Missouri, and there is no indication that defense counsel will withdraw from the case if transfer to another forum is ordered. In its motion to dismiss or to transfer the action for intrastate forum non conveniens, defendant argued that the cause bears little or no relationship to Madison County in that: (1) plaintiff is a resident of Clinton, Iowa; (2) the injury occurred outside Madison County; (3) the witnesses to the injury reside outside Madison County; and (4) plaintiff was treated in medical facilities located in his hometown of Clinton, Iowa. Defendant further argued that the cause should be transferred to Whiteside County, the forum adjacent to the section of the Mississippi River where the injury occurred. Defendant stated that the Madison County circuit court is much more congested than the court in Whiteside County and submitted an affidavit by Rich Adkins, the statistical analyst for the Administrative Office of the Illinois Courts, in support of that assertion. The circuit court denied defendant’s motion. Defendant appeals that order, contending that the circuit court abused its discretion.

In ruling on motions to transfer venue or dismiss based on intrastate forum non conveniens, a court must consider the following factors: the availability of an alternative forum, the accessibility of witnesses, the access to sources of proof, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. (Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 119, 497 N.E.2d 745, 748.) Unless these factors strongly favor the defendant, the plaintiff should be allowed to exercise his choice in deciding what forum to bring the case when venue is proper. (Meyers, 113 Ill. 2d at 119, 497 N.E.2d at 748.) Since there is no argument that Madison County is a proper venue, we must now examine whether the above-mentioned factors “strongly favor” defendant. Looking to these factors, we find first that there are other forums available. As plaintiff suggests, venue, would be proper in at least six counties in three different States. As for Madison County’s accessibility to witnesses, plaintiff claims that two witnesses to the incident are Iowa residents and that Whiteside and Madison Counties are equally convenient or inconvenient forums for them. Additionally, plaintiff states that expert witnesses residing in Madison County or neighboring St. Clair County may be called to appear. Alternatively, defendant does not state who its witnesses are or where they reside. Therefore, defendant does not contend that any of its witnesses will be inaccessible to the Madison County forum.

The next factor is access to sources of proof. Neither party suggests that a view of the scene where the incident occurred would be helpful. Defendant makes no assertion that sources of proof will be inaccessible in Madison County, nor does defendant claim that such sources would be more accessible in Whiteside County. Defendant also does not contend that it cannot receive a fair trial in Madison County, so that is not a factor to be further considered. Defendant does devote a significant portion of its brief to the next factor, however, which addresses congestion of court dockets. Defendant submits data showing that as of December 1989, Whiteside County had 264 civil cases in excess of $15,000 pending, while Madison County had 4,881 such cases pending. Defendant further asserts that the average time from filing to disposition of all civil cases in excess of $15,000 was 22.8 months in Whiteside County and 49.8 months in Madison County. While these figures show that cases are processed more expeditiously in Whiteside County than in plaintiff’s chosen forum, the data are now more than three years old. Such was also the case in Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 500 N.E.2d 1113, where we stated:

“Although we have no doubt that cases still take longer to try in Madison than in Franklin County, no evidence has been presented by which current docket conditions in the two jurisdictions can be compared. Evidently the circuit court here did not believe at the time it made its ruling that court congestion was such a problem in Madison County as compared with Franklin County that venue should be changed. That court was in a better position than this tribunal to assess the burdens posed by its own docket. [Citation.] We will not second-guess its judgment.” (Baker, 149 Ill. App. 3d at 679, 500 N.E.2d at 1118.)

The same rationale applies here. The circuit court did not believe docket congestion to be such a problem in Madison County that venue should be changed. Therefore, just as we refused to second-guess the circuit court’s judgment on this issue in Baker, we also refuse to do so here.

The final factor to be considered is the convenience of the parties. Although defendant contends that Madison County is inconvenient, defendant fails to make a showing of proof in support of such an assertion. Defendant’s arguments essentially mirror those set forth in the circuit court, asserting that plaintiff’s case is insufficiently connected to Madison County, yet failing to offer proof of its own inconvenience. After analyzing the above factors, this court does not find that analysis to “strongly favor” defendant. Therefore, plaintiff should be allowed to exercise his choice in deciding what forum to bring his case. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112,119, 497 N.E.2d 745, 748.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed, and the cause is remanded for further proceedings.

Affirmed and remanded.

WELCH and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
      In re ESTATE OF HAROLD J. KNOTT, Deceased (Carolyn Knott, Petitioner, v. Jo Ann Miles, Independent Adm’r, Respondent-Appellee (Mildred Smoot, d/b/a Smoot Oil Company, Appellant)).
    Fifth District
    No. 5 — 92—0169
    Opinion filed June 2, 1993.

      Sara Nierste, of Ronald E. Osman & Associates, Ltd., of Dongola, for appellant.
    Charles Cavaness, of Law Office of Charles C. Hines, of Carbondale, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This case involves the administration of the estate of Harold J. Knott, deceased. The appeal was brought by Mildred Smoot, d/b/a Smoot Oil Company (Smoot), contesting the trial court’s order allowing the payment of attorney fees and real estate taxes as administrative expenses, thereby reducing the amount remaining in Knott’s estate left to satisfy Smoot’s claim against the estate. We affirm for the reasons set forth below.

The pertinent facts of this case are as follows: Harold Knott (decedent) died intestate in Arkansas on July 30, 1987, and, on February 3, 1988, the court appointed Jo Ann Miles as independent administrator of decedent’s Illinois estate and directed letters of office to issue. Subsequently, Miles filed an inventory of the estate in which she listed the value of the decedent’s personal estate as approximately $2,500, the value of the annual income from real estate as approximately $600, and the approximate value of the real estate as $19,000. Three claims were filed against the estate: (1) a claim filed on February 16, 1988, by Smoot for fuel oil provided on open account in 1977 and 1978 to the decedent when he was doing business as H & K Trucking Service, in the amount of $19,740.95 plus $8,548.20 in interest, (2) a claim filed on March 10, 1988, by Carolyn Knott (Knott), the decedent’s widow, for funeral expenses for the decedent, in the amount of $3,700, and (3) a claim filed on February 28, 1991, by Knott for funds advanced for attorney fees to attorney Charles Hines in defense of a lawsuit involving decedent and Smoot (Union Co. No. 85 — L—19), in the amount of $2,410.17.

Miles filed an answer to Smoot’s estate claim on February 26, 1988, in which she denied the indebtedness to Smoot. Also on that date, Miles filed a motion asking that any resolution regarding Smoot’s estate claim be continued generally as the estate claim was the subject of litigation in Union County (No. 85 — L—19) and was still pending. The court granted Miles’ motion to continue the consideration of Smoot’s estate claim. Ultimately, Smoot’s claim was allowed in the amount of $19,803.95, pursuant to an opinion entered by this court. See Smoot v. Knott (1990), 200 Ill. App. 3d 1082, 558 N.E.2d 794.

Knott’s estate claim for funeral expenses was allowed by the court in a docket sheet order on April 7, 1988, and this estate claim is not contested by Smoot or part of this appeal.

On September 5, 1991, Smoot objected to Knott’s estate claim for $2,410.17 ($1,500 paid on June 17, 1988, and $900 paid on April 4, 1989) for reimbursement of attorney fees paid to Charles Hines. Smoot contended that the claim was filed beyond the six-month statute of limitations for estate claims and was not an administrative expense and, therefore, the estate claim was barred. No hearing was conducted on Knott’s estate claim at that time.

During the pendency of the probate proceedings, various other pleadings were presented and ruled upon by the court. One such pleading was a petition for sale of the real estate. The court allowed Miles to sell the real estate for $17,400 and approved the sale in an order entered on October 28, 1991. Whenever a petition was presented to the court, the law firm of Medlin & Medlin represented the administrator. Charles Hines represented the administrator only in the Union County litigation.

Subsequently, on December 5, 1991, the date set for hearing on Knott’s estate claim and Smoot’s objections to the claim, Miles filed a motion for payment of expenses, in which she sought court approval of administrative expenses, both paid and unpaid by the estate. In this motion, Miles listed as an expense already paid and reimbursed by the estate the real estate taxes for 1986 and 1988, paid by Knott, in the amount of $319.14. Also in this motion, Knott’s prior estate claim for attorney fees totalling $2,410, which she had advanced for the Union County lawsuit involving Smoot and Knott, was listed as an administrative expense that had been paid but not reimbursed by the administrator. The court conducted a hearing on Miles’ motion on December 5, 1991, instead of a hearing on Knott’s estate claim. At this hearing, Smoot contested the motion for payment of expenses and objected to the attorney fees paid to Hines by Knott and to the real estate taxes for 1986 and 1988 paid by Knott. The court entered a written order on February 11, 1992, in which the court allowed reimbursement to Knott for the payment of Hines’ attorney fees and the real estate taxes for 1986 and 1988 as administrative expenses. This appeal followed.

On appeal, Smoot sets forth her contentions in three main issues; however, the essence of the appeal is whether the court erred in allowing the administrator to reimburse Knott for payment of Hines’ attorney fees and payment of the 1986 and 1988 real estate taxes as administrative expenses. Smoot contends that the allowance of the attorney fees was erroneous because Knott had first filed for reimbursement of this expense as an estate claim, and that Miles’ subsequent filing of this claim as an administrative expense was an attempt to circumvent Knott’s failure to bring this estate claim within the six-month statute of limitations. Smoot also contends in this argument that Hines was not entitled to the attorney fees because he was not the attorney for the estate. In addition, Smoot contends the payment of the attorney fees and the real estate taxes were not properly administrative expenses because they were paid by someone other than the administrator, i.e., Knott. Smoot’s last issue raised is that the court erred in finding the estate liable for debts incurred by a third party without the court’s approval.

We first address Smoot's issue that the court’s allowance of Hines’ attorney fees as an administrative expense was erroneous as it was a circumvention of the six-month statute of limitations. As Smoot correctly states, an estate claim filed more than six months beyond the issuance of the administrator’s letters of office is barred by statute and cannot be paid from the estate. (Ill. Rev. Stat. 1991, ch. 110%, par. 18 — 12; In re Estate of Hoheiser (1981), 97 Ill. App. 3d 1077, 424 N.E.2d 25.) Thus, if Knott’s payment of Hines’ attorney fees was an estate claim, it should have been barred from payment because it was filed more than six months after letters of office issued to Miles. Our analysis does not end here, however, for we must consider whether the allowance of payment for Hines’ attorney fees was an administrative expense. If so, the statute provides that administrative expenses are not subject to the six-month statute of limitations and payment of these expenses was proper. Ill. Rev. Stat. 1991, ch. 110%, par. 18-12.

Smoot argues that Hines’ attorney fees were not an administrative expense because the litigation in which he represented Knott did not benefit or involve the estate and because Hines was not the attorney for the estate, Medlin was. We disagree.

Authorization for the payment of attorney fees is established in section 27 — 2 of the Probate Act, which provides that an attorney for a representative is entitled to reasonable fees. (Ill. Rev. Stat. 1991, ch. 110%, par. 27 — 2.) The need for attorney fees and the amount of the fees are decisions which rest in the sound discretion of the trial court. (Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502, 369 N.E.2d 1262.) Here, attorney Hines was hired by the administrator to represent her in litigation that was commenced when the decedent was alive and still pending when he died. In our previous decision in that litigation, it was stated: “Upon Knott’s death, representatives of his estate were substituted as party-defendant in this cause of action ***.” (Smoot v. Knott (1990), 200 Ill. App. 3d 1082, 1084, 558 N.E.2d 794, 795.) It belies common sense to conclude that the administrator cannot charge the attorney fees for this litigation to the estate as an administrative expense when it was due to Smoot that the administrator was brought into the litigation. Further, the estate was responsible for the expense of this litigation since the action was commenced before the decedent’s death and was his obligation, not one contracted for by the administrator. Additionally, had the administrator not defended the action, she would have been derelict in her duty to protect the assets of the estate, as Smoot would have become a judgment creditor by default and without challenge to her entitlement to this status. We also note that the administrator was successful in defeating the $8,485.20 in interest included in the claim filed by Smoot. As it was, Smoot’s status as a judgment creditor was somewhat fortuitous. See Smoot v. Knott (1990), 200 Ill. App. 3d 1082, 558 N.E.2d 794.

We also find that it is illogical to conclude that an administrator can have only one attorney to represent the estate. In this day and age of specialization, a probate attorney may not have the necessary skills or knowledge when the estate is involved in a lawsuit involving personal injury or other matters unrelated to probate. Thus, to restrict an administrator to proceeding with only a single attorney, no matter what circumstance arises, may be detrimental to the estate, and the statute does not compel such an interpretation. In fact, attorney fees have been authorized as an estate expense in cases where the attorney represented someone other than an administrator, such as where the attorney represented the next of kin or a descendent. (See In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87.) We do not find that the court abused its discretion in allowing Hines’ attorney fees as an administrative expense.

Smoot next contends that Hines’ attorney fees and the real estate taxes paid in 1986 and 1988, on the only piece of real estate possessed by the estate, should not have been paid as an administrative expense, because these payments were made by Knott and not the administrator. Smoot does not appear to take issue with the payment of real estate taxes as an administrative expense, but only with the manner in which they were paid. We find this argument unpersuasive.

It should be noted that Miles was appointed by the court as an independent administrator. The statute provides that as an independent administrator, the representative is allowed to administer the estate without court order or filings. (HI. Rev. Stat. 1991, ch. 110xh, par. 28 — 1.) The only exception to an independent administrator’s acting without court supervision is where an interested person petitions the court for a hearing and an order on a matter germane to the administration of the estate or where the administrator herself petitions the court for instructions with respect to a given matter. (HI. Rev. Stat. 1991, ch. lUF/a, par. 28 — 5.) When either of these events takes place, then the court supervises the particular matter presented by the petition; however, it does not take away any other discretionary powers of the independent administrator. Further, the administrative powers of an independent administrator are enumerated in the statute, and these administrative powers include the ability to borrow money and to pay real estate taxes on a decedent’s real estate, whether the administrator possesses the real estate or not. (HI. Rev. Stat. 1991, ch. lHF/a, par. 28 — 8(bXi).) Thus, an administrator need not obtain court approval to do either of those two actions unless one of the two previously mentioned statutory exceptions existed.

Here, in essence, Knott loaned Miles the money to pay the attorney fees and the real estate taxes, which was understandable given the dearth of liquid personal property assets. Under the statutory administrative powers, Miles was allowed to borrow this money without court approval. At the time that the attorney fees and the real estate taxes were paid, there was no petition presented by Smoot to submit the matter to court supervision, and Miles had not presented a petition to the court to borrow the money, and thus, no court approval was needed. Thus, Miles’ actions in borrowing the money from the decedent’s widow, without interest, was proper. We do not find that payment of the attorney fees or the real estate taxes by Knott, rather than by Miles, is a fact which would disallow these payments as administrative expenses, but instead we view the payments as a loan. The court likewise did not abuse its discretion in allowing these as administrative expenses on that basis.

Lastly, Smoot contends that in order to agree to reimburse Carolyn Knott for the payment of attorney fees and the real estate taxes, the administrator would have had to have pledged the real estate. However, a holding of such would require an estate to incur unnecessary costs and expenses in mortgaging the real estate and would complicate the sale of the real estate to pay debts. In light of our holding on the previous issue that Miles was entitled to borrow the money with or without security (111. Rev. Stat. 1991, ch. IIOV2, par. 28 — 8(b)), we find no reason to consider this argument.

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

Affirmed.

WELCH and RARICK, JJ., concur.


author: JUSTICE COOK

text:
      In re MARRIAGE OF MISAO (OKUBO) ROACH, Petitioner-Appellee and Cross-Appellant, and JOSEPH M. ROACH, Respondent-Appellant and Cross-Appellee.
    Fourth District
    No. 4 — 92—0634
    Opinion filed June 3, 1993.
    Rehearing denied July 12, 1993.

      Raymond R. Kimpel, of Champaign, for appellant.
    John B. Hensley, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Joseph Roach appeals an order of the circuit court of Champaign County denying his motion for change of venue. Misao Roach cross-appeals, contending the trial court erred in (1) declining to hold Joseph in contempt of court, (2) denying her request for attorney fees, and (3) failing to increase her maintenance. We reverse the order denying attorney fees, and otherwise affirm.

Misao and Joseph were married in Yokohama, Japan, in 1947. Later that year they moved to the United States and in 1948 purchased a house in Massachusetts. The parties had four children; throughout the marriage, Misao took care of the children and did not work. In 1961 Misao and Joseph were divorced in Connecticut. Joseph subsequently married his present wife Enid. By the terms of the 1961 judgment of dissolution Misao was awarded custody of the children, and Joseph was ordered to pay $10 per week for the support of each child, pay $12.15 per week as alimony, maintain certain life insurance policies for the benefit of Misao and the children, and pay other listed expenses.

On June 30, 1988, Misao filed a petition to register the Connecticut judgment and a petition to enforce the judgment alleging Joseph had failed to make the required payments. On January 30, 1989, Misao filed a petition to increase maintenance. On February 27 Misao filed a motion for summary judgment, and Joseph filed a response to the petition to increase maintenance, denying there had been a change of circumstances increasing Misao’s need for maintenance. On May 15 a stipulation was entered; the trial court found the stipulation reasonable and, pursuant to it, ordered Joseph to immediately pay $35,000 to Misao and to direct the military finance center to disburse $250 per month to Misao from his military pension. The court terminated several provisions of the 1961 judgment requiring Joseph to make various payments on behalf of Misao. The provision in the original order requiring Joseph to retain a $10,000 life insurance policy with the children listed as beneficiaries was not changed. Misao agreed in the stipulation to accept the payment and modifications as consideration for a “full and final compromise” of any and all claims through March 20, 1989.

On November 14, 1990, Misao filed a petition for rule to show cause alleging Joseph willfully failed to comply with the terms of the May 15, 1989, court-ordered maintenance. The same day, the trial court entered a rule to show cause why Joseph should not be held in contempt of court. On August 7, 1991, Joseph filed a petition to terminate maintenance alleging a substantial and material change in circumstances. On December 16 Misao filed a second petition for rule to show cause why Joseph should not be held in contempt of court for willful failure to pay court-ordered maintenance and to provide required proof of insurance coverage. On December 17 Misao filed a motion to increase maintenance because she had lost her job. On December 18 the trial court issued a second rule to show cause why Joseph should not be held in contempt of court, and set the hearing for March 2,1992.

On February 19, 1992, Joseph filed a motion for change of venue alleging he feared he would not receive a fair trial because Judge Donald Parkinson was prejudiced against him. At the February 24 hearing on the motion, Misao filed a written objection and, after oral arguments, the trial court denied the motion. Neither party sought to introduce any evidence at the hearing. On February 28 Joseph filed a motion to dismiss Misao’s motion to increase maintenance and rule to show cause, and a motion for reconsideration of the motion for change of venue. Joseph’s motions were denied and, on April 16, the trial court found Joseph in contempt on the second rule to show cause, based on his willful failure to provide insurance coverage and pay maintenance as required in the May 15, 1989, court order. The trial court also denied Misao’s motion to increase maintenance and Joseph’s motion to terminate maintenance. On May 22, 1992, the trial court entered judgment against Joseph for (1) Misao’s attorney fees of $1,326, (2) past-due maintenance of $2,750, (3) withholding of $250 per month for maintenance, (4) deposit of $10,000 into a bank account with the children as beneficiaries, and (5) payment of $2,600 owed to Misao from a life insurance policy. Joseph filed a post-trial motion which the trial court denied. Joseph then filed a timely notice of appeal and Misao cross-appealed.

On appeal Joseph contends that as he had an absolute right to a change of venue the trial court erred in denying that motion. Under section 2 — 1001 of the Code of Civil Procedure (Code), a right to a change of venue exists where a petition asserting prejudice on the part of the trial judge is duly made, verified, and filed. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1001; see In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 95-96, 507 N.E.2d 912, 919.) If the petition is filed prior to the hearing and before the judge has made any substantive rulings, the trial court has no discretion to deny such a request. (Betts, 155 Ill. App. 3d at 96, 507 N.E.2d at 919.) However, “post-decree petitions do not constitute new actions, but merely continuations of the dissolution proceeding, and a substantive ruling on one petition will preclude a change of venue as of right on another.” (In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 531, 463 N.E.2d 719, 722.) Any substantive ruling made by a judge at any time during the dissolution proceedings or during post-trial motions precludes a change of venue as of right before that same judge. Betts, 155 Ill. App. 3d at 97, 507 N.E.2d at 920.

Pretrial conferences, where no decisions were made affecting the merits of the case, and rulings on motions for continuance, unopposed motions for leave to amend, discovery motions, and motions for severance have all been held not to be rulings on substantial issues which would prevent a change of judge as of right. (In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 368, 510 N.E.2d 559, 562-63.) The issuance of a protective order ordering that a parent have access to a child pending a ruling on temporary custody is, however, a ruling on a substantial issue. (In re Marriage of Kenik (1989), 181 Ill. App. 3d 266, 271, 536 N.E.2d 982, 984-85.) Even when the trial court has not ruled on a substantial issue, it appears the motion may be denied if the movant has had an opportunity to test the waters and form an opinion as to the court’s reaction to his claim (Kozloff, 101 Ill. 2d at 531, 463 N.E.2d at 721; Kenik, 181 Ill. App. 3d at 271, 536 N.E.2d at 984; Rader v. St. Louis Southwestern Ry. Co. (1991), 207 Ill. App. 3d 1001, 1007, 566 N.E.2d 736, 740), or if the movant is simply attempting to delay or avoid trial. (People ex rel. Baricevic v. Wharton (1990), 136 Ill. 2d 423, 430-31, 556 N.E.2d 253, 256 (discussing Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a)).) The legislature has amended section 2— 1001, and added a new section 2 — 1001.5, to distinguish between changes of judge and' changes of the place of trial, both of which were formerly referred to as “changes of venue.” (735 ILCS 5/2— 1001, 2-1001.5 (West 1992), Pub. Act 87-949, §§2-1001, 2-1001.5, eff. January 1, 1993 (1992 Ill. Legis. Serv. 1781, 1782-83 (West)).) Amended section 2 — 1001, which does not apply to this case, eliminates the necessity for the movant to recite that he fears the judge is prejudiced against him, and allows each party “one substitution of judge without cause as a matter of right.” (735 ILCS 5/2 — 1001(a)(2)(i) (West 1992).) Amended section 2 — 1001 preserves the limitation imposed by the decided cases that the motion must be made “before the judge to whom it is presented has ruled on any substantial issue in the case.” (735 ILCS 5/2 — 1001(a)(2)(ii) (West 1992).) It is interesting that amended section 2 — 1001 says nothing of situations where a movant has been able to test the waters, or where the motion is filed simply for delay, although the section does require the motion to be “timely.” The word “timely” is not defined, unless we should assume that “timely” means “presented before trial or hearing begins.” 735 ILCS 5/2 — 100l(a)(2)(ii) (West 1992).

Here, the Connecticut dissolution of marriage was registered and petitions were filed to enforce the judgment and to modify maintenance. Judge Parkinson then entered an order finding the parties’ stipulation fair and reasonable, requiring Joseph to make certain payments, and modifying the 1961 judgment. We find this order to be a substantive ruling in the parties’ case. Therefore, when Joseph filed his motion for change of venue nearly two years later in the enforcement proceedings, he did not have an absolute right to a change of venue.

Because Judge Parkinson had made a substantive ruling prior to Joseph’s motion for change of venue, Joseph had to demonstrate actual and specific prejudice. (Betts, 155 Ill. App. 3d at 96, 507 N.E.2d at 920.) A motion for a change of judge based on actual prejudice must be brought at the earliest practical moment after the prejudice is discovered and the change of venue is a matter of judicial discretion. (Betts, 155 Ill. App. 3d at 96, 507 N.E.2d at 920.) Here, Joseph alleged in his motion that he feared Judge Parkinson was prejudiced against him, yet he offered no support for his allegation. Judge Parkinson did not abuse his discretion in denying the motion for change of venue based on his finding that “[t]here has been absolutely no demonstration here or showing of a factual basis as to why the court would be prejudiced against the defendant.” As additional support for denying the change of venue, Judge Parkinson found the motion was “solely to delay the proceedings” and was not presented in proper form with affidavit attached. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1001(c).) These reasons further support Judge Parkinson’s discretionary ruling to deny change of venue.

Misao cross-appeals contending the trial court erred in not holding Joseph in contempt on the first rule to show cause issued November 14, 1990. Apparently she does so in the belief that a finding of contempt is a prerequisite to an award of attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)). Misao contends Joseph willfully delayed for nearly two years the implementation of a court-ordered allotment of $250 for maintenance. The trial court found “it would appear that on a fairly regular basis of some sort there was payment made with regard to the $250 here.” The evidence showed Joseph made monthly payments from June 1989 through July 1990, and then made eight payments in March 1991. Joseph then started an allotment and Misao received maintenance until June 1991 when he cancelled the allotment. Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing court will not disturb the finding unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. (In re Marriage of Dali (1991), 212 Ill. App. 3d 85, 97, 569 N.E.2d 1131, 1139.) Here, the relevant time period is May 1989, the date setting maintenance at $250, through November 1990, the date of Misao’s petition for rule to show cause. The evidence shows that although some of the payments were untimely, and were made directly by Joseph rather than by allotment as ordered by the court, Joseph eventually made all of the payments. We find the trial court did not abuse its discretion in declining to find Joseph in contempt for these late payments.

The purpose of civil contempt is coercive: to require compliance with some order previously entered by the court. Where that order has in fact been complied with, the court need not find the respondent in contempt, but it is still necessary to determine whether any failure to pay was “without cause or justification” for purposes of mandatory attorney fees under section 508(b) of the Act (111. Rev. Stat. 1991, ch. 40, par. 508(b)). Although a finding of contempt carries with it an implicit finding that failure to make payments was without cause or justification (Betts, 155 Ill. App. 3d at 105, 507 N.E.2d at 926), a finding of no contempt is not always a finding of cause or justification. The November 14, 1990, petition alleged Joseph willfully failed to comply with the maintenance order. Joseph brought his payments current by making eight payments in March 1991. The December 16, 1991, petition for a rule to show cause alleged, among other things, that Joseph again failed to make timely maintenance payments, and the trial court found that failure was without cause or justification. We find nothing in the record from which the trial court could have concluded that failure to make payments prior to November 1990 was due to some cause or justification. That the maintenance payments were eventually made does not change the fact it was necessary for Misao to employ an attorney and to file a petition to receive the amounts owed her. Accordingly, we reverse the trial court’s failure to award mandatory attorney fees on the first petition for a rule to show cause, and remand so that the trial court may determine the amount of those fees.

Misao also contends the trial court erred in denying her petition to increase maintenance. The decision to modify maintenance is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 492, 509 N.E.2d 729, 736.) The party seeking modification of a maintenance order bears the burden of showing the needs of the spouse receiving maintenance have changed or the ability of the other spouse to pay maintenance has changed. (In re Marriage of Pedersen (1992), 237 Ill. App. 3d 952, 956, 605 N.E.2d 629, 632-33.) The showing of a substantial change in circumstances enables a court to modify maintenance but does not require that it do so. A court which has found that a substantial change in circumstances has occurred must then weigh the same factors which the court considered in originally setting maintenance, and may decide that a modification of maintenance is still not justified. Here, Misao had the burden to show a further modification was justified since the trial court increased Joseph’s maintenance to $250 in May 1989. The evidence showed Misao lost her job when her employer went out of business in May 1990, decreasing her net income by $271 per month. In addition, her social security benefits increased by $32 per month, and her living expenses increased $134 per month. Joseph’s pension increased $104 per month, his social security increased $90 per month, and his living expenses increased $68 per month. Joseph also divested himself of his troubled restaurant business and paid $47,517 in delinquent taxes owed to the Internal Revenue Service. Both parties have had significant events in their lives, some positive, some negative. We cannot say the trial court’s balancing of Misao’s need for increased maintenance against Joseph’s ability to pay was improper. The trial court’s determination that maintenance should not be modified was not contrary to the manifest weight of the evidence.

Affirmed in part; reversed in part and remanded.

STEIGMANN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS, Plaintiff-Appellant, v. SHINAE CHUN, Director of the Department of Labor, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0971
    Argued May 19, 1993.
    Opinion filed June 10, 1993.
    Andrew J. Martone (argued), of Husch & Eppenberger, of St. Louis, Missouri, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General (argued), of Chicago, of counsel), for appellee Shinae Chun.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1992, plaintiff, Associated General Contractors of Illinois, filed a complaint seeking administrative review of wage-rate determinations made by the Illinois Department of Labor (Department). In September defendant Shinae Chun brought a motion to dismiss plaintiff’s complaint on the ground that it failed to name the Department as a defendant, as required by section 3 — 107(a) of the Administrative Review Law (111. Rev. Stat. 1991, ch. 110, par. 3 — 107(a)). The circuit court granted defendant Chun’s motion. Plaintiff appeals, and we affirm.

I. Background

In November 1991, the Department issued prevailing wage rates for carpenter work performed in Illinois highway district No. 7 (covering 14 southern Illinois counties) that became effective December 1, 1991. Plaintiff objected to those rate determinations, and in January and March 1992, the Department held a hearing on plaintiff’s objections. On May 14, 1992, the Department’s hearing examiner issued written findings of fact and law that upheld the wage rates at issue and denied plaintiff’s objections.

On June 17, 1992, plaintiff filed a complaint for administrative review of the Department’s decision. In the complaint, plaintiff named the following parties as defendants and served summons on each of these parties: Shinae Chun, as Director of the Department, the Southern Illinois District Council of Carpenters, and the Mid-Central Illinois District Council of Carpenters.

On July 21, 1992, Chun filed her answer, which included the record of administrative proceedings before the Department. On September 8, 1992, Chun filed a motion to dismiss plaintiff’s complaint on the ground that plaintiff did not make the Department a defendant in the action as required by section 3 — 107(a) of the Administrative Review Law. (111. Rev. Stat. 1991, ch. 110, par. 3 — 107(a).) Chun further argued that plaintiff’s failure to make the Department a party within the 35-day filing period required by section 3 — 103 of the Administrative Review Law (111. Rev. Stat. 1991, ch. 110, par. 3 — 103) constituted a jurisdictional defect that deprived the court of jurisdiction under the Administrative Review Law. On September 24, 1992, plaintiff filed a motion to amend its complaint under section 2 — 616(d) of the Code of Civil Procedure (Code) (111. Rev. Stat. 1991, ch. 110, par. 2— 616(d)) seeking to “re-name” the first party defendant as the Department instead of Chun, Director of the Department.

The circuit court held a hearing on Chun’s motion to dismiss and plaintiff’s motion to amend and, in November 1992, granted the motion to dismiss and denied the motion to amend. In its November 1992 order, the court explained its decision as follows:

“The Plaintiff urges that it should be allowed to correct a misnomer of party pursuant to Section 2 — 616(d) of the [Code]. Defendant Chun contends that this is not a misnomer case[,] but instead is an attempt to add a different and additional party after the 35-day filing period has run.
The Court finds that Director Chun and the Department are two separate and distinct entities and that the Department was not named within the 35-day filing period. This is not a case of misnomer. This case is controlled by Strang v. Department of Transportation (4th Dist. 1990), 206 Ill. App. 3d 368[, 564 N.E.2d 261], and Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349[, 549 N.E.2d 1266], which prohibit the naming of additional parties after the 35-day period.
Defendant Chun is not a proper party because the administrative decision appealed from was not made by her as director^] but was made by the agency which is the unnamed party.”

II. Analysis

Plaintiff argues that the circuit court abused its discretion by granting defendant Chun’s motion to dismiss instead of granting its motion to amend its complaint by changing the designation “Shinae Chun, Director of the Department of Labor” to the “Illinois Department of Labor.” Plaintiff contends that section 2 — 616 of the Code (111. Rev. Stat. 1991, ch. 110, par. 2 — 616), dealing with amendments to pleadings, applies to this case. Plaintiff maintains that an application of the four-part test provided in Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 276, 586 N.E.2d 1211, 1217, clearly demonstrates that the circuit court abused its discretion by denying its motion. Plaintiff argues that because its amendment meets the requirements of section 2 — 616(d) of the Code, the circuit court erred in not allowing plaintiff to amend its complaint as requested.

In response, Chun argues that under the Administrative Review Law (111. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.), the Department was a necessary party to this action, and under Lockett v. Chicago Police Board (1990), 133 111. 2d 349, 549 N.E.2d 1266, plaintiff’s failure to name the Department as a defendant within the 35-day time period denied the circuit court subject-matter jurisdiction. Chun also contends that plaintiff's obligation to name the Department as a party defendant within the 35-day time period was a nonwaivable requirement. We agree and affirm the circuit court’s dismissal of plaintiff’s complaint without allowing plaintiff to amend its complaint.

The provisions of the Administrative Review Law govern judicial review of the Department’s administrative decisions under the

Prevailing Wage Act. (111. Rev. Stat. 1991, ch. 48, par. 39s — 9.) Section 3 — 107(a) of the Code discusses naming defendants when a party appeals a final administrative agency decision, as follows:

“[I]n any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 110, par. 3— 107(a).

In Lockett, the Illinois Supreme Court stated the following regarding the Administrative Review Law:

“Section 3 — 102 provides that ‘[u]nless review is sought *** within the time and in the manner herein provided,’ a party is barred from bringing an action for administrative review. (Emphasis added.) (111. Rev. Stat. 1985, ch. 110, par. 3 — 102.) Since the Administrative Review Law is a departure from common law, the procedures it establishes must be strictly adhered to in order to justify its application. [Citation.]
As noted previously, section 3 — 103 of the [Code] provides that an action to review an administrative decision shall be commenced ‘by the filing of a complaint and the issuance of a summons within 35 days’ of receipt of the decision being appealed. (Emphasis added.) (111. Rev. Stat. 1985, ch. 110, par. 3— 103.) The requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. [Citation.] The 35-day period for the issuance of summons, on the other hand, is mandatory, not jurisdictional, and failure to comply with that requirement will not deprive the court of jurisdiction.” (Lockett, 133 Ill. 2d at 353-55, 549 N.E.2d at 1267-68.)

The court further noted that the requirement in section 3 — 107 of the Administrative Review Law (111. Rev. Stat. 1991, ch. 110, par. 3 — 107) that all parties of record before the administrative agency be made defendants “is mandatory and specific, and admits of no modification.” (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.) The court also explicitly overruled prior appellate decisions which held that the failure to name and issue summons to necessary parties within the 35-day time period could be cured by subsequent amendment. (Lockett, 133 Ill. 2d at 356, 549 N.E.2d at 1269.) In Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 371-73, 564 N.E.2d 261, 263-65, this court followed and applied the Lockett decision.

Plaintiff attempts to distinguish Lockett and Strang by stating that in both of these cases, the plaintiff seeking administrative review “completely omitted necessary parties to the litigation, which *** could generally not be cured by amendment to add absent parties pursuant to 111. Rev. Stat. [1991,] ch. 110, par. 2 — 616.” Plaintiff then asserts that here its motion to amend its complaint merely seeks to change the designation of one of the named defendants, not to add an additional defendant. Citing Fleshner v. Copeland (1958), 13 Ill. 2d 72, 76-77, 147 N.E.2d 329, 332, plaintiff contends that because it named the Department in the body of the complaint, it has properly made the Department a party defendant even though it did not name the Department in the caption. We find plaintiff’s claimed distinctions unpersuasive.

A plaintiff must name the necessary parties as defendants in its complaint for administrative review within the 35-day time limit or the court is deprived of subject-matter jurisdiction. (Lockett, 133 Ill. 2d at 353, 549 N.E.2d at 1267; Strang, 206 Ill. App. 3d at 370-71, 564 N.E.2d at 263.) Further, we must strictly adhere to the provisions of the Administrative Review Law. (Stanley v. Department of Employment Security (1992), 235 Ill. App. 3d 992, 995, 602 N.E.2d 73, 74; see also Stone v. Department of Employment Security Board of Review (1992), 151 Ill. 2d 257, 267, 602 N.E.2d 808, 812.) Fleshner does not apply to this case because the provisions of the Administrative Review Law govern our decision, and section 3 — 107(a) of the Administrative Review Law requires a plaintiff to correctly name all necessary party defendants in the caption of its complaint when seeking administrative review.

Plaintiff does not contest that the Department is a necessary party. (See HI. Rev. Stat. 1991, ch. 110, par. 3 — 107; Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.) The Department was the administrative agency in this case that rendered the decision on which plaintiff sought administrative review; accordingly, the caption of plaintiff’s complaint had to name the Department as a party defendant within the 35-day time limit of section 3 — 103 of the Administrative Review Law. Because plaintiff’s initial complaint failed to do so, and because plaintiff’s motion to amend was filed over two months after the 35-day time period had expired, the circuit court lacked subject-matter jurisdiction over plaintiff’s complaint.

Plaintiff contends that the conduct of Director Chun and the Department indicates that the Department essentially acted as a party defendant. Plaintiff thus argues that this conduct estops Chun and the Department from challenging plaintiff’s pleadings. In particular, plaintiff points out that (1) Chun filed with her answer the record of the proceedings of the underlying action held before the Department, (2) the Department declined to review plaintiff’s objections to later prevailing wage-rate determinations in July 1992 because the Department stated that it was a party to this action, and (3) the Hlinois Attorney General has appeared in this case on Chun’s behalf. Plaintiff claims that under section 3 — 108 of the Administrative Review Law, only the administrative agency at issue can file a record of proceedings (111. Rev. Stat. 1991, ch. 110, par. 3 — 108), and that the Attorney General is authorized to represent only the Department in actions under the Prevailing Wage Act, not Chun (see Ill. Rev. Stat. 1991, ch. 48, par. 39s — 9).

Although plaintiff’s arguments could help it obtain relief under section 2 — 616(d) of the Code (see 111. Rev. Stat. 1991, ch. 110, par. 2 — 616(d); Loyola Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1215), they do not bring plaintiff’s requested review “ ‘within the time and in the manner’ ” provided in the Administrative Review Law (emphasis in original) (Lockett, 133 Ill. 2d at 353, 549 N.E.2d at 1267, quoting 111. Rev. Stat. 1985, ch. 110, par. 3 — 107). Plaintiff must strictly meet the formal requirement of correctly naming the necessary party defendants in the caption of its complaint when seeking administrative review. These equitable arguments cannot overcome the plaintiff’s failure to specifically name the Department within the 35-day time limit, as required by the Administrative Review Law.

Plaintiff similarly argues that Chun, as Director of the Department, and the Department are essentially the same party; therefore, plaintiff claims that its naming Chun as a defendant amounts to naming the Department as a defendant. Because section 3 — 101 of the Administrative Review Law defines an “administrative agency” as “a person *** or department *** of the State” (111. Rev. Stat. 1991, ch. 110, par. 3 — 101), plaintiff claims that the Director of the Department can be the equivalent of the Department. Plaintiff also asserts that because Chun is the Director of the Department, she is the final decision-making authority in the Department, which then makes her the equivalent of the Department.

Appellate court decisions have looked at a Director’s function and responsibility in the decision-making process to determine whether the Director was a necessary party to a complaint seeking review of a final administrative decision. (See Pontiac Lodge No. 294 v. Department of Revenue (1993), 243 Ill. App. 3d 186, 188, 611 N.E.2d 62, 63-64 (Director was not necessary party because the Director was merely approving agency’s recommendation); Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, 968-72, 574 N.E.2d 747, 752-54 (Director was a necessary party because Director was the final decision maker under agency’s rules).) However, in this case, plaintiff named the Director a defendant. Thus, no issue arises here whether plaintiff had to name her as a defendant.

Under section 3 — 107(a) of the Administrative Review Law, no question exists that the administrative agency which rendered the final decision at issue must be a named defendant. (111. Rev. Stat. 1991, ch. 110, par. 3 — 107(a).) Under Pontiac Lodge No. 29U and Zientara, an administrative agency and the agency’s director are considered separate and distinct entities in the context of being necessary defendants under the Administrative Review Law. Thus, Chun’s level of decision-making authority as Director of the Department does not make her an equivalent to the Department. We agree with the trial court that Director Chun and the Department are separate and distinct entities.

III. Conclusion

In summary, we find that plaintiff’s failure to specifically name the Department as a defendant in the caption of its complaint within the 35-day time period as set out in the Administrative Review Law deprived the circuit court of jurisdiction over its complaint. Although we acknowledge that this result may be harsh, we hold that it is required by the statutory language of the Administrative Review Law and the supreme court’s interpretation of the Administrative Review Law in Lockett. We also note that section 2 — 616 of the Civil Practice Law (111. Rev. Stat. 1991, ch. 110, par. 2 — 616) is not wholly inapplicable to complaints seeking review of a final administrative decision under the Administrative Review Law. If plaintiff seeks to amend the complaint for administrative review by adding a necessary party defendant, a plaintiff must file its motion to amend under section 2— 616 of the Civil Practice Law within the 35-day period established in section 3 — 103 of the Administrative Review Law.

For the reasons stated, we affirm the circuit court’s decision to grant Chun’s motion to dismiss plaintiff’s complaint.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STAUNTON LANDFILL, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0663
    Argued March 17, 1993.
    Opinion filed June 3, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, and James L. Morgan, Assistant Attorney General (argued), of Springfield, of counsel), for the People.
    Thomas J. Immel (argued), of Alton, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

The office of the Attorney General of the State of Illinois (State) appeals the denial of its motion for preliminary injunction seeking to enjoin Staunton Landfill, Inc. (SLI), from accepting wastes in its landfill site until SLI complies with a number of provisions of the Illinois Environmental Protection Act (Act) (111. Rev. Stat. 1991, ch. HV-k, pars. 1001 through 1056.6). After a full hearing, the trial court issued an order finding many of the State’s allegations unfounded. The order also reflected an agreement among the parties that, without any admission of liability, SLI would be enjoined to cease and desist from violations of specific sections of the Act. The State appeals the trial court’s finding that allegations of the violations were unfounded and asks that an injunction be issued to preliminarily enjoin SLI from further violations of the Act. We affirm.

Defendant SLI, a Missouri corporation authorized to do business in Illinois, operates a landfill in Macoupin County, Illinois. The landfill was formerly owned by Charles Westhoff, who sold the facility on contract to SLI on July 26, 1990. According to the terms of the contract, SLI would operate the landfill in his stead until the Illinois Environmental Protection Agency (IEPA) transferred the operating permit to SLI. In December 1991, SLI came under new ownership and management. Thomas Immel, the attorney of record for defendant on appeal, became the president of SLI at this time.

At the time Immel took control of SLI, there was an ongoing permit appeal between the IEPA and the former owners of SLI. The original permit issued in 1974 had specified a limitation on the final height of the landfill at the time of closure. When SLI began operating the landfill, it was notified that certain unused sections of the landfill exceeded the permitted elevation. The former owners of SLI proposed to the IEPA, in SLI’s closure plan, that this height violation be allowed to remain in place and, in exchange, SLI would reduce the use of other permitted areas. The IEPA rejected this closure plan on November 7, 1990. SLI submitted another closure plan in February 1991, and this was denied a few months later.

When Immel took control of SLI in December 1991, it was decided to abandon any attempt to modify the original permit. Instead, SLI began shaving off wastes from the area in violation of the height restriction in order to bring the elevation down to the permitted level. The “skimmed off” waste was moved to areas of the landfill which were not over the final elevation limits, and the area that had been skimmed off received a new cover. The project took a couple months to complete and was finished on May 11,1992.

On February 4, 1992, the State filed a complaint in response to a number of alleged violations of the Act. The complaint called on the trial court to (1) enter a preliminary injunction enjoining defendants from continuing to accept wastes at the landfill; (2) enter a permanent injunction enjoining defendants from violating sections 9.1 and 21 of the Act (111. Rev. Stat. 1991, ch. HV-k, pars. 1009.1, 1021); (3) find that defendants had repeatedly and knowingly violated these sections of the Act; and (4) impose civil penalties of $10,000 for each initial violation that occurred prior to July 1, 1990, plus $1,000 per day for each day that the violation was allowed to occur. For those violations occurring after July 1, 1990, the State asked for a penalty of $50,000, plus $10,000 for each day the violations were allowed to continue. In addition, the State requested defendants be ordered to pay plaintiff’s costs, attorney fees, and the cost of expert witnesses and consultants.

On April 6, 1992, the State filed a motion for a preliminary injunction, alleging the same violations of the Act as in the original complaint and caUing for the closure of the landfill until the alleged violations ceased. The motion was filed in conjunction with the original complaint, and the hearing on this motion forms the basis of this appeal. The status of the original complaint is unknown and presumed to be pending.

The alleged violations can be grouped under four general claims for relief. The first claim alleged that SLI failed to meet requirements imposed on landfill sites that accept waste material containing asbestos. Section 9.1(dXl) of the Act (111. Rev. Stat. 1991, ch. lll1^, par. 1009.1(dXl)) incorporates the standards adopted by the United States Environmental Protection Agency governing disposal of asbestos waste. The complaint alleged a violation of section 61.154(b) of the Code of Federal Regulations (Code) (40 C.F.R. §61.154(b) (1991) (as amended eff. November 20, 1990)), adopted pursuant to section 112 of the Clean Air Act (see 42 U.S.C. §7412 (1988)). Section 61.154(b) of the Code provides:

“Unless a natural barrier adequately deters access by the general public, either warning signs and fencing must be installed and maintained as follows, or the requirements of paragraph (cXl) of this section must be met.” (40 C.F.R. §61.154(b) (1991).)

Section 61.154(cXl) of the Code provides in relevant part:

“[A]t the end of each operating day, or at least once every 24-hour period while the site is in continuous operation, the asbestos-containing waste material that has been deposited at the site during the operating day or previous 24-hour period shall:
(1) Be covered with at least 15 centimeters (6 inches) of compacted nonasbestos-containing material.” (40 C.F.R. §61.154(cXl) (1991).)

The trial court found that SLI was currently meeting the daily-cover requirement of subsection (cXl) of the Code and was therefore not required to have either a natural barrier, fencing, or warning signs around the perimeter of the landfill site.

Another alleged violation trader section 61.154 of the Code was SLI’s failure to maintain records of asbestos waste deposited in its landfill. Such records are required to contain, among other things, the identity of the waste generator, quantity of waste, and its location in the landfill, and must be furnished on request and made available during normal business hours. (40 C.F.R. §§61.154(e), (f), (i) (1991).) The issue of SLI’s violation of this regulation was ultimately settled by agreement between the parties. This agreement, incorporated in the court’s order, states that without any finding or admission of liability, SLI would be enjoined to take all necessary actions to collect and maintain the required records of asbestos waste shipments.

The second claim for relief alleged that SLI violated section 21(dX2) of the Act (111. Rev. Stat. 1991, ch. llV-lz, par. 1021(dX2)), which prohibits the violation of any regulation or standard adopted by the Hlinois Pollution Control Board (IPCB). Specifically, the complaint alleges a violation of section 807.305 of title 35 of the Illinois Administrative Code (Administrative Code) (35 Ill. Adm. Code §807.305 (1991)), which requires that daily cover (consisting of a compacted layer of six inches of suitable material) be placed on all exposed refuse at the end of each day of operation. As stated earlier, the trial court found no daily-cover violations under the Clean Air Act. The same conclusion applied to daily-cover violations under the Administrative Code.

The third claim for relief was also brought pursuant to section 21(d)(2) of the Act, alleging a violation of IPCB regulations 807.503 and 807.523 (35 Ill. Adm. Code §§807.503, 807.523 (1991)), which provide that an operator of a waste-management site shall have prepared a written closure plan and a written post-closure plan as a condition of the site permit. SLI purchased the landfill in July 1990. The first closure plan was denied November 7, 1990. Another closure plan was filed in February 1991 and rejected that same year. Immel took over SLI in December 1991, and a closure plan was filed in April 1992.

Although permit applications normally take 75 to 85 days to review, the Attorney General requested the IEPA to put a rush on the most recent application. SLI first learned the permit application had been denied when the State entered the denial letter into evidence while presenting its case at the hearing. Testimony revealed that many of the perceived problems with the closure plan were the result of minor technicalities or misunderstandings. Although it is typical for the IEPA to contact the applicant in order to clear up any problems which may arise during the application process, no attempt was made to communicate with SLI regarding perceived deficiencies in its permit application. A copy of the denial was finally sent to SLI five days after the hearing began.

The trial court found the lack of a closure, post-closure plan was primarily due to a lack of communication between the parties. It ordered IEPA to conduct a review of the latest plan and work out whatever difficulties were found with the defendant SLI. Two versions of a closure plan were later submitted. After argument, the trial court chose one version and ordered IEPA to issue the permit.

The fourth and final claim for relief was also brought under section 21 of the Act, alleging a violation of IPCB regulation 807.302 (35 Ill. Adm. Code §807.302 (1991)), which requires a landfill site operator to comply with all conditions and provisions of its permit. Specifically, the State alleged SLI operated the landfill in violation of final-height limitations required in its permit. The trial court found that as a result of the shaving-off of one section of the landfill, SLI was not currently in violation of this regulation. Testimony at the hearing established that the original height violation was created by prior owners of the landfill.

On appeal, the State alleges three violations, under the general headings of sections 21(d)(2) and 9.1(dXl) of the Act, and claims the court erred in concluding defendants were not in violation of these sections. As mentioned earlier, section 21(dX2) of the Act prohibits violations of IPCB regulations and section 9.1(d)(1) of the Act incorporates the standards adopted by the United States Environmental Protection Agency governing disposal of asbestos waste. The specific violations alleged are derived from (1) section 807.305 of the Administrative Code, which requires daily cover of all exposed refuse at the end of each day of operation; (2) sections 61.154(b)(1) and (b)(2) of the Code (40 C.ER. §§61.154(b)(l), (b)(2) (1991)), which require that a landfill accepting asbestos waste and, not meeting the requirement of daily cover, must have fencing installed along the perimeter of the landfill and warning signs posted; and (3) section 61.154(i) of the Code (40 C.F.R. §61.154(i) (1991)), which requires that records of the location and quantity of asbestos waste at the site be furnished upon request and made available during normal business hours for inspection.

Daily Cover

The State’s first witness, Steven Youngblut, is a district engineer in the air pollution division of the IEPA. His first inspection occurred on December 14, 1990, at which time he observed uncovered waste. He had no idea whether it was covered later in the day. Under questioning by the trial judge, he admitted that no action was taken as a result of this inspection. He inspected the site again on May 11, 1992, and found no evidence of uncovered waste. He commented that the site as a whole looked better.

The State’s second witness, Steve Townsend, is a field inspector for the IEPA, division of land pollution control. On two different inspections, March 16, 1992, and April 17, 1992, he observed inadequate cover on an area of the central portion of the south hill. This is the unused portion of the landfill where SLI had engaged in its “skimming” operation to lower its elevation. Townsend returned on May-26, 1992, and found the skimming operation complete, a new “cap” on this unused portion, and vegetation planted and growing on it. His inspection on this day came about as a result of a complaint from an unidentified politician. The complaint was determined to be entirely unfounded. He has seen no visible emissions of asbestos at the site and received no official complaints from the public.

The State’s third witness, Richard Johnson, is the assistant regional manager for the IEPA, division of land pollution control. He testified that he inspected the landfill on August 30, 1990, and again on December 14, 1990. On both occasions, he found areas of the landfill that contained uncovered waste. The August 30, 1990, inspection took place at 10:30 a.m. and, from what he could observe, the landfill had not begun accepting waste that day. The December 14, 1990, inspection took place at about 2 p.m. and uncovered waste was observed in areas other than the active operating face. He had no idea whether daily cover had been put over the violating areas between August 30 and December 14, 1990, nor could he say for certain if the uncovered debris found in August was the same as the uncovered debris found in December.

Over a year passed before he inspected the site again. On January 6, 1992, he found uncovered waste at the site and, on his next inspection on March 16, 1992, he observed uncovered waste in that same area where he had found uncovered waste two months earlier. In its brief, the State claims Johnson testified that the uncovered waste observed in January was still uncovered in March and remained uncovered through the time of the April 17, 1992, inspection. A careful review of the record reveals that during cross-examination Johnson specifically stated that the uncovered refuse seen in January had been covered by the time of his March 16, 1992, inspection. At no time does Johnson state that the uncovered waste seen on his April 17, 1992, inspection was the same waste as he had seen uncovered on the prior two inspections.

During his March 16, 1992, inspection, he found a different area of uncovered waste where a trench had been dug along the side of the landfill. According to Immel’s testimony, the trench had been dug that morning, filled with concrete columns, and filled in again on the same day. The uncovered waste Johnson observed on April 17, 1992, was apparently located in the area where SLI was engaged in the skimming operation to lower the elevation of an unused portion of the landfill. This height violation was created by prior owners of the landfill, not SLI. Immel’s testimony indicated great care was taken to reduce any dust emissions caused by this skimming procedure and daily cover was applied throughout the project.

Johnson’s final inspection was on May 11, 1992. He found no cover violations. At no point was Johnson able to state that waste material deposited on one day was left uncovered until the next day.

The State cites Environmental Protection Agency v. Penn (1977), 27 Ill. PCB Op. 217, for the principle that violations can be proved by either visiting the site at the end of the day’s operation and finding the requisite cover was not applied or by visiting the site on two different days and finding the same refuse uncovered. Under this standard, the trial court’s ruling that there was insufficient evidence of a daily cover violation appears to be well supported by testimony. The inspections all took place in the morning or afternoon during operating hours at the landfill. Johnson testified that he saw uncovered waste on two morning inspections (7 a.m. and 10:30 a.m.), where it appeared to him that the landfill had not begun accepting waste for the day. However, no conclusive evidence was presented that waste was ever allowed to go uncovered at the end of any working day.

The State’s allegation of a violation of sections 61.154(b)(1) and (b)(2) of the Code, requiring fencing and warning signs, is entirely dependent upon the daily-cover violation. The trial court’s finding that there has been no violation of cover regulations eliminates any need to discuss SLI’s failure to install fencing or warning signs.

Asbestos Records

Pursuant to section 9.1(dXl) of the Act, SLI is required to comply with section 61.154(i) of the Code (40 C.F.R. §61.154(i) (1991) (as amended effective November 20, 1990)), adopted pursuant to section 112 of the Clean Air Act (see 42 U.S.C. §7412 (1988)). This section provides that the owner or operator of a waste disposal site that accepts asbestos-containing waste material shall “[fjumish upon request, and make available during normal business hours for inspection by the Administrator, all records required under this section.” (40 C.F.R. §61.154(i) (1991).) Although not explicitly required in the regulation, the IEPA interprets this section to mean that the records must be kept at the landfill site.

On December 14, 1990, Youngblut went to the landfill site and asked to see the records of asbestos disposal. He spoke with an employee of the landfill who provided him with forms which appeared to be shipment manifests for asbestos. The records were not in complianee with IEPA standards, and the employee was unable to provide the required map showing the location of asbestos waste within the landfill. No effort was made to contact the owner of the site, nor was there any further effort to check the contents of these records. Immel was unable to rebut this testimony because he had no connection with SLI at the time. Cross-examination focused on the fact that no action was taken as a result of this violation.

Youngblut’s next inspection was on May 11, 1992. Prior to this date, on May 5, 1992, Immel removed the asbestos records from the landfill site and moved them to the corporate office in Alton, Illinois. Until that time, the records had been stored in an old trailer that SLI had inherited from the previous owners. Some of SLI’s equipment had been vandalized and Immel did not feel the records were secure. Arrangements had already been made to get a larger, more secure trailer, locked cabinets, security lighting, and guard dogs. The records were returned to the landfill site on May 20,1992.

When Youngblut asked to see the records of asbestos disposal on May 11, 1992, he was told by an equipment operator that the records were at the office in Alton, Illinois. Youngblut made no attempt to contact the Alton office. Later that day, Immel learned that Youngblut had asked about the asbestos records. He immediately called Youngblut’s office to arrange a meeting to go over these records. Youngblut was not in, and he never returned the call.

The trial judge felt this issue could best be resolved if the parties made an effort to communicate with each other:

“I’ve got a bad taste in my mouth about this case. And a lot of technicalities and all these photographs that I’ve had a chance to see from the beginning to now, indicate to the Court that the operator, Staunton Landfill, Inc.[,] at this time has done a lot to improve the site. And for some reason he’s not getting the usual cooperation the [IEPA] gives to other people in getting this permit either in line with what they want, and I think he’s trying to cooperate.”

On July 6, 1992, the State went to the landfill to check the asbestos records. Certain deficiencies in these records were noted but, by the time of the next hearing date on July 23, 1992, these deficiencies were substantially corrected. The State proposed working out an agreed order reflecting an assurance that the record keeping would be brought into compliance with the Act. This agreed order was incorporated into the court’s judgment, which reads, in relevant part:

“IT IS THEREFORE ORDERED that the Plaintiff’s Motion is denied, provided however that by agreement of the parties and without any finding or admission of liability, Defendant Staunton Landfill, Inc., is hereby enjoined to a) cease and desist from violations of subsection 9.1(d) of the Illinois Environmental Protection Act (111. Rev. Stat. 1991, Ch. IIIV2, par. 1009.1(d) and 40 C.F.R. 61.154(f) and (b) take such action as is necessary to collect and maintain the information required by 40 C.F.R. 61.154(f) as to past shipments of asbestos-contaminated construction debris.”

The court’s order provided, by agreement of the parties, a provision enjoining SLI from violations of section 61.154(f) of the Code (40 C.F.R. §61.154(f) (1991)), which required that a landfill operator accepting asbestos waste maintain, until closure, records of the location, depth and area, and quantity of asbestos-waste material within the disposal site. The State now contends that the trial court erred in failing to enjoin SLI from violating sections 61.154(e) and (i) of the Code (40 C.F.R. §§61.154(e), (i) (1991)), which provide for the specific information to be included within the asbestos records and that the records be made available during normal business hours.

The trial court’s order reflects the fact that at the hearing held on July 23, 1992, the State was substantially satisfied with the present state of SLI’s asbestos records. The State proposed the idea of an agreed order covering the “record-keeping matters” and made no objection to the court’s incorporation of this agreement into its judgment. To complain now that the court’s injunction is no longer agreeable to the State is consistent with the disingenuous spirit that runs through much of this case. A party may not complain of an error in an action which he induced the court to take. Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817.

According to the trial court’s order, SLI was enjoined from violating daily-cover requirements under section 9.1(dXl) of the Act, which referred only to the disposal of asbestos waste. The State now argues, inexplicably, that the court erred when it failed to enjoin SLI from violating section 9.1(dXl) of the Act. Not only had this injunction been granted, but this provision was included as a result of an agreement among the parties.

No injunction was issued under section 21(d)(2) of the Act, which incorporates the requirements under section 807.305 of title 35 of the Administrative Code, requiring daily cover on all exposed refuse. The State contends the trial court’s finding that there were no daily-cover violations is against the manifest weight of the evidence. Furthermore, the State contends that the threat to the environment and public health posed by violations of the Act is not alleviated by subsequent compliance with those same standards. Injunctive relief, the State argues, should turn solely upon whether violations have occurred, not whether the violations are presently occurring.

The issue is of particular importance because the trial judge repeatedly emphasized that he was primarily concerned with the current condition and operation of the landfill site. The trial judge stated:

“Also I don’t feel there’s been anything [to establish] a violation of daily cover. And when I say this, I’m primarily concerned about whether or not these problems exist now.
This is when the injunction, if it takes effect, will take effect. So I’m concerned about the situation at the site now. I don’t believe there is a height problem that exists now, based upon what evidence has been presented, nor do I believe there is a daily cover problem now. So as far as those issues are concerned, I’m going to resolve those in favor of the Defendants.”

The trial court heard overwhelming evidence that the condition of the site had markedly improved since Immel took SLI over in December 1991. The evidence included photographs showing the present condition of the site. Ample testimony indicated that the site is in full compliance with IEPA standards. The State contends that the issue of whether the violations are ongoing is only relevant in fashioning the relief necessary to preserve the status quo.

The State cites a number of decisions upholding injunctions for past violations. (People ex rel. Edgar v. Miller (1982), 110 Ill. App. 3d 264, 441 N.E.2d 1328; People v. Van Tran Electric Corp. (1987), 152 Ill. App. 3d 175, 503 N.E.2d 1179; People v. Keeven (1979), 68 Ill. App. 3d 91, 385 N.E.2d 804; Environmental Protection Agency v. Fitz-Mar, Inc. (1988), 178 Ill. App. 3d 555, 533 N.E.2d 524; People v. Mika Timber Co. (1991), 221 Ill. App. 3d 192, 581 N.E.2d 895.) The trial court noted two features that distinguish these cases from the case at hand. Leaving aside Miller, a case involving securities fraud, each of the decisions cited involved defendants who were actually polluting the environment. In the case at bar, there have been no allegations of off-site pollution.

The other distinguishing feature in these cases is the fact that most of the decisions involve defendants who demonstrated an unwillingness to cooperate with IEPA demands. In contrast, the trial judge noted in the case at bar that SLI was actively improving the condition of the site and trying to cooperate with the IEPA. Moreover, the site is currently meeting all IEPA requirements. The issue before us, then, is whether the trial court has discretion to deny injunctive relief for past technical violations of the Act where there is no present indication that the violations will continue.

The State brought its motion for preliminary injunction under section 42(e) of the Act (111. Rev. Stat. 1991, ch. llD/a, par. 1042(e)), which allows the Attorney General to institute a civil action for an injunction to restrain violations of the Act. It is well settled that where a statute expressly authorizes injunctive relief to enforce its provisions, the general rules of equity which require a showing of irreparable injury and a lack of an adequate remedy at law need not be shown. (People v. Fiorini (1991), 143 Ill. 2d 318, 345-46, 574 N.E.2d 612, 623.) The common law requirements for the issuance of equitable relief are suspended because the legislature has already determined, in passing the applicable statute, that violations of the statute cause irreparable injury for which no adequate remedy exists. (Sadat v. American Motors Corp. (1984), 104 Ill. 2d 105, 113, 470 N.E.2d 997, 1001.) When the statute authorizes such action, plaintiffs need only show a defendant’s violation of the Act and that plaintiffs have standing to pursue the cause. Fitz-Mar, 178 Ill. App. 3d at 560, 533 N.E.2d at 527.

Relying on a line of cases originating in the Fifth District Appellate Court, the State contends that, “once a violation has been shown, the trial court has no discretion to refuse to issue an injunction.” (Mika, 221 Ill. App. 3d at 193, 581 N.E.2d at 897.) The rule originates in Keeven and is ostensibly based upon the holding in People ex rel. Carpentier v. Goers (1960), 20 Ill. 2d 272, 170 N.E.2d 159, where a defendant attacked the sufficiency of a motion for preliminary injunction on the grounds that the complaint failed to allege irreparable injury and that the remedy at law was inadequate. The supreme court responded:

“Both of these propositions are negatived by the statute which expressly authorizes issuance of an injunction ‘to enforce the provisions of this Act, in addition to the penalties and other remedies in this Act provided.’ ” (Carpentier, 20 Ill. 2d at 276, 170 N.E.2d at 161, quoting Ill. Rev. Stat. 1959, ch. 95V2, par. 2-116.)

While offering support for the commonly accepted principle that the general rules of equity are suspended, we find no basis for concluding that a trial court thereby forfeits all discretion in the determination whether to grant or deny injunctive relief. As described in Illinois Law and Practice:

“The granting or denial of an injunction lies within the sound discretion of the court, and an injunction is granted only be-
cause the court is of the opinion that it ought to do so. The court’s discretion is not controlled by technical legal rules.
The power of a court to issue an injunction grows out of the inadequacy of other means to effect its purpose and protect individual and property rights, and the remedy by injunction should not be extended in its operation to cases not falling within well recognized principles. An injunction will not be ordered where it will operate oppressively, is not the fit and appropriate mode of redress under all the circumstances, or may work immediate mischief.” 21A Ill. L. & Prac. Injunctions §11, at 256 (1977).

See also Armstrong v. Crystal Lake Park District (1985), 139 Ill. App. 3d 991, 487 N.E.2d 648; Board of Education of Hawthorne School District No. 17 v. Eckmann (1982), 103 Ill. App. 3d 1127, 432 N.E.2d 298.

The violations claimed on appeal represent only a small portion of the original allegations presented to the trial court. Most of these allegations were dismissed as groundless. Other alleged violations were found to be the result of a lack of communication between the parties. Also significant is an indication in the trial record that some measure of overt political influence may have been involved in the IEPA’s handling of this matter. As the trial judge noted, despite SLI’s efforts to improve the site and correct violations created by prior owners, SLI was not getting the usual cooperation from the IEPA.

Conclusive evidence of daily-cover violations is lacking. However, if we ignore the underlying circumstances, the record clearly indicates that SLI violated the Act when it failed to produce asbestos-waste records on request. Similarly, if we ignore SLI’s extensive efforts to improve the condition of the site and bring it into compliance, we must also conclude that SLI violated the height limitations required in its permit. Moreover, if we ignore the fact that SLI’s failure to submit an acceptable closure and post-closure plan is at least partly the result of noncooperation on the part of the IEPA, then we must once again find SLI in violation of the Act. This we will not do. A trial court should not be required to blindly exercise its equitable powers. We agree with the State insofar as a violation need not be ongoing for injunctive relief to issue. However, consideration of current conditions and the circumstances underlying alleged violations is indispensable in determining whether injunctive relief is an appropriate mode of redress.

A preliminary injunction is an extraordinary remedy, to be issued only with the utmost care. (Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 433 N.E.2d 958.) To forfeit its discretion in the exercise of injunctive relief is to allow the legislature to appropriate the court’s equitable powers. Section 42(e) of the Act provides that the Illinois Attorney General may seek an injunction from the courts. It does not say he will, in all cases, prevail.

The fact that the common law requirements for injunctive relief have been waived is evidence the court presumes a violation of the statute has caused, or will cause irreparable injury for which no adequate remedy at law exists. However, this presumption may be rebutted. The decision to grant or deny a preliminary injunction will always rest within the sound discretion of the trial court and will not be disturbed unless the court’s findings are against the manifest weight of the evidence. (Bryant v. Village of Sherman (1990), 204 Ill. App. 3d 583, 561 N.E.2d 1320.) The trial court’s ruling was not against the manifest weight of the evidence and is therefore affirmed.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE GREEN

text:
      In re ANNEXATION OF APPROXIMATELY 280 ACRES OF LAND TO THE CITY OF DECATUR, ILLINOIS (B & R Development Company et al., Petitioners-Appellees and Cross-Appellants, v. The Village of Forsyth et al., Objectors-Appellants and Cross-Appellees (Decatur Park District, Respondent)).
    Fourth District
    No. 4 — 92—0740
    Argued April 14, 1993.
    Opinion filed June 3, 1993.

      Christopher K. Bradley (argued) and W. Scott Murphy, both of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellants Francis H. Brett and Wilma J. Gepford.
    William C. Wetzel (argued), of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant Village of Forsyth.
    Richard L. Heavner (argued), of Heavner, Handigan & Scott, of Decatur, for appellees.
    John W. Couter, of Decatur, for amicus curiae City of Decatur.
    Beth Anne Janicki, of Illinois Municipal League, of Springfield, for amicus curiae Illinois Municipal League.
   JUSTICE GREEN

delivered the opinion of the court:

This appeal concerns a petition brought in the circuit court of Macon County seeking to annex certain unincorporated territory to the City of Decatur pursuant to the provisions of article 7, division 1, of the Illinois Municipal Code (Code) (111. Rev. Stat. 1991, ch. 24, pars. 7 — 1—1 through 7 — 1—48). Under the procedure used here, section 7 — 1—2(a) of the Code requires that a petition for annexation must be “signed by a majority of the owners of record of land in the territory [sought to be annexed] and also by a majority of the electors” residing therein. (Emphasis added.) (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—2(a).) Section 7 — 1—1 of the Code states that when territory is ánnexed, “[t]he new boundary shall extend to the far side of any adjacent highway and shall include all of every highway within the area annexed.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 24, par. 7 — 1—1.

Here, the petition was “signed by a majority of the owners of record of land in the territory” only if (1) owners of the fee interest underlying the far one-half of a township road on the boundary of the territory sought to be annexed and (2) owners of mineral interests in a portion of that territory are not “owners of record of land in the territory” within'the meaning of section 7 — 1—2(a) of the Code. We hold that none of those people holding the types of interest in the real estate described are “owners of record” within the meaning of section 7 — 1—2(a) of the Code. The foregoing being the only issue on appeal, we affirm the judgment of the circuit court which ruled the petition was valid.

The petition was filed on June 15", 1992, by petitioners John W. and Georgia J. Schnake and B & R Development Company (B&R). Francis H. Brett, individually and as coexecutor with Wilma J. Gepford of the estate of Pearl J. Brett, deceased, along with the Village of Forsyth (Forsyth), filed objections to the petition. After an evidentiary hearing, the court entered an order on July 29, 1992, finding in favor of the petitioners as to the petition. The court ordered the question of annexation be submitted to the City of Decatur pursuant to section 7 — 1—4 of the Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—4). After objectors’ motion to vacate the judgment was denied, objectors took the instant appeal. Petitioners cross-appealed from the portion of the order which overruled petitioners’ request to dismiss Forsyth’s objections on the basis that Forsyth had no standing to object. Petitioners have abandoned the cross-appeal. The only issue raised on appeal is whether the petition was “signed by a majority of the owners of record.”

The evidence presented showed that the three petitioners, the Decatur Park District and objector Francis H. Brett were undisputedly “owners of record” of land in the territory. If they were all the “owners of record,” petitioners would be a majority of that group by a count of three to two. However, the evidence also showed that (1) Larry and Jessica Baker owned the fee underlying a portion of the “far side” of Oakland Road which was on the west boundary of much of the territory for which annexation was sought. However, because of the configuration of the territory, the Baker tract, which was not included in the territory, was on the east side of Oakland Road. The evidence also showed that objectors Brett and Wilma J. Gepford had mineral interests in the property owned by Brett. If only Gepford is deemed an additional “owner of reeord,” the count would become three to three, which would destroy petitioners’ majority, and if the Bakers are determined to be “owners of record,” petitioners’ position would be even worse.

The Decatur Park District did not sign the petition but filed an answer stating that it consented to the annexation. If it is deemed to be in the position of a signer of the petition, the petitioners would have a majority of four to three if only Gepford, through her mineral interest, is deemed an additional “owner of record.” However, if the Bakers are owners of record, no majority would exist regardless of the status of Gepford.

The Illinois Supreme Court has said repeatedly that the word “owner,” as applied to real property, has no fixed meaning, but it has been defined to include “one who has the usufruct, control or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate.” (Coombs v. People (1902), 198 Ill. 586, 588, 64 N.E. 1056, 1057; see also In re Petition to Annex Certain Real Estate (1991), 144 Ill. 2d 284, 288, 579 N.E.2d 848, 849 (Joliet).) In Coombs, the court was concerned with whether a person sued for unpaid taxes on real estate was the owner of the premises from which the obligation to pay the tax arose. That person had purchased the property at a tax sale, and the question upon which the case turned was whether the tax deed he recorded was defective.

In Joliet the case turned upon whether petitioners seeking annexation to a municipality under article 7 of the Code could create numerous co-owners of a tract for the purpose of creating enough signatories to a petition to have a majority. The court held that the division of the ownership was created in bad faith and that required dismissal of the petition for annexation.

Because of the broad interpretation given to ownership of real estate, objectors maintain both the Bakers’ and Gepford’s interests should make them “owners of record.” They point out that Gepford pays real property taxes on her interest and that these taxes and her ability to exploit the mineral interest might be changed under city control. Citing Postal Telegraph-Cable Co. v. Eaton (1897), 170 Ill. 513, 49 N.E. 365, they note that the Bakers would have a cause of action if a telephone pole was erected adjacent to the far side of Oakland Road (sought to be annexed) under which they own the fee. (See also Lewis v. Illinois Bell Telephone Co. (1981), 98 Ill. App. 3d 1047, 425 N.E.2d 55.) There is substance to the objectors’ position, but we, nevertheless, are satisfied that the legislature did not intend that interests such as those of the Bakers and Gepford should be factors in determining whether land be annexed to a municipality.

The purpose of the requirement relating to the annexation of adjacent highways to the far side of the highway is to prevent any question regarding jurisdiction, maintenance, financing, and traffic control after the annexation has taken place. (People ex rel. Freeport Fire Protection District v. City of Freeport (1978), 58 Ill. App. 3d 314, 317, 374 N.E.2d 479, 482.) Section 7-1-1 of the Code also provides that the far side of adjacent highways shall be deemed annexed even if that area is not included in the description in the petition of the territory sought to be annexed. It further provides that when any such annexation took place before October 1, 1975, without the far half of the adjacent highway being included in the description of the territory to be annexed, the far half will, nevertheless, be deemed to have been annexed. The whole tenor of this legislation requiring annexation of the far half of adjacent highways negates any intention that the owners of the underlying fee were entitled to factors in determining whether annexation occurs.

Moreover, in Woodward Governor Co. v. City of Loves Park (1948), 335 Ill. App. 528, 82 N.E.2d 387, the court determined that a railroad which had a right-of-way easement over certain property was the owner of record of the property for purposes of the disconnection provisions of the Revised Cities and Villages Act (see 111. Rev. Stat. 1947, ch. 24, par. 7 — 42), even though it did not own the underlying fee-simple estate. The court noted the railroad controlled the use of the property, and the fee, subject to the use and easement, was “ ‘of but little value, if any.’ ” (Woodward, 335 Ill. App. at 538, 82 N.E.2d at 392, quoting Northern Pacific Ry. Co. v. City of Seattle (1907), 46 Wash. 674, 678, 91 P. 244, 246.) The court further noted that one could properly be considered an “owner” without having a fee-simple title and that, in construing the word “owner,” as used in a statute, “regard must be had for the purposes of the Act, the object that it seeks to accomplish as well as all the surrounding circumstances.” Woodward, 335 Ill. App. at 538, 82 N.E.2d at 392.

Here, the Bakers had a fee interest similar to that which was subject to the railroad’s easement in Woodward. The dominance of the interest of the township in the far half of Oakland Road was at least as great here as was the dominance of the railroad’s interest there. This is not a case where a road is being built on land where the Bakers had a fee interest, nor is it a situation where change or improvement is being made in an existing road. All of significance that is happening to the Bakers’ interest is that certainty as to responsibility to exercise governmental control over Oakland Road is created.

Analogy to Woodward also applies to the question of whether Gepford becomes an “owner of record” because of her mineral interest. Objectors cite numerous cases which state that the grantee of a mineral estate is a fee simple owner of such estate. (E.g., Jilek v. Chicago, Wilmington & Franklin Coal Co. (1943), 382 Ill. 241, 47 N.E.2d 96.) In Jilek, the court noted that mineral rights may be severed from the surface rights and conveyed separately, thus creating two estates, both subject to taxation. The court also noted the grant of a mineral estate is also a grant of the minerals themselves, and the means of obtaining or enjoying it are also granted, without the need of a separate express covenant for such purpose. Jilek, 382 Ill. at 245, 47 N.E.2d at 98.

The Illinois Supreme Court determined in Triger v. Carter Oil Co. (1939), 372 Ill. 182, 23 N.E.2d 55, that the grantee of a deed conveying oil and gas in a property does not, at the time of the grant, take title to the oil and gas. Rather, title vests in the grantee when the oil and gas are actually removed from the land. (Triger, 372 Ill. at 185, 23 N.E.2d at 56.) In Triger, the court noted the mineral deed not only conveyed the right to take the oil and gas, but also granted the right to the grantee to enter upon the land for the purpose of prospecting and operating wells. The grantee had what amounted to an easement, but it was characterized as a freehold estate. Triger, 372 Ill. at 185, 23 N.E.2d at 56.

In Woodward, the court indicated an intention that only one estate, the dominant one, in regard to a tract of land be deemed the estate whose owner or owners are invested with the right to speak in matters of annexation or detachment. Clearly, that person in regard to the property where the oil interests exist is Francis H. Brett, even though the property is subject to an undivided mineral interest in another. We conclude that the legislature did not intend the interest of those speaking for the land in an annexation proceeding to be so diffuse that those having merely mineral interests would be considered “owners of record.”

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

KNECHT and LUND, JJ., concur.