author: JUSTICE McLAREN JUSTICE NASH,

text:
    HARVEY LAMBERT, Plaintiff-Appellee, v. THE CITY OF LAKE FOREST, Defendant-Appellant.
    Second District
    No. 2—88—0925
    Opinion filed August 3, 1989.

      NASH and REINHARD, JJ., specially concurring.
    Sarah Hansen Sotos and Elizabeth A. Brown, both of Judge & Knight, Ltd., of Park Ridge (Patrick J. Fanning, of counsel), for appellant.
    Kathleen R. Keller, of Law Offices of Patrick A. Salvi, of Waukegan (Albert J. Salvi, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, City of Lake Forest, appeals from the denial of its post-trial motion. After a jury trial, the court entered judgment on the verdict in favor of plaintiff, Harvey Lambert. Lambert was awarded $98,265 based upon his complaint for retaliatory discharge. We reverse.

Lambert began working for the City of Lake Forest (City) in 1966 as a maintenance man in the Parks Department. He was an at-will employee throughout his tenure with the City. He received several promotions and became foreman of the streets department in 1979. In late 1981, the City formulated a plan to reorganize the City’s administrative setup. As a result of this reorganization, the positions of foreman of streets and foreman of sanitation were to be combined into one foreman’s position to be filled by Lambert. Lambert assumed this new position in February 1982, retaining his designation as streets foreman and preparing to assume the duties of sanitation foreman in January 1983.

On September 29, 1982, Anthony Mazza, superintendent of fleet maintenance, committed suicide. Mazza was one of the employees affected by the reorganization. Following the reorganization, Mazza appeared to be under increased stress or anxiety. The day after the suicide, Lambert told his supervisors, LeRoy Baur (Baur) and Harold Robson (Robson), that he thought Mazza’s suicide was brought about by job pressures. In March 1983, the City received an application for adjustment of a workers’ compensation claim filed with respect to the Mazza suicide.

On April 28, 1983, Robson convened a meeting of the supervisory personnel of the City, including Lambert. Robson informed everyone that the City was involved in a lawsuit filed by Mrs. Mazza on behalf of her late husband and that the suit would mean a lot of money to the City. He also stated that the City investigator and attorney would be conducting interviews with 9 or 10 of the employees on that day. Robson informed those in attendance that neither they nor their men should talk to Mrs. Mazza’s attorney and should inform management if Mrs. Mazza’s attorney contacted them.

After the meeting, Lambert told Baur that he did not want to be interviewed. Baur stated that he told Lambert to inform the City investigator and attorney that he did not want to talk. Lambert stated that he told Baur the suicide was job related, and Baur told him that he had better not tell the investigator or attorney that. Lambert’s interview lasted approximately five minutes because he refused to provide any information.

Lambert’s next job performance evaluation was conducted on August 1, 1983. This evaluation contained comments on many areas in which Lambert’s job performance was suspect. After reviewing Baur’s comments, Robson indicated that Lambert would be evaluated again on December 1, 1983. Robson also noted that, “failure to show improvement will require a reassessment of [Lambert’s] value to the organization and reassignment to other duties.”

On November 28, 1983, Baur evaluated Lambert’s performance and noted that Lambert’s effort did not meet the expectations the City had of a person in this position. Furthermore, Baur stated that, “in my opinion, Harvey is not presently in a position where he can be of the most advantage to the city.”

On December 12, 1983, Lambert attended a meeting with Baur, Robson and John Fisher, the city’s personnel director. Lambert was offered a check for $4,000 and asked to sign a letter of resignation. Lambert refused. He was then discharged. Lambert met with John Fischbach, the city manager, Robson and Fisher on January 6, 1984, and again on January 26, 1984. At the latter meeting, Lambert was offered a check for $9,500 and asked to sign a letter of resignation. Again, Lambert refused.

On October 29, 1986, Lambert filed a 10-count complaint against the City, Fischbach, Baur, Robson and Fisher, for retaliatory discharge and intentional infliction of emotional distress. The basis of the complaint was that Lambert was fired for failing to give favorable information or testimony on behalf of the City in the workers’ compensation claim filed by the heirs of Mazza.

On December 23, 1987, the defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of defendants on nine counts. All of the individual defendants were dismissed from the suit, and Lambert’s claim for intentional infliction of emotional distress was also disposed of. The surviving count of the complaint was count I against the City for retaliatory discharge. The court found that a question of material fact existed, and, therefore, the case proceeded to trial on count I.

At the close of evidence, the City filed a motion for a directed verdict. This motion was denied and the case was submitted to the jury. The jury returned a verdict in favor of plaintiff and awarded damages in the sum of $98,265. Judgment was entered on the verdict. The City filed a post-trial motion which was denied on August 26, 1988. This appeal followed.

Defendant contends that the trial court erred by denying summary judgment on count I of its complaint. A prior order denying a motion for summary judgment is not reviewable after an evidentiary trial, as any error in the denial is merged in the subsequent trial. (Banwart v. Okesson (1980), 83 Ill. App. 3d 222, 225; Romano v. Bittner (1987), 157 Ill. App. 3d 15, 22.) Consequently, we need not review the trial court’s order denying summary judgment on count I of plaintiff’s complaint.

Defendant contends that the issue in this case is whether the trial court improperly expanded the tort of retaliatory discharge. Phrasing the issue in this manner does not provide us with an understanding of the actual issue in this case, and only after reading appellant’s not-so-straightforward brief were we able to determine that the actual threshold issue on review is whether plaintiff’s complaint states a cause of action for retaliatory discharge. While defendant did not file a motion to dismiss pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), such an attack may be made at any time and by any means if it appears that, as a matter of law, the complaint wholly and absolutely fails to state a cause of action which the law will recognize. (Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 258; Wagner v. Kepler (1951), 411 Ill. 368, 371.) A complaint that fails to state a cause of action cannot support a judgment. (Orthopedic & Reconstructive Surgery, S.C. v. Kezelis (1986), 146 Ill. App. 3d 227, 231.) As stated in Wagner: “The nature of this contention requires that it be considered first.” (Wagner, 411 Ill. at 371.) We find that plaintiff’s complaint does state a cause of action for retaliatory discharge for the reasons stated below.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, our supreme court first recognized the tort of retaliatory discharge. However, the common-law principle that an employer may fire an employee at will for any reason or no reason is still the law in Illinois. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525.) Our supreme court has expressed a narrow interpretation of the tort of retaliatory discharge, and the court does not support the expansion of this tort. (Barr, 106 Ill. 2d at 525.) To establish a cause of action for retaliatory discharge, the plaintiff must show: (1) that the employee was discharged in retaliation for the employee’s activities; and (2) that the discharge is in contravention of a clearly mandated public policy. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134; Colley v. Swift & Co. (1984), 129 Ill. App. 3d 812, 818.

Defendant contends that it is the second element of retaliatory discharge that is absent here. The discharge was not in contravention of clearly mandated public policy. Therefore, no cause of action for retaliatory discharge can lie.

The court in Palmateer, in discussing what constitutes clearly mandated public policy, stated:

“There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions.” (Palmateer, 85 Ill. 2d at 130.)

Specifically, with respect to retaliatory discharge, the court stated that “a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” Palmateer, 85 Ill. 2d at 130.

Illinois courts have steadfastly opposed the expansion of the tort of retaliatory discharge. A review of all retaliatory discharge cases in Illinois reveals that, with one exception, retaliatory discharge actions are allowed in only two settings. The first situation is when an employee is discharged for filing a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). (See Kelsay, 74 Ill. 2d 172; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143; Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1; Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840; Colley, 129 Ill. App. 3d 812.) Illinois has also recognized a cause of action when the employee is injured and is discharged in anticipation of a workers’ compensation claim. See Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526; Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157.

In Kelsay, the court, recognizing the public policy behind the Workmen’s Compensation Act, stated:

“[T]he fundamental purpose of the Act *** was to afford protection to employees by providing them with prompt and equitable compensation for their injuries. [Citation.]
The Workmen’s Compensation Act, in light of its beneficent purpose, is a humane law of a remedial nature. [Citation.] It provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of this State. Consequently, its enactment by the legislature was in furtherance of sound public policy. [Citation.] We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge.” Kelsay, 74 Ill. 2d at 180-81.

The second situation in which the tort of retaliatory discharge has been recognized is when an employee is discharged for reporting illegal or improper conduct, sometimes referred to as “whistle blowing.” See, e.g., Palmateer, 85 Ill. 2d 124 (cause of action allowed when employee was discharged for informing authorities of co-employee’s possible criminal activity and also cooperating with investigation); Witt v. Forest Hospital, Inc. (1983), 115 Ill. App. 3d 481 (cause of action allowed when employee/nurse was discharged for providing information to the Guardianship and Advocacy Commission about patient care at the employer/hospital); Bartley v. University Asphalt Co. (1984), 129 Ill. App. 3d 231 (cause of action allowed when employee was discharged for cooperating in an FBI investigation of the employer); Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746 (cause of action allowed when employee was discharged after complaining to his superiors about certain accounting practices of the employer which employee believed to be violations of Federal securities laws); Shores v. Senior Manor Nursing Center, Inc. (1988), 164 Ill. App. 3d 503 (cause of action allowed when employee/nurse’s assistant was discharged after reporting to administrator that the full-time nurse, an LPN, was not performing her duties properly).

In Palmateer, the plaintiff/employee alleged that he was fired because he agreed to cooperate with law enforcement officials investigating the criminal conduct of a co-employee. In discussing the policy considerations present, the court stated:

“There is no public policy more basic, nothing more implicit in the concept of ordered liberty [citation], than the enforcement of a State’s criminal code. ***
*** ‘Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. ***’ (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 44.) ***
The foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses.” Palmateer, 85 Ill. 2d at 132-33.

In Herbster v. North American Co. For Life & Health Insurance (1986), 150 Ill. App. 3d 21, the plaintiff was an attorney employed by an insurance company. The plaintiff alleged that he was discharged because he refused to remove or destroy documents from his employer’s files. These files were the subject of discovery requests made pursuant to a pending lawsuit. This court found public policy considerations to exist because the employer was requesting the employee to contravene supreme court rules and obstruct justice. Although we held that the tort of retaliatory discharge is not available to attorneys, we stated that, “Clearly, these matters ‘strike at the heart of a citizen’s social rights, duties, and responsibilities.’ ” Herbster, 150 Ill. App. 3d at 24, quoting Palmateer, 85 Ill. 2d at 130.

The only other situation recognized by Illinois courts to give rise to a retaliatory discharge claim is when an employee was discharged after refusing to work with an improperly functioning radioactive machine. Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502.

In an attempt to restrict the tort of retaliatory discharge, Illinois courts have refused to find the existence of a clearly mandated public policy in a variety of settings. See, e.g., Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520 (when discharged employee claimed violations of constitutional rights, clearly mandated public policy nonexistent because constitution restrains government, not private individuals); Mein v. Masonite Corp. (1985), 109 Ill. 2d 1 (clearly mandated public policy nonexistent when employee discharged due to age); Price v. Carmack Datsun, Inc. (1985), 109 Ill. 2d 65 (clearly mandated public policy nonexistent when employee discharged after filing a claim under an employer-provided health insurance plan); Gould v. Campbell’s Ambulance Service, Inc. (1986), 111 Ill. 2d 54 (clearly mandated public policy nonexistent when employee was discharged after expressing a concern that a co-employer was not certified pursuant to city ordinance); Dykstra v. Crestwood Bank (1983), 117 Ill. App. 3d 821 (clearly mandated public policy nonexistent when employee discharged due to age); Thomas v. Zamberletti (1985), 134 Ill. App. 3d 387 (clearly mandated public policy nonexistent when employee discharged due to absenteeism necessary for treatment of injuries); Cipov v. International Harvester Co. (1985), 134 Ill. App. 3d 522 (clearly mandated public policy nonexistent when employee discharged for refusing to take a polygraph examination); Zaniecki v. P.A. Bergner & Co. (1986), 143 Ill. App. 3d 668 (clearly mandated public policy nonexistent when employee discharged after reporting suspected criminal activity of superior to company’s chief security officer only and not to public officials) (but see Johnson, 147 Ill. App. 3d 746, and Shores, 164 Ill. App. 3d 503); Free v. Holy Cross Hospital (1985), 153 Ill. App. 3d 45 (clearly mandated public policy nonexistent when employee discharged for refusing to evict patient from hospital); Hugo v. Tomaszewski (1987), 155 Ill. App. 3d 906 (clearly mandated public policy nonexistent when employee discharged due to employer’s breach of duty of good faith and fair dealing); Buechele v. St. Mary’s Hospital Decatur (1987), 156 Ill. App. 3d 637 (clearly mandated public policy nonexistent when employee discharged for filing libel and slander suit against employer); Abrams v. Echlin Corp. (1988), 174 Ill. App. 3d 434 (clearly mandated public policy nonexistent when employee discharged for filing suit to collect monies due pursuant to employment agreement).

Lambert’s complaint alleges that he was fired for failing “to give untrue information and/or testimony regarding” the workers’ compensation claim filed by Mazza’s widow. The policy considerations underlying Herbster apply in this case. An employee should not be forced to hinder the legal process by the threat of discharge. Lambert’s complaint alleges that he was ordered to give untrue testimony regarding the Mazza case. If true, this would amount to the subornation of perjury. (See Ill. Rev. Stat. 1987, ch. 38, par. 32 — 3.) Requiring someone to commit a crime in order to remain employed clearly affects the citizens of the State collectively and strikes at the heart of a citizen’s social rights, duties and responsibilities. We find that count I of plaintiff’s complaint does state a cause of action for retaliatory discharge.

However, the facts adduced at trial do not support the allegations set forth in the complaint. Therefore, we find that the trial court erred in not granting defendant’s motion for a judgment n.o.v. A motion for judgment n.o.v. should be granted in those cases in which all of the evidence, when viewed in the light most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

The investigation into Mazza’s suicide and resulting workers’ compensation claim was conducted by the City. It was an entirely internal investigation. This was not a legal process per se. Accepting Lambert’s view that he was told to lie to the City’s investigator and attorney, it appears that there is no clearly mandated public policy condemning this action. Lambert was simply told not to express his opinion that Mazza’s suicide was work related to the investigators. This is not a case in which an employee is asked to commit perjury or to obstruct justice in any manner. Contrary to plaintiff’s contention, Lambert is not being asked to “derail” the Mazza workers’ compensation claim or hinder a legal process. Withholding the truth from the City does not affect anyone other than the City. This situation does not affect the citizens of the State collectively or strike at the heart of a citizen’s social rights, duties, and responsibilities. Also, this is not a situation where an employee is exposing illegal or improper conduct such that the rationale behind the “whistle blowing” line of cases would apply.

A finding of a violation of clearly mandated public policy in this case would be an enormous expansion of the tort of retaliatory discharge. There is no precedent to support this expansion, and there are no public policy considerations that would warrant it. The evidence adduced at trial does not establish that Lambert’s discharge was in contravention of a clearly mandated public policy. A necessary element of the tort of retaliatory discharge is wholly lacking, and, therefore, the judgment for plaintiff in this case cannot stand.

Due to our decision on the above issue, the evidentiary issues and question of damages need not be discussed.

The judgment of the circuit court of Lake County is reversed and the cause is remanded with instructions to enter judgment non obstante veredicto in favor of defendant.

Reversed and remanded.

JUSTICE NASH,

specially concurring:

While the opinion reaches the correct result, it unnecessarily and at length undertakes a review of the cause of action of retaliatory discharge, a matter not challenged in this case. I express no opinion by my concurrence as to the correctness of the dictum which here considers the sufficiency of the complaint. I join in Justice Reinhard’s special concurrence.

JUSTICE REINHARD, specially concurring:

The analysis portion of the opinion contains a lengthy discussion on whether the complaint states a cause of action. The opinion concludes that it does. I am reluctant to concur in that part of the opinion because the issue of the sufficiency of the complaint was not raised as an issue on appeal by the appellant and the opinion has engaged in this unnecessary review sua sponte. While the sufficiency of a complaint may be challenged at any stage of the proceedings (see Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 439, 484 N.E.2d 1088; Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 258, 512 N.E.2d 1027), there is no occasion to discuss this question here as the issue is not raised. Other than for jurisdictional reasons, a reviewing court should not ordinarily search the record for unargued and unbriefed questions. I concur with the conclusion in the balance of the opinion that plaintiff’s evidence did not establish a cause of action and that the trial judge erred in not granting the motion for judgment n.o.v.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    CARDOX CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Paul Tessendorf, Appellee).
    Second District (Industrial Commission Division)
    No. 2—88—1094WC
    Opinion filed August 4, 1989.

      Robert B. Young, of Gifford, Detuno & Gifford, Ltd., of Chicago, for appellant.
    Joseph Spiezer, of Rockford, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The sole issue presented for our review is whether the order of the trial court granting the motion of the claimant to dismiss the case for lack of jurisdiction should be reversed and the cause remanded for determination on the merits.

The claimant, Paul Tessendorf, sought benefits under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (hereafter referred to as the Act) for injuries to his low back received on March 27, 1985, when the truck he was driving for the respondent Cardox Corporation struck a bump and the seat collapsed. Following a hearing on January 20, 1988, upon the claimant’s petition for immediate hearing pursuant to section 19(b — 1) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)), the arbitrator found that the claimant had been temporarily totally disabled for 1065/7 weeks from March 27, 1985, through April 13, 1987. Upon review the Illinois Industrial Commission (hereafter referred to as the Commission) found that the claimant had been temporarily totally disabled for 147V7 weeks from March 27, 1985, through the date of arbitration on January 20, 1988. The Commission found further that the claimant was entitled to vocational rehabilitation under section 8(a) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(a)) and remanded the cause to the arbitrator “for further proceedings pursuant to Thomas v. Industrial Comm’n, 78 Ill. 2d 327, 399 N.E.2d 1322 (1980).” In Thomas, following a hearing upon the claimant’s petition for immediate hearing under section 19(b) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)), the arbitrator awarded temporary total disability benefits and made a finding that the claimant had failed to prove that he had sustained any permanent disability. The Commission affirmed the arbitrator’s decision. The supreme court concluded that the relief sought by the claimant was an order advancing his cause for an immediate hearing solely on the issue of temporary total compensation and that the issue of permanent disability had not been presented to the arbitrator with the result that the finding on the issue of permanent disability was null and void. The cause was remanded to the Commission for further proceedings on the issue of permanent disability. In Thomas no question concerning vocational rehabilitation was involved.

In the instant case, in addition to ordering payment of compensation for temporary total disability, the Commission ordered respondent to “pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the [claimant], including all maintenance costs and expenses incidental thereto, as provided in §8(a) of the Act.” The Commission ordered further that “this case is remanded to the Arbitrator for further proceedings consistent with this Decision, but only after the later of expiration of the time for filing of a Petition for Summons to the Circuit Court has expired without the filing of such a Petition, or after the time of completion of any judicial proceedings, if such a Petition has been filed.”

Thereafter, the respondent appealed to the circuit court, which granted the claimant’s motion to dismiss following a hearing. The trial court concluded that the Commission had issued “a generalized order for rehabilitation and left it to the arbitrator to provide a specific plan.” The trial court was of the opinion that “the administrative involvement in the case is still ongoing, and the circuit court therefore is without jurisdiction to undertake administrative review at this time.” This appeal by the respondent followed.

In the trial court, as here, the claimant relied upon International Paper Co. v. Industrial Comm’n (1984), 99 Ill. 2d 458, 459 N.E.2d 1353, in which the supreme court held that decisions of the Commission that include generalized rehabilitation awards requiring further determination as to the extent and nature of such rehabilitation are interlocutory and, therefore, not reviewable by the circuit court. In the trial court, as here, the respondent relied upon the later case of F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 514 N.E.2d 1147, holding that a decision of the Commission awarding temporary total disability benefits under section 19(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b)) could properly be appealed, notwithstanding the need to remand to the arbitrator later for a finding on the issue of permanency. In F & E Erection Co. the trial court had erroneously held that it was without jurisdiction because the decision of the Commission was not final for the reason that the Commission had remanded the case to the arbitrator after awarding temporary total disability benefits. The appellate court in F & E Erection Co. (162 Ill. App. 3d at 168, 514 N.E.2d at 1154) stated that section 19(b) expressly permits a finding that the disabling condition has not reached a permanent condition and pointed out that “the decision of the Commission shall be ‘conclusive unless reviewed’ as provided in the Act. (Ill. Rev. Stat. 1985, ch. 48, par. [138.]19(f).)” In F & E Erection Co., however, there was no award for vocational rehabilitation. The respondent maintains that F & E Erection Co. is dispositive of the appealability of the Commission’s instant decision because “[t]he claimant in F & E Erection and the employee at [sic] the case at bar filed for benefits under Illinois Revised Statutes, Chapter U8, Section 188.19(b).” The respondent stresses that in International Paper awards of compensation for temporary total disability and for permanent partial disability were made under sections 8(b) and (e) of the Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.8(b), (e)) respectively, rather than under section 19(b), as occurred in F & E Erection Co.

In this court the claimant moved to dismiss the respondent’s appeal. In view of the respondent’s reliance upon F & E Erection Co., however, we denied the claimant’s motion.

In International Paper the arbitrator awarded the claimant compensation for both total temporary and permanent partial disability. Finding that the claimant’s condition had not yet reached a state of permanency, the Commission reversed the arbitrator’s award for permanent partial disability and extended the arbitrator’s award for temporary total disability. The Commission found further that the claimant was entitled to vocational rehabilitation under section 8(a) of the Act and remanded the cause to the arbitrator to take further evidence consistent with Hunter Corp. v. Industrial Comm’n (1981), 86 Ill. 2d 489, 427 N.E.2d 1247, in which the supreme court remanded the cause to the Commission for rehearing on the question of a vocational rehabilitation award after having reasoned that the issue of the extent of permanent disability could not be determined until the claimant had completed a prescribed program of rehabilitation. In International Paper the court noted that awards for vocational rehabilitation are granted pursuant to section 8(a) of the Act, which provides, in pertinent part, that an employer shall compensate an injured employee “for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto” (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(a)). The court observed that the Act provides no procedures, however, to guide the employer and employee in evaluating the need for rehabilitation or in developing an individualized rehabilitation program. In reaching its holding in International Paper (99 Ill. 2d at 464-65, 459 N.E.2d at 1356), the court observed as well:

“A series of cases decided subsequent to our decision in Hunter have involved questions regarding vocational rehabilitation. (See generally, National Tea Co. v. Industrial Com. (1983), 97 Ill. 2d 424, Revere Copper & Brass, Inc. v. Industrial Com. (1983), 97 Ill. 2d 388; Caterpillar Tractor Co. v. Industrial Com. (1983), 97 Ill. 2d 35; C.D. Turner & Sons, Inc. v. Industrial Com. (1983), 96 Ill. 2d 231; McLean Trucking Co. v. Industrial Com. (1983), 96 Ill. 2d 213; Zenith v. Industrial Com. (1982), 91 Ill. 2d 278.) These eases all proceeded through two levels of judicial review based on decisions of the Industrial Commission which were inherently incomplete. Although vocational rehabilitation awards were granted at the administrative level in all these cases, the rehabilitation orders were all couched in the general language of the authorizing statute (Ill. Rev. Stat. 1977, ch. 48, par. 138(a).) Development of specific plans was left either to the parties or, in three cases (McLean Trucking, Revere Copper and National Tea) remanded to the arbitrator to hear further evidence on the vocational rehabilitation award.”

The court in International Paper concluded that the case had reached the circuit court before administrative involvement in the case had been terminated, and the decision of the Commission was deemed not to be a final appealable determination. As a consequence, the circuit court in International Paper lacked jurisdiction to review the decision of the Commission.

Like F & E Erection Co., upon which the respondent relies, the award of compensation for temporary total disability in C.D. Turner & Sons, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 231, 449 N.E.2d 836, was made under section 19(b) of the Act. The decision of the Commission with regard to the award of vocational rehabilitation in that case was described by the supreme court in International Paper as “inherently incomplete” by virtue of the Commission’s use of the general language of the authorizing statute and its failure to develop a specific plan for vocational rehabilitation for the claimant. Similarly, the award of temporary total disability in Revere Copper & Brass, Inc. v. Industrial Comm’n (1983), 97 Ill. 2d 388, 454 N.E.2d 657, was made under section 19(b) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1979, ch. 48, par. 172.54(b)); the decision of the Commission concerning the award of vocational rehabilitation therein was, likewise, described by the supreme court in International Paper as “inherently incomplete” for the same reasons. Like the awards of vocational rehabilitation in International Paper, C.D. Turner & Sons, Inc., and Revere Copper, the rehabiliation order here was couched in the general language of the authorizing statute, and development of specific plans was left to others. Accordingly, we hold that the decision of the Commission was interlocutory and not a final appealable determination. Hence, the trial court properly granted the claimant’s motion to dismiss the case for lack of jurisdiction.

Affirmed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT JOHNSON et al., Defendants-Appellees.
    Second District
    Nos. 2—88—0626, 2—88—0808, 2—88—0810, 2—88—0847 cons.
    Opinion filed August 3, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James M. O’Shaughnessy, of Naperville, and Grant Eckhoff, of Glen Ellyn, for appellee James R. Gilloghy.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals from the judgments of the circuit court of Du Page County which rescinded the summary suspension of the driver’s licenses of Robert Johnson, Roger McGehee, Richard Weigel, and James Gilloghy. Pursuant to the State’s motion, we have consolidated these cases on appeal because each arose under a similar factual situation and raises the same issue. On appeal, the State contends that the failure of the arresting officers to appear at defendants’ summary suspension hearings did not provide a basis for rescinding the suspension of defendants’ driver’s licenses.

Initially, we note that three defendants, Johnson, Weigel, and McGehee, have not filed an appellee’s brief in this court. Because we have the benefit of an appellee’s brief from defendant Gilloghy and based on the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, we shall review the issues raised in this appeal.

Defendants were arrested for driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501). Subsequent to their arrests, each defendant had his driver’s license summarily suspended because he either refused to take a breath test or took a breath test which indicated an alcohol concentration of .10 or greater. Each defendant was then given notice of his summary suspension, and defendants filed petitions to rescind their summary suspensions. At defendants’ summary suspension hearings, the arresting officers failed to appear when defendants’ cases were called. Pursuant to local Rule 34.05 for the Eighteenth Judicial Circuit (1987), defendants argued that their summary suspensions should be rescinded because the arresting officers failed to appear at the suspension hearings. The State objected and asserted that pursuant to section 2 — 118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b)), it was going to proceed based on each officer’s sworn report. In all four cases, the trial court denied the State’s objection and rescinded defendants’ summary suspensions. From those orders, the State has timely brought this consolidated appeal.

The sole issue raised in this appeal is whether pursuant to local Rule 34.05, the trial court had the authority to rescind the summary suspension of defendants’ driver’s licenses when the arresting officers failed to appear for the suspension hearing.

Local Rule 34.05 for the Eighteenth Judicial Circuit (1987) states:

“(a) The arraignment dates for DUI cases shall be set by the arresting law enforcement agency. The arraignment date shall be not less than thirty days nor more than forty days from the date of arrest. The police officer setting the arraignment date shall take into consideration the following information: (i) the arresting officer’s regular traffic field court date, (ii) any scheduled vacation of the arresting officer, (iii) any scheduled training of the arresting officer, and (iv) any Court holidays.
(b) If any return date would fall on a normal court holiday, the police officer shall set the next working court date for the arraignment.
(c) The arresting officer shall be available in the courtroom on the date set for arraignment. Failure of the officer to appear pursuant to this Rule shall be considered by the Court to be the same as the failure of the complaining witness to appear in any criminal proceeding.” (Emphasis added.) 18th Cir. R. 34.05.

On appeal, the State contends that, when the arresting officer fails to appear at a summary suspension hearing, Rule 34.05 does not permit the trial court to rescind a defendant’s summary suspension. In support of its contention, the State first argues that the failure of a complaining witness to appear in a criminal proceeding does not warrant the dismissal of a criminal charge (see Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1); therefore, the language of Rule 34.05 which refers to the failure of the complaining witness to appear should not be construed as warranting the rescission of a defendant’s summary suspension. The State further argues that even if Rule 34.05 provides for the rescission of a defendant’s summary suspension, such rescission is improper in these cases because defendants failed to subpoena the arresting officers. According to the State, to require the arresting officer to appear at a defendant’s summary suspension hearing absent any effort on the defendant’s part would undermine our legislature’s intent to place the burden of proof in a summary suspension hearing on the defendant.

While the State raises several meritorious arguments for reversing the trial court’s rescission order, we elect to reverse the trial court’s decision for the following reasons. In the relevant part, section 2 — 118.1(b) of the Illinois Vehicle Code states:

“The [summary suspension] hearing may be conducted upon a review of the law enforcement officer’s own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.” (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b).)

It is well settled that local court rules must be consistent with the rules of our supreme court and Illinois statutes and they cannot modify or limit the substantive law. (Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 167; see also 107 Ill. 2d R. 21; Ill. Rev. Stat. 1987, ch. 110, par. 1 — 104(b).) Furthermore, circuit courts are without the power to change the substantive burdens of the litigants before them. People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 491.

Section 2 — 118.1(b) makes clear that the State is permitted to use the arresting officer’s sworn report to support the summary suspension of a defendant’s driver’s license provided that the arresting officer is not under subpoena to appear. According to the record of this appeal, when the arresting officers failed to appear, the State informed the trial court that it would be proceeding on the officers’ sworn reports. Defendants did not subpoena the arresting officers. Therefore, the State should have been permitted to proceed even though the arresting officers were not present at the suspension hearings. Consequently, we conclude that Rule 34.05 did not authorize the rescission of defendants’ summary suspension to the extent that Rule 34.05 modifies or limits the State’s right to proceed in accordance with section 2 — 118.1(b).

In reaching this result, we emphasize that our conclusion in no way invalidates Rule 34.05. In our opinion, the trial court misapplied Rule 34.05 to a summary suspension hearing. The language of the rule indicates that it is primarily designed for setting a defendant’s arraignment date. Therefore, we consider the rule to be a regulation of the criminal proceedings resulting from an arrest for driving under the influence of alcohol, and not a regulation of the civil proceedings associated with the summary suspension of a defendant’s driver’s license.

In his appellate brief, defendant Gilloghy asserts that the State has failed to preserve any issue for appeal because it did not make an offer of proof regarding the admissibility of the police reports. This contention is meritless, however, in light of the fact that the arresting officers’ sworn reports were made part of the record on appeal. Defendant Gilloghy further argues that the State’s contentions on appeal should be considered moot because the State violated his right to a hearing within 30 days from the filing of his petition for a summary suspension hearing. The record indicates, however, that defendant Gilloghy was given a summary suspension hearing the same day upon which he filed a petition for such hearing. Therefore, the State’s appellate contentions are not moot.

Based on the aforementioned reasons, the judgments of the circuit court are reversed, and the causes are remanded for further proceedings.

Reversed and remanded.

WOODWARD and DUNN, JJ., concur.


author: JUSTICE DUNN

text:
    WILLIAM BLAGG et al., Plaintiffs-Appellees and Cross-Appellants, v. ILLINOIS F.W.D. TRUCK AND EQUIPMENT COMPANY et al., Defendants-Appellees (F.W.D. Corporation et al., Third-Party Plaintiffs; The Village of Winthrop Harbor, Third-Party Defendant-Appellant and Cross-Appellee; Illinois F.W.D. Truck and Equipment Company, Third-Party Defendant-Appellee; The Village of Winthrop Harbor, Third-Party Plaintiff-Appellant; William Blagg, Third-Party Defendant-Appellee and Cross-Appellant).
    Second District
    No. 2—88—1065
    Opinion filed August 11,1989.

      John C. Healy, of Heineke, Burke, Healy & Bodach, of Chicago, and Thomas W. Diver, of Diver, Bollman, Grach & Quade, of Waukegan (Mary Beth O’Brien, of counsel), for appellant.
    Michael E Bonamarte III, of DeSanto & Bonamarte, P.C., of Waukegan (James J. DeSanto, of counsel), for appellees William Blagg and Marilyn J. Blagg.

      James P. DeNardo, of McKenna, Storer, Rowe, White & Farrug, of Waukegan (Christine L. Olson, of counsel), for appellees Illinois F.W.D. Truck & Equipment Company.
   JUSTICE DUNN

delivered the opinion of the court:

William Blagg was injured when he fell from a fire truck while en route to a fire as a fire fighter for the Village of Winthrop Harbor (Village). He and his wife, Marilyn, suing for loss of consortium, brought suit against the manufacturers of the truck, EW.D. Corporation (F.W.D.) and Seagrave Fire Apparatus, Inc. (Seagrave), and the manufacturer’s distributor, Illinois F.W.D. The manufacturers brought a third-party action for contribution against Village and Illinois F.W.D. Village then brought a third-party action for contribution against William Blagg. On January 25, 1986, William Blagg was awarded $426.44 per week for life in worker’s compensation. On March 14, 1988, Village filed a petition asserting a worker’s compensation lien for $282,251.18, which increased $426.44 every week.

Just prior to trial, plaintiffs agreed to a settlement with F.W.D., Seagrave, and Illinois F.W.D., which provided that William Blagg would receive $100,000 for his injuries and Marilyn Blagg would receive $375,000 for her loss of consortium. Village objected to the apportionment of the settlement, contending that it allowed the parties to circumvent its lien. After a hearing, the lower court approved the settlement based on a finding that it was entered in good faith. As a result of the settlement, Village was able to collect only $71,698.48 of its $282,251.18 lien. Village appeals from the order approving the settlement.

Before turning to the merits of appeal, we first note that the Village’s motion to strike pages 1 through 10 of plaintiffs’ reply brief is granted. Plaintiffs violated Supreme Court Rule 343b(i) (107 Ill. 2d R. 343b(i)) by using pages 1 through 10 of its reply brief as cross-appellant to respond to appellant Village’s reply brief. The rule does not allow an appellee to respond to an appellant’s reply brief.

Next, we must point out that Village’s statement of facts includes reference to many facts which have not been made a part of the appellate record, and appellees are also guilty of referring on numerous occasions to facts outside the record. The out-of-court discussions of the parties concerning settlement negotiations have not been made a part of the record. No depositions referred to have been made a part of the record. Nor has the pretrial memorandum referred to been made a part of the record. Appellant has attached some of these materials to its appendix; however, this is not sufficient. Attachments to briefs not otherwise of record are not properly before the reviewing court and cannot be used to supplement the record. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 157.) The only items made properly a part of the record include the pleadings, motions, and a few interrogatories. The only relevant facts properly before this court left to discuss include certain interrogatory answers given by plaintiffs.

William Blagg stated that as a result of his fall from the fire truck he suffered a severe cerebral concussion and was comatose for several weeks. He spent several months in the hospital. He also suffered a back injury which required surgery. Further, he had injury to his nervous system and suffered a lost sense of taste and smell; change in hearing, vision, and speech; memory lapses; difficulty walking and maintaining stability; and severe emotional and depressive episodes. William stated he has continued to need medical attention and has been unable to work.

Marilyn Blagg stated that as a result of her husband’s injuries she suffered an economic loss in that many house and auto repairs that used to be done by her husband now had to be done by hired help. Also, there were many expenses for food, travel, and lodging in regard to her husband’s trips to hospitals.

Appellant, Village, objects to the settlement distribution which allocates $100,000 to William Blagg for his injuries from the fall and $375,000 to Marilyn Blagg for her loss of consortium. Village contends that this allocation is in bad faith and in contravention of public policy because in allocating the major portion of the settlement to Marilyn Blagg’s claim for loss of consortium, the settling parties have purposely structured a settlement to circumvent appellant’s worker’s compensation lien, which, at date of settlement order, amounted to $295,580.82, and increased $426.44 every week.

Section 5(b) of the Worker’s Compensation Act provides that an employer who has compensated an employee has a right to reimbursement from any compensation the employee receives from a suit against a third party. An employer may claim a lien “upon any award, judgment or fund” that the employee recovers from the third party. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) In Page v. Hibbard (1987), 119 Ill. 2d 41, 50, the supreme court recently held that an employer is not entitled, however, to reimbursement from a spouse’s recovery for loss of consortium. The court pointed out that a spouse was not entitled to receive compensation for loss of consortium under the Act and held that the spouse’s action for loss of consortium was not a derivative claim, but an independent action to recover for injuries the spouse has suffered. (Page, 119 Ill. 2d at 48.) The court in Page remanded the case for a determination of whether the recovery for loss of consortium award, $12,000, which equaled the amount provided to her spouse for his injuries was “fair and reasonable in light of the total settlement.” (Page, 119 Ill. 2d at 50.) In reference to this order, Page cited Dearing v. Perry (Ind. App. 1986), 499 N.E.2d 268, 272, which held that the value of the claim for loss of consortium will be given legal effect only if it is determined by an independent, impartial trier of fact or if the insurance carrier is invited to participate in the settlement negotiations. Without adopting or commenting on Dearing, the supreme court remanded the case because the trial court had simply ratified the settlement allocation without determining whether it was fair and reasonable in light of the total settlement. Page, 119 Ill. 2d at 50.

The court in Page did not set forth any guidelines to follow in determining whether an allocation of loss of consortium in a settlement is fair and reasonable, and no lower court has addressed this issue. Page did, however, cite to out-of-State cases which have addressed the allocation of recovery for loss of consortium in light of a worker’s compensation lien. In Rascop v. Nationwide Carriers (Minn. 1979), 281 N.W.2d 170, 173, the court held that a $30,000 allocation for loss of consortium was reasonable in light of the $100,000 total award to employee and his wife. The court in Rascop referred to the following cases in making its decision: Ossenfort v. Associated Milk Producers, Inc. (Minn. 1977), 254 N.W.2d 672, 686 ($500,000 loss of consortium award not excessive where injured husband received $1,000,000); Brocker Manufacturing & Supply Co. v. Mashburn (1973), 17 Md. App. 327, 301 A.2d 501 (employee’s wife settled claim for $140,000, while employee’s claim was settled for $100,000); Lone v. Esco Elevators, Inc. (1977), 78 Mich. App. 97, 259 N.W.2d 869 (employee settled claim for $65,000 and wife received $60,000 for loss of consortium).

In another case cited in Page, DeMeulenaere v. Transport Insurance Co. (1983), 116 Wis. 2d 322, 342 N.W.2d 56, the court remanded the cause for a trial court determination of whether the allocation of $5,000 to the loss of consortium claim was fair and reasonable in light of the total $20,000 award to employee and his wife. The court also gave the following caution:

“To insure that the result of this opinion is not misapplied or abused, we urge trial courts to closely scrutinize settlements of this nature which appear to circumvent the effects of the distribution formula contained in sec. 102.29(1), Stats.” DeMeulenaere, 116 Wis. 2d at_, 342 N.W.2d at 60.

In the instant case the trial court found that the Page case raised many questions, but the court approved the settlement. The court focused on the Contribution Act requirement that a settlement by a joint tortfeasor be in good faith (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)) and chose to adopt a “permissive” view of the concept of good faith in approving the settlement. The court noted that two recent supreme court cases have focused on the policy of encouraging settlements under the Contribution Act. In Rakowski v. Lucente (1984), 104 Ill. 2d 317, 325, the court stated:

“As a matter of public policy the settlement of claims should be encouraged. If we were now to add limitations not experienced in the general language of the settlement instrument or in the provisions of the Contribution Act, we would make those who desire to end litigation wary and uncertain of what they would accomplish by settlement.”

See also Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122.

Clearly, the policy in Illinois is to encourage settlements. This policy can, however, conflict with the purpose and policy of other statutes. In In re Estate of Cooper (1988), 125 Ill. 2d 363, 370, the supreme court noted that the policy of favoring the settlement of claims conflicted with the enforcement of the Hospital Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 97), which serves to promote health care for the poor. In that case, the court held plaintiff and defendant could not settle a claim by setting up an annuity which would not be payable for several years because the hospital, by its lien for services rendered, had a right to immediate payment from any money due the plaintiff. (Cooper, 125 Ill. 2d at 369-70.) The court held that “[t]o allow the settlement reached in this case to delay enforcement of the lien would frustrate the purpose of the Hospital Lien Act.” Cooper, 125 Ill. 2d at 370.

In the case at bar, the policy of favoring settlements conflicts with the provision in the Workers’ Compensation Act which requires the court to protect the lien of the employer. Section 5(b) of the Act provides:

“In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which the suit is brought, filing proof thereof in the action. The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent is not required where the employer has been fully indemnified or protected by Court order.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).

The supreme court has stated that the clear purpose of section 5(b) is to protect the employer.

“The plain meaning of section 5(b) imposes the duty of protecting the employer’s lien upon the court. The statute provides that the very point of the employer’s intervention in the third-party legal proceedings is ‘so that all orders of court after hearing and judgment shall be made for his protection.’ (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b).) In addition, where a settlement between the employee and the third party is reached, the statute requires either the employer’s consent or an order of the court protecting him. There can be little question that what is protected is the employer's right to be reimbursed for the ‘amount of compensation paid or to be paid by him to such employee ***.’ ” Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, 426.

The statutory purpose of section 5(b) is clear. The employer’s right to reimbursement is to be protected by the court. This statutory provision must be given priority over the policy of favoring settlements. To take a more relaxed or permissive view of settlements of this nature would allow parties to defeat entirely the protection afforded the employer by the legislature. Furthermore, a contrary holding would ignore the supreme court’s ruling in Page which called for a determination of the fairness and reasonableness of the settlement allocation for loss of consortium.

To give effect to section 5(b) in cases where a settlement agreement allocates an award between an employee’s claim and the employee’s spouse’s loss of consortium claim, we hold that a trial court must, as the Wisconsin court stated, “closely scrutinize” the settlement to determine whether it is fair and reasonable to all the parties, including the employer holding a worker’s compensation lien. This does not mean that a court must insure that the total amount of an employer's lien is paid before it will allow a spouse to recover for loss of consortium, but the court must not allow parties to clearly circumvent the lien by apportioning the bulk of the recovery to the loss of consortium claim. The trial court should consider whether the parties would have allocated the settlement the same way had there not been a worker’s compensation lien.

We note that the parties and the lower court focused on an evaluation of good faith in determining whether the settlement should be approved. The Contribution Act requires that a release to a joint tortfeasor be made in good faith. The test for this case, however, goes beyond a determination of good faith. Section 5(b) of the Worker’s Compensation Act provides that the court shall protect the employer’s lien. Thus, regardless of whether a court might find the settlement to be in good faith, the court must consider whether the employer’s lien is protected. As stated in Page, it must be determined whether the allocation is fair and reasonable. This determination should be made while keeping in mind the employer’s lien.

Turning to the settlement in this case, we find the agreement does not fairly and reasonably allocate the award between William for his injuries and Marilyn for her loss of consortium. We believe the settlement represents an obvious attempt to circumvent the employer’s lien. It is most doubtful that the parties would have settled in this manner had there been no worker’s compensation lien. Unlike the cases cited in Page, where the loss of consortium recovery was less than the amount recovered by the employee, the loss of consortium recovery in this case is over three times the recovery provided the injured employee. There is no basis in the record to support this allocation. The minimal amount of evidence included in the record pertaining to damages shows that William suffered a serious debilitating injury which will likely cause him to suffer for the rest of his life. It appears that he will not be able to return to work and will continue to need medical attention. While it is clear William’s injuries have and will continue to cause his wife to suffer a loss of consortium, it is inconceivable that her loss could be three times as great as that of William, who suffered the accident. We note also that the only evidence in the record pertaining to Marilyn’s loss of consortium comes from her interrogatory answers, which briefly describe added expenses brought about by the accident, including expenses for household and auto repairs, and expenses for food, travel, and lodging necessitated by William’s trips to hospitals.

We have reviewed Illinois case law where the loss of consortium award was challenged as excessive, and with the exception of one case to be discussed later, we have not found any case where the loss of consortium award was greater than the injured spouse’s award. See Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill. App. 3d 140, 157 (where injured husband awarded $1,188,000 for multiple disabling injuries resulting from auto accident, wife’s loss of consortium reduced from $880,000 to $500,000); Diminskis v. Chicago Transit Authority (1987), 155 Ill. App. 3d 585, 593 (where husband awarded $400,000 for his injuries, wife awarded $400,000 loss of consortium); Kosch v. Monroe (1982), 104 Ill. App. 3d 1085, 1095 (where injured wife awarded $250,000, husband awarded $50,000 for loss of consortium).

Plaintiffs argue that awarding Marilyn a larger recovery than William is justified because, had the case gone to trial, William’s award could have been significantly reduced under comparative negligence. Plaintiffs contend that Marilyn’s claim is separate and independent; therefore, William’s negligence cannot be imputed to her. Appellant responds that any negligence attributed to William must be imputed to Marilyn’s loss of consortium claim. The Illinois Supreme Court has yet to address this issue, but the Appellate Court for the First District recently adopted plaintiffs’ position. In Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 129-32, where the court ordered that the injured employee be awarded $100,347 and the spouse $251,250 for loss of consortium, the court noted that the question of whether a loss of consortium claim is independent or derivative in relation to comparative negligence has not been directly answered, but cited the following three recent supreme court cases which it believed supported finding that negligence attributed to the injured spouse would not be imputed to the spouse’s loss of consortium claim:

(1) Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, where the court held a wife’s loss of consortium claim was not barred by the two-year statute of limitations applicable to her husband’s personal injury action;
(2) Brown v. Metzger (1984), 104 Ill. 2d 30, where the court held an injured spouse’s settlement release for his personal injury claim did not bar his wife from proceeding with a claim for loss of consortium. The court noted that past cases have held loss of consortium actions derivative (see, e.g., Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159; Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266). The court then stated: “More recently, however, this court has spoken to the contrary in Hammond v. North American Asbestos Corp. [citation] ***. The clear implication of that holding is, of course, that the right of the deprived spouse to recover does not depend on whether the impaired spouse’s cause of action is still viable.” Brown, 104 Ill. 2d at 38;
(3) Page v. Hibbard (1987), 119 Ill. 2d 41, where the court stated that a consortium action “is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society.” Page, 119 Ill. 2d at 48.

The first district admitted that these cases do not directly answer the question as to whether a spouse’s consortium award should be reduced by the injured spouse’s negligence, but it found that the cases indicate a “shift away from the pre-Aims (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886 [which adopted comparative negligence]) concepts that all contributory negligence of an injured spouse was imputed to the spouse claiming loss of consortium.” (Erickson, 180 Ill. App. 3d at 130.) The court held that it appears the supreme court considers consortium claims derivative only in the sense that the injured spouse must establish liability. Once liability is established, the consortium claim is an independent action, and it is fair and reasonable to compensate a loss of consortium claimant on the basis of his or her actual injuries without deducting any amount for the negligence of the injured spouse. Erickson, 180 Ill. App. 3d at 130.

We are not persuaded that the three cases relied on by the first district lead to the conclusion it reached. These cases clearly establish that a consortium claim is an independent claim insofar as it is not a claim by the spouse as a representative of the injured spouse. But, this has nothing to do with whether a consortium award should be reduced by the injured spouse’s negligence. We believe the most applicable authority on this point would be the past law in Illinois regarding loss of consortium under contributory negligence. Though the Illinois Supreme Court never decided whether contributory negligence barred a loss of consortium claim, the appellate court case of Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266, 275, establishes that the law in Illinois under contributory negligence barred a loss of consortium claim where the spouse was contributorily negligent. Thus, before Alvis v. Ribar in 1981, the law clearly considered the negligence of the injured spouse in determining whether a spouse had a claim for loss of consortium. It does not follow that under the adoption of comparative negligence, the injured spouse’s negligence should be determined irrelevant to the amount of a spouse’s recovery for loss of consortium. Just as the adoption of comparative negligence eased a harsh result by allowing a contibutorily negligent plaintiff to recover against a defendant for its share of negligence, it eased a harsh result in a loss of consortium case by allowing a spouse to sue in spite of the injured spouse’s negligence. But, the adoption of comparative negligence does not discount plaintiff’s negligence altogether, and it should not be discounted in a loss of consortium claim.

To hold that a consortium claim should be reduced by the negligence of the injured spouse does not conflict with the supreme court holdings that a loss of consortium claim is independent. The claim is independent since it is brought by the spouse for his or her injuries, but it still must be recognized that the claim derives from the initial physical injury to a spouse. But for that injury, the spouse would not have a loss of consortium claim. Under comparative negligence, if an injured person’s negligence contributed to his or her own injury, then that person’s recovery must be deducted by the proportion of his or her own negligence. It only follows that a consortium claim must also be reduced by the proportion of the injured spouse’s negligence since the spouse’s loss of consortium was in part caused by this negligence. For example, if an injured spouse was found 30% negligent and defendant found 70% negligent, the spouse’s consortium claim should be reduced by 30% because the defendant caused only 70% of the loss suffered by the spouse. The other 30% was caused by the injured spouse. If the spouse asserting consortium is allowed to recover from defendant without reduction of the physically injured spouse’s negligence, then defendant is forced to compensate one spouse for the other spouse’s negligence.

Though the Illinois Supreme Court has yet to decide this issue, it has been decided in many other jurisdictions. The States are not in agreement; however, the majority of States does apply the injured spouse’s negligence against a loss of consortium claim. Lee v. Colorado Department of Health (Colo. 1986), 718 P.2d 221; Ferguson v. Ben M. Hogan Co. (W.D. Ark. 1969), 307 F. Supp. 658; Eggert v. Working (Alaska 1979), 599 P.2d 1389; Nelson v. Busby (1969), 246 Ark. 247, 437 S.W.2d 799; Hamm v. City of Milton (Fla. Dist. App. 1978), 358 So. 2d 121; Thill v. Modern Erecting Co. (1969), 284 Minn. 508, 170 N.W.2d 865; Maidman v. Stagg (1981), 82 A.D.2d 299, 441 N.Y.S.2d 711; White v. Lunder (1975), 66 Wis. 2d 563, 225 N.W.2d 442. But see Macon v. Seaward Construction Co. (1st Cir. 1977), 555 F.2d 1; Lantis v. Condon (1979), 95 Cal. App. 3d 152, 157 Cal. Rptr. 22; Stapleton v. Palmore (1982), 162 Ga. App. 525, 291 S.E.2d 445; Feltch v. General Rental Co. (1981), 383 Mass. 603, 421 N.E.2d 67.

In Lee v. Colorado Department of Health (Colo. 1986), 718 P.2d 221, the court gave three sound reasons for attributing comparative negligence to the consortium claim. First, the court noted that in the past it held that contributory negligence completely barred a spouse’s claim for loss of consortium. The harsh effect of this rule would no longer be felt with the adoption of comparative negligence. (Lee, 718 P.2d at 232.) Second, the court found that it was the simplest and most efficient way to reach a just result. The court stated:

“While it is true that ‘each spouse is equal and independent and suffers a personal loss when the other is injured,’ [citation], the fact remains that the basis for recovery on a consortium claim is interference with the continuance of a healthy and happy marital relationship. The loss to that relationship resulting from an accident ‘is best distributed among those whose negligence caused it in proportion to the fault of each of them.’ ” (Lee, 718 P.2d at 232.)

Third, the court held:

“If a claim for loss of consortium were viewed as totally independent of the other spouse’s personal injury claim, there would be no reason to preclude one spouse from suing another for loss of consortium or to prohibit the primary tortfeasor sued in a consortium claim from impleading the spouse who suffered the personal injuries. [Citations.] Placing one spouse in an adversarial relationship to the other over the latter’s claim for loss of consortium introduces an element of legal conflict into the marriage that, far from contributing to marital harmony, will most likely have the effect of fostering discord between the parties.” (Lee, 718 P.2d at 232.)

The above reasons have equal persuasiveness under Illinois law, and we adopt them in holding that a recovery for loss of consortium claim is limited by the injured spouse’s negligence.

Finally, plaintiffs, in a cross-appeal, contend Village is not entitled to collect on its lien because it attempted to frustrate plaintiffs’ chances of recovery against defendants by asserting that William was largely responsible for his injuries, as evidenced by Village’s third-party complaint against William. This argument was not raised below, and Village has moved this court to dismiss the appeal. Generally, an issue not raised in the circuit court cannot be raised on appeal. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 141-42.) However, an appellate court may consider an issue not raised below where the record contains all the factual material necessary to decide the issue. (Bell, 106 Ill. 2d at 142.) Since the necessary facts to address this issue are before the court, and the issue is likely to be raised again below, we will address plaintiffs’ contention.

Plaintiffs cite no cases to support their contention, and we are not persuaded by their arguments. Plaintiffs first argue that Village has an unfair bargaining position because by statute it is entitled to full reimbursement for its lien. Plaintiffs argue that allowing an employer full reimbursement from a settlement allows an employer to escape liability under comparative negligence. This argument is without merit. In Illinois, employers may be held liable as a third party under the Contribution Act. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 14.) Thus, the law does not provide a means by which an employer paying worker’s compensation can escape greater liability. In the case at bar, plaintiffs and settling defendants have by virtue of their settlement allowed Village to escape greater liability at at this point. Plaintiffs and defendants were not, of course, forced into this settlement.

Plaintiffs’ second argument is that it is unfair for the employer to take a position against its injured employee who sues others for damages. We disagree. There is nothing in the statute or case law which requires the employer -with a worker’s compensation lien to side with its employee in an employee’s action. Furthermore, since an employer may be found liable under the Contribution Act, an employer must have the right to defend itself, which would include asserting a right to contribution against its employee for the employee’s negligence. This is consistent with a recent case, Ellis v. E.W. Bliss & Co. (1988), 173 Ill. App. 3d 779, 782, where the court held that an employer may settle with its employee since the employer is potentially liable under the Contribution Act. The actions of Village do not bar it from enforcing its lien.

We reverse the decision of the circuit court of Lake County approving the settlement agreement and remand the cause for proceedings consistent with this opinion.

Reversed and remanded.

McLAREN and NASH, JJ., concur.


text:
    EXCHANGE NATIONAL BANK OF CHICAGO, as Trustee, Plaintiff-Appellee, v. RANDY S. SAMPSON, d/b/a Suburban Graphics, Defendant-Appellant.
    Second District
    No. 2—88—1000
    Opinion filed August 11, 1989.

      David Drenk, Douglas Drenk, and Nancy J. Smith, all of Drenk & Smith, Ltd., of Wheaton, for appellant.
    Steven L. Sommerfield, of Naperville, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Randy S. Sampson, d/b/a Suburban Graphics, appeals the judgment of the circuit court of Du Page County awarding the plaintiff, Exchange National Bank of Chicago, as trustee under trust No. 3529, a writ of possession of the defendant’s business premises on Main Street in Wheaton, Illinois, rent arrearage and attorney fees and costs. The defendant’s motion to vacate the judgment was denied, and this appeal was filed.

The defendant raises these issues: (1) whether the trial court lacked authority to unilaterally amend the terms of its agreed order with the plaintiff and thereafter enforce the amended terms against it; and (2) whether the trial court abused its discretion when it awarded plaintiff attorney fees. Also taken with the case is the plaintiffs motion for attorney fees incurred in this appeal. We affirm and remand the cause for an evidentiary hearing on plaintiff’s attorney fees incurred on appeal.

On June 2, 1988, in lieu of trial on the plaintiff’s complaint in forcible entry and detainer (Ill. Rev. Stat. 1987, ch. 110, par. 9 — 101 et seq.), the trial court entered an agreed order setting forth the terms of the settlement reached between the parties as follows:

“AGREED ORDER
This cause having come before the Court for trial & the parties having conferred with counsel & desirous of settling this matter, & the Court being advised in the premises, it is ORDERED:
1) Defendant has tendered Plaintiff checks Nos. 9410, 9416 & 9424 in the aggregate sum of $3100.00 as & for rents in arrears for June 1988 and July 1988.
2) Defendant shall mail to Plaintiff on or before June 12, 1988 a check in the amount of $1325.00 representing the balanee of the rent due for March, 1988 based upon the agreement of the parties to split the plumbing bill of 1246.61, Plaintiff contributing $625.00 and Defendant the balance.
3) The parties agree to split evenly any future plumbing repairs to pipes contained in the walls or ceilings. The parties shall promptly confer to make any such repairs & provide each other with bills.
4) This cause is continued for 4 months. If Defendant fails to deposit the rent in the mail on or before the 1st day of the month, on motion of Plaintiff, a writ of possession shall issue. If all conditions are complied with, this cause shall be dismissed, each party to bear its own fees and costs.”

In August, the defendant petitioned the court to find the plaintiff in contempt of court for violating the agreed order by failing and refusing to confer regarding plumbing repairs and by refusing to pay for any plumbing repairs. Plaintiff moved to strike or deny the defendant’s petition for a contempt finding and filed its motion for writ of possession and judgment for unpaid rent and for attorney fees and costs. Plaintiff alleged therein that the rent for August in the amount of $1,950 had not been received as of August 11, 1988, and that the parties’ lease provided for attorney fees and costs in the event of a default. Appended to the motion was plaintiff’s counsel’s affidavit as to the fees and costs incurred in connection with the litigation.

On August 18, after hearing evidence and argument, which included defendant’s argument that time was not made “of the essence” in the agreed order, the court denied the plaintiff’s motion for writ of possession and required the defendant to pay the August rent instanter. Then, on its own motion, the trial court amended the agreed order to provide as follows:

“Time is of the essence in payment of rent. All rent shall be delivered to plaintiff or its agent on or before the first day of the month.”

Subsequently, on September 14, plaintiff filed a second motion for writ of possession and judgment, alleging the September rent had not been paid. Plaintiff again requested attorney fees and costs as provided in the lease and appended to the motion was plaintiff’s counsel’s updated affidavit of fees and costs incurred in connection with the litigation.

Following a hearing conducted on September 19 at which the defendant unintentionally was absent, the court awarded plaintiff possession of the business premises, $1,950 for rent arrearage, and $1,588.50 for attorney fees and costs. (See Ill. Rev. Stat. 1987, ch. 110, par. 9 — 109 (permitting trial ex parte).) On September 23, the defendant moved to vacate the court’s June 2, August 18 and September 19 orders. The defendant alleged he had been constructively evicted from the premises due to the plaintiff’s failure and refusal to rectify water leaks and that plaintiff’s request for attorney fees was unsupported by authority or time records. The court denied the motion and set an appeal bond for the defendant in the amount of the judgment, $3,538.50. The defendant filed its notice of appeal from the court’s June 2, August 18, September 19 and September 23 orders.

The defendant first contends the court lacked authority to unilaterally amend the terms of the agreed order and thereafter enforce the amended terms against it. We find that defendant has waived his right to challenge the amended agreed order.

The defendant correctly notes the general rule that a settlement agreement may not be altered as to material terms without the consent of both parties (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1; In re Marriage of Maher (1981), 95 Ill. App. 3d 1039), nor may a court on its own motion or accord alter such an agreed order (Herhold v. Herhold (1970), 123 Ill. App. 2d 293, 297). A material term is one which has a legal effect different from the original language of the agreement. In re Application of Busse (1984), 124 Ill. App. 3d 433.

The ordinary rules of contract construction apply to settlement agreements (In re Marriage of Kloster (1984), 127 Ill. App. 3d 583; In re Marriage of Marquardt (1982), 110 Ill. App. 3d 271), and valid assent to the terms of an agreement may be inferred from the conduct of a party. (Restatement (Second) of Contracts §19, at 55 (1979).) Although the court’s June 2 entry of the parties’ agreed order was not appealable because it was an agreed order (Fahner, 106 Ill. 2d at 8; Berymon v. Henderson (1985), 135 Ill. App. 3d 858), the order amending the agreement on the court’s own motion was appealable. First, the amendment was an alteration of a material term of the agreement. Second, an order prepared at the direction of the trial court cannot be characterized as an agreement of the parties and is, therefore, appealable by those prejudiced thereby. (See Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, aff’d (1987), 118 Ill. 2d 23.) Where no timely appeal is taken from a final and appealable order, however, the appellate court is without jurisdiction to consider the propriety of that order. Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 1073-74; Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 674.

The defendant did not bring a timely appeal from the court’s amendment of the agreed order, nor, in fact, did he ever raise at trial the issue of the propriety of the court’s amendment of the agreed order. Applying contract construction principles, the defendant’s failure to act to challenge the court’s amendment of a material term of the agreed order at the time the plaintiff sought to enforce the amended agreed order amounted to a ratification of the amendment. (See generally Restatement (Second) of Contracts §7, at 20 (1979); Corbin, Contracts §6, at 10 (1952).) The defendant had the power to avoid the court’s amendment by a timely appeal just as appeals were taken, albeit not necessarily successfully, in the cases relied on by the defendant in support of its position that the court lacked the authority to amend the agreement without the parties’ consent. (In re Marriage of Maher, 95 Ill. App. 3d at 1039 (husband appealed denial of his motion to vacate agreed order which incorporated certain “findings” not yet made by the court upon which findings the husband relied in signing the agreement); Pearson v. Pearson (1976), 42 Ill. App. 3d 522 (husband appealed award of attorney fees made to wife upon proofs reopened between the time the court approved the parties’ oral property agreement and entered the decree of divorce); Herhold v. Herhold (1970), 123 Ill. App. 2d 293 (husband filed appeal from court’s entry of a property settlement decree which he claimed was contrary to the parties’ agreement where there otherwise was no claim of fraud, misrepresentation or coercion between the parties to the settlement).) Thus, the defendant’s failure to bring a timely appeal from the court’s order amending the parties’ agreed order or even to raise the issue at trial precludes review of the amendment on this appeal from the court’s subsequent judgment enforcing it. Bank of Ravenswood, 104 Ill. App. 3d at 1074.

Accordingly, we conclude the defendant has waived his right to appeal the court’s amendment sua sponte of the agreed order.

The defendant’s further contention is that the court erred when it awarded the plaintiff attorney fees. Defendant argues the award was without a basis in either a statute or a contract and there were no evidentiary facts supporting the amount of the fees.

The defendant correctly states the general rule that fees are not allowable to the prevailing party in a civil suit except where there is an applicable statute or an agreement between the parties. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488-89; Yorkshire Village Community Association v. Sweasy (1988), 170 Ill. App. 3d 155, 163; Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 272.) The amount of fees should be determined on the basis of facts in evidence rather than upon speculation (Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 276), and a court may properly award attorney fees according to the specific language of the contract (Ferrara v. Collins (1983), 119 Ill. App. 3d 819, 825; Qazi, 50 Ill. App. 3d at 273). In determining the issue of fees and expenses to be awarded, the trial court’s decision will not be disturbed absent a manifest abuse of discretion. Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 1057-58; Losurdo, 125 Ill. App. 3d at 275.

The defendant argues initially that any claim for attorney fees incurred prior to the date of the agreed order, June 2, 1988, was merged into the agreed order and thereafter barred. The authority defendant relies on for this proposition, Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 539, does not lend itself to the interpretation defendant affords it. Madison Associates sets forth the general rule that a valid settlement agreement operates as a bar to all included and prior causes of action. (158 Ill. App. 3d at 538.) Madison Associates also provides, however, that a settlement agreement is conclusive on the parties “as to matters fairly considered and intended to be included within its terms.” 158 Ill. App. 3d at 539.

As shown above, the June 2 agreed order provided that: “[i]f all conditions are complied with, this cause shall be dismissed, each party to bear its own fees and costs.” Clearly the conditions of the agreed order were not complied with, and the plaintiff’s right to attorney fees as provided in the lease was not extinguished.

Plaintiff’s claim for attorney fees at trial and its motion for attorney fees on appeal was then and is now grounded on paragraph 16 of the lease. The lease was not part of the record below. However, the plaintiff has appended a copy of the lease to its motion for attorney fees on appeal. As shown on that copy, paragraph 16 is a “Confession of Judgment” clause whereby the defendant as lessee agrees to confess a judgment or judgments for such money as may be due for rent or otherwise and for costs of suit and for reasonable attorney fees in favor of the plaintiff as lessor. We note that paragraph 15 shown on the copy of the lease, “Costs and fees,” is virtually identical to the clauses in Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, and Losurdo Brothers v. Arkin Distributing (1984), 125 Ill. App. 3d 267, both cited by the plaintiff, which were held to authorize an award of attorney fees and costs expended by the lessors in enforcing the covenants of the respective leases. See also First National Bank v. Mid-Central Food Sales (1984), 129 Ill. App. 3d 1002, 1009-10.

Defendant argues the trial court’s award of attorney fees could not have been based on the specific language of the lease because neither a copy of the lease nor a recitation of the provision or clause of the lease relied on by the plaintiff was attached to or included in any pleading as required in section 2 — 606 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 606). That section provides that, if a claim or defense is founded upon a written instrument, a copy or relevant excerpt thereof must be attached to the pleading as an exhibit or recited therein unless the pleader attaches his or her affidavit to the pleading stating facts showing that the instrument is not accessible. When the issue of the failure to attach such written instrument has not been raised at trial, however, it cannot be raised on appeal. (Senese v. City of Chicago (1967), 88 Ill. App. 2d 178.) Contrary to the defendant’s claim in its post-trial motion that the plaintiff’s pleadings had not “cited any authority for receiving said fees,” the plaintiff did cite the specific paragraph of the lease upon which it relied, albeit by number designation only. Defendant never argued the lack of a copy of the lease at trial, and we find the issue waived on appeal.

Defendant’s further contention that the court’s award was based upon “eonclusory [sic] allegations” rather than facts in evidence is without merit and its reliance on In re Application of County Collector (1988), 175 Ill. App. 3d 985, is misplaced. In County Collector, we denied the appellant’s request for attorney fees and costs where the request was made in a conclusionary sentence unsupported by sufficient factual allegations. “A petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor.” Fitzgerald v. Lake Shore Animal Hospital, Inc. (1989), 183 Ill. App. 3d 655, 661.

Plaintiff’s affidavit in the instant cause described the work performed, the total hours of office time and court time, the respective hourly rates for such time, and itemized the costs and expenses incurred in connection with the litigation. Moreover, the parties have stipulated the plaintiff was prepared at trial to supplement its affidavit with the time sheets upon which its affidavit was based, but the trial court elected to rely on plaintiff’s affidavit. Defendant cites no authority which would require the court to receive time sheets in evidence before awarding attorney fees, nor has defendant argued the fees awarded were unreasonable.

In sum, we conclude the court did not err in awarding plaintiff attorney fees.

By motion ordered taken with the case, the plaintiff has requested that it also be awarded its attorney fees on appeal. As noted above, a copy of the parties’ lease was attached to this motion. The defendant has not filed objections to plaintiff’s motion as permitted by Supreme Court Rule 361. (See 107 Ill. 2d R. 361(b)(2).) Inasmuch as payment of plaintiff’s attorney fees incurred in the collection of rent due under the lease is expressly provided for in the lease, and inasmuch as the amount of attorney fees and costs on appeal are more properly determined upon a petition and evidentiary hearing in the trial court (Losurdo, 125 Ill. App. 3d at 277), we remand the cause for such petition and evidentiary hearing.

The judgment of the circuit court of Du Page County is affirmed. The cause is remanded for a hearing and award of attorney fees to the plaintiff.

Affirmed and remanded with directions.

INGLIS and NASH, JJ., concur.