author: JUSTICE BUCKLEY

text:
    MICHAEL J. FARRAR et al., Plaintiffs-Appellants, v. MILDRED JACOBAZZI, Indiv. and as Special Adm’r of the Estate of Joseph P. Jacobazzi, Defendants-Appellees.
    First District (1st Division)
    No. 1 — 91—2856
    Opinion filed March 29, 1993.

      Spina, McGuire & Okal, P.C., of Elmwood Park (John D. Spina, of counsel), for appellants.
    Law Offices of Sandra K. Burns, Ltd., of River Forest (Sandra K. Burns, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiffs, Michael J. and Epifanía R. Farrar, brought an action against defendants, Joseph and Mildred Jacobazzi, .to recover for the damages they sustained in reliance upon certain alleged misrepresentations defendants made in order to induce plaintiffs to purchase their home. On the day of trial, plaintiffs presented a motion to continue or, in the alternative, for a voluntary dismissal. Both motions were denied and the trial judge dismissed plaintiffs’ complaint for want of prosecution. On appeal, plaintiffs argue: (1) that the trial judge erred in denying their motion for a voluntary dismissal because a plaintiff has an absolute right to dismiss his or her case at any time prior to trial; and (2) that the trial judge erred in dismissing plaintiffs’ cause for want of prosecution “with prejudice” because a trial judge does not have the power to enter such an order “with prejudice.”

On May 8, 1989, plaintiffs filed a one-count complaint against defendants. Plaintiffs alleged that on or about January 11, 1988, they entered into a contract for the purchase of defendants’ residence. Plaintiffs assert that defendants represented to them that the basement of the residence “was free from flooding and water intrusion” when,- in fact, defendants knew that the basement had previously suffered severe flooding. Plaintiffs maintain that they relied upon the representations of the defendants and, as a result, have brought this suit to recover the cost of repairing and waterproofing their basement.

A general summary of the procedural history leading up to the dismissal of plaintiffs’ complaint for want of prosecution is as follows. On July 7, 1989, a default order was entered against defendants for failure to answer plaintiffs’ complaint. Defendants then filed a motion to vacate the default and a motion to dismiss plaintiffs’ complaint. On July 13, 1989, an agreed order was entered vacating the default. Plaintiffs were given 28 days to answer the motion to dismiss and defendants were granted 21 days thereafter to respond. After plaintiffs were granted two continuances, they answered defendants’ motion on October 10, 1989. Defendants then received one continuance before responding to plaintiffs’ answer on November 13, 1989. On December 11, 1989, defendants’ motion to dismiss was denied. On February 20, 1990, defendants filed their answer to plaintiffs’ complaint.

There were several continuances over the next months due, among other things, to the death of one of the defendants, Joseph Jacobazzi, on March 19, 1990, and a knee injury to plaintiffs’ attorney. On November 29, 1990, plaintiffs’ complaint was dismissed for want of prosecution. On December 19, 1990, the dismissal was vacated and the case was set for trial on February 20,1991.

On February 15, 1991, pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237), defendants filed a notice to compel plaintiffs to appear and testify in court on the trial date. On or about February 17, 1991, plaintiffs served on defendants an emergency motion to continue trial due to plaintiffs’ alleged inability to locate a necessary witness. Plaintiffs’ emergency motion was denied on February 19, 1991. Plaintiffs immediately served notice on defendants informing them that on the morning of trial, February 20, 1991, they would renew their motion to continue, or in the alternative, ask for a voluntary dismissal. On February 20, 1991, the trial judge denied plaintiffs’ renewed motion for continuance and denied their motion for a voluntary dismissal. The judge then orally dismissed the case for want of prosecution and stated that “I am not going to allow you to do by voluntary dismissal what I would not allow you to do by a motion to continue trial.” Subsequently, plaintiffs received a postcard from the circuit court informing them of the dismissal for want of prosecution.

Plaintiffs then filed a motion to vacate the dismissal. On July 29, 1991, the trial judge denied plaintiffs’ motion to vacate and entered a written order. The order declared that the dismissal for want of prosecution had been entered “with prejudice due to the matter having been marked final for trial on prior occasions.” Additionally, the order explained that plaintiffs’ motion for a voluntary dismissal had been denied because “it was presented on the day of trial without proper prior notice and without payment or tender of costs.”

We note that the “half-sheet” is missing and not a part of the record. Additionally, there is no report of proceedings in the record for us to review. Defendants have filed a proposed report of proceedings in which they assert that defendants’ attorney objected at trial to plaintiffs’ motions to continue and for voluntary dismissal on the grounds that plaintiffs failed to answer defendants’ Rule 220 interrogatories, the case already had been continued numerous times, and defendants were not given proper notice of the motions.

Finally, although not mentioned in either party’s brief, it appears from reviewing plaintiffs’ reply in support of their motion to vacate that they have refiled their case pursuant to section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13— 217 (now 735 ILCS 5/13 — 217 (West 1992))) trader docket number 91— M1 — 133958 and are asking us to insure that this refiled case not be dismissed as a result of the trial judge’s erroneous dismissal for want of prosecution “with prejudice.”

The first question to be addressed on appeal is whether the trial judge’s denial of plaintiffs’ motion for a continuance was an abuse of discretion. Defendants assert that the trial judge properly denied plaintiffs’ motion for continuance because plaintiffs did not attach a supporting affidavit to the pleading. On appeal, plaintiffs have not challenged the denial of their request for continuance and, therefore, it is not an issue we need address.

©1 Nonetheless, we are satisfied that the trial judge did not abuse his discretion. The trial judge has broad discretion to grant or to deny a motion for continuance, and his or her decision will not be reversed absent an abuse of that discretion. (Feder v. Hiera (1980), 85 Ill. App. 3d 1001, 1002, 407 N„E.2d 799, 801.) According to Supreme Court Rule 231 (134 Ill. 2d R. 231), a motion for continuance which is based upon the unavoidable absence of material evidence “shall be supported by the affidavit of the party so applying or his authorized agent.” If plaintiff does not include an affidavit in support of his motion to continue, a denial of that motion seldom will be found to be an abuse of discretion. Feder, 85 Ill. App. 3d at 1003, 407 N.E.2d at 801.

In the instant case, plaintiffs requested a continuance due to the unavailability of a necessary witness. Plaintiffs did not attach, however, a supporting affidavit to their motion for continuance. Therefore, we believe that on this ground alone plaintiffs’ motion for continuance was properly denied. See Howard v. Francis (1990), 204 Ill. App. 3d 722, 726-27, 562 N.E.2d 599, 602 (trial court’s denial of plaintiff’s motion for continuance based upon the alleged unavailability of expert witness was not abuse of discretion where no affidavit supported motion).

The second question to be addressed on appeal is whether the trial judge improperly denied plaintiffs’ motion for voluntary dismissal. Plaintiffs argue that they had an absolute right to voluntarily dismiss their cause of action at any time prior to trial and, therefore, the trial judge erred in denying their motion for voluntary dismissal.' Defendants, on the other hand, contend that the motion was properly denied because it was presented without proper notice and without payment of costs.

Section 2 — 1009 provides in pertinent part:

“Voluntary dismissal, (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009 (now 735 ILCS 5/2 — 1009 (West 1992)).)

Courts have interpreted section 2 — 1009 to mean that a plaintiff has an “absolute right” to voluntarily dismiss his cause of action at any time prior to trial or hearing as long as he or she has given timely notice to the parties and has paid all costs. (Bailey v. State Farm Fire & Casualty Co. (1985), 137 Ill. App. 3d 155, 157, 484 N.E.2d 522, 524; Heinz v. County of McHenry (1984), 122 Ill. App. 3d 895, 897, 461 N.E.2d 672, 673.) If plaintiff strictly complies with the requirements of the section, the trial judge does not have the discretion to deny plaintiff’s motion. Vaughn v. Northwestern Memorial Hospital (1991), 210 Ill. App. 3d 253, 258, 569 N.E.2d 77, 80.

According to the rules of the circuit court of Cook County, in order for notice given by personal service to be timely, it must be given “before 4 p.m. of the second court day preceding the hearing of the motion.” (Cook County Cir. Ct. Rules 2.1(a), (c)(1), (d).) Additionally, in order to satisfy the “payment of costs” requirement, plaintiff must at least allege the payment or tender of costs. See Dolido v. Zenith Radio Corp. (1990), 194 Ill. App. 3d 268, 272, 550 N.E.2d 1225, 1228; Williams v. Joliet Mass Transit System (1983), 114 Ill. App. 3d 1004, 1006, 449 N.E.2d 1042, 1044; In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 970-71, 410 N.E.2d 79, 84.

In the instant case, plaintiff personally served notice on the day the case was set for trial, just prior to presenting the motion. This notice clearly did not satisfy the requirement that notice by personal service be given “before 4 p.m. of the second court day preceding the hearing of the motion.” Additionally, the record and pleadings on file show that plaintiff did not pay or even allege the payment or tender of court costs. Although the trial judge surely had the power to grant plaintiffs’ request for a voluntary dismissal even though plaintiffs did not strictly comply with the section 2 — 1009 requirements, we cannot say that it was improper for him to deny the motion. See Dolido, 194 Ill. App. 3d at 272, 550 N.E.2d at 1228 (plaintiff’s motion for voluntary dismissal properly denied because plaintiff did not allege payment of costs); Vaughn, 210 Ill. App. 3d at 257-59, 569 N.E.2d at 79-80 (plaintiff’s motion for voluntary dismissal properly denied because plaintiff did not give timely notice).

The final issue to be addressed is whether the trial judge had the authority to enter a dismissal for want of prosecution “with prejudice.” Plaintiffs assert that the trial judge dismissed their cause of action for want of prosecution because they were not able to proceed with their case on the trial date. Plaintiffs recognize that a trial judge has the inherent authority to dismiss an action for want of prosecution. They maintain, however, that when the dismissal is based upon an inability to proceed at trial, the judge does not have the authority to dismiss “with prejudice” and thus preclude plaintiffs from refiling their claim.

Defendants argue that the dismissal with prejudice was a legitimate exercise of the trial judge’s power to sanction plaintiffs for failing to appear in court on the day of trial pursuant to a Rule 237 notice to compel. Defendants add that this lack of compliance with Rule 237 along with plaintiffs’ repeated motions for continuance and their failure to comply with the statutory requirements for a continuance and for a voluntary dismissal “established plaintiffs’ conduct as unreasonable and characterized by a deliberate and pronounced disregard for the Rules and the Court.” Defendants conclude, therefore, that the trial judge had the authority to dismiss plaintiffs’ cause of action with prejudice as a sanction.

Section 13 — 217 provides that if an action is dismissed for want of prosecution, the plaintiff “may commence a new action within one year or within the remaining period of limitation, whichever is greater.” (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217 (now 735 ILCS 5/ 13 — 217 (West 1992)).) It has been held that a dismissal for want of prosecution is not a final and appealable judgment on the merits because, pursuant to section 13 — 217, “ ‘plaintiffs [have]- an absolute right to refile the action against the same party or parties and to reallege the same causes of action.’ ” (Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 112, 449 N.E.2d 112, 114, quoting Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480, 482.) In other words, a dismissal for want of prosecution does not prejudice plaintiffs’ case nor bar a subsequent suit on the same issues. (O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 950, 420 N.E.2d 425, 427.) Since a dismissal with prejudice “denotes an adjudication on the merits and is res judicata," a dismissal for want of prosecution, by its nature, is without prejudice. (O’Reilly, 95 Ill. App. 3d at 950, 420 N.E.2d at 427; see Tri-G, Inc. v. Elgin Federal Savings & Loan Association (1989), 182 Ill. App. 3d 357, 360, 538 N.E.2d 793, 794.) Therefore, a trial judge does not have the authority to dismiss a case for want of prosecution with prejudice because, if he had that power, a “right specifically conferred by [section 13 — 217] would be defeated.” O’Reilly, 95 Ill. App. 3d at 950, 420 N.E.2d at 427.

Supreme Court Rule 219(c)(v) (134 Ill. 2d R. 219(c)(v)), however, gives the trial judge the power to dismiss an action with prejudice for refusal to comply with rules or orders relating to discovery or pretrial conferences. (134 Ill. 2d Rules 201 through 218.) Additionally, if a party who has been served with notice to attend and testify at trial does not appear, Rule 237(b) (134 Ill. 2d R. 237(b)) permits the trial judge to “enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” In Keilholz v. Chicago & North Western Ry. Co. (1974), 59 Ill. 2d 34, 38, 319 N.E.2d 46, 48, the supreme court determined that dismissals with prejudice pursuant to Rule 219 are not equivalent to, and cannot be characterized as, dismissals for want of prosecution. The Keilholz court reasoned that to do so “would be to eliminate the most effective sanction for the disregard of [Rule 219] orders” (Keilholz, 59 Ill. 2d at 38, 319 N.E.2d at 48) because a plaintiff has a right to refile his action if it was dismissed for want of prosecution. See Kraus v. Metropolitan Two Illi nois Center (1986), 146 Ill. App. 3d 210, 216-17, 496 N.E.2d 1080, 1085.

In the instant case, the trial judge denied plaintiffs’ motion for a voluntary dismissal because it was presented without proper notice and without payment or tender of costs. Instead, he dismissed the cause of action for want of prosecution “due to the matter having been marked for trial on prior occasions.” When dismissing the action, he stated “I am not going to allow you to do by voluntary dismissal what I would not allow you to do by a motion to continue trial.” Clearly, this case was not dismissed because of a violation of pretrial or discovery rules. Additionally, there is absolutely no basis in the record for defendants to assert that the cause was dismissed with prejudice as a Rule 237 sanction. Defendants’ own proposed report of proceedings belies this argument. Moreover, Rule 237 was not even violated because the case was dismissed before trial began.

Unquestionably, this case was dismissed because plaintiffs simply were unable to proceed with trial on the set trial date due to the absence of a necessary witness. If a trial judge dismisses a plaintiff’s cause of action as a result of his refusal to proceed with trial due to the unavailability of a necessary witness, the proper order of dismissal is one for want of prosecution. (See Flores, 91 Ill. 2d at 111, 435 N.E.2d at 481 (dismissal for want of prosecution entered because plaintiff refused to proceed with trial due to the absence of plaintiff’s physician).) Consequently, this was a dismissal for want of prosecution and the trial judge did not have the authority to enter such an order with prejudice.

We note that all the cases defendants cite in support of their argument that the dismissal was properly entered with prejudice are inapplicable to the facts of this case. In Gibellina v. Handley (1989), 127 Ill. 2d 122, 138, 535 N.E.2d 858, 866, the supreme court made the narrow holding that “the trial court may hear and decide a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” (Emphasis in original.) Here, not only were there no substantive motions pending before the court, but plaintiffs’ case was not voluntarily dismissed pursuant to section 2 — 1009. The court in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327, concluded that if plaintiff fails to diligently obtain service after the applicable statute of limitations has expired and defendant files a motion to dismiss with prejudice on this ground pursuant to Rule 103(b) (134 Ill. 2d R. 103(b)), plaintiff cannot circumvent the consequences simply by filing a section 2 — 1009 motion for voluntary dismissal; the Rule 103(b) motion must be heard on its merits prior to ruling on plaintiff’s motion. Again, in this case, not only was there no Rule 103(b) motion pending at the time of the dismissal, but plaintiffs’ section 2 — 1009 motion for voluntary dismissal was denied.

In Quarles v. Nationwide Insurance Co. (1978), 66 Ill. App. 3d 455, 464-65, 383 N.E.2d 1234, 1241, after a full day of trial had elapsed, the judge entered a default judgment against defendant for failing to be in court after having received a duly served notice to appear. The Quarles court reasoned that entry of a default judgment was proper in view of the fact that defense counsel “offered no excuse whatsoever for answering ready and proceeding to trial in the absence of his client ***, knowing full well that he had been served with a notice to appear and testify.” (Quarles, 66 Ill. App. 3d at 466, 383 N.E.2d at 1242.) In the instant case, on the other hand, plaintiffs’ counsel answered “not ready” for trial and the case was dismissed before the trial began for the express reason that plaintiffs refused to proceed with trial. Finally, in In re Estate of Soderholm (1984), 127 Ill. App. 3d 871, 881, 469 N.E.2d 410, 417, and Sanchez v. Phillips (1977), 46 Ill. App. 3d 430, 435, 361 N.E.2d 36, 40, plaintiffs’ claims were dismissed as sanctions for unreasonably failing to comply with discovery. Here, even assuming defendants’ allegations that plaintiff failed to comply with discovery are correct, this was not the reason articulated by the trial judge as the basis for his ruling.

It is established law in Illinois that a trial judge does not have the power to dismiss a cause of action for want of prosecution with prejudice. Therefore, the judge’s order doing so was erroneous.

Accordingly, we affirm the circuit court of Cook County in its denial of plaintiffs’ motion for continuance and for voluntary dismissal. We reverse its order dismissing this cause with prejudice and remand to the trial court with instructions to enter an order dismissing the cause for want of prosecution without prejudice.

Affirmed in part; reversed in part and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    ANNE PELLEGRINI, Plaintiff-Appellant, v. MARK E. JANKOVECK et al., Defendants (Hartford Insurance Company, Defendant-Appellee; State Farm Mutual Automobile Insurance Company, Defendant-Appellant).
    First District (3rd Division)
    Nos. 1 — 90—1909, 1—90—2015 cons.
    Opinion filed March 31, 1993.
    James J. Hoffnagle, of Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago, for appellant State Farm Mutual Automobile Insurance Company
    Aram A. Hartunian, of Hartunian, Futterman & Howard, Chartered, and David Cwik, of Bernard R. Nevoral & Associates, Ltd., both of Chicago, for appellant Anne Pellegrini.
    Robert L. Kiesler and David J. Kiesler, both of Kiesler & Berman, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Anne Pellegrini, and defendant State Farm Mutual Automobile Insurance Company (State Farm) appeal from the entry of summary judgment against them and in favor of defendant Hartford Insurance Company (Hartford). Appellants argue on appeal that a provision in Hartford’s insurance policy that excluded uninsured motorist coverage to plaintiff was void. We affirm.

The issue in this case is whether plaintiff was an insured and could be excluded from uninsured motorist coverage for injuries she received while she was a passenger in a particular automobile.

Hartford issued a policy of automobile liability insurance to Atlas Distributing Company, which was owned by Edward Pellegrini. The policy contained a section entitled “drive other car coverage.” Paragraph B of this section, entitled “changes in liability insurance,” stated that added to who was insured was any individual named in the endorsement. Edward Pellegrini was one of the named individuals. With some exceptions, the expanded liability insurance covered an automobile not owned by Atlas while being used by either an individual named in the endorsement or his spouse. Paragraph C, entitled “changes in auto medical payments and uninsured motorist insurance,” stated:

“The following is added to ‘who is insured’: any individual named in this endorsement and his or her family members are insureds while occupying or while a pedestrian when being struck by any auto you don’t own except:
Any auto owned by that individual or by any family member.”

Plaintiff and her son, Edward Pellegrini, resided together in the same household. She was a passenger in the automobile owned by them and another family member. While Edward Pellegrini was driving this automobile, a collision occurred in which plaintiff was injured. Plaintiff sought a declaratory judgment that she had uninsured motorist coverage under Hartford’s policy. Summary judgment was granted in favor of Hartford.

Plaintiff argues on appeal that the uninsured motorist provision in the Hartford policy was void under section 143a of the Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 755a) (the uninsured motorist statute) because of the exclusion from the definition of an insured person of one who was occupying an automobile owned by that person. State Farm argues that the exclusion was void and that plaintiff was not covered by the Hartford policy because Edward Pellegrini was an individual named in the endorsement and because plaintiff was a member of Edward’s family. Hartford argues that its policy did not violate the uninsured motorist statute because plaintiff was not an insured motorist for that type of coverage and that the uninsured motorist statute required uninsured motorist coverage only for persons already insured for liability coverage.

The uninsured motorist statute provides in part:

“No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle *** shall be renewed, delivered, or issued for delivery in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of the Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit- and-run vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” (Ill. Rev. Stat. 1991, ch. 73, par. 755a.)

Any insurance policy containing a provision that violates the uninsured motorist statute shall be construed in accordance with the requirement of the uninsured motorist statute. Ill. Rev. Stat. 1991, ch. 73, par. 1054.

The purpose of the uninsured motorist statute is to place the policyholder in substantially the same position he would occupy if the wrongful driver had carried the minimum required liability insurance. (Barnes v. Powell (1971), 49 Ill. 2d 449, 453, 275 N.E.2d 377.) The statutory coverage is mandatory, and it may not be “whittled away by an unduly restrictive [policy] definition” of uninsured vehicle. Smiley v. Estate of Toney (1969), 44 Ill. 2d 127,130, 254 N.E.2d 440.

It was held in Doxtater v. State Farm Mutual Automobile Insurance Co. (1972), 8 Ill. App. 3d 547, 552, 290 N.E.2d 284, that the uninsured motorist statute was a direction to insurers to provide uninsured motorist coverage for insureds whether or not they were occupying or operating motor vehicles declared in the policy. Plaintiff in Doxtater was injured in a collision between the motorcycle he was driving and an automobile driven by an uninsured motorist. Plaintiff was an insured under his father’s automobile insurance policy. But plaintiff’s claim fell within an exclusion for injury to an insured while occupying a motor vehicle owned by the named insured or any household resident if such vehicle was not an “owned motor vehicle.” An owned motor vehicle was defined as one that was described in the declarations, and plaintiff’s motorcycle was not an owned motor vehicle under this definition.

Plaintiff argued that the exclusion, by denying coverage for injuries incurred while occupying a vehicle not described in the policy declarations, unlawfully limited coverage in violation of the uninsured motorist statute, which required that uninsured motorist coverage be provided for all insureds without qualification as to the location of the insured at the time of the injury. The court agreed and held that the exclusion conflicted with the uninsured motorist statute and that the exclusion could not limit the uninsured motorist coverage. Doxtater, 8 Ill. App. 3d at 553.

In Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 370 N.E.2d 1044, plaintiff filed a claim under a policy issued to her parents for an injury caused by an uninsured motorist striking a parked automobile that struck her. The policy had an exclusion for bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or relative or through being struck by such an automobile. Relying on Doxtater, the court held that insofar as the exclusion would make coverage dependent upon the insured not being in a vehicle unlisted in the policy, the exclusion in the policy violated the uninsured motorist statute. Squire, 69 Ill. 2d at 179.

A policy excluded plaintiff from uninsured motorist coverage while occupying or driving an automobile regularly furnished to the insured in his employment in Roby v. Illinois Founders Insurance Co. (1978), 57 Ill. App. 3d 89, 372 N.E.2d 1097. The court found Squire controlling because the exclusion made coverage dependent upon the insured being in a vehicle listed in the policy, and it was held that the policy therefore violated the uninsured motorist statute. Roby, 57 Ill. App. 3d at 93, 95.

But the uninsured motorist statute does not restrict parties from designating who are insureds. (Heritage Insurance Co. of America v. Phelan (1974), 59 Ill. 2d 389, 395, 321 N.E.2d 257.) The legislative intent was to provide extensive protection for insureds under an automobile liability policy. (Heritage, 59 Ill. 2d at 395.) It is only after the parties designate the insureds that the uninsured motorist statute applies to prohibit the denial of uninsured motorist coverage to an insured. (Heritage, 59 Ill. 2d at 395.) In Heritage, a restrictive endorsement contained in an appendix to the policy provided that the insurance policy would not apply to the insured’s 17-year-old son when he was an “operator.” The policy did not apply to provide uninsured motorist coverage to the insured’s son because, at the time of the accident, the son was operating a motor vehicle. The uninsured motorist statute did not apply and was not violated because the son was not an insured. Heritage, 59 Ill. 2d at 395.

The denial of uninsured motorist coverage was also upheld in Polzin v. Phoenix of Hartford Insurance Cos. (1972), 5 Ill. App. 3d 84, 283 N.E.2d 324, in which an uninsured motor vehicle struck plaintiff pedestrian, who was president of a company. The company owned two automobiles insured by a policy issued by defendant to the company. The company was the only named insured on the policy. Plaintiff was the principal user of one of the automobiles. Plaintiff argued that he had uninsured motorist coverage because, among other reasons, the insurer accepted a premium for protecting persons against bodily injury. The court held that plaintiff was not covered by the uninsured motorist insurance because the uninsured motorist statute required coverage for only those persons insured under the policy and because plaintiff was neither a named insured nor using one of the insured company automobiles at the time of injury. Polzin, 5 Ill. App. 3d at 88-89.

In American Family Mutual Insurance Co. v. Kittinger (1986), 147 Ill. App. 3d 586, 496 N.E.2d 1182, defendant drove an automobile that was in an automobile accident with another automobile whose driver was uninsured. Defendant was living with her brother-in-law, who had an automobile insurance policy. The uninsured motorist endorsement excluded from its definition of relative a person who owned an automobile. The insurer argued that defendant was excluded from coverage because she was not a named insured, she owned an automobile at the time of the accident, and she was not a relative under the policy. The court cited an out-of-State case in apparent approval that held that a similar exclusion of relatives not owning an automobile was not unreasonable and not in conflict with the intent of the Rhode Island uninsured motorist statute. The court held that there was no public policy reason to extend uninsured motorist coverage to defendant because she voluntarily cancelled insurance coverage for her own automobile and thus chose not to be insured. American, 147 Ill. App. 3d at 589; see also Carlson v. American Family Insurance Co. (1992), 223 Ill. App. 3d 943, 946, 585 N.E.2d 1272 (plaintiff was not entitled to uninsured motorist coverage under father’s insurance because plaintiff was excluded from the definition of relative by virtue of his ownership of a vehicle).

Hartford cites Famuliner v. Farmers Insurance Co. (Mo. 1981), 619 S.W.2d 894, which interpreted a policy exclusion in light of Missouri’s mandatory uninsured motorist coverage statute (Mo. Ann. Stat. §379.203 (Vernon’s 1978)). The statute required, as does the Illinois uninsured motorist statute, that all policies of liability insurance must also include uninsured motorist coverage to “persons insured thereunder.” (Famuliner, 619 S.W.2d at 897.) Plaintiff was injured when his motorcycle was involved in an accident with an uninsured driver of another motorcycle. Plaintiff made a claim for uninsured motorist coverage under his parents’ insurance policies that covered separate automobiles. An insured was defined in the parents’ policies to include a relative. But excluded from the definition of relative was one who owned an automobile, and plaintiff’s ownership of his own automobile therefore disqualified him.

The insurance policies insured, in addition to the named insureds, a limited group of persons, but relatives resident in the same household were not provided coverage if they had automobiles of their own. (Famuliner, 619 S.W.2d at 897.) The insurance policies did not violate the Missouri uninsured motorist statute, which did not require that resident family members be provided uninsured motorist coverage on vehicles other than those primarily insured irrespective of whether such family members owned their own automobiles with or without their own insurance protection. (Famuliner, 619 S.W.2d at 896.) The statute was not violated unless a policy condition limited uninsured motorist protection as to persons who otherwise qualified as insureds for liability purposes. It was held that plaintiff was not an insured under his parents’ policies. Famuliner, 619 S.W.2d at 897.

We interpret the Illinois uninsured motorist statute as requiring uninsured motorist coverage only for those persons who are insured against loss from liability for bodily injury or death of a person arising out of the ownership, maintenance, or use of a motor vehicle. Plaintiff was not an insured for liability purposes, and therefore, the uninsured motorist statute did not apply to her and the insurer was permitted to restrict uninsured motorist insurance to family of the named individuals who were not in a family automobile. This holding is not in conflict with Doxtater’s interpretation of the uninsured motorist statute as requiring uninsured motorist coverage for insureds without qualification as to the insured’s location at the time of injury because plaintiff here was not an insured within the meaning of the uninsured motorist statute.

The judgment of the trial court is affirmed.

Affirmed.

RIZZI and GREIMAN, JJ., concur.

      Tn this context, “you” means Atlas.


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENIS LOPEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—0093
    Opinion filed March 31, 1993.

      Rita A. Fry, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara Jones, and Brian Holmes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant, Denis Lopez, was convicted of attempted first degree murder and armed violence and was sentenced to 25 years’ imprisonment.

On appeal defendant raises three issues as error regarding the instructions to the jury: (1) refusing to give an instruction on the offense of attempted second degree murder; (2) tendering the definitional instruction for murder which defines murder as requiring either a specific intent to kill or to do great bodily harm; and (3) refusing to instruct the jury on the offense of aggravated battery. Defendant also asserts that the 25-year sentence imposed constitutes an abuse of discretion.

We affirm defendant’s conviction and sentence.

Defendant admits that on March 22, 1990, he shot Nancy Lopez, his estranged wife, five times but contends that he acted under a sudden and intense passion at the time of the shooting and that he had no intent to kill.

Nancy Lopez and defendant were married for 10 years prior to the day defendant committed the acts of violence against his wife. At trial, Ms. Lopez testified that for two or three years prior to March 1990, she and defendant were experiencing marital difficulties. In December 1989, Ms. Lopez told defendant that she had been involved in an extramarital affair for the past IV2 years and that the man with whom she was having an affair was the biological father of their son named Denis Lopez, Jr. On February 19, 1990, Ms. Lopez left defendant, went to her mother’s house, but returned to him the following day.

During the first week of March 1990, Ms. Lopez informed defendant that she had filed for divorce. On March 14, 1990, while still living with defendant, she awoke to find that defendant had cut the sleeves off her jacket and cut up her waitress uniform. Ms. Lopez then took her two children and moved into her mother’s house.

On March 21, 1990, Ms. Lopez called defendant and asked for three items — their checkbook, mortgage payment book, and some gym clothes for their daughter, Christine. Defendant agreed to bring these items to Ms. Lopez the next day at Christine’s grade school.

The next morning, March 22, 1990, Ms. Lopez accompanied her daughter to school. Defendant, who was standing across the street from the school, indicated to Ms. Lopez that he had the requested items. Ms. Lopez, together with her daughter, crossed the street, retrieved a bag containing the items, and entered the school.

As Ms. Lopez exited the school building alone, defendant approached her and fired a gun, wounding her in the head, heart, liver, back and abdomen. When the gun jammed, defendant began to bang it on the ground, attempting to unjam it. Two off-duty police officers then intervened and arrested defendant.

Detective Hugh Conwell testified that at the police station, defendant told Assistant State’s Attorney George Andrews that after his telephone conversation with Ms. Lopez on the night of March 21, he went for a ride, purchased a gun on the street for $20, smoked some marijuana, drank some beer, and returned home.

Defendant testified that he felt “[v]ery bitter, very hurt” about his wife’s affair and he wanted blood tests taken to determine who was the father of Denis Lopez, Jr., but his wife and her paramour would not comply. Defendant stated that his wife moved out for the first time in January 1990 but returned one day later and then moved out again in March. Ms. Lopez told defendant that she had filed for divorce sometime in February and by phone on the night before the incident, March 21.

Defendant testified at trial that he had purchased a gun one week before the incident, not the night of March 21 as reported in the statement he gave on the day of the incident. Defendant carried the fully loaded weapon with him when he left his house to meet Ms. Lopez on March 22. After Ms. Lopez took the bag containing the items she had requested and when Ms. Lopez was leaving their daughter’s school, “she gave me a smirk and that just got me angry.” Defendant pulled the gun from his jacket pocket, pointed it at his wife, pulled the trigger and continued to fire until the gun jammed. Defendant stated that he was in shock after the first shot but realizes that he caused all of Ms. Lopez’s injuries.

The trial court refused defendant’s tendered jury instructions on the offenses of attempted second degree murder and aggravated battery. The jury found defendant guilty of attempted first degree murder and armed violence.

At the sentencing hearing, the trial court acknowledged that defendant had a good employment record, supported his family, and had no prior criminal record. However, the trial court found that these mitigating factors were “far outweighed by the aggravating factors presented” and characterized defendant’s conduct as “heinous,” “grossly reprehensible,” and “vile.” Defendant was sentenced to 25 years’ imprisonment.

Defendant first asserts that the trial court erred in refusing to instruct the jury on the offense of attempted second degree murder but acknowledges that there has been a division among the appellate courts of our State as to whether such offense actually exists.

After the parties in the present case filed their respective briefs, this court specifically held that the offense of attempted second degree murder is not a crime in Illinois. (People v. Aliwoli (1992), 238 Ill. App. 3d 602, 606 N.E.2d 347.) In our discussion of the issue now presented by defendant, this court in Aliwoli considered the legislafive history of the second degree murder statute and numerous primary and secondary authorities, including the same cases and sources cited by the parties. (See People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260; People v. Williams (1991), 220 Ill. App. 3d 460, 581 N.E.2d 113; People v. Austin (1991), 215 Ill. App. 3d 323, 574 N.E.2d 1297; People v. Moore (1990), 204 Ill. App. 3d 694, 562 N.E.2d 215; Haddad, Second Degree Murder Replaces Voluntary Manslaughter in Illinois: Problems Solved, Problems Created, 19 Loy. U. Chi. L.J. 995 (1988); Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B.J. 494 (1987); O’Neill, An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209 (1986).) Accordingly, we find no error in the trial court’s refusal to tender a jury instruction on attempted second degree murder.

Second, defendant contends that the trial court committed reversible error by tendering the definitional instruction for murder to the jury.

The State, conceding the error, asserts that it was harmless because the evidence overwhelmingly established defendant’s intent to kill. We agree.

The parties correctly agree that the offense of attempted murder requires the mental staté of a specific intent to commit murder. Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1(a); People v. Jones (1979), 81 Ill. 2d 1, 8, 405 N.E.2d 343.

Despite the specific intent requirement, the jury was given the following definition of first degree murder:

“A person commits the offense of first degree murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another.” (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 7.01A (2d ed. Supp. 1989).

In an attempted murder case, an instruction which permits the jury to return a guilty verdict upon evidence that the defendant intended only to cause great bodily harm is improper because nothing less than a criminal intent to kill must be shown to convict for attempted murder. People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28.

However, the giving of erroneous instructions does not always justify reversal when the evidence of the defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty. (Jones, 81 Ill. 2d at 9; People v. Cloyd (1987), 152 Ill. App. 3d 50, 504 N.E.2d 126.) In Jones, the supreme court found that “the intent to commit murder was blatantly evident from the circumstances” where the “victim was shot four times in the head, peppered with buckshot in his back, and had a shotgun pointed at him by the defendant.” (Jones, 81 Ill. 2d at 10.) The court concluded that the error in the jury instructions was harmless because the intent to kill was so evident and because the error was minimized by the giving of an otherwise accurate attempted murder instruction. Jones, 81 Ill. 2d at 10.

In Cloyd, this court followed the tenets of Jones and found the error in the jury instruction to be harmless because the evidence of the defendant’s intent to kill was blatantly clear. (Cloyd, 152 Ill. App. 3d at 54-56.) Although the defendant in Cloyd testified that he did not intend to kill the victim, the witnesses testified that the defendant held a gun against the victim’s head and fired the gun at her four times at close range.

Similarly, in People v. Felder (1992), 224 Ill. App. 3d 744, 586 N.E.2d 729, the court held that the evidence of the defendant’s intent to kill was overwhelming and thus, the erroneous jury instruction on the full definition of murder was harmless.

Even the most casual consideration of the evidence in the present case would establish defendant’s clear intent to kill so that a jury could not reasonably have found him not guilty. The facts of Jones, Cloyd and Felder were subjected to the same kind of analysis that we have provided.

A close examination of the facts in Harris will reveal that the evidence surrounding that occurrence is more closely balanced and therefore would require a more precise instruction on attempted murder. In Harris, defendant engaged in an angry argument with his girlfriend, the victim, over an extended period and thereafter she left the vehicle in which they had been traveling. When defendant exited the motor vehicle, she reentered the car and drove off, being wounded when defendant fired his weapon at the moving vehicle. Harris, 72 Ill. 2d 16, 377 N.E.2d 28.

After Ms. Lopez left the marital home, defendant purchased a gun either one week or one day before the shooting. Defendant carried the gun in his jacket pocket when he left his house to meet Ms. Lopez at their daughter’s school. Waiting until his daughter was safely inside the school building and Ms. Lopez was leaving the school, defendant aimed his gun directly at the victim, repeatedly fired even as the victim attempted to flee and scream for help, crawling wounded on all fours, and stopped only when the gun jammed. Considering defendant’s actions, it is most difficult, if not impossible, to believe that he intended anything other than to deliberately cause her death.

Moreover, the supreme court in Jones considered the other jury instructions given and we note that the record in the present case reveals that the trial court properly instructed the jury on the definition of attempt (Illinois Pattern Jury Instructions, Criminal, No. 6.05 (2d ed. 1981)) and the issues in attempt (Illinois Pattern Jury Instructions, Criminal, No. 6.07 (2d ed. 1981)).

For all the foregoing reasons, we find that the giving of the partial definitional instruction for murder was harmless error.

Third, defendant asserts that the trial court erred in refusing defendant’s tendered instructions on the offense of aggravated battery, a lesser included offense of attempted first degree murder. Defendant argues that such an instruction was warranted because the evidence called into question whether he possessed the specific intent to kill Ms. Lopez and because he was originally charged with two counts of aggravated battery.

Prior to trial, the State nol-prossed the aggravated battery charges, together with the aggravated unlawful restraint and unlawful use of a weapon charges.

The State contends that the trial court properly refused to instruct the jury on the lesser included offense of aggravated battery since, based on the evidence, no rational trier of fact could have found defendant guilty of that crime. We agree.

The offense of attempted murder requires the specific intent to kill the victim. (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1(a).) Aggravated battery, on the other hand, requires the intention or knowledge of the defendant that his actions, while in the commission of a battery, will cause great bodily harm. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(a).

Aggravated battery is a lesser included offense of attempted murder. (People v. Johnson (1991), 219 Ill. App. 3d 460, 464, 579 N.E.2d 978.) An instruction on a lesser included offense is not required where the evidence rationally precludes such an instruction. People v. Arnold (1991), 218 Ill. App. 3d 647, 652, 577 N.E.2d 1355; People v. Sanders (1988), 168 Ill. App. 3d 295, 305, 522 N.E.2d 715; see also People v. Fonville (1987), 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255 (where “the evidence is sufficient for a conviction on the greater offense, it is not reversible error to instruct only as to that offense”).

Intent can be established by proof of surrounding circumstances, including the character of the assault, the use of a deadly weapon and other matters from which an intent to kill may be inferred. (People v. Mitchell (1991), 209 Ill. App. 3d 562, 569, 568 N.E.2d 292.) Moreover, the very act of firing a gun at a person supports the conclusion that the shooter manifested an intent to kill. Mitchell, 209 Ill. App. 3d at 569.

We believe that the evidence in the record rationally precludes instructions on aggravated battery.

Finally, defendant asserts that the imposition of a 25-year sentence was an abuse of the trial court’s discretion because he had a history of financial stability, excellent prospects for rehabilitation, and no prior felony convictions.

The State contends that the sentence was appropriate since it falls within the statutory guidelines and the trial court detailed the factors it properly considered.

Defendant was convicted of the offenses of attempted murder and armed violence. At sentencing, the trial court merged those verdicts and entered a 25-year sentence on the conviction of attempted murder. The trial court found that the mitigating factors presented by defendant were outweighed by the aggravating factors and that the crime did not call for consideration of a minimum sentence.

A reviewing court will not disturb a sentence which falls within the statutory limits absent an abuse of discretion. (People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641; People v. Abernathy (1989), 189 Ill. App. 3d 292, 315, 545 N.E.2d 201.) The offense of attempted murder is a Class X felony (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(c)(1)), which carries a sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(a)(3)). Accordingly, defendant received a sentence 19 years more than the minimum and 5 years less than the maximum.

The record reveals that the sentencing judge considered the mitigating factors now argued by defendant, specifically noting “that the defendant is a man without a record and had a good employment record and the fact that he supported his family.” Moreover, even if the trial court does not expressly state its consideration of all mitigating factors, such consideration is presumed where, as here, the mitigating factors were argued before the court. People v. Watkins (1990), 206 Ill. App. 3d 228, 246, 563 N.E.2d 806.

In addition, the trial court articulated aggravating factors, such as the location of the shooting at an elementary grade school with children in attendance, the repeated firing of the gun, the long passage of time (four months) since defendant discovered that his estranged wife’s paramour was the biological father of her son, and the statutory aggravating factors argued by the State.

We find no reason to suggest that the appropriate factors were not considered by the trial court and no indication that the trial court abused its discretion in imposing a 25-year sentence on defendant.

Judgment affirmed.

TULLY, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE TULLY

text:
    GERALDINE KELLER et al., Plaintiffs-Appellees, v. RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—0168
    Opinion filed March 31, 1993.
    Rehearing denied May 11, 1993.

      Fagel & Haber, of Chicago (Maynard B. Russell, Steven J. Teplinski, and James A. Roth, of counsel), for appellant.
    Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde, Marshall E. Lesueur, Katrina Veerhusen, and Ava Borrasso, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This cause was originally brought as a class action for injunctive relief against defendant, alleging that the reduction in the amount of annuity benefits paid to the widows of Chicago firefighters pursuant to the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 1081/2, par. 1— 101 et seq.), and in reliance upon a municipal ordinance mandating the retirement of firemen at the age of 63, was in violation of the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. §631 et seq. (1988)). The original class representative, Vivian Kozak, was dismissed under the Illinois statute of limitations, affirmed in Kozak v. Retirement Board of Firemen’s Annuity & Benefit Fund (1988), 170 Ill. App. 3d 1095, 524 N.E.2d 1049.

The complaint was subsequently amended, naming Geraldine Keller as class representative. The trial court then dismissed the class and ordered the joinder of other plaintiffs. Defendant appeals from the trial court’s decision to invalidate a Chicago city ordinance, mandating the retirement of firefighters at the age of 63, based upon its direct conflict with ADEA, a Federal statute. The trial court held the retirement ordinance void and concluded that any reliance upon the ordinance to reduce plaintiffs’ spousal retirement benefits was similarly null and void. As a result, summary judgment was entered in favor of plaintiffs.

The five plaintiffs in this case are all widows, formerly married to City of Chicago firefighters. Upon their husbands’ deaths, plaintiffs applied for and received a “widow’s annuity” from the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago (the Retirement Board). The annuity amounted to 75% of the husband’s salary, payable until the year the husband would have reached the age prescribed for compulsory retirement had he lived, in accordance with section 6 — 140 of the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 1081/2, par. 6 — 140) (section 6 — 140). After this time, the widow’s annuity was reduced to 40% of the firefighter’s former salary. In reliance on section 25 — 37 of the Municipal Code of Chicago (Chicago Municipal Code §25 — 37 (1984)) (section 25 — 37 or the Compulsory Retirement Ordinance) requiring Chicago firefighters to retire at the age of 63 years, plaintiffs’ annuities were reduced as of the date their husbands would have reached the age of 63.

Defendant initially motioned to dismiss the complaint on the basis that it was barred by the 35-day statute of limitations under the Administrative Review Law. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) Although the trial court found that the action of the Retirement Board in reducing pension payments was a final administrative decision, thus subject to the Administrative Review Law, the trial court denied defendant’s motion to dismiss, finding that the limitations period did not commence, since plaintiffs did not receive notice of their rights to appeal the decisions of the Retirement Board.

Plaintiffs and the Retirement Board then filed cross-motions for summary judgment. The trial court initially granted summary judgment in favor of the Retirement Board, holding section 6 — 140 of the Illinois Pension Code to be a “bona fide benefit plan” under section 623(f)(2) of the ADEA and, thus, exempt from ADEA’s age prohibitions (29 U.S.C. §623(f)(2) (1988) (section 623(f)(2)). The trial court further found that section 6 — 140 was not intended to discriminate against the plaintiffs in a non-fringe-benefit aspect of the firemen’s employment relationship. Upon reconsideration, plaintiffs argued that the appropriate inquiry was not whether the Pension Code was exempt as a bona fide benefit plan under ADEA, but whether the City of Chicago’s compulsory retirement age was unlawful. The court then granted summary judgment in favor of plaintiffs, finding the Chicago Compulsory Retirement Ordinance to be in direct violation of the Federal Age Discrimination in Employment Act. The trial court held the retirement ordinance void and concluded that any reliance upon the ordinance to reduce plaintiffs’ pension benefits was similarly null and void.

The Retirement Board distributes monthly annuity payments to plaintiffs pursuant to section 6 — 140 of the Pension Code, which provides:

“The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972, and it shall be payable to the widow until the fireman, had he lived, would have attained the age prescribed for compulsory retirement.
Thereafter the widow shall receive [an] annuity of an amount equal to 40% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death.” Ill. Rev. Stat. 1983, ch. 1081/2, par. 6 — 140.

Each of the plaintiffs in this case applied for and received a widow’s annuity in accordance with section 6 — 140. Moreover, on the date that each of the plaintiffs’ husbands would have attained the compulsory retirement age of 63, their 75% annuity terminated and a 40% annuity commenced as required by section 6 — 140 and the Chicago Compulsory Retirement Ordinance, requiring their husbands to retire at the age of 63 had they lived that long. Each of the plaintiffs was notified by the Retirement Board of this reduction in pension benefits. Plaintiffs initially filed a petition with the Retirement Board, seeking an award of the 35% difference (75% less 40%) in annuity benefits and requesting that the reductions be declared void and illegal. After this petition was denied by the Board, plaintiffs filed a new complaint for administrative review, seeking review of the Retirement Board’s decision on their petition. On this complaint both sides motioned for summary judgment. Plaintiffs contended that the Compulsory Retirement Ordinance, requiring Chicago firemen to retire at the age of 63, was unlawful under ADEA, which prohibits discrimination by employers, regarding the conditions and terms of employment of their employees, on the basis of age. At the time the Retirement Board acted, the maximum age of protection under ADEA was 70.

Initially, the trial court granted the Retirement Board’s motion for summary judgment, finding that the annuity benefits were a “bona fide benefit plan,” exempt from ADEA under section 623(f)(2). Plaintiffs then filed a motion for reconsideration, arguing this exemption to be inapplicable, since plaintiffs are not “employees” of the Retirement Board, but rather surviving spouses of former employees. Moreover, plaintiffs argued that the trial court misconstrued the nature of the case by focusing on whether or not section 6 — 140 of the Pension Code was part of a bona fide benefit plan, exempt from the requirements of ADEA. Plaintiffs argued that the dispositive issue was whether the Compulsory Retirement Ordinance was unlawful and, therefore, void at the time the Retirement Board relied upon the ordinance to reduce plaintiffs’ annuity benefits.

The trial court then reversed its position, granting plaintiffs’ motion for summary judgment and finding: (1) the retirement ordinance did not meet the requirements of a bona fide plan and, thus, was not exempt from ADEA; and (2) the Compulsory Retirement Ordinance was null and void as a result of its Federal preemption by ADEA; hence, any reliance upon the ordinance to reduce plaintiffs’ annuity benefits was also null and void.

On appeal, defendant raises the following issues: (1) whether the Compulsory Retirement Ordinance, section 25 — 37 of the Municipal Code of Chicago, is preempted by the Age Discrimination in Employment Act; (2) whether section 6 — 140 of the Illinois Pension Code is a bona fide retirement and pension plan exempt under ADEA; and (3) whether plaintiffs’ claims are barred by the statute of limitations of the Administrative Review Law.

We initially consider whether plaintiffs’ claims are barred by the statute of limitations of the Administrative Review Law. Under the Administrative Review Law, a person has 35 days to appeal an administrative decision after receiving notice of the decision. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103.) In this case, Geraldine Keller received notice of the Retirement Board’s decision to reduce her annuity benefits in August of 1979. On April 29, 1983, her 75% annuity benefits were terminated. As of June 30, 1983, Keller was notified that she would be receiving reduced benefits at 40% of her spouse’s prior salary, since her spouse, if still living, would have reached the age of 63 and would have been required to retire in compliance with the Compulsory Retirement Ordinance. Since Keller did not file suit until 1986, defendant argues that this case is barred by the 35-day statute of limitations and should be dismissed.

Although more than three years elapsed between the time Keller received notice of the Retirement Board’s decision and the time of suit, this does not necessarily present a time bar to the instant action. (See Johnson v. State Employee Retirement System (1987), 155 Ill. App. 3d 616, 508 N.E.2d 351.) The court in Johnson held that notice of an administrative decision does not activate the 35-day statute of limitations where such notice fails to inform the recipient of his or her right to appeal the decision and the time for doing so. Defendant urges this court to disregard the Johnson case and follow earlier case law, which did not require notice of appeal rights. We decline to do so.

The initial letter received by Keller in 1979 advised her that her 75% widow’s compensation annuity would cease after April 29, 1983, and further, that she could apply for a reduced 40% annuity to be paid to her after April 1983. After Keller’s application for the 40% annuity benefits was approved by the Retirement Board on June 22, 1983, Keller received the letter on June 30, 1983, informing her that her application was granted “at the regular meeting of this Board held on Wednesday, June 22, 1983.” Similar letters were sent to the other plaintiffs in this case. Neither of the letters mentioned the Retirement Board’s administrative decision to terminate plaintiffs’ 75% widow’s annuity.

We find that the letters mailed to plaintiffs by the Retirement Board did not satisfy the minimal due process requirements of fair and adequate notice. First, plaintiffs were never actually notified of the Retirement Board’s decision to terminate their 75% annuity benefits, which calls into question the applicability of the Administrative Review Law in the first instance. The review act “contemplates some sort of adversarial proceeding, involving the parties affected, out of which will come a decision by an agency and a record upon which the decision was based.” (Sturm v. Block (1979), 72 Ill. App. 3d 306, 311, 390 N.E.2d 912.) Secondly, even if the Administrative Review Law does apply, plaintiffs received no notice of their right to appeal the Retirement Board’s decision within 35 days. Under these circumstances, we find that the 35-day statute of limitations under the Administrative Review Law does not bar plaintiffs’ claims.

We next consider whether section 6 — 140 of the Pension Code, which incorporates section 25 — 37 of the Municipal Code of Chicago, is prohibited by ADEA. Section 6 — 140 of the Illinois Pension Code provides for an annuity to widows of firemen “payable until the fireman, had he lived, would have attained the age of compulsory retirement. *** Thereafter the widow shall receive annuity of an amount equal to 40% ***.” (Ill. Rev. Stat. 1983, ch. 1081/2, par. 6— 140.) The compulsory retirement age of firemen is governed by section 25 — 37 of the Chicago Municipal Code which, prior to November 14, 1983, required firefighters to retire at the age of 63. Section 25— 37 was later amended, raising the retirement age to 70 in accordance with ADEA. In 1986 ADEA was amended, adding an exemption for police and firemen discharged “pursuant to a bona fide retirement *** plan.” (29 U.S.C. §623(i)(l) (1988).) In response to this amendment, section 25 — 37 was again changed in 1986, reinstating compulsory retirement at age 63.

Defendant argues that the firemen’s pension plan, or section 6— 140 of the Illinois Pension Code, is exempt under section 623(f)(2) of ADEA, so long as the plan was not used to intentionally discriminate on the basis of age in non-fringe-benefit aspects of employment such as hiring, firing, wages and salaries. Defendant posits that the widows’ annuity plan is a fringe benefit, exempt under ADEA as a “bona fide employee benefit plan,” barring plaintiffs’ case as a matter of law.

Under section 4(a)(1) of ADEA, it is unlawful for an employer
“to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a)(l) (1988).

Notwithstanding this general prohibition of ADEA, it is not unlawful for an employer

“to observe the terms of *** any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such *** plan shall require or permit the involuntary retirement of any individual *** because of the age of such individual.” (Emphasis added.) 29 U.S.C. §623(f)(2) (1988).

For a plan to qualify as a “bona fide benefit plan” under section 623(f)(2), four conditions must be satisfied: (1) it must be the sort of plan described in the section; (2) it must be “bona fide”-, (3) the exempted action must be in observance of the plan; and (4) the plan must not be a subterfuge to evade the purposes of ADEA. (EEOC v. County of Orange (9th Cir. 1988), 837 F.2d 420.) The court below initially held section 6 — 140 of the Pension Code to be exempt as a bona fide benefit plan under ADEA. Specifically, the trial court stated that section 6 — 140 was not enacted as a subterfuge to evade the provisions of ADEA and, moreover, that section 6 — 140 provides a fringe benefit to employees. ADEA only prohibits discrimination with regard to nonfringe benefits, such as hiring, firing and wages. See Public Employees Retirement System v. Betts (1989), 492 U.S. 158, 106 L. Ed. 2d 134, 109 S. Ct. 2054, on remand, Betts v. Hamilton County Board of Mental Retardation & Developmental Disabilities (6th Cir. 1990), 897 F.2d 1380.

Defendant cites Betts, as dispositive of whether section 6 — 140 is exempt from the prohibitions of ADEA. In Betts, a retirement system provided disability retirement benefits only to employees under the age of 60. The court held a benefit plan, which varied benefits by age, to be illegal only if intended to discriminate against older employees regarding nonfringe benefits, such as hiring, firing, compensation or some other term or condition of employment. While the Betts court concluded that the plan at issue was a “bona fide plan” within the exemption, it did not consider whether the plan fell within the exception to the exemption. A bona fide plan is exempt, except if it requires involuntary retirement because of age. On remand, the sixth circuit ultimately held that the Betts plan did not qualify for an exemption, since the employee was forced into early retirement and forced to accept a less desirable retirement plan because of her age.

Similarly, in the instant case, while the trial court found section 6 — 140 of the Pension Code to be a bona fide benefit plan, exempt under ADEA, on reconsideration the court held the exemption to be inapplicable, since the Pension Code incorporated section 25 — 37 of the Municipal Code, which mandated the retirement of firefighters at the age of 63. The trial court also held the compulsory retirement law void as a matter of law since it required retirement at 63, when ADEA had extended protection to the age of 70:

“Although the ordinance is not a subterfuge for the purposes of the ADEA [it was enacted prior to ADEA], the ordinance falls outside of the exception because it clearly requires the involuntary retirement of individuals based on age. The court, therefore holds that the Compulsory Retirement Ordinance, contained in section 25 — 37 of the Chicago City Code, is void as applied to reduce plaintiffs-widows’ annuity benefits.
If the Compulsory Retirement Ordinance does not satisfy the requirements of ADEA, then it follows that any reliance on the Ordinance for the purpose of reducing plaintiffs’ benefits would be improper; in the case of the firefighter who lives to the date of mandatory retirement.”

Under the supremacy clause of the United States Constitution, Federal law preempts local ordinances such as the Chicago city municipal code. (U.S.C.A. Const., art. VI, cl. 2.) Federal courts, addressing ADEA claims involving firefighters and police officers, have invoked the supremacy clause to invalidate State and local mandatory retirement laws which are in conflict with ADEA. See, e.g., Orzel v. City of Wauwatosa Fire Department (7th Cir. 1983), 697 F.2d 743, cert, denied (1983), 464 U.S. 992, 78 L. Ed. 2d 680, 104 S. Ct. 484; EEOC v. County of Allegheny (3d Cir. 1983), 705 F.2d 679; Aaron v. Davis (E.D. Ark. 1976), 414 F. Supp. 453.

We find the Chicago Compulsory Retirement Ordinance, requiring retirement at age 63, was void and unenforceable during the time in which plaintiffs’ widow’s benefits were reduced. During this time, ADEA prohibited compulsory retirement prior to the age of 70. Although ADEA was later amended to create an exception for firefighters, this is not relevant to the actions of the Retirement Board prior to the amendment in 1986. Moreover, because we find that the retirement ordinance was unlawful, any reliance upon this ordinance by the Retirement Board was also unlawful at the time plaintiffs’ benefits were reduced. We reject defendant’s argument that section 6— 140 of the Illinois Pension Code is per se exempt from the provisions of ADEA. While section 6 — 140 appears cartes sur table to be a bona fide benefit plan, it incorporates a compulsory retirement ordinance which, at the time it was applied to reduce plaintiffs’ benefits, was in violation of ADEA. There is nothing “bona fide” about a plan which conveniently circumvents the anti-age discrimination provisions of our Federal law.

For all of the foregoing reasons, the decision of the circuit court of Cook County is hereby affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.

      Geraldine Keller’s widow’s annuity was reduced on April 30, 1983, the date her husband, Edwin L. Keller, had he lived, would have attained the age of 63.
      Vivian D. Nolan’s widow’s annuity was reduced on February 2, 1982, the date her husband, Thomas J. Nolan, had he lived, would have attained the age of 63.
      Cora G. Shankman’s widow’s annuity was reduced on September 30, 1982, the date her husband, Leonard Shankman, had he lived, would have attained the age of 63.
      Margaret Spellman’s widow’s annuity was reduced on February 21, 1982, the date her husband, John P. Spellman, had he lived, would have attained the age of 63.
      Bettie Ann Wilkes’ widow’s annuity was reduced on February 19, 1982, the date her husband, George A. Wilkes, had he lived, would have attained the age of 63.

      As originally enacted, ADEA prohibited compulsory retirement before the age of 65. (29 U.S.C. §§623, 631 (1988) (eff. June 12, 1968).) In 1974, coverage of ADEA was extended to State and local governments. (29 U.S.C. §630(b) (Supp. 1974) (current version at 29 U.S.C. §630 (Supp. 1990)).) Effective January 1, 1979, ADEA was amended to raise the age of protection to 70. (29 U.S.C. §631(a) (Supp. 1979) (current version at 29 U.S.C. §631 (Supp. 1990)).) The Retirement Board reduced plaintiffs’ annuity benefits during the period of February 2,1982, to April 30,1983.