text:
      In re SHAWN B. (The People of the State of Illinois, Petitioner-Appellee, v. Charles B. et al., Respondents-Appellants).
    First District (3rd Division)
    No. 1-89-3247
    Opinion filed August 14, 1991.

      Patrick T. Murphy, Public Guardian, of Chicago, for appellant Shawn B.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court;

The public guardian, on behalf of respondent Shawn B., appeals from an order of the circuit court of Cook County, juvenile division, which granted petitioner the People of the State of Illinois’ (the State’s) supplemental petition to vacate the Department of Children and Family Services’ (DCFS’) guardianship of Shawn B., terminate the court’s wardship and close the case. On appeal, the public guardian contends that (1) because Shawn B. was not served with summons and a copy of the supplemental petition, the juvenile court lacked jurisdiction to terminate its wardship, vacate DCFS’ guardianship and close the case; and (2) the court’s order to close Shawn B.’s case was not in his best interest. We affirm as modified.

Shawn B. was born on July 30, 1971. On December 16, 1986, when Shawn was 15 years of age, the State filed a “Petition for Adjudication of Wardship” in the interest of Shawn B. The court appointed an attorney and guardian ad litem to represent Shawn. Shawn’s parents were present in court and represented by counsel. On that date, an order for temporary custody was entered which found that “(1) there is probable cause to believe that Shawn B. is a minor who is neglected; (2) it is a matter of urgent and immediate necessity that a temporary custodian of the person of the minor be appointed for the protection of the minor; and (3) reasonable efforts have been made to avoid removing the minor from the parental home.” The order appointed DCFS as Shawn B.’s temporary guardian. Following the hearing, Shawn B. was placed in DCFS custody.

The court file reflects that the case was continued on two occasions, once in February and once in March of 1987. The next substantive hearing was held on April 30, 1987. Following that hearing, the court ordered Shawn B.’s placement in the Glen Mills School in Pennsylvania. The case was continued to October 19, 1987. On October 19, 1987, the court file indicates that the case was continued until January 20, 1988, for return of proof of service of process upon Shawn B. The State filed a copy of the summons on October 21, 1987. On January 20, 1988, the case was continued for trial on February 5, 1988. The court file does not indicate what, if any, parties were present in court on January 20, 1988. In addition, the record does not indicate if Shawn or his parents were ever actually served with notice of the February 5,1988, hearing.

On February 5, 1988, a dispositional hearing was held. Following the hearing, the court found Shawn B. to be a neglected minor and ruled that it was in his best interest to be made a ward of the court. The court named DCFS as Shawn’s legal guardian. The court’s order provided for the continuation of the guardianship until Shawn B. reached the age of 21, unless otherwise ordered. Thereafter, the case was transferred to the guardianship calendar.

On October 13, 1989, DCFS filed a supplemental petition requesting that its guardianship of Shawn B. be terminated, the court’s wardship vacated and the case closed. The hearing on the petition was set for October 27, 1989. A summons addressed to Shawn B. was served upon Shawn B.’s mother at her home. The return of summons indicates that service was substituted by leaving a copy of the summons and complaint at the respondent’s “usual place of abode.” However, the remarks portion of the summons indicates that Shawn’s mother told the process server that she was unaware of Shawn’s whereabouts.

At the hearing held on October 27, 1989, Shawn’s guardian ad litem, the public guardian, objected to the proceedings and stated that his client was not present and that his whereabouts were unknown. The public guardian informed the court that the last time that he had spoken with Shawn B. was in February of 1988. The court overruled the public guardian’s objection and proceeded to trial.

Robert Brown, a DCFS child welfare specialist, testified that Shawn B. was placed in the Glen Mills School on May 22, 1987, and that he ran away from the school on September 1, 1988. Shawn B.’s next placement was with the Methodist Youth Services Program. Mr. Brown testified that Shawn B. stayed until January 24, 1989, and failed to obtain an appropriate job placement through the program. He further testified that Shawn ran away when he was terminated from Methodist Youth Services and the RESC program.

On May 2, 1989, Shawn turned himself in to DCFS and was placed in a shelter until he ran away on May 27. Shawn returned to the shelter on June 15 and remained until he ran away on June 17, 1989. From June 17 through July 1, 1989, Shawn remained on the streets. Thereafter, Shawn returned to DCFS and was placed in Herrick House, a DCFS group home. During this time period Shawn was accepted into the Austin Avenue Group Home. However, he ran away and remained at large from August 15 until October 4, 1989, when he turned himself in to the DCFS shelter, remained for two days and ran away again. On October 27, 1989, when the hearing on the State’s supplemental petition to terminate guardianship and vacate wardship was conducted, Shawn’s whereabouts were unknown.

Following the child welfare specialist’s testimony, the court made the following findings:

“Based on what I have heard that [sic] it is my position that the petition for supplemental relief is granted. When you contact him bring the case back into court. Guardianship is terminated, wardship is vacated and case closed.”

This appeal followed.

On appeal the public guardian contends that because Shawn B. was not personally served with summons and a copy of the supplemental petition, the juvenile court lacked jurisdiction to vacate its wardship, terminate DCFS’ guardianship and close the case. We disagree.

Here, the public guardian is objecting to the trial court’s jurisdiction to enter the order which granted the State’s supplemental petition on September 27, 1989. The public guardian did not object to the court’s February 5, 1988, order which found Shawn to be neglected, adjudicated him a ward of the court and appointed DCFS as his legal guardian. Thus, objection to the jurisdiction of the court to enter that order is waived. In re L.M. (1989), 189 Ill. App. 3d 392, 397, 545 N.E.2d 319, 323.

Jurisdiction of persons under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) is regulated by that statute and is one of the conditions precedent to the exercise of subject matter jurisdiction. (In re L.E.J. (1983), 115 Ill. App. 3d 993, 997, 451 N.E.2d 289, 292.) Subject matter jurisdiction is the power of the court to adjudicate; personal jurisdiction is the ability to exercise that power as to particular individuals. Lack of personal jurisdiction does not deprive the court of subject matter jurisdiction, only the ability to exercise its power upon those who have not been brought into court by summons or otherwise. (In re L.E.J., 115 Ill. App. 3d at 997.) Lack of personal jurisdiction may yield a voidable order, but such an order is not void for lack of subject matter jurisdiction. In re T.M.F. (1987), 155 Ill. App. 3d 1026, 1029, 508 N.E.2d 1160, 1162.

Section 2 — 15 of the Juvenile Court Act of 1987 provides in pertinent part:

“Summons. (1) When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition, except that summons need not be directed to a minor respondent under 8 years of age for whom the court appoints a guardian ad litem if the guardian ad litem appears on behalf of the minor in any proceeding under this Act.
(5) Service of a summons and petition shall be made by: (a) leaving a copy thereof with the person summoned at least 3 days before the time stated therein for appearance; (b) leaving a copy at his usual place of abode with some person of the family, of the age of 10 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the person summoned at his usual place of abode, at least 3 days before the time stated therein for appearance; or (c) leaving a copy thereof with the guardian or custodian of a minor, at least 3 days before the time stated therein for appearance.
(7) The appearance of the minor’s legal guardian or custodian, or a person named as a respondent in a petition, in any proceeding under this Act shall constitute a waiver of service of summons and submission to the jurisdiction of the court ***.” Ill. Rev. Stat. 1989, ch. 37, par. 802-15.

Where a representative of the DCFS, which is the minor’s legal guardian, appears and participates in the trial court proceedings, the legal guardian submits, through the appearance of the DCFS representative, to the jurisdiction of the court. (In re J.L.S. (1989), 188 Ill. App. 3d 815, 816, 544 N.E.2d 815, 816.) In addition, where a juvenile appears in court and participates in the proceedings, he waives the formality of service of process and voluntarily submits to the jurisdiction of the court. (In re T.O. (1989), 187 Ill. App. 3d 970, 973-74, 543 N.E.2d 969, 972.) Further, where a guardian ad litem is appointed and appears at the proceedings on behalf of a minor and the minor also appears in the initial hearing, although not at later hearings, no useful legal purpose is served by requiring further notice to the minor and remanding the matter for additional proceedings. In re R.W. (1988), 176 Ill. App. 3d 868, 874, 531 N.E.2d 924, 928.

In the instant case, the State attempted to inform Shawn B. of the hearing on the supplemental petition by serving him at his parents’ address. However, Shawn B.’s mother informed the process server, who in turn noted on the summons return form, that Shawn B.’s whereabouts were unknown. Clearly, service of process upon Shawn B. at his parents’ home was inappropriate because it was not his usual place of abode. (United Bank v. Dohm (1983), 115 Ill. App. 3d 286, 289-91, 450 N.E.2d 974, 976-78.) Section 2-16 of the Juvenile Court Act of 1987 provides that “if service cannot be made because the whereabouts of a respondent are unknown, service may be made by publication.” (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 16(2).) Since Shawn’s whereabouts were unknown on October 20, 1989, when service of process was attempted, the State should have followed the provisions of the Act for service of summons by publication.

However, when the original petition for adjudication of wardship was filed on December 16, 1986, Shawn B. and his parents, as well as their respective attorneys, were present in court. At that time, Shawn B. submitted to the juvenile court’s in personam jurisdiction. Further, Shawn’s guardian, DCFS, by and through its child welfare specialist, submitted to the court’s jurisdiction by appearing and testifying at the hearing on the supplemental petition. The minor’s guardian ad litem also appeared on his behalf.

In light of these facts, we find that the State’s failure to serve Shawn notice by publication did not substantially prejudice his interests. We further find that Shawn submitted to the personal jurisdiction of the court both through his own appearance at the initial hearing in this matter and through his legal guardian’s appearance at the hearing on the supplemental petition. We therefore conclude that the trial court’s order is not void for lack of personal jurisdiction.

On the issue of subject matter jurisdiction, section 2 — 21 of the Juvenile Court Act provides:

“Findings and adjudication. (1) After hearing the evidence the court shall make and note in the minutes of the proceedings a finding of whether or not the minor is abused, neglected or dependant. If it finds that the minor is not such a person, the court shall order the petition dismissed and the minor discharged.
(2) If the court finds and notes in its findings that the minor is either abused or neglected or dependent, the court shall then set a time for a dispositional hearing to be conducted under Section 2 — 22 at which hearing the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court.” Ill. Rev. Stat. 1987, ch. 37, par. 802 — 21.

The Act requires the court to note in its findings whether the respondent is abused or neglected before proceeding to an adjudication of wardship and disposition. (In re R.R. (1987), 159 Ill. App. 3d 313, 319, 512 N.E.2d 1058, 1062.) The language of the Act clearly exhibits the legislative intent that only a finding of either abuse, neglect or dependency must be specifically noted or recorded in the trial court’s findings. This finding is jurisdictional and without it the trial court lacks jurisdiction to proceed to an adjudication of wardship. (In re R.R., 159 Ill. App. 3d at 319-20, 512 N.E.2d at 1062-63.) No other step under the Juvenile Court Act is jurisdictional. Moreover, once a minor is found to be either abused, neglected or dependent and placed in the custody of DCFS, the circuit court maintains jurisdiction over the case. In re S.J.K. (1986), 149 Ill. App. 3d 663, 670, 500 N.E.2d 1146, 1151; In re Johnson (1985), 134 Ill. App. 3d 365, 368-69, 480 N.E.2d 520, 524; Ill. Rev. Stat. 1987, ch. 37, pars. 802-24, 802-25, 802-26, 802-28.

It follows, therefore, that the court had and maintained jurisdiction over Shawn B.’s case at all times after February 5, 1988, when it entered an order finding him to be a neglected minor and making him a ward of the court. Once the court acquired jurisdiction to enter the dispositional order on February 5, 1988, it had jurisdiction to subsequently modify that order on October 27, 1989. We therefore conclude that the juvenile court possessed and properly exercised subject matter jurisdiction in this action.

The public guardian next contends that the trial court’s order which terminated wardship, vacated guardianship and closed Shawn B.’s case was not in his best interest.

The Juvenile Court Act of 1987 provides in part:

“(1) The purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his or her own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; *** and, when the minor is removed from his or her own family, to secure for him or her custody, care and discipline as nearly as possible equivalent to that which should be given by his or her parents ***.
* * *
(3) * * *
(b) Every child has a right to services necessary to his or her proper development, including health, education and social services.” (Ill. Rev. Stat. 1987, ch. 37, pars. 801 — 2(1), (3)(b).)

Juvenile proceedings are to be administered in a spirit of humane concern for the minor and to promote both the welfare of the minor and the best interest of the community. In re W.W. (1983), 97 Ill. 2d 53, 58, 454 N.E.2d 207, 210.

Section 2 — 31 of the Act provides:

“Duration of wardship and discharge of proceedings. (1) All proceedings under this Act in respect of any minor automatically terminate upon his attaining the age of 21 years.
(2) Whenever the court finds that the best interests of the minor and the public no longer require the wardship of the court, the court shall order the wardship terminated and all proceedings under this Act respecting that minor finally closed and discharged. The court may at the same time continue or terminate any custodianship or guardianship theretofore ordered but such termination must be made in compliance with Section 2 — 28.” Ill. Rev. Stat. 1987, ch. 37, par. 802 — 31.
Section 2 — 28 provides in part:
“(3) *** In the event that the minor has attained 18 years of age and the guardian or custodian petitions the court for an order terminating his guardianship or custody, guardianship or custody shall terminate automatically 30 days after receipt of the petition unless the court orders otherwise.” Ill. Rev. Stat. 1987, ch. 37, par. 2-28(3).

Here, following the testimony of the DCFS child welfare worker, the court made the following observations:

“Now the testimony that I have heard is that this child is not ready to become or to be let alone on his own independently. The child continues to come back to the care of DCFS. He is 18 years old. He can drive. He can vote. He can join the armed services.”

The court then proceeded to terminate DCFS’ guardianship, vacate its wardship and close the case. The court apparently based its decision on the fact that although Shawn, like most young people his age, was evidently ambivalent about his ability to survive independently, by virtue of his age, he possessed many if not most of the adult legal privileges. However, the court also stated, “[w]hen you contact him, bring the case back into court.” By this statement, the court recognized the possibility that Shawn B. could, at some future date prior to his 21st birthday, require further care, protection or education and its dismissal of the case was therefore without prejudice.

There was no evidence in the record to indicate that Shawn B. possessed the skills and autonomy to successfully undertake independent living. On the contrary, the evidence demonstrates that DCFS’ placement of Shawn in several different schools, programs and shelter care homes was unsuccessful. According to the DCFS child welfare specialist, Shawn failed to obtain either legitimate employment or a permanent residence. Thus, while Shawn at age 18 could vote, drive a car, and join the armed services, he was unable to find and hold steady employment or maintain a permanent residence. Unfortunately, Shawn is not alone. It has been reported that a statewide survey conducted by Bradley University in Peoria counted an estimated 11,700 homeless youths through age 17 on a single night in February 1989. The survey found 6,922 homeless youths in Chicago. Most were school age, but only three in five were attending classes. Jouzaitis, After Day of Studies, A Homeless Night, Chicago Tribune, May 5,1991, §2, at 1.

Turning Shawn B. and other young people like him out to fend for themselves merely because they have reached the age of 18, without ensuring that they are prepared to become useful and independent members of society, does an injustice to both the minor and society at large and fails to satisfy the court’s statutory obligation to act in the best interest of the child. Under the circumstances, the court here should grant leave to file a petition for the reinstatement of the court’s wardship and DCFS’ guardianship if the petition is filed before Shawn B. reaches the age of 21.

Accordingly, the order of the circuit court is modified to allow the public guardian, on behalf of Shawn B., leave to petition the juvenile court for reinstatement of its wardship, and DCFS’ guardianship, anytime prior to Shawn’s 21st birthday. The order of the circuit court is affirmed as modified.

Affirmed as modified.

CERDA, P.J., and GREIMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    WEIL, FREIBURG AND THOMAS, P.C., Plaintiff-Appellant, v. SARA LEE CORPORATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-89-3163
    Opinion filed August 12, 1991.

      Weil, Freiburg, Thomas & Petersen, P.C., of Chicago (Charles P. Fox, of counsel), for appellant.
    Jenner & Block, of Chicago (Marguerite M. Tompkins and Christopher D. Liguori, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Weil, Freiburg & Thomas, P.C. (WF&T), a law firm, appeals orders of the circuit court of Cook County dismissing two counts of its amended complaint, dismissing its motion to disqualify defense counsel and entering summary judgment in favor of defendants Sara Lee Corporation (Sara Lee) and Twin Rivers Transportation Company (Twin Rivers) on WF&T’s second amended complaint.

The record on appeal indicates the following. In 1987 and 1988, Lyle Braun, Linda Karvunis and Robert Fischer (the Braun group) were employed as the general manager, office manager and operations manager, respectively, of Twin Rivers. In August 1987, Sara Lee and the Braun group began discussing a management buy out of Twin Rivers. On October 26, 1987, Braun drafted a memorandum on Twin Rivers letterhead to William Doane, Braun’s supervisor at Sara Lee. This memorandum sought to confirm various understandings and agreements regarding the proposed sale of Twin Rivers. One of the numbered items in the memorandum reads as follows:

“4) You have given us authority to secure legal assistance as required to develop our business plan and complete the transaction. Again, this expense will be born [sic] by Twin Rivers as the costs are incurred.”

Doane allegedly made handwritten comments on the memorandum and returned it to Braun. Copies of this memorandum in the record contain a handwritten comment next to paragraph number four reading “Yes if within reason.” The memorandum was returned with a cover sheet on Sara Lee letterhead dated October 31, 1987. This cover sheet purports to be from William Doane to Lyle Braun and is signed “Bill Doane.” The cover sheet states in part:

“Thanks for the memo regarding TRTC [Twin Rivers] and KOSL [Kitchens of Sara Lee]. I have indicated my comments on the attached copy. I think the on-going relationship is accurately described by your memo, tempered "with my comments.
According to Linda and Bob Fischer, it sounds like business is doing well. We have a 9:00 a.m. appointment with Jim Carlson to discuss the TRTC buy-out proposal.”

The memorandum and cover sheet will be referred to collectively hereinafter as “the Doane-Braun memoranda.”

On or about November 7, 1987, the Braun group approached Jeffery Taylor, then a member of plaintiff WF&T, regarding the possibility of representing them in the transaction. Taylor was shown a copy of the Doane-Braun memoranda. WF&T then agreed to represent the Braun group at the firm’s customary hourly rates.

From November 1987 through April 1988, the Braun group and Sara Lee engaged in negotiations regarding the proposed sale of Twin Rivers. The Braun group was represented by WF&T; Sara Lee was represented by in-house counsel. Numerous negotiation sessions were held and various proposals were exchanged. The parties discussed the issue of professional fees. Sara Lee offered to pay $5,000, which was to include legal fees, bank fees and accounting fees. During this negotiating period, WF&T allegedly sent monthly invoices to Twin Rivers or Sara Lee. Twin Rivers paid WF&T $15,906.61 in a timely manner.

The management buy out of Twin Rivers was never completed. On April 5, Sara Lee came to believe that the Braun group had spent substantial amounts of Twin Rivers funds for the sole benefit of Twin Rivers in anticipation of the sale. Twin Rivers previously had an average monthly profit of $10,000; Sara Lee believed that expenditures for trucking equipment, supplies, marketing materials, computer equipment and season tickets for the Chicago Bears 1988 season, among other items, would result in a one-month loss of $180,000.

In May 1988, WF&T submitted invoices totalling $2,943.96 to Twin Rivers. In June 1988, WF&T received a letter from defendants’ outside counsel, which states in part:

“You were retained by Lyle Braun, Linda Karvunis and Robert Fischer to represent them in connection with their proposed acquisition of Twin Rivers Transportation Company (‘TRTC’). My clients agreed only to pay your clients’ reasonable attorneys’ fees incurred in connection with the acquisition. The expenses that your clients incurred exceeded any reasonable amount. Indeed, that issue was the subject of negotiations between the parties on April 5, when my clients first learned of the legal expenses that your clients had incurred. Accordingly, you should look to your clients for payment of your most recent statement.
[In-house counsel’s] letter of April 7, 1988 does not acknowledge any obligation by Sara Lee or Twin Rivers to pay legal expenses incurred prior to that date. It merely placed you on notice that under no circumstances would Sara Lee or Twin Rivers pay any further expenses incurred by your clients.” (Emphasis in original.)

On August 11, 1988, WF&T filed a complaint against Twin Rivers and Sara Lee seeking the unpaid charges. Defendants moved to dismiss the complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). The trial court denied the motion, but dismissed the complaint sua sponte pursuant to section 2 — 612 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612) and granted WF&T leave to file an amended complaint.

WF&T filed an amended complaint on January 5, 1989, alleging: (I) Twin Rivers breached an oral contract with WF&T; (II) Sara Lee and Twin Rivers were estopped from asserting that Twin Rivers was not bound to pay legal fees to WF&T; and (III) WF&T was a third-party beneficiary of an agreement between Sara Lee or Twin Rivers and the Braun group to pay WF&T’s legal fees. Defendants moved to dismiss all three counts of the amended complaint pursuant to section 2 — 615; on March 31, 1989, the trial court dismissed counts II and III with prejudice. The court also struck count I of the complaint, but granted WF&T leave to replead an oral contract or estoppel theory against Twin Rivers. All claims against Sara Lee were dismissed at this point.

WF&T timely filed a two-count second amended complaint against Twin Rivers, alleging breach of oral contract and estoppel. In response, Twin Rivers filed a motion for summary judgment on both counts pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005), attaching excerpts of depositions and trial testimony taken in a separate action in which the Braun group unsuccessfully attempted to compel the sale of Twin Rivers. The trial court ordered Twin Rivers to file an answer to the second amended complaint in order to frame the issues. WF&T filed its memorandum in opposition to summary judgment, attaching an affidavit of Taylor concerning the circumstances under which WF&T was hired.

In the interim, WF&T moved to disqualify Twin Rivers’ outside counsel pursuant to section 5 — 101(b) of the Illinois Code of Professional Responsibility (107 Ill. 2d 5 — 101(b) (repealed and superseded by new rules effective August 1, 1990)), which prohibited an attorney from participating as an advocate in cases where she ought to be called as a witness. WF&T argued that in the June 1988 letter to WF&T, one of the attorneys in the outside firm admitted having knowledge of a contract; hence, WF&T would be required to depose her and call her as a witness at trial. On September 29, 1989, the trial court denied this motion, but stated that WF&T could reassert the motion if the case should go to trial.

On October 26, 1989, the trial court granted Twin Rivers’ motion for summary judgment on both counts and dismissed WF&T’s second amended complaint with prejudice.

I

On appeal, plaintiff WF&T first challenges the dismissal of counts II and III of its first amended complaint. A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 565 N.E.2d 654, 657.) Although a motion to dismiss does not admit conclusions of law or fact unsupported by the specific factual allegations in the complaint, all well-pleaded facts in the attacked portions of the complaint are taken as true; on appeal, this court must decide whether the allegations in the first amended complaint, interpreted in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be granted. Burdinie, 139 Ill. 2d at 505, 565 N.E.2d at 657.

Count II of the first amended complaint sounds in estoppel. “Apparent authority,” or “authority by estoppel,” flows from the acts of a principal and thus differs from “implied authority,” which flows from circumstantial evidence. (Northern Trust Co. v. St. Francis Hospital (1988), 168 Ill. App. 3d 270, 278, 522 N.E.2d 699, 704.) Apparent authority arises when a principal creates, by its words or conduct, the reasonable impression in a third party that the agent has the authority to perform a certain act on its behalf. A principal that places an agent in a situation where the agent may be presumed to have authority to act is estopped as against a third party from denying the agent’s apparent authority. (Crawford Savings & Loan Association v. Dvorak (1976), 40 Ill. App. 3d 288, 292-93, 352 N.E.2d 261, 264.) The elements of apparent agency are: (1) the principal’s consent to or knowing acquiescence in the agent’s exercise of authority, (2) the third party’s knowledge of the facts and good-faith belief that the agent possessed such authority, and (3) the third party’s detrimental reliance on the agent’s apparent authority. Northern Trust Co., 168 Ill. App. 3d at 278, 522 N.E.2d at 704.

As to the existence of an agency, a corporate subsidiary may act as the agent of its parent corporation if the elements of agency are proved. (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 205, 412 N.E.2d 1037, 1055.) Agency can be proved by inference and circumstantial evidence. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806.) A presumption of agency may arise from an employer-employee relationship. (See Bell v. Reid (1983), 118 Ill. App. 3d 310, 314, 454 N.E.2d 1117, 1120.) Neither the fact nor the extent of an agency can be proved solely by past declarations of the purported agent; agency must normally be established by evidence of acts of the principal or the statements of the principal to the agent or third persons. (Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 42, 343 N.E.2d 207, 210.) A person can be an agent for two persons at the same time so long as the dual agency is revealed to both parties. Warner v. Young (1923), 308 Ill. 239, 241, 139 N.E. 393, 394.

Count II of the first amended complaint alleged that the members of the Braun group were employees of Twin Rivers, a wholly owned subsidiary of Sara Lee. WF&T also alleged that William Doane, a superior of the members of the Braun group at Sara Lee, authorized the Braun group to retain legal counsel at Twin Rivers’ expense, within reason. These allegations, viewed in the light most favorable to plaintiff, are sufficient to survive a section 2 — 615 motion on whether an agency existed.

Count II also alleged that Sara Lee consented to or knowingly acquiesced in the hiring of WF&T at Twin Rivers’ expense. WF&T alleged that Sara Lee knew of the agreement that Twin Rivers would pay the Braun group’s reasonable legal expenses, knew that the Braun group had retained counsel for the negotiations and knew that the legal fees were being paid by Twin Rivers. While such allegations may be conclusory in many cases, the record in this case indicates that WF&T incorporated two exhibits attached to the complaint: the Doane-Braun memoranda and the June 1988 letter from defendants’ outside counsel. Therefore, the allegations were sufficient in this case.

As to the issue of WF&T’s knowledge and good-faith belief that the agents acted within their authority, we note that under Illinois law, a third party dealing with an agent has the duty to use reasonable diligence to ascertain the scope of the agent’s authority. (E.g., Chalet Ford, Inc. v. Red Top Parking, Inc. (1978), 62 Ill. App. 3d 270, 274, 379 N.E.2d 88, 91.) This duty may be more clear where the agent is also acting as his own agent, due to the suspicious nature of the transaction. (See Restatement (Second) of Agency §165, Comment c (1958). But see Restatement (Second) of Agency §165, Comment a (1958) (section 165 assumes there is neither actual nor apparent authority).) However, apparent authority may exist even when an agent or dual agent is adverse to the principal. See Hannah v. Hannah (1968), 94 Ill. App. 2d 372, 236 N.E.2d 783 (opposing counsel in divorce action could act as agent); see also Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 539-40, 494 N.E.2d 900, 905 (suggesting potential conflict of interest had nothing to do with authority of agent); cf. Blanchard v. Lewis (1953), 414 Ill. 515, 524, 112 N.E.2d 167, 172 (self-dealing does not violate duty to principal if agent makes full disclosure); Restatement (Second) of Agency §390, Comment a (1958) (“[o]ne employed as agent violates no duty to the principal by acting for his own benefit if he makes a full disclosure of the facts to an acquiescent principal and takes no unfair advantage of him”).

In this case, WF&T alleged that Taylor asked the Braun group for proof of its authority. The Braun group allegedly produced the Doane-Braun memoranda, which allegedly shows that Sara Lee had authorized the Braun group, as agents of Sara Lee or Twin Rivers, to retain counsel at Twin Rivers’ expense. These allegations, viewed in the light most favorable to WF&T, are sufficient to survive a section 2 — 615 motion regarding WF&T’s diligence, knowledge of facts and good-faith belief in the agents’ authority.

Finally, WF&T has alleged sufficient facts on the issue of detrimental reliance. WF&T alleged that their reliance on the Braun group’s authority has resulted in over $2,000 of unpaid services. Thus, count II of the first amended complaint, viewed in the light most favorable to WF&T, alleged that WF&T had a reasonable impression that the Braun group was authorized. Regardless of what defendants may be able to show later, count II alleged facts sufficient to survive a section 2 — 615 motion.

WF&T next challenges the dismissal of count III of the first amended complaint, which alleged that WF&T is a third-party beneficiary of the agreement between Sara Lee and the Braun group reflected in the Doane-Braun memoranda. Defendants argue that summary judgment was proper since there was no contract and even if there were a contract, WF&T lacked standing to enforce it.

The first question is whether WF&T sufficiently alleged the existence of a contract. This question is answered by examining whether the traditional elements of contract formation were alleged. (Cf. Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, 318.) Letters embodying preliminary negotiations are enforceable in contract if it is clear that the ultimate contract will be substantially based on the terms of the letters and the parties intended to be bound. (See Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 287-89, 565 N.E.2d 990, 993-94 (letter of intent).) If the language of an alleged contract is ambiguous regarding the parties’ intent, the interpretation of the document is a factual question which must survive a motion to dismiss. Quake Construction, Inc., 141 Ill. 2d at 288-89, 565 N.E.2d at 994.

Viewing the allegations in the light most favorable to WF&T, Braun’s memorandum could be construed as an offer to Sara Lee. The Doane-Braun memoranda, which added the caveat of “if within reason,” could be construed as a counteroffer to the Braun group. The Braun group’s retention of WF&T could be construed as performance which would bind Sara Lee under a unilateral contract theory. (Cf. Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) Whether the parties intended to be bound by paragraph number four of the Doane-Braun memoranda is a factual question that cannot be decided by a motion to dismiss. Quake Construction, Inc., 141 Ill. 2d at 289, 565 N.E.2d at 994.

Defendants note that Judge O’Brien has already held that the Doane-Braun memoranda is not a contract in a separate case. Of course, the decision of the circuit court in a separate case is not binding on this court. Moreover, Judge O’Brien was faced with the question of whether the Doane-Braun memoranda was a contract for the sale of Twin Rivers, not whether WF&T has properly alleged there was a contract to retain counsel at Twin Rivers’ expense while negotiating the sale.

As the question is likely to arise on remand, we turn to the second question — whether WF&T has alleged facts that would allow recovery on the alleged contract as a third-party beneficiary. A third party acquires no rights under a contract entered into by others unless the provision at issue was intentionally included for the direct benefit of the third party. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498.) The contract need not specifically name a third-party beneficiary if it adequately defines a class of individual beneficiaries. (Altevogt, 85 Ill. 2d at 55, 421 N.E.2d at 187; see also Metro East Sanitary District v. Village of Sauget (1985), 131 Ill. App. 3d 653, 475 N.E.2d 1327 (involving attorney’s standing to enforce fee arrangement).) However, an intent to benefit a third party “must affirmatively appear from the language of the instrument when properly interpreted and construed.” Parrett, 346 Ill. at 257-58, 178 N.E. at 501.

We believe that Metro East Sanitary District controls this case to the extent that WF&T would have standing to enforce paragraph number four of the Doane-Braun memoranda, so long as WF&T can prove that it is a contract. The cases defendants cite to argue that it is the “foremost purpose” of the agreement which determines whether a party can maintain a third-party beneficiary claim do not stand for that proposition; rather, they apply the general rules contrasting direct and incidental beneficiaries cited above. (See Wilde v. First Federal Savings & Loan Association (1985), 134 Ill. App. 3d 722, 480 N.E.2d 1236; Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App. 3d 65, 446 N.E.2d 1209.) Hence, WF&T has alleged the elements of a third-party beneficiary theory necessary to survive a motion- to dismiss.

In sum, given the unusual set of facts this court is obliged to take as true for the purposes of a section 2 — 615 motion, we believe plaintiff has alleged specific facts which, when interpreted in the light most favorable to the plaintiff, are sufficient to survive the motion to dismiss counts II and III of the first amended complaint.

II

WF&T then challenges the order granting summary judgment to Twin Rivers on both counts of the second amended complaint. Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) In order to survive a motion for summary judgment, the non-moving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Nevertheless, because summary judgment is a drastic method of terminating litigation, the movant’s entitlement must be free from doubt. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233, 564 N.E.2d 778, 780.) Accordingly, the court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. (Logan, 139 Ill. 2d at 234, 564 N.E.2d at 780.) The existence and scope of an agency relationship are questions of fact, unless the parties’ relationship is so clear as to be undisputed. Northern Trust Co., 168 Ill. App. 3d at 276, 522 N.E.2d at 703.

Count I of the second amended complaint alleged breach of oral contract by Twin Rivers. This claim differs from count II of the first amended complaint only insofar as it is based on a claim of actual, rather than apparent, authority. This difference is significant, however, as an agent may bind a principal, even when the suspicious nature of the transaction should put a third party on notice, so long as the agent had actual authority. See Restatement (Second) of Agency §165, Comment c (1958).

Defendants suggest two reasons why summary judgment was proper. The first reason offered is that the facts are undisputed that the Braun group was not acting as authorized agents; however, the record here does not establish that the relationship between the Braun group and defendants was so clear as to be undisputed. The second reason defendants offer is that WF&T merely introduced the “self-serving affidavit” of “Jeffery Taylor who ‘was impeached six different times on material issues’ in a hearing before Judge O’Brien.” Defendants fail to indicate the issues on which Taylor was allegedly impeached in this separate case or their connection to this case. Defendants suggest that Taylor’s affidavit directly contradicts his prior sworn testimony, yet fail to specify which portion of said prior testimony supports this assertion. Although the record on appeal does indicate that the amount of fees was a subject of dispute in the transaction, the record does not indicate that the prior testimony contradicts Taylor’s affidavit that defendants were bound to pay some amount of fees.

Hence, WF&T’s introduction of the Taylor affidavit raised questions concerning the existence and scope of an agency relationship between the members of the Braun group and Twin Rivers. The questions raise genuine issues of material fact, rendering summary judgment inappropriate in this case.

Count II of the second amended complaint alleged that Twin Rivers was estopped from denying liability. Similar to count II of the first amended complaint, WF&T’s claim turns on whether the members of the Braun group had apparent authority. We have already explained in this opinion why the peculiar circumstances involved here raise factual questions concerning the relationship of the Braun group to defendants; we need not be redundant.

In sum, whether summary judgment was proper turns on whether, at the time WF&T undertook to represent the Braun group, the Braun group was authorized or WF&T could have reasonably relied on the Doane-Braun memoranda; the allegedly improper acts taken by the Braun group months later do not bear on these issues. We wish to emphasize that this court is expressing no opinion on the merits of this case. The second amended complaint and the Taylor affidavit, however, raise genuine issues of material fact sufficient to survive summary judgment, given that the record is not clear or undisputed on questions regarding the actual or apparent authority of members of the Braun group to act as dual agents.

Ill

Finally, plaintiff argues that the trial court erred in denying its motion to disqualify opposing counsel pursuant to Rule 5 — 101(b) of the Illinois Code of Professional Responsibility (107 Ill. 2d R. 5— 101(b) (repealed and superseded by new rules effective August 1, 1990)). Rule 5 — 101(b) provided, with exceptions not at issue here, that “[a] lawyer shall not accept employment in contemplated or pending litigation if he knows or if it is obvious that he or a lawyer in his firm ought to be called as a witness.” On review, we treat plaintiff’s motion as implicitly invoking Rule 5 — 102 (107 Ill. 2d R. 5 — 102 (repealed and superseded by new rules effective August 1, 1990)), which mandated withdrawal as counsel in situations where Rule 5— 101(b) applied.

The rule prohibiting a lawyer from acting as both advocate and witness in the same case reflects a number of important considerations. Permitting an advocate in a matter to testify as a witness in that matter may unfairly prejudice the case of his or her client or the opposing party and may erode public confidence in the administration of justice. (See Jones v. City of Chicago (N.D. Ill. 1984), 610 F. Supp. 350, 357.) All of the policy considerations raised by the attorney-witness prohibition should be applied in deciding a disqualification motion. See United States v. Morris (7th Cir. 1983), 714 F.2d 669, 671.

Conversely, our courts disapprove of the use of disqualification motions as a tactical weapon in litigation insofar as such motions can be misused for purposes of harassment. (Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307.) Such motions also serve to destroy the attorney-client relationship by preventing a party from freely retaining the counsel of his or her choice. (See In re Marriage of Thornton (1985), 138 Ill. App. 3d 906, 486 N.E.2d 1288.) Thus, disqualification is regarded as a drastic measure (see Freeman v. Chicago Musical Instrument Co. (7th Cir. 1982), 689 F.2d 715) which courts should grant only when the movant can show that the lawyer’s testimony is likely to prejudice the testifying lawyer’s own clients. See Freeman v. Kulicke & Soffa Industries, Inc. (E.D. Pa. 1978), 449 F. Supp. 974, aff’d without opinion (3d Cir. 1979), 591 F.2d 1334.

Although the canons of ethics are designed to safely guide attorney conduct, they are not otherwise legally binding on this court. (E.g., In re Kutner (1979), 78 Ill. 2d 157, 399 N.E.2d 963.) However, in the context of attorney discipline, our supreme court has stated that an attorney was not required to withdraw “based on the possibility that he might have to become a witness, considering the [early] stage of the representation.” In re Heilgeist (1984), 103 Ill. 2d 453, 462-63, 469 N.E.2d 1109, 1113.

WF&T’s motion in this case arises from the June 1988 letter in which outside counsel wrote: “My clients agreed only to pay your clients’ reasonable attorneys’ fees in connection with the acquisition.” (Emphasis in original.) WF&T contends that because defendants’ current position in this case is that they never agreed to pay WF&T’s fees, WF&T will be required to depose outside counsel and call her as a witness to expose the prior statement. Defendants’ outside counsel argues that the June 1988 letter “denied any obligation” to WF&T and that, in any event, outside counsel’s statement would be inadmissible at trial. The record shows that the trial court denied the motion because WF&T had shown no injury to itself prior to summary judgment, but stated that WF&T could renew its motion at trial.

The trial court’s disposition of the motion was within its discretion. An attorney may represent a client in the early stages of a case in which he or she may possibly be a witness without being subject to discipline (Heilgeist, 103 Ill. 2d at 462-63, 469 N.E.2d at 1113); plaintiff has failed to show why an attorney should nevertheless be le-gaily barred from representing a client during the early stages of this litigation. Plaintiff has not shown that opposing counsel’s testimony would be prejudicial to defendants or that the June 1988 letter is even admissible as an evidential admission of the defendants. (See In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1070, 559 N.E.2d 1112, 1118; E. Cleary, McCormick on Evidence §§262, 264, 267 (2d ed. 1972).) Thus, WF&T failed to show that outside counsel “ought to be called as a witness” when the motion was decided.

For the aforementioned reasons, we reverse the judgment of the circuit court of Cook County dismissing counts II and III of the first amended complaint and granting summary judgment on both counts of the second amended complaint; we affirm the judgment of the circuit court denying the motion to disqualify opposing counsel. The cause is remanded in order that plaintiff may replead consistent with this opinion.

Affirmed in part; reversed in part and remanded for further proceedings.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE McCUSKEY

text:
    C. HERMAN WATSON, Plaintiff-Appellant, v. CLARENCE CRAIG WATSON et al., Defendants (Susie Jill Buwick, Defendant-Appellee).
    Third District
    No. 3-90-0702
    Opinion filed August 14, 1991.
    Rehearing denied September 30, 1991.

      March & McMillan, of Macomb (Jeff W. De Joode, of counsel), for appellant.
    Lucie & Carper, of Macomb (Patricia A. Walton, of counsel), for appel-lee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Plaintiff appeals from the dismissal of his complaint to foreclose upon a mechanics’ lien allegedly resulting from expenditures made by plaintiff while acting as property manager of defendants’ farmland. Plaintiff urges this court to expand the plain language of the Mechanics’ Liens Act (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.) to include a manager of unimproved agricultural property as a contractor entitled to a lien. Without reaching that issue, we conclude that plaintiff’s expenditures failed to enhance the value of the property, thereby preventing attachment of a lien. Accordingly, we affirm the dismissal of the complaint by the trial court.

Defendants, Clarence Craig Watson and Kent Watson, are sons of plaintiff, C. Herman Watson, and each an owner of undivided one-half interests in 80 acres of farmland in McDonough County. Defendant, Susie Jill Buwick, is the former wife of Clarence Craig Watson. Plaintiff initiated this action following defendant Susie Buwick’s filing of a memorandum of judgment against defendant Clarence Craig Watson for a child support arrearage.

Plaintiff alleged that he and Clarence Craig Watson entered into an oral agreement requiring or permitting plaintiff to manage Clarence Craig Watson’s real property interest and to pay the expenses necessary to maintain and preserve the land. In return, Clarence Craig Watson agreed to pay or reimburse plaintiff for the expenses incurred in operating, managing and preserving the land. Beginning in 1983, plaintiff made payments and advances for Federal estate tax installments, county real estate taxes, and farm operating loans. During that period, plaintiff applied $10,500 in gross receipts from the property in reduction of total expenses incurred, leaving a deficiency of $32,743.87.

Plaintiff filed a claim for lien against the property and a complaint for enforcement of the lien. Defendant, Susie Buwick, filed a motion to dismiss, arguing that plaintiff’s services failed to improve the underlying property and that plaintiff did not fall within the class of persons entitled to a lien under the Act. The trial court dismissed the complaint, finding that the rendering of services under the Act did not encompass the management of unimproved farmland. The trial court also denied plaintiff’s motion to reconsider. Plaintiff appeals both orders.

In determining the propriety of the dismissal of a complaint, we must accept all properly pleaded facts as true. Therefore, we are concerned only with the question of law presented by the pleadings. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554, 328 N.E.2d 538, 539.

Section 1 of the Mechanics’ Liens Act provides as follows:

“Any person who shall by any contract *** with the owner of a lot or tract of land *** to improve the lot or tract of land or to manage a structure thereon *** or perform any services or incur any expense as a[] *** property manager in, for or on a lot or tract of land for any such purpose *** is known under this Act as a contractor, and has a lien upon the whole of such lot or tract of land *** for the amount due to him for such *** services ***, and interest *** from the date the same is due.” Ill. Rev. Stat. 1989, ch. 82, par. 1.

Plaintiff argues simply that he is entitled to a lien because, under oral contract with the owner, he incurred expenses as a property manager. We disagree.

The purpose of the Act is to permit a lien upon premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of labor and materials. First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 246, 454 N.E.2d 314, 316; Colp v. First Baptist Church (1930), 341 Ill. 73, 76-77, 173 N.E. 67, 68.

Since mechanics’ liens exist only by virtue of the statutes creating them, being recognized neither by the common law nor in equity, such statutes must be strictly construed with reference to the requirements upon which the right depends. (Connelly, 97 Ill. 2d at 246, 454 N.E.2d at 316; Schmidt v. Anderson (1911), 253 Ill. 29, 33, 97 N.E. 291, 292.) The lien is valid only if each of the statutory requirements is scrupulously observed. (Connelly, 97 Ill. 2d at 246, 454 N.E.2d at 316.) The burden of proving that each requisite has been satisfied is on the party seeking to enforce the lien. Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 759, 537 N.E.2d 1032, 1035.

The basis for a mechanics’ lien is the performance of work or the furnishing of materials in the construction upon or improvement of land. Further, the performance or furnishing of materials must constitute an enhancement of the value of the land. Therefore, the inquiry is whether the work performed has enhanced the value of the land to be charged with the lien. D.M. Foley Co. v. North West Federal Savings & Loan Association (1984), 122 Ill. App. 3d 411, 415, 461 N.E.2d 500, 503.

Only payments and advances for Federal estate tax installments, county real estate taxes, and farm operating loans were included in the services allegedly performed by plaintiff. We conclude that payment of these expenses did not enhance the value of the farmland. Therefore, no lien could properly attach to the property.

We disagree with plaintiff’s unsubstantiated theory that the value of the farmland would have decreased had he not protected the property from the attachment of liens by making timely payments of Federal estate taxes and county real estate taxes. For example, the sale of real estate subject to a tax lien does not diminish the value of the real estate. However, it usually means a credit for unpaid real estate taxes will be deducted at closing from the final sale price. Also, the failure to timely pay real estate taxes could impose interest and penalties which would similarly be deducted from the final sale price. However, the avoidance of such charges by timely payment in no way increases the value of the real estate — it merely preserves its value. Mere preservation and maintenance of value does not reach the level of enhancement required by the Act and, therefore, does not support the imposition of a lien. See D.M. Foley Co., 122 Ill. App. 3d at 416-17, 461 N.E.2d at 503-04.

Following the same reasoning, we find that plaintiff’s payment of loan principal for farm operating expenses related only to growing crops also fails to enhance the value of the underlying real property.

The decision of the trial court is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIE MITCHELL, Petitioner-Appellant.
    Third District
    Nos. 3-90-0796 through 3-90-0799 cons.
    Opinion filed August 28, 1991.
    E. Joyce Randolph, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The petitioner, Willie Mitchell, was convicted of residential burglary and two counts of felony theft. While on probation for those offenses, he was charged with additional counts of residential burglary, robbery, and aggravated criminal sexual assault. He pled guilty to one count of residential burglary. A jury thereafter also found him guilty of aggravated criminal sexual assault and residential burglary. The trial court sentenced him to a total of 45 years’ imprisonment. The petitioner appealed, and we affirmed. He subsequently filed a post-conviction petition, which the court dismissed as frivolous and patently without merit. He now appeals that order.

The petitioner’s post-conviction petition was filed on October 4, 1990. On October 11, 1990, the State filed a motion to dismiss the petition. The State’s motion requested only that the court “dismiss the defendant’s Petition for Post-Conviction Relief in that it fails to state a cause of action.” On the same page as the motion, the State included a proposed order stating: “On Motion of the State, Defendant’s Petition for Post-Conviction Relief is denied.” There is nothing in the record indicating the People ever appeared before the trial judge to argue their motion.

On October 27, the trial judge considered the petition pursuant to section 122 — 2.1(a) of the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a)). The judge’s docket entry indicates that he considered the nature of the alleged constitutional violation claimed by the petitioner and determined that the petition was frivolous because it contained allegations which went to the legality of the sentence, not to the constitutionality of the sentence or the petitioner’s convictions. The trial judge also ruled that the petition raised matters which could have been raised on direct appeal. Finally, the judge found that the petition was based on a misreading of the sentencing statutes and that there was no violation of those statutes since they were all in pari materia. That same day, the trial judge also signed the proposed order attached to the State’s motion to dismiss. .

On appeal, the petitioner argues that he is entitled to the appointment of counsel and an evidentiary hearing under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). His argument is premised on the fact that the State filed its motion to dismiss prior to the trial judge’s determination that his petition was frivolous. He claims that the trial judge should have considered his petition without any input from the State and cites a number of cases in support of his proposition. E.g., People v. Brothers (1989), 179 Ill. App. 3d 788, 535 N.E.2d 45; People v. Day (1987), 152 Ill. App. 3d 416, 504 N.E.2d 979.

We begin by noting that section 122 — 5 of the Act provides that the State shall move or answer within 30 days after the trial court finds that the post-conviction petition is not frivolous or patently without merit. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 5.) However, nowhere does the Act state that the mere early filing of a motion to dismiss contaminates the process and precludes the trial court from independently determining whether a post-conviction petition has any merit. Further, although the cases cited by the petitioner indicate that the State should not file its motion prior to the trial court’s initial decision, none of the cases states that the premature filing of a motion constitutes per se reversible error. Rather, we find that the issue is whether the trial court’s decision was improperly tainted by the State’s premature motion to dismiss.

A review of the record discloses nothing that would indicate the State ever argued before the trial court. Furthermore, the trial judge’s docket entry clearly shows a detailed analysis of the petition which in no way indicates reliance on the State’s terse motion to dismiss. We also note that having examined the petition ourselves, we find no error by the trial court. We therefore find that the judge’s decision was not tainted by the State’s premature motion.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARBARA A. MORRISON, Defendant-Appellant.
    Third District
    No. 3-90-0900
    Opinion filed August 28, 1991.

      Joseph Gibson, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Barbara A. Morrison, entered a negotiated plea of guilty to the offense of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16— 1(a)(1)). The trial court subsequently sentenced her to a 30-month term of imprisonment. The defendant appeals the length of her sentence. We affirm.

The record shows that the defendant was employed by the L.R. Nelson Company for approximately 20 years. She was the personal secretary of the owner, and her responsibilities included the reconciliation of reports pertaining to the company’s travel advance fund. The defendant admitted that over a three-year period she took $20,000 from the company.

The presentence report showed that the defendant was a 55-year-old grandmother with no prior criminal record. It also contained a number of letters from individuals providing character references for her.

At the sentencing hearing, the defendant testified that she took the money to finance a child custody lawsuit involving her two young grandchildren. She used the money to hire a private detective to gather information on the children’s mother. The detective found that the mother was a prostitute who lived with her two children and pimp in a local pool hall. Through the efforts financed by the defendant, the children were eventually removed from the mother’s custody and given to the father, the defendant’s son.

The defendant also testified that she had always intended to return the money someday and that she was sorry and ashamed she had betrayed her employer. She also stated that she could pay some restitution out of her 401K plan and her vacation pay. In addition, she was presently working as a manager in a restaurant and, as such, could continue paying restitution. The State presented no evidence in aggravation.

On appeal, the defendant argues that the trial court abused its discretion in sentencing her to 30 months of imprisonment. Specifically, she argues that the court failed to properly balance the mitigating and aggravating factors presented.

Sentencing is largely a matter of judicial discretion and, absent an abuse of that discretion, a sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) When imposing sentence, a trial judge must balance the offender’s good prior record and rehabilitative potential with the seriousness of the offense. People v. Leonora (1985), 133 Ill. App. 3d 74, 477 N.E.2d 1277.

In the case at hand, the trial court found in mitigation that the defendant had a “clean previous record,” and a “fairly good motive” for taking the money. It further noted that a refusal of probation would probably work to the financial detriment of the victim.

However, in aggravation the court found that the defendant took large sums of money over an extended period of time. It noted that she held a responsible position and that there was a need to deter others who held similar positions. Specifically, it stated that “we must get the message out that this stealing, day after day, month after month, year after year from an employer is just not acceptable in our society.”

In reviewing the sentence imposed by the trial court, it is not our function to determine its propriety based on what we might have done. Rather, we are required to determine whether the court exercised proper discretion in deciding between the various alternatives, within the range of appropriate sanctions. Here, the defendant stole a large amount of money over a long period of time. As such, we cannot say that the trial court abused its discretion in sentencing her to a term of 30 months of imprisonment rather than imposing a lesser sentence or a term of probation.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    LORI ANN THOMPSON, a Minor, by Barbara A. Thompson, her Mother and Next Friend, Plaintiff-Appellant, v. FRANCISCAN SISTERS HEALTH CARE CORPORATION, d/b/a St. Joseph’s Medical Center, et al., Defendants-Appellees.
    Third District
    No. 3-90-0880
    Opinion filed August 28, 1991.

      John B. Petrulis, of Frankfort, for appellant.
    Cory D. Lund and Bruce L. Carmen, both of Hinshaw & Culbertson, of Chicago, for appellee Franciscan Sisters Health Care Corporation.
    Pamela Davis and Robert J. Baron, both of Rooks, Pitts & Poust, of Joliet, for other appellees.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Lori Ann Thompson, a minor, by Barbara A. Thompson, her mother and next friend, appeals from the dismissal of her medical malpractice complaint by the circuit court. The defendants are Franciscan Sisters Health Care Corporation, doing business as St. Joseph’s Medical Center, and physicians T. Chris-tiansen and John J. McLaughlin, as individuals and doing business as Joliet Medical Group, Ltd. The circuit court dismissed the complaint for failure to comply with the statute of limitations for medical malpractice cases, section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). We affirm.

On December 31, 1976, plaintiff was born. Complications arose during her birth, and defendants allegedly did not respond to those complications in a timely and proper manner. Plaintiff alleges that due to defendants’ negligence she has been permanently and severely damaged. On July 26, 1990, plaintiff filed the present lawsuit. On November 14, 1990, after a hearing on defendants’ motions to dismiss, the circuit court dismissed plaintiffs complaint with prejudice for failure to comply with section 13 — 212 of the Code of Civil Procedure. On December 13, 1990, plaintiff filed a notice of appeal.

The issues raised on appeal by the plaintiff are:

(1) whether section 13 — 212(b) unconstitutionally deprives minor victims of medical malpractice of access to court and recovery for damages, in violation of the due process clauses of the Federal and State constitutions;
(2) whether section 13 — 212(b) deprives minor victims of medical malpractice of equal protection of the laws as guaranteed by the Federal and State constitutions;
(3) whether section 13 — 212(b) unconstitutionally restricts free and open access to court for the vindication of the rights of minor victims of medical malpractice, in violation of the first amendment to the Federal Constitution and article I, section 12, of the State Constitution; and
(4) whether section 13 — 212(b) violates the bar against special legislation contained in the State Constitution.

Section 13 — 212(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(b)) states as follows:

“(b) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person’s 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.” (Emphasis added.)

Application of the terms of this statutory provision to the facts of this case indicates that plaintiff had until July 20, 1990, by which to timely file her lawsuit. Since the lawsuit was filed on July 26, 1990, under the terms of this provision it was filed too late. On appeal the plaintiff has not contended that a statutory limitation provision other than section 13 — 212(b) governs this case, nor has she contended that the circuit court in applying this provision to the facts of this case has arrived at an erroneous conclusion. Therefore, we will simply address the constitutional issues the plaintiff has raised as to section 13 — 212(b).

We note that various challenges to the constitutionality of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), a precursor of section 13 — 212 of the Code of Civil Procedure, were considered by the Illinois Supreme Court in Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560. While Anderson involved cases with plaintiffs who were adults at the time the alleged medical malpractice took place, its reasoning can be used in the present case.

We consider first whether application of section 13 — 212(b) violates plaintiffs due process rights. Plaintiff essentially argues that it is fundamentally unfair that a minor’s cause of action should ever be barred by the statute of limitations during minority, and that, therefore, the statute of limitations cannot be so applied without violating the due process clauses of the Federal and State constitutions. Plaintiff has cited no case that has used such broad reasoning to find that application of the statute of limitations had violated one of the due process clauses.

After discussing the so-called medical malpractice insurance crisis of the early 1970’s and legislative responses to it, the court in Anderson stated:

“Although such a result — a cause of action barred before its discovery — seems harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. We have noted above that various reports, commissions, and authors recommended that the ‘long tail’ exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. *** It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.” Anderson, 79 Ill. 2d at 312, 402 N.E.2d at 568.

The prior law permitted filing suit 20 years (or sometimes longer) after alleged medical malpractice during childbirth, and it was not unreasonable for the legislature to cut down this “long tail” of liability so as to lend stability to the pricing of medical malpractice insurance for medical personnel involved in childbirths. The reasoning of Anderson leads us to conclude that the legislature’s reduction of the limitations period to eight years after the wrongful conduct (or three years after the effective date of the amendment) is not unreasonable and does not result in a due process violation.

No authority has been presented to us holding that one or both of the due process clauses require that the statute of limitations protect an injured minor from the failure of a parent or guardian to pursue the minor’s interest in a timely fashion. The legislature, when faced with the need to set some reasonable time limits on medical malpractice claims, could reasonably assume that parents and guardians would look after the interests of the affected minors, and it was not a violation of the minors’ due process rights for it to make this assumption.

We next consider whether the application of section 13— 212(b) to the plaintiff denies her equal protection of the laws. In Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 412 N.E.2d 151, the Illinois Supreme Court stated certain principles relevant to determining whether a statute violates equal protection guarantees:

“The first test in assessing an equal protection claim is to determine if [the legislation] *** operates to the disadvantage of a suspect class or infringes upon a fundamental right. [Citation.] *** If a suspect classification or fundamental right is not found, the legislation simply must bear a rational relationship to a legitimate governmental interest. [Citation.]
Under the traditional equal protection standards utilized by both the Federal and State courts, a legislative classification will be upheld if it bears a rational relationship to a legitimate legislative purpose. [Citations.] Thus, the inquiry shifts to an analysis of the legislative purpose and a subsequent determination whether the legislative classification is rationally related to that purpose. [Citation.]
Under traditional concepts of equal protection, i.e., when a rational-basis test is used, a legislative classification is presumed valid. [Citations.] The burden of rebutting the presumptive validity of the classification rests upon the party challenging its constitutionality. [Citation.] Finally, a statutory classification will not be declared unconstitutional ‘if any state of facts reasonably may be conceived to justify it.’ ” Van Meter, 82 Ill. 2d at 119-22, 412 N.E.2d at 152-54.

This case does not involve any suspect classifications or fundamental rights. Hence, the rational-basis test is the proper one to use in deciding whether the challenged statute violates equal protection guarantees. Plaintiff argues that classifying and treating minor victims of medical malpractice differently from minor victims of other forms of negligence violates her equal protection rights. However, as we have already observed, the legislature perceived a problem within the area of medical malpractice, and in addressing that problem chose to treat plaintiffs alleging medical malpractice (both adults and minors) differently from plaintiffs alleging other forms of negligence. As Anderson noted, the legislature’s solution in the form of a shortened statute of limitations was not unreasonable in light of what it was trying to accomplish. We conclude that plaintiff has not established that section 13 — 212(b) violates her Federal or State equal protection rights.

Questions regarding the constitutionality of a statute cannot be raised for the first time on appeal. (Brown v. Mason (1985), 132 Ill. App. 3d 439, 442, 477 N.E.2d 61, 64.) The plaintiff did not raise in the circuit court constitutional questions regarding the first amendment of the Federal Constitution, nor did she raise there constitutional questions regarding provisions of the State Constitution pertaining to access to the courts and special legislation. Therefore, she will not be permitted to raise them for the first time on appeal.

For the reasons stated herein, the decision of the circuit court to dismiss the complaint for failure to comply with section 13 — 212 is affirmed.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    MARTIN A. KAPP, Plaintiff-Appellant, v. TERRI L. ALEXANDER, Defendant-Appellee.
    Third District
    No. 3-91-0017
    Opinion filed August 28, 1991.

      Michael Albert, of Blodgett, Reese, Merritt & Albert, of Rock Falls, for appellant.
    Walter C. Kilgus, of Nelson, Kilgus, Richey & Hauptman, of Morrison, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This case involves a complaint to determine the existence of a father and child relationship. The plaintiff, Martin A. Kapp, alleged that he was the father of L.C., that the defendant, Terri L. Alexander, was the mother of L.C., and that it was in the best interests of the child that he have custody of the child or have rights of visitation with the child. The plaintiff sought a finding that a father and child relationship existed, sought custody of or rights of visitation with the child, and sought other unspecified relief. The circuit court determined that the plaintiff had filed the complaint after the applicable limitations period had expired. The circuit court further determined that the plaintiff failed to prove that the defendant had engaged in conduct which estopped her from raising the statute of limitations as a defense. Based on these determinations, the circuit court dismissed plaintiff’s cause of action. The plaintiff appeals. We affirm.

On July 30, 1987, L.C. was born to the defendant, Terri L. Alexander (the mother). The parties agree that the father of L.C. is the plaintiff, Martin A. Kapp (the father), and that the mother informally acknowledged that the plaintiff was the father on numerous occasions prior to this lawsuit. Prior to this lawsuit, the plaintiff has never been acknowledged to be L.C.’s father by either party in any official document or proceeding.

The father first saw the child around September 1988. From sometime in September 1988 until sometime in April 1989, the parties dated and became engaged to be married, according to the father’s testimony. The parties’ testimony differs regarding whether the father saw the child frequently during this period and regarding whether the father paid any money for the child’s support during this period.

In April 1989 the parties broke off their relationship. The father’s testimony, while not entirely clear on this point, seems to be that the mother became involved with another man around this time. The father testified that the mother permitted him to have “regular” visitations with the child after the parties broke off their relationship, while the mother testified that the father hardly ever saw the child during any time period.

The father testified that, from sometime in the summer of 1989 until sometime in late December 1989, the parties were back together again “off and on.” According to the father the parties promised in early December 1989 that they were going to get back together and get married. The father testified that the parties broke up again in late December 1989, but that the mother told him he could see the child whenever he wanted.

The father testified he set up a bank account in January 1990 for the support of the child. He introduced a copy of a computer printout showing that deposits of $25 were made almost every week, while four withdrawals were made between January 1990 and July 1990. He claimed that the mother made these withdrawals for support of the child, but the mother testified that the amounts she withdrew were for repayment of money the father owed her.

The mother married another man April 23, 1990. The last time the father was permitted to see the child was at a birthday party for the child held on July 30,1990.

On August 30, 1990, the father filed this lawsuit. Shortly thereafter the mother filed a motion to strike the complaint for being time barred, noting that section 8(a)(2) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2508(a)(2)) limited to two years after the birth of the child the period within which an action to establish a father and child relationship could be brought by a person other than the child. The trial court conducted an evidentiary hearing on December 10, 1990, and concluded that the father failed to establish that the mother’s conduct estopped her from raising the statute of limitations as a defense. A written order dismissing the father’s cause of action was entered on December 20, 1990. The father filed a notice of appeal on January 8, 1991.

The first issue presented by the father is whether the trial court erred in dismissing the part of the complaint seeking custody or visitation, rather than just the portion seeking the establishment of a father and child relationship. Section 9(a) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2509(a)) states in part:

“In any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.”

The father correctly reasons that the statute of limitations in the Parentage Act applies only to actions under the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.), such as actions to establish the existence of a parent and child relationship, and to any other civil actions where “parentage is at issue.” The father contends that since the mother admitted on any number of occasions (including under oath at the hearing on the motion to dismiss) that he was the child’s father, this is not a case where “parentage is at issue.” He then reasons that since he cited no statutes in his complaint, the two-year statute of limitations of section 8(a)(2) of the Parentage Act applies only to his request to establish a father and child relationship (a remedy which is possible only under the Parentage Act), but does not apply to his request for custody or visitation rights (a remedy which he claims is available to him under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.)).

Prior to enactment of the Parentage Act, there was no statutory provision addressing the situation in which a natural father sought custody or rights of visitation with his child where the child had been born out of wedlock and the child’s parents had never married. (See Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 781, 541 N.E.2d 1159, 1161.) The courts permitted natural fathers in that situation to utilize several procedural routes to attempt to gain custody or rights of visitation with their children. Those procedural routes included habeas corpus actions (People ex rel. Irby v. Dubois (1976), 41 Ill. App. 3d 609, 354 N.E.2d 562), declaratory judgment actions (Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631), actions under the Illinois Marriage and Dissolution of Marriage Act (In re Custody of Myer (1981), 100 Ill. App. 3d 27, 426 N.E.2d 333), actions under the Juvenile Court Act (In re Ritchie (1978), 58 Ill. App. 3d 1045, 374 N.E.2d 1292), and actions under the Probate Act (In re Estate of Becton (1985), 130 Ill. App. 3d 763, 474 N.E.2d 1318). The Parentage Act specifically addresses this situation, and provides not only for the establishment of a father and child relationship but also for custody, child support, and visitation privileges (see Ill. Rev. Stat. 1989, ch. 40, par. 2514). In addition, by virtue of that part of section 9(a) quoted above, the legislature sought to have provisions of the Parentage Act apply whenever “parentage is at issue” in any civil action. It is our view that natural fathers in this situation may not avoid the provisions of the Parentage Act (including its statute of limitations) by using alternative procedural routes in seeking to obtain incidents of the father and child relationship (such as custody or visitation rights), unless such a relationship has previously been legally established.

Section 4 of the Parentage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2504) states in part:

“The parent and child relationship between a child and
(1) the natural mother may be established by proof of her having given birth to the child, or under this Act;
(2) the natural father may be established under this Act.”

Section 7(a) of the Parentage Act permits a man “presumed or alleging himself to be the father of the child” to bring an action to determine the existence of the father and child relationship (Ill. Rev. Stat. 1989, ch. 40, par. 2507(a)).

Section 2 of the Parentage Act states as follows:

“As used in this Act, ‘parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 2502.)

In examining the Parentage Act as a whole it is clear that the legislature used the expressions “parent and child relationship,” “mother and child relationship,” and “father and child relationship” as terms of art. These expressions refer to something more than simply biological relationships and are meant to include the legal relationships. When section 9(a) of the Parentage Act applies provisions of the Act to civil actions not brought under the Act, it does so where “parentage is at issue.” In our view “parentage is at issue” whenever a parent and child relationship is the basis for some “right, privilege, duty or obligation” (see Ill. Rev. Stat. 1989, ch. 40, par. 2502), but such a relationship has not been established (or presumed) as provided for in the Parentage Act. Simply because no party disputes biological parentage is not a sufficient basis for concluding that a case is not one where “parentage is at issue.”

The father relies on In re Petition of Padin (1989), 193 Ill. App. 3d 554, 550 N.E.2d 276, to support his contention that where parentage is not disputed, a father of a child born out of wedlock can seek custody or visitation directly under the provisions of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), rather than under the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.), and thereby avoid the limitations period of the Parentage Act.

We distinguish Padin from the present case, because in Padin a judicial determination of parentage had been made in an adoption case prior to the father’s filing his petition to establish the existence of a parent and child relationship and to obtain visitation rights. No prior judicial determination or legal presumption existed in this case which relieved the father of the burden of establishing the father and child relationship under the Parentage Act.

To accept the father’s argument would mean that a natural father could assert rights to custody or visitation many years after the birth of the child, perhaps after the natural mother has died, despite having had nothing to do with the child. This is precisely the situation (or one of the situations) the legislature sought to avoid in enacting the statute of limitations of the Parentage Act and in enacting the provision of the Parentage Act applying the Act to civil actions where “parentage is at issue.”

We hold that the trial court did not err in striking and dismissing the entire complaint under the statute of limitations of the Parentage Act, as opposed to just the portion seeking the establishment of a father and child relationship.

The second issue the father raises is whether the trial court erred in deciding that the mother should not be equitably estopped from raising the statute of limitations as a defense.

All that is necessary for invocation of the doctrine of equitable estoppel is that the plaintiff reasonably rely on the defendant’s conduct or representations in forbearing suit. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 159, 421 N.E.2d 869, 876.) However, where a defendant’s conduct terminated within ample time to allow the plaintiff to still avail himself of any legal rights he may have, the doctrine will not apply. (Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 749, 544 N.E.2d 846, 852.) If the facts necessary to constitute equitable estoppel are in dispute or if reasonable minds might differ as to the inferences to be drawn from undisputed evidence, then the issue of whether equitable estoppel is raised becomes a question of fact. See Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 369, 335 N.E.2d 491, 494.

The trial court based its decision regarding equitable estoppel on the testimony of the father, which demonstrated that the parties’ relationship had never been a stable one. The parties broke off their engagement in April 1989, several months prior to the end of the two-year limitations period. While the father testified in vague terms about having “regular” visitation with the child after the engagement was broken, the mother testified that the father hardly ever saw the child. We cannot say that the trial court’s determination on this question was against the manifest weight of the evidence.

While not raised by the parties, we address the issue of whether this cause should be remanded and the circuit court directed to appoint a guardian ad litem to represent the interests of the child. For the reasons expressed in Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 541 N.E.2d 1159, we decline to do so.

We affirm the decision of the circuit court.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS FUZZ, Defendant-Appellant.
    Third District
    No. 3-90-0896
    Opinion filed August 28, 1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Curtis Fuzz, was convicted by a jury of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1)). The trial court sentenced him to a term of years’ imprisonment and ordered him to pay restitution in the amount of $7,693.49. The defendant appeals. We affirm defendant’s conviction. However, we vacate part of the restitution order and remand for further proceedings consistent with this opinion.

The record shows that on May 27, 1990, the defendant stabbed Mark Hoffman with a knife. At issue in the trial court was whether the defendant was acting as an aggressor or in self-defense.

Hoffman testified that at approximately 12:15 a.m. he arrived at his sister’s home and knocked on the door. Hoffman then saw the defendant approaching. He knew the defendant was related to his sister’s husband. Hoffman also admitted he owed the defendant some money.

Hoffman stated the defendant approached him and asked about the money he owed. After he told the defendant he did not have the money, the two men began shoving each other. Hoffman then heard his sister say, “He’s got a knife.” About the same time, he saw a shiny blade in the defendant’s hand and felt a sharp pain in his chest and hip. Grabbing a camera strap around the defendant’s neck, he choked the defendant and was eventually able to turn him around. Hoffman then threw the defendant to the ground using a move he had learned in the Marine Corps and placed his foot on the defendant’s larynx. When Hoffman became dizzy, his sister helped him into a wheelchair.

Hoffman’s sister, Kim Kearns, testified that she had multiple sclerosis and used a wheelchair. On the night in question, she heard the knocking and was on her way to answer the door when she heard the voices of Hoffman and the defendant. Through the window of the door, she saw them pushing each other. She then saw a knife in the defendant’s hand and yelled, “He’s got a knife!” When her brother said, “I have been stabbed,” she got a towel. Returning, she found her brother with his foot on the defendant’s throat threatening to crush his larynx if he moved. After seeing her brother was hurt, she then helped him into her wheelchair and administered first aid.

During defendant’s jury trial, the defendant made a motion in limine after the State rested. The motion in limine requested that any impeachment of defendant’s testimony be limited only to a disclosure that the defendant had a prior felony conviction. Specifically, defendant did not want the jury to know that his prior conviction was for assault with a firearm. The trial court denied the defendant’s motion.

The defendant was then called as a witness. He testified that on the night in question he approached Hoffman and asked about some money Hoffman owed him. Hoffman said he was not going to pay and pushed the defendant. Hoffman then lunged at the defendant, grabbed the camera strap around the defendant’s neck, and began choking him with it. Fearing for his life, the defendant took out a knife and stabbed Hoffman. Hoffman then forced the defendant to the ground and put his foot on his neck. After Hoffman got off the defendant, the defendant offered to take him to the hospital and to call the police.

Following the defendant’s testimony, the State moved to introduce a certified copy of his conviction for assault with a firearm. The certified copy was entered into evidence over the defendant’s objection.

The jury found the defendant guilty of aggravated battery. He was sentenced to a term of ZVz years’ imprisonment and was ordered to pay costs and restitution in the amount of $7,693.49 before December 1, 1992.

The first issue raised by the defendant in this appeal is whether the trial court erred in denying his motion in limine. Defendant contends the State should have only been able to impeach him by informing the jury he had a prior felony conviction. Defendant asserts the trial judge erred by informing the jury that the defendant had a prior felony conviction for assault with a firearm. We disagree.

It is well established that the trial judge has discretion to permit the defendant’s veracity to be impeached with certified copies of prior felonies or for misdemeanors involving dishonesty. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) Evidence of prior convictions may be admissible if the crime was punishable by death or by imprisonment in excess of one year unless the trial judge determines that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.

In determining whether a conviction’s prejudicial effect substantially outweighs its probative value, the trial court must consider: (1) the nature of the prior crime; (2) the nearness or remoteness in time of the prior conviction; (3) the subsequent career of the defendant; and (4) whether the prior crime was similar to the one charged. (People v. Washington (1980), 85 Ill. App. 3d 522, 407 N.E.2d 185.) The trial court is not, however, required to make an express evaluation of each of these factors in open court. A reviewing court will assume the trial judge gave appropriate consideration to the relevant factors. People v. Washington (1980), 85 Ill. App. 3d 522, 407 N.E.2d 185.

In the instant case, the trial court expressly stated that it was always concerned with prejudice resulting to the defendant from the admission of a prior felony conviction for impeachment purposes. Not only did the trial court consider the possibility of prejudice, it also attempted to guard against such prejudice. While the court concluded the prior conviction was admissible, the trial judge also ruled that the jurors would not receive a copy of it during their deliberations. The trial court did not want the jurors reviewing the details of the prior felony conviction. Upon review of the record, we are unable to conclude that the trial court erred because the judge minimized any possible prejudice to the defendant. Therefore, the evidence of the defendant’s prior felony conviction was properly admitted.

The defendant’s second argument on appeal is that the trial court erred in ordering him to pay $7,693.49 in costs and restitution by December 1, 1992. We agree based on the facts of this case.

It is not necessary for a trial court to determine a defendant’s ability to pay when ordering restitution. (People v. Hayes (1988), 173 Ill. App. 3d 1043, 527 N.E.2d 1342.) However, the trial court must consider the defendant’s ability to pay when making a determination of the method and time of payment. People v. Hayes (1988), 173 Ill. App. 3d 1043, 527 N.E.2d 1342.

The presentence report indicates that the defendant has no assets or source of income and had not been steadily employed since 1980. Additionally, the defendant, who has been incarcerated since May 27, 1990, was sentenced to 42 months’ imprisonment.

The fact a defendant has been ordered to serve a term of imprisonment does not, of itself, render an order of restitution improper. However, it is a factor to be considered by the trial court in assessing the defendant’s ability to pay and in determining the manner and time of payment. People v. Wagner (1989), 189 Ill. App. 3d 1041, 546 N.E.2d 283.

The trial court should make every effort to insure that restitution can be paid. Therefore, it should take into account the totality of the defendant’s circumstances when affixing the time and manner of payment. In the instant case, the trial court ordered the defendant to pay $7,693.49 by December 1, 1992, even though he may still be in prison at that time. Since he has no assets, it is improbable the defendant will be able to pay by that date. Accordingly, while we affirm the trial court’s imposition of restitution in the amount of $7,693.49, we vacate that portion of the judgment fixing the payment date. We remand the cause to the circuit court for farther proceedings to determine a more appropriate manner and time of payment.

The judgment of the circuit court of Rock Island County is affirmed in part and vacated in part, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part; vacated in part and remanded.

STOUDER, P.J., and GORMAN, J., concur.