author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK DOYLE, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—1234
    Opinion filed July 17, 1992.
    Modified opinion filed September 11, 1992.
    Rita A. Fry, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Janet Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and Leslie A. Quade, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Patrick Doyle (Doyle), was charged by indictment with aggravated arson, arson, conspiracy to commit aggravated arson and conspiracy to commit arson. After a bench trial, defendant was found guilty on all four counts. The court entered judgment against defendant only on the aggravated arson and arson counts. Defendant was sentenced to serve six years in the Illinois Department of Corrections.

Dorothy Stirgus moved into a home at 7924 South Fairfield in Chicago on February 7, 1987. On February 17, 1987, Ms. Stirgus was in her bedroom watching television. At approximately 10 p.m., she heard a loud crashing sound. Ms. Stirgus jumped out of bed, ran to her bedroom door and opened the door. The kitchen and hallway leading up to the bedroom were engulfed in flames.

The indictment charged that on February 17, 1987, John Benoit (Benoit), John Waitman (Waitman), William English (English) and Doyle committed the offenses of aggravated arson, arson, conspiracy to commit aggravated arson and conspiracy to commit arson at 7924 South Fairfield in Chicago. The address was the residence of Dorothy Stirgus. There was a joint and simultaneous trial where Benoit had a jury trial and Waitman and Doyle had separated bench trials. Doyle is the only defendant involved in this appeal.

Prior to trial Doyle filed various motions to suppress. Separated hearings were held on such motions. The trial court denied the motions to suppress.

On appeal defendant argues: (1) The trial judge erred in denying the defendant’s motion to quash his arrest and suppress evidence; and (2) the inculpatory statements made to the police at the police station were the direct result of the illegal arrest and must also be suppressed. Alternatively, the State maintains: (1) The police had probable cause to arrest the defendant; and (2) assuming argu-endo the arrest was illegal, the defendant’s statement to police at the station should not be suppressed since the statement was attenuated from the allegedly illegal arrest.

For the following reasons we affirm the decision of the trial court.

On February 20, 1987, Detective Leonard Rolston of the bomb and arson section of the Chicago police department was working on an arson case involving 7924 South Fairfield. English had been arrested on an unrelated offense and the arresting officer in that case indicated that English had pertinent information as to who committed the fire bombing at 7924 South Fairfield. Rolston talked to English in a lockup section of a police station. English initially told Rolston that he heard that Angelo Torres and Frank Manzo had perpetrated the fire bombing. On February 19, 1987, Sergeant Lowe and Detective Wesley Blaau of the human relations division picked up Frank Manzo for interrogation by the bomb and arson investigators. Lowe did not observe the interrogation. However, Lowe made a report which indicated that some investigator informed him that English exonerated Manzo.

On February 19 or 20, Rolston arranged to have English transferred from the Cook County jail to 11th and State. English talked about what occurred on February 17, 1987. In the initial conversation, English told Rolston that he had been in the area of the fire bombing, but that he had no friends there. In the subsequent version, English stated that he was with friends that night in the area of the fire bombing on 79th Street. English gave two versions before he implicated Benoit and Waitman in this case. Rolston stated that English had told another detective that Waitman and the defendant could verify his whereabouts. Rolston stated that English never made a statement which implicated himself and in fact was a confession to his part in the fire bombing. Rolston mentioned that certain physical evidence recovered from the scene corroborated English’s statement. Rolston stated that English told him that these youths were making a fire bomb out of RC bottles. English told Rolston that they purchased gasoline and poured it into RC bottles.

Sergeant James Sandow of the bomb and arson section of the Chicago police department testified that he was involved in the investigation of the fire bombing that occurred at 7924 South Fair-field. Sandow stated that he learned from Rolston that English was the primary suspect in this case. Sandow stated that English had taken and failed a polygraph exam, and that he was then questioned by Rolston and gave various stories of his involvement. San-dow mentioned that it was difficult to ascertain from English what was the truth because he had mentioned several stories. Eventually, English had indicated that Benoit and Waitman were cohorts who committed this particular fire bombing. English also mentioned that the defendant had driven the other three to a location distant from the actual scene of the occurrence, defendant was told to wait there until they returned, and when they returned, defendant drove them to wherever they lived.

On February 20, 1987, at about 2 a.m. Sergeants Sandow, Sykes and Lowe as well as Detectives Gardner, O’Meara and Blaau arrived at the defendant’s house, which is located at 4232 West 81st Street in Chicago. Sandow testified that the reason that six officers went to the Doyle residence was that, due to the nature of this particular incident, the investigation was a joint effort between the bomb and arson unit and the human resource department. He stated it is police routine to have two detectives present. He further testified that Sergeant Sykes had been in the unit for not even a month and Sandow was training him, not because Sykes didn’t have police experience, but rather that Sykes was totally unaware of an arson investigation. The police had no warrants. Sandow stated that the only information that he had with respect to the defendant was that he may have been unwittingly used by the other defendants to drive them to the site of the particular incident. San-dow stated that the defendant was not a target. Sandow went to the defendant’s house primarily to question him to determine whether he would be any type of beneficial witness against the individuals involved in the fire bombing.

Sandow, Sykes and Lowe rang the doorbell and knocked on the door. The defendant’s sister opened the door. Sandow identified himself and the other two sergeants by showing his star and identification. Defendant’s sister invited the officers in and told them to have a seat. The other three police officers waited outside. The defendant’s sister went upstairs to get her father, William Doyle. William Doyle identified himself as a retired Chicago police officer. Sandow talked to the defendant’s father for about 10 minutes. The father asked his daughter to go in the basement and wake up the defendant. Thereafter, the defendant came upstairs. Sandow stated that the father spoke to the defendant first. Sandow stated that the father explained to the defendant that the police officers were at the house on a serious matter involving a fire bombing, and that he (defendant) was to tell the police the truth and tell the police everything he knew about this incident. Sykes testified that the father was the first person to tell the defendant to tell the truth and what he knew about the incident.

After the father talked to the defendant, Sandow asked to speak to the defendant and the defendant agreed to speak to him. Sandow stated that he told the defendant that if he was going to tell anything, he expected it to be the whole truth without any lies whatsoever because this could be a very important day in his life. Sandow stated that frequently witnesses have lied to him and he did not want the defendant to lie to him and involve himself in something that he was not involved in. Sandow stated that the defendant was not a suspect, not in custody, and he was free to go. Neither Sandow nor anyone else gave the defendant Miranda warnings at his home. Sandow spoke with the defendant for about 10 to 15 minutes. There was no interrogation of any length pertaining to the fire bombing. Sandow stated that the defendant began making some statements that in his mind immediately made him (Sandow) believe that the defendant was very likely involved in this incident. Sandow could not recall the exact content of the words that the defendant said, but it was obvious to him that the defendant was beginning to incriminate himself. After these statements, Sandow told the defendant to stop. Sandow did not tell the defendant that he was under arrest. Sandow asked the defendant and his father to accompany the police to their office and discuss this further. The defendant and his father agreed to do so. Doyle went downstairs to get dressed in street clothes. Sandow stood in the doorway while Doyle got dressed.

Sandow, Sykes, and Lowe denied that there was any psychological coercion of the defendant or inducements made to him. Detective Leonard Sykes testified that he was a Chicago police officer assigned to the bomb and arson unit. He was assigned to investigate a fire bombing at 7924 South Fairfield. At approximately 2 a.m. on February 20, 1987, he went to Doyle’s house. He was accompanied by Sergeants Sandow and Lowe and Detectives Gardner, O’Meara and Blaau. Sykes’ testimony corroborated that of Sandow as to the officers’ entry into the home and the conversation with Doyle’s father. Sykes stated that the officers told Doyle who they were and then his father told Doyle to tell the officers what happened. Sykes testified:

“A. Well, Pat [Doyle], he started talking about they had gotten together and he started talking about going in the basement and pouring the gasoline in the bottles. We said, hold it Pat. I didn’t want to hear — we didn’t want to hear anymore because at that point—
Q. Why did you say hold it?
A. At that point we hadn’t told him anything about his rights or anything. At that point we had not came there to lock him up. We thought he was going to be a witness more or less.”

On February 20, 1987, at 3 a.m. Detectives Rolston and Salvatore saw the defendant at 11th and State. The defendant was not handcuffed. At this time Rolston informed the defendant of his Miranda rights, and the defendant said he understood them. Rol-ston also stated that there were no threats or inducements. Thereafter, Rolston interviewed the defendant for 15 to 20 minutes.

TRIAL COURT’S RULING

The trial court denied the defense motion to quash arrest and suppress evidence. First, the court found that the officers originally did not have probable cause to make any sort of arrest when they went to the Doyle home. He noted that the officers had previously questioned English and that English gave certain statements; however, the officers did not acquire probable cause at that time. The court found that at the time the officers went to the Doyle home, they did not go there for the purpose of arresting Doyle for committing this crime or any other crime, but rather the officers went to the Doyle home to talk to Doyle as a witness. The officers did so based on the statements given by English and other investigations by the officers. The trial court noted that the officers were correct in going to the home and stated:

“Just as crime did not happen between the hours of 9:00 and 3:00 every day, the investigation of crimes do not occur, they occur in the officers’ working 24 hours a day. These officers were working. There is no evidence that they waited in the middle of the night to go out and make an arrest at any time if they wish. *** There is not evidence that I have heard that the officers went there, barged through the door, made an illegal arrest. They knocked and rang the doorbell, and they were voluntarily admitted.”

The trial court noted that evidence had been presented as to the mental capacity of Doyle’s sister. The trial court stated that it was clear that this was an 18-year-old woman and that she had authority to be in that house and she had the authority to open the door. The court stated that clearly she opened the door and that even if she did not the officers did not barge in and arrest the defendant. Before talking to the defendant they requested permission from his father. The officers explained to Mr. Doyle why they were there and why they wanted to talk to Doyle. Mr. Doyle summoned the defendant.

The trial court found that the officers were properly in the home and properly conducting an investigation and it was at that time that Doyle made a statement which would give the officers reason to believe that he was a suspect in the crime. The trial court stated: “When he made the statement about going to the basement and filling up certain bottles with gasoline, that gave the officers probable cause at that time, only at that time, to make an arrest of the defendant.”

The court further noted that after Doyle made the statement and the officer went to watch him dress, Doyle was not free to leave at that time but the officer felt that he had probable cause to bring him to the police station.

In another separate motion to suppress, the court found that any statements that occurred in the home before Doyle made the incriminating statement as to show his knowledge as to what was going on would be admissible and that any other statements would not be admissible until he was advised of his constitutional rights and waived those rights. The trial court also found that defendant was advised of his constitutional rights at the police station, understood those rights and waived his rights at that time. No psychological coercion was used on Doyle and no promises or threats were made to him.

A

On appeal defendant contends that his arrest was unlawful due to the lack of probable cause. The trial court found that when the defendant made the statement about going to the basement and filling up bottles with gasoline, this gave the officers probable cause at that time to make an arrest of the defendant. Defendant argues that said statement referred to by the trial court, by itself, does not show that the defendant committed the crime in question or assisted anyone in the fire bombing of the complainant’s house on the night in question.

A person may be arrested without a warrant when a police officer has reasonable grounds to believe he has committed a crime. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984; Ill. Rev. Stat. 1987, ch. 38, par. 107—2(l)(c).) Probable cause exists when the police have knowledge of facts that would lead a reasonable person to believe a crime had been committed and the person arrested committed the crime. (People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146; People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.) Although more than mere suspicion is necessary, evidence sufficient to convict is not required. (People v. King (1987), 157 Ill. App. 3d 76, 511 N.E.2d 685.) The court should focus on probabilities and should not be unduly technical in deciding whether probable cause existed. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317; People v. Gutknecht (1984), 121 Ill. App. 3d 839, 460 N.E.2d 60.) The police officer’s actions in making an arrest are to be judged by the practical considerations of everyday life, keeping in mind the officer’s underlying responsibility to prevent crime, to apprehend criminals and to act quickly in appraising data. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 399, 495 N.E.2d 984, 989.) A reviewing court will not disturb a trial court’s determination on a motion to quash an arrest unless the decision was manifestly erroneous. People v. Foskey (1990), 136 Ill. 2d 66, 76, 554 N.E.2d 192; People v. Adams (1989), 131 Ill. 2d 387, 546 N.E.2d 561.

On a ruling on a motion to suppress, it is the province of the trial court to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Rodriguez (1986), 141 Ill. App. 3d 923, 929, 491 N.E.2d 53.) The trial court had the opportunity to observe the witnesses and determine their credibility. The trial court determined that the officers went to the Doyle house to conduct an investigation and that the officers were voluntarily admitted to the home. We cannot find that these were clearly erroneous findings.

The test for whether probable cause to arrest defendant existed depends upon the knowledge possessed by the officer at the time of the arrest. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) Defendant’s statement alerted the police to the fact that he was aware of the method used to commit the crime, including the type of bottles used to make the Molotov cocktails. This fact taken together with the various statements by English that placed the defendant around the scene of the crime would lead a reasonable person to believe that Doyle had committed a crime.

Finally, a relevant factor in determining whether the officers acted properly is the seriousness and violent nature of the offense. (See People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984; People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31.) The offense in the present case, the racially motivated fire bombing of a private residence, certainly is a very serious and violent crime.

Based on totality of the circumstances, we find that a reasonable person having the knowledge of the police officers in this case would believe that the defendant was involved in the crime. Since an officer rests his decision to arrest a person on probabilities, not proof beyond a reasonable doubt (People v. Summers (1981), 100 Ill. App. 3d 170, 426 N.E.2d 937), we cannot find that the trial court’s denial of the defendant’s motion to quash the arrest was manifestly erroneous.

B

Defendant further argues that since his arrest was illegal, inculpatory statements made to the police at the police station a short time after his illegal arrest must be suppressed. Since we have concluded that Doyle’s arrest was proper, we must therefore conclude that his statements made thereafter were not tainted by an invalid and unconstitutional arrest.

For the all of the reasons set forth above, we affirm the decision of the trial court.

We wish to point out that this case is an example of a situation occurring far too often in the appellate court. The defendant in this case is eligible for parole two months from the date of oral argument. By the time the defendant is paroled the time to petition for a rehearing in this court most likely will not have expired and the time to petition for leave to appeal to the Illinois Supreme Court definitely will not have passed. We see far too many cases where the defendant is approaching or has passed a release date prior to the date his appeal is heard. In many appeals of this nature, delays are caused by both sides. In this particular case the notice of appeal was filed on April 27, 1990, the defendant’s brief was filed November 19, 1991, and the State’s brief was not filed until April 29, 1992. Delays have become the norm rather than the exception. We recognize that both the State’s Attorney’s office and the public defender’s office have considerable caseloads; however, excuses will not eliminate the problem. It has almost become a matter of course for the parties to an appeal to request several continuances when filing their respective briefs. This opinion is not the proper forum to solve this problem; however, we hope that the communication lines will open between the various government agencies so that the problem can be solved.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
      In re ESTATE OF DAVID STEINFELD, A Disabled Person.
    First District (6th Division)
    No. 1—91—2665
    Opinion filed July 10, 1992.
    Modified on denial of rehearing September 4, 1992.

      Widman, Goldberg & Zulkie, Ltd., of Chicago (Joel L. Widman, of counsel), for appellants.
    Flamm & Teibloom, Ltd., of Chicago (Joel D. Teibloom, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

David Steinfeld, 48, was adjudicated a disabled person, and Rosemarie Hoddick was appointed plenary guardian of his person on June 8, 1989, as the result of a petition filed by David’s mother, Lotte. In the succeeding two years, Lotte Steinfeld, David’s brother Joseph, and Joseph’s wife, K. Janet Steinfeld, attempted unsuccessfully to remove Hoddick as guardian and have Joseph appointed successor guardian. In 1991, while the proceedings to remove Hoddick were still pending, the probate court gave Joseph and K. Janet Steinfeld (the Steinfelds) permission to take David to visit his family in California. In August of 1991, after the Steinfelds failed to return David to Illinois, the court: (1) held the Steinfelds in contempt of court and (2) denied Joseph Steinfeld’s motion to vacate the 1989 order adjudicating David disabled and appointing Hoddick guardian.

Joseph Steinfeld appeals the denial of his motion to vacate the 1989 order contending the order is void for the trial court’s failure to comply with the statutory requirements for adjudicating someone disabled and appointing another person his guardian. The Steinfelds also contend the probate court improperly held them in contempt for failure to return David to Illinois because the contempt order as well as all other proceedings in the probate court regarding David were based on the original void adjudication of David’s disability and Hoddick’s appointment.

The record establishes that in 1989, Lotte Steinfeld petitioned the probate court in Cook County circuit court to adjudicate David to be a disabled person and to appoint Hoddick as guardian of David’s person because he lacked sufficient understanding and capacity to make and communicate responsible decisions regarding his own care.

David and his two brothers, Joseph and Tommy, were served with summons according to statutory requirements. (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—10(e).) David was not present at the June 8, 1989, hearing and the trial judge did not inquire into his absence despite a statutory requirement that he be present unless excused by the court upon good cause shown. (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—11(a).) No guardian ad litem was appointed for David to be present at the hearing and David was unrepresented. Statute requires that a medical report be filed with the petition and that if one is not filed the court should order that the appropriate medical evaluations be performed and a report be prepared and filed with the petition at least 10 days prior to the hearing. (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—9(b).) The record establishes that no medical report was filed and the court never ordered medical evaluations done prior to the hearing.

The statute requires that the court inquire at the hearing regarding: (1) the nature and extent of respondent’s general intellectual and physical functioning; (2) the extent of the impairment of his adaptive behavior if he is developmentally disabled, or the nature and severity of his mental illness if he is mentally ill; (3) the understanding and capacity of the respondent to make and communicate responsible decisions concerning his person; (4) the capacity of the respondent to manage his estate and his financial affairs; (5) the appropriateness of proposed and alternate living arrangements; and (6) any other area of inquiry deemed appropriate. Ill. Rev. Stat. 1989, ch. 110½, par. 11a—11(e).

At the hearing, Lotte Steinfeld’s attorney stated that Hoddick had been taking care of David for many years. Hoddick told the judge that she spoke with David by phone every week and saw him every month. Lotte Steinfeld’s attorney noted that the petition did not include a medical report as required by statute, but he said he thought the medical report was unnecessary since David had had Down Syndrome since birth. He told the court: “When you see David and talk to him, think of him as a child *** when you talk to him it totally escapes me that he is actually an adult. He had an I.Q. of 62; it says combined I.Q., verbal and functional.”

The court entered an order adjudicating David disabled and appointing Hoddick plenary guardian over David’s person. The factual basis, required by statute to be stated by the judge, stated: “He has suffered since birth from Down’s Syndrome, has a low intelligent quotient, and has low age maturity.” Before the hearing ended, the judge ordered Lotte Steinfeld’s attorney to “bring in the medical report for the record.” The record on appeal includes no medical report.

During the next two years, three petitions were filed regarding this appointment.

FIRST PETITION

On June 11, 1990, Joseph Steinfeld and Lotte Steinfeld moved to remove Rosemarie Hoddick as guardian because she was unfit and moved to appoint Joseph as successor guardian. On July 11, 1990, the court heard Joseph Steinfeld’s testimony and entered an order appointing Kerry Peck as David’s guardian ad litem, continuing the hearing on the motion to remove Hoddick as guardian. The motion was continued several times but the record does not reflect that the motion was ruled upon or withdrawn.

SECOND PETITION

On December 20, 1990, Joseph’s wife, K. Janet Steinfeld, petitioned to be added as a petitioner and Lotte Steinfeld petitioned to be voluntarily dismissed from the action. Simultaneously Joseph and K. Janet Steinfeld (Steinfelds) filed an amended petition that sought: (1) to remove Hoddick as guardian for cause on the ground of her incompetence; (2) to appoint the Steinfelds as successor guardians; and (3) to obtain an accounting of David’s employment paychecks allegedly confiscated by Hoddick. Both the motion and the petition were continued to January 18, 1991, but the record does not indicate that the trial judge ruled upon any the petitions presented to him December 20, or that they were withdrawn.

Before the third petition for Hoddick’s removal was filed, the Steinfelds petitioned for and received court permission to take David from Illinois to the Steinfelds’ home in California for approximately four weeks. When the Steinfelds failed to return David by April 16, 1991, the court issued a rule to show cause why the Steinfelds should not be held in contempt for failure to comply with the court’s order. At no time did the Steinfelds challenge the court’s jurisdiction over David or themselves and they do not do so now on appeal.

THIRD PETITION

On June 7, 1991, Joseph Steinfeld alone filed a third petition to vacate the order appointing Hoddick as David’s guardian. The petition alleged that the trial judge failed to follow the necessary statutory requirements when he entered the original June 8, 1989, adjudication order. Joseph Steinfeld alleged, in part, that the trial judge failed to require the mandatory medical report, require David’s presence in court or explain his absence or give David an opportunity to be represented by counsel.

Hearing on the third petition was continued several times, and on August 15, 1991, the court ordered the clerk of the circuit court to diligently search court files to determine whether a medical report ever was filed in the cause. On August 16, Cook County Circuit Court Clerk Aurelia Puchinski certified that no medical report was found in any court files. Hoddick filed a response to the motion to vacate, attaching as an exhibit a psychological report that included David’s IQ, which she contended the trial judge had at his disposal when he adjudicated David as a disabled person.

On August 22, 1991, the trial judge heard arguments from Hod-dick’s attorney, the Steinfelds’ attorney and the guardian ad litem, with regard to Joseph Steinfeld’s third petition to vacate the appointment of Hoddick as plenary guardian of David’s person and the adjudication of David as disabled. The trial judge then denied the petition and held that: (1) David had Down Syndrome, was a disabled person and was properly under the supervision of the court; and (2) that the previous trial judge had conducted a hearing “sufficient to appoint” Hoddick.

In addition, the court denied Steinfeld’s motion to stay the contempt proceeding, heard arguments on the rule to show cause and then held the Steinfelds in contempt for failure to return David to Illinois as ordered. The court imposed a $50-a-day fine on the Steinfelds beginning August 22, 1991, and denied Peck’s request to issue a bench warrant for the Steinfelds. The Steinfelds appeal both the contempt finding and the denial of Joseph Steinfeld’s motion to vacate Hoddick’s appointment. The contempt finding will be discussed separately below.

Initially Hoddick contends that the Steinfelds should have pursued their opposition to the 1989 order in a timely fashion before the trial court but failed to do so either under the 30-day rule in section 2—1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1202(c)) or during the 30-day to 2-year time limit provided in section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). In addition, no notice of appeal was filed within 30 days of adjudication and appointment of guardian as prescribed by Supreme Court Rule 303(b) (134 Ill. 2d R. 303(b)).

In support of her argument that the Steinfelds have failed to challenge the adjudication in a timely manner, Hoddick cites In re Estate of Kime (1981), 95 Ill. App. 3d 262, 267-68, 419 N.E.2d 1246 (an order in an estate proceeding which finally determines the right or status of a party must be appealed within 30 days from the entry of the order), and In re Estate of Storino (1977), 51 Ill. App. 3d 49, 52, 366 N.E.2d 363 (appeal dismissed on final order establishing guardianship for minor children because it was filed three months after the trial judge’s ruling).

The Steinfelds contend, however, that the trial judge, in failing to follow statutory requirements in originally adjudicating David disabled, entered an order that is void ab initio and therefore one which can be challenged at any time. (Oak Park National Bank v. Peoples Gas Light & Coke Co. (1964), 46 Ill. App. 2d 385, 396-97, 197 N.E.2d 73.) A decree may be void where the court has exceeded its jurisdiction (Oak Park National Bank, 46 Ill. App. 2d at 395) or lacks jurisdiction (Barnard v. Michael (1945), 392 Ill. 130, 135, 63 N.E.2d 858).

We disagree with the Steinfelds’ position. We find that the 1989 order, though potentially voidable, is not void ab initio. A court’s action is void only if an inspection of the record establishes that the court acted without jurisdiction. (Orrway Motor Service, Inc. v. Commerce Comm’n (1976), 40 Ill. App. 3d 869, 873, 353 N.E.2d 253.) Here the trial court had the authority, by statute, to both adjudicate David as a disabled person and to appoint Hoddick as guardian. That is exactly what the court did. The court’s failure to follow statutory procedure in making such an adjudication, however, could render the order voidable. However, such failure to follow statutory requisites does not render the order void ab initio.

Generally a court loses the power to review its judgments after the passage of 30 days. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294.) Consequently, a request to vacate a prior judgment after the 30-day period following its entry is properly before the trial court only when presented by petition in accordance with section 2—1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 877, 374 N.E.2d 1078.

Section 2—1401 states that “[r]elief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this [sjection” and that “[t]he petition must be supported by affidavit or other appropriate showing as to matters not of record.” Ill. Rev. Stat. 1989, ch. 110, pars. 2—1401(a), (b).

The purpose of a petition under section 2—1401 is to bring before the court matters of fact not appearing in the record, which, if known to the court at the time the judgment was entered, would have prevented its rendition. Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App. 3d 688, 690, 306 N.E.2d 510.

To request relief under section 2—1401, the petitioner must allege and prove that he has a meritorious defense; that it was through no fault or neglect of his own that the meritorious defense was not presented to the trial court; that he exercised due diligence in defending the original action; and that he exercised due diligence in filing the petition for section 2—1401 relief. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.

Joseph Steinfeld’s petition to vacate the 1989 order was filed only one day prior to the expiration of the two-year post-judgment period and did not comply with the statutory requirements necessary for a section 2—1401 petition. Steinfeld has never attempted to argue nor has he contended that he met the requirements of a section 2—1401 petition. We find therefore that Joseph Steinfeld’s third petition filed on June 7, 1991, which sought to vacate the 1989 adjudication order, was not timely filed, and we affirm the trial court’s denial of the petition though we do so on grounds different than those expressed by the trial court.

Although we find that the 1989 order is valid, we voice our concern regarding the trial court’s apparent failure to follow statutory guidelines when it adjudicated David a disabled person and appointed Hoddick guardian. The probate judge did not require compliance with a number of procedural safeguards designed to protect David’s rights, most importantly David’s basic right to be present in court or to be represented by an attorney. The trial judge neither appointed a guardian ad litem for David nor indicated on the record that such an appointment was unnecessary. No medical report was filed with the recommendations of a licensed physician as required under section 11a—9 of the Probate Act. (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—9.) The statute sets forth specific inquiries the judge should have made into David’s physical and mental well being. Serious questions remain as to whether adequate inquiries were made as Hoddick now contends since the transcript of the hearing does not reflect compliance with the statutory requirements. Neither the petitioner, Lotte Steinfeld, nor David was present and only Hoddick and Lotte’s attorney testified at the adjudication hearing.

Next, we find that the trial judge erred by ruling on the third petition when he previously had not entertained arguments and ruled on the first two petitions filed by the Steinfelds. Properly filed motions should generally be heard and disposed of in the order in which they are filed. In re Dominique F. (1991), 145 Ill. 2d 311, 324, 583 N.E.2d 555.

Here the trial judge erred in failing to conduct hearings and rule on the two earlier petitions that sought to remove Hoddick as guardian. The Probate Act permits that, “[u]pon the filing of a petition by or on behalf of a disabled person or on its own motion, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both.” (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—20(a).) The statute permits such a request to be communicated by any means, even by letter, phone call or personal visit to the judge. Ill. Rev. Stat. 1989, ch. 110½, par. 11a—20.

The statute permits any person to bring a petition on David’s behalf for removal of Hoddick as plenary guardian (Ill. Rev. Stat. 1989, ch. 110½, par. 11a—20), and therefore the July 1990 and December 1990 petitions by Lotte and Joseph Steinfeld to remove Hoddick as guardian were properly before the court. Hoddick contends that Joseph Steinfeld had no standing to bring such a petition. We disagree. Clearly Lotte Steinfeld had standing because she was the original petitioner in the case. Joseph, particularly in light of his status as a sibling of David, is an interested party and has standing to seek Hod-dick’s removal. The statute confirms his standing as an interested party in David’s adjudication since the statute requires notice be given to adult siblings. Ill. Rev. Stat. 1989, ch. 110½, par. 11a—10(f).

Additionally, the court failed to rule on K. Janet Steinfeld’s motion to be added as a petitioner and Lotte Steinfeld’s motion to be removed as a petitioner. Both were filed the same day the second petition was filed, December 20, 1990, and neither motion has been withdrawn, heard or ruled on.

The Steinfelds, both on appeal and before the trial court, offer a laundry list of mental and emotional problems they perceive with Hoddick. On appeal this court is asked to determine that Hoddick is an unfit guardian. However, the trial judge has the continuing responsibility to oversee the disabled person’s estate and to address the con-cems of the interested party about the propriety of the guardian’s activities on behalf of David and determine whether the letters of guardianship should be revoked. Ill. Rev. Stat. 1989, ch. 110½, pars. 11a—20,11a—21.

Therefore, we remand this cause to the trial court so that the court can consider and rule on the first two petitions filed, both as to the removal of Hoddick for cause, and on the motions of K. Janet and Lotte Steinfeld with regard to their status as petitioners.

Finally, we address the contempt findings against K. Janet and Joseph Steinfeld. Because the court never granted K. Janet Steinfeld’s petition to be joined as a petitioner, the court had no authority over her and the contempt finding against her must be reversed. Because we have already found that the 1989 order was not void ab initio, however, we disagree with Joseph Steinfeld’s contention that the contempt finding against him cannot stand.

Joseph Steinfeld correctly contends that if a court exceeds its authority in appointing a guardian, all subsequent orders based on that order of appointment are void. In re R.R. (1982), 92 Ill. 2d 423, 430, 442 N.E.2d 252 (a contempt citation and sentences of detention based on a void order of supervision were without foundation); In re Marriage of Page (1987), 162 Ill. App. 3d 515, 518, 515 N.E.2d 1061 (the trial court exceeded its statutory authority when it ordered the husband in a divorce proceeding to find a job and then held him in contempt for not doing so).

However, on appeal the reviewing court will set aside a finding of contempt only after it determines the court had no authority to enter into the inquiry before it. In doing so we must determine whether the court had (1) jurisdiction over the parties, (2) jurisdiction over the subject matter, and (3) power to decide the particular matters presented. It is no defense to a charge of contempt to show that the order was merely erroneous. Rather, the order must be void ab initio. (People v. Huntley (1986), 144 Ill. App. 3d 64, 68, 493 N.E.2d 1193.) We have concluded here that the original order was not void ab initio.

Joseph Steinfeld has never challenged the court’s jurisdiction over his person or over the subject matter with regard to his petition for leave to take David to California for a visit. He submitted to the court’s jurisdiction when he filed the first, second and third petitions to remove Hoddick as guardian. The court permitted Joseph Steinfeld a four-month period of time after his violation of the court order in which to return David to Illinois. Given those facts, Joseph Steinfeld cannot now challenge the court’s authority to enter the contempt finding on jurisdictional grounds.

In summary, we affirm the contempt finding against Joseph Stein-feld and the trial court’s denial of Steinfeld’s motion to vacate the 1989 order adjudicating David as disabled and appointing Hoddick guardian. We reverse the contempt finding against K. Janet Steinfeld. We remand this cause to the trial court for further proceedings on the petitions to add K. Janet Steinfeld as a petitioner, remove Lotte Steinfeld as a petitioner and remove Hoddick as guardian for cause under the court’s continuing authority to address the propriety of the guardian’s exercise of authority on David’s behalf.

Affirmed in part; reversed in part and remanded.

EGAN, P.J., and McNAMARA, J., concur.

      Justice LaPorta authored the original opinion before her death. Justice Rakowski, who concurred in that opinion, was substituted for the modified opinion.

       Justice LaPorta authored the original opinion before her death. Justice Egan was substituted for the modified opinion, and he has listened to the oral argument tape and read the briefs and the petition for rehearing.


author: JUSTICE STEIGMANN

text:
    THE TOWN OF THE CITY OF BLOOMINGTON et al., Plaintiffs-Appellants and Cross-Appellees, v. BLOOMINGTON TOWNSHIP et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 4—92—0010
    Opinion filed August 24, 1992.

      J. Todd Greenburg, Corporation Counsel, of Bloomington, for appellant City of Bloomington.
    James R. DePew, of DePew, Grimes & DePew, of Bloomington, for appellant Town of City of Bloomington.
    Bruce Thiemann, of Peoria, for appellee Bloomington Township.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On four separate dates in 1990, the City of Bloomington (City) annexed four parcels of land in Bloomington Township, the adjacent township south of the City. On the dates of these annexations, the boundaries of the Town of the City of Bloomington (City Township) were coterminous with those of the City. As a result of these annexations by the City, City Township claimed that all four annexed parcels had automatically been transferred from Bloomington Township to City Township. Despite this claim, Bloomington Township asked the City’s Board of Election Commissioners to place the transfer question on the November 1991 ballot for referendum approval. The board did so, and in the November 1991 election, the voters in Bloomington Township voted against the transfer.

In August 1991, before the November 1991 election was held, the City and City Township filed the present action seeking, in part, a declaratory judgment that the four parcels had already automatically transferred to City Township and that the referendum would be a nullity. After the November 1991 election was held, the trial court granted the petition for declaratory judgment, held that the four parcels had automatically transferred, and also held that the referendum results to the contrary were therefore null and void. The court further held that the four parcels had transferred only because the Bloomington Township board of trustees had not timely preserved the issue of transfer for referendum approval. City Township, the City, and Bloomington Township appeal from that order. Bloomington Township also argues on appeal that the trial court improperly excluded testimony regarding legislative intent of the statute at issue.

We affirm.

I. Facts

The State of Illinois is divided into counties, which are sometimes divided further into townships. For the most part, townships divide a county into adjacent, rectangular plats. Townships do not have “home-rule” authority; instead, they can perform only those governmental functions allowed by statute. (Ill. Rev. Stat. 1991, ch. 139, par. 38(a).) Two types of townships exist: rural and urban. Rural townships govern large areas of rural land, providing the residents thereof with certain governmental functions, such as road construction and maintenance. They also provide localized government services for rural areas that do not have a city government. An urban township (or coterminous township), on the other hand, lies entirely within the boundaries of a municipality. Although an urban township can exercise the same powers as rural townships, an urban township usually does not because the coterminous city government provides those services.

McLean County is divided primarily into rectangular, square-like townships. City Township cuts into an otherwise square Bloomington Township, creating a jagged boundary. This boundary between City Township and Bloomington Township has changed frequently over the years as the City annexed parts of Bloomington Township.

The City annexed the four parcels of land at issue in this case in four separate annexation ordinances. The first ordinance was passed on January 8, 1990; the second ordinance on March 12, 1990; the third ordinance on June 26, 1990; and the fourth ordinance on July 23, 1990. Thus, all four ordinances were passed within one 12-month period. The first and third ordinances annexed tax-exempt property and accordingly did not deprive Bloomington Township of any of its tax base. However, the second ordinance annexed 0.9617% of Bloom-ington Township’s equalized assessed valuation (EAV), and the fourth ordinance annexed 0.2229% of Bloomington Township’s EAV. Therefore, the second and fourth annexations deprived Bloomington Township of 1.1846% of its total EAV.

Within 45 days of each of the first three annexation ordinances, the Bloomington Township board passed resolutions stating that the transfer of the annexed parcels from Bloomington Township to City Township would not be in the best interests of Bloomington Township. The Bloomington Township clerk received notice of the fourth annexation on September 4, 1990. However, the Bloomington Township board did not vote until March 12, 1991, that the transfer of this fourth parcel of land would not be in the best interests of Blooming-ton Township.

The Board of Election Commissioners for the City approved for referendum at the November 1991 election the transfer question regarding all four parcels. In August 1991, the City and City Township petitioned the circuit court for a declaratory judgment that each parcel had already automatically transferred to the City Township. Before the circuit court ruled on the petition, the voters of Bloomington Township voted against transferring township control of the four parcels from Bloomington Township to City Township.

In December 1991, the trial court entered an order nullifying the November referendum because Bloomington Township had not timely protested the fourth annexation so as to have the question submitted for the November election. The court also held that had Bloomington Township timely protested the fourth annexation, then the referendum could have raised the question of the township transfer of all four annexed parcels.

II. Analysis

A. Section 1 of the Township Annexation Act

This case requires the first judicial construction of the fourth and ninth paragraphs of section 1 of the Township Annexation Act (Act) (Ill. Rev. Stat. 1991, ch. 139, par. 127), which read as follows:

“Whenever a city which is coterminous with a township proposes to annex any territory in an adjacent township, the city clerk shall, by registered or certified mail, file a certified copy of the annexation ordinance with the clerk of the township in which the proposed disconnection is to take place. Except as otherwise provided herein, if, within 45 days after the notification, the board of trustees of the township from which the territory is to be disconnected determines by a majority vote of those then holding office that the disconnection would not be in the best interests of that township, the board may request that a referendum approving or disapproving the disconnection be held in that township. ***
* * *
Within any 12 month period beginning on the date of a coterminous city’s first annexation after August 11, 1986, where any parcel of territory lying in an adjacent township is annexed by the city and such parcel constitutes less than 1% and until all such parcels annexed during each such annual period constitute 1% or more of the total equalized assessed value of the adjacent township, each separate parcel shall become disconnected from that township and included in the coterminous township without having the proposition to disconnect submitted to the voters in the adjacent township.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 139, par. 127.

In the present case, the City passed three annexing ordinances that cumulatively annexed less than 1% of the EAV of an adjacent township’s territory. The City then passed an additional ordinance that increased the total amount of annexed land to 1% or more of the adjacent township’s EAV. However, the adjacent township (Blooming-ton Township) failed to vote to put the fourth annexation to referendum approval within the time provided by section 1 of the Act. The issue in this case is whether the transfer of township control over the land in any or all of the City’s annexations that occurred within that 12-month period thereby became subject to referendum approval.

Bloomington Township argues that the referendum regarding the first three annexations should stand because Bloomington Township did protest those three annexations within 45 days. This argument is based on paragraph 12 of the trial court’s order, which states the following:

“12. Whenever, in the relevant twelve month period, a city which includes a coterminous city township annexes a total of more than 1% of the total EAV of an adjacent township, all parcels so annexed during that twelve month period may be the subject of a referendum to disconnect territory. The automatic disconnections of the first three annexations by the City of Bloomington were contingent on the City not annexing more than 1% of Bloomington Township’s EAV in the annexation year.” (Emphasis added.)

However, paragraph 13 of the trial court’s order reads as follows:

“13. The Board of Trustees of Bloomington Township did not vote to request a referendum on the fourth annexation within forty-five days after receiving notification of such annexation from the Bloomington City Clerk. Because the fourth annexation was the action which would have permitted a disconnection referendum, the failure to vote [on the fourth annexation] to request a referendum within the proper time limits caused all four parcels involved to be automatically disconnected from Bloomington Township and connected to the [City Township].”

Under the trial court’s interpretation of section 1, as shown in the above paragraphs, Bloomington Township’s argument has merit. If, indeed, the first three annexations to City Township were contingent on the City’s not subsequently pushing the total of annexed land over the 1% EAV threshold within the 12-month period from the date of the first annexation, then the first three annexations would immediately become subject to referendum approval as soon as the City passed another ordinance raising the total of annexed land over the 1% EAV threshold for that 12-month period. In paragraph 12, the court stated that the “automatic [transfers] of the first three annexations by the City of Bloomington were contingent on the City not annexing more than 1% of Bloomington Township’s EAV in the annexation year.” (Emphasis added.) The court did not state that the first three annexations were contingent on Bloomington Township’s timely protesting the fourth annexation.

However, we disagree with this reading of the statute by the trial court. Prior to the enactment of Public Act 84—1261, §2, effective August 11, 1986 (see 1986 Ill. Laws 1364, 1366), section 1 of the Act provided that whenever a municipality with a coterminous township annexed territory previously within an adjacent township, the annexed territory would automatically transfer from the adjacent township to the coterminous township. (See Ill. Rev. Stat. 1985, ch. 139, par. 127.) As a result, many rural townships lost much of their EAV when adjacent cities annexed portions of their land. The legislature responded to this situation by enacting Public Act 84—1261, which curbed the extent to which city annexations would automatically transfer township control from the adjacent rural township to the coterminous city township.

Bloomington Township argues that paragraph 12 of the trial court’s order correctly states the intent of the legislature to protect adjacent, rural townships from excessive annexation. However, the plain language of section 1 of the Act indicates that until the cumulative amount of annexed territory exceeds 1% of the adjacent township’s EAV, township control over “each separate parcel” automatically transfers to the coterminous township — here, City Township. (Ill. Rev. Stat. 1991, ch. 139, par. 127.) The “each separate parcel” phrase makes this transfer contingent on nothing; instead, it occurs automatically and immediately as long as the total amount of annexed land in a given 12-month period does not exceed 1% of the adjacent township’s (here, Bloomington Township’s) EAV.

In other words, nothing in the statute indicates that the transfer will occur only if the city annexes less than 1% of the adjacent township’s EAV during the 12-month period in question. Instead, when a city annexes a parcel that pushes the total amount of annexed land to 1% or more of the adjacent township’s EAV, only then does the notice, protest, and referendum paragraph kick into effect, and only then for the annexation that put the annexed property over the 1% threshold, as well as for any subsequent annexations within that same 12-month period. The prior annexations within that same 12-month period had already automatically transferred township control of the parcels annexed thereby to the coterminous township. Accordingly, Bloomington Township could do nothing in the present case to challenge the three earlier annexations, no matter how much of its EAV may be affected by later annexations within the same 12-month period.

In grammatical terms, and as the City points out, Bloomington Township’s interpretation of the statute changes the “until” in the second, above-quoted paragraph of the statute to “unless.” (Indeed, we note that at oral argument, counsel for the Bloomington Township consistently substituted “unless” for “until” in his argument.) The term “until” indicates that an antecedent event, i.e., automatic transfer, will occur “until” a given condition occurs, whereupon the antecedent event will cease. On the other hand, the term “unless” indicates that the antecedent event will occur if the condition does not occur at all. In the present case, the statute reads that automatic transfer will occur “until” the total annexations reach the 1% threshold within a given 12-month period, whereupon township control will cease to automatically occur, and the notice, protest, and referendum provisions of the first, above-quoted paragraph apply for the most recent and any subsequent annexation. Ill. Rev. Stat. 1991, ch. 139, par. 127.

Therefore, under the current statute, when a city with a coterminous township annexes territory formerly within an adjacent township, township control over that territory automatically transfers from the adjacent township to the coterminous township (1) until the cumulative annexations within a 12-month period from the adjacent township’s territory equal 1% or more of the adjacent township’s EAV, and (2) unless, within 45 days of receiving notice of the annexation ordinance, the adjacent township votes that the transfer would not be in the best interest of the township. (Ill. Rev. Stat. 1991, ch. 139, par. 127.) If both conditions occur, then the board of the adjacent township can vote to have the question submitted to the voters in that township for a referendum on whether the transfer of township control should take place regarding only the parcel of land that took total transfers within a 12-month period over 1% of the adjacent township’s EAV and subsequent transfers within the same period. This referendum would not affect the city’s annexation at all; instead, the referendum would address only whether township control of the annexed land should transfer from the adjacent township (here, Bloomington Township) to the coterminous, urban township (here, City Township). If either of the above two conditions does not occur, then township control over the annexed territory automatically transfers from the adjacent township to the coterminous, city township.

In the present case, township transfer of the first three annexed parcels was contingent on nothing because combined they constituted less than 1% of Bloomington Township’s EAV. Because the first of the above conditions did not occur, township control over those three parcels automatically transferred from Bloomington Township to City Township immediately upon their annexation by the City. Only after the City passed the fourth and final annexation ordinance had the City annexed a total of 1% or more of Bloomington Township’s EAV. However, Bloomington Township’s failure to protest that annexation within 45 days—thereby failing to meet the second condition-caused that territory also to automatically transfer to City Township.

Bloomington Township claims that if a city annexes 0.99%—just under the 1% threshold—of an adjacent, rural township’s EAV in one ordinance and then annexes an additional 0.01% of that EAV—pushing the total to the 1% threshold—in a separate ordinance, then the adjacent township will not have an incentive to protest the transfer resulting from the annexation of that latter 0.01%. Thus, a clever city could annex 1% of an adjacent township’s EAV and effect an automatic transfer of all that annexed land to its coterminous city township despite the protections of section 1 of the Act. This argument leaves us unpersuaded.

The amendment to section 1 of the Act, contained in Public Act 84—1261, was not designed to block township transfer due to city annexations, only to slow it down a bit. Thus an adjacent, rural township has been given the statutory means to stop a township transfer if that transfer would result in the loss within a 12-month period of 1% or more of its EAV. Accordingly, we find the “horror story” argued by Bloomington Township to be perfectly consistent with both the spirit and the letter of section 1 of the Act, as amended by Public Act 84-1261.

B. Estoppel

Bloomington Township argues that its failure to protest the fourth annexation within the statutorily required 45 days resulted from confusion the City caused about whether the parcels included with the fourth annexation were located within Bloomington Township or somewhere else.

Based thereon, Bloomington Township argues that the City is estopped from claiming that Bloomington Township did not comply with section 1 of the Act. The trial court acknowledged Bloomington Township’s confusion, but held that the City did not intentionally confuse Bloomington Township and that it thus remained Bloomington Township’s duty to resolve this confusion and vote to request a referendum within 45 days of receiving notice of the annexation. We agree with the trial court. “To be estopped, a party must engage in conduct which reasonably causes the other person to change his position by lulling the claimant into a false sense of security.” (Board of Directors of Carriage Way Property Owners Association v. Western National Bank (1985), 139 Ill. App. 3d 542, 549, 487 N.E.2d 974, 979.) “Equitable estoppel prevents a party from taking advantage of his own wrongdoing.” Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 749, 544 N.E.2d 846, 851.

The record shows that the City notified Bloomington Township of every annexation it made, regardless of whether the annexed land is located within Bloomington Township. The City’s notice does not expressly identify the township in which the annexed land is located; instead, the notice describes the annexed land by its technical, legal description. The City also has followed a practice of sending Bloomington Township a yearly summary of the land the City annexed during the previous year. When Bloomington Township received notice in September 1990 of the City’s fourth annexation, Bloomington Township misread the notice and thought that the City had annexed land from some other township. Only when Bloomington Township received the City’s yearly notice in February 1991 did it realize that the City had annexed some of its own land. The Blooming-ton Township board then voted on March 12, 1991, to protest the transfer of township control of the annexed parcels, thereby causing the question to be submitted to referendum vote. The board’s vote occurred within 45 days of Bloomington Township’s receiving the February 1991 summary.

In the present case, the City neither committed any wrong nor lulled Bloomington Township into a false sense of security by providing only a legal description of the parcels annexed in the City’s fourth annexation ordinance. Although a legal description of land can confuse most lay people, it did suffice to provide Bloomington Township with notice; as long as the legal description accurately identified the annexed parcels at issue, Bloomington Township bore the burden of resolving any confusion it had over that description. Indeed, we note that Bloomington Township had no trouble understanding the legal descriptions of the parcels annexed by the City’s first three annexations at issue, as shown by its passing resolutions to put the question of the township transfer of those parcels to referendum. Its failure to do so for the parcels contained within the fourth annexation does not estop the City from pointing out Bloomington Township’s failure to comply. We find no basis in this record for holding that the City has done anything that could estop it from doing so.

C. Substantial Compliance

Bloomington Township also claims that we should not hold it to strict compliance with section 1 of the Act. It argues that it passed the required protest vote within 45 days of ascertaining that the City’s fourth annexation had annexed some of its land. Thus, it argues that it corrected its failure to provide a timely protest vote by substantially complying with section 1. It adds that the trial court did not punish the City for failing to notify Bloomington Township of the fourth annexation until long after that annexation occurred, even though the statute states that the City should have sent the Bloomington Township notice when the City “proposes to annex any territory in an adjacent township.” Ill. Rev. Stat. 1991, ch. 139, par. 127.

However, because the 45-day period within which Blooming-ton Township was statutorily required to protest the transfer did not start until the City notified Bloomington Township of the annexation, the City’s delay in notifying Bloomington Township did not adversely affect its ability to challenge the fourth annexation by referendum, if it so wished. Although the City should have notified Bloomington Township that the City proposed to annex the parcels in question, not after it had already passed the ordinance that annexed those parcels, its failure to do so did not adversely affect the statutory scheme.

In addition, we find no reason to allow Bloomington Township to merely substantially comply with the Act. Section 1 of the Act clearly states that Bloomington Township had 45 days to pass the appropriate resolution, which it did not do. (Ill. Rev. Stat. 1991, ch. 139, par. 127.) The 45-day period provided it with ample time to do so. We will not—and cannot—rewrite the statute from “within 45 days” to “within a sufficiently timely period before the next general election” under the guise of holding Bloomington Township to only substantial compliance.

D. Expert Testimony on Legislative Intent

Bloomington Township offered what it deemed expert testimony by George Miller, the executive director of the Township Officials Association of Illinois, on the legislative intent of section 1 of the Act. Miller claimed he had personally participated in the 1986 legislative process that led to the enactment of Public Act 84—1261, which amended section 1 of the Act by adding the paragraphs at issue in this case. The City objected to Miller’s testimony, and the trial court sustained that objection. Bloomington Township then made an offer of proof, at which Miller testified that Public Act 84—1261 resulted from a compromise between his association and another association representing the interests of cities, and that the position asserted by Bloomington Township in this case correctly stated that compromise. Bloomington Township claims that the trial court erred by sustaining the City’s objection to this testimony. We disagree.

A court should not permit opinion on a question of law (Selby v. Danville Pepsi-Cola Bottling Co. (1988), 169 Ill. App. 3d 427, 437, 523 N.E.2d 697, 702; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §704.1, at 536-37 (5th ed. 1990)) unless the court is dealing with a question of foreign law. (McCormick on Evidence §12, at 31 (3d ed. 1984).) Further, judges do not need expert help to merely read statutes. The trial court thus appropriately did not permit Miller to testify on his opinion as to how the statute should be construed.

Indeed, the trial court would have erred had it allowed Miller to testify. (See Selby, 169 Ill. App. 3d at 437, 523 N.E.2d at 702 (“Statutory interpretation is not a matter upon which an expert is competent to testify”).) Construing legislative enactments is a uniquely judicial function, and legislators and others involved in the legislative process ought not be allowed to testify regarding the meaning of a statute. Accordingly, “the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein (1990), 496 U.S. 617, 632, 110 L. Ed. 2d 563, 578, 110 S. Ct. 2658, 2667 (Scalia, J., concurring in part).

We note that legislators do not make laws by making speeches on the floor of the legislative chamber or by writing memos for committee meetings. They make laws by majority vote on a specifically worded bill that has been read three times before each house and distributed to each legislator. (Ill. Const. 1970, art. IV, §§8(c), (d).) Neither the disclosed nor undisclosed intent of a legislator or lobbyist becomes law; only the bill as it reads when passed becomes law. Allowing tailored court testimony purporting to explain what the legislature meant to say is unacceptable and potentially dangerous.

III. Conclusion

For the reasons stated, we affirm the trial court’s judgment.

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    ROGER BROOKS et al., Plaintiffs-Appellants, v. ESSEX CRANE RENTAL CORPORATION et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0049
    Opinion filed August 27, 1992.

      Dale A. Cini, of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellants.
    Frederic L. Kenney, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On February 15, 1990, plaintiff Roger Brooks (Roger) brought suit in the circuit court of Macon County seeking money damages for personal injuries suffered by him. On March 9, 1990, plaintiff Ruth Ann Brooks (Ruth Ann), Roger’s wife, joined in the suit seeking damages for loss of consortium arising from Roger’s injuries. Various parties were sued. This appeal concerns counts against defendants Essex Crane Rental Corporation (Essex) and Archer-Daniels-Midland Company (ADM). On September 5, 1991, the court granted a motion by ADM, based upon a statute of limitations defense, dismissing with prejudice all counts against ADM and denied plaintiffs’ alternative motion for leave to amend. On December 18, 1991, the court granted summary judgment, in bar of action, in favor of Essex and against plaintiffs. As to both orders, the court made findings pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) making both orders appealable. Plaintiffs have appealed. We reverse the orders granting Essex a summary judgment and dismissing counts against ADM in bar of action. We affirm the court’s denial of plaintiffs’ request to file amended counts against ADM. We remand for further proceedings.

Summary judgments are to be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) Judgment is proper when the matters properly before the court show that if the case were to go to trial, there would be no question for the trier of fact to decide, and the movant would be entitled to judgment as a matter of law. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 718, 506 N.E.2d 1052, 1055.

As far as the ruling on Essex’ motion for summary judgment is concerned, the facts set forth below are undisputed. For a number of years prior to April 11, 1988, ADM operated a plant at Decatur and had been employing ALL-TRI-R, a corporation, as a general contractor for various construction projects at that plant. On that day Roger was employed by ALL-TRI-R as a welder and was working at that plant. On that day, Roger and three other employees were instructed by Leonard Gordon, an ALL-TRI-R foreman, to help disassemble the jib portion of a 4000 W crawler crane leased by Essex to ADM for substantial consideration.

Plaintiffs do not dispute Essex’ explanation of the term “jib” in its brief as “a series of metal, lattice work pieces which extends from the tip of the boom” and that “[t]o either lengthen or shorten the jib, it is necessary to detach sections of the jib” which “are attached to one another by four (4) metal pins (2 at the top of the jib sections and 2 at the bottom of the jib sections).” The boom was 190 feet in length. The pins involved here were designed to connect sections of the jib by being hammered in perpendicularly with the head of the pin on the outside of the jib and the tapered end on the inside of the jib. Once the pin is in place, a “keeper pin” or a “cotter key” is placed within the tapered end of the pin and bent so that the pin does not slide out. The “keeper pin” can be removed when straightened.

Roger was injured when he started to disassemble the jib before the boom and jib were placed flush on the ground. At that time, he knocked out the bottom west pin of the jib section by standing partly under the jib section and hammering the tapered part of the pin toward the outside of the jib at a time when a coemployee had already hammered out the bottom east pin. When this happened, the top pins of the jib section could not keep the bottom portion of the jib from separating and the top portion collapsed, striking Roger in the head.

The parties do not dispute the general rules of law applicable to any duty Essex as lessor of the crane owed to Roger. The leading case in this State on the duty of lessors of equipment to users of the equipment is Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153, 265 N.E.2d 134, where a plaintiff had been injured when a scaffold upon which he was standing tipped over. The court held the plaintiff there had submitted evidence sufficient to go to the jury on a count charging negligence. That plaintiff was an employee of a subcontractor who leased the scaffold from the defendant.

The Huckabee court noted that two prior appellate court cases dealing with the same issue had adopted

“the position taken by the Restatement of Torts, 2nd (sections 388, 395, 408 and Comments,) *** [and] held that a bailor is liable to an injured third person if (1) he supplied the chattel in question[;] (2) the chattel was defective at the time it was suppliedf;] (3) the defect could have been discovered by a reasonable inspection, when inspection is required (i.e., where the danger of substantial harm because of a defect is great, as we deem it is here)[;] and (4) the defect was the proximate cause of the injury.” (Huckabee, 47 Ill. 2d at 158, 265 N.E.2d at 137.)

In Huckabee, the evidence of defectiveness of the scaffold was testimony that the scaffold had moved on two prior occasions for unknown reasons. This court in Chambliss v. Walker Construction Co. (1964), 46 Ill. App. 2d 287, 197 N.E.2d 83, and the First District Appellate Court in Witt v. John Hennes Trucking Co. (1964), 49 Ill. App. 2d 391, 199 N.E.2d 231, have applied similar rules. In Chambliss, the court emphasized that the leasing or bailment must be one lucrative to the bailor-lessor for the above rules to be applicable.

Here, Essex undisputably supplied the crane with the jib through a bailment which was lucrative to Essex. Prima facie evidence that the apparatus was defective was supplied by testimony that the pins by which one jib is attached to another were arranged in such a way that the head of the pin was on the outside and the tapered end, which was inserted, was on the inside. Thus, when pounding the pins out, persons doing so had to work under the jib. Other evidence was presented that when, as here, the top pins on each side of adjoining sections were removed, the jib could buckle and fall on the person working underneath of the sections if the jib was not supported. The deposition testimony of plaintiffs’ expert David MacCollum and supporting documents to that testimony as supplied by plaintiffs in opposition to Essex’ motion for summary judgment indicated this situation created a defect unless the crane had upon it a noticeable flag warning of this danger. No such warning was upon the crane involved here. If the crane was defective in this regard, a trier of fact could conclude that the defect was a proximate cause of Roger’s injuries.

The record was also such that a trier of fact could reasonably conclude that the danger of jibs collapsing was great enough to require a reasonable inspection. However, the heart of the dispute between plaintiffs and Essex is whether a trier of fact could have determined the danger presented by the equipment rented here by Essex to ALL-TRI-R. Essex maintains that in MacCollum’s deposition he admitted that absent any warning to Essex from the manufacturer of the crane, the Manitowoc Company, Inc., Essex could not reasonably have learned of the alleged defect in the mechanism by which the jibs could be connected. Essex’ contention is based upon the portion of MacCollum’s deposition containing a colloquy which is as follows:

“Q. [Essex’ attorney:] Can you think of any reason why Essex Crane Rental Corporation would have received any knowledge or information of the existence of warnings of the type shown by deposition 6 and 7?
A. [MacCollum:] I don’t know what Essex received from Manitowoc, but that’s their principal source of information if they buy the crane and then turn around, they have to look to — to the crane manufacturer for change orders, I mean labeling systems and improved labels and things like that, that’s normally the first place that a leasing company will look.
Q. And do you have any criticisms of the leasing company which deals in Manitowoc cranes sending the cranes out to its lessees in the same condition the cranes came originally manufactured both in terms of pins and also in terms of written warnings?
A. Well, to be candid, and perfectly fair, if they knew then they had a duty. If they didn’t know, then that’s another thing.
Q. Okay. And when you say if they knew, if they knew of a hazard or danger?
A. If they knew of a hazard, if they, either on their own experience or had been informed. If then they — they don’t alter their behavior, that’s one thing. But their principal source of chain of information is from the manufacturer, whoever he may be.
Q. Do you have any knowledge or information that Essex Crane Rental Corporation, either from Manitowoc or any other source, ever was informed or notified of the hazard which is identified in your Deposition Exhibit 6 and 7?
A. I don’t know. I have no information whether they did or they didn’t. I don’t know whether Essex had other cranes that had labels on them.”

The foregoing colloquy does tend to negate plaintiffs’ contention that by a reasonable inspection, Essex could have discovered the alleged defect in the crane. MacCollum’s testimony would indicate that a lessor such as Essex would be very unlikely to know of the claimed defect. Nevertheless, we conclude the question of what would be revealed by a reasonable inspection is an issue for a trier of fact.

Because a question of fact existed on a material issue, as discussed above, the court erred in granting summary judgment to Essex.

ADM’s motion upon which the counts against it were finally dismissed in bar of action on September 5, 1991, was made pursuant to section 2—619(a)(5) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5)). It alleged that the counts against it were barred by the two-year limitations period of section 13—202 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13—202) generally applicable for bringing suits for personal injuries. The injuries to Roger were alleged to have occurred on April 11, 1988. On February 15, 1990, Roger’s original complaint was filed, and on March 9, 1990, Ruth Ann joined in the complaint seeking damages for loss of consortium. Both of the pleadings were filed before the end of the two-year limitations period of section 13—202 of the Code expired on April 11, 1990, but all of the counts against ADM pending at the time of the court’s dismissal of charges against ADM were amended counts filed after April 11, 1990.

At oral argument—for the first time—plaintiffs called the attention of the court and opposing counsel to the recent decision in Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 595 N.E.2d 561, where the supreme court held that the four-year limitations period of section 13—214(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13—214(a)) provided the time limit for bringing actions for personal injuries arising from construction of improvements to real estate rather than the general provisions of section 13—202 of the Code upon which ADM relies here. ADM maintains that plaintiffs raise this theory too late for our consideration. We need not decide that question because we agree with plaintiffs that even under section 13—202, the various amendments made by plaintiffs to counts against ADM after the expiration of the two-year period are not barred.

Section 2—616(b) of the Code states:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(b).)

We hold that the amendments made here as to charges against ADM met the requirements of section 2—616(b) of the Code.

In Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 125, 302 N.E.2d 64, 66, the following series of pleadings were held to create a situation where subsequent pleadings all “ ‘grew out of the same transaction or occurrence’ ” within the meaning of section 46(2) of the then Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46(2)), which was the predecessor to section 2—616(b) of the Code. The suit was brought to recover for the death of a window washer who died on July 22, 1965, as a result of a fall from a commercial building while washing its windows. An original complaint was filed July 18, 1966, based upon violation of the Structural Work Act (see Ill. Rev. Stat. 1965, ch. 48, par. 60 et seq.), because of failure to provide the decedent a safe scaffold, thus necessitating the use of defective hooks to attach his safety belt to the building. A count under the Wrongful Death Act was also filed. See Ill. Rev. Stat. 1965, ch. 70, pars. 1, 2.

In Halberstadt, successive amendments were made to charge (1) negligent failure to provide proper exterior attachments for the decedent’s safety belt, and (2) violation of the Structural Work Act by failing to provide a safe scaffold when knowing of the improper attachments for the safety belts. The supreme court stated:

“As was noted in [Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 287, 122 N.E.2d 540, 548], the policy attendant to statutes of limitation is to provide defendant a sufficient opportunity to investigate the factors upon which his liability may be based while such evidence is still ascertainable. (4 Ill. 2d at 289-90[, 122 N.E.2d at 549].) In the present case it is readily apparent that the cause of action set forth in the second amended complaint ‘grew out of the same transaction or occurrence set up in the original pleading,’ which was timely filed. Moreover, in all the pleadings the basis of defendants’ liability was the alleged defective nature of the work area utilized by deceased prior to his fall. Thus defendants were informed of circumstances upon which they might predicate a defense. We conclude that the second amended complaint was properly filed.” Halberstadt. 55 Ill. 2d at 125, 302 N.E.2d at 66.

An amendment to a complaint charging negligence in a “slip- and-fall” case after the expiration of the period of the statute of limitations was held not to be time-barred in Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 570 N.E.2d 327. There, those defendants admitted having knowledge of the actual location of the occurrence before the expiration of the limitations period. The Wolf court noted that the Code was to be liberally construed when no prejudice to a party is shown.

A similar philosophy was followed by this court in Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906. There, we permitted the plaintiff to bring an action against a party already in the case as a third-party defendant even though the period of the statute of limitations on that action had expired earlier. We noted that the third-party defendant was well aware of the facts concerning the matter and had this information before the lapse of the limitations period. We concluded that the crucial factor was whether disregard of the statutory period was in the interests of justice. See also Williams v. Board of Education (1991), 222 Ill. App. 3d 559, 584 N.E.2d 257; Trinity Bible Baptist Church v. Federal Kemper Insurance Co. (1991), 219 Ill. App. 3d 156, 578 N.E.2d 1375.

An amended complaint was held by this court not to relate back to an original complaint in Heyen v. Sanborn Manufacturing Co. (1991), 223 Ill. App. 3d 307, 584 N.E.2d 841. The plaintiff there was allegedly injured when an air compressor manufactured by San-born Manufacturing Company and sold by a supplier to the plaintiff exploded. Count III of the original complaint charged the supplier with selling a dangerously defective product. Amended counts filed after the statutory limitations period had expired charged the supplier with (a) failing to inform the purchaser of a dangerous condition of the product when it knew or should have known of it, and (b) after having been given notice of recall, not informing the purchaser of the recall. We held the amendments did not relate back to the original complaint as the focus of the original complaint was upon the condition of the product and the focus of the amendment was on the knowledge of the supplier through its agents of the defect.

In Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 512 N.E.2d 824, the court held that a malpractice charge against a hospital for not supervising and evaluating its staff could not relate back to a charge which concerned specific negligence of an agent physician. Similarly, in Starnes v. International Harvester Co. (1989), 184 Ill. App. 3d 199, 539 N.E.2d 1372, this court held that a count alleging invasion of privacy and intimidation could not relate back to a count based upon defamation.

Here, count V of the original complaint against ADM was similar to the original counts against Essex and charged ADM with having leased and being in possession of the crane which was unsafe for the same reasons charged against Essex. This was alleged to be a proximate cause of Roger’s injuries. The first amendment filed against ADM after the expiration of the two-year limitations period was filed on June 14, 1990. Count V thereof again alleged the dangerous condition of the crane and that ADM had leased it. A new allegation was that since September 4, 1987, ADM had undertaken the responsibility to employ competent people and to inspect the crane. Count X was brought by Ruth seeking damages for loss of consortium arising from the matters alleged in count V. These counts were then further amended by plaintiffs filing further amended counts V and X on September 21, 1990. The only new aspect of these amendments was allegations that ADM had assumed the responsibility to see that competent employees would be used to operate the crane with knowledge that employees of other contractors on the premises would also be using the crane.

After the amended counts V and X were dismissed, plaintiffs, on November 17, 1990, filed amended counts XI and XII against ADM which made no substantial changes from the dismissed counts V and X. On August 1, 1991, plaintiffs filed second-amended counts XI, XIA, XIB, XIIA and XIIB against ADM. These counts added little which was new except that count XI alleged a violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) arising from the condition of the crane. The count made the necessary allegation that ADM was in charge of the work. On September 5, 1991, the court entered the order now on appeal which granted ADM’s motion to dismiss all counts in bar of action.

We conclude the situation here is more like that in Halberstadt than that in Heyen, Williams or Starnes. From the first pleading against ADM, a focus was placed upon the nature and condition of the crane. Subsequent pleadings did bring in a focus upon the operation of the crane at the time of the injury. However, the two matters are sufficiently interwoven that we conclude ADM will not be prejudiced in preparing its defense because of this slight change in focus.

Reconsideration of the various decisions concerning the operation of section 2—616(b) of the Code and its predecessor section 46(2) of the Civil Practice Act is not easy. The question presented is a close one, but we conclude the circuit court erred in its September 5, 1991, order dismissing the counts against ADM. Upon the dismissal of those counts, plaintiffs asked leave to amend the complaint to reinstate the original counts it had filed against ADM. Plaintiffs request we reverse the court’s denial of this request only if the dismissal of the pending counts is affirmed. As we are reversing the dismissal, we affirm the portion of the order denying leave to amend.

As we have indicated, we reverse the award of summary judgment to Essex and the dismissal of the various counts against ADM. We affirm the circuit court’s denial of plaintiffs’ request to amend to reinstate the original counts against ADM. The cause is remanded to the circuit court of Macon County for further proceedings.

Affirmed in part; reversed in part, and remanded.

STEIGMANN and LUND, JJ., concur.