text:
    ILLINOIS MUNICIPAL LEAGUE RISK MANAGEMENT ASSOCIATION, Plaintiff-Appellee, v. TERRY SEIBERT, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0367
    Opinion filed January 16, 1992.
    Rehearing denied February 20, 1992.

      H. Kent Heller & Associates, P.C., of Naperville (H. Kent Heller, of counsel), for appellant.
    Stanley L. Morris, of Long, Morris, Myers & Rabin, P.C., of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, a Mattoon police officer, Terry Seibert, appeals from a summary judgment order entered in a declaratory judgment action in favor of plaintiff, the Illinois Municipal League Risk Management Association (the Association). On April 24, 1991, the Sangamon County circuit court granted the Association’s motion and denied a similar motion by Seibert. The controversy arose out of litigation filed in the Federal district court against Officer Seibert, other Mattoon officers, and the City of Mattoon. The litigation alleged violations under section 1983 of the Civil Rights Act (see 42 U.S.C. §1983 (1988)) of Edward Keith Hubbartt’s constitutional rights during his arrest. The court found because the Association’s interest in the pending litigation did not conflict with Seibert’s, the Association was not obligated to surrender control of the defense or to pay outside counsel which Officer Seibert might personally hire.

Seibert argues the court erred in finding no conflict existed between the parties. He also argues the court erred in finding that because evidence needed to disprove a constitutional violation and a punitive damages claim is similar in nature and quantity, the Association could defend both claims without a conflict arising between the parties’ interests. We agree and reverse the trial court’s summary judgment order in favor of the Association and remand to the court with instructions to enter summary judgment in favor of Seibert.

The Association is a nonprofit association which provides self-insurance programs to municipalities. The City of Mattoon is a member of the Association. As a member, municipal employees are represented in, and indemnified against, civil rights claims arising out of the performance of their jobs. Indemnification is not provided for malicious conduct or punitive damages.

Hubbartt filed two suits against Seibert, other Mattoon officers, and the City of Mattoon. Both suits arose from the same incident. The initial complaint, case No. 89 — 2319, was filed October 24, 1989. There, Hubbartt sought $10 million in compensatory damages from Seibert, a number of other Mattoon police officers, and the City of Mattoon. On February 5, 1990, Hubbartt filed an amended complaint, naming Seibert as an individual defendant. The second suit, case No. 90 — 2122, was filed April 20, 1991, wherein Hubbartt sought, from Seibert, $10 million in compensatory damages and $5 million as punitive damages; it also sought compensatory and punitive damages from other Mattoon police officers, and compensatory damages from the City of Mattoon. The suits alleged Seibert and other officers violated Hubbartt’s fifth, fourth, and fourteenth amendment protections during his arrest. Seibert’s actions were allegedly intentional, malicious, wilful, wanton, and in reckless disregard of Hubbartt’s constitutional rights.

As the Association’s authorized agent, Martin Boyer Company, Inc., appointed counsel to represent Seibert in the pending litigation. In a November 13, 1989, letter, James Hays, Martin Boyer Company’s representative, informed Seibert that the Association would not indemnify a claim for punitive damages, and incorrectly noted the complaint included such a claim. Because Seibert might incur personal liability as a result of a punitive damages award, Hays suggested Seibert may want to retain independent counsel at his own expense.

In a letter dated November, 21, 1989, Hays conceded the complaint did not currently seek punitive damages. He explained, however, that because it alleged Seibert’s conduct was intentional, malicious, wilful, wanton, and in reckless disregard of Hubbartt’s constitutional rights, the complaint might later be amended to include punitive damages. Hays stated: “If that occurs, it would be inappropriate for [the Association] to defend the claims for punitive damages. You may wish to be defended by independent counsel. Because of this potential conflict, we urge you to seek independent legal advice as to your rights.” He also informed Seibert that because of unresolved policy coverage questions, the company would proceed with Seibert’s representation under a reservation of rights.

On December 13, 1989, Hays informed Seibert the Association would honor his request to be defended by counsel separate from counsel representing other defendants in the litigation, and that an attorney had been authorized and assigned to represent him. In late December, however, Seibert sought, and hired, private counsel. On December 28, 1989, Seibert’s private counsel wrote to counsel appointed by Martin Boyer Company and demanded the Association settle the litigation against Seibert by offering Hubbartt the maximum payable under the policy. He contended that if the Association was not willing to do this to protect Seibert from a potential punitive damages claim, it was putting its interests ahead of those of Seibert. Seibert’s counsel provided no evidence why this offer was reasonable.

Seibert’s retained counsel again wrote to Hays of Martin Boyer Company on March 7, 1990. Counsel informed Hays that Seibert retained him to represent him in the pending civil rights litigation because of advice provided to him by Hays in the November 13 and 21 letters. Counsel also stated, “[s]ince the nature of this case involves an agency relationship which may require the presentation of diametrically opposed defenses for the respective defendants, we are well aware of the conflict of interest which has arisen.”

Although Hubbartt amended his complaint to include a request for attorney fees, he was not — at that stage — seeking punitive damages against Seibert. The Association refused to relinquish control of Seibert’s representation. Hays contended in an April 4, 1990, letter, that no conflict existed between the Association and Seibert. He stated that, unlike in cases which Seibert’s counsel asserted were similar, the Association was not asserting a policy defense, and compensatory damages were provided for in the pending litigation. The letter also stated this position might be reconsidered if the “complaint [was] amended or facts change[d] in any way.”

After Seibert’s assigned counsel rejected Hubbartt’s written demand for $3 million, Hubbartt filed the second complaint, i.e., case No. 90 — 2122 in which, among the other allegations and remedies, he alleged claims against Seibert similar to those made in his first action and, as previously mentioned, sought $10 million in compensatory damages and $5 million as punitive damages against Seibert.

In a letter dated April 27, 1990, Seibert’s privately retained counsel advised the Association it must do the following: (1) immediately tender its $3 million policy limit to Hubbartt; (2) agree to indemnify Seibert for a punitive damages award; or (3) hire him as counsel to represent Seibert and pay the defense costs. The letter stated Seibert would proceed with his privately retained counsel and expect reimbursement for his costs if another option was not accepted.

On July 24, 1990, the Association sought declaratory relief in the Sangamon County circuit court. The Association asked the court to find because no conflict existed between its interest in the pending litigation and that of Seibert, it was solely authorized to appoint counsel and to represent Seibert in the civil rights litigation. In addition, it asked the court to declare the Association not liable for expenses Seibert could incur by retaining private counsel.

Because no material facts were in dispute, both parties moved for summary judgment and filed a memorandum in support of their respective motions. Seibert also filed a response to the Association’s motion. The court heard arguments on the motions on January 25, 1991, and issued its opinion on February 28, 1991. The court denied Seibert’s motion for summary judgment and granted the Association’s. It found that in the pending civil rights litigation in which Seibert was a named party no conflict existed between Seibert’s interests as a party being represented and indemnified, and those of the Association, which had the obligation to represent and indemnify the city’s employees for such claims arising out of the performance of their duties. It ruled Seibert could not control his own defense or receive reimbursement from the Association for attorney fees incurred for privately retained counsel. The order was entered April 24, 1991. Seibert has appealed, seeking reversal of the court’s order.

Summary judgment is proper “if 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. 1989, ch. 110, par. 2 — 1005(c); Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 164, 540 N.E.2d 899-900.) As this court recently noted, the proper standard of review for evaluating the propriety of a trial court’s entry of summary judgment is de novo. (See Shull v. Harris-town Township (1992), 223 Ill. App. 3d 819.) The parties agree no genuine issue of material fact remains. The issues raised in this appeal address whether, as a matter of law, a conflict exists between the Association, as plaintiff in its capacity to represent and indemnify Seibert as against these claims, and defendant Seibert.

Seibert argues the trial court erred in ruling that because no conflict existed between the Association and him, the Association could control the litigation naming him as a party and would not have to reimburse him for privately retained counsel.

The general rule in Illinois requires an insurer to defend a claim against an insured when any theory of the complaint gives rise to the possibility that the insurer would be liable for its costs. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193-94, 355 N.E.2d 24, 28.) Because its duty to defend is broader than its duty to pay, the insurer may have to defend against claims which are not covered by the policy. (Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 394, 442 N.E.2d 245, 247; Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079, 1082.) Neither party disputes that the Association has a duty to defend the allegations against Seibert.

Seibert first argues that because the Association allegedly conceded the parties’ interests would conflict if punitive damages were sought, he was entitled to select independent counsel to be paid for by the Association. He points to the November 13, 1989, letter received from Martin Boyer Company which stated — incorrectly—that punitive damages were alleged against him in the initial suit. In addition, the November 21 letter stated that if Hubbartt amended his complaint to seek punitive damages against Seibert, “it would be inappropriate for [the Association] to defend the [claim].” The April 4 letter stated no conflict currently existed, but the company might revise its position if the complaint were amended.

The Association argues the letters reflect that its agent, Martin Boyer Company, recognized a potential conflict and appropriately responded to it by notifying Seibert. The Association contends this does not show it “conceded” that because a conflict existed, Seibert should seek outside counsel for which the Association would pay.

As conversations between the parties progressed, Seibert knew the Association thought it should control his defense and he should not retain private counsel. However, Seibert retained private counsel shortly after receiving the November 13 and 21 letters sent to him by the Association’s agent. These letters did not state that if Seibert obtained independent counsel, the Association would reimburse the costs; in fact, they suggested he do this at his own expense.

In addition, when Seibert received the November 13 and 21 letters, punitive damages had not yet been alleged against him. The November 21 letter from the Association’s agent to Seibert indicated that if punitive damages were alleged against him, it would be “inappropriate” for the Association to defend these claims. However, because no punitive damages were alleged at that time, Seibert could not have relied on this information in deciding to retain his own counsel.

The April 4 letter sent by Martin Boyer Company to Seibert stated only that the Association’s position regarding Seibert’s representation might change if punitive damages were sought. At no time after the punitive damages claim was alleged against Seibert did the Association concede a conflict existed which required it to relinquish control of Seibert’s defense, agree to pay outside counsel, or deny that it had a duty to defend Seibert.

The letters could reasonably be viewed as communicating to Seibert that a conflict might arise, and as explaining his options if this occurred. The trial court did not err in interpreting the Association’s conduct in this way.

Seibert next argues that because his interests and the Association’s interests conflict, he is necessarily entitled to retain independent counsel paid for by the Association. The insurer generally assumes control of the litigation to ensure its financial interest in the outcome is protected and to minimize unwarranted liability claims. Illinois Masonic Medical Center v. Turegum Insurance Co. (1988), 168 Ill. App. 3d 158, 163, 522 N.E.2d 611, 613.

When an insurance company retains an attorney to defend an action against one of its insureds, the attorney must work toward furthering the interests of the insured and the insurance company. (Maryland Casualty, 64 Ill. 2d at 196, 355 N.E.2d at 29.) The attorney-client relationship between the insured and the attorney imposes the same professional obligations as if the insured personally retained the attorney. Allstate Insurance Co. v. Keller (1958), 17 Ill. App. 2d 44, 52, 149 N.E.2d 482, 486.

Illinois courts and those of other jurisdictions have noted that an attorney hired by an insurance company may feel more aligned with its interests. (Illinois Masonic Medical Center, 168 Ill. App. 3d at 163, 522 N.E.2d at 613; Nandorf, Inc. v. CNA Insurance Cos. (1985), 134 Ill. App. 3d 134, 137, 479 N.E.2d 988, 991; Purdy v. Pacific Automobile Insurance Co. (1984), 157 Cal. App. 3d 59, 76, 203 Cal. Rptr. 524, 534; United States Fidelity & Guaranty Co. v. Louis A. Roser Co. (8th Cir. 1978), 585 F.2d 932, 938 & n.5.) An attorney may find it more financially advantageous to protect the insurer’s interest. (Tews Funeral Home, Inc. v. Ohio Casualty Insurance Co. (7th Cir. 1987), 832 F.2d 1037, 1045.) The attorney is obligated to recognize and address potential conflicts between the insurer and the insured.

The Association argues the same conflicts issues do not arise from its representation of Seibert because it is a nonprofit association, and not a “huge commercial insurance carrier.” However, as Seibert aptly notes, nonprofit associations can also provide services to numerous municipalities with numerous employees. The same loyalty problems could arise despite the voluntary, nonprofit nature of the Association. Just as an attorney might face insurmountable conflicts of interest between his or her employer, a commercial insurance company, and an insured, the same problems could arise between an attorney employed by the Association and municipal employees represented and indemnified by the Association.

When an attorney employed by an insurer identifies a conflict between the insurer’s interest and that of the insured, the conflict can be resolved by full disclosure and consent by the parties. (Maryland Casualty, 64 Ill. 2d at 198, 355 N.E.2d at 30-31.) Seibert never consented to a conflict after full disclosure.

Absent the parties’ consent, serious ethical considerations prohibit an attorney from continuing to represent the interests of the insured and the insurer. Rules 1.7(a) and (b) of the Illinois Rules of Professional Conduct state:

“(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after disclosure.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests ***.” 134 Ill. 2d Rules 1.7(a), (b).

When an insurmountable conflict arises, the Illinois Supreme Court has grafted exceptions to the insurer’s right to control its insured’s defense. The parties agree the conflict must rise to a level from which it appears that the insurer may not vigorously defend a claim lodged against its insured. Nandorf 134 Ill. App. 3d at 137, 479 N.E.2d at 992; County of Massac v. United States Fidelity & Guaranty Co. (1983), 113 Ill. App. 3d 35, 43, 446 N.E.2d 584, 590.

If the insured could be prejudiced by the insurer’s representation, the insurer meets its obligation to defend by reimbursing the insured for outside counsel. (Thornton v. Paul (1978), 74 Ill. 2d 132, 152, 384 N.E.2d 335, 343.) Seibert argues it is likely the Association would provide a less than vigorous defense of the punitive damages claims lodged against him. The Illinois Supreme Court has found the conflict between the insurer’s interests and those of the insured requires outside counsel paid for by the insurer in two circumstances.

The first circumstance is when the insurer is obligated to provide defenses for two or more insureds who have adverse interests. (Murphy, 88 Ill. 2d at 452, 430 N.E.2d at 1082.) In Murphy, the passenger in a vehicle sued the driver and the owner of the vehicle for injuries she allegedly sustained in an auto accident. (Murphy, 88 Ill. 2d at 448, 430 N.E.2d at 1081.) The court found the driver’s interest conflicted with the owner’s interest. It was in the driver’s interest to be viewed as an agent of the owner; the owner’s interest, however, would be best served by arguing the driver had not been given permission to drive the vehicle. Murphy, 88 Ill. 2d at 452-54, 430 N.E.2d at 1083-84.

The second recognized exception in Illinois to the insurer’s right to control the defense occurs when proof of certain facts would shift liability from the insurer to the insured. Maryland Casualty, 64 Ill. 2d at 197, 355 N.E.2d at 30; Thornton, 74 Ill. 2d at 152, 384 N.E.2d at 343; see also American Family Mutual Insurance Co. v. Blackburn (1991), 208 Ill. App. 3d 281, 286, 566 N.E.2d 889, 892; Tews, 832 F.2d at 1045.

Maryland Casualty addressed whether injuries caused by a defendant, the insured, were negligently or intentionally caused when he shot plaintiff fleeing his property. (Maryland Casualty, 64 Ill. 2d at 193, 355 N.E.2d at 26-27.) The defendant’s homeowner’s insurance excluded coverage for intentional acts, but would indemnify for negligent acts. If his actions were intentional, defendant was liable; if defendant was negligent, the insurer was liable. The court ruled that because of the mutually exclusive claims defendant should have been represented by independent counsel paid for by his insurer. The court also declared the insurer was entitled to have its own counsel participate in the litigation, and the insurer was not barred from later raising the defense of noncoverage. Maryland Casualty, 64 Ill. 2d at 198-99, 355 N.E.2d at 31.

The conflict which the court found in Thornton also involved mutually exclusive claims. The insurer would not indemnify if the insured, the defendant, was found guilty of battery, but would indemnify if defendant was found guilty only of negligence. Thornton, 74 Ill. 2d at 152-58, 384 N.E.2d at 343-46.

The Association argues these cases represent narrow exceptions to the general rule which authorizes the insurer to control its insured’s defenses. It argues there is no conflict in the present case because each defendant in the civil rights litigation is receiving separate defenses and the counts against Seibert are not mutually exclusive. A finding that Seibert is liable for punitive damages does not necessarily mean no compensatory damages will be awarded, as may be indemnified by the Association.

Seibert contends that although the claims in the complaint are not mutually exclusive, the Association could reduce its liability exposure for compensatory damages while increasing his personal liability exposure for punitive damages. The Association could present a case to a jury which would limit the extent of Hubbartt’s injuries, or the degree to which the injuries could be attributed to Seibert’s actions, while less than vigorously defending the allegations that Seibert acted wilfully or maliciously against Hubbartt. In addition, the Association could later argue compensatory damages awarded were excluded from coverage if the trier of fact found Seibert’s conduct was malicious because the policy provides no protection for such acts.

The Association argues no conflict exists because defending the punitive damages claim without vigor would increase its exposure to liability for compensatory damages. It also contends the facts show it has a significant interest in controlling Seibert’s pending litigation. It points to Seibert’s privately retained counsel’s demand approximately two months after the suit was filed. While providing no evidence to the Association, Seibert’s counsel demanded the Association settle the case for policy limits. The Association contends the only basis for this demand was to free Seibert from personal liability exposure.

Seibert correctly notes, however, that the Illinois Supreme Court has never expressly ruled a conflict occurs only when mutually exclusive claims are lodged against the insured. He argues a conflict exists because of the substantial punitive damages claims which the Association will not indemnify.

Other jurisdictions have found a conflict of interest arises when an insurer offers to defend its insured while disclaiming coverage for punitive damages. See San Diego Navy Federal Credit Union v. Cumis Insurance Society, Inc. (1984), 162 Cal. App. 3d 358, 208 Cal. Rptr. 494; Previews, Inc. v. California Union Insurance Co. (9th Cir. 1981), 640 F.2d 1026; Rimar v. Continental Casualty Co. (1975), 50 A.D.2d 169, 376 N.Y.S.2d 309; Parker v. Agricultural Insurance Co. (1981), 109 Misc. 2d 678, 440 N.Y.S.2d 964.

The Illinois Supreme Court has not addressed whether a conflict exists when the allegations include noncovered, punitive damages. The first district case on which plaintiff relies ordered the insurer to relinquish control of its insured’s defense and reimburse the insured for independent counsel where the allegations in the suit involved covered compensatory damages and noncovered punitive damages. See Nandorf, 134 Ill. App. 3d at 138, 479 N.E.2d at 992.

Nandorf involved a false imprisonment claim filed against a shop owner, the insured. The plaintiff sought $5,000 in compensatory damages and $100,000 in punitive damages. There, as in the instant case, the insurer proceeded to defend under a reservation of rights and refused to surrender control of the litigation. (Nandorf, 134 Ill. App. 3d at 135, 479 N.E.2d at 990.) The Nandorf court ruled the insurer should have relinquished control of the litigation to defendant and reimbursed the costs of independent counsel. Nandorf, 134 Ill. App. 3d at 140, 479 N.E.2d at 994.

The trial court in this case did not follow Nandorf. It adopted reasoning offered by the Association, and ruled the Association’s interests would not be furthered by providing a “less than vigorous defense to the allegations of the defense.” The Association, the court reasoned, would risk a larger compensatory damages award if its defense efforts toward the punitive damages claim were inadequate. It distinguished Nandorf because there the compensatory damages sought were $5,000, while the punitive damages sought were $100,000. The court reasoned Nandorf was distinguishable since the punitive damages sought there were significantly greater than the compensatory damages. Hubbartt is seeking from Seibert $10 million in compensatory damages and $5 million in punitive damages.

However, the proportionality between potential compensatory and punitive damages should not be the guiding factor. Seibert faces personal liability for $5 million. Two State courts have raised the issue of independent counsel paid for by the insurer where punitive damages were sought in civil rights litigation. Both courts ruled that where punitive damages are alleged, the insured had a right to independent counsel paid for by their insurer. City of Newark v. Hartford Accident & Indemnity Co. (1975), 134 N.J. Super. 537, 342 A.2d 513; Hartford Accident & Indemnity Co. v. Village of Hempstead (1979), 48 N.Y.2d 218, 397 N.E.2d 737.

Under the present facts, Seibert bears a significant risk in the litigation because its outcome might result in a large punitive damage award which — as a matter of law — would be borne by him. He faces grave economic consequences. Because the Association has agreed to defend under a reservation of rights and the policy precludes coverage for punitive damages, the Association does not face economic consequences for the potential $5 million punitive damages claim.

The Illinois Supreme Court has required the insurer to relinquish control of its insured’s defense when the plaintiff could be prejudiced by the insurer’s attorney presenting the case in the best light for the insurer. (Thornton, 74 Ill. 2d at 152, 384 N.E.2d at 343; Maryland Casualty, 64 Ill. 2d at 195, 355 N.E.2d at 29.) A similar concern arises in the instant case. Although the claims are not mutually exclusive, the Association could benefit by a finding that Seibert’s conduct justifies a punitive damages award. The Association may be required to pay only minimal compensatory damages, while Seibert may be personally liable for a large punitive damages award. If Seibert’s conduct is ruled malicious, the Association would not be liable for even the compensatory damages because injuries caused by such acts are excluded from indemnification.

An additional factor to consider is the rationale behind the general rule that the insurer should control its insured’s defense. One reason for the rule is to protect the insurer’s financial interest. (Illinois Masonic Medical Center, 168 Ill. App. 3d at 163, 522 N.E.2d at 613.) The Association attempted to fulfill its duty to defend defendant by retaining counsel from a law firm independent of counsel appointed to represent the city and other defendants. However, there is no evidence the counsel Seibert retained would be more costly to the Association. Those costs will be based on a reasonable fee.

The trial court erred in ruling that, as a matter of law, no conflict of interest existed between the Association and Seibert. Seibert’s interests could be substantially prejudiced if he is represented by counsel selected by the Association. Independent counsel selected by Seibert and paid for by the Association will not damage the Association’s interests.

Seibert next argues the court erred in concluding that because evidence required to disprove a constitutional violation and a punitive damages claim is similar in nature and quantity, the Association could defend both claims without a conflict arising between the parties’ interests. The court ruled the Association should control the defense of the punitive damages claim as well as the compensatory damages claim because the evidence necessary to defend against both was similar in nature and quantity.

Seibert contends that because a lesser threshold is required to prove a constitutional violation than a punitive damages claim, counsel appointed by the Association could defend the punitive damages claim less forcefully than he might defend against the compensatory damages caused by the alleged constitutional violations.

He argues the Association could seek nominal compensatory damages while providing a less than vigorous defense to a jury instruction for the punitive damages claim because punitive damages require showing Seibert’s conduct was wilful or wanton. He contends if the Association represents him in both claims, it should have to waive its reservation of rights for punitive damages.

The Association contends the nature and quantity of evidence needed to disprove each claim is similar. It correctly argues Lester v. City of Chicago (7th Cir. 1987), 830 E2d 706, announced an objective fourth amendment standard for determining whether force used during an arrest violates the Constitution: “[A] police officer’s use of force in arresting a suspect violates the Constitution if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Lester, 830 F.2d at 713.

This approach has been adopted by the United States Supreme Court. In Graham v. Connor (1989), 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865, the Court stated all claims of excessive force by police officers during an arrest should be analyzed under the fourth amendment objective reasonableness standard. Graham, 490 U.S. at 395, 104 L. Ed. 2d at 454, 109 S. Ct. at 1871.

As the Association contends, the United States Supreme Court set the standard for the award of punitive damages in civil rights cases in Smith v. Wade (1983), 461 U.S. 30, 75 L. Ed. 2d 632, 103 S. Ct. 1625. The Court held punitive damages may be awarded against an individual in section 1983 cases even where the defendant’s conduct is not motivated by malice or evil intent. Reckless or callous indifference to a plaintiff’s federally protected rights is sufficient. Smith, 461 U.S. at 51, 75 L. Ed. 2d at 648, 103 S. Ct. at 1637.

However, as Seibert argues, objectively unreasonable conduct, which proves a constitutional violation, requires a lower threshold of evidence than evidence required to prove defendant’s conduct was reckless or that it represents callous indifference to a civil rights plaintiff’s rights. Although the evidence is similar in nature, additional evidence of Seibert’s motives for his actions would be required to prove punitive damages.

In addition, Seibert correctly notes punitive damages can be awarded in civil rights litigation without proving actual damages. (See, e.g., Spence v. Staras (7th Cir. 1974), 507 F.2d 554, 558, citing Rogers v. Loether (7th Cir. 1972), 467 F.2d 1110, 1112 n.4, and Basista v. Weir (3d Cir. 1965), 340 F.2d 74, 88; Glover v. Alabama Department of Corrections (11th Cir. 1984), 734 F.2d 691, 694, citing Endicott v. Huddleston (7th Cir. 1980), 644 F.2d 1208, 1217.) This consideration, too, represents a potential conflict and is similar to the conflict identified by the Illinois Supreme Court in Maryland Casualty and in Thornton where the alleged claims were mutually exclusive. (Maryland Casualty, 64 Ill. 2d at 197, 355 N.E.2d at 30; Thornton, 74 Ill. 2d at 152, 384 N.E.2d at 343.) If Seibert’s conduct is found to have been reckless or callous, the jury could award punitive damages even if it found Seibert’s conduct did not cause the injuries for which Hubbartt seeks compensatory damages. If Hubbartt establishes that Seibert’s conduct was unreasonable, a jury instruction on whether Seibert’s conduct was reckless would not necessarily be automatic, but would depend on Seibert’s attorney’s efforts to establish that although Seibert’s conduct may have been unreasonable, it was not reckless or malicious.

However, a finding that Seibert’s conduct was malicious would be beneficial to the Association. It would raise the Association’s policy exclusion for compensatory damages because the policy excludes liability for malicious acts.

There is a conflict between the parties’ interests in the way the constitutional claim and the punitive damages claim might be defended. The trial court erred in ruling the Association could control the defense for the compensatory and punitive claims because the evidence to defend each, although similar in nature, varies in quantity.

We find a conflict between the parties’ interests in the pending litigation. Accordingly, we reverse the trial court’s entry of summary judgment in favor of the Association and direct the court to enter an order requiring the Association to (1) pay reasonable attorney fees incurred by Seibert and (2) allow Seibert’s personally selected counsel to assume control of the litigation as against him.

Reversed and remanded.

GREEN, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    LYNN CUNNINGHAM, Plaintiff-Appellant, v. MERRILL HUFFMAN et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0500
    Opinion filed January 16, 1992.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Nancy J. Glidden, of counsel), for appellant.
    Keith E. Emmons and Gregg W. Bonelli, both of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On March 21, 1989, plaintiff Lynn Cunningham brought a medical malpractice action in the circuit court of Champaign County against defendants Merrill Huffman, Melinda A. Dabrowski, J. Roger Powell, and Carle Clinic Association (Carle). On September 19, 1989, the circuit court dismissed counts I and II of plaintiff’s complaint (both against Huffman and Carle) with prejudice, and dismissed counts III (against Dabrowski and Carle) and IV (against Powell and Carle) with leave to amend. On November 28, 1989, the trial court denied plaintiff’s motion to reconsider the dismissal of counts I and II and further denied plaintiff's motion to amend the complaint by adding count V against Carle. On April 1, 1990, the trial court conducted a hearing on plaintiff’s motion to reconsider, or in the alternative, for a Rule 308 finding to allow an interlocutory appeal (see 134 Ill. 2d R. 308), and on a motion to amend the complaint by adding a count VI against Carle. Plaintiff’s motions were denied. On May 21, 1991, plaintiff moved to voluntarily dismiss counts III and IV, which motion was allowed on May 30, 1991. Thereafter, plaintiff appealed. The only issue raised on appeal is whether the continuous course of treatment doctrine, as recognized in Illinois and applied to the facts of this case, requires reversal of the circuit court orders dismissing counts I and II of plaintiff’s complaint for medical malpractice and denying plaintiff leave to amend the complaint by adding counts V and VI.

Plaintiff’s Complaint

Count I of plaintiff’s complaint attempts to allege a cause of action for general negligence against defendants Huffman and Carle. It alleges Huffman is a physician specializing in obstetrics and gynecology, who is a member of the Carle Association of Physicians whose acts or omission complained of were in the course and scope of his work for Carle. On March 1, 1977, Huffman inserted an intrauterine device (IUD) into plaintiff. On April 8, 1980, he inserted another IUD into plaintiff, but allegedly failed to remove the IUD inserted in 1977. On March 12, 1981, Huffman performed a tubal ligation on plaintiff, but removed only one of the IUDs. The remaining IUD was not removed until December 19, 1988, and its removal was by a physician not associated with Carle. It is alleged that, had Huffman possessed and applied the knowledge, skill, and care of a reasonably well-qualified specialist in obstetrics and gynecology, he would have removed the first IUD before inserting the second IUD, would have removed both IUDs for a period of time before the tubal ligation to ascertain the necessity of the operation, and would have left neither IUD in plaintiff after the tubal ligation. Plaintiff invokes the doctrine of res ipsa loquitur, alleges her injuries were proximately caused by the conduct of defendant, and further alleges that plaintiff’s complaint is timely filed for one or more of the following reasons: (1) the IUD inserted on March 1, 1977, or April 8, 1980, remained in plaintiff until December 19, 1988, constituting a continuous course of treatment; (2) plaintiff remained a patient of Huffman and other physicians at Carle, for gynecological purposes, until December 9, 1988; and (3) Huffman failed to advise plaintiff that he left the IUD in her and advised her that her problems and complications arose from causes other than the presence of the IUD.

Count II is also a cause of action against Huffman and Carle based on a theory of negligence and attempts to allege the negligence in specific acts. It alleges the same acts and omissions as alleged in count I. The only difference between the counts is the allegations of negligence, which are stated in count II as follows:

“8. That in the aforesaid course of treatment, Defendant Huffman in the course and scope of his work with Carle Clinic Association was guilty of negligence in one or more of the following ways or a combination thereof:
A. Failed to remove the intrauterine device of March 1, 1977, before inserting the intrauterine device of April 8, 1980.
B. Failed to remove the intrauterine device of March 1, 1977, and the intrauterine device of April 8, 1980, for a trial period prior to performing the tubal ligation of March 12, 1981, so as to ascertain whether the plaintiff was experiencing an adverse reaction to one of said intrauterine devices.
C. Failed to remove either the intrauterine device of March 1, 1977, or of April 8, 1980, when he performed the tubal ligation of March 12, 1981, with the result that said intrauterine device was needlessly left in the plaintiff until removed by another physician on December 19, 1988, thus constituting a continuous course of treatment by the defendant lasting until December 19,1988.”

Motion To Dismiss

Pursuant to sections 2 — 619(a)(5) and 13 — 212 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2— 619(a)(5), 13 — 212), Huffman and Carle moved to dismiss counts I and II. In the motion, defendants direct the court’s attention to the affidavit of the anonymous physician attached to plaintiff’s complaint which indicates the last chart entry of Huffman with regard to plaintiff was on December 14, 1983. Attached to the motion was Huffman’s affidavit which stated he first provided medical care or treatment to plaintiff on December 30, 1974, and last provided medical care or treatment on December 14, 1983. The motion then concludes that since more than four years have elapsed between Huffman’s last care and treatment of plaintiff and the filing of the complaint, and since the doctrine of continuous course of treatment is not the law of Illinois, counts I and II should be dismissed.

In a memorandum filed August 2, 1989, the trial court found the defendants’ motion to dismiss counts I and II should be allowed. The trial court found that plaintiff filed this cause of action more than five years after termination of care and treatment. In addition, there was no showing that the continuous course of treatment doctrine was or should be the law of Illinois, or even if it were the law of Illinois, that there was any continuing care by Huffman or by Carle subsequent to December 14,1983.

Plaintiff’s Motions To Reconsider And To Amend The Complaint

In her first motion to reconsider the trial court’s findings, plaintiff points out that the doctrine of continuous course of treatment was only one reason alleged by her that the complaint was timely filed against Huffman and Carle. The additional reason was the doctrine of estoppel enunciated in Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, which the trial court’s memorandum did not address.

Plaintiff also filed a motion for leave to amend her complaint by adding count V. Count V attempts to allege a cause of action against Carle based on specific negligent acts or omissions. Count V alleges Carle is an association of physicians engaged in the practice of medicine in Illinois and maintains an obstetrical and gynecological service including Huffman, Dabrowski and Powell, all physicians employed by Carle and held out by Carle as specialists in obstetrics and gynecology. In addition to the care and treatment from Huffman previously alleged in counts I and II, plaintiff alleged that since a tubal ligation is a prevention of pregnancy and, if improperly performed, the woman may still become pregnant, a continuous course of treatment was involved. Further allegations include that subsequent to the tubal ligation, plaintiff experienced bleeding, for which she was treated by defendant on various occasions, including the administration of Provera. On November 25, 1988, X rays were taken of plaintiff at Carle Hospital which were viewed by Powell and which revealed the presence of an IUD. As specific acts or omissions of negligence, plaintiff alleged: (1) failure to remove the March 1, 1977, IUD before inserting another IUD on April 8, 1980; (2) failure to remove both for a period of time before the tubal ligation in order to ascertain whether plaintiff was experiencing an adverse reaction to one of the IUDs; (3) failure to remove one of the two IUDs during the tubal ligation; (4) failure to diagnose that an IUD had been left in plaintiff after the tubal ligation; (5) prescribing Provera for internal bleeding without diagnosing the cause of the bleeding; (6) failure to effect prompt removal of the IUD; (7) rather than confirming the presence of the IUD, recommending a hysterectomy in an attempt to obscure the fact plaintiff’s problems were caused by the IUD; (8) failure to timely diagnose the continued presence of the IUD following the tubal ligation; and (9) failing to promptly remove the IUD after its presence was diagnosed. Supplemental affidavits of plaintiff’s attorney and the anonymous physician were filed in support of plaintiff’s complaint.

After finding defendants were not estopped from asserting plaintiff’s failure to comply with the period of repose and statute of limitations in section 13 — 212 of the Code, and that proposed count V is a restatement of original counts I and II previously dismissed, the trial court denied plaintiff’s motions to reconsider and for leave to amend the complaint. Again, plaintiff moved to reconsider and amend the complaint. This motion to reconsider was directed at the trial court’s order refusing to allow plaintiff to amend the complaint by adding count V. In the motion, plaintiff argues Powell, Dabrowski, and Huffman were all members of Carle, plaintiff was continuously under their care from March 1, 1977, to December 9, 1988, and that prior to November 25, 1988, plaintiff, acting as a reasonable person, “did not know nor should have known of the continued presence of the intrauterine device.” Plaintiff cited this court’s opinion in Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 544 N.E.2d 846, and several out-of-State cases in support of the application of the continuous course of treatment rule in this case.

Plaintiff’s second motion for leave to amend the complaint sought to add count VI, an action for negligence against Carle. The allegations of count VI are identical to those of count V with these exceptions. At the end of paragraph two is alleged the conclusion that the treatment by Huffman, Dabrowski and Powell constitutes a “continuance [sic] course of treatment” for gynecological problems arising out of Huffman’s insertion of an IUD on March 1, 1977, or April 8, 1980. Additional allegations of negligent conduct against defendant’s physicians are that they, in the course of their employment, were negligent in one or more of the following ways or a combination thereof: (1) inserted an IUD on March 1, 1977, or April 8, 1980, which was embedded in the uterus wall and remained so embedded until removed on November 25, 1988, by a physician not associated with Carle; (2) incorrectly assumed the IUD inserted on March 1, 1977, was no longer present in plaintiff’s uterus at the time the April 8, 1980, IUD was inserted and failed to perform diagnostic tests to verify that fact; (3) failed to establish an adequate system of recordkeeping to inform subsequent treating physicians that the March 1, 1977, IUD was not removed prior to the insertion of another IUD on April 8, 1980, and that an IUD was left in plaintiff’s uterus after the tubal ligation; (4) failed to diagnose the IUD had been left in plaintiff following the tubal ligation, from March 12, 1981, to November 25, 1988; and (5) administered Provera to plaintiff for uterine bleeding without first performing a biopsy, which would have revealed the presence of the IUD. In count VI, as in count V, plaintiff alleged she continuously remained a patient of the obstetrical-gynecological service of Carle until December 9, 1988. Count VI more specifically alleged that the continuous treatment was in regard to gynecological problems and complaints arising out of the presence of one or both IUDs inserted by Huffman, and that the acts of negligence alleged occurred at various times during the period from March 1, 1977, to and including December 9, 1988. Plaintiff further alleged in count VI that the insertion of one of the IUDs in such a manner that it was embedded in the uterus wall constituted a continuing negligent act which continued until its presence was revealed to plaintiff on November 25, 1988, or until it was removed on December 9, 1988. In support of the motion for reconsideration, plaintiff filed an affidavit, and the discovery depositions of Drs. James A. Yambert, Suzanne Trupin, Powell, Dabrowski, and Huffman. The discovery deposition of plaintiff was also considered by the trial court. After considering written argument of counsel, plaintiff’s motions were denied.

This court, too, has reviewed the discovery depositions. However, for the purposes of this disposition, only a summation is necessary. On March 1, 1977, Huffman inserted an IUD in plaintiff. Subsequently, plaintiff began complaining of cramping, an unusually heavy and lengthy menstrual period, and mid-cycle spotting. A new IUD was inserted on April 8, 1980. Huffman stated plaintiff felt the first IUD had been expelled and she wanted a new one. Plaintiff says Huffman told her a new IUD would be necessary every three years. She also felt so miserable she thought a new IUD would help. Before inserting the second IUD, Huffman’s probing did not disclose the presence of the earlier implanted IUD. Plaintiff continued to have problems, and in January 1981, she explored with Huffman the possibility of a tubal ligation. The tubal ligation was performed on March 12, 1981. One IUD was removed at that time. Plaintiff stated in her deposition that there was no change in her condition thereafter. Huffman last saw plaintiff on December 14, 1983, although plaintiff stated she called his office on December 27, 1983, regarding a prescription. Plaintiff further stated in her deposition that she continued her prescription for Dyazide until after she saw Trupin.

Plaintiff next saw Suzanne Trupin, a physician board certified in obstetrics and gynecology. Trupin is not associated with Carle. She saw plaintiff on August 23, 1985, for a premenstrual syndrome (PMS) consultation. Plaintiff explained she went to see Trupin to determine whether the symptoms she experienced were caused by PMS. Plaintiff saw Trupin for less than one hour on only this one occasion. Plaintiff also explained that she did not intend to make Trupin her regular physician and she intended to retain her relationship with Carle Clinic.

On June 19, 1986, plaintiff sought care for her condition at Carle, but from doctors other than Huffman. She initially asked to see Powell, but was told she would have to wait months. She then asked to see Dr. Fay, who was also not available for several months. Dabrowski was the only doctor with an opening. Dabrowski’s care of plaintiff continued into August 1988. Plaintiff’s complaints to Dabrowski also concerned menstrual cycle abnormalities. Dabrowski treated plaintiff with medication.

On November 25, 1988, plaintiff was seen in Carle’s emergency room by Yambert. At that time, an X-ray photograph revealed the presence of an IUD. Yambert referred plaintiff to Powell. Powell explained he was on call that day. Powell saw her that day and again on December 9, 1988. A pelvic ultrasound vaginal probe failed to disclose the presence of the IUD. Powell -understood plaintiff’s problem to be menstrual cycle abnormalities. An IUD was later removed by a physician not associated with Carle.

Under section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), a party may seek involuntary dismissal of a cause of action based on defects or defenses enumerated in the statute. For example, section 2 — 619(a)(5) of the Code allows a defendant to seek dismissal if the action was not commenced within the time limited by law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5).) On review of the trial court’s ruling on a motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true and any allegations which are mere conclusions, unsupported by allegations of specific facts, are not admitted. Therefore, generally, the test to be applied by the reviewing court is whether it appears no set of facts may be proved to entitle plaintiff to recover from defendant. (Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.) However, because the defect or defense may not be apparent on the face of the pleading attacked, a section 2 — 619 motion may be supported by affi-

davit. In Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 693-94, 510 N.E.2d 1111, 1112-13, section 2 — 619 motions were discussed as follows:

“The purpose of section 2 — 619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact. The basis of the motion must go to an entire claim or demand. (Ill. Ann. Stat., ch. 110, par. 2 — 615, Historical and Practice Notes (by Albert E. Jenner, Jr., Philip W. Tone and Arthur M. Martin) (Smith-Hurd 1985).) Although defects that appear on the face of the pleading attacked may, according to the letter of the section, be reached by a section 2 — 619 motion, the section is not designed for that purpose. (Leitch v. Hine (1946), 393 Ill. 211, 66 N.E.2d 90.)”

(See also Toys “R” Us, 215 Ill. App. 3d at 564, 574 N.E.2d at 1330; Michel v. Card (1989), 181 Ill. App. 3d 630, 635, 536 N.E.2d 1375, 1379.) In some instances, there is a great deal of similarity between section 2 — 619 motions to dismiss and motions for summary judgment, particularly where the ruling on the motion to dismiss requires a determination of fact. Under these circumstances, when the documents establish that there is no issue of material fact, or that crucial issues of material fact are refuted by affirmative matters, the section 2 — 619 motion may be granted. See Ralston v. Casanova (1984), 129 Ill. App. 3d 1050,1055-56, 473 N.E.2d 444, 448-49.

In this case, the court is dealing with a question pertaining to the applicability of the statute of repose. Ordinarily, the application of the statute of repose is a question of law, especially where the last contact between plaintiff and defendant in a medical malpractice case has been established. However, here, plaintiff argues the continuous treatment doctrine tolls the running of the statute of repose, and the court has to determine (1) whether the continuous treatment doctrine applies, and (2) if it applies, under the facts of this case, was there a time when continuous treatment discontinued such that the statute of repose began to run as a matter of law. This is similar to the factual determination which may need to be made when the application of the appropriate statute of limitations is considered in light of the time of discovery rule. That, too, can be the subject of summary judgment only if it can be determined that no genuine issue of material fact exists. See Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868-69.

There is, of course, a significant difference between a statute of limitations and a statute of repose. In relation to physician malpractice, the repose period is contained in subsection (a) of section 13 — 212 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(a)), which states in relevant part: “in no event shall such action be brought more than 4 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.”

This court has previously considered how the continuous course of treatment doctrine affects the operation of the statute of repose. In Neaterour, this court discussed the continuous course of treatment doctrine and stated dictum recognizing the doctrine applies to the statute of repose such that later, in Daly v. Carmean (1991), 210 Ill. App. 3d 19, 29, 568 N.E.2d 955, 961, this court adopted the reasoning in Neaterour that the statute of repose is triggered only on the last day of treatment, and added that as long as the treatment is for the same condition, there is no requirement that the negligence have continued throughout the treatment.

At oral argument, plaintiff’s attorney acknowledged that the action against Huffman individually is probably barred by the statute of repose, but plaintiff’s focus on appeal was directed at reinstating the cause of action against Carle for the negligence of members of the association throughout the course of treatment of plaintiff at Carle, including Huffman’s negligence. Based on this concession, without deciding whether the individual action against Huffman may be maintained based on the continuous course of treatment doctrine, the dismissal of counts I and II as to Huffman is affirmed.

As to Carle, the trial court erred in dismissing counts I and II without leave to amend and further erred by refusing to allow plaintiff to amend her complaint along the lines suggested in counts V and VI. We realize there is a good deal of duplication in these counts which may be the subject of further motions in the trial court.

In ruling that the trial court erred, this court is relying on the decision of Offerdahl v. University of Minnesota Hospitals & Clinics (Minn. 1988), 426 N.W.2d 425. Offerdahl also involved the insertion of IUDs. Plaintiff, in 1972, had a Daikon Shield IUD inserted by a physician not associated with defendant. In 1973, plaintiff was hospitalized in the University Hospital for pelvic inflammatory disease (PID). The Daikon Shield was not removed. On June 28, 1977, she returned to the University Hospital complaining of abdominal pain and excessive bleeding during menstruation. After the Daikon Shield was removed, a Copper-7 IUD was inserted by Dr. Felton. Plaintiff continued to experience pain and on May 9, 1978, returned to the hospital and asked that the IUD be removed. Because of suspected pregnancy, the IUD was not removed, but plaintiff was told to return in one week if pregnancy tests were negative. Although plaintiff was not pregnant, she did not return until January 28, 1979, at which time she was again experiencing severe pain and vaginal bleeding and discharge. The IUD was removed, and plaintiff was admitted for treatment. She was diagnosed as having chronic PID. The parties disputed when the treatment for PID ended. Not disputed was the fact plaintiff underwent a number of surgeries, including the removal of her left fallopian tube and ovary in 1981. Plaintiff then received fertility counseling by Dr. Nagel and in 1984 gave birth. In 1982, plaintiff sued A.H. Robins Company, Inc., for damages resulting from the use of the Daikon Shield. In 1984, that case was settled. On June 19, 1984, she sued the University for malpractice. In Offerdahl, it was held that where the patient seeks treatment from a clinic as a whole, rather than from an individual physician, it is the treatment from the clinic as a whole and not that of the individual physician alleged to have committed the act of malpractice which is relevant to determining when treatment terminated and the statutory period began to run.

Defendant Carle contends it is only vicariously liable for the acts of Huffman and, since the physician-patient relationship between Huffman and plaintiff ended in 1983, it cannot be liable for any acts of negligence by Huffman. Based on the allegations, Carle is an association of physicians and plaintiff sought care from the gynecological-obstetrical department of the clinic association. By adopting the rationale in Offerdahl, we reject the contention of defendant.

Defendant Carle further argues that plaintiff’s relationship to Carle was interrupted when she went to see Trupin and because of the 21/2-year period which elapsed between when plaintiff last saw Huffman and when she first saw Dabrowski. Surely a physician-patient relationship is not automatically terminated merely because the patient seeks a second opinion. Furthermore, Aznel v. Gasso (1987), 154 Ill. App. 3d 785, 507 N.E.2d 83, relied on by defendant, is factually distinguishable. In Aznel, plaintiff saw defendant from March 1971 to December 1973. Defendant’s treatment of plaintiff ceased when defendant moved to Florida and referred plaintiff back to plaintiff’s family physician. At that time, the physician-patient relationship ended. In January 1984, plaintiff flew to Florida to be examined by defendant for the first time in more than 10 years. Clearly a single consultation after a decade of nontreatment cannot be construed as a continuous course of treatment.

We are not deciding as a matter of law that a continuous course of treatment existed in this case. We are saying that it cannot be determined as a matter of law that a continuous course of treatment did not exist. A question of fact exists which must be considered by the trier of fact. Plaintiff should be allowed her day in court.

Accordingly, the judgment of the circuit court is affirmed as to Huffman. However, as to Carle, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

STEIGMANN and KNECHT, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
      In re MARRIAGE OF RENA LEE DUFF, n/k/a Rena Lee Catton, Petitioner-Appellee, and LYNDELL EDWIN DUFF, Respondent-Appellant.
    Third District
    No. 3-90-0838
    Opinion filed January 22, 1992.

      W. Edgar Weer, of Pekin, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Respondent Lyndell Edwin Duff appeals from judgment of the circuit court of Tazewell County denying Lyndell’s motion to vacate or reconsider an order entered by the court on September 21, 1990, granting temporary custody of the parties’ two minor children to petitioner Rena Lee Duff, now Rena Lee Catton. The court also entered an order finding grounds for dissolution and granting other relief as prayed for in an “amended petition for dissolution of marriage” filed in the Tazewell circuit court by Rena Lee on August 23, 1990. This appeal was granted pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306). The sole issue we are asked to decide is whether the Tazewell County circuit court properly assumed subject matter jurisdiction of the cause when the same proceeding was pending in Fayette County, Illinois.

Rena Lee has not filed an appellee’s brief in this court, and the record on appeal consists solely of the common law records from the Fayette and Tazewell County courts. Nonetheless, from our review of the common law records and our independent research of applicable law (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493), we have determined that the circuit court of Tazewell County erred in denying Lyndell’s motion to vacate.

On July 20, 1989, Rena Lee filed a petition for dissolution of marriage in the circuit court of Fayette County. At that time, her residence was Rt. 2, Ramsey, Fayette County, Illinois, and Lyndell’s was Rt. 2, Fillmore, Montgomery County, Illinois. After various mesne pleadings were filed, the court’s docket sheet shows that an uncontested hearing on grounds was held on September 8, 1989, and that the court found that grounds were proved. On September 12, the Fayette County circuit court entered an order for temporary relief, granting Rena Lee custody of and support for the parties’ minor children and visitation for Lyndell pursuant to the parties’ agreement. The “second phase” hearing was continued numerous times, but the court’s docket sheet shows that testimony was taken in late November 1989, and that the parties agreed on February 9, 1990, that Lyndell should pay $300 semimonthly for child support. Then, on August 20, 1990, Lyndell filed a motion in which he stated that the parties had attempted a reconciliation, but that it had failed. He requested that the court reset the cause for completion of the phase two hearing.

Three days later, Rena Lee filed an “Amended Petition for Dissolution of Marriage” in the circuit court of Tazewell County. In the body of this pleading, she indicates that her residence is No. 7 Kenmore Ct., Pekin, Tazewell County, Illinois. She shows Lyndell’s address as Rt. 2, Bx. 174, Shobonier, Fayette County, Illinois. Concurrently with her amended petition, Rena Lee filed a “Notice of Filing of Petition to Register” with the clerk of the circuit court in Fayette County. She attached a copy of this document and the September 12, 1989, Fayette County order of temporary relief to the August 23, 1990, pleadings filed in Tazewell County.

The record next shows that Rena petitioned for temporary relief in Tazewell County and that both parties appeared for a hearing on this motion on September 21, 1990. The court on that date ruled, inter alia, that Lyndell should pay $247 semimonthly for child support, that Lyndell’s prior visitation rights “shall not be in effect,” and the court reserved judgment on Lyndell’s visitation “until [Lyndell] shall petition the court.” A second hearing was held in the Tazewell County court on October 15, 1990. The record discloses that Lyndell received notice of the hearing, but failed to appear. The court received evidence and determined:

“1) That the Court has jurisdiction of the parties and subject matter;
2) That the parties were married on April 29, 1983 and continue to be husband and wife; [and]
3) That the Defendant has been guilty of acts of extreme and repeated physical cruelty to the plaintiff that occurred without cause or provocation.”

The court, accordingly, entered an order dissolving the parties’ marriage and set the matter for a hearing on remaining issues on November 5, 1990. On October 19, Lyndell filed a motion seeking to vacate the court’s September 21 order for temporary relief or, in the alternative, to reconsider the order to the extent that it denied him visitation with his children. On October 29, 1990, the court denied Lyndell’s motion. Although it appears that no written petition was filed by Lyndell in Tazewell County, the court noted in its October 29 order that the cause would be continued to November 5 for a hearing on Lyndell’s request for temporary visitation. On that date the court entered an order granting him limited visitation. Lyndell filed a timely notice of appeal from the October 29, 1990, order.

Lyndell argues that because of the pending action in Fayette County the Tazewell County court lacked subject matter jurisdiction. In the alternative, he states that section 2 — 619(a)(3) of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)) evinces the public policy of this State to discourage forum shopping and to encourage the efficient use of judicial resources. He contends that the Tazewell County court should have dismissed Rena Lee’s amended petition in furtherance of these policies.

Section 2 — 619(a)(3) provides:

“(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(3) That there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3).)

Generally, a motion under section 2 — 619 is subject to waiver if the defense is not advanced in a timely pleading. (Coolbaugh v. Coolbaugh (1962), 33 Ill. App. 3d 444, 178 N.E.2d 702 (decided under former section 48 of the Civil Practice Act (Ill. Rev. Stat. 1961, ch. 110, par. 48)).) Since Lyndell’s motion to vacate was not pursued until after the Tazewell County court granted relief on Rena Lee’s amended petition, we must consider application of the waiver doctrine.

It is well established that the waiver doctrine may operate to permit a suit to proceed in an improper venue, but the doctrine does not apply to a motion complaining of the court’s lack of jurisdiction over the subject matter. (In re Marriage of Fox (1989), 191 Ill. App. 3d 514, 548 N.E.2d 71; In re Marriage of Alush (1988), 172 Ill. App. 3d 646, 527 N.E.2d 66.) As stated in Alush, “Subject matter jurisdiction includes not only the power to hear and determine a class of cases but the power to grant the relief requested.” (172 Ill. App. 3d at 652, 527 N.E.2d at 70, citing People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 521, 461 N.E.2d 505.) Obviously, in this case the Tazewell County circuit court had the power to hear and determine dissolution cases. The question, then, is whether the court also had the power to grant Rena Lee the relief she sought in her amended petition. We find that it did not.

In his appeal, Lyndell cites no Illinois authority directly on point, and our research fails to reveal any similar reported case in which a sister circuit has assumed subject matter jurisdiction over a pending divorce suit and granted relief before its jurisdiction was challenged. Nonetheless, we are convinced that Lyndell’s motion to vacate should have been granted.

In similar circumstances, courts have ruled that the “second” court lacks authority to assume jurisdiction over a cause initiated in a sister circuit. For example, in Sidwell v. Sidwell (1966), 75 Ill. App. 2d 133, 220 N.E.2d 479, the reviewing court ruled that the Clark County circuit court in plaintiff’s action for separate maintenance properly granted defendant’s motion to dismiss under section 48(1)(c) (Ill. Rev. Stat. 1965, ch. 110, par. 48(1)(c) (now section 2 — 619(a)(3))) of the Civil Practice Act because of the pendency of the parties’ divorce suit in Cumberland County.

More recently, in In re Marriage of Nelson (1984), 128 Ill. App. 3d 635, 470 N.E.2d 627, the court on review of post-judgment enforcement proceedings ruled that section 512(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 512(b)) does not give a second circuit court authority to transfer matters not involving child custody out of the judicial circuit that last exercised jurisdiction in the matter. The same result was reached by the court in In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 463 N.E.2d 955. There, the parties’ marriage was dissolved in McLean County in 1965. In 1969, the wife sought and obtained a modification of child support by a petition filed in Cook County. A second petition to enforce was brought in Cook County in 1972. The husband was never served with summons for the Cook County proceedings; and, in 1979, he moved to vacate the Cook County orders on the ground that McLean County had continuing and exclusive jurisdiction over the subject matter. The court on review agreed that the Cook County circuit lacked jurisdiction, but rested its holding on the wife’s failure to serve summons so as to confer personal jurisdiction over the husband in the Cook County court.

Nelson and Hostetler are consistent with the reasoning of our supreme court in Sommer v. Borovic (1977), 69 Ill. 2d 220, 370 N.E.2d 1028, a case initially decided prior to the enactment of the Illinois Marriage and Dissolution of Marriage Act. The parties in Sommer were divorced in Du Page County in 1967. In 1974, the husband attempted to register the Du Page County decree with the Lake County circuit court in support of his petition for custody of the parties’ children. Lake County assumed jurisdiction, and the cause eventually came before the Illinois Supreme Count on a petition for writ of mandamus. The court on review determined that “[t]he circuit court of Lake County was without authority to exercise jurisdiction over the subject of the custody of the children.” (69 Ill. 2d at 227, 370 N.E.2d at 1029.) Agreeing with “the greater weight of authority,” the court reasoned that “jurisdiction acquired by a court in a divorce proceeding over the custody and maintenance of children of parties to the suit is not only continuing but is also exclusive and precludes any other court in the State where the custody proceedings were held from later acquiring or exercising jurisdiction over the same subject.” (69 Ill. 2d at 227, 370 N.E.2d at 1030.) This rule, the court held, was consistent with the Illinois divorce statute then in effect (Ill. Rev. Stat. 1975, ch. 40, par. 19) and the public policy of this State to encourage the orderly administration of justice. On petition for rehearing, the court considered the possible application of sections 512(a) and (c) of the recently enacted Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 512(a), (c)), relating to post-judgment venue. The majority of the court ruled that the new law was not applicable.

In a slightly different context, the court in Palatine Savings & Loan Association v. Edgar (1982), 105 Ill. App. 3d 31, 433 N.E.2d 1134, considered a motion to vacate judgment by confession filed by the defendant debtors more than 30 days after plaintiff filed a summons to confirm judgment by confession entered in the circuit court of Cook County. At the time plaintiff filed its complaint in the Cook County court, the same action was pending in De Kalb County on remand from an appeal. Although the Cook County court was advised of the pendency of the action, it denied defendants’ motion to vacate and confirmed the judgment of confession. Defendants successfully appealed from the denial of their motion to vacate for want of jurisdiction. The appellate court ruled that “[t]he circuit court of Cook County *** should have declined jurisdiction in the confession action in the interests of the orderly and efficient administration of justice [citations], whether the motion to dismiss for want of jurisdiction was based upon section 48(1)(c) of the Civil Practice Act [citation] or not.” 105 Ill. App. 3d at 34, 433 N.E.2d at 1136-37.

In this case, as indicated above, although the Fayette County court stated that it found grounds for divorce, no final judgment of dissolution was entered. The record discloses that the Fayette County circuit court entertained several days of hearings on the question of child custody without having reached a judicial determination. Further, it appears that Lyndell still resided in Fayette County when Tazewell County assumed jurisdiction.

Rena Lee’s petition to register in Tazewell County cited to section 511 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 511). That section, however, refers only to judgments of dissolution, legal separation or declaration of invalidity of marriage and “post-judgment” proceedings to enforce or modify such judgments. Since in this case only an interlocutory order for temporary relief had been entered in Fayette County, section 511 does not authorize Rena Lee’s attempt to transfer subject matter jurisdiction outside of Fayette County. Section 512, similarly, addresses only “post-judgment venue” and does not control interlocutory orders.

This is not a case in which an emergency situation was pleaded, requiring the nearest court to exercise extraordinary powers for the protection of a party or the children. Under the circumstances, we believe that subject matter jurisdiction remained with Fayette County, and the Tazewell County court was not authorized to assume jurisdiction over any aspect of the cause except to transfer Rena Lee’s amended petition back to Fayette County. We find that the orderly administration of justice, this State’s legitimate interest in discouraging forum shopping and the interest of the Fayette County court in continuing jurisdiction over the custody of the parties’ children are all factors that weigh in favor of granting Lyndell’s motion to vacate the Tazewell County orders. To hold otherwise would in effect permit a dissatisfied party to appeal an interlocutory decision of one judicial circuit of this State before a second judicial circuit in hopes of a more favorable result.

In sum, we hold that the circuit court of Tazewell County lacked subject matter jurisdiction over Rena Lee’s amended petition for dissolution of marriage, and the court erred when it denied Lyndell’s motion to vacate pursuant to section 2 — 619 of the Code of Civil Procedure. Accordingly, we hereby vacate all orders entered by the circuit court of Tazewell County and remand this cause for further proceedings in Fayette County.

Reversed; cause remanded.

SLATER and GORMAN, JJ., concur.


author: JUSTICE GORMAN JUSTICE SLATER,

text:
      In re COLLECTOR’S APPLICATION FOR JUDGMENT FOR TAXES PAID UNDER PROTEST FOR THE YEAR 1988 (The People ex rel. John Weber, County Treasurer and ex officio Tax Collector of Will County, Plaintiff-Appellee, v. Crosfield Chemicals, Inc., et al., Defendants-Appellants).
    Third District
    Nos. 3 — 91—0411 through 3 — 91—0417 cons.
    Opinion filed January 15, 1992.
    Rehearing denied February 25, 1992.
    SLATER, J., dissenting.
    Douglas F. Spesia, of Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellant Crosfield Chemicals, Inc.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Robert M. Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This appeal results from a challenge by several taxpayers to the tax levy of certain taxing bodies. After a hearing on stipulated facts, the circuit court found in favor of the tax collector. We affirm.

The appellants in this action are Crosfield Chemicals, Inc. (No. 3— 91 — 0411), Commonwealth Edison Company (No. 3 — 91—0412), USX Corporation (No. 3 — 91—0413), Amoco Oil Company (No. 3 — 91— 0414), Peoples Gas Light and Coke Company (No. 3 — 91—0415), Illinois Bell Telephone Company (No. 3 — 91—0416), and Natural Gas Pipeline Company of America (No. 3 — 91—0417). The tax objections at issue are exactly the same for each of the appellants and relate to various taxing districts.

Objections filed by Crosfield Chemicals, USX, and Natural Gas are against the Will County Forest Preserve District only. Commonwealth Edison’s objections are against the Forest Preserve, Homer Township, the Godley Park District, and School District No. 92. Amoco Oil’s objections are against the Forest Preserve and School District No. 92. Peoples Gas’ objections are against the Forest Preserve and Homer Township. Illinois Bell’s objections are against the Forest Preserve, Homer Township, and the City of Lockport.

The appellants objected to the levy of those taxing districts for the payment of principal and interest on bonds issued by the districts. In each instance, the taxing district filed a bond ordinance or resolution during early 1989 upon which the county clerk extended a tax for the year 1988.

It is alleged that this extension was illegal due to an unconstitutional delegation of legislative authority in section 16 of the Local Government Debt Reform Act (111. Rev. Stat. 1989, ch. 17, par. 6916). Specifically, the taxpayers claim that the statute improperly delegates to the county clerk legislative discretion in determining whether or not to accept the filing of the levy ordinance. The trial court found that the decision is an exercise of ministerial or administrative discretion and thus found that the statute is constitutional.

The sole issue on appeal is whether section 16 is an unconstitutional delegation of legislative authority to the county clerk. Section 16 provides:

“A governmental unit may levy a tax for the payment of principal of and interest on general obligation bonds at any time prior to the issuance of such bonds, subject to the agreement of the county clerk that the county clerk will accept the filing of the ordinance levying such tax notwithstanding that such time is subsequent to the end of the calendar year next preceding the calendar year during which such tax will be collected. In extending taxes for general obligation bonds, the county clerk shall add to the levy for debt service on such bonds an amount sufficient, in view of all losses and delinquencies in tax collection, to produce tax receipts adequate for the prompt payment of such debt service.” Ill. Rev. Stat. 1989, ch. 17, par. 6916.

In general, a county clerk has several duties regarding the real estate tax collection process. Foremost among these duties is the requirement that the clerk keep the books with correct lists of taxable property for use by tax collectors. (Ill. Rev. Stat. 1989, ch. 120, par. 639.) The clerk must also determine the tax rate for each taxing district. (Ill. Rev. Stat. 1989, ch. 120, par. 643.) To facilitate this, each taxing district must file with the clerk a certificate of levy or a copy of the levy ordinance. (See, e.g., Ill. Rev. Stat. 1989, ch. 24, par. 8— 3 — 1.) After determining the appropriate tax rate, the clerk then delivers the tax books to the collecting officials and certifies to the county collector the amount of taxes to be collected. (Ill. Rev. Stat. 1989, ch. 120, pars. 653, 654.) A county clerk has no power to levy taxes or determine whether taxes have been legally assessed and as such his duties in the extension of taxes are purely ministerial. City of Rockford v. Gill (1979), 75 Ill. 2d 334, 388 N.E.2d 384.

Appellants argue that the language of section 16 gives the county clerk the authority to refuse to accept the filing of the levying ordinance and to refuse to extend the tax. Thus, the county clerk’s acceptance is a condition to the exercise of a governmental unit’s power to make a levy for a tax and to have the levy extended. According to the appellants, the statute purports to grant the county clerk powers that are greater than the ministerial function of extending taxes and is therefore unconstitutional.

Initially, we note that legislation is presumed constitutional and the party challenging a statute’s constitutionally must rebut this presumption and prove the unconstitutional nature of the statute. (County of Bureau v. Thompson (1990), 139 Ill. 2d 323, 564 N.E.2d 1170.) Moreover, in a tax objection case, there is a presumption that the taxes assessed are correct, and the objector bears the burden of proving facts to sustain the objection. People ex rel. Thompson v. Clark (1975), 34 Ill. App. 3d 228, 338 N.E.2d 408.

It is apparent that section 16 is but one of many statutes addressing the county clerk’s role in the tax collection process. Accordingly, it cannot be read in isolation, but must be read together with the other statutes which regulate the same subject and harmonized whenever possible. Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 563 N.E.2d 465; People v. Badoud (1988), 122 Ill. 2d 50, 521 N.E.2d 884.

The court, in construing legislation, need not adhere to the literal language of the statute if that interpretation would lead to absurd results. If the statute can be reasonably construed so as to avoid such results, then the construction that would render the statute ineffective should be avoided. (Moyer v. Board of Education of School District No. 186 (1945), 391 Ill. 156, 62 N.E.2d 802.) To accomplish this, each statute is to be construed in light of the general purposes and objects of the acts in order to effectuate the main intent and plan of that statute. Moyer, 391 Ill. at 162, 62 N.E.2d at 805.

The intent of the legislature in enacting the Local Government . Debt Reform Act is expressed in the “Findings” section of the Act, which provides:

“The General Assembly finds: (a) There have been many and important changes in the market for and practices with respect to the issuance of bonds of local governmental units in recent years.
(b) Various provisions of the Illinois law are inconsistent and outdated.
(c) Many of these provisions result in additional costs for the citizens of the State of Illinois residing in local governmental units because of the sale and issuance of bonds at higher rates than would otherwise be necessary.
(d) The General Assembly deems it advisable and in the best interests of the residents of Illinois local governmental units to provide supplemental authority regarding the issuance and sale of bonds to accommodate such market practices and the provisions of current federal income tax law.” Ill. Rev. Stat. 1989, ch. 17, par. 6902.

This legislative intent was effectuated by section 16 of the Act under which a taxing body could levy a tax for bonds, which tax was to be collected in the same year as the levy. In this way the taxing bodies could possibly have lower interest costs, as the payment for the bonds would begin sooner.

The appellants argue that, to be valid, a tax must be levied before the time the law requires the tax books to be completed and in the hands of the county collector. (People ex rel. Euziere v. Rice (1937), 290 Ill. App. 514, 8 N.E.2d 683.) They argue that since section 16 does not contain a deadline by which the levies must be filed, the county clerk has improper discretion in determining whether to extend the levy for that current tax year. By statute, the tax books are to be delivered to the collector by December 31. (Ill. Rev. Stat. 1989, ch. 120, par. 653.) However, this filing date is not mandatory. People ex rel. Ward v. Chicago & Eastern Illinois Ry. Co. (1936), 365 Ill. 202, 6 N.E.2d 119.

The record here shows that the books for 1988 were not finalized until sometime after April 17, 1989. A deputy county clerk testified that it was his experience that the books had never been transferred by December 31. The books were not sent to the collector because they were incomplete, as certain information provided by agencies other than the county clerk’s office was not yet available. The last piece of information the clerk receives in order to calculate the tax is the final multiplier from the Department of Revenue. In this case, the clerk received the final multiplier on April 17, 1989. By then, all of the bond resolutions and ordinances in question had been filed with the clerk.

When reading the statutes together, the reasonable construction is that the levy must be filed before the tax books are in fact completed. Anything filed before then will be included in that year’s tax assessment. Anything filed after the books have been closed will be collected in the subsequent year. In this way, the legislative intent can be made to conform with the practical realities involved in the tax collection process. Taxing districts can issue bonds at lower costs while still allowing the county clerk to timely complete the books.

The process in question did not involve any exercise of discretion by the county clerk. The tax books had not yet been completed when the bond resolutions and ordinances were presented for filing. Since the tax rates had not yet been computed, the clerk included those levies in the final computations. Thus, the actual practice conformed to the statutory scheme of allowing a filing of the levy before the tax rates had been calculated.

The appellants envision a situation where a county clerk might refuse to accept a levy for filing or refuse to extend the tax. However, there is no evidence to support such an allegation.

The record shows that it was the policy of the clerk’s office to accept whatever was brought into the office for filing. The deputy county clerk testified that he had never seen a document rejected. The deputy clerk further testified that it was his practice to make an extension on every levy or bond resolution that is filed. There is nothing to support the appellants’ speculation that, at some future time, either of these practices might change.

The constitutionality of a statute is not to be determined by conjectural misapplication, but by examining the facts at hand. (People v. Matkovick (1984), 101 Ill. 2d 268, 461 N.E.2d 964; City of Rockford v. Gill (1979), 75 Ill. 2d 334, 388 N.E.2d 384; Village of Itasca v. Luehring (1954), 4 Ill. 2d 426, 123 N.E.2d 312.) If a statute is in fact applied unconstitutionally, then the courts can deal with that situation if and when it arises. However, under the present facts, the statute has been applied in a constitutional manner.

Section 16 is not an unconstitutional delegation of legislative discretion to the county clerk. The clerk’s only decision was whether the tax levy has been filed prior to the finalizing of the tax books so as to allow it to be included in the tax books and collected in the same year. If the books had been closed prior to the filings, the levy would have been collected the following tax year.

The trial court was correct in finding that the actions described in section 16 are ministerial. Accordingly, we affirm the judgment of the Will County circuit court.

Affirmed.

McCUSKEY, J., concurs.

JUSTICE SLATER,

dissenting:

I respectfully dissent. I believe that section 16 of the Local Government Debt Reform Act is an unconstitutional delegation of legislative authority. When it comes to the extension of taxes, a county clerk’s duties are purely ministerial. (City of Rockford v. Gill (1979), 75 Ill. 2d 334, 388 N.E.2d 384.) Section 16 grants the county clerk, with no guidelines or standards to operate by, authority over a governmental unit’s power to extend taxes in the current year. A plain reading of the statute indicates that the county clerk’s “agreement” to accept the filing is required. If the county clerk is free to accept, he is also free to reject the filing. The decision as to whether the tax will be extended for the current year is improperly vested in the county clerk. I would reverse the judgment of the circuit court.