author: JUSTICE LUND JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAWN SUTTON, Defendant-Appellant.
    Fourth District
    No. 4—91—0696
    Opinion filed June 11, 1992.
    Rehearing denied July 14, 1992.

      STEIGMANN, J., specially concurring.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Macon County, defendant was convicted of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1) and sentenced to 40 years’ imprisonment. No direct appeal was taken, and defendant’s petition for leave to file a late notice of appeal was denied. A pro se petition for post-conviction relief was denied following an evidentiary hearing. This appeal followed.

Defendant contends:

(1) the stipulated trial was tantamount to a guilty plea and should be reversed because Supreme Court Rule 402 (134 Ill. 2d R. 402) admonishments were not given; and
(2) he was denied effective assistance of counsel because
(a) the attorney failed to interview potential alibi witnesses,
(b) failed to subject the State’s case to meaningful adversarial testing, and
(c) failed to file a notice of appeal.

At trial, it was stipulated that Brian Young would testify that on July 9, 1989, he met Howard Taylor and defendant in the “late hours.” At that time, they discussed a plan to get the deceased, Gerald Stone, alone with Sutton. Both Taylor and Young went to the residence of Rocky Adams, where they talked with Stone about obtaining some radar detectors. He told them to come back in 15 minutes and when they did, Gerald Stone got into their car, driven by Young. They proceeded to an alleyway behind the old Lincoln School in Decatur, where the car stopped and Sutton climbed into the rear seat next to Stone. Stone attempted to get out of the car, but was pushed back by Sutton. A short distance from the alleyway, Taylor got out of the car. The three remaining in the car, Young, Sutton, and Stone, drove through the streets of Decatur until they encountered Jason Trimby walking his dog. Trimby got into the rear seat, leaving Sutton on one side of Stone and Trimby on the other. The dog was put in the front seat.

Evidence would show that earlier that year Stone, Sutton, and John Giblin had committed a robbery of a Dairy Queen in Decatur. The case was set to go to trial in July 1989, and Stone was to testify as to Sutton’s involvement. In the present case, the State would present testimony of Giblin that both he and Sutton did, in fact, rob the Dairy Queen. Evidence would further show that Sutton recruited four individuals to make statements to the police that they were with Sutton on the day of the robbery. Anthony Spates would testify that Sutton told him he had a robbery case and needed a lawyer. He allegedly said words to the effect, “ ‘If that nigger snitches on me, I’ll tie him up and burn him.’ ” He then indicated to Spates that he was referring to Stone. Evidence would show that Sutton made similar remarks to various people regarding Stone’s impending testimony with respect to the Dairy Queen robbery. He specifically told some of these individuals that he intended to kill Stone.

After picking up Trimby, Young drove around Decatur while Sutton engaged in a lengthy discussion with Stone regarding his upcoming testimony. Young would testify that at one point Sutton announced that he was going to have to kill Stone. There was some discussion as to whether any of the parties had some acid. Trimby volunteered that he did not have any acid, but he did have gasoline. They drove to Trimby’s house, dropped off the dog, and picked up a container of gasoline.

Young would then testify that he drove them to a parking lot in Decatur behind the French Quarter West. During this time, both Sutton and Trimby struck Stone in the head with a metal pipe. As they were exiting the car, Sutton again struck Stone on the head with the pipe and Stone’s knees buckled. Young would testify that Sutton then told him to leave and return later to pick them up. Sutton and Trimby each grabbed an arm and proceeded to guide Stone to a wooded area behind the French Quarter West. This was the last time Young saw Stone.

Young would testify that when he returned 30 to 40 minutes later, he observed Sutton and Trimby returning up a hill from the wooded area with Trimby carrying the gasoline canister. Young would testify that both Trimby and Sutton told him that Sutton had choked Stone until he passed out, poured gasoline on him, and that Trimby then “lit him up.” After dropping Trimby off at his home, Sutton repeated this story to Young.

The following day, Stone’s mother reported his absence to police. Stone’s driver’s license was found near the entrance to the wooded area behind the French Quarter West, and a police canine detail later found the charred and badly decomposed body of a young black male. During the subsequent autopsy a single latent fingerprint was recovered. An expert would testify that this was the fingerprint of Gerald Stone. The autopsy would also show injuries consistent with the area where Stone had allegedly been struck in the head.

Prior to Sutton’s trial, Taylor had previously entered a plea of guilty to unlawful restraint. Trimby and Young had previously entered pleas of guilty to the offense of murder.

At the close of the State’s evidence, the court asked if defendant wanted to present any additional facts. Defense counsel responded, “No; we would so stipulate.” At no time did defense counsel stipulate to the sufficiency of the evidence to prove guilt beyond a reasonable doubt. Addressing Sutton, the court asked if he understood he was giving up his right to a jury trial and if there was any testimony he wanted heard or any questions he would like to ask. Defendant stated that he understood the nature of the trial and that he had no questions.

Prior to the presentation of State’s evidence, defendant had been thoroughly questioned regarding his understanding of the nature of the stipulated trial. The court advised him that if he wanted a jury trial he could have one, and the jurors were available that morning. He was asked whether he had been forced or threatened in regard to his decision and was also fully apprised of the nature of the charge against him. The court then asked defendant what he wanted to do. He answered, “Waive my right to a jury trial.” At the close of evidence, defendant was advised that the offense of first degree murder carries a penalty of not less than 20 years nor more than 60 years (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)), or a fine not less than $1 nor more than $10,000 (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1(a)(1)). He was also advised that the sentence could be extended beyond the maximum of 60 years (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2(a)(1)), but that the State was not going to ask for that in this case.

Prior to trial, the State offered to recommend a 40-year sentence in exchange for a plea of guilty. Sutton’s attorney, Cynthia Alexander, claims that she discussed the nature of the charge with Sutton and the weight and type of evidence that the People were prepared to bring to trial. They also discussed the State’s plea agreement, and the fact that if they went to trial, the judge could impose a sentence anywhere from 60 years to an extended term, which would be natural life. Sutton wanted to accept the result of negotiation, i.e., the limitation on sentence, but did not want to admit guilt. At this point they discussed the nature of a stipulated trial and the fact that the judge would mostly likely find him guilty and sentence him to 40 years. Sutton agreed to the stipulation. Sutton now claims that at the time of trial he did not realize what was going on and that he was surprised he received a sentence of 40 years’ imprisonment.

(1)

Defendant contends that his stipulated bench trial was tantamount to a guilty plea and, because Supreme Court Rule 402 admonitions were not given, the conviction should be reversed and remanded for a new trial. Illinois courts have uniformly held that a stipulated bench trial procedure is not tantamount to a guilty plea if the defendant presented and preserved a defense. (People v. Horton (1991), 143 Ill. 2d 11, 20, 570 N.E.2d 320, 324.) In the present case, defendant offered virtually no defense and preserved no objection. Two pretrial motions were filed; one for a continuance and the other a request for a substitution of judge. Both motions were granted.

We need not decide whether the stipulated bench trial was tantamount to a guilty plea, because the warnings given to defendant represent substantial compliance with Rule 402. The constitutional standard by which the validity of a plea of guilty is determined is that the plea be intelligent and voluntary. (People v. Reeves (1971), 50 Ill. 2d 28, 29, 276 N.E.2d 318, 319.) “That the plea was ‘intelligent and voluntary’ may be shown by substantial, and does not require literal, compliance with the provisions of Rule 402.” (People v. McCoy (1979), 74 Ill. 2d 398, 402, 385 N.E.2d 696, 698, citing People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559.) The transcript of proceedings shows that defendant was advised of (1) his right to a jury trial; (2) the nature of the charge; (3) the minimum and maximum sentence prescribed by law; (4) his right to present testimony and ask questions about the proceedings; and (5) that his decision was voluntary and not the result of force or threat. Furthermore, prior to the sentencing hearing, the State acknowledged in open court that they would recommend a sentence of 40 years’ imprisonment. Defendant was asked if he understood his attorney’s advice and if he understood what he was doing, and answered that he did.

The only admonishments missing from the Rule 402 litany are the right to plead not guilty (which he was doing) and the right to confront witnesses. Failure to admonish a defendant of his right to confront adverse witnesses in a stipulated bench trial was found not to be plain error in People v. Burke (1980), 85 Ill. App. 3d 939, 407 N.E.2d 728. Regardless, the fact that the sentence imposed was substantially less than the life sentence he would probably have faced in a full trial, along with the court’s extensive interrogation of petitioner both prior to and after the State’s evidence was heard, amply justify the conclusion that Sutton’s decision was both knowing and voluntary.

(2)

Defendant next contends that he was denied effective assistance of trial counsel because the attorney failed to interview potential alibi witnesses, failed to subject the State’s case to meaningful adversarial testing, and failed to file a notice of appeal. The standard for determining ineffective assistance of counsel is laid out in People v. Stewart (1984), 101 Ill. 2d 470, 492, 463 N.E.2d 677, 688:

“The competency of counsel is presumed and can only be overcome by strong and convincing proof of incompetency. (People v. McCraven (1981), 97 Ill. App. 3d 1075, 1077.) The defendant bears the burden of establishing his trial counsel’s actual incompetence as reflected in the representation and substantial prejudice resulting therefrom. People v. Wither-spoon (1973), 55 Ill. 2d 18, 21.”

(a)

Defendant contends that his attorney was notified of potential alibi witnesses — his stepbrother Keith Rogers, Keith’s wife, and his two infant children — but did not attempt to interview them. Apparently, they would testify that they had all been eating dinner with defendant at the time of the murder. The record of the post-conviction hearing shows that when defendant’s attorney telephoned one of these witnesses, his story did not corroborate the defendant’s recitation of events. It was her professional opinion that his testimony would not provide an alibi. She claims she was advised of only one other alibi witness, one of Sutton’s codefendants who, in her opinion, also would not provide an alibi. The fact that all three codefendants — Young, Trimby, and Taylor — entered guilty pleas prior to Sutton’s trial, combined with the overwhelming evidence against him, indicates that a failure to conduct further interviews with family members and codefendants was a matter of discretion on the part of counsel. A review of counsel’s competency does not extend to those areas involving the exercise of judgment, discretion, or trial tactics. People v. Witherspoon (1973), 55 Ill. 2d 18, 22, 302 N.E.2d 3, 5.

Furthermore, defendant never states precisely what the testimony of the alleged alibi witnesses will be. These witnesses did not testify at the post-conviction hearing, nor were any affidavits presented. A claim that a more thorough investigation would have disclosed favorable evidence is based solely on conjecture, which is not sufficient to warrant a reversal. Witherspoon, 55 Ill. 2d at 22, 302 N.E.2d at 5.

(b)

Defendant next argues that defense counsel failed to subject the State’s case to a meaningful adversarial testing by (1) failing to advance a theory of defense, (2) presenting no closing argument, and (3) failing to hold the prosecution to its burden of proof. Our supreme court recently summarized the law in Horton, where it stated:

“Ordinarily, to prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s substandard representation so prejudiced the defense as to deny the defendant a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To show actual prejudice, defendant must establish that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ***’ Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
However, there are some circumstances where the two-part test set out in Strickland need not be applied. In People v. Hattery (1985), 109 Ill. 2d 449, this court stated that where ‘ “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” ’ (109 Ill. 2d at 461, quoting United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.) In these situations, prejudice to the accused will be presumed.” Horton, 143 Ill. 2d at 23, 570 N.E.2d at 325.

In People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, defense counsel unequivocally conceded that defendant committed the murders for which he was charged and stated that the only question in the case was whether the death penalty should be imposed. No evidence was presented in defense, and counsel made no closing argument. The supreme court in Hattery held:

“Counsel may not concede his client’s guilt in the hope of obtaining a more lenient sentence where a plea of not guilty has been entered, unless the record adequately shows that defendant knowingly and intelligently consented to his counsel’s strategy.” (Emphasis added.) (Hattery, 109 Ill. 2d at 465, 488 N.E.2d at 519.)

The court reiterated this point in Horton, as well as the principle that Hattery should be narrowly construed. Horton, 143 Ill. 2d at 24, 570 N.E.2d at 326.

In the present case, defense counsel did not at any time concede her client’s guilt. She merely stipulated to the existence of the State’s evidence. The trial court was still required to find that the evidence was sufficient to prove guilt beyond a reasonable doubt. More importantly, defendant’s attorney testified at the post-conviction hearing that the strategy to be used in the stipulated bench trial was fully discussed with defendant prior to trial. This fact was confirmed at trial, where the judge asked defendant if he understood the advice given him by his attorney and if he understood what he was doing. The record clearly shows that defendant knowingly and intelligently consented to his counsel’s strategy.

(c)

Finally, defendant argues that defense counsel was ineffective for failure to file a timely notice of appeal. Testimony at the post-conviction hearing was conflicting — defendant’s attorney saying an appeal was never requested, while defendant and his mother claimed they were told that an appeal would be filed immediately. Defendant relies on People v. Scott (1986), 143 Ill. App. 3d 540, 493 N.E.2d 27, for the notion that counsel’s failure to file a timely notice of appeal amounted to ineffective assistance of counsel. In Scott, the attorney in question was appointed for the specific reason to file an appeal and did not do so. In the present case, there is no such clear-cut evidence that an appeal was ever requested. Nor is it alleged on what grounds the appeal would be based. To prove ineffectiveness of counsel, defendant must show that his case was prejudiced. (People v. Weger (1987), 154 Ill. App. 3d 706, 506 N.E.2d 1072.) To claim only that he was unfairly denied an appeal, by itself, is not sufficient to show prejudice.

For these reasons, we affirm the decision of the post-conviction hearing.

Affirmed.

COOK, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

Although I fully concur with the majority opinion, I write separately to address once again the subject of stipulated bench trials.

In People v. Manley (1990), 196 Ill. App. 3d 153, 160-65, 552 N.E.2d 1351, 1356-60 (Steigmann, J., concurring in part and dissenting in part), I addressed a defendant’s claim that his convictions must be reversed because his stipulated bench trial was tantamount to a plea of guilty and the trial court failed to give him Supreme Court Rule 402(a) admonitions (107 Ill. 2d R. 402(a)). In Manley, I wrote the following:

“To obviate the confusion surrounding stipulated bench trials, a ‘bright line rule’ can and should be adopted. To this end, the following is respectfully offered: a stipulated bench trial is, in all cases, tantamount to a guilty plea, requiring that Rule 402(a) admonitions be given, unless after the stipulation a question remains regarding the sufficiency of the State’s evidence to sustain a conviction. An example of such a circumstance would be the defense offering to waive a jury trial and stipulate to the entire State’s case as set forth in the various police reports, while maintaining that the State fails to meet its burden of proof because all available evidence would be insufficient to prove beyond a reasonable doubt the venue of the alleged offense. Another example would be a defense stipulation to the entire State’s case in a prosecution for unlawful use of weapons, reserving for the trial court’s determination the question of whether the State’s evidence shows that the defendant was in constructive possession of a gun found under the front seat of a vehicle when the defendant was seated in the backseat. See Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(4).” (Emphasis in original.) Manley, 196 Ill. App. 3d at 164-65, 552 N.E.2d at 1359 (Steigmann, J., concurring in part and dissenting in part).

In Manley, I had argued that defense counsel’s intention “to appeal some pretrial ruling, such as the denial in this case of the motion to suppress, is irrelevant.” (Manley, 196 Ill. App. 3d at 164, 552 N.E.2d at 1359 (Steigmann, J., concurring in part and dissenting in part).) However, in People v. Horton (1991), 143 Ill. 2d 11, 22, 570 N.E.2d 320, 325, the supreme court adopted the rule “uniformly applied by the appellate court that a stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense.” By citing approvingly a long list of appellate court decisions that conflict with my above statement in Manley, the supreme court in Horton made clear that it did not adopt the “bright line rule” I proposed in Manley.

Even though the supreme court in Horton did not go as far as I proposed in deeming Rule 402(a) admonitions to be applicable to all stipulated bench trials (except under certain limited circumstances), I write specially to point out that trial courts presented with stipulated bench trials still can (and I think should) utilize the procedures I proposed in Manley. Doing so would literally require only a few extra seconds in most cases. The present case proves this point. Surely here it would have taken the court only a few seconds to inform defendant that by stipulating to the State’s evidence, he was giving up his right to confront the witnesses who would be testifying against him.

Further, for the reasons I explained in Manley, I still believe the procedures I proposed therein are fairer to defendants because those procedures ensure a defendant’s knowing and willing participation in the stipulated bench trial. Given the onerous consequences that often flow from the seemingly inevitable guilty verdicts that follow stipulated bench trials, I do not think it too much to ask trial courts that they spend the minimal time necessary to give a full Rule 402(a) admonition to a defendant before accepting the parties’ offer to present a stipulated bench trial. The trial courts owe it to themselves and to defendants to do no less when, as a result of a stipulated bench trial, a defendant who has walked into court presumed innocent of the charge against him leaves convicted of that charge pursuant to his own acquiescence.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    ROBERT S. ARMSTRONG, by his Mother and Next Friend, Phyliss Armstrong, Plaintiff-Appellant and Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—91—1007
    Opinion filed June 5, 1992.
    Markham M. Jeep, of Markham M. Jeep, P.C., of Waukegan, for appellant.
    Glen E. Amundsen, Michael Resis, and Mary T. Nagel, all of Querrey & Harrow, Ltd., of Waukegan, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Robert S. Armstrong, by his mother and next friend, Phyliss Armstrong, brought an action for declaratory judgment against defendant, State Farm Mutual Automobile Insurance Company, seeking a determination of his rights to uninsured motorist coverage and medical coverage under four policies. Two of the policies were issued to Robert; one was issued to Phyliss Armstrong, and the other was issued to Steven Armstrong.

On cross-motions for summary judgment, the trial court held that plaintiff was allowed excess uninsured motorist coverage only to the extent of the difference between his primary coverage and the coverage under Phyliss Armstrong’s policy. The trial court thus declared plaintiff entitled to a total of $100,000 uninsured motorist coverage. The court then held that plaintiff was entitled to the full combined limits of the medical insurance under all four policies which totalled $76,000.

Plaintiff appeals from that part of the judgment which prevented him from “stacking” uninsured motorist coverage under all the policies. Defendant cross-appeals from that part of the judgment allowing plaintiff to “stack” the medical coverages under all the policies. We affirm the trial court on the uninsured motorist claim and reverse the trial court on the medical coverage claim.

The facts of this case are not in dispute. On June 12, 1987, plaintiff, while riding his 1987 Honda motorcycle, was struck and seriously injured by a car. The driver of the car had no automobile insurance. Plaintiff was hospitalized. He incurred and continues to incur substantial medical expenses.

At the time of the accident, plaintiff was residing with his mother, Phyliss Armstrong, and his brother, Steven Armstrong. All three family members had automobile insurance policies with defendant. All of the policies covered plaintiff, either as a named or unnamed insured.

The policies provided coverage as follows:

Uninsured Motorist Medical Named Insured Vehicle Insured Limits Limits
Robert 1987 Honda motorcycle $25,000 $1,000
Robert 1979 Chevrolet Malibu 25,000 25,000
Phyliss 1987 Plymouth Colt 100,000 25,000
Steven 1986 Mazda 50,000 25,000

Each policy was written on “State Farm Policy Form 9813.6” (Form 9813.6). Each policy includes “Amendatory Endorsement 6989G” relating to uninsured motorist coverage and “Amendatory Endorsement 6989PP.1” for changes in medical coverage.

Form 9813.6 defines “car” as “a land motor vehicle with four or more wheels.” The policy issued on plaintiff’s 1987 Honda contains a further amendment stating that the definition of “car” would be changed to include a “2-wheel land vehicle with wheels in tandem.”

Under each policy, uninsured motorist coverage is provided by “Coverage U.” Prior to the issuance of Amendatory Endorsement 6989G, this section read:

“If There Is Other Uninsured Motor Vehicle Coverage
1. Policies Issued By Us to You
If other uninsured motor vehicle coverage issued by us to you also applies to the insured’s bodily injury, the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability.
2. Other Uninsured Motor Vehicle Coverage Available From Other Sources
Subject to 1. above:
(a) If the insured sustains bodily injury:
(1) as a pedestrian and uninsured motor vehicle coverage from a policy not issued by us also applies; or
(2) while occupying your car, and your car is described in the declarations page of another policy not issued by us providing uninsured motor vehicle coverage,
we are liable only for our share. Our share is that per cent of the damages that the limit of liability of this coverage bears to the total of all such uninsured motor vehicle coverage applicable to the accident.
(b) If the insured sustains bodily injury while occupying a vehicle not owned by you, your spouse or any relative and uninsured motor vehicle coverage also applies from a policy not issued by us, coverage under this policy applies:
(1) as excess to any uninsured motor vehicle coverage which applies to the vehicle as primary coverage, but
(2) only in the amount by which it exceeds the primary coverage.
If coverage under more than one policy applies as excess:
a. the total limits of liability shall not exceed the difference between the limit of liability of the coverage that applies as primary and the highest limit of liability of any one of the coverages that apply as excess; and
b. we are liable only for our share. Our share is that per cent of the damages that the highest limit of liability of any policy issued by us bears to the total of all uninsured motor vehicle coverage applicable as excess to the accident.
3. THIS COVERAGE DOES NOT APPLY IF THERE IS OTHER UNINSURED MOTOR VEHICLE COVERAGE ON A NEWLY ACQUIRED CAR.”

Amendatory Endorsement 6989G reads in relevant part:

“d. If There Is Other Uninsured Motor Vehicle Coverage (1) Item 2(b) is changed to read:
b. If the insured sustains bodily injury while occupying
a vehicle which is not your car, coverage under this policy
applies:
(1) as excess to any uninsured motor vehicle coverage which applies to the vehicle as primary coverage, but
(2) only in the amount by which it exceeds the primary coverage.
If coverage under more than one policy applies as excess:
a. the total limits of liability shall not exceed the difference between the limit of liability of the coverage that applies as primary and the highest limit of liability of any one of the coverages that apply as excess; and
b. we are liable only for our share. Our share is that per cent of the damages that the highest limit of liability of any policy issued by us bears to the total of all uninsured motor vehicle coverage applicable as excess to the accident.
(2) Item 3 is deleted.”

In arguing the motions for summary judgment, defendant conceded that paragraph 1 of Form 9813.6 was irrelevant to whether plaintiff could “stack” uninsured motorist coverage under the policies issued to Phyliss and Steven Armstrong, as Phyliss and Steven each received only one policy from defendant.

Defendant argued, however, that as a result of paragraph 2b of Amendatory Endorsement 6989G, plaintiff was limited to collecting $100,000 uninsured motorist coverage. Defendant argued that under the endorsement the policies of Phyliss and Steven were excess coverage and that defendant was entitled only to excess coverage in the amount by which the highest limit of either policy exceeded plaintiff’s primary coverage, i.e., the $75,000 difference between plaintiff’s coverage limit and Phyliss’ coverage limit. Plaintiff maintained that because the endorsement was ambiguous, it was not an effective “antistacking” provision. Plaintiff therefore claimed entitlement to the full uninsured motorist coverage limits of all the policies combined.

The trial court agreed with defendant that the policy as amended limited plaintiff’s uninsured motorist coverage to $100,000. The trial court also held that plaintiff was entitled to “stack” the medical coverages under all four policies for a total limit of $76,000. Both sides appealed.

The following general principles are applicable to both issues. The construction of an insurance policy is a matter of law for the court to determine. (Nationwide Mutual Insurance Co. v. Hecker (1989), 183 Ill. App. 3d 13, 15.) The rules of contract construction apply to the interpretation of insurance policies; therefore, courts should try to determine and apply the intent of the parties. Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 106.

Policy provisions against the “stacking” of coverage are not necessarily violative of public policy. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420; Georgantas v. Country Mutual Insurance Co. (1991), 212 Ill. App. 3d 1, 4.) However, to prevent “stacking,” the provision upon which the insurer relies must clearly and unambiguously do so. (Goss v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 866, 870.) Whether a provision in an insurance policy is ambiguous — that is, fairly susceptible of more than one interpretation — depends on a reading of the provision in its entire factual context and not in isolation. Putzbach v. Allstate Insurance Co. (1986), 143 Ill. App. 3d 1077, 1081.

We hold first that the trial court correctly ruled that plaintiff’s uninsured motorist coverage is limited to $100,000. We agree with defendant and the trial court that the amendatory endorsement unambiguously prevented “stacking” and limited plaintiff to the excess coverage conceded by defendant. For clarity, we set out the relevant provisions as amended:

“If There Is Other Uninsured Motor Vehicle Coverage
1. Policies Issued By Us To You
If other uninsured motor vehicle coverage issued by us to you also applies to the insured’s bodily injury, the total limits of liability under all such coverages shall not exceed that of the coverage with the highest limit of liability.
2. Other Uninsured Motor Vehicle Coverage Available From Other Sources
Subject to 1. above:
***
(b) If the insured sustains bodily injury while occupying a vehicle which is not your car, coverage under this policy applies
(1) as excess to any uninsured motor vehicle coverage which applies to the vehicle as primary coverage, but
(2) only in the amount by which it exceeds the primary coverage.
If coverage under more than one policy applies as excess:
a. the total limits of liability shall not exceed the difference between the limit of liability of the coverage that applies as primary and the highest limit of liability of any one of the coverages that apply as excess; and
b. we are liable only for our share. Our share is that per cent of the damages that the highest limit of liability of any policy issued by us bears to the total of all uninsured motor vehicle coverage applicable as excess to the accident.”

We hold that part 1 of the amendatory endorsement, covering policies issued by defendant to the named insured, plainly prevented plaintiff from “stacking” his two policies. We further conclude that section 2(b) as amended plainly forbids “stacking” of excess insurance. Plaintiff argues that the inclusion of the term “From Other Sources” and the failure to specify that the provision applies to “stacking” of policies issued by defendant renders the provision ambiguous. We cannot agree. The provision is comprehensive in its restrictions. Part 1 refers to policies issued by defendant to a particular named insured. Part 2 simply refers to any other source of uninsured motor vehicle coverage. Read naturally, this would include sources such as policies where the plaintiff is not the named insured. Section 2(b) similarly states, in unambiguous language, that defendant’s liability is limited to the highest limit of liability of any of the coverages that apply as excess. This limits plaintiff’s total recovery of uninsured motorist coverage from defendant to $100,000.

The presence of a “proration clause” at the end of the provision does not introduce ambiguity into the clear language of the “antistacking” provision. The proration clause is set off from the “antistacking” language. The proration clause is designed to prevent other insurers, if any, from paying less than their fair share of a jointly covered loss. (Putzbach, 143 Ill. App. 3d at 1081.) The “antistacking” provision and the proration clause serve separate and important functions. Although the questioned language is somewhat technical in nature, we conclude that the amendatory endorsement accomplished its intended purpose and limited plaintiff’s recovery of uninsured motorist coverage to $100,000. It is noted that the supreme court of Ohio has reached the same result in construing substantially similar policy language as being sufficiently unambiguous to be enforceable as a valid “antistacking” provision. Saccucci v. State Farm Mutual Automobile Insurance Co. (1987), 32 Ohio St. 3d 273, 512 N.E.2d 1160.

We next hold that the trial court erred in concluding that plaintiff could “stack” medical coverages under all four policies. It is unnecessary to set out the medical coverage provisions in depth because we agree with defendants that under all of the policies, save the one covering plaintiff’s motorcycle, plaintiff is not entitled to medical benefits because his motorcycle is not a “car” within the meaning of the other three policies.

Section II of Form 9813.6 requires that to recover medical benefits an insured must have suffered the injury while being struck as a pedestrian (which the parties agree was not the case here) or while operating or occupying a vehicle covered under the liability section of the policy. Form 9813.6 limits coverage to the use by an insured of the named vehicle (“your car,” “a newly acquired car,” “a temporary substitute car,” or “a non-owned car”). (Emphasis added.) Form 9813.6 defines “car” as “a land motor vehicle with four or more wheels.” This definition clearly excludes a motorcycle and explains why the policy covering plaintiff’s motorcycle specifically includes a separate and unique amendment changing the definition of “car” to include a motorcycle under that policy.

The conclusion that plaintiff’s motorcycle is not a “car” covered by the other three policies is necessitated by the plain language of the policies. It is also supported by precedent in this State. (State Farm Mutual Automobile Insurance Co. v. Childers (1977), 50 Ill. App. 3d 453 (injuries from motorcycle not covered under insurance policy for automobile as “automobile” and “motorcycle” have different meanings); see also State Farm Mutual Automobile Insurance Co. v. Salerno (1984), 121 Ill. App. 3d 384 (six-wheeled truck was not “four wheel land motor vehicle” covered by policy).) Medical coverage for plaintiff’s injuries was thus available only under the policy insuring his 1987 Honda motorcycle. The parties agree that this coverage amounts to $1,000.

We therefore hold, as a matter of law, that plaintiff is entitled to a maximum of $100,000 uninsured motorist coverage and $1,000 medical coverage under the policies at issue. Pursuant to Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we modify the declaratory judgment to that effect.

The judgment of the circuit court of Lake County is affirmed as modified.

Affirmed as modified.

MCLAREN and UNVERZAGT, JJ., concur.


author: JUSTICE NICKELS JUSTICE McLAREN,

text:
    THE FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff v. BROOKWOOD LAND VENTURE, Defendant-Appellee (National Housing Partnership, Defendant and Intervenor-Appellant; Marquette Properties, Inc., Defendant).
    Second District
    No. 2—91—0745
    Opinion filed June 3, 1992.

      McLAREN, J., dissenting in part.
    Christopher T. Van Wagner and Jerry A. Esrig, both of Epstein, Zaideman & Esrig, P.C., of Chicago (Robert J. Zaideman, of counsel), for appellant.
    Thomas W. Fawell and Melbourne A. Noel, both of Fatten, Muchin & Zavis, of Chicago, and Scott M. Day, of Helm & Day, of Naperville (David K. Schmitt, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Intervenor, National Housing Partnership (NHP), appeals the order of the circuit court granting summary judgment to defendant, Brookwood Land Venture (Brookwood). NHP sought to participate in the just compensation determined by a jury as the fair-market value of certain property, which Brookwood owned and which was the subject of an underlying condemnation action. NHP’s claim was based on a contract providing for such participation in the event Brook-wood entered a sales or purchase agreement for the property within a given time frame. On appeal, NHP asserts that the circuit court erred in finding as a matter of law that: (1) the condemnation was not a contract for sale within the meaning of NHP’s contract with Brookwood, and (2) if the condemnation was a contract for sale, such sale did not occur until after expiration of NHP’s right to participate in the proceeds of the sale of the property. We affirm.

In 1984, NHP and Marquette Properties, Inc., entered a real estate sales contract with Brookwood and Capital Bank and Trust Company of Chicago, as trustee of a land trust, for the purchase of 27 acres of vacant land in Du Page County. However, Marquette Properties, Inc., is not involved in this appeal because, subsequent to the filing of the complaint in intervention, it assigned all its rights under that contract to NHP. The sales contract called for a purchase price of $1.6 million, set the latest possible closing date as November 28, 1984, and required NHP’s payment of certain sums as earnest money. However, the closing was delayed by litigation concerning the only then existing access to the property filed by an adjacent homeowners’ association alleging ownership of such access. NHP and Brookwood negotiated several amendments to the initial contract extending the closing date, for which NHP paid additional sums. Eventually, NHP and Brookwood entered an “Agreement Terminating Real Estate Purchase/Sale Contract” (termination agreement) on November 26, 1986. NHP’s earnest money was returned, but the additional sums that had been paid to extend the purchase agreement were retained by Brookwood. The termination agreement further provided:

“(b) Seller [Brookwood] shall make a reasonable and good faith effort to sell the premises for cash to another buyer on such terms and conditions as are in the Seller’s sole judgment acceptable to the Seller, provided only that Seller has no direct or indirect ownership or control of said buyer, and that the purchase/sale agreement is the result of good faith arm’s length negotiations.
(c) If a contract for the sale of the Premises, as described in paragraph (b) above (the ‘Subsequent Contract’) is entered into prior to March 1, 1988, Purchaser [NHP] shall be entitled to participate in the ‘Net Proceeds’ (as hereinafter defined) resulting therefrom in accordance with the following:
(i) if the Net Proceeds are less than $1,600,000.00, Purchaser shall receive $160,000.00.
(ii) if the Net Proceeds exceed $1,600,000.00, Purchase shall receive the sum of $160,000.00 plus fifty percent (50%) of the amount by which Net Proceeds exceed $1,600,000.00, but in no event shall Purchaser receive more than $307,250.00.”

After provision for a possible installment contract, the termination agreement defined “Net Proceeds” as the total cash consideration less expenses for title insurance, escrow charges, transfer taxes, real estate commissions, real estate taxes, and interest on the existing mortgage incurred between the date of the termination agreement and any subsequent contract.

Early in February 1987, the Forest Preserve District of Du Page County (District) approached Brookwood to acquire the property. After Brookwood rejected the District’s offer of $1,463,400 for the property, further negotiations were considered futile and ceased and a condemnation action was filed February 24, 1987. Although NHP was initially named a defendant, it was dismissed with prejudice in January 1988 with respect to any legal title or fee interest in the property, but without prejudice as to its rights under the termination agreement. NHP filed a complaint in intervention in June 1988 seeking injunctive and declaratory relief and damages based on the termination agreement.

In April 1989 after a jury trial, just compensation for the property was set at $2,211,898, which was upheld on appeal. (Forest Preserve District v. Brookwood Land Venture (1990), 199 Ill. App. 3d 973.) After completion of the condemnation proceeding, the circuit court allowed NHP’s petition to intervene finding that its right to participate in the proceeds of a sale required the court to reach the issue now before us of whether the condemnation was a sale as that term was defined and used in the termination agreement. NHP and Brookwood filed cross-motions for summary judgment, and the circuit court granted Brookwood’s motion. The circuit court found that the relevant provision of the termination agreement was only applicable to a voluntary transfer of title and that, in any event, the condemnation occurred outside the time frame allowed by the termination agreement. NHP timely appealed and now asserts that the court erred as a matter of law in finding that the termination agreement did not apply to transfer of title by condemnation filed but not concluded until after expiration of the contract.

Summary judgment is proper when the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) The construction of the terms of a contract presents only a question of law and, therefore, is appropriate for summary judgment. W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 93.

In construing the terms of a contract, a court looks first only to the language of the contract employed by the parties in describing their intent. (Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 934.) If such language is clear and unambiguous, it will be given its natural and ordinary meaning. (Berutti, 145 Ill. App. 3d at 934.) Assertions of mere disagreement between the parties over the meaning of the terms of a contract based on a subsequent unexpected turn of events cannot render an otherwise unambiguous contract ambiguous. (Berutti, 145 Ill. App. 3d at 934.) Rather, if a court can determine the meaning of a contract based on a simple knowledge of the facts on which the meaning of the language depends, no ambiguity exists. (Berutti, 145 Ill. App. 3d at 934.) Thus, a court may not place a construction on the terms of a contract that is contrary to the plain and obvious meaning of the language. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287-88.) The entire instrument must be considered in determining if an ambiguity exists (United States Trust Co. v. Jones (1953), 414 Ill. 265, 270-71), and the fundamental purpose of the agreement provides the context in which disputed language should be interpreted (Pieszehalskii v. Oslager (1984), 128 Ill. App. 3d 437, 445-47).

Condemnation, or eminent domain, is the process by which a sovereign exercises the power to “take” private property for public purposes subject to the constitutional requirement that just compensation be paid to the owner. (Department of Public Works & Buildings v. Kirkendall (1953), 415 Ill. 214, 217.) No taking in the constitutional sense occurs until a condemnation petition is filed, just compensation is ascertained, and such compensation is paid. (Towne v. Town of Libertyville (1989), 190 Ill. App. 3d 563, 568.) Generally, no taking occurs until either a purchase or sale agreement is negotiated and executed or until condemnation proceedings, including payment, are concluded. (Towne, 190 Ill. App. 3d at 568; Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 906.) As a prerequisite to condemnation jurisdiction, the governmental body seeking to exercise its eminent domain powers must attempt to negotiate an agreement to purchase the subject property. (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 102; City of Chicago v. Harrison-Halsted Building Corp. (1957), 11 Ill. 2d 431, 434; Lake County Forest Preserve District v. First National Bank (1990), 200 Ill. App. 3d 354, 356.) However, when circumstances demonstrate that agreement is unreachable, no further negotiations are necessary. (Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 527-28; Lake County Forest Preserve, 200 Ill. App. 3d at 356.) Just compensation is “the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obligated to sell in a voluntary sale.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 121.) Thus, although just compensation is determined by attempting to approximate the voluntary marketplace, the essence of a condemnation is its involuntary, compulsory nature.

In contrast, a contract for sale or purchase requires a meeting of the minds, or mutual assent to the terms of the contract. (D.B. Corkey Co. v. Koplin (1988), 176 Ill. App. 3d 1096, 1102.) Such assent is generally the result of offer and acceptance. (D.B. Corkey Co., 176 Ill. App. 3d at 1102.) Both a seller and a buyer have the right to select with whom each will contract, and neither can be forced to agree with another not of his choosing. (Davito v. Blakely (1968), 96 Ill. App. 2d 196, 201.) The terms of the contract must be definite before such meeting of the minds can occur and an agreement or contract can be deemed to have been reached. (D.B. Corkey Co., 176 Ill. App. 3d at 1102; Deleon Group, Inc. v. Northern Trust Corp. (1989), 187 Ill. App. 3d 635, 643.) Thus, a contract or agreement for sale or purchase is a consensual, voluntary relationship. With this fundamental distinction between acquisition by condemnation and transfer of title pursuant to a contract or agreement, we turn to NHP’s argument that the “contract for sale” language of the termination agreement included transfer of title by condemnation.

The clear and unambiguous language of the termination agreement applies to a “purchase/sale agreement” that is “the result of good faith arm’s length negotiations.” Such negotiations were completely subject to Brookwood’s judgment as to what terms and conditions were acceptable, limited only by good faith as is implicit in the performance of every contract (see, e.g., Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 866). The termination agreement expressly defines the “net proceeds” in which NHP was entitled to participate as the cash price less only those expenses traditionally associated with a voluntary, arm’s length negotiated sale by a willing seller. Finally, the fundamental purpose of the termination agreement was to allow NHP to recoup some of the price it paid for what eventually became in essence an option agreement. NHP’s ability to receive such recoupment was not only expressly limited in duration, but subject to Brookwood’s good-faith willingness to become a seller on any given terms. We fail to find the challenged language ambiguous in light of the plain language of the termination agreement considered together with the language of the entire agreement in the context of its fundamental purpose, and we need look no further to determine the intent of the parties. The cases cited by NHP do not persuade us otherwise.

In City of Chicago v. Carpenter (1968), 95 Ill. App. 2d 81, 81-82, a promissory note given in exchange for one-half interest in the condemned property was both payable on demand and “payable when [the] property is sold.” On the obligor’s death, his one-half interest passed to his sons. When the proceeds of the condemnation were to be distributed, the sons and holder of the note both participated in the proceeds as owners of the property, but the holder of the note sought payment for the obligor’s share of that investment from the obligor’s share of the proceeds of the condemnation. Finding the language of the note ambiguous, the court looked to the intent of the parties based on the circumstances of its execution. Because the transaction was speculative with no requirement of initial investment, the court found that the maker of the note intended to pay for his portion of such investment from any proceeds realized at the time such proceeds were realized. City of Chicago, 95 Ill. App. 2d at 83-87.

City of Chicago is initially and fundamentally distinguishable from the present instance in that there is no ambiguity in the termination agreement. In addition, NHP did not invest in the property speculating that its value would increase and generate a profit, but rather the purpose of the termination agreement was to allow NHP to extinguish both the risks and costs associated with its continued interest in the property. Finally, the limited recovery of NHP’s expenses under the termination agreement, unlike the note in City of Chicago, was also expressly limited in duration. Thus, City of Chicago is not controlling because the termination agreement is not ambiguous, its purpose was not speculative investment, and it did not allow NHP unlimited recovery of its expenses.

Nor do we find NHP’s citation of isolated references arising in inapposite contexts from other precedent persuasive. Vournas v. Montgomery County (1982), 53 Md. App. 243, 452 A.2d 1263, concerned an owner’s attempt to avoid payment of a statutory transfer tax where the statute specifically defined such transfer as acts by the parties or by law through which title to property is conveyed from one person to another. (Vournas, 53 Md. App. at 252, 452 A.2d at 1269.) In discussing the claim of a landowner in Langston v. City of Miami Beach (Fla. App. 1971), 242 So. 2d 481, to just compensation for a portion of the private roadway abutting his property, the Florida court concluded that the government had the same rights upon completion of the condemnation as would a third party upon a bona fide sale. (Langston, 242 So. 2d at 482-83.) Finally, the United States District Court for the Northern District of Illinois merely acknowledged that a statutory grant of authority to a governmental agency to acquire land by purchase for the legitimate governmental purpose of conservation also included acquisition for the same purpose by eminent domain. (United States v. 2.74 Acres of Land in Williamson County (E.D. Ill. 1940), 32 F. Supp. 55, 57.) Thus, NHP’s argument fails because each of these precedents concerns the authority of the government to initiate eminent domain proceedings or the status of the government upon completion of such proceedings, and each contains nothing to persuade us that a condemnation is a sale as that term was used in the termination agreement.

• 3 In light of our finding that the circuit court did not err in construing the unambiguous language of the termination agreement, it is unnecessary to consider whether the condemnation occurred at the point in time at which the condemnation complaint was filed or not until the condemnation was concluded and the just compensation determined by the jury was paid. However, we note that no taking occurs until just compensation is paid. (Towne, 190 Ill. App. 3d at 568.) Until such time, a governmental body is free to decline to proceed with the condemnation. (Department of Transportation v. La Salle National Bank (1981), 102 Ill. App. 3d 1093, 1099; see also, e.g., Commissioners of Lincoln Park v. Schmidt (1944), 386 Ill. 550.) So, too, during the time between the filing of a condemnation complaint and a jury’s finding, the parties are free to continue to negotiate towards a consensual purchase agreement. Thus, an eminent domain proceeding is again distinct from a contractual relationship because in a condemnation proceeding the seller has neither the right to require performance nor a cause of action for damages caused by the government’s failure to complete the process. (Cf. Ill. Rev. Stat. 1989, ch. 110, par. 7 — 123 (attorney fees, costs, and expenses of defense recoverable if government dismisses condemnation proceeding prior to judgment).) Until a seller acquires some right of redress against the buyer, we find that a transfer of title by either sale or condemnation does not occur.

Finally, Brookwood asserts that NHP’s appeal of these issues was frivolous and seeks sanctions against NHP pursuant to Supreme Court Rule 375(b). (134 Ill. 2d R. 375(b); Kennedy v. Miller (1990), 197 Ill. App. 3d 785.) Although the authority cited by NHP has failed to persuade us and, in some instances, has only tangential relation to the facts of this appeal, we nevertheless find NHP’s assertions were not frivolous. Rather, the dearth of timely relevant authority on point indicates that the issues raised warranted our attention.

We find no authority for parsing an appeal into individual issues in considering its merit, but rather “[a]n appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law” (134 Ill. 2d R. 375(b)). In contrast, failure to comply with the rules on appeal is applicable to the conduct relating to individual issues, and the sanctions provided are directed to the individual issues to which the offending conduct relates. (134 Ill. 2d 375(a).) Therefore, for purposes of Supreme Court Rule 375(b), we decline to consider separately the two interrelated issues asserted by appellant, which were themselves framed by the circuit court’s order addressing not only the nature of a condemnation proceeding, but alternately the timing of that event.

The order of the circuit court granting the motion for summary judgment of defendant, Brookwood Land Venture, is affirmed.

Affirmed.

BOWMAN, J., concurs.

JUSTICE McLAREN,

respectfully dissenting in part:

I respectfully dissent. I believe this appeal is frivolous and subject to sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)).

The majority opinion resolved the merits of the first trial court’s ruling, but did not resolve the merits of the second trial court’s ruling. I believe the appeal, dependent upon reversing the trial court’s second ruling, is frivolous and is nothing more than a feeble attempt to force a large peg into a smaller square hole. The following is the entire argument of appellant regarding the trial court’s second ruling. The appellant’s brief states as follows:

“THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW THAT THE TAKING BY CONDEMNATION, EVEN IF A SALE WITHIN THE MEANING OF THE TERMINATION AGREEMENT, DID NOT TAKE PLACE WITHIN THE TIME REQUIRED BY THAT AGREEMENT.
As part of the basis of its judgment in favor of Brook-wood, the trial court concluded that the transfer of title of the Property through the process of condemnation did not ‘fall within the time limitations of the agreement.’ (SR. C187, App. 2). Simply stated, there is absolutely no basis for this reading of the Termination Agreement.
It is irrelevant that the condemnation award was not made and the monies not paid by the District until after March 1988, so long as the condemnation petition was filed before that date. [(Emphasis added.)] The time limits in the Termination Agreement refer only to the date of contracting and sets [sic] no deadline as to when the transaction must actually be concluded in order for NHP to be entitled to a portion of the proceeds.
By its express terms, the Termination Agreement contemplates that the ultimate sale might be consummated after March 1, 1988. Thus, paragraph 2(d) of the Termination Agreement provides:
‘If no Subsequent Contract [for the sale of the Property] is entered into by March 1, 1988, or if one previously entered into is terminated prior to its consummation after March 1, 1988, then this agreement shall terminate and be of no further force or effect ***. [APP. 48]’ (Emphasis added.)
The trial court simply misread the Termination Agreement in concluding that the condemnation was not timely.”

The appellant’s reply brief states as follows:

“THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW THAT THE TAKING BY CONDEMNATION, EVEN IF A SALE WITHIN THE MEANING OF THE TERMINATION AGREEMENT, DID NOT TAKE PLACE WITHIN THE TIME REQUIRED BY THAT AGREEMENT.
Without explanation, the trial court concluded that the transfer of title of the Property through the process of condemnation did not ‘fall within the time limitations of the agreement.’ Brookwood now attempts to justify this misreading of the Termination Agreement by noting that the condemnation judgment was entered on the jury’s verdict well after the contract deadline of March 1, 1988. Brookwood ignores the fact, however, that this deadline refers not to consummation of the sale, but to the execution of a contract.
As noted in NHP’s initial brief (and ignored by Brook-wood), the Termination Agreement, by its express terms, contemplates that the ultimate sale might be consummated after March 1, 1988. Hence the key date is tied not to a sale, but to the execution of a contract for sale:
‘If no Subsequent Contract [for the sale of the Property] is entered into by March 1, 1988, or if one previously entered into is terminated prior to its consummation after March 1, 1988, then this agreement shall terminate and be of no further force or effect *** (emphasis added).’
This provision also renders irrelevant Brookwood’s argument that the Forest Preserve District could have, after March 1, 1988, discontinued its efforts to obtain the property. If that happened, and if the sale was never consummated, the Termination Agreement would be deemed terminated and NHP would have no claim thereunder. The same would be true, under the above referenced language, if a private purchaser terminated its efforts to obtain title to the property prior to consummation of the sale after March 1, 1988. The parties clearly contemplated that a sale might fall apart in mid-stream, and that such an occurrence would negate NHP’s rights. Of course, this did not happen, and the District did in fact purchase the Property.”

The argument wholly fails to establish, let alone address, that the filing of the condemnation suit by the adverse third party is the equivalent of a “subsequent contract entered into by March 1, 1988.” This equivalency is an essential element of appellant’s theory of reversing the trial court’s ruling and its final judgment. As it fails, so does the entire appeal. The appellant knew or ought to have known that a successful appeal was dependent upon reversal of the trial court’s second ruling. The failure to properly address the second ruling resulted in a frivolous appeal.

By analogy, a trial court finds no liability in tort because there is no duty on the part of the defendant and the statute of repose has run. An appeal as to the existence of a duty may arguably be valid. However, the failure to properly address the ruling of the statute of repose ought to result in sanctions for a frivolous appeal pursuant to Supreme Court Rule 375(b). In this case, the appellant has failed to properly address the termination of the contract, under its own terms, prior to liability for breach of contract arising. Therefore, I would grant sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) and therefore dissent as to the portion of the opinion denying sanctions.


author:
      JUSTICE McLAREN
      JUSTICE WOODWARD,

text:
    BIRD GILKEY, Plaintiff-Appellant, v. ERWIN SCHOLL, Defendant-Appellee (Alfred Scholl Mason Contractors, Inc., et al., Defendants).
    Second District
    No. 2—91—0812
    Opinion filed June 10, 1992.
    WOODWARD, J., concurring in part and dissenting in part.
    Hugh R. Mainard and Curtis S. Burke, both of Fritzshall & Gleason, of Chicago, for appellant.
    Lewis W. Terlizzi and Daniel E. Compton, both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Bird Gilkey, appeals from an order of the circuit court of Kane County which granted sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) in favor of defendant, Erwin Scholl. We dismiss the appeal as the order appealed from was not final and appealable, and we impose sanctions.

On May 11, 1990, plaintiff filed his complaint against Alfred Scholl Mason Contractors, Inc. (Alfred Scholl), and Ron Jones Electric, Inc. (Ron Jones). Plaintiff alleged that, as a result of the defendants’ negligent acts, plaintiff was injured on May 26, 1988, when he tripped and fell in the parking lot while on his way to work at U.S. Can Company in Elgin, Illinois. Alfred Scholl and Ron Jones each filed an answer to the complaint.

An order was subsequently entered on October 23, 1990, which stated that the motion to dismiss of Alfred Scholl was granted. The order also stated that Ron Jones remained as a defendant in the action. The same day, plaintiff was granted leave to file an amended complaint. On November 21, 1990, plaintiff filed an amended complaint which named “Rudolph E Scholl and/or Erwin Scholl” as defendants. Only Erwin was served with summons. Defendant filed a motion to dismiss on December 21, 1990. He argued that the action against him should be dismissed 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)) as it was not filed within the two-year statute of limitations applicable to a personal injury action. An agreed order dismissing plaintiff’s claim against defendant was entered on February 8, 1991.

On February 25, 1991, defendant filed a motion seeking sanctions against plaintiff pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). In his motion, defendant alleged that it was evident from the pleadings in the case that plaintiff made no reasonable inquiry prior to filing the action against defendant. Defendant attached a letter from plaintiff’s attorney to the motion to demonstrate that “any meaningful investigation was done after the motion to dismiss was filed.” Also attached to the motion was an itemized statement showing the time spent and work performed by defendant’s attorneys on the case. The total amount for services performed and costs shown was $1,398.

Plaintiff filed a statement in opposition to the motion for sanctions on April 23, 1991. Plaintiff stated that the deposition of Alfred Scholl was taken on September 11, 1990. Plaintiff further stated:

“4. That at that time, ALFRED SCHOLL testified that his firm was not engaged in any way in the construction project at the scene where the Plaintiff was injured. Addressing the possibility of misnomer, ALFRED SCHOLL, testified that he had two brothers that were also in the contracting business, ERWIN SCHOLL and RUDOLPH F. SCHOLL, and stated their names and addresses and the type of business that they were engaged in. ***
5. On October 23rd, 1990, based on the testimony of ALFRED SCHOLL, Plaintiff did not contest the dismissal of the cause of action against ALFRED SCHOLL, and immediately sought leave to file an amended complaint based on any possible misnomer or fraudulent concealment of the identity of the Defendant. Plaintiff’s Amended Complaint was filed on November 21st, 1990, adding Erwin R. Scholl and Rudolph F. Scholl as Defendants based on Plaintiff’s good faith belief that a truck with the name Scholl Contractors existed on the job at the time the Plaintiff was injured. This existence had been related by a co-worker of the Plaintiff.
6. Subsequent thereto, Defendant ERWIN SCHOLL filed a Motion to Dismiss based on the two year statute of limitations having run.
7. Thereafter, Plaintiff’s counsel pursued further investigation to determine the identity and testimony of the co-worker who previously told Plaintiff of the existence of a Scholl vehicle on the job site. Plaintiff’s co-worker refused to testify and denied ever having seen such van. Based thereon, on February 8, 1991, after certain continuances of Defendant’s Motion to Dismiss, Plaintiff agreed to the entry of an order dismissing Plaintiff’s cause of action against ERWIN SCHOLL based on the inability to prove misnomer or fraudulent concealment. Plaintiff did this agreeably so as to avoid the additional expenditure of time by Defendant, ERWIN SCHOLL’s counsel.”

The statement filed by plaintiff did not contest the amount, necessity or reasonableness of the attorney fees requested.

A hearing was held regarding defendant’s motion for sanctions on June 18, 1991, and an order was entered the same day. The court found that plaintiff failed to make a reasonable inquiry to determine if defendant was a proper defendant in the case before naming him as a party. The court ordered plaintiff and his attorneys to pay defendant and defendant’s attorneys $2,029 in attorney fees and costs.

Subsequently, on July 2, 1991, Ron Jones filed a motion for summary judgment alleging that it did not do any work on the jobsite where plaintiff was injured until after the date of the injury. On July 19, 1991, plaintiff filed his notice of appeal from the June 18, 1991, order awarding sanctions. On August 6, 1991, the court entered an order granting Ron Jones’ motion for summary judgment.

The sole issue raised by plaintiff in his brief is whether the trial court abused its discretion in granting defendant’s motion for sanctions pursuant to Supreme Court Rule 137. He argues that sanctions were not warranted under these circumstances and also contends that the record shows that defendant failed to meet his burden to establish the reasonableness of the attorney fees requested. We conclude that we do not have jurisdiction over this appeal, and we dismiss the appeal.

We have a duty as an appellate court to consider our jurisdiction and to dismiss the appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Village of Lake in the Hills v. Hain (1991), 222 Ill. App. 3d 88, 90.) We initially note that plaintiff did not include a statement of jurisdiction in his brief, a mandatory requirement of Supreme Court Rule 341(e) (134 Ill. 2d R. 341(e)(4)(ii)). We have noted that the purpose of requiring a party to include a jurisdictional statement is to “provoke counsel to make an independent determination of the right to appeal before writing the briefs.” (Emphasis in original.) (In re Marriage of Ruchóla (1991), 208 Ill. App. 3d 971, 976; see also Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 791-92.) This cause provides an illustration of the importance of the jurisdictional statement as plaintiff should have made his own determination that jurisdiction was lacking.

Here, the order appealed from was entered on June 18, 1991. At the time this order was entered, plaintiff’s claim against Ron Jones was still pending. Therefore, the order was not final as it did not finally adjudicate all of the claims of the parties. (See Pettie v. Williams Brothers Construction, Inc. (1991), 216 Ill. App. 3d 801, 803.) In order for the order to be appealable, a finding “that there is no just reason for delaying enforcement or appeal” pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) was necessary. The order included no such finding. We therefore do not have jurisdiction over this appeal. We additionally note that the notice of appeal plaintiff filed was not only ineffective because the order appealed from was not final but also was untimely. The notice of appeal was filed July 19, 1991, 31 days after the entry of the order.

Although the appeal must be dismissed, there is an issue which we must address. Defendant, in his brief, has requested that he be awarded the attorney fees and expenses he incurred in this appeal. We initially note that we have jurisdiction to decide the question of sanctions even though we have dismissed the appeal. (Kennedy, 197 Ill. App. 3d at 788.) As we stated in Kennedy:

“ ‘Our inherent jurisdiction to condemn and punish the abusive conduct of litigants and their attorneys who appear before us is separate and apart from our jurisdiction to adjudicate the merits of their claims. In the exercise of our inherent jurisdiction we may, of course, inform ourselves of the nature and extent of apparent misconduct and we may condemn it as abusive. Our condemnation is not the exercise of our jurisdiction over the merits; it is an exercise of our inherent jurisdiction. That some issue may be common to both bases of jurisdiction does not preclude this court from exercising either independently or both simultaneously.’ ” Kennedy, 197 Ill. App. 3d at 788, quoting Trohimovich v. Commissioner of Internal Revenue (9th Cir. 1985), 776 F.2d 873, 875.

See also Willy v. Coastal Corp. (1992), 503 U.S. _, _, 117 L. Ed. 2d 280, 288-89,112 S. Ct. 1076,1080-81.

We agree with defendant that sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) are warranted under these circumstances. Supreme Court Rule 375(b) allows this court to impose an appropriate sanction upon a party or the party’s attorney if “it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose.” (134 Ill. 2d R. 375(b); Singer v. Brookman (1991), 217 Ill. App. 3d 870, 880.) An “appeal is considered frivolous if it would not have been brought in good faith by a reasonable, prudent attorney.” Dreisillcer Electric Motors, Inc. v. Rainbow Electric Co. (1990), 203 Ill. App. 3d 304, 312, citing 134 Ill. 2d R. 375(b); Kennedy, 197 Ill. App. 3d at 791.

In this cause, the statement filed by plaintiff established that plaintiff’s co-worker who supposedly observed a truck with the name “Scholl Contractors” was not contacted prior to filing the amended complaint. There was no investigation of plaintiff’s cause of action against defendant until after defendant’s motion to dismiss was filed. It is well established that both client and counsel have a “duty to make a reasonable inquiry into the facts to support a legal claim be fore pleadings are filed, not after they are filed.” (Emphasis added.) (Beno v. McNew (1991), 213 Ill. App. 3d 720, 727.) When such a reasonable inquiry is not made, sanctions are clearly warranted. See Beno, 213 Ill. App. 3d at 727-28 (sanctions should have been awarded pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), now superseded by Supreme Court Rule 137 (134 Ill. 2d R. 137)).

It is beyond dispute that the amended complaint was filed well after the statute of limitations applicable to plaintiff’s cause of action had run and that neither plaintiff nor his counsel made a reasonable factual inquiry prior to amending the complaint and naming defendant as a party. It would have been readily apparent to a reasonable, prudent attorney that there was no basis for an appeal challenging the imposition of sanctions pursuant to Rule 137.

In addition, plaintiff’s challenge on appeal to the amount of fees awarded is patently frivolous. This issue could not have been addressed on appeal because it appears that the issue was not raised in the trial court. Also, plaintiff failed to include a report of proceedings or bystanders’ report of the hearing held regarding defendant’s motion for sanctions. It is incumbent upon plaintiff, as appellant, to present a record of the proceedings showing the errors of which he complains. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92; Waitcus v. Village of Gilberts (1990), 199 Ill. App. 3d 102, 107.) It cannot be determined from this record whether defendant presented adequate proof of the reasonableness of the fees requested.

Finally, the appropriateness of sanctions here is bolstered by the fact that plaintiff failed to include a jurisdictional statement in his brief, attempted to appeal from a nonfinal order and filed his notice of appeal 31 days after the order was entered.

We therefore direct defendant to file a statement of reasonable expenses and attorney fees incurred as a result of this appeal within 14 days. Plaintiff and his attorneys shall have seven days to file a response. This court will thereafter file an order determining the amount of the sanctions which will be imposed upon plaintiff and his attorneys. See Singer, 217 Ill. App. 3d at 880-81; Dreisilker, 203 Ill. App. 3d at 312-13.

Appeal dismissed; sanctions imposed.

UNVERZAGT, J., concurs.

JUSTICE WOODWARD,

concurring in part and dissenting in part:

I agree that the appeal in this case should be dismissed because this court lacks jurisdiction due to the lack of a final order. However, I disagree with the decision to allow attorney fees to the defendant in this cause.

The defendant in this cause requested fees on this appeal on the basis that the plaintiff had filed a frivolous appeal. Neither party to this appeal bothered to verify the existence of this court’s jurisdiction even though a jurisdictional statement is required in every appeal. (134 Ill. 2d R. 341(e)(4)(ii).) Instead, this court on its own motion raised the question of jurisdiction. This fact distinguishes Kennedy v. Miller (1990), 197 Ill. App. 3d 785, from the case at bar for in Kennedy the appellee filed a motion to dismiss the appeal and sought sanctions based upon a lack of appellate jurisdiction.

It is certainly appropriate under Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) to impose sanctions where a frivolous appeal has been filed. However, to reward sanctions to the defendant in this cause, who failed to raise a clear lack of jurisdiction, would be condoning an inattention to our supreme court rules and an invitation to allow practitioners to be rewarded for time and money spent on an appeal he should have known would ultimately be dismissed.

Furthermore, since defendant failed to recognize the absence of appellate jurisdiction in this appeal, how will the sanctions for fees and expenses be determined? Defendant’s brief makes no reference to the analysis required by Supreme Court Rule 375(b).


author: PRESIDING JUSTICE BARRY

text:
      In re ESTATE OF ROGER GERALD DOYLE, Deceased (Donald A. Doyle et al., Petitioners-Appellants, v. Cherie C. Streitmatter et al., Co-Adm’rs, Respondents-Appellees).
    Third District
    No. 3—91—0489
    Opinion filed June 17, 1992.

      G. Douglas Stephens & Associates, of Peoria (Norman McGill, of counsel), for appellants.
    Kerry R. Cordis, of Princeville (Mark E. Gilíes, of counsel), for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Petitioners Donald A. Doyle and Rosemary Armburst are siblings of the deceased, Roger Gerald Doyle, who died March 18, 1988. Respondents Cheri C. Streitmatter and Michael J. Doyle are adult children of the deceased and co-administrators of his estate. Petitioners appeal from an order entered by the circuit court of Peoria County denying their “Application for Payment of Claim” for funeral expenses.

The record on appeal establishes that at the time of Roger Doyle’s death, Donald arranged for his brother’s funeral because he did not know the whereabouts of Cheri and Michael. On March 19, 1988, Donald and Rosemary acknowledged responsibility for expenses for the services, casket and related charges at the Wilton Mortuary, total-ling $4,862.57.

Respondents learned of their father’s death when they read his obituary in the newspaper. They attended the funeral and were aware of the fact that Donald and Rosemary had contracted for it. Cheri and Michael hired an attorney, opened the estate in probate and duly published notice of the six-month claim period running from the issuance of letters of office on March 24, 1988. Donald and Rosemary knew that the estate had been opened and that the children were co-administrators. Shortly after the estate was opened Donald spoke with counsel for the estate about certain insurance benefits payable upon his brother’s death.

Donald and Rosemary engaged other counsel to assist them in filing a claim against the estate within three days of Roger’s death. The funeral home sent regular billings to them during the claim period. Donald and Rosemary nevertheless failed to make a formal claim before the close of the claim period on September 24,1988.

Meanwhile, Wilton Mortuary forwarded a copy of its contract with Donald and Rosemary to counsel for the estate in July 1988, but did not file a claim in probate until February 23, 1989. On motion of the co-administrators, this claim was dismissed as untimely. Ultimately, Wilton Mortuary sued Donald and Rosemary on the contract, and Donald and Rosemary filed their claim against the estate for funeral charges, interest and related costs on May 17,1989.

At the hearing before the court, counsel for Donald and Rosemary argued that they did not receive written notice of the beginning and ending dates of the six-month statutory claim period from counsel for the estate until December 1988, several months after it had expired. The trial court found that Rosemary had paid no part of the funeral expenses, and that Donald had actual notice of the opening of the estate in ample time to file a claim for funeral expenses. The court accordingly denied the claim, as aforesaid.

In this appeal, the petitioners argue that the trial court erred in finding that Donald Doyle had actual notice of the statutory claim period before it expired, and that Donald’s constitutional right to due process was violated by the estate’s failure to provide him actual notice of the dates of the statutory claim period.

Initially, we do not find petitioners’ argument concerning actual notice well-taken. The trial court did not rule that the beginning and ending dates of the claim period were matters of which Donald Doyle had actual knowledge within the statutory period. Nor did the court rule that Donald Doyle was given written notice of the dates within the applicable period. The court ruled only that Donald Doyle had actual knowledge of relevant facts within ample time to file a timely claim against the estate. This was admitted during Doyle’s testimony.

Doyle admitted that he knew within a week of his brother’s death that Cheri and Michael had been appointed co-administrators of Roger’s estate. In fact, letters of office were issued six days after Roger’s death, and the first of three public notices was published in the “Princeville Telephone” on March 31, 1988. Donald testified that he does not subscribe to the Princeville paper, but it is manifestly clear that Donald had notice of sufficient information to pursue his claim even before the statutory notice was published.

Though it may be true that Donald did not appreciate legal consequences of his contract with the funeral home until after September 1988 when the statutory period expired, this does not alter the fact, as found by the circuit court, that Donald had ample time to ascertain his liability and had knowledge sufficient to file a timely claim against Roger’s estate. Under the circumstances, we do not hesitate to affirm the circuit court’s finding of actual notice.

Next, we address the petitioners’ constitutional issue. The applicable statute in effect at the time of Roger Doyle’s death provides, in relevant part:

“(a) It is the duty of the representative to publish once each week for 3 successive weeks, commencing within 14 days after the issuance of letters of office, a notice informing all persons of the death of the decedent, the date of issuance of the letters, the name and address of the representative and of his attorney of record and that claims may be filed within 6 months from the date of issuance of the letters and that any claim not filed within that period is barred.
* * *
(c) The notice under subsection (a) *** of this Section must be published in a newspaper published in the county where the estate is being administered ***. The representative must file proof of publication with the clerk of the court.” (Ill. Rev. Stat. 1987, ch. 110½, par. 18-3.)

Petitioners do not dispute that the notice published in this case complies with applicable statutory requirements, but contend that such notice is insufficient to pass constitutional muster. Petitioners specifically argue that the fact that they were represented by counsel does not excuse the duty of the estate representatives to give them, as known creditors, personal notice of the running of the statutory claim period.

In support of their position, petitioners rely heavily on Tulsa v. Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, and Rose v. Kaszynski (1988), 178 Ill. App. 3d 266, 533 N.E.2d 73. Tulsa was decided on April 19, 1988, and changed the law of Illinois with respect to the sufficiency of publication notice. Under prior law of this State, notice of the six-month claims limitation period by statutory publication was deemed adequate to satisfy constitutional due process mandates. (Gibbs v. Estate of Dolan (1986), 146 Ill. App. 3d 203, 496 N.E.2d 1126.) Creditors bore the responsibility to formally notify the representative of an estate of their claims by filing in the probate proceeding or suing the representative directly. Their failure to proceed in either manner timely could result in dismissal even if the representative knew of the creditors’ claims. See In re Estate of Worrell (1982), 92 Ill. 2d 412, 442 N.E.2d 211.

In Tulsa, the Supreme Court considered the sufficiency of notice by publication under Oklahoma’s nonclaim statute, which provided only two months from publication for filing claims against an estate. The Court initially determined that “the substantial involvement of the probate court throughout the process leaves little doubt that the running of Oklahoma’s nonclaim statute is accompanied by sufficient government action to implicate the Due Process Clause.” (485 U.S. at 488, 99 L. Ed. 2d at 577, 108 S. Ct. at 1346.) The court further determined that creditors have protected property interests in their claims against a debtor’s estate. (485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340.) Accordingly, the Court ruled that as to known creditors of an estate, notice by publication alone does not satisfy due process requirements. Such creditors, the Court held, are entitled to actual notice of the running of the claim period “ ‘by mail or other means as certain to ensure actual notice.’ ” 485 U.S. at 491, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348, quoting Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 800, 77 L. Ed. 2d 180, 188, 103 S. Ct. 2706, 2712.

In Farm Credit Bank v. Brown (1991), 217 Ill. App. 3d 730, 577 N.E.2d 906, it was determined that the Tulsa rule applied in Illinois prospectively to those estates not yet closed as of April 19, 1988. Since the estate in this case has not been closed, it is clear that actual notice was required.

In Rose v. Kaszynski (1988), 178 Ill. App. 3d 266, 533 N.E.2d 73, the Tulsa rule was applied so as to allow a previously filed suit against decedent to proceed against decedent’s estate more than four months after expiration of the statutory six-month claim period. There, the court found that the plaintiff was made aware of decedent’s death only six days before the close of the limitation period, and that the executor for the estate, the widow, knew of the pending cause prior to her husband’s death. On these facts, the court concluded that a due process violation was stated and that the trial court did not err in allowing the action against the estate. 178 Ill. App. 3d at 269, 533 N.E.2d at 75.

By contrast, in In re Estate of Malone (1990), 198 Ill. App. 3d 960, 556 N.E.2d 678, plaintiff in a previously filed shareholders’ derivative suit learned of decedent’s (president of the subject corporation) December 21, 1986, death at a shareholder’s meeting on March 12, 1987, just two months after issuance of letters testamentary. At the same meeting, the shareholder-plaintiff and his attorney learned the identities of the executor and his attorney and that decedent’s shares were to be probated with his estate. Notwithstanding the acquisition of this information, action to name the executor in the shareholder suit was not taken until August 26, 1987, more than a month after the close of the statutory claim period. In defending against the executor’s motion to dismiss for being time-barred, petitioner contended, as here, that the information given at the shareholders’ meeting was not sufficient to meet his due process challenge because it failed to specify the beginning and ending dates of the claim period and that he did not in fact obtain such information until August 1987. In essence, petitioner argued, as here, that the content of actual notice, to be constitutionally sound, must mirror the statutory requirements for notice by publication.

On appeal, the Malone court distinguished Rose on the ground that petitioner and his attorney in Malone had received actual notice of the decedent’s death in ample time to proceed against the estate within the statutory claim period. The court analyzed the sufficiency of actual notice by looking to four factors: (1) whether the form of notice relies on mere chance to reach the attention of the other party; (2) whether the form of notice is designed to attract the attention of the other party; (3) whether the actual means of providing notice is reliable; and (4) whether the means of notice was reasonable when compared to other alternatives. (198 Ill. App. 3d at 963, 556 N.E.2d at 680.) Based on the facts on appeal, the court did not hesitate to find that petitioner had sufficient actual notice at the time of the shareholders’ meeting to file his motions in the pending suit. With regard to the content of actual notice, the court stated:

“Contrary to petitioner’s contention, there is a fundamental reason why the publication notice requirements of section 18 — 3 of the Act should not be extended to actual notice: the legislature expressly limited section 18 — 3 to publication and it is not within the province of this court to rewrite statutory law. Rather, this court’s function is to interpret the law. Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 476 N.E.2d 1378.” (198 Ill. App. 3d at 964, 556 N.E.2d at 681.)

The court dismissed petitioner’s arguments that he in fact had insufficient notice, finding that his argument “that he did not receive sufficient information at the shareholders’ meeting to notify him of the duration of the statutory claim period is more akin to an ignorance of the law defense than a due process claim.” The court noted that, by acting on the information petitioner and his attorney knew and merely checking the estate’s probate file, they could have ascertained the exact dates of the claim period instead of sitting on their rights for five months before moving to substitute the executor in the pending shareholder suit. 198 Ill. App. 3d at 964, 556 N.E.2d at 681.

We note that the case before us does not present the compelling constitutional quandry considered by the Court in Tulsa. There, by statute, the very short two-month window of opportunity to file claims did not open until the date of first publication of notice. Even if a creditor attended the death of its debtor, unless such creditor also kept close vigil on all newspapers of the county, the creditor risked dismissal of his claim for lack of knowledge of the date of first publication of notice. The creditor in Tulsa was a subsidiary of the hospital where decedent died and was certainly aware of the date of decedent’s April 2, 1979, death. But, since publication of notice was not begun until July 17, 1979, 2xk months later, a claim filed two months after the date of death would have been premature. Such is not the case before us today.

In this State, the window for filing claims is not dependent on the date of notice by publication. Rather, by law the issuance of letters of office — in this case, the appointment of respondents as co-administrators — opens a six-month window during which creditors can file their claims. A creditor, as here, who is knowledgeable of the appointment of representatives of decedent’s estate within days of decedent’s death has sufficient information to proceed on his claim and is presumed to know that the window will close in six months. Malone, 198 Ill. App. 3d 960, 556 N.E.2d 678; see also In re Estate of Sutherland (1992), 229 Ill. App. 3d 281.

In our opinion, the facts before us today, unlike Rose, fall squarely within the rule of Malone and present an even stronger case for finding that due process requirements have been satisfied. Donald Doyle obtained all of the information needed to file a claim within a week of decedent’s death. He attended the funeral, knew the identities of the co-administrators and their counsel and in fact communicated with the attorney for the estate shortly after the estate was opened in regard to insurance benefits payable upon Roger’s death. The evidence of record establishes that Donald did not misunderstand the import of the knowledge he had, because prior to the expiration of the claim period he told his attorney to file the claim. On these facts, respondents’ failure to provide actual notice of the exact beginning and ending dates of the claim period is insufficient to raise a claim of constitutional dimension. The fact that petitioners may not have known that the claim period by statute lasted for only six months is, as in Malone, ignorance of the law. The fact that no claim was filed on petitioners’ behalf until nearly eight months after the claim period had expired was not for lack of due process, but of due diligence. Under the circumstances, as in Malone, we hold that the circuit court did not err in dismissing plaintiffs’ claim as untimely.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SLATER and GORMAN, JJ., concur.