text:
    WILLIAM LIPPER, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—0959
    Opinion filed August 3, 1992.

      Barinholtz, Holzman & Gault, of Chicago (Alan Barinholtz, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, William Lipper, appeals from an order granting summary judgment in favor of defendant, the City of Chicago (City), in a negligence action alleging that the City failed to maintain its sidewalks in a reasonably safe manner. On appeal, plaintiff contends that the City owed him a duty of care as an adult bicycling on a City sidewalk. For the following reasons, we affirm the judgment of the trial court.

Plaintiff testified in a deposition that his injuries occurred as follows. On June 12, 1987, at approximately 6 p.m., plaintiff left his apartment at the corner of Pine Grove Avenue and Addison Street in Chicago, placed his two-year-old son in a child’s seat on the back of his bicycle, and rode toward the Lincoln Park bicycle path. The bicycle path is east of Outer Lake Shore Drive (Outer Drive) and is accessible by a ramp located at approximately 3600 North Lake Shore Drive (Inner Drive), which connects to a tunnel that runs underneath the Outer Drive.

Plaintiff rode one block north along the Pine Grove sidewalk to Addison, then turned and rode east down Addison toward the Inner Drive. At the southwest comer of the Inner Drive and Addison, plaintiff dismounted and walked his bicycle north across Addison, waited for the light to change, then walked his bicycle east across the Inner Drive. Once across the street, plaintiff lifted his bicycle over the curb, remounted, and began riding north on the sidewalk about a half block toward the ramp. Plaintiff admitted that there were no signs designating the sidewalk as a bicycle path.

The sidewalk is about four to five feet wide and is separated from the Outer Drive by a wooden fence. In the middle of the sidewalk is a bus stop pole, leaving a narrow area for travel between the fence and the pole. As plaintiff was riding through this narrow area of the sidewalk at approximately 5 to 10 miles per hour, he felt a jolt, lost his balance, and the bicycle began tilting to the left. Plaintiff fell off onto the street, but his son was unhurt. Plaintiff did not see what the bicycle struck, but later identified from photographs taken of that area of sidewalk a raised portion of sidewalk surrounding a manhole cover as the likely cause of his fall. As a result of his fall, plaintiff suffered a fractured hip. Plaintiff stated that he was 44 years old at the time of his injury.

Plaintiff filed a negligence action against the City on December 1, 1987. In his complaint he alleged that the City breached its duty to maintain the sidewalk in a safe condition. On December 27, 1987, the City filed a motion for summary judgment, asserting its lack of duty to plaintiff. On March 6, 1991, the circuit court granted the City’s motion, finding that the City had no duty to maintain its sidewalks for an adult bicycling on the sidewalk. Plftintiff’s timely appeal followed.

The issue presented for review is whether the City had a duty to maintain the sidewalk for the benefit of the plaintiff, an adult bicycle rider. Plaintiff contends that the trial court erred in granting summary judgment in favor of the City because the City had a duty under the facts in this case to maintain its sidewalks for his benefit. The City claims that the sidewalk where the plaintiff fell was not intended for use by adult bicyclists and, therefore, the City owed no duty to the plaintiff.

To recover in a negligence action, a plaintiff must allege a duty owed to the plaintiff by a defendant, a breach of that duty and an injury proximately resulting from the breach. (Torres v. City of Chicago (1991), 218 Ill. App. 3d 89, 578 N.E.2d 158.) Whether the city owed plaintiff a duty of care is a question of law properly decided on a motion for summary judgment. Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572.

The question of whether the City is liable to the plaintiff is governed by the limitation contained in section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a)), which provides as follows:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a).

The question, therefore, is whether the City “intended and permitted” the use of the sidewalk by the plaintiff, an adult bicyclist. This issue was recently addressed in Prokes v. City of Chicago (1991), 208 Ill. App. 3d 748, 567 N.E.2d 592. There, this court examined section 27—296 of the Municipal Code of Chicago (now section 9—52—020(b) (Chicago Municipal Code §9—52—020(b) (1990)), which provides:

“(b). No person 12 or more years of age shall ride a bicycle upon any sidewalk in any district, unless such sidewalk has been officially designated and marked as a bicycle route.”

In light of the above ordinance, the Prokes court determined that an adult bicyclist is neither an intended nor permitted user of the sidewalk. Therefore, the court held, the City had no duty to an adult bicycling on a sidewalk who injured himself upon dismounting. The court stated:

“It is not claimed that the plaintiff was under 12 years of age; and it was shown by affidavit that the area of the sidewalk where the plaintiff was injured was not an officially designated and signed bicycle route. It necessarily follows that the plaintiff was violating the ordinance when he was injured. It is inconceivable to us, therefore, that it may be held that the plaintiff was one ‘whom the [city] intended and permitted to use’ the sidewalk by riding a bicycle.” Prokes, 208 Ill. App. 3d at 750.

Plaintiff argues that the present case is distinguishable from Prokes. In reliance on Marshall v. City of Centralia (1991), 143 Ill. 2d 1, 570 N.E.2d 315, plaintiff argues that the Prokes court improperly relied solely on the existence of the anti-bicycling ordinance in finding that the City had no duty. In Marshall, our supreme court inferred from the facts of that case that the plaintiff, injured while walking on a parkway, was an intended user of the parkway because parkways have been historically used by pedestrians in limited instances. Marshall, 143 Ill. 2d at 9.

Plaintiff argues that a bicyclist is similarly an intended user of this particular sidewalk because one must use the sidewalk to reach the bicycle path on the other side of Lake Shore Drive. Plaintiff contends, therefore, that the trial court should have considered the fact that people ride their bicycles on this particular sidewalk and made an inference from this fact that he was an intended user of the sidewalk.

However, in Marshall, there was no municipal ordinance prohibiting the plaintiff from walking onto the parkway. In the present case, the intent of the City need not be inferred because a municipal ordinance explicitly prohibits adult bicycling on the sidewalks. (See also Torres, 218 Ill. App. 3d at 94 (court held pedestrian injured in the street while in the immediate zone of travel to his legally parked car was an “intended and permitted” user, noting that “[pjlaintiff’s use of the street was not in violation of any ordinance”).) Because of the ordinance, the plaintiff here is not a “permitted” user of the sidewalk. The record reveals that plaintiff walked his bicycle across Addison, and again across the Inner Drive. Plaintiff stated that there were no signs posted designating the area of the sidewalk where his injury occurred as a bicycle path.

Plaintiff’s further reliance upon Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, is unavailing. In Larson, the plaintiff was injured while roller-skating on a public sidewalk. The Larson court held that the City owed a duty to maintain its sidewalks in a condition reasonably safe for all foreseeable users, recognizing that roller-skating is by ordinance, without limitation to any persons, a contemplated use of public sidewalks in Chicago. (Larson, 142 Ill. App. 3d at 85-86.) The plaintiff in Prokes similarly relied on Larson, and the court there distinguished the case noting that “bicycle riding by adults is expressly prohibited and is, therefore, not a contemplated or permitted use by the plaintiff.” (Prokes, 208 Ill. App. 3d at 750.) We agree.

Finally, plaintiff contends that the ordinance raises “serious issues of constitutional law.” However, the record reveals that the trial court did not decide any issues of constitutional law. Where the record fails to show that a matter urged on appeal was decided by the trial court, the issue is not properly preserved for review and is therefore deemed waived. Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 469 N.E.2d 393.

For the above reasons, we affirm the judgment of the trial court.

Affirmed.

O’CONNOR and MANNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    MAC COHN, Plaintiff-Appellant, v. CHECKER MOTORS CORPORATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—91—0016
    Opinion filed August 4, 1992.

      Feiwell, Galper & Lasky, Ltd., of Chicago (Daniel C. Meenan, Jr., and James B. Ford, of counsel), for appellant.
    Sonnenschein, Nath & Rosenthal, of Chicago (James R. Ferguson and Matthew D. Tanner, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Mac Cohn appeals from the circuit court’s granting of summary judgment in favor of defendants Checker Motors Corp. and Yellow Cab Co. In his two-count complaint for breach of an oral contract and promissory estoppel, Cohn alleges that in 1959, he and Morris Markin, who was acting on behalf of defendants and their corporate predecessors, entered into an oral agreement whereby defendants agreed to give Cohn the exclusive right to purchase all of their retired cabs. Cohn claims that in return he agreed to purchase and resell all of the cabs retired by defendants, and to teach Markin’s son David the business and to divide the profits with him. The agreement was to continue as long as Cohn fulfilled his obligations. In addition, Cohn alleges that in 1959, pursuant to the agreement, he and David began to purchase and sell defendants’ retired cabs, and that between 1959 and 1961, he and David purchased and sold all taxicabs retired by defendants, an average of 250 cabs a year, and split the profits from the sale of each cab.

Cohn also alleges that in 1961, upon representations made by Morris, and in order to facilitate the performance of his agreement with defendants, he and his family moved from Minneapolis to Chicago; that between 1961 and 1984, he continued to purchase and resell virtually every resaleable cab retired by defendants, to teach David the business, and to share the profits with David in accordance with the agreement; that during that same time period defendants provided him with free office space and performed repairs on the cabs he was to sell; and that he forbore several business opportunities during that time. However, Cohn claims that beginning in 1984, defendants breached the agreement by directly marketing and selling retired cabs to other persons and entities but not to him. As a result of defendants’ breach, Cohn seeks $216,000 in damages.

Defendants’ motion for judgment on the pleadings, in which they argued that the agreement was terminable at will, was denied. Similarly, defendants’ first motion for summary judgment was denied by Circuit Judge Willard Lassers. Defendants then filed an amended answer to the complaint and a second motion for summary judgment in which they asserted for the first time that the Uniform Commercial Code Statute of Frauds (see Ill. Rev. Stat. 1991, ch. 26, par. 2—101 et seq.) and the Illinois Statute of Frauds (Ill. Rev. Stat. 1959, ch. 59, par. 1) barred enforcement of the agreement. Circuit Judge Paddy McNamara granted defendants’ second motion for summary judgment. Cohn’s motion to reconsider was denied and he appeals.

Our sole function in reviewing the trial court’s entry of summary judgment is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment was correctly entered as a matter of law. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 923.) Summary judgment is appropriate only when the pleadings, depositions, affidavits, and admissions on file present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; In re Estate of Olenick (1990), 204 Ill. App. 3d 291, 297, appeal denied (1991), 136 Ill. 2d 544.) Moreover, it is well established in our law that the pleadings, depositions, admissions, and affidavits in support of a motion for summary judgment are to be construed most strictly against the moving party and liberally in favor of the opponent (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398; Parkway Bank & Trust Co. v. Gleich (1991), 213 Ill. App. 3d 444, 454); and, as Cohn points out, summary judgment is rarely granted in cases involving oral contracts because the intent of the parties is a question for the jury. State National Bank v. Kewanee National Bank (1973), 16 Ill. App. 3d 272, 274 (“[sjummary judgment is particularly inappropriate where the parties seek to draw inferences on questions of intent”).

Cohn’s first contention of error is that the trial court improperly granted summary judgment in favor of defendants based on the Uniform Commercial Code—Sales (the Code) (see Ill. Rev. Stat. 1991, ch. 26, par. 2—101 et seq.). Although Cohn raises several arguments in support of this contention, we address first his assertion that the Uniform Commercial Code does not apply because it was not enacted in Illinois until after the oral agreement at issue was entered into. Instead Cohn contends that the Uniform Sales Act, which was repealed in 1961, applies in this case. (See Ill. Rev. Stat. 1991, ch. 121½, par. 1—77.) Although defendants argue that Cohn has waived this argument for having failed to advance it in the trial court, “it is the obligation of the reviewing court to take notice of matters which go to the jurisdiction of the circuit court.” People v. Larry (1986), 144 Ill. App. 3d 669, 680-81, citing Eastern v. Canty (1979), 75 Ill. 2d 566, 570.

The Code became effective in Illinois on July 1, 1962. (See Ill. Rev. Stat. 1991, ch. 26, par. 10—101.) Cohn alleges in his complaint that the contract was entered into in 1959. The Illinois Code Comment to section 10—101 indicates, in the case of a contract which was entered into before the effective date of the Code but which is breached once the Code is effective, that although the remedies available to the aggrieved party would presumably be those provided by the Code, because those provisions are procedural or remedial in character and therefore do not pose the problem of retroactivity, questions involving the interpretation or validity of the contract would be governed by the Uniform Sales Act. (Ill. Ann. Stat., ch. 26, par. 10—101, Illinois Code Comment, at 367-69 (Smith-Hurd 1974).) Similarly, although defendants’ argument that this court should apply the Code in this case because the dominant or major part of the course of conduct in this case occurred after it became effective (see 9 R. Anderson, Uniform Commercial Code §10—101:9, at 855 (1985); Ebasco Services, Inc. v. Pennsylvania Power & Light Co. (E.D. Pa. 1978), 460 F. Supp. 163; Humble Oil & Refining Co. v. Copley (1972), 213 Va. 449, 192 S.E.2d 735), Professor Anderson clearly states that “[t]he Code does not apply to determine the admissibility of oral evidence in connection with a pre-Code transaction. Whether an oral contract can be taken out of the statute of frauds is to be governed by the pre-Code law when the oral contract was made before the adoption of the Code.” 9 R. Anderson, Uniform Commercial Code §10—101:4, at 852 (1985); see also 9 R. Anderson, Uniform Commercial Code §10—101:9, at 855 (1985) (which states, “[a] sales contract made prior to the effective date of the Code is not governed by the Code”).

In Burke v. 12 Rothschild’s Liquor Mart, Inc. (1991), 209 Ill. App. 3d 192, 201, this court held that the circuit court exceeded its authority in awarding contribution judgments based on injuries which occurred before the effective date of the Contribution Act and therefore the judgments were void. However, because the part of the judgment which was rendered in excess of the court’s authority was separable from the remainder of the judgment, we declined to invalidate the entire judgment. (Burke, 209 Ill. App. 3d at 201.) Similarly, here, because the Code is inapplicable to this dispute, we hold that the circuit court’s order granting summary judgment is void insofar as it relies on section 2—201 of the Code.

We therefore decline to address Cohn’s arguments relating to the Uniform Sales Act because, as defendants point out, they are waived due to his failure to raise them in the trial court. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500; see also St. Louis v. Rockwell Graphic Systems, Inc. (1991), 220 Ill. App. 3d 704, 710, appeal allowed (1992), 143 Ill. 2d 648 (in which the court held that the plaintiff waived the argument that an amendment to the statute of repose for construction activity which shortened it from 12 to 10 years did not apply retroactively to the plaintiff’s case because he failed to present the issue to the trial court).) The first time Cohn raised this issue was in his reply to defendants’ response to his motion to reconsider. “[W]hen an argument is first brought to the trial court’s attention by way of a post-judgment motion, the issue on appeal is whether the trial court has abused its discretion in denying that motion. [Citation.] Moreover, when the motion is supported by evidence not presented prior to judgment, it is properly denied where it appears that the evidence was in the movant’s possession and could have been presented before judgment was rendered ***.” (Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, 777.) Accordingly, because Cohn could obviously have raised this argument before judgment was entered, we cannot say that the trial court abused its discretion in denying his motion to reconsider.

As a reviewing court, we have the authority to affirm the judgment of the circuit court on any ground supported by the record. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502; Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) In this case, defendants sought summary judgment on the additional ground that Cohn’s action was barred by section 1 of the Illinois Statute of Frauds (Ill. Rev. Stat. 1959, ch. 59, par. 1). However, Cohn claims that section 1 does not bar enforcement of the oral agreement because the oral agreement could have been performed within one year. Section 1 provides:

“That no action shall be brought, whereby to charge *** any person *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” Ill. Rev. Stat. 1959, ch. 59, par. 1.

Cohn claims on the authority of Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, that the agreement could have been fully performed within one year if defendants stopped retiring taxicabs, or if he died or retired. There, the court stated that the test “is simply whether the contract by its terms is capable of full performance within a year, not whether such occurrence is likely.” (Martin, 109 Ill. App. 3d at 604.) The court also noted that “[i]n general, lifetime employment contracts have not been held barred by the Statute of Frauds.” (Martin, 109 Ill. App. 3d at 604.) Accordingly, the court held that the plaintiffs retirement or voluntary departure from his employment with Federal were “contingencies that could have occurred within a year, in which case the contract would have been fully performed.” Martin, 109 Ill. App. 3d at 604.

However, we, as did the court in Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 254, appeal denied (1989), 124 Ill. 2d 555, disagree with the analysis in Martin and find the better view to be that “a contract which should have a duration of more than one year, such as a contract for permanent employment, should be in writing. [Citations.]” Moreover, “[t]o be outside of the one-year provision of the Statute of Frauds, ‘the contract must be capable of being fully performed within one year and not simply terminated by some contingency such as death or bankruptcy.’ [Citations.]” (Silvestros v. Silvestros (1990), 206 Ill. App. 3d 84, 88; see also Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 15, aff’d (1964), 31 Ill. 2d 507.) In this case, Cohn alleged that the agreement “was to continue permanently so long as he continued to perform his obligations under the agreement.” Therefore, we find that the contingencies cited by Cohn would simply have terminated the agreement short of full performance.

Cohn argues further that the Statute of Frauds is not available as a defense where there has been sufficient performance by one party in reliance on the agreement. (Anastaplo v. Radford (1958), 14 Ill. 2d 526; Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269; Culbertson v. Carruthers (1978), 66 Ill. App. 3d 47.) In Payne, the court noted that “part performance will avoid application of the Statute of Frauds only when the performance is such that it is impossible or impracticable to return the performing party to the preperformance status quo, or to compensate him for what he has parted with, or for the value of his performance.” (Payne, 152 Ill. App. 3d at 278.) According to Cohn, the application of this doctrine requires a factual determination which precludes the entry of summary judgment. However, “[although acts of partial performance are typically sufficient to take an oral agreement out from under the operation of the Statute of Frauds in an action at equity, such acts do not take an action at law outside the operation of the Statute of Frauds.” (Sjogren v. Maybrooks, Inc. (1991), 214 Ill. App. 3d 888, 892; see also Gibbons v. Stillwell (1986), 149 Ill. App. 3d 411, 415; Phillips v. Britton (1987), 162 Ill. App. 3d 774, 781-82; Restatement (Second) of Contracts §129, Comment c (1981).) We hold, therefore, that the doctrine of part performance does not prevent the application of the Statute of Frauds in this case.

Cohn’s final contention of error is that the Statute of Frauds does not bar his claim for promissory estoppel and therefore summary judgment should not have been granted as to count II of his complaint, which is based on that theory. The elements of promissory estoppel are: “(1) a promise, (2) which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (3) which induces such action or forbearance, and (4) which must be enforced in order to avoid injustice. [Citation.]” (Phillips, 162 Ill. App. 3d at 785.) However, in order to trump the Statute of Frauds, a party must invoke the doctrine of equitable estoppel, which differs from promissory estoppel in that the party asserting it must additionally allege words or conduct amounting to a misrepresentation or concealment of material facts. Ozier v. Haines (1952), 411 Ill. 160; Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, aff'd (1964), 31 Ill. 2d 507.

Nevertheless, Cohn claims that the rule of Ozier and its progeny is “draconian” and outdated and therefore he urges us to follow the authority of R. S. Bennett & Co. v. Economy Mechanical Industries, Inc. (7th Cir. 1979), 606 F.2d 182, and apply the doctrine of promissory estoppel in this case. In Bennett, the Seventh Circuit concluded that “the applicability of Ozier and Sullivan to the sales of goods has eroded sufficiently that the Illinois Supreme Court would no longer consider the statute of frauds as a complete bar to recovery on an estoppel theory.” (Bennett, 606 F.2d at 188.) However, in Goldstick v. I C M Realty (7th Cir. 1986), 788 F.2d 456, 464, the Seventh Circuit noted that there was a question as to whether Bennett was a correct statement of Illinois law. In any event, “decisions by the Federal courts, other than the United States Supreme Court, as to the law of Illinois are not binding on State courts.” (Combs v. Insurance Co. (1986), 146 Ill. App. 3d 957, 962.) Instead we remain bound by the decisions of our supreme court in Ozier and Sinclair.

Moreover, recently in Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1986), 114 Ill. 2d 133, 148, our supreme court reaffirmed this rule when it stated that, “[t]o invoke the doctrine of estoppel the representation or conduct need not be ‘fraudulent in the strict legal sense or done with an intent to mislead or deceive.’ [Citation.] Rather, the test is ‘whether in all circumstances of the case conscience and [the] duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct.’ [Citation.] In the absence of such conduct the party changing his position must be said to have acted solely upon his own judgment and at his own risk. Ozier v. Haines (1952), 411 Ill. 160, 165.” The court concluded that the plaintiff’s actions did not amount to fraud or misrepresentation and therefore that the defendant’s actions were taken at his own risk. (Ceres Illinois, 114 Ill. 2d at 148; see also Fischer v. Mann (1987), 161 Ill. App. 3d 424, 431 (in which the court held that defendants were not estopped from asserting the Statute of Frauds as a defense where there was no allegation of misrepresentation or concealment of material facts sufficient to raise the defense of equitable estoppel).) Consequently, because Cohn has not alleged that defendants misrepresented or concealed material facts, defendants are not estopped from asserting the Statute of Frauds as a defense.

For all of the above-stated reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and DiVITO, J., concur.


author: JUSTICE LORENZ

text:
    MONTY L. MILLER, as Special Adm’r of the Estate of Suzanne Miller, Deceased, Plaintiff-Appellee, v. CARY HAYES, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—3275
    Opinion filed August 7, 1992.
    Williams & Montgomery, Ltd., of Chicago (David E. Stevenson, Barry L. Kroll, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Loren B. Siegel, of Siegel & Siegel, and Michael L. Siegel, of Stone, McGuire & Benjamin, both of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This case arises out of a tragic, one-car accident in which a passenger in the car, Suzanne Miller, was killed when the driver and long-time friend of Miller, Cary Hayes, fell asleep at the wheel. The accident occurred on a highway in Colorado while Miller and Hayes were returning to Colorado State University after a spring-break vacation. Monty L. Miller, as special administrator of the estate of Suzanne Miller, filed suit in Illinois against Hayes alleging claims, in part, under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.). Hayes filed a motion to dismiss under section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), alleging that the complaint failed to state a cause of action under Illinois law. Hayes argued that, under choice of law principles, Colorado law applied. The trial court denied the motion. However, the trial court entered an interlocutory order pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), permitting defendant to pursue this appeal. This court granted the appeal.

The issue as certified by the trial court pursuant to Supreme Court Rule 308 is as follows:

“Does Illinois law apply to an automobile accident where the following facts exist:
1. Both the decedent and the defendant were residents and domiciliaries of Illinois prior to attending Colorado State University where they both paid out-of-state tuition.
2. Both decedent and defendant knew each other prior to attending college.
3. Decedent and defendant and three other students from Colorado State University left the Colorado campus on a vacation trip which would include attending concerts in different states and returning to Colorado State University.
4. The parties attended a concert on April 11, 1989, in Boulder, Colorado.
5. The parties attended concerts on April 12 and 13, 1989, in Chicago, Illinois, and while in Illinois, decedent and defendant stayed for two nights at defendant’s home in Illinois.
6. Upon leaving Illinois, decedent and defendant and their companions drove to Milwaukee, Wisconsin, to attend concerts on April 15 and 16, 1989.
7. From Milwaukee, Wisconsin, decedent and defendant and two companions drove to Bloomington, Minnesota, the third companion having elected to return to school by other means of transportation.
8. Decedent and defendant and the two remaining companions attended a concert in Bloomington, Minnesota, on April 17, 1989, and on the next day, April 18, 1989, began their trip to Colorado State University.
9. While in route, the accident occurred on a highway located in Colorado.”

For the reasons stated herein, we affirm the trial court’s determination that Illinois law applies.

We begin by pointing out that the applicable Colorado Wrongful Death Act (Colo. Rev. Stat. §13—21—203 (West 1987)), included a $45,000 limitation on damages where the decedent, as here, left neither a widow, a widower, a minor child, nor a dependent mother or father. The applicable Illinois Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) did not include a limitation on damages. Other pertinent facts in this appeal are consumed in the analysis below.

Opinion

The Illinois Supreme Court has adopted the most significant relationship approach to determine what choice of law applies when more than one State has an interest in the outcome of an action. (Ingersoll v. Klein (1970), 46 Ill. 2d 42, 262 N.E.2d 593.) Under this approach, the State with the most significant relationship with the occurrence and the parties determines the rights and liabilities in tort. Important factors to consider include: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered. (Ingersoll, 46 Ill. 2d 42, 262 N.E.2d 593.) We will address each of these factors individually and then address our disposition.

First, it is clear that the injury occurred in Colorado. Defendant fell asleep at the wheel of the car on a Colorado highway 60 miles from the Colorado State University campus.

Second, it is not so clear that the conduct causing the injury occurred in Colorado. The occupants of the car began their return trip from Bloomington, Minnesota, and drove nonstop for over 12 hours before the accident occurred. Defendant drove the entire trip. The conduct which caused the injury was comprised of the 12 hours of driving through the various States between Minnesota and Colorado.

Third, we note that the issue as certified by the trial court provides that “both decedent and defendant were residents and domicil-iaries of Illinois prior to attending Colorado State University.” We now address the question of decedent’s and defendant’s domicile and residence at the time of the accident.

Black’s Law Dictionary provides a comparison of the terms “domicile” and “residence”:

“As ‘domicile’ and ‘residence’ are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with [an] intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile.” (Black’s Law Dictionary 1473 (4th ed. 1968).)

We first address residence. After decedent and defendant enrolled at Colorado State University, they spent significant amounts of time at both the campus and at their family homes. Therefore, we conclude that at the time of the accident decedent and defendant had residences in both Colorado and Illinois. Viking Dodge Inc. v. Hoffman (1986), 147 Ill. App. 3d 203, 497 N.E.2d 1346.

We next address domicile. Decedent asserts in this appeal that after she enrolled at Colorado State University her domicile continued to be Wilmette, Illinois. Facts in support thereof include: when not in school, she resided with her parents in Wilmette, Illinois; she came home from school for school vacations and other special occasions; she maintained her Illinois address as her home and mailing address; she had an Illinois driver’s license; she maintained a checking and savings account at a bank in Wilmette, Illinois. We agree that decedent’s domicile continued to be Wilmette, Illinois.

Defendant asserts in this appeal that after he enrolled at Colorado State University, his domicile changed to Colorado. In support thereof, defendant’s brief states:

“When Cary Hayes went to Colorado to attend Colorado State University in August of 1988, it was his intention to remain there permanently as a resident. At the time of the accident, Cary Hayes lived in Ft. Collins, Colorado. That summer he intended to move to Boulder, Colorado and was in the process of arranging for housing and a job.”

We are not persuaded. Numerous other facts establish that defendant’s domicile continued to be in Wilmette, Illinois. We set forth only a portion of those facts here: before defendant attended college, he lived with his parents in Wilmette, Illinois, for over eight years; while in college, he lived in a dormitory and returned to his parents’ home on school vacations; he paid his college tuition as a nonresident; he had an Illinois driver’s license (Colorado law required a new resident to change his driver’s license within 30 days of becoming a Colorado resident); he was registered to vote in Illinois; he received mail at the Wilmette, Illinois, address; he maintained a savings account in Wilmette, Illinois; in his deposition and in other proceedings relating to the accident, he referred to his home as Wilmette, Illinois. In sum, we believe that defendant’s conduct demonstrated that his domicile continued to be in Wilmette, Illinois.

Fourth, the parties contest the place where the relationship was centered. Defendant asserts that the relationship was centered in Colorado and cites the following facts in support thereof: the decedent and defendant were students at Colorado State University; the agreement to make the trip was made in Colorado; and the accident occurred in Colorado while the two were returning to classes at Colorado State University. Decedent asserts that the relationship was centered in Illinois and cites the following facts in support thereof: defendant first met decedent in 1982 in Illinois; the two attended high school together for four years while each was living in Wilmette, Illinois; defendant spent one summer while in high school cutting the decedent’s family’s lawn; for the two evenings in between the concerts in Chicago, defendant and decedent stayed at defendant’s family home; during the proceedings relating to the accident, defendant repeatedly referred to the time he spent in Illinois with the decedent and decedent’s family. The facts suggest that the relationship had contacts with both Illinois and Colorado. However, we have considered the above facts and conclude that the relationship was centered in Illinois.

We now move on to our disposition. In determining the relative importance of the four factors, we believe that the authority in Schulze v. Illinois Highway Transportation Co. (1981), 97 Ill. App. 3d 508, 423 N.E.2d 278 (citing Ingersoll, 46 Ill. 2d 42, 262 N.E.2d 593), applies here. In Schulze, the passengers of a bus who were injured during a round trip from Illinois to Michigan filed suit against the bus driver and the bus company. The place of the accident was Michigan but the domicile of the parties and the center of the parties’ relationship was in Illinois; the place of the conduct causing the accident in-eluded both Illinois and Michigan. The court held that Illinois law applied. The court reasoned that the place of injury did not control because the accident could have just as easily occurred on an Illinois or Indiana highway. Further, the court noted that the dissimilarity between the applicable Michigan and Illinois law addressed the right of recovery and the amount of recovery allowable. The court emphasized:

“Under these circumstances, the place of the parties’ domicile is of primary importance, for that is the State which presumably will feel the social and economic impact of recovery and nonrecovery.” (Schulze, 97 Ill. App. 3d at 511, 423 N.E.2d at 280.)

The court also noted that in many cases the place of the parties’ relationship was inapplicable. However, the court stated:

“[W]hen, as here, that factor is present and the injury was caused by an act done in the course of the relationship, then the place where the relationship is centered has an important contact with the parties and the occurrence.” Schulze, 97 Ill. App. 3d at 511, 423 N.E.2d at 280.

Similarly, here, in light of our determinations above, the only factor which clearly favors Colorado is the place of the accident. However, we do not think that this factor controls because the accident could have just as easily occurred in any one of the states decedent and defendant traveled through on their vacation trip. Further, we note that the dissimilarity between the applicable Colorado and Illinois law addressed the amount of recovery allowed. Therefore, the place of the parties’ domicile, Illinois, is of primary importance, for that is the State which will feel the social and economic impact. We also note that the center of the parties’ relationship was in Illinois and the injury was caused by an act done in the course of the relationship. Therefore, Illinois provides an important contact with the parties and the occurrence.

In conclusion, pursuant to the issue certified by the trial court under Supreme Court Rule 308, we hold that Illinois law applies. It follows that the trial court properly denied defendant’s motion to dismiss.

Affirmed.

McNULTY, P.J., and GORDON, J., concur.


text:
      In re CUSTODY OF ADAM LANDAU (Steven J. Landau, Petitioner-Appellant, v. Carol Landau, Respondent-Appellee).
    First District (5th Division)
    Nos. 1—89—1366, 1—89—3342, 1—90—1093 cons.
    Opinion filed August 7, 1992.
    Rehearing denied September 17, 1992.

      Steven J. Landau, of Vernon Hills, appellant pro se.

    Marco A. Raimondi, of Komie & Associates, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Steven J. Landau petitioned the court to modify the custody arrangement granting sole custody of his son, Adam, to his former wife, Carol Landau. Steven appeals from orders requiring him to pay fees to a court-appointed attorney, who represented his son in the custody proceedings, and to a court-appointed psychiatrist and a social worker, who evaluated the family and reported their findings and recommendations to the trial judge. Steven also appeals from an order denying him leave to file a motion for sanctions. We consider; (1) whether the incomplete record on appeal supports Steven’s argument that the trial judge abused her discretion when she awarded fees to the court-appointed attorney, psychiatrist, and social worker; (2) whether Steven’s petition for a rule to show cause against the court-appointed attorney was properly dismissed for failure to state a cause of action; and (3) whether the trial judge had jurisdiction to consider Steven’s oral motion for sanctions one year after final judgment was entered. For the following reasons, we affirm in part and dismiss in part for lack of jurisdiction.

In 1983, when their marriage was dissolved, Carol and Steven were each granted joint custody of Adam, who was nine months old. Joint custody failed because Carol and Steven were unable to cooperate and communicate with each other, and in January of 1985, they agreed that Carol would have sole custody of Adam.

Steven became dissatisfied with that arrangement, and in January of 1986, he petitioned the court for sole custody of Adam. In his third-amended petition for custody, Steven alleged that Adam had epilepsy, an attention span disorder, a vision disorder, and delayed development and that Carol did not provide Adam with proper therapy. Steven also alleged that Carol did not keep him informed of Adam’s health and progress.

On September 9, 1986, the trial judge appointed Stephen M. Komie, an attorney, to represent Adam during the custody proceedings. During discovery, 42 hours of depositions were taken but only one of those depositions is in the record on appeal.

On September 22, 1986, the trial judge appointed Dr. Anne M. Seiden to conduct psychiatric evaluations and authorized her to choose persons to conduct any tests that she deemed appropriate. Seiden conducted psychiatric evaluations of Steven, Carol, and Adam. To prepare her report, Seiden relied on neurological and psychological reports of the parties from other professionals involved in the case. One of the reports Seiden relied on was prepared by Susan Eggebrecht, a social worker. Based on Seiden’s investigation, she recommended that Carol retain sole custody of Adam. Seiden’s report, as well as the other experts’ reports that Seiden relied on, are not in the record on appeal.

A trial was held on Steven’s petition to modify custody; however, most of the transcripts of the trial proceedings, which consisted of 118 hours during a five-month period, are not included in the record on appeal. Steven attempted to prove the allegations of his petition for custody with the testimony of an optometrist, Dr. James Blumenthal. Blumenthal’s testimony is not in the record. Apparently, Blumenthal testified that he did not diagnose Adam with a vision disorder and that Adam did not need vision therapy, contrary to Steven’s allegations in the petition. Subsequently, at Steven’s request, Blumenthal sent a letter to Komie and the other attorneys involved in the case stating that after testifying, he found a letter he previously sent to Steven which recommended that Adam would benefit from vision therapy and certain exercises which could be done at home. Blumenthal explained that he did not remember the recommendations he made in the letter when he testified. Neither Komie, Steven, nor the other attorneys involved in the case presented Blumenthal’s letter to the trial judge.

Carol moved for a directed finding. The trial transcript of that proceeding is the only transcript of the trial included in the record on appeal. The attorneys for Carol and Steven argued the motion and Komie made a few comments to the trial judge. He asked the judge to consider whether Steven presented testimony that proved the allegations of his petition and directed the judge’s attention to Blumenthal’s testimony that he did not recommend visual therapy or exercises for Adam. Steven did not object to Komie’s argument. The trial judge found that Steven failed to present sufficient evidence of changed circumstances which would have warranted modifying the custody agreement. Carol was granted a directed verdict.

In a hearing on Dr. Seiden’s fee, she testified that she billed at $120 per hour. She interviewed Carol, Adam, and Carol’s parents in their home and interviewed Steven, his wife Lillian, and Adam in their home. She also had conferences with the other experts involved in the evaluation and reviewed transcripts and other documents to prepare her report. She admitted that she recommended to the trial judge that Steven not be allowed to represent himself in the custody proceedings believing it was detrimental to Adam’s best interest. She also recommended that Carol retain custody of Adam.

In a hearing on Eggebrecht’s fee, she testified that she billed for interviewing, preparing for court testimony, appearing in court, and travel time. Her rates were $60 for 50 minutes for evaluation time and $72 per hour for in-court time. Eggebrecht interviewed both parents and grandparents with Adam. The interviews involved descriptions of the problem and its history and assessments of the parents, Adam, the grandparents, and the home environment. Eg-gebrecht also visited Adam’s schools and talked with the teachers and staff members and examined the facilities. She believed it would be more effective to visit the schools than to merely telephone the teachers. Adam was not present in the schools at the time; it was Eggebrecht’s primary purpose to obtain progress reports on Adam’s adjustment and behavior rather than to observe Adam. Although she initially estimated that her bill would be $2,500 to $3,000, the evaluation required more time than she expected.

On January 17, 1989, the trial judge found that both Dr. Seiden’s and Eggebrecht’s fees were reasonable and awarded Seiden $7,788.49 and Eggebrecht $4,136. Carol and Steven were each ordered to pay half of the fees. After crediting for payments made, judgment was entered against Steven for $3,144.25 for Seiden’s fee and for $1,768 for Eggebrecht’s fee.

Komie filed fee petitions that showed he worked 129.3 hours out of court and 145.5 hours in court on the case. The parties stipulated that Komie’s fee for out-of-court work was $125 per hour and his fee for in-court work was $175 per hour. Komie requested $43,075. In the hearing on the petitions, the transcript of which is included in the record on appeal, Komie testified that to represent Adam in the custody proceedings, he had to become familiar with the nature and extent of Adam’s emotional, physical, and medical problems, the voluminous records in the case, and the various doctors’ diagnoses and opinions concerning appropriate treatment. He was required to attend numerous court hearings and the trial. He admitted that he did not meet Adam and that he did not contact Adam’s treating doctors, the teachers at Adam’s schools, or the day care workers at his day care centers. He also did not visit Adam’s schools or observe Adam at home. Seiden advised Komie that Adam should have minimal participation in the proceedings. Komie explained that he was not an expert in the medical field and that the court-appointed experts reported to him so he could properly represent Adam’s interests. Komie relied on the experts’ reports. He admitted that he did not bring Blumenthal’s letter to the attention of the trial judge.

In ruling on Komie’s fee petitions, the trial judge disallowed approximately $2,000 of time billed. Also, although the parties stipulated to Komie’s hourly rates, the judge reduced the rates by 10%. She found a reasonable fee for his work was $36,944, and that Carol and Steven were each responsible for half of the fee. After crediting for payments made, judgment for $15,709.91 was entered against Steven on April 18, 1989. Because Komie was concerned that Steven would file for bankruptcy to avoid paying his fee, Ko-mie requested and the judge ordered that the fee was child support.

Steven filed a petition for a rule to show cause alleging that Komie should be held in contempt because he did not bring Blumen-thal’s letter to the trial judge’s attention. The judge denied the petition because it did not state a cause of action for criminal contempt.

Steven appealed from the orders granting fees to Dr. Seiden, Eggebrecht, and Komie.

On March 14, 1990, when Komie moved the trial judge for fees defending the appeal, Steven asked for leave to file a motion for sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137). The judge denied Steven’s request for lack of jurisdiction. Steven also appealed from that order.

Opinion

Steven first argues that the trial judge abused her discretion when she awarded Komie attorney fees.

The trial judge may appoint an attorney to represent a minor child in custody proceedings and enter an order for costs, fees, and disbursements against either or both parents. (Bl. Rev. Stat. 1989, ch. 40, par. 506.) The attorney should be fairly compensated for services which were reasonable and necessary. In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.

An award of attorney fees in a custody proceeding will not be reversed on appeal unless it was an abuse of discretion. (Brophy, 96 Ill. App. 3d 1108, 421 N.E.2d 1308.) When the record on appeal does not include the depositions taken in the case and the transcripts of the child custody hearings, the reviewing court is unable to review the appointed attorney’s performance (Brophy, 96 Ill. App. 3d 1108, 421 N.E.2d 1308) and will presume that the evidence supported the judge’s decision (In re Marriage of Grauer (1987), 153 Ill. App. 3d 125, 505 N.E.2d 1131).

In this case, Steven’s argument against Komie’s fee is based on criticisms of his performance focusing on Komie’s failure to present Blumenthal’s letter to the trial judge before she ruled on Steven’s petition for custody. As noted previously, most of the transcripts from the trial are excluded from the record on appeal. At oral argument, this court expressed concern that the record was incomplete. Steven explained that he did not include the entire proceedings due to the expense involved and that he would accept the consequences. He asserts, however, that the record on appeal is sufficient because it contains the transcript of the hearing where the trial judge heard evidence on Komie’s fee petition. In that hearing, Komie testified that he worked approximately 275 hours on the case which included acquainting himself with Adam’s problems, the voluminous records, and the doctors’ opinions. In addition, he attended numerous court hearings, depositions, and the trial. Although Komie did not investigate Adam’s medical and emotional problems or his schools, he explained that he relied on the experts who reported to him. Komie admitted that he did not present Blumenthal’s letter to the trial judge; however, Steven has not presented authority to find that the award should be reversed on that basis. The transcript of the fee petition hearing does not support Steven’s argument that Komie’s fee award was an abuse of discretion. Because Steven is challenging Komie’s performance at trial and the trial transcripts are not included in the record on appeal, this court cannot review the propriety of Komie’s actions. The trial judge considered the evidence and awarded Komie fees that she found were reasonable and necessary. It must be presumed that the omitted transcripts support the award of attorney fees in Komie’s favor.

Steven also challenges the award of fees to Dr. Seiden and Eggebrecht arguing that they were incompetent. The record is insufficient to find that the awards were an abuse of discretion. Neither their reports nor their trial testimony is included in the record; the record only includes the hearings on their petition for fees. In those hearings, Seiden, a psychiatrist, explained that she interviewed Carol and Steven with Adam in their respective homes. She was also required to confer with the other experts involved in the case and review documents and transcripts to prepare her report. Eggebrecht, a social worker, stated that she also interviewed Carol and Steven with Adam in their homes. She also visited Adam’s schools and interviewed the teachers and staff members. The trial judge found that their fees were reasonable and necessary. Again, it must be presumed that the excluded portions of the record supported the trial judge’s decision to award fees.

Next, Steven argues that his petition for a rule to show cause should not have been dismissed because it adequately alleged that Komie should have been held in contempt for failing to inform the trial judge of Blumenthal’s letter. Steven relies on Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 396 N.E.2d 1282, which stated that an attorney owes a duty to the court to be honest and forthright in all dealings with the court. Steven’s argument is without merit. Blumenthal was Steven’s witness and Steven had the burden to prove the allegations of his petition. Steven was aware of, and in fact requested, Blumenthal to write the letter to Komie and the other attorneys. Steven, however, failed to bring the letter to the attention of the trial judge. He asserts that Komie promised to recall Blumenthal but he cites no authority to support his position that Komie was in contempt of court for failing to present the letter.

Lastly, Steven argues that the trial judge erred in denying his request for leave to file a motion for sanctions under Rule 137. A motion for sanctions must be filed while the trial court has jurisdiction, which extends 30 days after judgment or within such time that a post-trial motion is pending. (Gaynor v. Walsh (1991), 219 Ill. App. 3d 996, 579 N.E.2d 1223; see Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 563 N.E.2d 459.) In this case, Steven requested leave to file the motion more than 30 days after final judgment was entered and there was no post-trial motion pending at that time. The trial court properly ruled that it did not have jurisdiction and, as a result, Steven’s appeal from that order must be dismissed.

Komie requests this court to assess his costs for defending the appeal against Steven. A motion for such costs under section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 506) should be made in the trial court. (In re Estates of Azevedo (1983), 115 Ill. App. 3d 260, 450 N.E.2d 423.) For that reason, Komie’s request is denied.

Nos. 1—89—1366 and 1—89—3342, affirmed.

No. 1—90—1093, dismissed for lack of jurisdiction.

McNULTY, P.J., and MURRAY, J., concur.


author: JUSTICE GORDON

text:
    THE VILLAGE OF SOUTH HOLLAND, Plaintiff-Appellant, v. RICHARD CHERNICK et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—89—2879, 1—89—2909, 1—90—0134 cons.
    Opinion filed August 7, 1992.

      Buikema, Hiskes, Dillner, O’Donnell & Marovich, Ltd., of South Holland (Michael J. Marovich and Ronald Buikema, of counsel), for appellant.
    Bruce M. Bozich and Clifford Lee Gunter, both of South Holland, for ap-pellees.
   JUSTICE GORDON

delivered the opinion of the court.

Plaintiff, the Village of South Holland, appeals from the trial court’s dismissal of 27 complaints against defendants Truck-o-mat and Kar Kleen Car Wash charging them with violating the village’s Sunday closing ordinance by selling vehicle washes on Sunday. Defendant Truck-o-mat is a truck stop in the primary businesses of selling diesel fuel and truck washes. Defendant Kar Kleen Car Wash is a car/van wash. Both are located in the Village of South Holland.

At a hearing held on September 26, 1989, the court granted a motion by Kar Kleen to dismiss nine complaints against it, on the basis that the ordinance by its explicit language appeared to exempt the washing of motor vehicles from its proscriptions.

The village filed a petition for rehearing, arguing that the apparent exemption was a typographical error which should be ignored. Defense counsel appears to have conceded that such an error had occurred, noting the village board’s swift action in amending the ordinance after it learned of the error at the September 26 hearing. He argued, however, that the court should strictly construe the ordinance in defendant's favor, for to do otherwise would violate its right to notice. The court denied the village’s petition.

Subsequent motions to dismiss the remainder of the complaints based upon the September 26 ruling were filed by both defendants. These motions were granted following hearings held on October 12, 1989, and December 28, 1989. The basis for these dismissals was, as in the case of the September 26 dismissals, that the ordinance by its explicit language appeared to exempt the washing of motor vehicles from its proscriptions.

The village appealed from each order of dismissal, and the three appeals were consolidated into this single appeal. For the reasons set forth below, we reverse and remand.

The South Holland Sunday closing ordinance has been in effect since 1956 and contains four subsections. Subsection (a) deals with wholesale and retail merchandising, subsection (b) deals with manufacturing and construction and subsection (d) is concerned with personal services and ordinary labor. This appeal involves subsection (c), which is entitled “Repair and Maintenance Work.”

As enacted in 1956, subsection (c) prohibited, inter alia, the cleaning or washing on Sunday of property of any kind from an established or temporary place of business. It also contained an exemption for the emergency repair of various items, including motor vehicles.

In 1960, the prohibition in subsection (c) against activities conducted from a temporary place of business was lifted. The remainder of the subsection was unchanged.

In 1970, subsection (b) was amended. Subsection (c) was not changed and reads as follows:

“(c) Repair and Maintenance Work. It shall be unlawful for any person, firm, corporation or association to engage in the business of repairing, maintaining, renovating, rehabilitating, cleaning, or washing property of any kind or description, from an established place of business, on the first day of the week, commonly called Sunday, within the Village of South Holland; provided, however, that this section shall not be applicable to works of charity or to the emergency repair of motor vehicles, public transportation equipment, public utility equipment, or to the repair or maintenance of property necessary to meet the emergency needs of the public on Sunday in the Village of South Holland.” (Emphasis added.) Village of South Holland, Ill., Code §9—3(c).

It is undisputed that in 1987, subsections (a), (b) and (d) were amended. These amendments were effected by an ordinance entitled “An Ordinance Amending ‘the Code of the Village of South Holland, Illinois,’ Adopted December 7, 1987,” which on its face purports to amend subsections (a), (b) and (d) by deleting the previous subsections and inserting in their place new language contained in the ordinance. The amending ordinance makes no mention of subsection (c).

Following those amendments, the village ordinance books were sent to the Municipal Code Corporation of Florida for printing and publication. (See Ill. Rev. Stat. 1987, ch. 24, par. 1—2—4 (which requires all municipal ordinances imposing fines or penalties to be printed or published).) As printed, the ordinance at issue also reflects a change in subsection (c), and reads:

“(c) Repair and Maintenance Work. It shall be unlawful for any person to engage in the business of repairing, maintaining, renovating, rehabilitating, cleaning, or washing property of any kind or description, from established place of business, on the first day of the week, commonly called Sunday, within the village provided, that this subsection shall not be applicable to works of charity or to the emergency repair or motor vehicles, public transportation equipment, public utility equipment, or to the repair or maintenance of property necessary to meet the emergency needs of the public on Sunday in the Village.” (Emphasis added.) Village of South Holland, Ill., Code §9—3(c).

The village contends that the substitution of the word “or” for the word “of” preceding “motor vehicles” in the printed version was not an amendment but is a typographical error which occurred when the ordinance was sent out to be printed, and urges that we should construe the ordinance as passed and hold that no exemption for the commercial washing of motor vehicles exists.

The law regarding typographical errors is clear. Our primary responsibility in construing a statute is to effectuate the intent of the legislature, and when necessary to achieve that goal, we may “alter, supply or modify words and correct obvious mistakes.” (People v. Garrison (1980), 82 Ill. 2d 444, 455, 412 N.E.2d 483.) To ascertain that intent, we look not only to the language used, but also to the history and course of the legislation and recent legislative action. Carey v. Elrod (1971), 49 Ill. 2d 464, 471-72, 275 N.E.2d 367.

The village has offered copies, certified by the deputy village clerk as true and correct, of the ordinance as originally adopted in 1956 and as amended in 1960 and 1970. These copies all prohibit the commercial washing of motor vehicles on Sunday and show that instead of “or,” the word “of” preceded “motor vehicles.” (See Kostelnak v. Retirement Board of the Policemen’s Annuity & Benefit Fund (1980), 84 Ill. App. 3d 616, 405 N.E.2d 1170 (court corrected transposition error which changed “1967” to “1976” where prior versions of bill all read “1967” and no intent was found to change the date).) As noted above, subsections (a), (b), and (d) were amended by village ordinance in 1987. There is no such ordinance regarding subsection (c). (See Carey v. Elrod, 49 Ill. 2d 464, 275 N.E.2d 367 (court construed statute to include entire paragraph erroneously deleted by amendment where it found no intent to delete the paragraph).) Furthermore, immediately after it was made aware of the error at the September 26, 1989, hearing, the village board amended the ordinance to correct the error. (See Carey v. Elrod, 49 Ill. 2d 464, 275 N.E.2d 367 (prompt amendment to correct error considered evidence of legislative intent).) As previously noted, attorneys for the defendants acknowledged at oral argument before the trial court that such correction had been made.

Moreover, it seems apparent from the face of the ordinance itself that an error occurred when the ordinance was printed. A single letter in a single word was changed. “Of” became “or.” To deny that the substitution of the word “or” for the word “of” was anything but a typographical error would require us to assume that the village board in enacting its amendment abandoned any effort to maintain the internal cohesion and grammatical integrity of that provision.

When read with the word “of” rather than “or,” the statute contains three exemptions parallel in structure: works of charity; the emergency repair of motor vehicles, public transportation and public utility equipment; and repair or maintenance of property necessary to meet the emergency needs of the public. In this form, the ordinance prohibits certain activities, i.e., repairing, maintaining, renovating, rehabilitating, cleaning and washing, and the provision providing exemptions also addresses activities, namely, emergency repair and maintenance. To accept the substitution of “or” for “of” leaves the phrase “the emergency repair” dangling and without an object and without defining or designating what classes of material are to be the object of such exempted repair. Moreover, it would purport to leave classes of property exempted without reference to any activity regarding such property.

Defendants contend on appeal that the word “or” is not a typographical error but rather a substantive amendment to the ordinance. In support of this argument, defendants point to several other modifications to subsection (c) that were apparently intended. The words “person, firm, corporation or association” were changed to “person.” The phrase “from an established place of business” was changed to “from established place of business.” “Provided however” was changed to simply “provided” and “section” was changed to “subsection.” In two places “the Village of South Holland” was shortened to “the village.” While the source of these changes is unclear, it is clear that none substantively changed the provisions of subsection (c), and merely involved the honing and polishing of the language of the ordinance. None of these changes to subsection (c) are contained in the ordinance which amended subsections (a), (b) and (d). Moreover, defendants appeared to have conceded that a typographical error rather than an amendment was responsible for the change of “of” to “or” when they acknowledged before the trial court the village’s prompt action in correcting the error.

Accordingly, we believe it is clear that the intent of the South Holland village board was to prohibit commercial motor vehicle washing on Sunday, and so construe the ordinance.

Although we have concluded that the village board did not intend to provide an exemption for the washing of motor vehicles, the question of notice remains. A statute must adequately warn potential violators of the conduct proscribed, and conduct not clearly with the scope of the statute may not be brought within its operation by mere construction. (City of Chicago v. South Side Elevated R.R. Co. (1913), 183 Ill. App. 181, 185. See also Village of River Forest v. Vignola (1961), 23 Ill. 2d 411, 413, 178 N.E.2d 364.) Whether adequate warning is provided is determined by the factual context of each case. See People v. Garrison, 82 Ill. 2d at 454-56 (in which the court held that footnotes to the word “excepted” in two statutory compilations which indicated that the word should probably read “expected” “adequately warned the defendant of the intention of the legislature”).

The village contends that both defendants had prior notice of the contents of the ordinance before the error occurred since they were in business prior to 1987. While an affidavit from its general manager establishes that Truck-o-mat has been in business at least since 1975, the record is silent regarding Kar Kleen. Thus we cannot say with any certainty that Kar Kleen had prior notice by virtue of being in business prior to 1987.

Moreover, defendants urge that the village should be estopped from arguing the defendants’ prior notice of the contents of the ordinance because the village had never enforced the ban on vehicle washes prior to the complaints here at issue. However, a policy of nonenforcement alone would be insufficient to create an estoppel against the village. To invoke estoppel against a municipality, it must be shown that “(1) there occurred an affirmative act on the part of the municipality and that (2) the affirmative act induced substantial reliance.” (VonBokel v. City of Breese (1981), 100 Ill. App. 3d 956, 961, 427 N.E.2d 322. See also Department of Public Works & Buildings v. Exchange National Bank (1975), 31 Ill. App. 3d 88, 334 N.E.2d 810; New-Mark Builders, Inc. v. City of Aurora (1967), 90 Ill. App. 2d 98, 233 N.E.2d 44.) Neither has been demonstrated here.

It is arguable that defendants may have been on sufficient notice by virtue of the ordinance itself as printed. As discussed above, the ordinance as printed in 1987 makes little logical or grammatical sense, and the substitution of “r” for “f” in subsection (c) is manifest from its context. This fact may by itself have been adequate notice to defendants that the village board did not intend to create an exemption for motor vehicles.

We need not, however, resolve the question of whether defendants had sufficient notice of the prohibition against motor vehicle washing on Sunday. Since we have determined that the trial court incorrectly found that the ordinance contained an exemption for the washing of motor vehicles and dismissed the complaints on that basis, we must remand the matter. On remand, the trial court may consider the issue of notice.

Finally, defendants argue that the ordinance is unconstitutional as vague and an unlawful use of the police power. These same arguments were extensively discussed and rejected by the Illinois Supreme Court in Opyt’s Amoco, Inc. v. Village of South Holland (1992), 149 Ill. 2d 265, decided during the pendency of this appeal. The court upheld the constitutionality of this ordinance, stating “[w]e have reviewed the ordinance in its entirety and find that it is a reasonable means of promoting a legitimate governmental objective. Further, we find the exceptions contained in the ordinance do not render the ordinance arbitrary.” Opyt’s Amoco, Inc. v. Village of South Holland, 149 Ill. 2d at 276.

Accordingly, for all the above reasons, we hold that the trial court erred in dismissing the complaints against defendants based on an exemption in the ordinance, and we reverse and remand the matter to the trial court for further proceedings.

Reversed and remanded.

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


text:
    RANDALL S. GOULDING, Plaintiff-Appellee, v. AG-RE-CO, INC., et al., Defendants (Harry Lowrance, d/b/a Ag-Re-Co, Inc., Defendant-Appellant).
    First District (2nd Division)
    No. 1—90—2984
    Opinion filed August 4, 1992.

      Robert R Sheridan, of Chicago, for appellant.
    Randall S. Goulding, of Chicago, appellee pro se.

   JUSTICE SCARIANO

delivered the opinion of the court:

I

On June 4, 1987, Randall S. Goulding (Goulding) filed a complaint against Ag-Re-Co, Inc., Alan Zech (Zech) and Harry Lowrance, d/b/a Ag-Re-Co, Inc. (Lowrance), sounding in breach of contract, account stated, and quantum meruit, in which he sought payment of attorney fees claimed to have been earned in setting up Ag-Re-Co, Inc., and in acting as the corporation’s counsel.

All the parties to this suit were also involved as defendants in a class action filed as Kennicott Ridge v. Ag-Re-Co, Inc., which was pending in the United States District Court for the Northern District of Illinois. Court approval of a settlement reached in that case was conditioned upon the parties’ reaching a “global” settlement of all of the differences between them, including settlement of the instant case. Thereafter, a tentative settlement was reached between the parties in the case at bar whereby Goulding’s malpractice insurance carrier, CNA, was to pay Lowrance $25,000 for the release of his claims against Goulding, and the settlement was subject to its making such payment; and Lowrance was to pay Goulding $40,000 for the release of his claims against Lowrance. These details were memorialized in letters dated February 20 and 21, 1990, from Fred Harbecke, one of Goulding’s attorneys, to Robert Sheridan, Lowrance’s attorney.

On September 14, 1987, Goulding took a voluntary dismissal of the case, believing that he and Lowrance had settled their differences. On March 15, 1988, however, Goulding reinstated his action on the basis that they had failed to effectuate the settlement. On August 11, 1988, a default order was entered against Lowrance on the grounds that he had failed to file a timely appearance, a timely answer and to comply with discovery. On September 9, 1988, Lowrance filed a motion to vacate the default order on the grounds that he had been misled by his counsel that his case was being diligently defended, when in fact it was not. The court granted this motion on September 13, 1988, and on October 13,1988, Lowrance filed his answer.

Goulding then filed a number of notices to take depositions and for other discovery, none of which was complied with. He then proceeded to file a bevy of “Motion[s] for Entry of Default Judgment, for Sanctions and/or to Compel.” The only consequence of these motions relevant to the proceedings at bar is a February 9, 1990, order striking Lowrance’s answer and holding him in default. Goulding did not notify Lowrance of either his intention to present his motion to strike and for a default, the actual striking of Lowrance’s answer, or the granting of the default order. At the same time and prior thereto, however, the parties were attempting to follow through on the details of the settlement as memorialized in Harbecke’s February 20 and 21, 1990, letters to Sheridan. Tom Browne, another of Goulding’s attorneys employed by CNA to represent him, had the responsibility of obtaining the $25,000 check from CNA, but Browne’s efforts were allegedly hampered by Lowrance’s lack of promptness in organizing the corporation which was to be the payee on CNA’s check.

Sometime after February 9, 1990, the clerk of the circuit court notified Lowrance of the default order entered against him. On March 8, 1990, Lowrance filed a motion to vacate the order, and on that same day Harbecke sent Sheridan final, unsigned versions of the “Stipulated Settlement Agreement and the Joint and Mutual Release,” drafted by Harbecke, requesting that the matter be set for closing on March 12, 1990. When Lowrance brought his receipt of the notice of the default order to Harbecke’s attention, Harbecke told Lowrance that he would “direct Mr. Goulding to have the default vacated”; and on March 26, 1990, Goulding did in fact file such a motion. However, Lowrance never pursued his motion to vacate, relying on a statement alleged to have been made by Harbecke that Gould-ing’s motion to vacate had been granted. But neither did Goulding present at any time his motion to vacate to the court; thus, the February 9,1990 order of default was never vacated.

On April 4, 1990, Harbecke sent Sheridan a letter expressing his discontent that the settlement negotiations were not progressing, stating that Sheridan and his client had been uncooperative in attempting to settle, and suggesting that Goulding “may be correct in his assertion that no settlement will ultimately result.” Harbecke ended the letter with the admonition that, “if we do not conclude this settlement on or before April 18, 1990, *** my client’s offer be [sic] and is hereby withdrawn.” By facsimile sent to Harbecke on April 23, 1990, Sheridan stated that he had received a message from Goulding “calling [off] our deal.” On April 24, 1990, Goulding appeared pro se in circuit court regarding the February 9, 1990, default order, and without giving notice to Lowrance, proved up damages in the amount of $77,615.95.

Nevertheless, even after April 24, 1990, without Goulding’s yet notifying Lowrance of the entry of the default judgment, Browne and Harbecke continued negotiations with Lowrance. As Browne testified at the section 2—1401 hearing, he and Harbecke were still holding out the possibility of settlement: they would “twist the arms of Mr. Goulding, if necessary.” By this time Browne had obtained CNA’s check for $25,000, and forwarded it to Harbecke, who attempted to contact Sheridan on May 2, 1990, via facsimile, to arrange an exchange of payments. Harbecke indicated that Sheridan had until May 4, 1990, to tender Lowrance’s $40,000. Sheridan, however, alleged that he did not receive the May 2 facsimile because he was ill and therefore out of the office until May 7, 1990, and when he returned to work on that day, he discovered that he had received a facsimile dated May 4, 1990, from Harbecke which stated that “all settlement [sic] is deemed to be null and void.” Thereafter, Goulding refused to settle with Lowrance for less than $78,000, the approximate amount of the default judgment. It was not until May 29, 1990, however, that Harbecke returned to Sheridan, unsigned by Goulding and initially unsigned by Lowrance, the signature pages of the “Stipulations to Dismiss” which Sheridan had drafted; and it was not until June 1, 1990, more than 30 days after the fact, that Goulding notified Browne and Sheridan that a default judgment had been entered against Lowrance. Harbecke himself had been aware of the judgment since “sometime at the end of, very end of April.”

On June 25, 1990, Lowrance filed a section 2—1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) verified petition, claiming that he had been “duly diligent in the presentation of this petition insofar as he was given no notice of [the] entry [of the default judgment], and further that the fact of its entry was concealed from him until more than 30 days after its entry” and that he had good defenses thereto. Goulding filed his response on June 28, 1990, and after numerous intervening motions, the court heard testimony on July 17 and 24, 1990. After considering the briefs filed by the parties, as well as the evidence, the trial court denied the petition, but gave no reasons for its ruling. Lowrance filed a timely notice of appeal.

II

Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, instructs us that

“[t]o be entitled to relief under section 2—1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2—1401 petition for relief. [Citations.]”

Moreover, “[t]he quantum of proof necessary to sustain a section 2— 1401 petition is a preponderance of the evidence. [Citations.] [And w]hether *** [the] petition should be granted lies within the sound discretion of the circuit court, depending upon the facts and equities presented.” Airoom, 114 Ill. 2d at 221.

A

Lowrance contends that the trial court abused its discretion in denying him relief inasmuch as he has meritorious defenses to the underlying action. He states in his section 2—1401 petition that he was never an officer, shareholder or director of Ag-Re-Co, Inc., and thus is neither liable for the corporation’s debt nor capable of being sued in the name of the corporation. Although Goulding brought his action against “Harry Lowrance d/b/a Ag-Re-Co, Inc.,” as well as against Ag-Re-Co, Inc., the default judgment was obtained against Lowrance only.

A corporation is a legal entity, separate and distinct from its shareholders, officers and directors, and generally must be sued in its own name and not in the name of its shareholders, officers or directors. (Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 27.) It is possible, however, to disregard a corporate entity and impose liability upon those real parties in interest by using the equitable doctrine of “piercing the corporate veil.” In order to “pierce the corporate veil” there must be (1) “unity of interest and ownership [such] that the separate personalities of the corporation and the individual no longer exist; and (2) circumstances *** [such] that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice.” (Stap, 63 Ill. App. 3d at 27.) Goulding’s complaint alleges that Lowrance controlled the corporation “through his nominees,” viz., his mother, who held 18% of the stock, and Zech, described as a “close personal friend,” who held 48%. The complaint also alleged that Lowrance’s mother and Zech were the only persons who could sign the corporation’s checks. Lowrance admits in his answer that he “controlled” Ag-Re-Co, Inc., during the times in question, without further explaining what such control consisted of. We must assume, therefore, that the trial judge entered judgment against Lowrance on the theory that his “control” of 66% of the shares in Ag-Re-Co subjected him to individual liability. There is no indication in the record that the judge was presented with anything more; in fact, the record appears to focus almost exclusively upon Lowrance’s alleged lack of diligence in defending against Goulding’s claim. We cannot accept Goulding’s theory. Since our Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.) permits one person to form a corporation and to own all of its shares, it would be defeating the purpose of the legislature in enacting that statute to hold that control of a corporation through the mere ownership of its shares results in transmuting liability from the corporation to the individual who chooses the corporate form of doing business because it offers, among other advantages, insulation from individual liability.

So much for Goulding’s breach of contract claim. The remaining two counts of his complaint were based on the same set of allegations, one count being based on an account stated and the other on quantum meruit, and judgment was rendered against Lowrance individually without any specification as to which of the counts the judgment applied. No matter, for Lowrance stated a meritorious defense sufficient to defeat Goulding’s underlying action in its entirety and thus satisfied this part of his burden under section 2—1401.

B

As to the second requirement for the granting of a section 2— 1401 petition, Lowrance urges that he was diligent in presenting his meritorious defense to the circuit court in the original action. He alleges (1) that Goulding’s representation to the trial court at the time of prove up, that “ ‘a settlement supposedly *** was never consummated,’ ” was “neither candid nor forthright, but evasive, misleading and false,” and (2) that the entry of the default judgment “was attended by unfair and unconscionable circumstances,” i.e., by keeping knowledge of the existence of the judgment covert, by telling Sheridan that the judgment had been vacated, and by continuing with settlement talks when he had no intention of going through with it. He claims that these factors are the types of circumstances in which equity demands the granting of a section 2—1401 petition, even in the absence of due diligence. (See Hunt v. General Improvements, Inc. (1977), 48 Ill. App. 3d 421, 423 (“justice and fairness may require that a judgment be vacated even though there may have been a lack of due diligence”); see also Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225.) Goulding claims that Lowrance was not duly diligent in presenting his defenses to the circuit court in the original action because of his numerous absences from hearings and failure to comply with court orders.

Even if Lowrance were not duly diligent in presenting his defenses to the circuit court, there are certain circumstances under which equity permits a relaxation of the due diligence standard. “While no duty is imposed upon a party or counsel to sue out an execution promptly in order to inform a defendant of a default within the thirty-day period, yet failure to do so is a circumstance which casts a cloud upon the entire proceeding. Ellman v. De Ruiter [(1952), 412 Ill. 285,] 293.” (Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill. App. 2d 347, 354-55; see also Genesis & Sons, Ltd. v. Theodosopoulos (1991), 223 Ill. App. 3d 276.)

“While the failure to give notice of, or to execute upon, a default judgment within 30 days of its entry may be a factor to be considered in determining whether the plaintiff has acted so unfairly as to justify relaxation of the due-diligence standard (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 614; [citations]), additional circumstances must exist which would compel the conclusion that the party obtaining the ex parte judgment would gain an unfair, unjust, or unconscionable advantage if the judgment were not vacated ([citations]; Hunt v. General Improvements, Inc. (1977), 48 Ill. App. 3d 421, 424-25; Houston v. Churchill (1968), 100 Ill. App. 2d 56, 60-61.)” (Emphasis in original.) (Airoom, 114 Ill. 2d at 227-28.)

It is also appropriate to excuse the due diligence requirement where the party obtaining the judgment fraudulently conceals it. “To establish fraudulent concealment, proof is required of ‘something of an affirmative character’ or ‘trick or contrivance’ calculated to prevent inquiry or suspicion by the defendant. [Citations.]” Schmitz v. Hoffmann (1978), 61 Ill. App. 3d 130, 132; see also Genesis & Sons, 223 Ill. App. 3d 276.

In essence, the conduct of the plaintiff must have been taken “to mislead or lull [the defendant] into believing the case was proceeding normally while in the meantime obtaining a default judgment.” (Airoom, 114 Ill. 2d at 228.) Some of the factors which courts have considered as tending to “mislead or lull the defendant” and thus justify relaxation of the due diligence standard are as follows: (1) where plaintiff failed to notify defendant of the default judgment even while he represented to him that he “would not be ready to talk settlement until after the first of the year,” when a related, criminal matter would have been settled, which also would have been after the time in which the defendant could make a direct attack on the judgment (Ellman v. De Ruiter (1952), 412 Ill. 285); (2) where the original summons was not served on the defendant and plaintiff did not inform it of initiating the suit, even when both parties were codefendants in another pending suit and were in constant negotiations and conferences regarding that other suit (Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill. App. 2d 347); and (3) where at the unnoticed prove up plaintiff claimed damages unrelated to the defendant’s liability, thus taking advantage of both the defendant and the trial court (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609).

One of the most recent cases dealing with this issue is Genesis & Sons, Ltd. v. Theodosopoulos (1991), 223 Ill. App. 3d 276, the facts of which were as follows: the plaintiff filed a complaint in small claims court seeking damages arising from an automobile accident he had with the defendant. The defendant sought a trial on the merits which was initially set for May 9, 1990, later continued to June 19, 1990, and finally set for trial on October 1, 1990. Through inadvertence, however, defense counsel’s firm incorrectly docketed the trial date, causing her to fail to appear for the trial, and resulting in a default judgment being entered against her client. In his section 2—1401 petition, defendant averred that the plaintiff’s attorney did not call defense counsel to determine if she would be present for trial or if there were any confusion regarding the trial date. The defendant also pointed out that the plaintiff’s counsel notified neither his attorney’s office nor the defendant of the default judgment, despite the fact that his attorney had had a telephone conversation regarding the case with the plaintiff’s counsel during the week of November 10, 1990. The first awareness that defendant’s attorney had of the default judgment was when the plaintiff’s counsel gave notice to the defendant’s insurance company more than 30 days after the entry of judgment.

Relying upon the equitable aspects of section 2—1401, the court stated that it “should prevent enforcement of a default judgment when it would be unfair, unjust or unconscionable,” holding that “under the particular circumstances of this case *** the alleged breach of professional conduct is sufficient to constitute unconscionable conduct so that we may ease the due diligence requirement.” (Genesis & Sons, 223 Ill. App. 3d at 280, 281.) The court noted that no explanation was given by the plaintiff’s counsel for failing to investigate why, after defense counsel had appeared at all other times, she had not appeared on the trial date. The court was also troubled by the fact that notice of the default was sent more than 30 days after the entry of the default judgment, and even then, was sent to the defendant’s insurance company, a nonparty, concluding that it could not “condone such conduct by allowing a judgment achieved by such conduct to stand.” Genesis & Sons, 223 Ill. App. 3d at 282.

Here, too, we cannot condone Goulding’s conduct in obtaining a default judgment without notice and concealing its entry for more than 30 days; thus, we too, as did the court in Genesis & Sons, find it necessary to relax the applicable due diligence standards. Although the trial judge here gave no reasons for denying the section 2—1401 petition, the court in Genesis & Sons was not furnished with a transcript of the section 2—1401 proceedings or a statement of facts agreed to by the parties.

Sheridan maintains that Harbecke told him that the motion to vacate had been granted and that his client should have been able to rely on Harbecke’s statement, despite the fact that it is the responsibility of the parties and their attorneys to check with the clerk of the court to follow the course of the case. (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 468-69.) We note that in Genesis & Sons, the parties and attorneys also failed to keep abreast of the status of the case, relying on rudimentary concepts of professional courtesy, and where, accordingly, the court found the equities to be in favor of the party seeking section 2—1401 relief. It is important to note that Goulding failed to notify either Lowrance or his attorney of the prove up date; neither did he notify Lowrance, Sheridan, or even his own attorney, Browne, of entry of the default judgment until more than 30 days after the fact. Also telling is the fact that Goulding failed to return CNA’s $25,000 check to Browne, and Lowrance’s settlement papers to Sheridan, until more than 30 days after the entry of the default judgment. Indeed, at oral argument Goulding himself admitted that although he knew that Harbecke and Browne were continuing with settlement negotiations “even on May 2d, and on May 3d, and on May 4th,” he deliberately permitted the 30-day period to go by without disclosing that the default judgment had been entered because he thought that trial courts are “very liberal” with regard to vacating default orders. The combination of these factors clearly suggests a calculated effort to lead Lowrance and Sheridan to believe that the motion to vacate had in fact been granted. Accordingly, these facts call for the result reached in Ellman, Jansma and Genesis & Sons, in which equitable principles were held to require the easing of the due diligence standard, as we do here.

C

Lastly, Lowrance contends that he was diligent in the filing of his section 2—1401 petition, in that “he was given no notice of [the] entry [of the default judgment], and further *** the fact of its entry was concealed from him until more than 30 days after its entry ***, and that since that time he has negotiated with Plaintiff’s counsel and carrier in good faith to effect and proceed with the settlement previously made.” Goulding relies upon the fact that Lowrance “waited nearly a full month before filing a ‘Petition’ pursuant to Section 2—1401. In addition, he did nothing for more than two months after the judgment was entered, and more than four and one-half (4½) months after the second default order was entered against Lowrance.”

In In re Marriage of Frazier (1990), 203 Ill. App. 3d 847, 853, the court held that the husband was duly diligent in filing his petition even though he did not do so until nearly seven months after learning that the property which had been awarded to him in a divorce proceeding had been stolen from his former wife’s home. On the facts of the case at bar, we hold that Lowrance was diligent enough in filing his petition 24 days after he had notice of the entry of the default judgment. Although he was aware of the entry of the default judgment, Lowrance attempted to “effect and proceed -with the settlement previously made,” during the 24 days which passed before he filed his section 2—1401 petition for relief. A 24-day delay in filing under other circumstances might not meet the due diligence standards, but here, because Goulding had been willing to “proceed with the settlement previously made” even after he had called off settlement negotiations, Lowrance was reasonably diligent in filing his section 2—1401 petition.

For the above-stated reasons, we hold that the trial court abused its discretion in denying Lowrance’s section 2—1401 petition. We therefore reverse the judgment of the circuit court and remand this cause for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DiVITO and McCORMICK, JJ., concur.

      The record indicates that Harbecke was engaged by CNA to represent Goulding.

      There is evidence that Goulding’s attorneys were acting at his command. In his May 2, 1990, facsimile to Sheridan, Harbecke stated that “[i]f we do not receive [the $25,000 check] by 5-4-90, Mr. Goulding has directly [sic] me that all prior deals are to be deemed null and void.” (Emphasis added.) Likewise, in his May 4, 1990, facsimile to Sheridan, Harbecke stated, “my client, Randall S. Goulding has directed me to inform you that any and all settlement is deemed to be null and void. *** You should now act accordingly.” (Emphasis added.)