author: JUSTICE McLAREN

text:
    JOSEPH A. WAITCUS et al., Plaintiffs-Appellees, v. THE VILLAGE OF GILBERTS et al., Defendants-Appellants.
    Second District
    No. 2—89—1137
    Opinion filed June 26, 1990.

      Roeser, Vucha & Carbary, of Elgin (Ronald 0. Roeser, of counsel), for appellants.
    Cromer, Wittenstrom & Meyer, P.C., of Elgin (Clarence E Wittenstrom, Jr., of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants appeal from an order granting plaintiffs’ motion for summary judgment as to count I of their complaint. On appeal, defendants contend that the complaint should have been dismissed, that the village board followed proper procedures in dealing with plaintiffs’ petitions, and that the trial court erred in granting plaintiffs’ motion for summary judgment. We affirm.

Defendant, Village of Gilberts (Village), passed an ordinance proposing the creation of a special service area (SSA) in an industrial park. A public meeting was held on October 15, 1986, to hear comments and objections to creation of the SSA, pursuant to section 6 of “An Act to provide the manner of levying or imposing taxes for the provision of special services to areas ***” (the Act) (Ill. Rev. Stat. 1985, ch. 120, par. 1301 et seq.). This meeting was adjourned to October 22, 1986, and again to November 4, the next scheduled meeting of the Village board.

At the November 4 meeting, plaintiffs, owners of certain property located in the area designated to be the SSA, submitted petitions and argued that their properties should be deleted from the SSA. According to the minutes of this meeting, the first motion concerned lots 1, 2 and 3, while the second motion concerned lots 15, 16, 17, 18, 19 and 20. The board voted five to zero to exclude the lots in the first petition and three to two to exclude the lots in the second petition. The board consisted of a president and six trustees. However, the president and one trustee were absent at this meeting. Following this action on the petitions, the meeting was adjourned.

At the next regular meeting of the board, November 18, the board unanimously approved the minutes of the November 4 meeting. The Village president subsequently vetoed the two exemption motions passed at the last meeting. No further action was taken on the motions at that meeting. However, a motion to override the veto was made and defeated at the next regular board meeting on Decernber 2. The board then passed an ordinance establishing the SSA, which again included the plaintiffs’ property.

On July 29, 1987, plaintiffs filed a two-count complaint in the circuit court of Kane County. Count I sought a declaratory judgment excluding plaintiffs’ properties from the SSA, pursuant to the board’s resolution of November 4, 1986. Count II sought a permanent injunction enjoining defendants from passing any ordinance or resolution including plaintiffs’ properties in any SSA or tax assessment. The Village moved to strike the complaint for failure to state a cause of action. This motion was denied on February 24, 1988. Defendants’ motion to dismiss the complaint was similarly dismissed on April 15, 1988. On November 21, 1988, the court granted summary judgment as to count I to the plaintiffs, declaring that the action of the village on November 4, 1986, which deleted plaintiffs’ properties from the SSA, was still valid and binding with the full force of law. No action was taken on count II. Defendants then appealed to this court. However, this appeal was dismissed for a lack of jurisdiction, as the order from which appeal was taken was not final and appealable. (See Waitcus v. Village of Gilberts (1989), 185 Ill. App. 3d 248.) On October 23, 1989, count II of the complaint was dismissed. This appeal followed.

Defendants first contend that the complaint is insufficient to support a judgment for the plaintiffs. Therefore, the trial court erred in denying the defendants’ motion to strike the complaint. Defendants raise several grounds to support their conclusion of insufficiency. First, defendants allege that the complaint failed to set forth any duty, breach, or violation of law with any particularity. On the contrary, we find several allegations in the complaint that set forth violations of law with particularity, including:

“That on November 18, 1986, at the regular meeting of the Village Board, the resolutions excluding Plaintiffs’ properties from Ordinance 86 — 17, SSA No. 3, which resolutions were valid and binding pursuant to Illinois law and the Articles of Incorporation of the Village of Gilberts, were purportedly vetoed by Gilberts’ Village President, GORDON MUELLER, in direct contravention of powers vested in him by Illinois Revised Statutes, Ch. 21, Sec. 3—11—18, and Section 35 of the Articles of Incorporation of the Village of Gilberts, Illinois * * *
* * *
That neither Plaintiffs, nor Plaintiffs’ attorneys, received any further notice of information regarding the Village Board action adversely affecting the Plaintiffs, including the veto of all motions or resolutions to exclude, or of subsequent passage of Ordinance 86 — 17, until the December 4 1986 letter from Attorney Roeser was received by Plaintiffs’ attorney *** which lack of notice was in violation of Plaintiffs’ constitutional rights to due process under the Constitutions of the United States of America and the State of Illinois.” (Emphasis added.)

We find these allegations adequate to survive the motion to strike.

Defendants maintain that the complaint failed to allege any of the necessary elements for declaratory and injunctive relief. However, defendants chose not to present any argument concerning the elements necessary for declaratory relief, other than the bald assertion that they are lacking here, and cite no case law on the issue. Therefore, defendants have waived this issue for failure to present any meaningful argument or case authority. (See In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 420.) Defendants’ argument regarding allegations necessary for injunctive relief is unnecessary, as the count seeking injunctive relief was dismissed. That issue is, therefore, moot.

Defendants next maintain that the complaint should have been stricken because the plaintiffs relied on grounds insufficient to support a judgment. The complaint alleged that each of the lots sought to be deleted was either unsuitable for development or not specially benefited by the intended improvements. Defendants argue that plaintiffs’ position is irrelevant to this case, citing Andrews v. County of Madison (1977), 54 Ill. App. 3d 343, for support. Defendants’ reliance on Andrews is misplaced, as Andrews is clearly distinguishable. The plaintiffs in Andrews contended that the lack of benefit to their properties was a basis for the court to delete their property from the SSA. In the case before us, plaintiffs’ complaint makes no such argument. While the lack of benefit to the properties is raised, plaintiffs do not rely on that allegation for relief. Plaintiffs here are contesting the propriety of the procedures used to reinstate their property to the proposed SSA. They are not arguing that defendants could not have included the property in the first instance, as the plaintiffs in Andrews argued. Defendants’ argument is inapposite and provides no reason to reverse the decision of the trial court.

Defendants also maintain that the petitions submitted by plaintiffs were not properly signed and thus were improperly executed. This is argued in conjunction with defendants’ motion to strike as well as their motion to dismiss. However, the issue was not raised in the motion to strike and obviously has no bearing on whether the complaint stated a cause of action. On the basis of the arguments raised, we find no error by the trial court in denying defendants’ motion to strike the complaint. We, therefore, will only consider the validity of the petitions in conjunction'with the motion to dismiss.

Defendants’ motion to dismiss pursuant to section 2—619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619(a)(9)) did raise the issue of improper execution of plaintiffs’ petitions. Defendants maintain that the petitions were improperly signed by the plaintiffs and were, therefore, void ab initio. The petitions for lots 1 and 3, owned by corporations, were signed by plaintiffs’ counsel; according to defendants, such petitions should have been signed by corporate officers. Lot 2 is property held in a land trust. The petition for this land was signed by the beneficial owner but should have been signed, according to defendants, by the trustee. The petition for lots 17 and 18, owned by plaintiff Coffey, is signed by plaintiff Waitcus. The petition for lots 15, 19 and 20 was signed by the owner of record and is not at issue in this argument.

Protests and objections to the creation of special service areas are covered in section 6 of the Act, which provides in part:

“At the public hearing held hereunder any interested person, including all persons owning taxable real property located within the proposed special service area, may file with the municipal clerk or county clerk, as the case may be, written objections to and may be heard orally in respect to any issues embodied in the notice.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 120, par. 1306.)

Defendants maintain that, under these provisions, only property owners may object to the creation of the SSA. Defendants cite Ciacco v. City of Elgin (1980), 85 Ill. App. 3d 507, for that proposition and for specific language holding that corporate officers must sign for corporate property and that trustees must sign for trust property. However, Ciacco is easily distinguishable from the case before us. Ciacco involved a petition objecting to creation of an SSA brought under section 9 of the Act. Section 9 provides in part:

“If a petition signed by at least 51% of the electors residing within the special service area and by at least 51% of the owners of record of the land included within the boundaries of the special service area is filed with the municipal clerk or county clerk, as the case may be, within 60 days following the final adjournment of the public hearing objecting to the creation of the special service district, the enlargement thereof, the levy or imposition of a tax or the issuance of bonds for the provision of special services to the area, or to a proposed increase in the tax rate, no such district may be created, enlarged, or tax may be levied or imposed nor the rate increased, or no such bonds may be issued.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 120, par. 1309.)

Section 9 provides a separate avenue of relief and specifically refers to owners of record signing the petition. The procedures required under section 9 are unique to that section and are inapplicable to section 6. Indeed, while section 9 limits petition signatures to owners of record, section 6 allows objections by “any interested person.” Defendants cite no case law and make no argument as to why the more restrictive provisions of section 9 should be imposed on section 6. In their discussion of the Ciacco case, defendants rather disingenuously imply that the court ruled on the provisions of section 6. It did not. No other argument is made. We do not conclude that only owners of record may sign petitions brought under section 6 of the Act. Therefore, the court did not err in denying defendants’ motion to dismiss.

Defendants next make several contentions regarding the propriety of the procedures followed by the board and the president in passing the SSA ordinance. These contentions are raised in conjunction with the court’s granting of summary judgment to the plaintiffs. However, as the court made neither written nor oral findings of fact and conclusions of law, we do not know how the court ruled on these issues. In order to determine whether the trial court properly granted summary judgment, a reviewing court must be provided with a sufficient record from which to render a decision. (Lurz v. Panek (1988), 172 Ill. App. 3d 915, 922.) It is incumbent upon the party seeking review of a judgment to present a record of the proceedings and judgments showing the errors of which he complains. (Neylon v. Illinois Racing Board (1978), 66 Ill. App. 3d 621, 623.) Any doubts arising because of an incomplete record will inure to the appellee’s benefit and will be resolved against the appellant. (In re Estate of Thompson (1985), 131 Ill. App. 3d 544, 547.) In this case, defendants have presented us with no indication of how the court concluded the issue of board procedures. We are, therefore, unable to determine whether the court’s conclusion was erroneous. This omission is fatal; it precludes us from considering the issue on appeal. See McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 283.

Defendants next contend that the trial court erred by granting plaintiffs’ motion for summary judgment. This section of the brief is filled with conclusions and bits of facts but is totally devoid of any citation to case or statutory authority. In addition, no attempt at coherent argument is made. This section of the brief is entirely inadequate, and we consider the contentions raised therein to be waived. See In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 420.

Plaintiffs also seek relief from this court, praying for an order directing the village to show cause why further relief should not be granted, pursuant to section 2—701(c) of the Code of Civil Procedure, which provides:

“If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction for an order directed to any party or parties whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith, upon reasonable notice prescribed by the court in its order.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-701(c).)

We are not informed by plaintiffs as to why they seek such relief from this court. The purpose of section 2—701(c) “is to permit the trial court to grant appropriate relief in furtherance of its original judgment where necessary.” (Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1986), 143 Ill. App. 3d 781, 785-86.) The trial court is the proper tribunal to receive such a petition for relief. This court’s jurisdiction attaches only upon the proper filing of a notice of appeal. (Daley v. Laurie (1985), 106 Ill. 2d 33, 37.) Plaintiffs have not appealed any ruling from the trial court. We, therefore, have no jurisdiction and will not consider granting the requested relief.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellant, v. MIDWEST MOLE, INC., Defendant-Appellee (Pontarelli Brothers Contracting Company, Inc., Third-Party Defendant-Appellee).
    Second District
    No. 2—89—0710
    Opinion filed June 28, 1990.

      Laurence Leszcynski, of Major, Fennell & Associates, Ltd., of Wheaton, for appellant.
    Thomas R. Weiler, of O’Reilly, Cunningham, Norton & Mancini, and Dale W. Bruckner and Elizabeth W. Sexton, both of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., both of Wheaton, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Northern Illinois Gas Company, filed a complaint in the circuit court of Cook County on February 5, 1985, seeking compensation in the amount of $42,577.21 for damage to its gas lines allegedly caused by defendant, Midwest Mole, Inc. On April 11, 1988, the case was transferred to the circuit court of Du Page County. On August 19, 1988, defendant filed a motion to compel plaintiff to comply with discovery in this case. However, plaintiff failed to appear at the hearing on defendant’s motion, and, on August 29, 1988, the cause was dismissed for want of prosecution. On September 28, 1988, the order of dismissal was vacated, and plaintiff was given additional time to comply with discovery orders. Plaintiff again failed to comply with the discovery orders, and on December 6, 1988, on defendant’s motion, plaintiff failed to appear at a hearing and the cause was dismissed with prejudice pursuant to Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)).

On January 10, 1989, plaintiff filed a motion to vacate the December 6, 1988, order. The trial court denied plaintiff’s motion on March 3, 1989. On March 27, 1989, plaintiff petitioned the trial court, this time apparently pursuant to section 2—1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), seeking to vacate the order of December 6, 1988. The trial court denied this petition on June 23, 1989.

Plaintiff then appealed, seeking review of the trial court’s orders of December 6, 1988, March 3, 1989, and June 23, 1989. On January 9, 1990, this court granted appellees’ motion to dismiss the appeal. On February 6, 1990, upon reconsideration, this court reinstated plaintiff’s appeal only with respect to the trial court’s order of June 23, 1989, and the order dismissing the appeal remained in effect as to the trial court’s orders of December 6,1988, and March 3,1989.

The record reveals the following chronology of facts pertinent to this appeal. Plaintiff first filed its complaint in the circuit court of Cook County on February 5, 1985. Defendant, Midwest Mole, filed its answer on March 12, 1985. On December 15, 1986, defendant filed a request to produce, directing plaintiff to produce certain documents. Defendant also propounded interrogatories to plaintiff and filed a notice of deposition on December 18, 1986. On February 5, 1987, an order was entered requiring all parties to complete discovery. Written discovery was to be completed by April 30, 1987, and oral discovery was to be completed by July 31, 1987. Discovery was to be closed on August 3, 1987. From February through May 1987, defendant sent three letters requesting plaintiff to complete discovery. On July 6, 1987, defense counsel again wrote to plaintiff, noting that plaintiff’s written responses had not been received and advised plaintiff that the scheduled depositions could not proceed without the completion of written discovery unless plaintiff was willing to produce the witnesses for deposition at a later date.

On July 22, 1987, plaintiff filed partial answers to defendant’s interrogatories and responded to the request to produce. On July 31, 1987, noting that plaintiff had not produced all of the requested documents, defendant requested that plaintiff file an affidavit pursuant to Supreme Court Rule 214 (107 Ill. 2d R. 214), stating whether the production was complete in accordance "with the request. On August 24, 1987, counsel for defendant sent a correspondence to plaintiff again requesting it to complete discovery.

On August 31, 1987, defendant filed a motion to extend the time to complete discovery. The circuit court of Cook County extended the time for written discovery until November 15, 1987.

On September 1, 1987, defendant filed notices directing plaintiff to produce three of its employees for deposition. On September 11, 1987, defendant filed supplemental interrogatories and another request to produce. On October 20, 1987, defendant was granted leave to file a third-party complaint against Pontarelli Brothers Contracting, Inc., and a counterclaim against plaintiff. Thereafter, defendant filed several notices of deposition to depose employees of plaintiff.

On April 11, 1988, third-party defendant, Pontarelli Brothers, filed a motion for a change of venue. The circuit court of Cook County granted the motion, and the cause was transferred to the circuit court of Du Page County.

On August 26, 1988, defendant filed a motion to compel plaintiff to comply with previous requests concerning interrogatories and notices to produce. Counsel for plaintiff failed to appear, and the motion was continued to August 29, 1988. On August 29, 1988, the cause was dismissed for want of prosecution because plaintiff again failed to appear. On September 28, 1988, the trial court vacated the August 29, 1988, dismissal order, and plaintiff was given 14 days to answer the outstanding interrogatories.

On November 14, 1988, defendant sent plaintiff a notice of a motion for a hearing on November 22, 1988, to dismiss plaintiff’s complaint for failure to comply with the September 28, 1988, order. The motion averred that, due to the failure of plaintiff to respond to discovery requests, the deposition of witnesses had been delayed and plaintiff’s conduct had prejudiced defendant in preparing its defense. No hearing was conducted on November 22, 1988, and defendant sent plaintiff a new notice indicating that the hearing would take place on December 6, 1988. On December 6, 1988, pursuant to notice served on plaintiff, defendant moved for a hearing instanter on its motion to dismiss. Plaintiff failed to appear, and the trial court dismissed the cause with prejudice pursuant to Supreme Court Rule 219(c). (107 Ill. 2d R. 219(c).) Defendant then sent a copy of the dismissal order to plaintiff.

On January 10, 1989, plaintiff, through newly employed counsel, filed a notice and a motion to vacate the December 6, 1988, order. Plaintiff also filed answers to defendant’s supplemental interrogatories on that date. In addition, plaintiff filed an affidavit of Thomas J. Shanahan, its former attorney, which stated that Shanahan never received notice that defendant would proceed on its motion to dismiss other than a “Notice of Motion of November 22, 1988.” In the affidavit, Shanahan claimed to have appeared on November 22, 1988, but was advised that defendant had failed to appear. The record indicates that the notice of the December 6, 1988, hearing was mailed on November 22, 1988.

A hearing on plaintiff’s motion was conducted on March 3, 1989. At the hearing, plaintiff’s new counsel acknowledged that he had received plaintiff’s file late in December 1988 and claimed that he did not see any notice setting the matter for a hearing on December 6, 1988. Plaintiff argued that because it had scheduled the motion to vacate on January 3, 1989, the motion was timely filed within 30 days of the judgment as a section 2—1301 motion applicable to default judgments. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301.) The trial court noted that plaintiff’s motion was not properly filed as required for a section 2—1301 motion and denied the motion. The trial court also observed that the motion would have been inadequate as a section 2—1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). Plaintiff’s request to file a section 2—1401 petition instanter was denied.

On March 27, 1989, within 30 days of the denial of its first motion to vacate, plaintiff apparently filed another petition to vacate purportedly under section 2—1401 of the Code. A copy of this petition does not appear in the record. After a hearing on May 5, 1989, the trial court took the matter under advisement. On June 23, 1989, the trial court entered a detailed order denying plaintiff’s section 2 — 1401 petition. The trial court observed that it had the power to dismiss an action for failure of a party to comply with discovery orders. The court noted that plaintiff had failed to demonstrate any legitimate excuse for its failure to comply with discovery orders or that plaintiff’s refusal was reasonable. The trial court concluded that plaintiff failed to show the existence of a meritorious claim, and in failing to complete discovery over the 18-month period between July 1987 and January 10, 1989, plaintiff had displayed a complete lack of diligence and had not shown that the failure to complete discovery was through no fault or negligence of its own. On July 14, 1989, plaintiff filed a notice of appeal.

On appeal, plaintiff contends that: (1) the trial court abused its discretion in dismissing its complaint with prejudice; (2) the motion to vacate the dismissal order pursuant to section 2—1301 of the Code was timely filed; and (3) the section 2—1401 petition was sufficient to entitle it to post-judgment relief.

We initially consider the nature and timeliness of plaintiff’s post-judgment “motions” to vacate the December 6, 1988, dismissal order, as these motions may affect our jurisdiction to hear this appeal. Notwithstanding plaintiff’s arguments to the contrary, the first purported motion to vacate the December 6, 1988, order was brought more than 30 days after the entry of judgment. Although it was not initially labeled as a section 2—1301 motion, plaintiff argued that the motion was brought pursuant to section 2—1301 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301.) Plaintiff further argued that the motion was timely because counsel, on January 3, 1989, scheduled a hearing on the court’s motion call. Thus, plaintiff claims that the motion satisfied the 30-day requirements of this section. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(e).) Plaintiff’s position is untenable.

It is clear from the record that no motion to vacate the dismissal order was actually filed until January 10, 1989, and this was more than 30 days after the entry of the order. A post-judgment motion to vacate must be actually filed within 30 days of the entry of judgment for the trial court to have jurisdiction to consider it. (See Kollath v. Chicago Title & Trust Co. (1975), 62 Ill. 2d 8, 11.) A party’s mere intent to file a motion does not satisfy the statutory requirement of filing. The actual filing date of a petition for relief from a final judgment is when it is received and stamped by the clerk of the court. Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 1094; Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 553-54.

Regardless of the label affixed to plaintiff’s first motion to vacate the December 6 order filed on January 10, 1989, we conclude that the first “motion” must be considered a new action brought by petition pursuant to section 2—1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401 (formerly Ill. Rev. Stat. 1979, ch. 110, par. 72)), because the first attempt to vacate the judgment was made more than 30 days after the rendition of judgment. (See Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 573.) A trial court loses jurisdiction over a matter once 30 days have passed following the entry of a final and appealable order if, during that time, neither party takes any legally proper action which tolls the 30-day period. People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71.

Numerous courts have held that when a motion to vacate a judgment is brought more than 30 days after the entry of the original judgment, the motion must be construed as a petition for relief from a final judgment under section 2—1401 of the Code. (See Schuman, 38 Ill. 2d at 573; Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App. 3d 244, 246; Nenadic v. Grant Hospital (1979), 75 Ill. App. 3d 614, 620.) Unless a petition attacks a judgment as void (see, e.g., Mogilles, 136 Ill. App. 3d at 71), a party’s sole source of relief from the judgment is under section 2—1401 (Lurie Co. v. Teichner (1978), 63 Ill. App. 3d 950, 952; Goldstick v. Saporito (1974), 22 Ill. App. 3d 621, 623), even where the petition is fatally defective (Mehr v. Dunbar Builders Corp. (1972), 7 Ill. App. 3d 881, 883).

In the present case, we adhere to the rule that a petition to vacate a judgment brought more than 30 days after the entry of judgment will be considered as a section 2 — 1401 petition where the petition does not attack the prior judgment as being void. Here, plaintiff’s first petition filed on January 10, 1989, alleged that it failed to receive notice of the December 6, 1988, proceeding. The affidavit of the prior attorney of record, Thomas Shanahan, filed on January 18, 1989, in support of the petition, stated that Shanahan never received notice of the December 6, 1988, proceeding which resulted in the dismissal order. At the hearing on March 3, 1989, plaintiff’s new attorney argued lack of notice as the basis to vacate the December 6 order; no explanation was given for filing this first petition more than 30 days after the entry of judgment though it is clear from the record that the new attorney had reviewed the case late in December 1988. Rather, counsel argued that placing the matter on the trial court’s call within 30 days of the judgment and mailing a notice to defendants was sufficient to satisfy the time requirements and that failing to file was merely a “technical” error. The trial court denied plaintiff’s motion as a section 2 — 1301 motion and noted that the motion would also have been inadequate under section 2 — 1401.

We agree that, as a matter of law, plaintiffs first petition did not satisfy the requirements for obtaining relief under section 2—1401 of the Code. To obtain relief under section 2—1401, a party must show by a preponderance of the evidence: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting that defense or claim to the circuit court in the original action; and (3) due diligence in filing the petition for section 2—1401 relief. In re Petition of Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 544; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21.

Plaintiff demonstrated neither the existence of a meritorious claim nor due diligence in resisting the original judgment. The alleged failure to receive notice of a proceeding, without more, is an inadequate basis for obtaining relief under section 2—1401. (Gayton v. Levi (1986), 146 Ill. App. 3d 142, 151; see also Smith v. Airoom, 114 Ill. 2d at 227.) Plaintiff provides us no legitimate excuse for its failure to comply with discovery orders. (See Peoples Gas, Light & Coke Co. v. Chicago Black Improvement Association (1986), 148 Ill. App. 3d 1093, 1096.) Plaintiff fails to offer a satisfactory explanation regarding its failure to appear at the December 6, 1988, proceeding or why it did not promptly challenge the entry of the judgment entered that day. The record indicates that notice of the December 6 proceeding was sent to plaintiff on November 22, 1988, and plaintiff’s counsel was aware of the dismissal order before the 30 days had elapsed from the time of its entry. A party must follow the progress of its case, and section 2 — 1401 will not operate to relieve a litigant of the consequences of his or his attorney’s neglect. (Kaput v. Hoey (1988), 124 Ill. 2d 370, 383.) Additionally, plaintiff brought no new facts to the attention of the trial court which if known to the court at the time judgment was rendered would have prevented its rendition. See In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 728.

We next consider the effect of plaintiff’s filing of its second “motion” to vacate on March 27, 1989. This motion was filed within 30 days of the denial of the first petition. Defendant, along with third-party defendant, argues that plaintiff’s second motion constituted an impermissible, repetitious or successive post-judgment motion which may not substitute for a proper appeal.

It has been held that successive post-trial motions or section 2 — 1401 petitions may not extend the time for appeal where the time for appeal has expired. (See, e.g., City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 865-66; Federal Sign & Signal Corp. v. Czubak (1978), 57 Ill. App. 3d 176, 181.) However, in light of our supreme court’s decision in Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, a case cited by neither party, this court must reexamine the rule prohibiting successive post-judgment motions to vacate, taking note of the fine distinctions made in Burnicka between successive post-judgment motions to vacate and the denial or grant of a section 2—1401 petition followed by a timely motion to vacate brought within 30 days of the grant or denial of the section 2—1401 petition.

In the present case, defendant argues that, upon denial of plaintiff’s first petition to vacate on March 3, 1989, plaintiff’s only option was to file a notice of appeal, and when plaintiff attempted to bring a second “petition” on March 27, 1989, this was an improper attempt to substitute that petition for its right to appeal. We disagree that plaintiff’s only option after the denial of its first section 2—1401 petition was to file an appeal within 30 days. Our supreme court rejected this view in Burnicka (88 Ill. 2d at 531-32).

In Burnicka, the defendant filed a section 72 petition (now section 2—1401) on March 1, 1979, seeking to vacate a default judgment entered July 18, 1978. After holding a hearing, the trial court granted the petition to vacate the default judgment. The plaintiffs did not file a notice of appeal from the granting of the defendant’s section 72 petition, but, instead, filed a motion to set aside the judgment; that motion was denied on January 3, 1980. The plaintiffs filed a notice of appeal within 30 days of the January 3, 1980, order. The appellate court dismissed the appeal for lack of jurisdiction.

The Illinois Supreme Court reversed, noting that the filing of a section 72 petition was the commencement of a new cause of action and was not a continuation of the proceeding in which the prior judgment was entered. (Burnicka, 88 Ill. 2d at 530.) A section 72 petition was not, therefore, merely a post-trial motion in the prior proceeding. The supreme court declared that a party against whom a judgment had been entered under section 72 of the Code should have the same opportunity to file its (first) post-trial motion as in other civil proceedings. Therefore, the supreme court held that, if within 30 days of the grant or denial of a section 72 petition a post-trial motion directed against that judgment is filed, the motion will extend the time for filing a notice of appeal until 30 days after the order disposing of the motion is entered. (88 Ill. 2d at 531.) The court noted, however, that a second post-judgment motion would be unauthorized and would not extend the time in which to appeal. 88 Ill. 2d at 531, citing Sears v. Sears (1981), 85 Ill. 2d 253.

In Sears, the supreme court rejected successive post-judgment motions as a method of extending the time for appeal. (Sears, 85 Ill. 2d at 259.) The court noted that the denial of a post-judgment motion is not itself a judgment, but, as a practical matter, the denial of a timely first post-judgment motion is always reviewable. The appellant may, on appeal of the judgment, bring up all related orders entered before the notice of appeal and not previously appealable, including the denial of the post-judgment motion. (Sears, 85 Ill. 2d at 258.) Thus, the distinction between an ordinary post-judgment motion and a section 2—1401 petition is critical in determining whether a successive attempt to vacate a prior judgment is permissible.

In the present case, to the extent that it can be gleaned from the partial record before us, plaintiffs second attempt to vacate the final judgment was apparently brought on March 27, 1989, within 30 days of the March 3, 1989, denial of its first petition to vacate. The trial court applied the standards established for the consideration of a section 2—1401 petition. We believe that, if plaintiffs second attempt to vacate the judgment is cognizable at all, it must be as a first post-judgment motion or motion to reconsider the denial of its first petition. (See Nenadic, 75 Ill. App. 3d at 622.) Since it was the first motion brought after the denial of its first petition, it cannot be characterized as a successive or repetitious post-judgment motion. See Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 98 (following the holding of Burnicka).

Based on the foregoing discussion, we will consider plaintiffs March 27, 1989, motion to vacate the final judgment as a post-judgment motion brought within 30 days of the denial of its first petition. The notice of appeal was filed within 30 days of the June 23, 1989, denial of that post-judgment motion. We therefore have jurisdiction to consider this appeal of the June 23, 1989, order and the prior related orders under Sears and Burnicka.

Plaintiff, as appellant, had the duty to present a complete record on appeal so as to fully apprise the court of the issues in the case. (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 808.) Because plaintiffs post-judgment motion to vacate brought on March 27, 1989, is absent from the record, any doubts which may arise from the incompleteness of the record will be resolved against plaintiff. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392.) After reviewing the trial court’s reasons for denying plaintiff’s March 27, 1989, motion to vacate, we conclude that plaintiff was no more successful in its second attempt than in its first.

At the hearing on May 5, 1989, counsel for plaintiff merely repeated his argument that the December 6, 1988, dismissal order was entered because of a lack of notice to plaintiff. However, the trial court specifically found that the December 6, 1988, order was entered pursuant to notice duly served on Thomas J. Shanahan, plaintiff’s first attorney, and the record supports that finding. No explanation was given regarding plaintiff’s repeated failures to comply with discovery orders and its failure to appear at scheduled proceedings. The trial court had already dismissed plaintiff’s cause of action for want of prosecution on August 29, 1988. After the cause was reinstated, plaintiff was given another opportunity to comply; plaintiff again managed to ignore the impending proceedings on December 6, 1988, and, additionally, failed to move to set aside the December 6, 1988, order within 30 days of its entry.

To merit section 2—1401 relief, plaintiff was required to demonstrate a meritorious defense to the judgment or final order challenged. (Mogilles, 136 Ill. App. 3d at 73.) In addition, plaintiff was also required to present a legitimate excuse for its failure to comply with the discovery schedule and to show a willingness to comply in the future. (Chicago Black Improvement Association, 148 Ill. App. 3d at 1096.) In view of plaintiff’s repeated, unexplained, and apparently deliberate failures to comply with discovery orders over an extended period of time, particularly where the trial court had already dismissed the case once for want of prosecution, we cannot say that the dismissal was improper on its merits. See Elders v. Sears Roebuck & Co. (1980), 82 Ill. App. 3d 995, 998; 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1975), 34 Ill. App. 3d 922, 927.

By now, this litigation has dragged through the courts for more than five years without proceeding to trial. Defendant attempted to obtain full discovery for nearly three of the five years by means of numerous requests and proceedings. As our supreme court has stated, “[o]ur discovery procedures are meaningless unless a violation entails a penalty proportionate to the gravity of the violation. Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.” (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67.) After repeated violations of its discovery orders, the trial court here first imposed the lesser sanction of dismissal for want of prosecution. Plaintiff’s failure to comply after reinstating the case must be construed as a deliberate and contumacious disregard of the court’s authority for which dismissal with prejudice was warranted. Plaintiff’s last-minute attempt to provide discovery after the judgment became final is insufficient to warrant granting relief under section 2—1401, especially in view of plaintiff’s unreasonable and deliberate failure to comply with the discovery orders over a lengthy period of time. Furthermore, plaintiff displayed an obvious lack of diligence in resisting the entry of the judgment both before and after December 6, 1988. (See Elders, 82 Ill. App. 3d at 998.) We find that the trial court did not abuse its discretion in dismissing plaintiff’s complaint and subsequent section 2—1401 petitions.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLaren and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    RICHARD PETRZILKA et al., Plaintiffs-Appellants, v. STEVE GORSCAK, Defendant-Appellee.
    Second District
    No. 2—89—1114
    Opinion filed June 26, 1990.

      Robert D. Greenwalt, of West Chicago, for appellants.
    G. William Richards, of Aurora, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Richard and Nancy Petrzilka, filed a complaint in the circuit court of Kane County, seeking to enjoin the defendant, Steve Gorscak, from operating a carpet cleaning business within a 10-mile radius of the City of Aurora. The circuit court granted plaintiffs a preliminary injunction but entered final judgment in favor of defendant. Plaintiffs contend the trial court erred when it found plaintiffs failed to prove they had no adequate remedy at law and they failed to prove irreparable injury if defendant were not enjoined. Plaintiffs also contend the trial court erred when it took judicial notice of the changing boundaries of the City of Aurora which would make the proposed injunction too difficult to enforce.

On May 19, 1988, plaintiffs purchased defendant’s carpet cleaning business known as “Steam-Power” for $30,000. As part of the contract for sale, defendant covenanted “to not compete in a similar business, in any capacity, including ownership of stock or any other type of ownership, or any type of employment, in a ten mile radius of the City of Aurora for a period of not less than five years.” Plaintiffs also managed some apartment buildings but obtained a separate telephone line to conduct the carpet cleaning business. The actual services of the business, the cleaning of carpets, were performed by Tim Carwyle, the only employee. Plaintiffs incorporated the business as Steam-Power, Inc.

Defendant moved to Florida after he sold the business but returned in April 1989. Plaintiffs did not find the business profitable and intended to sell it to Carwyle and his partner for $20,000 in installments. Defendant assumed that he could reenter the industry and bought carpet cleaning equipment. He advertised in the Aurora newspaper and contacted Steam-Power’s customers. Carwyle then added a paragraph to the contract for sale which stated that “[sjellers warrant they will pursue a court action to stop Steve Gorschak from competing per his contract of 5-19-88.”

The record also reflects the testimony of a former customer of Steam-Power who switched to defendant’s business in 1989. She changed because Steam-Power’s professionalism had slipped, she was being overbilled and her telephone calls were not returned. Carwyle testified that numerous customers were lost to defendant, a fact which defendant readily acknowledged. Carwyle attempted to testify regarding the dollar amounts of the decrease in gross sales, but the trial court ruled that he had not laid a proper foundation to testify as to economic losses.

The trial court entered a directed verdict against plaintiffs on count II, in which they sought monetary damages of $10,000, which plaintiffs claimed was the drop in the value of the business resulting from defendant’s competition. The court found the damages to be unsubstantiated. The court also found that plaintiffs retained a sufficient interest in Steam-Power to maintain standing to sue to enforce the 1988 contract.

Following the close of the evidence, the court found plaintiffs failed to prove that they had no adequate remedy at law and they would suffer irreparable injury. The court further stated that the boundaries of the City of Aurora were changing every day and thus the court could not enforce the contract. The court entered judgment in favor of defendant, and plaintiff appeals.

Plaintiffs contend that they did not need to prove irreparable harm or an inadequate remedy at law inasmuch as the trial court applied the standard for determining a preliminary injunction rather than the standards for a permanent injunction. Such a contention is not unusual because.in many cases the distinction between a temporary restraining order, a preliminary injunction and a permanent injunction becomes blurred during the proceedings. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 385.) A trial court errs when it enters a permanent injunction after a hearing on a motion for a preliminary injunction (Lily of the Valley Spiritual Church v. Sims (1988), 169 Ill. App. 3d 624, 629) of grants the ultimate relief sought (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 675). The purposes of the two remedies are different, and the requirements of supporting them also differ. In addition, this area of the law is further confused, by the different analyses utilized in determining noncompetition clauses involving the sale of businesses and those involving employment contracts. (O’Sullivan v. Conrad (1976), 44 Ill. App. 3d 752, 755.) Moreover, any confusion the parties might have had regarding the proper standard is understandable because most of the cases involving noncompetition clauses have arisen from interlocutory appeals regarding preliminary injunctions.

The purpose of a preliminary injunction is to preserve the relative position of the parties until a trial on the merits can be held. (Lily of the Valley Spiritual Church, 169 Ill. App. 3d at 628.) Since it is an extraordinary remedy, the movant must show that he will suffer irreparable harm if the status quo is not preserved. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 501.) However, a movant need only present a likelihood of success on the merits, i.e., he must raise a fair question as to his rights, rather than fully prove his rights to obtain a preliminary injunction. (PCx Corp. v. Ross (1988), 168 Ill. App. 3d 1047, 1055.) A preliminary injunction concerns only those damages which might arise prior to the final decision of the court. Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 835.

While the requirements of proving a preliminary injunction are similar to the requisites for establishing a permanent injunction, they are not identical. In both instances, a movant must prove a lack of an adequate remedy at law. For the purposes of a permanent injunction, an inadequate remedy can be the threat of irreparable harm or other harm that cannot be adequately corrected by the payment of monetary damages. Irreparable harm is the most common method of proving an inadequate remedy at law and denotes transgressions of a continuing nature so that redress cannot be had at law. (Board of Education of Niles Township High School District No. 219 v. Board of Education of Northfield Township High School District No. 225 (1983), 112 Ill. App. 3d 212, 217.) However, a court may enjoin the breach of negative covenants and contracts without applying the ordinary rules governing specific performance of the affirmative covenants. (Anheuser-Busch Brewing Association v. Dwyer (1909), 150 Ill. App. 315, 323.) Thus it has been held that, to enforce a negative covenant, the plaintiff need not prove he has an inadequate remedy at law. (Carlson v. Koerner (1907), 226 Ill. 15, 19; Anheuser-Busch, 150 Ill. App. at 325.) Some courts have held, however, that this last rule applies only to contracts concerning real estate. (George F. Mueller & Sons, Inc. v. Morales (1974), 25 Ill. App. 3d 466, 470.) Other cases discuss the reasonableness of restrictive covenants without discussing whether an inadequate remedy at law and irreparable injury need be proved. (See Akhter v. Shah (1983), 119 Ill. App. 3d 131, 134; O’Sullivan v. Conrad (1976), 44 Ill. App. 3d 752, 756.) While the plaintiffs urge us to find that it is not necessary to prove irreparable harm and inadequate remedy at law to establish the right to a permanent injunction, we need not address that issue because we find that in fact plaintiffs did prove these elements.

In the context of noncompetition clauses, businesses deal with the potential loss of future sales. The lost profits arising from potential sales are incapable of adequate computation, and thus money damages are not an adequate remedy. (Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411.) The loss of customers and sales and the threat of the continuation of such losses to a legitimate business interest are sufficient to show a plaintiff will suffer irreparable injury. (130 Ill. App. 3d at 411.) The loss of a competitive position is an intangible but real damage not readily measurable, and, therefore, the harm suffered by plaintiffs cannot be adequately remedied in law. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 286; Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132, 137.) Moreover, defendant’s breach of the covenant was a continuing, ongoing violation which would require multitudinous proceedings to remedy at law over the five-year extent of the covenant.

Defendant contends that .the trial court’s findings were not against the manifest weight of the evidence and that plaintiffs’ loss of customers was caused by plaintiffs’ bad business practices rather than the violation of the covenant. Yet the very inequality of the business skills is the essence of a contract for the purchase of a business with an ancillary noncompetition agreement. It is precisely because a new entrant has relatively undeveloped business skills in that particular industry that the seller should be restrained from competing. A contract for the sale of a business includes an ancillary noncompetition clause to induce the transfer to a buyer who lacks experience. The buyer ordinarily requires time to gain experience on his learning curve until such time as he can compete on an even level with the seller. Noncompetition clauses should be limited in time so that the agreement is no more restrictive than necessary to accomplish this goal so as to prevent injury to the public from a restraint on trade. (McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 287.) Inherent in the sale of a business is the sale of the goodwill and the customer relations of the old business. If a seller does not convey those intangibles, he has merely sold the hard, physical assets and not the business itself. The purchaser needs protection from the seller drawing customers away from the purchaser upon the seller’s reentry into the industry, and the seller agreed to the protection as a necessary part of the contract to sell the business. Protection against the potential loss of these intangible assets is the true test to be applied in determining the necessary duration and territorial extent of the restraint. 52 Ill. 2d at 287-88.

Finally, the plaintiffs contend that the trial court erred by ruling that the injunction could not be enforced over the territorial extent of the restraint. The wording of the plaintiffs’ contract did not differ from innumerable other restraints upheld by the courts of this State. The phrase “in a ten mile radius of the City of Aurora” defines a specific area and is little different from those upheld in Bauer v. Sawyer (1956), 8 Ill. 2d 351, 354 (25-mile radius around Kankakee); Torrence v. Hewitt Associates (1986), 143 Ill. App. 3d 520, 522 (“within 50 miles”); Wyatt v. Dishong (1984), 127 Ill. App. 3d 716, 719 (within 10 miles); or Cockerill v. Wilson (1970), 130 Ill. App. 2d 679, 683 (“within a 20-mile radius from Rushville”). While the trial court could take judicial notice that the boundaries of Aurora were constantly changing, there was no evidence that such rapid expansion could make enforcement of the injunction infeasible. It was thus error for the trial court to rule that the proposed injunction was not enforceable on that ground. While there was no evidence that the geographic scope of the noncompetition clause was reasonable, that requirement was not raised as an issue on appeal. While we have doubts, as did the trial court, that the five-year provision was excessive in terms of time, that is, there is no evidence to show that a period of five years was necessary for plaintiffs to learn the carpet cleaning business and build their own customer relations, that issue was not raised on appeal.

To summarize, the trial court entered judgment against plaintiffs for failure to prove irreparable harm and an inadequate remedy at law and because it considered the proposed injunction unenforceable. However, the plaintiffs did have an inadequate remedy at law because their injury was not ascertainable for a money judgment. Defendant’s violations of the restrictive covenant were of a continuing nature and thus irreparable. As plaintiffs were not seeking a preliminary injunction, they were not required to prove irreparable injury to maintain the status quo. Finally, there is no evidence to support the conclusion that the proposed injunction would be unenforceable because of the changing boundaries of the City of Aurora. We have addressed only those issues raised' by the parties.

For the above reasons the judgment of the trial court is reversed, and the cause is remanded to the circuit court for proceedings consistent with this opinion.

Reversed and remanded.

DUNN and INGLIS, JJ., concur.


author: JUSTICE REINHARD

text:
    JOHN CARLBERG et al., Plaintiffs-Appellees, v. CHRYSLER MOTORS CORPORATION et al., Defendant-Appellants (Irving Park Chrysler-Plymouth, Defendant). — SCOTT OSMAN, Plaintiff-Appellee, v. CHRYSLER MOTORS CORPORATION, Defendant-Appellant (Schaumburg Dodge et al., Defendants).
    Second District
    Nos. 2—89—1199, 2—89—1305 cons.
    Opinion filed June 28, 1990.
    Rehearing denied July 31, 1990.

      Debra K. Marcus, of Pappas, Power & Marcus, of Chicago, for appellants.
    Mark S. Vilimek, of Kiesler & Berman, of Chicago, and Maureen Flaherty, of Lehrer, Flaherty & Canavan, P.C., of Wheaton, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

These two lawsuits were filed as separate actions in the circuit court of Du Page County. The causes, consolidated on appeal, are before this court on our granting the petitions of defendants, Chrysler Motors Corporation (Chrysler) and Chrysler Credit Corporation (Chrysler Credit), for leave to appeal pursuant to Supreme Court Rule 306(a)(1)(ii) (107 Ill. 2d R. 306(a)(1)(ii)) seeking review of the trial court’s denial of their motions to transfer the actions to Cook County based on the doctrine of forum non conveniens.

At issue in these appeals is whether the trial court abused its discretion in denying the motions for transfer pursuant to the doctrine of forum non conveniens.

The facts in these two actions can be briefly summarized. In appeal No. 2—89—1199, plaintiffs, John and Michalle Carlberg, brought suit against Chrysler, Chrysler Credit, and Irving Park Chrysler-Plymouth (Irving Park) alleging breach of express and implied warranties in connection with the purchase in March 1987 of a 1986 Chrysler automobile from Irving Park and seeking “revocation” of the retail installment contract entered into in connection with the purchase of the automobile. Attached to the complaint was a letter revoking acceptance of the automobile which was sent to Irving Park at a Cook County address and to Chrysler and Chrysler Credit at Du Page County addresses.

The Carlbergs’ complaint alleged that Chrysler is a foreign corporation which does business in every county of Illinois and which maintains offices in Du Page County. It also alleged that Irving Park is an Illinois corporation with offices and a business establishment located in Cook County. Documents attached to the complaint indicate that the Carlbergs reside in Cook County.

Chrysler Credit filed a motion in the circuit court of Du Page County seeking transfer of the cause to Cook County on the basis of forum non conveniens. The petition noted that the purchase of the subject automobile, as well as any repairs subsequently undertaken by any of the defendants, occurred in Cook County. Given that the Carlbergs were also Cook County residents, Chrysler Credit contended that the proper forum was Cook County. Chrysler subsequently joined in Chrysler Credit’s motion to transfer the cause to Cook County. The trial court denied the motion to transfer.

In appeal No. 2—89—1305, plaintiff, Scott Osman, a resident of Kendall County, brought suit in connection with the purchase on January 31, 1989, of a 1984 Oldsmobile automobile against Chrysler, Schaumburg Dodge, and the First National Bank of Waukegan (Bank) alleging breach of warranties, violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 262), fraud, and odometer fraud, and seeking to revoke his retail installment contract assigned to the Bank. Schaumburg is located in Cook County, and the Bank is located in Lake County.

Chrysler filed a motion to transfer venue to Cook County on the basis of forum non conveniens, advancing essentially the same arguments as in the case brought by the Carlbergs. Chrysler’s motion was similarly denied.

The motion to transfer the cause to Cook County, in the case brought by Osman, was argued on essentially the same basis as the motion in the case brought by the Carlbergs. Chrysler and Chrysler Credit contended that Du Page County had no real connection to the transaction which was the subject of the lawsuit. Osman’s and the Carlbergs’ responses to the motion noted the proximity of the Du Page County courthouse to both the Cook County courthouse and the parties and also referred to the congestion of the Cook County court docket compared to that of Du Page County.

On appeal, Chrysler and Chrysler Credit maintain that the trial court abused its discretion in both cases when it denied the motions to transfer to Cook County. Essentially they contend that, although Chrysler and Chrysler Credit may have offices and do business in Du Page County, the transaction out of which these cases arose took place in Cook County and, therefore, Cook County is the appropriate forum. The Carlbergs and Osman, on the other hand, contend that the trial court correctly declined to transfer the cases to Cook County. Specifically, the Carlbergs and Osman claim that Du Page County is the proper forum for these two lawsuits because (1) Chrysler and Chrysler Credit have offices and do business in Du Page County; (2) no inconvenience to the parties and witnesses will result if the cases remain in Du Page County; and (3) the court docket in Cook County is congested in comparison to that of Du Page County. The Carlbergs also contend that, because they mailed their notice of revocation to Chrysler and Chrysler Credit’s Du Page County offices, part of the transaction giving rise to their suit took place in Du Page County.

Forum non conveniens is an equitable doctrine that assumes the existence of more than one forum with jurisdiction over the parties and the subject matter. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105.) Under the doctrine, a court may decline to exercise jurisdiction of a cause where it appears that there is another forum with jurisdiction over the parties in which trial can be had more conveniently. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223.) Illinois has long recognized the doctrine of forum non conveniens in cases involving other States, and our supreme court has also recognized the intrastate applicability of the doctrine to transfers between counties within Illinois. Torres v. Walsh (1983), 98 Ill. 2d 338, 344-47.

In its recent decision in Griffith v. Mitsubishi Aircraft Inter national, Inc. (1990), 136 Ill. 2d 101, the Illinois Supreme Court reiterated the factors to be considered in evaluating a defendant’s motion to transfer under the doctrine of forum non conveniens. The trial court should weigh both the private interest factors affecting the litigants and the public interest factors affecting the courts. The private interest factors to be considered are the convenience of the parties, the relative ease of access to the sources of proof, the accessibility of witnesses, and other practical problems associated with trial. The relevant public interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. Griffith, 136 Ill. 2d at 106.

The trial court must also consider a plaintiff’s substantial right to select the forum in which his case is heard. Unless the factors weigh strongly in favor of transfer, the plaintiff’s choice of forum should rarely be disturbed. The plaintiff’s choice deserves less deference, however, when the plaintiff is not a resident of the chosen forum. (Griffith, 136 Ill. 2d at 106.) The plaintiff’s choice of forum is but one factor, along with other relevant private and public interest factors, to be considered in the balancing process. The test is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by the party seeking transfer. (Griffith, 136 Ill. 2d at 107-08.) The trial court is vested with broad discretion in ruling on a forum non conveniens motion, and its decision will be reversed only if it is shown that the court abused its discretion in weighing the relevant considerations. Griffith, 136 Ill. 2d at 106.

We now review the trial court’s denial of the forum non conveniens motion filed in each of the two consolidated cases according to the standards set out above.

In appeal No. 2—89—1199, the private interest factors for the most part do not favor one forum over the other. The Carlbergs are themselves Cook County residents. Beyond this, the record is not entirely clear on the location of the other possible witnesses and records. There can be little doubt, however, that no party would be greatly inconvenienced if the Carlbergs’ action was heard in Cook County rather than Du Page County, or vice versa. The evidence submitted to the trial court showed that the distance between the two county courthouses amounted to only 23 miles, and this figure may have to be discounted to the extent that parties and witnesses may actually reside less than 23 miles from the Du Page County courthouse. In Griffith, our supreme court expressly recognized that the relatively short distance between the Cook and Du Page County courthouses makes it unlikely that trying a case in Cook County would be more costly or inconvenient. (Griffith, 136 Ill. 2d at 113.) Thus, the private interest factors do not weigh heavily either for or against transfer to Cook County.

The public interest factors, on the other hand, strongly favor transfer of the cause to Cook County. First, it is clear that Cook County has a far greater interest in the resolution of this suit than does Du Page County. The Carlbergs’ suit arises from the sale of an automobile which took place in Cook County, and the Carlbergs are residents of Cook County. The only connection to Du Page County is the fact that Chrysler and Chrysler Credit maintain offices and do business there. Although it may be relevant in establishing jurisdiction and venue in Du Page County, the fact that Chrysler and Chrysler Credit transact other business in Du Page County is not an important factor in weighing the forum non conveniens motion. (Bland, 116 Ill. 2d at 226.) In order to justify denial of a defendant’s motion to transfer venue, the forum chosen by plaintiff must have sufficient connection with the litigation to justify imposition of the burden of litigation on its citizens and court system. (Mansfield v. Curtis-Jansen, Inc. (1989), 183 Ill. App. 3d 154, 158.) Cook County has a far greater interest in having this localized controversy decided locally. Griffith, 136 Ill. 2d at 105-06.

Conversely, Du Page County lacks “any relevant or practical connection with this litigation,” and thus it has no interest in providing a forum. (Bland, 116 Ill. 2d at 229.) We note that the courts and community of Du Page County would be burdened financially in providing a forum for this action. The public interest requires that this cause, in which Du Page County has no interest or connection, be transferred to Cook County to prevent Du Page County from being unfairly burdened. (Bland, 116 Ill. 2d at 228.) Although the relative congestion of the Cook County court docket vis-a-vis that of Du Page County is a public interest factor worthy of consideration, the court congestion factor standing alone is insufficient to justify burdening Du Page County with a lawsuit in which it has no interest. See Griffith, 136 Ill. 2d at 113.

We cannot reach a contrary result merely because the Carlbergs mailed their notice of revocation to the Du Page County offices of Chrysler and Chrysler Credit. In Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, the supreme court gave little weight to the fact the plaintiff’s treating physician had an office in the chosen forum. The court reasoned that it would be improper to “allow a plaintiff to easily frustrate the forum non conveniens principle by selecting as a witness a treating physician or expert in what would, in reality, be an inconvenient forum.” (Bland, 116 Ill. 2d at 227.) Here, too, the Carlbergs could frustrate the forum non conveniens principle if they could establish a nexus to a desired forum simply by mailing their notice of revocation to any one of Chrysler or Chrysler Credit’s county offices throughout the State. Therefore, we give this factor little weight.

Finally, we recognize that the Carlbergs have a substantial right to choose the forum in which their cause is to be litigated. However, where, as here, the plaintiff brings suit in a county in which he does not reside, his choice of forum is entitled to less deference. (Bland, 116 Ill. 2d at 228.) We conclude that the relevant factors, when viewed in their totality, so strongly favor transfer of the cause to Cook County that the trial court abused its discretion in denying the forum non conveniens motion.

We reach the same conclusion with regard to the action filed by Osman in appeal No. 2—89—1305. Once again, the private interest factors do not strongly favor one forum over another. The public interest factors, however, strongly favor transfer to Cook County. The only connection to Du Page County is the fact that Chrysler has an office and does business there. The transaction out of which the suit arises took place in Cook County and is apparently unrelated to Chrysler’s Du Page County office. Given that Du Page County has no real interest in the resolution of Osman’s action, the relative lack of court congestion in Du Page County is not sufficient to justify trying the case there. As a matter of public interest, the congestion of one county’s courts cannot alone serve as the basis for transferring a lawsuit to a county which has no interest in the resolution of the cause.

Although Osman’s choice of forum is entitled to substantial consideration, we treat that choice with less deference when the suit is brought in a county where, as here, the plaintiff does not reside. We conclude that the relevant factors, when viewed in their totality, again so strongly favor transfer of the cause to Cook County that it was an abuse of discretion for the trial court to have denied Chrysler’s forum non conveniens motion for transfer.

Accordingly, the orders of the circuit court of Du Page County denying the motions to transfer in case Nos. 2—89—1199 and 2—89—1305 are reversed, and the causes are remanded with directions to transfer them to Cook County.

Reversed and remanded with directions.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE STEIGMANN

text:
      In re MARRIAGE OF JANICE L. CORNALE, Petitioner-Appellant, and DAVID M. CORNALE, Respondent-Appellee.
    Fourth District
    No. 4—89—0868
    Opinion filed June 27, 1990.
    Leonard F. Sacks, of Sacks & Albrecht, of Kankakee, for appellant.

      Fellheimer, Travers & Engelman, Ltd., of Pontiac (William H. Bertram, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Respondent, David Cornale, was awarded child support from his former wife, Janice Cornale, for their daughter, Ann. Janice appeals this order.

Janice and David were divorced in September 1975, and Janice was awarded custody of their two minor children, David Jr. and Ann. David Jr. entered college in 1988, and the parties reached an agreement as to the payment of his expenses. In October 1989, David was awarded custody of Ann pursuant to another agreement.

At the hearing in October 1989 on the issue of Janice’s child support obligation for Ann, Janice testified that her monthly income was $1,872 and her monthly expenses were $1,820. These monthly expenses consisted on $450 for groceries, $40 for automobile insurance, $18.95 for basic cable television, $34.72 for the sewer bill, $30 for the water bill, $70 for the electric bill, $45 for the gas bill, $50 for the telephone bill, $461 for the house payment, $265.58 for a payment on investment property, $100 for the Visa bill, $140 for transportation expenses, and $40 for healthy insurance for the children and herself. Janice had been employed by Commonwealth Edison for the past 11 years and was earning $16.32 per hour. In addition, Janice worked as a waitress on a part-time basis, but she was thinking about quitting this job.

David testified that he earned $50,500 in 1988 and received a 3% raise in 1989. Since Ann had been residing with him, David had spent approximately $500 on her clothing and had been paying her medical bills.

David stated that he holds $8,000 in a savings account and has a retirement account from which he can obtain $65,000. His present wife works 21 hours a week for $8 per hour. David and his wife live in a home worth $60,000, which has a $15,000 mortgage on which he pays $200 per month.

In addition, David owns $25,000 in stock, and has a Corvette worth approximately $12,000 to $14,000 as an investment. David testified he had recently purchased a 1989 Ford for $5,000 in cash. He also testified that if he received child support in excess of what Ann needed, he would deposit it into a savings account for future use.

The circuit court found that the disparity in the parties’ income, $50,000 versus $34,000, was not large and that neither party lived in poverty. After determining that Janice’s net weekly income was $504, the circuit court ordered child support payments in the amount of $90 per week. The court believed that there was “no great reason for going below the statutory minimum” child support payment. However, the trial court decided to deviate slightly from the statutory minimum because of the real estate investment Janice is committed to.

Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) states the following:

“(1) The court shall determine the minimum amount of support by using the following guidelines:
Number of Percent of
Children Supporting Party’s Net Income
1 20%
2 25%
3 32%
4 40%
5 45%
6 or more 50%
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” Ill. Rev. Stat. 1987, ch. 40, par. 505(a).

Janice first alleges that the circuit court erred in calculating her net income. Specifically, Janice claims that the circuit court declined to subtract Janice’s monthly payment of $265.58 for a real estate investment in arriving at her net income.

Section 505(3)(h) of the Act exempts “[ejxpenditures for repayment of debts that represent reasonable and necessary expenses for the production of income” from a parent’s net income for the purpose of calculating child support. (Ill. Rev. Stat. 1987, ch. 40, par. 505(3)(h).) Janice admitted that she purchased the real estate for either investment or retirement. The record contains no indication that these payments were reasonable and necessary for the production of Janice’s income. The property apparently produces no income at the present time. As such, the circuit court did not err when it declined to deduct Janice’s monthly payments for this property in calculating her net income. In re Marriage of Lefler (1988), 185 Ill. App. 3d 677, 684-85, 542 N.E.2d 1, 5.

Janice also contends that the circuit court abused its discretion in requiring her to pay $90 per week as child support in view of the disparity in income and assets between David and her. The trial court determined that the disparity in income, $34,000 versus $50,000, was not great enough to absolve Janice of her child support responsibilities.

In accordance with the statutory guidelines, the trial court calculated the minimum amount of support Janice was to pay as 20% of $504, or $100 per week. After considering the financial resources of Janice and David, the court chose to deviate slightly from the $100 figure and directed Janice to pay child support in the amount of $90 per week. Although the trial court acted correctly in deviating from the statutory guidelines, we conclude that it did not deviate from them far enough.

At the time of the hearing, David was earning approximately 50% more than Janice. In additipn, David possessed more investments than did Janice. Because the financial resources of David were far greater than those of Janice, the trial court abused its discretion in ordering Janice to pay $90 per week in child support.

The facts of the present appeal are substantially similar to those in In re Marriage of Cook (1986), 147 Ill. App. 3d 134, 497 N.E.2d 1029. In Cook, the custodial parent earned 60% more than the noncustodial parent, namely, $36,000 versus $22,500. The appellate court held that the trial court abused its discretion in ordering the noncustodial parent to pay 20% of her net earnings, or $55 per week in child support. In so holding, the court placed emphasis upon the disparity in the parties’ incomes. (Cook, 147 Ill. App. 3d at 136-37, 497 N.E.2d at 1030-31.) The custodial parent’s ability to contribute to the child’s welfare is an important factor to be considered in determining a child support award. See In re Marriage of Meyer (1986), 140 Ill. App. 3d 1031, 1036, 489 N.E.2d 906, 910.

The trial court also should have considered whether the child support award was tailored to the child’s actual needs. When the individual incomes of both parents are more than sufficient to provide for the reasonable needs of the minor child, the court is justified in setting a figure below the statutory guidelines. (In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596.) In the present appeal, David conceded that the entire $90-per-week payment may not be needed and that he would deposit the extra money into a savings account for Ann.

In light of the above, we deem the $90-per-week child support award to be excessive. Accordingly, we reverse and remand for further hearing consistent with the views expressed herein. In our remand, we are not requiring the circuit court to conduct a hearing in which further evidence is to be presented. Instead, in the court’s discretion, it may choose to conduct a hearing in which counsel may argue their respective positions to the court based on the evidence presented prior to this appeal.

Affirmed in part; reversed in part and remanded.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE McCULLOUGH

text:
    CATHERINE KENNEDY, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—89—0931
    Opinion filed June 27, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Brian T. Otwell, of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Catherine Kennedy filed a petition with defendant Secretary of State (Secretary) requesting full reinstatement of her driving privileges. The Secretary denied the petition. On administrative review, the circuit court for Sangamon County reversed the Secretary’s decision, but stayed the order pending this appeal by the Secretary. The Secretary argues its decision was not contrary to the manifest weight of the evidence. For the reasons that follow, we reverse the circuit court.

Plaintiff’s driving privileges were revoked by the Secretary on December 18, 1982, following plaintiff’s November 1982 conviction for driving under the influence of alcohol (DUI). Plaintiff received a second DUI conviction in March 1983 and was convicted of illegal transportation of liquor on April 27, 1983. No injuries occurred in connection with plaintiff’s DUI offenses.

On March 24, 1989, plaintiff requested full reinstatement of her driving privileges or an extension of her restricted driving permit (RDP) issued on October 22, 1987. At a hearing on May 4, 1989, the hearing officer took official notice of the prior proceedings in this matter wherein plaintiff requested reinstatement of her driving privileges in 1986, 1987, and 1988.

At the time of the May 1989 hearing, plaintiff was 30 years old and married with two preschool children. Plaintiff testified she was employed as the bar manager for the American Legion Post 32 in Springfield and had worked for this employer for four years. Plaintiff testified she had not consumed any alcoholic beverages for the past 44/2 years. Plaintiff stated she is a recovering alcoholic but does not belong to a support group like Alcoholics Anonymous (AA). Plaintiff stated she used to go to AA meetings but did not like them because she did not consider the constant reminder of her drinking problem helpful. Plaintiff stated she attends church on Sunday and spends a lot of time with her two children. Plaintiff stated she was not involved in an alcohol-related support group at church but planned on getting more involved when her children got older. Plaintiff stated that because of her children, she does not want to drink ever again.

Plaintiff presented letters from three individuals who attested to plaintiff’s abstinence from alcohol in the previous 21lz to 3 years. Plaintiff also presented an alcohol evaluation done by Paul L. Carlson, a certified substance-abuse counselor, in November 1988. Carlson classified plaintiff as a Level III or alcohol-dependent person. (92 Ill. Adm. Code §1001.410, at 3518 (Supp. 1988).) The report recommended plaintiff complete intensive inpatient or outpatient alcohol treatment followed by a minimum of 22 hours of follow-up counseling. The report also indicated that plaintiff completed her treatment in 1984. Carlson was also one of the individuals who wrote a letter on plaintiff’s behalf. Carlson’s letter dated May 8, 1989, states plaintiff had not attended AA meetings over the past year but remained committed to her own personal program, which involved church attendance and commitment to her family.

The hearing officer found the evidence at the hearing supported the Level III classification in the evaluation report. The hearing officer also noted that while plaintiff presented Carlson’s evaluation in support of her petition for full driving privileges, this report was incomplete because it did not include the fact that plaintiff was taking Darvon and codeine for pain. The pain was related to a problem plaintiff had with her reproductive system. The hearing officer noted plaintiff had (1) experienced blackouts, loss of control, increased tolerance, and loss of friends as a result of her drinking problems in the past; and (2) plaintiff’s score on the Michigan Alcoholism Screening Test (MAST) taken in 1986 indicated alcoholism.

The hearing officer found plaintiff acknowledged she is an alcoholic but plaintiff did not provide any substantiation or documentation for her claims of abstinence or completion of treatment as required by the regulations adopted by the Secretary. The hearing officer gave little weight to the three letters plaintiff provided in support of her abstinence. The most recent treatment was completed by plaintiff after three months in 1984. The hearing officer noted plaintiff’s attitude, as well as that of her husband, toward AA and another treatment plan was negative. The hearing officer found plaintiff had not established an ongoing support system for her alcohol problem, and stated plaintiff’s use of the drugs of Darvon and codeine represented a serious breakdown in plaintiff’s recovery from alcohol dependency.

The hearing officer found plaintiff had in the past been excused from the normal requirements alcoholics must meet prior to reinstatement of their driving privileges. The hearing officer found plaintiff to be sincere and credible, but stated plaintiff had to fulfill the Secretary’s requirements before restoration could be awarded. Specifically, plaintiff had to provide (1) documentation that she completed treatment for alcoholism; (2) documentation of her involvement in a support system; (3) verification of abstinence; and (4) a physician’s report showing physician’s knowledge of plaintiff’s chemical dependency, the reason for prescribing addictive medications, and the type of monitoring in place for such medications. Without the physician’s report, the hearing officer concluded plaintiff must be viewed as having relapsed, making her ineligible for reinstatement of driving privileges. The hearing officer recommended the Secretary deny plaintiff’s petition for full reinstatement and cancel plaintiff’s current RDP.

The Secretary adopted the hearing officer’s findings of fact and recommendations except for the recommendation to cancel plaintiff’s RDP. In an order dated June 6, 1989, the Secretary ordered that plaintiff’s RDP was to remain in effect and denied full reinstatement. In the same order, the Secretary also referred plaintiff's case to the driver services medical review unit for a determination of whether the pain medications would interfere with plaintiff’s ability to operate a motor vehicle. On June 27, 1989, plaintiff filed a complaint for administrative review. On July 5, 1989, a corrected order from the Secretary was issued, correcting various typographical errors in the previous order. No determination from the medical review unit was received until after October 25, 1989, when the circuit court reversed the Secretary and ordered plaintiff’s driving privileges reinstated.

The sole issue presented in this appeal is whether the circuit court erred in reversing the Secretary’s denial of plaintiff’s request for full reinstatement of her driving privileges. Before considering this issue, we address a motion plaintiff filed with this court to supplement the record with a letter plaintiff received from the Illinois Medical Advisory Board (Board), dated November 24,1989.

Plaintiff seeks to supplement the record to counter an argument raised by the Secretary on appeal. Specifically, plaintiff argues the letter is a necessary part of the record because it renders plaintiff’s medical condition, which was raised by the hearing officer in connection with two pain medications plaintiff was taking, moot. Further, the supplement is required because the Secretary argues the circuit court reversed its order without any evidence that plaintiff’s medical condition did not interfere with her driving.

The Secretary argues the motion should be denied because the evidence in the supplement was never considered by the circuit court on administrative review and, therefore, should not be considered by this court. Further, the Secretary points out the issue before this court does not concern the actual results of the referral to the Board, but rather concerns whether the circuit court’s order is against the manifest weight of the evidence.

Supreme Court Rule 329 allows the record on appeal to be amended when the record does not accurately state what occurred in the trial court. (107 Ill. 2d R. 329.) There is no dispute that the Secretary did not have the findings of the Board when he entered his order. Rule 329 does not authorize or allow a party to change the record where, as here, there are no allegations of material omissions or inaccuracies. (Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 894-95, 508 N.E.2d 1080, 1084.) Plaintiff’s motion to supplement the record is denied.

In the alternative, plaintiff asks this court to take judicial notice of the matters contained in the Board’s letter but does not state how or why this court can judicially notice these matters. The Secretary does not respond to plaintiff’s alternative argument.

Judicial notice may be taken of factual evidence where the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159, 166, 449 N.E.2d 812, 815.) A reviewing court may take judicial notice of an administrative decision even though it is subject to further administrative and judicial review. (People ex rel. Carey v. Starview Drive-In Theatre (1981), 100 Ill. App. 3d 624, 627, 427 N.E.2d 201, 205.) Further, a reviewing court may take judicial notice of facts or events not appearing in the record, which disclose no actual controversy exists between adverse parties. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 384 N.E.2d 1309.) However, a reviewing court will not take judicial notice of critical evidentiary material not presented in the court below, especially where the evidence may be significant in the proper determination of issues between the parties. Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 78, 309 N.E.2d 293, 299.

In this case, the hearing officer made a factual finding that plaintiff’s use of potentially addicting medication made her ineligible for reinstatement of full driving privileges. The Secretary adopted this finding, continued plaintiff’s RDP, and referred plaintiff’s case to the Board for a determination as to whether the medication would interfere with plaintiff’s ability to drive. While plaintiff alleges any issue regarding her medical condition is rendered moot by the Board’s finding, plaintiff has not asked that the entire appeal be dismissed on mootness grounds. (Carey, 100 Ill. App. 3d at 628, 427 N.E.2d at 205.) Moreover, we note the hearing officer’s conclusions of law in support of denial of full restoration concern plaintiff’s failure to comply with the regulations by documenting the treatment received and the support system in place. Therefore, this court will not judicially notice new factual evidence not presented in the proceedings below. (Ashland, 18 Ill. App. 3d at 78, 309 N.E.2d at 299.) We now address the merits of plaintiff’s issues.

On review, the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) Only when the court finds the agency’s discretionary authority was exercised in an arbitrary or capricious manner or the decision is against the manifest weight of the evidence is the decision overturned. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) A reviewing court may not reweigh the evidence or make factual findings and an agency’s decision is not contrary to the manifest weight of the evidence merely because the court would have decided the case differently. Berry v. Edgar (1989), 192 Ill. App. 3d 455, 548 N.E.2d 575.

The Secretary has adopted regulations to assist in the process of reissuing an individual’s driving license after a revocation. In pertinent part, these regulations state:

“a) In all applications for reinstatement, RDP’s, or terminations of cancellations, Applicants must submit an alcohol or drug evaluation and evidence of successful completion of an alcohol- or drug-related driver remedial course and/or evidence of successful completion of treatment or proof of adequate rehabilitative process.
* * *
b) Before any driving relief will be granted, the Applicant must prove by clear and convincing evidence; that he/she does not have a current problem with alcohol or other drugs; that he/she is a low or minimal risk to repeat his/her past abusive behaviors and the operation of a motor vehicle while under the influence of alcohol or other drugs; and that he/she has complied with all other standards as specified in this Subpart D. If the evidence establishes that the Applicant has had an alcohol/ drug problem, the Applicant must also prove that said problem has been resolved.
* * *
3) Applicants classified as Problematic Use, Dependent (Level III) must document abstinence as required in subsection (e) below and compliance with all treatment recommendations of his/her evaluator and must prove that he/she has established an ongoing support/recovery program ***.
* * *
i) When the Petitioner has had alcoholism/ drug treatment he/she should document, at a minimum, the following:
1) Name, address and telephone number of treatment center.
2) The type and length of treatment (include dates).
3) A summary of the Applicant’s involvement in treatment, with particular attention to the quality of participation and the overall response of the Applicant during treatment.
4) Any recommendations for aftercase or follow-up support, and an indication of Applicant’s participation, if applicable.
5) A prognosis in terms of the Applicant’s continued stability and relapse potential.
6) The dated signature of the professional staff person providing the treatment information.” (Emphasis added.) 92 Ill. Adm. Code, §1001.440, at 3520, 3521, 3522 (Supp. 1988).

The Secretary argues plaintiff failed to prove successful completion of alcoholism treatment and failed to establish an ongoing support system. Plaintiff argues strict compliance with the regulations is not required in this case because previous hearing officers concluded plaintiff had an ongoing and successful support system and treatment documentation is not required because all recommended treatment was completed in 1984.

The hearing officer’s conclusions of law were adopted by the Secretary. The hearing officer’s conclusions were that (1) plaintiff is an admitted alcoholic with more than one year of abstinence who must provide evidence of a support system to help with maintaining the abstinence; (2) plaintiff failed to provide independent proof of her abstinence and failed to prove she had an established support system to maintain the abstinence; (3) plaintiff failed to prove she had resolved her alcohol-drug problem with documentation of completion of the recommended treatment program; and (4) plaintiff failed to prove she would be a safe and responsible driver who would not endanger the public safety and welfare.

There is no dispute that plaintiff is classified as alcohol-chemically dependent (Level III) and, further, that she failed to comply with the Secretary’s regulations. Plaintiff’s argument does not negate the Secretary’s requirements which, we note, use such terms as “should *** at a minimum,” and “must.” (Lamborn v. Edgar (1989), 178 Ill. App. 3d 814, 533 N.E.2d 1008.) Plaintiff’s proof of completion of alcoholism treatment falls short of the required documentary evidence. Likewise, plaintiff’s statements that she had a recovery plan in place were not independently substantiated. Plaintiff’s husband, who did not testify at the 1989 hearing, had previously been unsupportive with plaintiff’s treatment and attendance at AA meetings.

Our review of the record establishes that one hearing officer found plaintiff was participating in a self-help program. This finding was based on the same evidence that plaintiff’s ongoing support system is her family. However, this finding does not bind the later hearing officers. Further, we believe independent substantiation of this statement through the testimony of plaintiff’s husband, friends, or family would satisfy the Secretary’s regulations.

In order for the circuit court to find the Secretary’s decision to be against the manifest weight of the evidence, the court must determine, after reviewing the evidence in the light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s decision. (Craig v. Edgar (1988), 165 Ill. App. 3d 270, 519 N.E.2d 112; Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 492 N.E.2d 929.) We conclude the Secretary’s decision is not contrary to the manifest weight of the evidence and, therefore, reverse the circuit court.

Reversed.

GREEN and STEIGMANN, JJ., concur.