author: JUSTICE GIANNIS

text:
    PANAGIOTIS ROGARIS et al., Plaintiffs-Appellants, v. GORDON OLIVER et at., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 91—0520
    Opinion filed April 23, 1993.

      Joshua Sachs and Harvey Walner & Associates, both of Chicago, for appellants.
    Jesmer & Harris, of Chicago (George H. Klumpner, of counsel), for appellees.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiffs instituted this action seeking recovery for personal injuries sustained when their vehicle collided with a taxicab owned by defendant Yellow Cab Company (hereinafter Yellow Cab) and operated by defendant Oliver. The complaint asserted that Oliver was liable for his negligent operation of the cab and that Yellow Cab was vicariously liable for the acts of its agent under the doctrine of respondeat superior. The trial court dismissed plaintiffs’ claims against Oliver pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) for lack of diligence in effecting service of process. Thereafter, the court granted summary judgment in favor of Yellow Cab, finding that the dismissal of the claims against Oliver was an adjudication on the merits and precluded plaintiffs’ cause against Yellow Cab. Plaintiffs appeal, contending that the trial court erred in (1) refusing to permit the plaintiffs to voluntarily dismiss their complaint against defendant Oliver with prejudice, and (2) entering summary judgment in favor of defendant Yellow Cab based upon the dismissal of the claims against its agent.

Plaintiffs instituted this action on August 11, 1987, seeking recovery for personal injuries sustained in an automobile collision. The one-count complaint asserted that plaintiffs were injured on August 14, 1985, when the vehicle in which they were riding collided with the taxicab operated by defendant Oliver. Plaintiffs alleged that their injuries resulted from the negligent acts of the defendants, including (a) the failure to keep a proper lookout for other motor vehicles; (b) proceeding at an excessive rate of speed; (c) the failure to decrease speed so as to avoid colliding with the plaintiffs’ vehicle; (d) the failure to give an audible warning of the approach of his vehicle; (e) the failure to equip the taxicab with proper brakes; and (f) the failure to keep the motor vehicle under proper control.

The summons, issued August 11, 1987, indicated that defendant Oliver was to be served at 845 West Agatite in Chicago, Illinois. Yellow Cab was to be served through its registered agent, Lois Schuman, at 1730 South Indiana Avenue in Chicago, Illinois. The return of service reflected that defendant Yellow Cab was served through its agent on August 18, 1987. The record indicates that service was attempted for defendant Oliver on three separate occasions, but the summons was returned not served on September 3, 1987. The record does not reflect that an alias summons was ever issued against defendant Oliver.

Defendant Yellow Cab filed an appearance and jury demand on September 9, 1987. On that same date, defendant Yellow Cab Company filed its answer which denied the allegations of negligence raised in the complaint.

On September 7, 1990, counsel for Yellow Cab filed a motion to dismiss the claims against defendant Oliver. This motion was predicated upon Supreme Court Rule 103(b) and sought dismissal based upon the plaintiffs’ lack of diligence in serving Oliver. The motion asserted that the plaintiffs’ cause should be dismissed because five years had elapsed since the date of the occurrence and three years had elapsed since the filing of the complaint. Moreover, three years had elapsed since the expiration of the statute of limitations applicable to plaintiffs’ claims. This motion also sought entry of an order that the dismissal of the claims against Oliver was an adjudication on the merits of the plaintiffs’ cause of action.

On September 27, 1990, plaintiffs filed a motion to voluntarily dismiss their claims against defendant Oliver with prejudice. Plaintiffs’ motion requested that the cause proceed against the remaining defendant Yellow Cab. Plaintiffs then filed a response to the Rule 103(b) motion to dismiss on October 9, 1990. Yellow Cab’s reply asserted that the Rule 103(b) motion should be decided before plaintiffs’ motion to voluntarily dismiss with prejudice the claims against Oliver.

On January 14, 1991, the trial court granted defendant’s Rule 103(b) motion and stated that the dismissal of the claim against Oliver was final under Supreme Court Rule 304(a) with no just reason to delay enforcement or appeal thereof. The dismissal order further held that the plaintiffs’ cause against defendant Yellow Cab remained.

The following day, defendant Yellow Cab filed a motion for summary judgment, contending that the dismissal of the claims against Oliver, its agent, was an adjudication on the merits, and, under the doctrine of res judicata, the cause against Yellow Cab should be dismissed where there were no genuine issues of material fact. On January 25, 1991, the trial court granted defendant Yellow Cab’s motion for summary judgment. The trial court also denied plaintiffs’ previously filed motion for voluntary dismissal of the claim against defendant Oliver. Plaintiffs have appealed the Rule 103(b) dismissal of Oliver and the entry of summary judgment in favor of Yellow Cab.

We first address plaintiffs’ challenge of the trial court’s dismissal of their claims against defendant Oliver under Supreme Court Rule 103(b) for lack of due diligence in effecting service of process.

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 134 Ill. 2d R. 103(b).

Dismissal under Rule 103(b) is within the sound discretion of the trial court, and the court’s judgment will not be disturbed absent an abuse of discretion. Segal v. Sacco (1990), 136 Ill. 2d 282, 286, 555 N.E.2d 719; Viking Dodge Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 188, 514 N.E.2d 248.

The instant record clearly establishes that defendant Oliver was named as a party to the action on August 11, 1987, but was never served. Thus, the trial court acted within its discretion in dismissing the cause of action asserted against Oliver. Plaintiffs have not argued that the 103(b) dismissal was improper because they exercised reasonable diligence in serving Oliver. Rather, they contend that the trial court erred in denying their motion for voluntary dismissal of the claims against this defendant. We disagree.

Initially, we note that the motion brought by the plaintiffs sought dismissal with prejudice of the claims against defendant Oliver. As such, the filing of this motion was not authorized under section 2— 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), which provides for voluntary dismissal without prejudice. The Code of Civil Procedure does not provide for voluntary dismissal with prejudice under section 2 — 1009, and plaintiffs have not cited any other section of the Code which authorizes the filing of such a motion.

Plaintiffs assert that the court erroneously determined that the Rule 103(b) motion to dismiss took precedence over their subsequent motion to voluntarily dismiss with prejudice.

The trial court’s conduct in this case was guided by the Illinois Supreme Court’s decisions in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, and Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858.

In O’Connell, the supreme court specifically held that a Rule 103(b) motion must be heard on its merits prior to a ruling on a plaintiff’s motion for voluntary dismissal under section 2 — 1009. This holding was premised upon the court’s obligation to administer justice fairly and promptly. (O’Connell, 112 Ill. 2d at 282.) In Gibellina, the court ruled that a trial court has discretion to hear and decide a motion which may dispose of the case and which has been filed prior to a motion for voluntary dismissal. (Gibellina, 127 Ill. 2d at 138.) These rulings were designed to prevent abuse of the plaintiff’s right to voluntarily dismiss a claim and then refile later in order to avoid an adverse ruling or the consequences of dilatory conduct. See Gibellina, 127 Ill. 2d at 137; O’Connell, 112 Ill. 2d at 282.

Applying the reasoning employed in these decisions to the case at bar, we hold that the trial court’s conduct was proper. The record reflects that defendant Oliver was never served. The Rule 103(b) motion was filed three years after the expiration of the statute of limitations and three weeks before plaintiffs filed their motion for voluntary dismissal. Based upon these facts, the trial court acted properly in granting the Rule 103(b) motion to dismiss prior to addressing the plaintiffs’ motion for voluntary dismissal with prejudice.

Plaintiffs attempt to distinguish this case from O’Connell and Gibellina, contending that their motion for voluntary dismissal with prejudice cannot be compared to a motion under section 2 — 1009. Plaintiffs assert that the reasoning employed in those cases should not be applied here because the filing of their motion did not constitute an abuse of the right to voluntarily dismiss and refile.

Yet, a dismissal with prejudice constitutes an adjudication on the merits which bars the plaintiff from maintaining another action on the same claim. Black’s Law Dictionary 469 (6th ed. 1990); Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 487, 424 N.E.2d 679.

Plaintiffs acknowledge that an involuntary dismissal of their claim against defendant Oliver pursuant to Rule 103(b) would be an adjudication on the merits which would preclude an action against Yellow Cab under the doctrine of respondeat superior. (See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122-23, 382 N.E.2d 1217; Martin v. Yellow Cab Co. (1990), 208 Ill. App. 3d 572, 575-76, 567 N.E.2d 503.) Plaintiffs also specifically admit that they filed their motion for voluntary dismissal with prejudice in an effort to avoid an adjudication on the merits of their claims against Oliver and the resulting res judicata effect on their claims against Yellow Cab. Thus, contrary to the plaintiffs’ assertions, this was precisely the type of situation contemplated by the supreme court in O’Connell and Gibellina and which those cases determined should not be permitted. Consequently, the trial court’s allowance of the defendant’s Rule 103(b) motion to dismiss was appropriate, and the court was not required to consider plaintiffs’ motion for voluntary dismissal prior to deciding the Rule 103(b) motion.

We next consider plaintiffs’ argument that the trial court erred in granting summary judgment in favor of Yellow Cab based upon the dismissal of the claim against Oliver. In support of this argument, plaintiffs assert that the defendant’s answer denied the allegation contained in paragraph 3(e) of the one-count complaint which stated that the defendants had failed to equip the taxicab with proper brakes.

A motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397.) Although the respondent need not prove his case at the summary judgment stage, he may be required to present evidence which demonstrates the existence of a triable issue of fact. Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 221, 490 N.E.2d 104.

In order to recover for the failure to equip the taxicab with proper brakes, the plaintiffs would be obligated to present some evidence that the brakes were inadequate, faulty, or defective. The record reveals that plaintiffs never initiated any discovery as to the condition of the brakes and failed to present an affidavit by an expert witness which would support a claim that the brakes were inadequate. There is no indication that plaintiffs ever requested that the cab be impounded or that the brakes be produced for inspection. In addition, plaintiffs did not request production of any maintenance records relating to the cab or brakes. Thus, plaintiffs presented no evidence to the trial court which would support their claim that defendant Yellow Cab failed to equip the taxi with proper brakes. Based upon this record, we hold that the plaintiffs have failed to present any evidence which would demonstrate the existence of a triable issue of fact. Consequently, the entry of summary judgment in favor of Yellow Cab was proper.

For the foregoing reasons, the dismissal of defendant Oliver under Supreme Court Rule 103(b) is affirmed, and the entry of summary judgment in favor of Yellow Cab is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    MILDRED ELDRIDGE, Plaintiff-Appellee, v. THELMA ELDRIDGE, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 92—2036
    Opinion filed April 23, 1993.

      Mark S. Simon, of Chicago, for appellant.
    Smith, Williams & Lodge, Chartered, of Chicago (Patrick J. Cullinan, of counsel), for appellee.
   JUSTICE GIANNIS

delivered the opinion of the court:

In this expedited appeal, defendant, Thelma Eldridge, challenges the issuance of a preliminary injunction which restrained her from exercising ownership rights pertaining to certain real property located a 4032 South Ellis in Chicago, Illinois. The court enjoined defendant from exercising any rights of ownership in the residential property, including pursuit of a forcible entry and detainer action pending against the plaintiff, Mildred Eldridge, the mother of the defendant. The preliminary injunction further restrained the defendant from exercising ownership rights in any of her personal assets, including funds held in two specifically identified bank accounts. The injunction order provided that defendant was permitted unrestricted use of only the funds held in a certain checking account.

On appeal, defendant asserts that (1) plaintiff’s claim was barred by the five-year statute of limitations, (2) the grant of the preliminary injunction constituted an abuse of discretion, and (3) the trial court exceeded its discretion by restraining the use of defendant’s assets which were not in dispute between the parties.

The record reveals that the plaintiff, Mildred Eldridge, instituted this action seeking to quiet title and to impose a constructive trust upon certain residential property, the legal title to which was held by defendant, Thelma Eldridge, the adult daughter of the plaintiff. Plaintiff’s complaint requested that the deed held by her daughter be declared invalid and that plaintiff be vested with title to the subject property which was located at 4032 South Ellis in Chicago, Illinois. The complaint was filed on May 19,1992.

Concurrent with the filing of her complaint, plaintiff filed a motion for a temporary restraining order and for a permanent injunction. By this motion, plaintiff sought to enjoin her daughter from exercising any ownership rights in the subject property. In her motion, plaintiff requested that plaintiff be precluded from proceeding with any litigation relating to the property, pending a hearing on the motion for a preliminary injunction.

On May 20, 1992, the trial court entered an ex parte temporary restraining order precluding defendant from exercising any ownership rights in the subject property, including pursuit of the forcible entry and detainer action previously filed by defendant seeking to remove her mother from the property. The temporary restraining order provided that it was to expire on May 28,1992.

On May 21, 1992, defendant filed a motion to dissolve the temporary restraining order which asserted, inter alia, that plaintiff had not established a certain and clearly ascertainable right and that she had not shown a likelihood of success on the merits because her claim was barred by the doctrine of laches and because it was not brought within the applicable five-year limitations period.

Upon the expiration of the temporary restraining order on May 28, 1992, the trial court scheduled a hearing on the plaintiff’s request for a preliminary injunction for the following day.

When the matter was called for hearing on May 29, 1992, counsel for defendant moved to strike plaintiff’s request for a preliminary injunction, arguing that the evidence before the court did not support the imposition of a constructive trust and that plaintiff’s claim was barred by the statute of limitations and by the doctrine of laches. The trial court denied defendant's motion and proceeded with an evidentiary hearing on the request for a preliminary injunction.

The evidence adduced at the hearing on plaintiff’s request for injunctive relief established that plaintiff and her children moved into the subject property on July 31, 1970. At that time, defendant was 17 years old, and her son, fathered by Marque Raspberry, was 14 months old. Defendant and her son also moved into the house with plaintiff and her other children. The purchase price of the property was $6,000. Of this amount, $3,000 was paid to the seller as a down payment, and the remaining $3,000 was to be paid under the terms of a mortgage note executed by Raspberry in favor of the property seller.

After the closing, plaintiff and her family moved into the home along with defendant and her son. Defendant moved to Wisconsin in 1971 to attend school. She later married and moved to New Jersey, and she did not return to Illinois to live until 1980. Defendant’s son remained with plaintiff and was raised by her in the subject property until he left to attend college.

At the hearing, plaintiff testified that she and her family, including defendant’s son, have lived in the home since 1970. At the time of the hearing, plaintiff earned about $500 per month providing child care in her home, and she testified that she would be unable to do child care if she did not live in the subject property.

Plaintiff stated that in 1970, she had been looking for larger living quarters for her family because they needed more room, and she asked Raspberry to assist her in purchasing the subject property. Plaintiff testified that she and Raspberry paid the $3,000 down payment on the purchase price. Plaintiff stated that she contributed $2,000, and Raspberry contributed $1,000 in addition to $500 in closing costs. According to plaintiff, she and Raspberry agreed that she was the actual owner of the house despite the fact that Raspberry held the title in his name, and the title to the property was put in Raspberry’s name because plaintiff did not want to jeopardize her entitlement to public assistance benefits. Plaintiff testified that Raspberry had promised to transfer title to plaintiff’s son after the mortgage was paid.

Plaintiff testified that she placed her trust in Raspberry because of his business experience, but acknowledged that prior to the purchase of this property, she had not had any monetary or business relationship with Raspberry.

In accordance with her agreement with Raspberry, plaintiff made the monthly payments due on the mortgage note in the amount of $91.27 until it was paid in full in July 1975. Plaintiff also paid the utility bills and paid the real estate taxes on the property until approximately 1980. In addition, plaintiff paid to have the chimney and part of the roof repaired, bought a new boiler, and had the exterior porch repaired.

According to plaintiff, Raspberry consented to assist her in the purchase of the home so that his son, who was being cared for by plaintiff, would have a place to live. Plaintiff testified that Raspberry never exercised any ownership rights in the property and never requested any rent payments from her. Plaintiff testified that in July 1975, she consulted with an attorney and had the necessary papers drafted so that Raspberry could convey title to the property to herself or to her son. Plaintiff stated that Raspberry did not appear at the scheduled meeting with her attorney and did not transfer title to the property. Plaintiff stated that Raspberry refused to transfer title to her son, in contravention of his promise to do so after the mortgage was paid in full.

Plaintiff testified that in 1980 defendant moved back into the home and lived with plaintiff and the rest of her family. At that time, she and defendant discussed the fact that they needed to obtain title to the property in order to do necessary repairs. After this discussion, they agreed that Raspberry might transfer title to defendant, who would then hold title for plaintiff. According to plaintiff, defendant agreed to acquire title to the property from Raspberry and hold it for her mother in repayment for the fact that plaintiff had taken care of her son. Plaintiff testified that at this time, she placed her trust and confidence in defendant based upon the fact that defendant was her daughter.

Plaintiff stated that defendant lived in the house with her until February 1992 and has never demanded rent payments from her. According to plaintiff, she understood that she was the actual owner of the house even after Raspberry had transferred title to the defendant. Plaintiff testified that in March 1992, after defendant moved out of the house, she received a notice of eviction which stated that she was to vacate the premises by April 30,1992.

Raspberry testified that even though he never lived in the home and did not have a key, he purchased the home so that his son and the defendant would have a suitable place to live. Raspberry denied that plaintiff had contributed toward the down payment. Raspberry acknowledged that he and plaintiff agreed that she was to make the monthly mortgage payments in lieu of rent, but he denied that the property was to belong to her. Raspberry also specifically denied that he had ever agreed to transfer title to the property to plaintiff or to her son and further denied that plaintiff or her son ever requested that he transfer title to either of them.

Defendant denied that she ever had a close relationship with her mother and specifically denied that she had agreed to hold the title to the property for her mother. Defendant stated that she moved back into the subject property in 1980 because her son was living there. Defendant testified that the home was in need of various repairs, and Raspberry agreed to convey title to her so she could obtain a loan to finance the repairs which Raspberry could not afford.

Defendant obtained a warranty deed from Raspberry in October 1980. After Raspberry conveyed title to her, defendant assumed responsibility for the tax liability on the property. Defendant also mortgaged the property and used the proceeds of those loans to make improvements and necessary repairs to the home. Defendant originally obtained a loan in the amount of $35,000, which she subsequently refinanced in the amount of $72,000. At the hearing, defendant testified to making specific repairs and improvements which cost in excess of $50,000. Defendant acknowledged that she used a portion of the mortgage proceeds to pay personal bills. Defendant also testified that she had made the mortgage payments since approximately 1982, and at the time of the hearing, those payments were in the amount of $709. During the 12-year period from 1980 to 1992, plaintiff continued to live in the home and paid only the utility bills but never paid any rent to defendant.

Defendant stated that in February 1992, she left the house because she could not get along with her mother and because she felt threatened. In March 1992, defendant notified plaintiff of her intent to evict her mother from the property. Plaintiff’s complaint and motion for injunctive relief were filed on May 19, 1992.

We initially consider whether the trial court abused its discretion in granting the preliminary injunction.

A preliminary injunction may issue where the petitioner has established (1) a certain and clearly ascertainable right in need of protection, (2) irreparable injury without injunctive relief, (3) an absence of adequate legal remedies, and (4) a likelihood of success on the merits. (Decker, Berta & Co. v. Berta (1992), 225 Ill. App. 3d 24, 27, 587 N.E.2d 190; Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1063, 566 N.E.2d 785.) A showing that she is likely to succeed on the merits does not require the petitioner to make out a case that will in all events warrant relief on the merits. Rather, she must only raise a fair question as to the existence of the right claimed and that she will be entitled to the relief prayed for if the proof should sustain her allegations. Fischer, 207 Ill. App. 3d at 1066; Tierney v. Village of Schaumburg (1989), 182 Ill. App. 3d 1055, 1061, 538 N.E.2d 904.

The purpose of a preliminary injunction is to preserve the status quo, which is the last peaceable and uncontested status preceding the pending controversy. (Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 849, 577 N.E.2d 1323; Fischer, 207 Ill. App. 3d at 1064; Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 502, 422 N.E.2d 1166.) In deciding whether to grant a motion for a preliminary injunction, the trial court must balance the equities and relative inconvenience to the parties and determine whether a greater burden will be imposed on the defendant by granting the motion than on the plaintiff by denying it. (Decker, Berta & Co., 225 Ill. App. 3d at 27.) Because the issuance or denial of a preliminary injunction is addressed to the trial court’s sound discretion, a court of review should confine itself to a determination of whether the trial court has properly exercised its broad discretionary powers, and each substantive issue should be considered only to the extent necessary to determine whether the trial court abused its discretion. A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791, 514 N.E.2d 45.

Upon examination of the record in light of the requirements set forth above, we find that the trial court did not abuse its discretion in granting the injunctive relief requested by the plaintiff.

A constructive trust is raised by operation of law and is created when a court finds that the party in possession of wrongfully acquired property is the constructive trustee of the property because it would be inequitable for that party to retain possession of the property. (Suttles v. Vogel (1988), 126 Ill. 2d 186, 193, 533 N.E.2d 901.) Imposition of a constructive trust is justified where (1) actual or constructive fraud is considered as equitable grounds for raising the trust, (2) there is a fiduciary duty and a subsequent breach of that duty, or (3) duress, coercion or mistake is present. Sutiles, 126 Ill. 2d at 193.

A confidential or fiduciary relationship exists where one party reposes special trust and confidence in another who accepts that trust and confidence and thereby gains superiority and influence over the subservient party. (Chicago Land Clearance Comm’n v. Yablong (1960), 20 Ill. 2d 204, 207, 170 N.E.2d 145; Klass v. Hallas (1959), 16 Ill. 2d 161, 164, 157 N.E.2d 261.) It encompasses both technical fiduciary relations and those informal relations which exist whenever one person trusts in and relies upon another. (Klass, 16 Ill. 2d at 164.) This type of relationship includes not only the legal and technical relations such as guardian and ward, attorney and client, or principal and agent, but also extends to relations which may be moral, social, domestic or merely personal. Klass, 16 Ill. 2d at 164.

Factors to be considered in the determination of whether a fiduciary relationship exists include the degree of kinship, if any, disparity in age, health, mental condition, education and business experience, the extent to which the allegedly servient party entrusted his business or financial affairs to the other and the degree of trust and confidence placed in the dominant party. (McCartney v. McCartney (1956), 8 Ill. 2d 494, 499, 134 N.E.2d 789; Kester v. Crilly (1950), 405 Ill. 425, 432, 91 N.E.2d 419; Malunney v. Meade (1977), 45 Ill. App. 3d 473, 476, 359 N.E.2d 1091.) A close familial relationship and normal love, affection, and trust are not themselves sufficient to establish a fiduciary relationship. Chicago Land Clearance Comm’n, 20 Ill. 2d at 207; Klass, 16 Ill. 2d at 164; Bremer v. Bremer (1952), 411 Ill. 454, 465, 104 N.E.2d 299.

Plaintiff’s motion for injunctive relief alleged that she had a fiduciary and confidential relationship with Raspberry and with the defendant. Plaintiff testified that she placed her trust and confidence in Raspberry because of his superior business experience and that she placed her trust and confidence in the defendant based upon their close relationship as mother and daughter.

Plaintiff also testified that when she asked Raspberry to assist her in purchasing the subject property, he added $1,500 to plaintiff’s $2,000 toward the down payment because he wanted his son, who was being cared for by plaintiff, to have a suitable place to live. Plaintiff’s testimony indicated further that she and Raspberry agreed that she was the actual owner of the house despite the fact that Raspberry held the title in his name and that Raspberry subsequently refused to follow through on his promise to transfer title to plaintiff’s son after the mortgage was paid. It was undisputed that plaintiff made the monthly payments due on the mortgage note until it was paid in full. In addition, plaintiff paid the utility bills, paid the real estate taxes on the property until approximately 1980, and paid for certain repairs to the property. Plaintiff testified that Raspberry never exercised any ownership rights in the property and never requested any rent payments from her.

Plaintiff testified further that defendant agreed to acquire title to the property from Raspberry and hold it for her mother in repayment for the fact that plaintiff had taken care of her son. Plaintiff stated that defendant lived in the house with her until February 1992 and has never demanded rent payments from her. According to plaintiff, she understood that she was the actual owner of the house even after Raspberry had transferred title to the defendant.

The trial court found the testimony of the plaintiff credible and, in balancing the equities and relative inconvenience to the parties, determined that no greater burden would be imposed on the defendant by granting the motion than on the plaintiff by denying it. (See Decker, Berta & Co., 225 Ill. App. 3d at 27.) Because the plaintiff presented sufficient evidence to raise a fair question as to her right in the property and the imposition of a constructive trust, we find that the trial court did not abuse its discretion in granting the preliminary injunction.

In addition, plaintiff testified that she and her family, including defendant’s son, have lived in the home since 1970. At the time of the hearing, plaintiff earned about $500 per month providing child care in her home, and she testified that she would be unable to do child care if she did not live in the subject property. Plaintiff’s residence and provision of child care in the home was the last peaceable and uncontested status preceding the pending controversy, and the grant of the preliminary injunction was proper to preserve the status quo. Fischer, 207 Ill. App. 3d at 1064.

We next consider defendant’s claim that the trial court exceeded its discretion by restraining the use of defendant’s assets which were not in dispute between the parties.

Plaintiff’s request for injunctive relief sought only to enjoin defendant from exercising any rights of ownership, including the right to convey the property and the right to pursue the forcible entry and detainer action then pending against the plaintiff. In addition to this relief, the preliminary injunction entered by the court precluded defendant from exercising any ownership rights in all of her personal property, including funds held by her in two specified bank accounts.

Review of the record reveals that plaintiff never made any request for an accounting of the mortgage proceeds obtained by defendant, and plaintiff never sought any restriction on defendant’s use of funds held in her personal bank accounts. By including these restrictions in the injunction order, the trial court went far beyond the relief requested and exceeded the scope of the hearing on plaintiff’s motion.

The issues in the case are created by the allegations in the pleadings, to which proof must correspond, and a party cannot obtain relief based upon proof without allegations. (Berg & Associates, Inc. v. Nelsen Steel & Wire Co. (1991), 221 Ill. App. 3d 526, 534, 580 N.E.2d 1198.) Considering the record before the court, we believe that the trial court’s restriction of defendant’s use of her personal property and the funds in the specified bank accounts constituted relief which was beyond that requested and which was not supported by the pleadings or the proof presented. We hold, therefore, that the trial court exceeded its discretion in granting such relief. Consequently, we vacate that portion of the order which restricted defendant’s use of the funds held in the two specified bank accounts.

Finally, we address defendant’s assertion that the plaintiff’s claim was barred because it was not brought within the five-year period of limitations.

It is established that actions which seek the imposition of constructive trusts are subject to the operation of the five-year statute of limitations. (David v. Russo (1980), 91 Ill. App. 3d 1023, 1028, 415 N.E.2d 531; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 887, 374 N.E.2d 670; Ill. Rev. Stat. 1991, ch. 110, par. 13-205.) The precise date of plaintiff’s discovery of her cause of action is ordinarily a question of fact and must be determined by the trier of fact. County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 153-54, 485 N.E.2d 1076; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416-17, 430 N.E.2d 976.

The scope of our review is confined to a determination of whether the trial court abused its discretion in granting the preliminary injunction (A.B. Dick Co., 159 Ill. App. 3d at 791), and our holding that there was no abuse of discretion is not a determination on the merits of the case (Whitaker v. Pierce (1976), 44 Ill. App. 3d 148, 151, 358 N.E.2d 61). Thus, it is the obligation of the trial court to decide, as a matter of fact, when the plaintiff became aware of her claim for a constructive trust and whether she asserted that claim within the five-year period of limitations.

For the foregoing reasons, we affirm that portion of the order enjoining defendant from exercising ownership rights in the subject property, vacate the portion of the order restricting defendant’s use of the funds held in her personal bank accounts, and remand the cause to the circuit court of Cook County for further proceedings not inconsistent with this opinion.

Affirmed in part; vacated in part and remanded.

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


author: JUSTICE CAHILL

text:
    PATRICIA SMALL, Plaintiff-Appellant, v. PRUDENTIAL LIFE INSURANCE COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 92—1104
    Opinion filed April 29, 1993.
    Rehearing denied May 26, 1993.

      John W. Flynn, of Wood Dale, for appellant.
    Hubert 0. Thompson and Ellen E. Douglass, both of Carney & Brothers, Ltd., of Chicago, for appellees.
   JUSTICE CAHILL

delivered the opinion of the court:

The plaintiff, Patricia Small, beneficiary of an insurance policy on the life of her husband, Ronald Small, sued the defendant, Prudential Life Insurance Company, for failure to indemnify her when Ronald died. The defendant filed a counterclaim for rescission, alleging misrepresentations in the policy application. After a bench trial, the court found in favor of the defendant. On appeal, the plaintiff contends that the trial court’s decisions that the decedent made a misrepresentation and that the misrepresentation was material were against the manifest weight of the evidence. She also contends that the defendant did not prove that the application was attached to the policy when it was issued, as required by law, and that the court erred in admitting the application in evidence. We affirm.

The defendant issued the decedent a life insurance policy dated May 9, 1985, for $100,000. Before the policy was issued, the decedent underwent a required medical exam. On May 9, 1985, Dorothy Lang, a registered nurse employed by Vital Measurements, went to the Smalls’ home and administered the exam. She also asked them questions about Mr. Small’s medical history and wrote the responses on the application. This litigation is based on the responses recorded for three questions. On the application form, the “Yes” box was marked for the following question.

“7. Has the person examined ever:
* * *
b. been in a hospital, sanitarium or other institution for observation, rest, diagnosis or treatment?”

The “No” box was marked for the next question.

“8. Has the person examined ever been treated by a doctor for or had any known sign of:
* * *
f. nervous trouble, convulsions, epilepsy or mental disorder?”

Question 12 asks for the full details of any answer to questions 6 through 11 which was marked “yes.” In response to this question, the nurse wrote that the decedent was hospitalized in 1965 for stomach ulcers. She also included the decedent’s visits to doctors in 1965 and 1984.

In addition to the 1965 hospitalization, the decedent, in fact, had been hospitalized from January 2, 1983, to February 12, 1983, from March 27, 1983, to April 7, 1983, and from July 26, 1984, to August 18, 1984, for major depressive disorder. These three hospital stays were not disclosed on the application. At the bottom of the application is the statement, “I declare that, to the best of my knowledge and belief, the above statements are complete and true.” Below this statement is the decedent’s signature.

On November 3, 1986, Mr. Small died from cardiac arrest caused by a ruptured aneurysm. Because his death occurred within two years after the policy was issued, the defendant contested indemnity under the terms of the insurance contract. The trial court found that the decedent failed to disclose “essential facts requested in the application” and that the evidence was “overwhelming, uncontradicted and inherently persuasive that the policy would not have been issued if all the facts had been known.”

The plaintiff first argues on appeal that the court’s decision that the decedent made a misrepresentation was against the manifest weight of the evidence and that the defendant should be estopped from asserting misrepresentation. She cites Good v. National Life & Accident Insurance Co. (1976), 37 Ill. App. 3d 831, 347 N.E.2d 460, which states that when an applicant gives correct oral answers which are incorrectly recorded by the authorized agent, the insurer cannot rely on the false answers to avoid the policy. The plaintiff does not contest that the decedent was hospitalized three times for depression, but instead argues that she and the decedent told the nurse about the hospitalizations for depression and that the nurse failed to record this information. She argues further that her testimony was uncontradicted because the nurse did not testify.

The trial court found that the plaintiff suffered a “credibility gap” on this issue. The plaintiff testified at trial that she told the nurse about the decedent’s depression and the dates that he was in the hospital. But she was impeached on cross-examination with her deposition testimony. At her deposition the plaintiff was asked, “And you told [the nurse] the dates that [decedent] was at those three hospitals?” The plaintiff replied, “She didn’t ask the dates.” The plaintiff further testified at trial that she also told “Carol” about the decedent’s depression. Carol Murphy was employed by the defendant and completed the portion of the decedent’s application which did not include any medical information. Carol Murphy testified that the Smalls told her nothing about the decedent’s medical history.

We find that the evidence supports the court’s conclusion that the decedent made a misrepresentation. We are not persuaded by the plaintiff’s argument that her testimony was uncontradicted because the nurse did not testify. The plaintiff’s deposition contradicted her trial testimony. Also, the nurse was employed by an independent company which had no interest in whether the decedent’s application for insurance was accepted or denied. We are not persuaded that the nurse would include a hospital stay which occurred 20 years before the policy was issued and ignore three hospital stays which occurred within two years of the policy’s date. More importantly, the decedent swore the application contained a complete description of his medical history. Yet he affirmatively denied any history of mental disorder and omitted three hospitalizations for major depressive disorder. Even if the decedent did not read the application before he signed it, as the plaintiff argues, he nevertheless is bound by the document. Harney-Morgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 455 N.E.2d 130 (to negligently sign an unread document does not relieve the signer of the legal consequences of its contents).

Next the plaintiff maintains that4 there was insufficient evidence presented at trial to establish that the misrepresentation materially affected the defendant’s acceptance of the risk.

An insurer may refuse to pay benefits under a life insurance policy where a misrepresentation “materially affects *** the acceptance of the risk.” (Ill. Rev. Stat. 1991, ch. 73, par. 766.) Materiality is determined by whether or not reasonably careful and intelligent persons would regard the facts as stated to substantially increase the chances of the event insured against, so as to cause a rejection of the application. Materiality may be established by the testimony of the insurer’s underwriter. Garde by Garde v. Country Life Insurance Co. (1986), 147 Ill. App. 3d 1023, 498 N.E.2d 302.

In this case, the defendant’s underwriter testified that if the omitted medical history had been disclosed, the insurance company would not have issued the policy. He based this opinion on his experience and on his review of Prudential’s medical underwriting manual. The underwriter was a senior underwriting consultant and had been employed by the defendant for 22 years. The plaintiff offered no evidence to counter his testimony. We agree with the trial court’s conclusion based on this evidence that reasonably careful and intelligent persons would regard the decedent’s three recent hospitalizations for major depressive disorder a substantial risk to a company issuing a life insurance policy.

The plaintiff next contends that the defendant failed to prove the application was attached to the policy when it was issued. The application must be attached to the insurance policy for the insurer to void the policy based on a misrepresentation in the application. (Ill. Rev. Stat. 1991, ch. 73, par. 766.) The plaintiff argues that the defendant failed to offer evidence to contradict her testimony that the application was not attached when she received the policy and when she surrendered it to the defendant’s claims investigator after her husband died. We disagree.

When the defendant produced the original policy pursuant to a discovery request, the application was attached to the policy. The original policy admitted in evidence at trial had the application attached to it. Although no witness testified that the application was attached to the policy, the defendant offered evidence that it was Prudential’s custom and practice to attach the application to the policy. The policy states under the “General Provisions” endorsement that a copy of the application is attached to the policy. Evidence of the routine practice of a company is relevant to prove that the actions of the company on a specific occasion conformed to the routine. (Webb v. Angell (1987), 155 Ill. App. 3d 848, 859, 508 N.E.2d 508, 517.) When evidence is presented that the routine was not followed, the trier of fact resolves the conflict based on the evidence and the credibility of the witnesses. Webb, 155 Ill. App. 3d at 859, 508 N.E.2d at 517.

The trial judge decided that the plaintiff’s testimony was inconclusive as to whether the application was with the policy when she surrendered it to the defendant’s claims investigator. The record reveals that the judge was present during the plaintiff’s testimony, took notes, listened to a tape recording of her testimony, and played the relevant portion for the attorneys when he made his ruling. Based on the record and the evidence, we find that the trial court’s decision that the application was attached to the policy was not against the manifest weight of the evidence.

We reject the plaintiff’s final argument that the court erred when it admitted the application in evidence. She claims the application was not properly authenticated and is hearsay. The application was properly authenticated when the plaintiff identified the decedent’s signature. This sworn testimony constitutes an admission by a party opponent, or on her behalf, and was properly admitted as substantive evidence.

The decision of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and HOFFMAN, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    GEORGE F. CONNELLY, JR., et al., Plaintiffs-Appellants, v. ROBERT J. RIORDAN AND COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 92—2125
    Opinion filed April 29, 1993.

      Richard T. Sikes, of Chicago, for appellants.
    John J. McInerney, of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellee Aetna Insurance Company.
    Tribler & Orpett, of Chicago (Willis R. Tribler and Michael R. Stiff, of counsel), for other appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

After their home was destroyed by fire, the plaintiffs, George and Kathleen Connelly, filed an action against the defendants, Robert J. Riordan and Company, Durham and Associates, Inc., John E. Kelleher, and Aetna Insurance Company, seeking to recover the amount of damages for which they were underinsured. The plaintiffs alleged that defendant Kelleher, their insurance broker and an employee of Riordan and Durham, breached an oral agreement with them to adequately insure their home for full value. The plaintiffs further alleged that defendant Aetna was negligent because it assumed the duty of evaluating the value of their home and negligently failed to procure sufficient insurance.

At the close of the plaintiffs’ evidence before a jury, the trial court granted the defendants’ motion for a directed verdict because the plaintiffs failed to establish a prima facie case against either the insurance brokers or Aetna. The plaintiffs appeal the court’s entry of a directed verdict and also the court’s decision to disallow the testimony of two of the plaintiffs’ valuation witnesses for violations of Supreme Court Rule 220. 134 Ill. 2d R. 220.

We begin by summarizing the pertinent facts with respect to the plaintiffs’ procurement of insurance from Kelleher. As an adverse witness, Kelleher testified that he was employed by Riordan and Durham as a casualty insurance broker. Kelleher had been serving as the plaintiffs’ insurance broker since 1972. In 1982, the plaintiffs requested that Kelleher obtain replacement insurance on their home in Grand Beach, Michigan. The plaintiffs sent Kelleher a letter with a copy of their Hartford insurance policy which was about to expire. The Hartford policy specified that the replacement cost on the home was $150,000 and the house was insured on that policy for $135,000, or 90% of its replacement value. Kelleher filled out an insurance application for $150,000 and sent it to Aetna.

George Connelly testified that his home in Grand Beach, Michigan, was completely destroyed by fire on July 4, 1985. Connelly was employed as a mechanical contractor and held real estate licences in Michigan and Illinois. In 1982, Connelly asked Kelleher to provide homeowner’s insurance for his Michigan home. He testified that he sent Kelleher a letter with a copy of his expiring insurance policy for $135,000 and requested that Kelleher provide “comparable replacement insurance” on his home. In June 1982, Connelly received a letter from Kelleher which included the new homeowner’s policy, effective March 1982 for a one-year term. The coverage amount was $157,000 which represented 90% of the home’s replacement value. Connelly testified that he reviewed the policy and checked the policy limits and paid the premium. He stated that he did not object or complain to anyone about the amount of insurance coverage. In 1983, the Aetna policy was converted to Insurance Company of North America and renewed for $171,000 for a one-year term. In 1984, the policy was renewed for $172,000. Connelly reviewed each policy and its limits and paid the premiums.

On appeal, the plaintiffs claim that the court erred in granting a directed verdict for the broker-defendants because their liability rests upon Kelleher’s failure to properly perform his duty and agreement as an insurance broker to provide replacement coverage on their home. In their complaint, the plaintiffs alleged that the home and its contents were underinsured by $438,500.

A directed verdict should be granted “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & East ern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) In their complaint and on appeal, the plaintiffs contend that Kelleher breached his oral agreement to insure their home to its full value.

An insurance broker is bound to exercise reasonable skill and diligence in the transaction of the business entrusted to him and to faithfully negotiate and procure an insurance policy according to the wishes and requirements of his client. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539; Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 1271.) A broker is not liable if he acts in good faith and with reasonable care, skill, and diligence to place the insurance in compliance with his principal’s instructions. Shults v. Griffin-Rahn Insurance Agency, Inc. (1990), 193 Ill. App. 3d 453, 550 N.E.2d 232.

We have not found any evidence in the record to substantiate the plaintiffs’ claim that Kelleher breached an oral agreement. Essentially, Connelly requested that Kelleher provide him with insurance that was comparable to his then existing policy of $135,000. Connelly mailed Kelleher a copy of that policy. Kelleher obtained a policy from Aetna for $157,000. Connelly reviewed the terms of that policy, did not object to the policy, and paid the premium. In two subsequent years, Connelly renewed the policy and paid the premiums. There is no evidence in the record to support the plaintiffs’ assertion that Kelleher orally agreed to obtain insurance other than that which was requested and which he procured. We further believe Kelleher acted in good faith and exercised reasonable diligence in procuring insurance in compliance with the plaintiffs’ request.

Accordingly, the evidence so overwhelmingly favored Kelleher and his employers that a directed verdict was properly entered in their favor.

With respect to Aetna, the plaintiffs presented the testimony of Florence Zielinski, a former Aetna employee. Zielinski testified that she was taught to compute replacement costs for insurance coverage by using a chart which consisted of ground square feet in a home, the number of stories, factors pertaining to the construction of the dwelling, and a location factor. Zielinski was shown the plaintiffs’ application for home insurance and she noted that the number of square feet had been changed from 3,000 square feet to 2,000 square feet. Zielinski did not know whether the amount of insurance was calculated based upon 2,000 or 3,000 ground square feet. Zielinski did not know who ultimately made the calculation on the plaintiffs’ application. Zielinski also stated that a drive-by inspection of the plaintiffs’ home was ordered in April 1982.

The plaintiffs’ argument on appeal with regard to Aetna is that Aetna assumed a duty and negligently performed that duty. The plaintiffs rely on Nelson v. Union Wire Rope Corp. (1963), 39 Ill. App. 2d 73, 187 N.E.2d 425, for the legal proposition that one who assumes a duty and negligently performs that duty is liable.

We assume that the plaintiffs are referring to the fact that Aetna assumed the duty to accurately measure the ground square footage of their home and because they did so negligently, they should be liable. Other than the plaintiffs’ assertion that this was the “predicate for the ultimate determination,” there is no evidence to tie this calculation to the amount of insurance which Aetna provided. To the contrary, Zielinski’s testimony illustrates that several factors were used to compute replacement costs, only one of them being ground square footage. Moreover, Zielinski could not determine which square footage number had ultimately been used to calculate the issued insurance.

As we have already discussed in this opinion, the plaintiffs requested insurance which was comparable to their previous policy. Aetna provided comparable insurance. It is well established in Illinois that the individual insured bears the burden of knowing the contents of insurance policies and has an affirmative duty of bringing any discrepancies in the policy to the attention of the insurer. (Foster v. Crum & Forster Insurance Cos. (1976), 36 Ill. App. 3d 595, 345 N.E.2d 49.) The law has not imposed on an insurer the duty of reviewing the adequacy of an insured’s coverage, and when the premiums become due, the insured has the option of accepting, rejecting, or requesting a modification of the terms of the policy. (Cleary v. Country Mutual Insurance Co. (1978), 63 Ill. App. 3d 637, 380 N.E.2d 525.) Accordingly, we find that the plaintiffs failed to present any evidence of Aetna’s negligence and the court properly granted a directed verdict in their favor.

Having concluded that the plaintiffs failed to provide any evidence of the defendants’ liability, we need not address their contention that two valuation witnesses were improperly barred from testifying.

For all of the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


text:
    EHAB DARWISH, a Minor, by Misaad Darwish, his Father and Next Friend, et al., Plaintiffs-Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 92—2605
    Opinion filed April 29, 1993.
    Rehearing denied May 27, 1993.

      Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellants.
    Brent Sadewater, of Lanigan & Sadewater, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Ehab Darwish (minor plaintiff) and his father Misaad Darwish (plaintiff), brought this declaratory judgment action to construe the limits of uninsured motorist coverage and medical payments coverage contained in an insurance policy issued by the defendant, Nationwide Mutual Insurance Company (Nationwide). The plaintiff also had a policy with similar coverage issued by Aetna Life and Casualty (Aetna), which is not a party to this appeal. The minor plaintiff was struck as a pedestrian by an uninsured motorist. Aetna paid the full amount of its uninsured motorist and medical payments benefits, and Nationwide denied the plaintiffs’ claims under both coverages. On cross-motions for summary judgment, the trial court granted summary judgment in favor of Nationwide and against the plaintiffs. The plaintiffs have appealed, contending that the Nationwide policy was ambiguous and that the coverage limitations relied upon by Nationwide are not authorized by the Illinois Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 613 et seq.) and violate the public policy of the State.

The Nationwide policy insured two vehicles and charged separate premiums for uninsured motorist coverage limits of $15,000 each person/$30,000 each occurrence on one car and $25,000 each person/ $50,000 each occurrence on the other car. The policy contained an “Other Insurance” clause, which provided in pertinent part:

“[I]n any occurrence in which other insurance similar to that provided in this coverage is available 'under a policy issued by another company, we will be liable for only our proportional share of the loss. This share will be determined by our proportion of the total insurance available. Total damages in any such occurrence will be considered not to exceed the highest limits available in any one of the policies applicable.”

The Aetna policy insured one car and provided uninsured motorist coverage limits of $100,000 each person/$300,000 each accident. Aetna’s “Other Insurance” clause provided in pertinent part that “[i]f other similar insurance applies to the loss, we will pay only our share. Our share is the proportion that our limit of liability bears to the total of all applicable limits.” Unlike the Nationwide policy, the Aetna policy did not contain language that limited total damages to the highest limits available in any one of the applicable policies.

Both the Nationwide and Aetna policies provided for medical payments benefits in the amount of $5,000 each person. The Nationwide policy stated that “[i]n any loss involving the use of a vehicle you do not own, or being hit by any motor vehicle or trailer, we will pay only the insured benefit over and above the amount of other collectible automobile Medical Payments or Family Compensation insurance.”

The plaintiffs’ complaint for declaratory judgment stated that on May 18, 1987, the minor plaintiff, while a pedestrian, was struck and seriously injured by an uninsured motorist. The plaintiffs filed claims with both Nationwide and Aetna for uninsured motorist and medical payments benefits. Aetna paid its policy limits of $100,000 in uninsured motorist benefits and $5,000 in medical payments benefits. Nationwide denied the plaintiffs’ claim for uninsured motorist benefits based on the language in its other insurance clause which limited the total damages to the highest limits available in any one of the applicable policies. Nationwide denied the medical payments claim based on the policy language stating that it would pay “only the insured benefit over and above the amount of other *** insurance.” On cross-motions for summary judgment, the trial court granted summary judgment in favor of Nationwide and against the plaintiffs, finding that because Aetna had already paid to the plaintiffs the full amounts of uninsured and medical payments benefits to which they were entitled, Nationwide under the unambiguous language of its policy was not required to make any further payments.

The plaintiffs first contend that the policy language limiting uninsured motorist coverage is ambiguous and should therefore be construed against Nationwide.

The paramount object in construing a contract is to give effect to the intent of the parties as expressed by the terms of the agreement. (International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 370, 522 N.E.2d 758.) “In construing contracts of insurance, the court should neither distort the meaning of the words so as to reach a desired result nor search for or invent ambiguities where none exist but, rather, should examine the policy as a whole and, to the extent possible, give effect to all provisions and interpret words according to their plain, ordinary and popular meanings.” (International Minerals, 168 Ill. App. 3d at 371, 522 N.E.2d at 764.) Where the language of an insurance policy is clear and unambiguous, it will be applied as written. United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.

The allegedly ambiguous clause states in pertinent part as follows: “[I]n any occurrence in which other insurance similar to that provided in this coverage is available under a policy issued by another company, we will be liable for only our proportional share of the loss. This share will be determined by our proportion of the total insurance available. Total damages in any such occurrence will be considered not to exceed the highest limits available in any one of all policies applicable.”

The plaintiffs maintain that this clause is ambiguous because the first two sentences “conflict” with the third sentence and because the terms “loss,” “total insurance” and “total damages” are used without definition.

We find no ambiguity in the policy language. Read as a whole, the other insurance clause states that Nationwide will pay its proportional share of the coverage available, and that the insured’s recovery cannot exceed the highest uninsured motorist limits in any of the applicable policies. A virtually identical provision was determined to be unambiguous in Putzbach v. Allstate Insurance Co. (1986), 143 Ill. App. 3d 1077, 494 N.E.2d 192. The other insurance clause in Putzbach stated in pertinent part:

“ ‘[I]f the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which the coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.’ ” (Putzbach, 143 Ill. App. 3d at 1080, 494 N.E.2d at 194-95, quoting Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 334, 312 N.E.2d 247.)

The only difference between the other insurance clause in Putzbach and the one in the case at bar is the order of the relevant clauses. Reading the provision as a whole, as we are required to do, we find no merit to the plaintiffs’ contention that the language is ambiguous.

The plaintiffs next contend that the other insurance clause relied upon by Nationwide is not authorized by the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1991, ch. 73, par. 613 et seq.). Specifically, the plaintiffs argue that the Code requires each insurance policy sold in this State to provide uninsured motorist coverage and that coverage cannot be denied on the basis that another policy with a different company provides the same coverage. Central to this argument is the interpretation of section 143a — 2(5) of the Code, which provides as follows:

“Scope. Nothing herein shall prohibit an insurer from setting forth policy terms and conditions which provide that if the insured has coverage available under this Section under more than one policy or provision of coveragé, any recovery or benefits may be equal to, but may not exceed, the higher of the applicable limits of the respective coverage, and the limits of liability under this Section shall not be increased because of multiple motor vehicles covered under the same policy of insurance.” (Ill. Rev. Stat. 1991, ch. 73, par. 755a — 2(5).)

This language has often been held to preclude the stacking of coverages under the same policy of insurance or under multiple policies issued by the same insurer. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 426, 401 N.E.2d 539; Sharpies v. General Casualty Co. (1980), 85 Ill. App. 3d 899, 902, 407 N.E.2d 674.) The plaintiffs in the case at bar argue, however, that section 143a — 2(5) does not apply to multiple policies issued by different insurers. Neither party has cited case law involving the application of this Code section to policies issued by different insurers.

In construing a statute, the courts must look to the statutory language as the best indication of the intent and meaning of the legislature. (McIntosh v. A & M Insulation Co. (1993), 244 Ill. App. 3d 247.) Where that language is unambiguous, it must be enforced as enacted. (McIntosh, 244 Ill. App. 3d at 251.) Section 143a — 2(5) states that if the insured has uninsured motorist coverage “under more than one policy,” the insurer may insert terms which limit recovery to the highest limits in any applicable policy. There is no language in the statute which limits this application to multiple policies issued by the same insurer. We are without authority to create exceptions or limitations which are not contained in the statute. McIntosh, 244 Ill. App. 3d at 252.

Next, the plaintiffs contend that Nationwide’s denial of coverage violates the public policy of the State. Citing Hoglund v. State Farm Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272, 592 N.E.2d 1031, the plaintiffs maintain that Nationwide may not rely on coverage limitations where there is no danger of a double recovery and where the payment of multiple premiums created in the insured a reasonable expectation of multiple coverages. The Hoglund case involved a situation in which the insured was injured in part by an uninsured motorist and in part by an insured motorist. The supreme court held that despite policy language to the contrary, the insurer providing uninsured motorist coverage was not entitled to a setoff for amounts paid by the insured tortfeasor. The court determined that allowing a setoff would violate the policy behind the uninsured motorist statute, which is to place the injured party in the same position as if the uninsured driver had been insured. In Obenland v. Economy Fire & Casualty Co. (1992), 234 Ill. App. 3d 99, 599 N.E.2d 999, appeal pending, No. 74296, this court found that the rationale of Hoglund does not support its application to situations in which the insured is injured by a single uninsured or underinsured motorist. In the case at bar, the plaintiff had $100,000 in uninsured motorist coverage with Aetna. The minor plaintiff was injured by an uninsured motorist and received $100,000. This is the same amount he would have received had the uninsured motorist been insured according to the provisions of the Code. Under the terms of the applicable insurance policies and Code provisions, the plaintiff has received the full amount of uninsured motorist coverage to which he was entitled. We therefore find no violation of public policy.

Finally, the plaintiffs contend that Nationwide’s denial of medical payments coverage under its policy is invalid. Nationwide denied coverage based on a policy provision stating that it would “pay only the insured benefit over and above the amount of other collectable automobile Medical Payments or Family Compensation insurance.” The plaintiff collected $5,000 from Aetna under the medical payments coverage in the Aetna policy. Although the plaintiffs assert that it is “difficult to understand” Nationwide’s denial of coverage, they dó not support their position with either citation of authority or reasoned legal argument. We accordingly consider the issue waived for purposes of appeal. Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.

      One of the issues in the plaintiffs’ lawsuit, which was rendered moot by the trial court’s decision, was whether the policy should be reformed to increase the uninsured motorist coverage limits to equal the bodily injury limits of $100,000 each person/ $300,000 each occurrence.


text:
    BRENDA GLENN, Plaintiff-Appellant, v. PRESTIGE CASUALTY COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 92—0213
    Opinion filed April 30, 1993.
    Lane & Lane, of Chicago (Stephen I. Lane, of counsel), for appellant.

      Wein & Associates, P.C., of Chicago (Kathleen Kenny, of counsel), for appellee.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff, Brenda Glenn, brought an action seeking a declaratory judgment of her right to arbitration under an automobile insurance policy issued by defendant Prestige Casualty Company (hereinafter Prestige). Upon a motion filed by Prestige, the trial court dismissed plaintiff’s complaint, based upon her failure to request arbitration of her claim within the two-year period specified in the insurance contract. The court also denied plaintiff’s request for leave to amend her complaint. On appeal, plaintiff challenges the trial court’s dismissal of her complaint for failure to timely request arbitration and the refusal of her request to file an amended complaint.

The record reveals that on October 7, 1984, plaintiff, Brenda Glenn, sustained injuries when she was struck by a vehicle operated by Ida Moore. Moore was not covered by liability insurance and subsequently filed for bankruptcy protection.

At the time of the accident, there was in effect a policy of automobile insurance issued by Prestige to Robert McCaskill, the stepfather of the plaintiff. Although plaintiff was not the policyholder, she was a beneficiary under this policy. As a beneficiary, plaintiff did not have possession of the contract for insurance, and she did not receive a copy of the policy until after the filing of her complaint on February 28, 1991.

On October 10, 1984, three days after the accident, plaintiff’s original counsel sent a letter to Prestige which informed the insurer of the plaintiff’s claim under the uninsured motorist coverage provided in the policy. This letter also included an attorney’s lien and requested acknowledgment of the claim by Prestige.

On November 14, 1984, five weeks after the accident, Prestige responded to the letter from plaintiff’s counsel. In its response, Prestige identified plaintiff as the claimant and indicated that Robert Mc-Caskill was the named insured under the policy. This letter also stated, in relevant part,

“We acknowledge receipt of uninsured motorist claim.
Please be advised hereby that it is not our intention to proceed with arbitration unless and until:
1. There is presented to us proof of no motor vehicle liability insurance on the part of the adverse driver and the owner of the adverse vehicle;
* * *
4. Pursuant to Condition 7 of the policy:
a) the attached form must be completed within 15 days, if not heretofore completed and returned;
b) you are to telephone us and arrange a time and place for examination of claimant(s) under oath at these offices; and
c) we shall advise you whether or not we are desirous of examination by physician(s) of our choice after the sworn statement is in fact taken.
5. Upon the meeting of the above conditions precedent, we look forward to receipt of ‘items of special damage’ applicable to an uninsured claim.
Until such time as there is compliance with the above, there can be no dispute and we cannot select any arbitrator.”

On April 3, 1985, plaintiff’s counsel sent another letter to Prestige which provided the “items of special damages” requested by the insurer. Prestige did not deny plaintiff’s claim or respond in any way to this letter. Approximately nine months later, on January 24, 1986, plaintiff’s counsel again sent a letter to Prestige which itemized the special damages and demanded payment of the policy limits. As with the prior communication, Prestige did not deny the claim or respond in any way.

Plaintiff filed suit against the uninsured motorist on October 2, 1986, prior to the expirations of the limitations period. Yet, the uninsured motorist filed for bankruptcy protection, and an automatic stay was issued by the bankruptcy court.

As of October 1989, Prestige had not denied the plaintiff’s claim but also had not taken any action toward settlement or arbitration. On October 10, 1989, plaintiff’s counsel wrote a letter to Prestige which made “a formal demand for arbitration.” On October 26, 1989, over five years after the accident and notification thereof, Prestige finally denied plaintiff’s claim based upon her failure to demand arbitration within two years from the date of accident.

On February 28, 1991, plaintiff filed the instant action, seeking to compel arbitration of her claim under the uninsured motorist coverage provided in the policy issued by Prestige. The complaint erroneously alleged that plaintiff was the policyholder and that she had received a copy of the policy in consideration of premiums paid by her.

Prestige filed a motion to dismiss the complaint, asserting that plaintiff’s claim was barred by her failure to make a timely demand for arbitration. This assertion was predicated upon coverage D of the policy, which stated that “[n]o suit, action or arbitration proceeding for the recovery of any claim under this section shall be sustainable in any court of law or equity unless the insured, as a condition precedent to such action has fully complied "with all the terms and provisions of this policy, nor unless said suit, action or arbitration proceeding is commenced within two years of the date of loss.”

Plaintiff filed a memorandum in opposition to the motion to dismiss, and Prestige filed a reply. After hearing the arguments of counsel, the trial court granted Prestige’s motion to dismiss. In entering its ruling, the trial court found that the policy provision setting a two-year time limitation on plaintiff’s right to demand arbitration was enforceable and that plaintiff had failed to make a demand for arbitration in accordance with that provision.

Thereafter, plaintiff filed a motion for reconsideration of the dismissal order and requested leave to file an amended complaint. Plaintiff sought to amend her complaint to reflect that she was a beneficiary under the policy but not the policyholder; she had not received a copy of the policy; and- had not been informed of the specific provisions contained therein. The trial court denied the motion for reconsideration and refused plaintiff’s request to amend her complaint. These rulings were predicated upon the court’s determination that plaintiff had provided no basis for reconsideration of the dismissal order.

Plaintiff appeals the dismissal of her complaint and the denial of her request to file an amended pleading. We initially consider plaintiff’s claim that her complaint should not have been dismissed. - „

Insurance policy provisions which require the insured to demand arbitration within a two-year period have been upheld as not violative of section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 755a). (See Shelton v. Country Mutual Insurance Co. (1987), 161 Ill. App. 3d 652, 660, 515 N.E.2d 235; Buchalo v. Country Mutual Insurance Co. (1980), 83 Ill. App. 3d 1040, 1047-48, 404 N.E.2d 473; Coyne v. Country Mutual Insurance Co. (1976), 39 Ill. App. 3d 279, 280, 349 N.E.2d 485.) These cases hold that such a provision is enforceable where it provides the insured with the same protection available had the tortfeasor carried the required insurance coverage. Heneghan v. State Security Insurance Co. (1990), 195 Ill. App. 3d 447, 453, 552 N.E.2d 406; Shelton, 161 Ill. App. 3d at 658.

Coverage D of the policy required plaintiff to file suit or to demand arbitration within two years of the “date of loss.” The trial court’s dismissal of the complaint was premised upon the determination that plaintiff’s claim was barred by her failure to make a timely demand for arbitration under coverage D. Our review of the trial court’s action is guided by two opinions which were filed subsequent to the dismissal of the complaint. Based upon these two decisions, we hold that the complaint should not have been dismissed.

McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 598 N.E.2d 366, and Whiting v. Prestige Casualty Co. (1992), 238 Ill. App. 3d 376, 606 N.E.2d 397, held, for the first time, that when an insurance policy providing uninsured motorist coverage includes the language contained in coverage D, the insured cannot be said to have suffered a “loss” until it is determined that the driver who was liable for the injury cannot compensate the insured for the damages incurred. (Whiting v. Prestige Casualty Co. (1992), 238 Ill. App. 3d 376, 378-79, 606 N.E.2d 397; McCray v. Merit Insurance Co. (1992), 233 Ill. App. 3d 36, 39, 598 N.E.2d 366.) Consequently, the period within which the insured must demand arbitration does not begin to run until the tort liability of the alleged uninsured motorist has been established by judgment or settlement. Whiting, 238 Ill. App. 3d at 378; McCray, 233 Ill. App. 3d at 39.

In the case at bar, the uninsured driver filed for bankruptcy protection, and an automatic stay was issued by the bankruptcy court. The date of the plaintiff’s loss cannot be determined until the bankruptcy stay has been lifted and the uninsured driver’s ability to compensate the plaintiff has been finally determined either by judgment or settlement. Until that occurs, it cannot be said that plaintiff has suffered a “loss,” and plaintiff’s demand for arbitration cannot be considered untimely. In light of the new law established in McCray and Whiting, we hold that the plaintiff’s complaint should not have been dismissed for failure to demand arbitration within two years of the date of accident.

We next address the trial court’s refusal to allow plaintiff’s request to amend her complaint.

Under section 2 — 616 of the Illinois Code of Civil Procedure, a plaintiff may under just and reasonable terms amend pleadings in form or substance in a manner “which may enable the plaintiff to sustain the claim for which it was intended to be brought.” Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 616(a), (c).

In the case at bar, plaintiff’s complaint alleged that she was the policyholder and had received a copy of the policy upon payment of premiums. The record reflects, however, that these allegations were erroneous because plaintiff was a beneficiary under the policy, not the policyholder, and did not have possession of a copy of the policy until after her complaint was filed. Indeed, the complaint itself asserts that a copy of the policy would be filed upon production from Prestige, and it is undisputed that plaintiff did not have a copy of the policy until after her declaratory judgment action had been filed. Under these facts, it would have been just and reasonable for the trial court to permit plaintiff to amend her complaint to reflect that she was a beneficiary under the policy and did not obtain a copy of the insurance agreement until after her complaint for declaratory judgment had been filed.

For the foregoing reasons, the orders of the circuit court of Cook County are vacated, and the cause is remanded for further proceedings consistent with the views expressed herein.

Vacated and remanded.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE COUSINS JUSTICE MURRAY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVAN KELLEY, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 91—1530
    Opinion filed April 30, 1993.

      MURRAY, J., concurring in part and dissenting in part.
    Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Kevin M. Gleason, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COUSINS

delivered the opinion of the court:

Following a probation revocation proceeding in the circuit court of Cook County, where defendant admitted that he had violated the terms of his sentence, the trial court entered a finding of violation, then recommitted him to one year of probation and ordered him to perform 920 hours of community service. In this appeal defendant maintains that because the court failed to adequately admonish him in accordance with Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)) at the conclusion of this proceeding, his case must be remanded to the circuit court so that he may properly perfect his appeal by filing a motion to withdraw the guilty plea which provided the basis for the probation revocation.

We reverse and remand.

Background

The record shows that in 1990 defendant entered a negotiated plea of guilty to a charge of home repair fraud (Ill. Rev. Stat. 1987, ch. 1211/2, par. 1603(a)(1)), and was sentenced to one year of probation. Defendant was also ordered to pay restitution to the complainant and a fine, plus perform 500 hours of public service. Eleven months later, the State filed a petition to revoke defendant’s probation, alleging that he had failed to report as ordered and had not fulfilled the community service condition of his probation. On March 22, 1991, the trial court heard preliminary matters in the revocation process and suggested a date for a hearing. Defendant then indicated that he could not post the bond set for his release, and the court conducted a bond hearing. Following that, a recess was taken. When court reconvened, defense counsel stated that he had discussed the matter with defendant and that defendant was willing to enter a plea of guilty to his violation of probation in return for a doubling of the community service hours.

The parties then stipulated that the defendant had failed to complete the community service hours assigned and had failed to report to the probation department on a regular basis as ordered. The court found defendant to be in violation of his probation, recommitted him to probation and ordered him to perform 920 hours of community service with a minimum of one-twelfth of those hours to be completed each month. The court then made a statement to the defendant regarding an appeal.

Subsequently, defendant filed a notice of appeal from the judgment entered. The defendant now contends that because the trial court failed to properly admonish him in substantial compliance with Supreme Court Rule 605(b), his case must be remanded to the circuit court so that he can file a proper motion to withdraw his plea in accordance with Supreme Court Rule 604(d). 134 Ill. 2d R. 604(d).

The State contends that the defendant was not entitled to such admonitions in the revocation proceedings; that if he was so entitled, the trial court’s admonitions were sufficient; and any error committed therein was harmless since defendant was not restricted from raising any issue on appeal and his failure to address the grounds on which he seeks to withdraw the plea requires that his appeal be dismissed.

We disagree with the State’s contention.

Opinion

The record shows that on April 1, 1990, the defendant entered a negotiated plea of guilty to a charge of home repair fraud (Ill. Rev. Stat. 1987, ch. 1211/2, par. 1603(a)(1)) and was sentenced to one year’s probation, a condition of which required him to serve 30 days in custody with the Cook County Department of Corrections. The defendant was also ordered to pay restitution of $675 to the complainant, a fine of $1,000 and perform 500 hours of public service.

Before concluding the April 11, 1990, proceedings, the following remarks were made by the court and response received from defendant:

“THE COURT: It’s my duty to advise you that you have a right to appeal, if you wish to appeal, you must first file a motion to vacate the plea of guilty, if that would be granted, the charges which have been nolle prosed [sic] and reduced against you could be reinstated. If it’s denied, you have thirty days to file a notice of appeal. Any grounds not raised in your motion are waived.
Do you understand that?
THE DEFENDANT: Yes, Your Honor.”

Approximately 11 months later, on March 22, 1991, defendant entered a plea of guilty to a petition for violation of probation. The petition alleged that he had not completed community service as ordered and had not reported to the probation department as ordered.

The court made a finding of guilty with regards to defendant’s violation of his probation and sentenced defendant to a year’s probation with a condition that defendant complete 920 hours of community service within the period of probation. The court ordered defendant to complete one-twelfth of this service each month, noting that defendant’s failure to do so would constitute a violation of his probation. Before concluding these proceedings, the court made the following admonishment which the defendant contends does not conform to the requirements of Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)):

“THE COURT: It is my duty to advise you have a right to appeal. If you want to, you have to first file a motion to vacate your motion for a new hearing. The case is set down for trial.
If I deny it you have thirty days to file a Notice of Appeal. Any grounds not raised in your motion is [sic] waived, thirty days from today’s date to do that.”

The State contends that the record shows that the defendant was afforded due process protections in the proceeding where he voluntarily stipulated to the conduct which constituted the violation of the terms of his probation. However, we must consider whether the trial court admonished him in substantial compliance with Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)) and, if not, whether the case must be remanded so that defendant may file a proper motion to withdraw his “guilty plea” under Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)).

Under Rule 605(a) (134 Ill. 2d R. 605(a)), a trial court judge must advise a defendant of his right to an appeal “[i]n all cases in which the defendant is found guilty and sentenced to imprisonment, probation or conditional discharge, periodic imprisonment, or to pay a fine, or in which a sentence of probation or conditional discharge has been revoked or the conditions attached to such a sentence modified, except in cases in which the judgment and sentence are entered on a plea of guilty.” (Emphasis added.) Thus, Rule 605(a) specifically indicates that the admonishment applies to probation violation or modification hearings in which the defendant pleads not guilty.

Rule 605(a) deals with admonishments for a judgment and sentence on a plea of not guilty, and Rule 605(b) deals with admonishments for a judgment and sentence on a plea of guilty. While Rule 605(b) is not as specific as Rule 605(a) in that it states “[i]n all cases in- wfiieh a judgment is entered upon a plea of guilty,” it seems clear that “all cases” refers to those listed specifically under Rule 605(a).

Rule 605(b) (134 Ill. 2d R. 605(b)) provides:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that he has a right to appeal;
(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;
(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” (Emphasis added.)

Illinois Supreme Court Rules 605(a) and 605(b) must be construed together. When so construed, it is clear that the admonishments set forth in Rule 605(b) are applicable to a sentence where a sentence of probation has been revoked as in the case at bar.

We have examined the admonishment. The admonishment was confusing. We hold that the admonishment did not substantially advise Kelley as required, inter alia, “(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion. *** (5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions.” 134 Ill. 2d Rules 605(b)(2), (b)(5).

Supreme Court Rule 605(b) gives a defendant no substantive rights. The rule merely regulates his right to appeal from a judgment entered on his guilty plea. The failure to properly admonish the defendant after his guilty plea does not deprive the defendant of his right to appeal.

Procedurally, in the interest of judicial economy, a defendant who has not been properly admonished in the trial court and who seeks to have the case remanded to the trial court for the purpose of making a motion to vacate should accompany that request with a showing of facts which he relies upon to secure the vacation of the plea. If the claim of error is one which may be supported by the record, the reviewing court will then be in a position to review the case without an unnecessary remand. See People v. Thompson (1977), 47 Ill. App. 3d 346, 361 N.E.2d 1169; People v. Saldana (1977), 53 Ill. App. 3d 636, 638, 368 N.E.2d 1055.

In this case, no substantive basis for review of the judgment has been set forth. Therefore, we cannot decide the merits of the appeal from the judgment of the trial court. So, the question whether the defendant has cause to vacate his guilty plea may depend upon an evidentiary hearing, which is a matter within the province of the trial court.

As in the Saldana case, we fail to understand or appreciate why defense counsel has placed this court in this position or how this serves the interests of the defendant. However, substantial compliance has not been had with Supreme Court Rule 605(b).

As a result, the State’s motion to dismiss the appeal is denied and the cause is reversed and remanded to the trial court with directions to permit the defendant to file a motion to vacate his plea of guilty within 30 days from the return of this cause to the trial court on remand and thereafter to proceed in accordance with Supreme Court Rule 605(b).

Reversed and remanded.

GORDON, P.J., concurs.

JUSTICE MURRAY,

concurring in part and dissenting in part:

I concur with the conclusion that the trial court failed to follow Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The trial court’s failure to advise defendant that a written motion to withdraw his plea of guilty and that he was entitled to a free transcript was a violation of two of the six pieces of advice a trial judge is required to give a defendant like Kelley who desires to withdraw his guilty plea to a probation violation.

I cannot see how either defendant or the criminal justice system was harmed by the trial judge’s failure. Defendant was initially convicted of “home repair fraud” on his plea of guilty. Among other matters, he was ordered to perform 500 hours of community service. He was charged with violation of his probation because he failed to complete his 500 hours of community service.

In light of the offense, defendant pleaded guilty to “home repair fraud.” Defendant’s failure to carry out this term of his initial probation may have been, in itself, a service to the community.

Rather than reversing and remanding the trial court to permit defendant to file a motion to vacate his guilty plea, this court should consider defendant’s failure to perform community service a service to the community and dismiss his appeal on the ground of mootness.

The appeal demonstrates one of the great defects in our modern criminal justice system (1) our hang-up for procedure over substance, and (2) our modern dedication to appearance over reality.