text:
    CHICAGO PRINCIPALS ASSOCIATION, LOCAL 2, AMERICAN FEDERATION OF SCHOOL ADMINISTRATORS, AFL/CIO, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0436
    Opinion filed August 4, 1989.
    Rehearing denied September 19, 1989.

      Ronald S. Cope and Alan M. Mullins, both of Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago (David Lincoln Ader, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Patricia J. Whitten, of Chicago (John L. Wren, of counsel), for respondent Chicago Board of Education.
   JUSTICE GREEN

delivered the opinion of the court:

We affirm here a decision of the Illinois Educational Labor Relations Board (IELRB) holding that principals of schools operated by respondent, the Chicago Board of Education, a/k/a The Board of Education of the City of Chicago (Board of Education), are not “educational employee[s]” by the terms of section 2(b) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(b)), and, thus, are not entitled to organize for collective-bargaining purposes pursuant to section 3(a) of the Act (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1703(a)) and to require the Board of Education to bargain with them. Chicago Board of Education, 4 Pub. Employee Rep. (Ill.) par. 1074, case No. 84 — CA—0002 (Illinois Educational Labor Relations Board, May 17,1988).

The parties to this proceeding agree that (1) petitioner, the Chicago Principals Association (CPA), as its name implies, is a long-standing voluntary group of principals of schools operated by the Board of Education; (2) on January 9, 1984, CPA requested the Board of Education to bargain with it; and (3) the latter refused to do so. On March 27, 1984, CPA filed a charge with IELRB alleging the Board of Education had violated various sections of the Act by refusing to bargain collectively with CPA. On May 10, 1984, the charge was amended to also contend the Board of Education had violated the Act by refusing to meet with the CPA president pursuant to a prior memorandum and prior practice of the parties. A complaint was issued by IELRB on June 24, 1985. After an evidentiary hearing before a hearing officer and a hearing before the IELRB, the IELRB issued an order on May 17, 1988, dismissing the complaint. The CPA has taken administrative review to this court. As we have indicated, we affirm.

Section 3(a) of the Act provides “educational employees” the right to organize for collective bargaining. Section 2(b) of the Act excludes from the definition of those who are “educational employees” those who are “supervisors” or “managerial *** employees.” (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(b).) The IELRB found the principals were both “supervisors” and “managerial employees” and, therefore, not “educational employees” entitled to the protections of the Act for these reasons. The IELRB also held that neither any prior memorandum nor past practice required the Board of Education to meet with CPA nor did any prior memorandum or past practice enable the principals to organize pursuant to section 3(a) of the Act.

The position taken by CPA is based primarily upon its contentions that (1) because of the size of the system operated by the Board of Education and the lines of authority established, its principals are much more limited in responsibility and authority, particularly in regard to personnel, than is the case in most school systems; and (2) the legislature intended to place substantial limits on the applicability of both the supervisory and managerial exclusions of the Act’s definition of those who are considered to be “educational employees.” Accordingly, CPA vigorously argues that any determination that either the supervisory or managerial exclusion is applicable to CPA members is contrary to the manifest weight of the evidence and to law.

We first address the question of the “supervisor” exclusion and begin with consideration of the following definition appearing in section 2(g) of the Act:

“ ‘Supervisor’ means any individual having authority in the interests of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees within the appropriate bargaining unit and adjust their grievances, or to effectively recommend such action if the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment. The term ‘supervisor’ includes only those individuals who devote a preponderance of their employment time to such exercising authority.” Ill. Rev. Stat. 1987, ch. 48, par. 1702(g).

The Board of Education and the IELRB maintain that, in order to find the supervisory exclusion was applicable to the principals involved here, the IELRB was required to be satisfied by a preponderance or greater weight of the evidence that (1) the principals have the authority in the interest of the employer to perform some of the functions of supervisors or to effectively recommend such action; (2) the exercise of such authority is not merely routine or clerical in nature but requires a use of independent judgment; and (3) a preponderance of the employment time of the principals is devoted to the exercise of this authority. This obvious requirement, which we deem proper, was set forth by IELRB in Southern Illinois University Board of Trustees, 4 Pub. Employee Rep. (Ill.) par. 1030, case No. 86 — RC—0018—S (Illinois Educational Labor Relations Board, Nov. 17, 1987). Notably, section 2(g) lists the supervisory functions in the disjunctive, thus clearly stating that one need not perform all of those functions in order to be a supervisor. While the IELRB must be satisfied by a preponderance of the evidence as to the existence of the three listed elements, we can properly reject its determination in that regard only if it is contrary to the manifest weight of the evidence. Environmental Protection Agency v. Pollution Control Board (1986), 115 Ill. 2d 65, 503 N.E.2d 343.

The record quite clearly indicates that, within the organizational setup of the Chicago public schools, the school principals have little power or reason to directly perform most of the functions listed in section 2(g) of the Act. Rather, the principals make recommendations in regard to these matters. The requirement that these recommendations be made “effectively” is stated in contrast to recommendations which might be merely of a “routine or clerical” nature. Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(g).

In regard to hiring, the evidence showed the participation of principals was minimal. Apparently, when a vacancy occurred in a school, a principal could interview teachers on an eligibility list and make a recommendation to a director of personnel in regard to a choice, but this was seldom effective. However, principals did have some substantial voice in the selection of teachers for such special programs as those entitled “Options for Knowledge” and “Effective Schools.” These programs were used in a substantial number of schools but concerned only a small number of teachers in those schools. Principals were also given a substantial voice in the selection of one-third of the teachers in newly opened schools or when a large number of teachers were added to an existing school.

The evidence showed principals were encouraged to visit with teachers who requested transfer to these schools and, upon obtaining information as to the ability of the teacher, to make recommendations concerning the transfer. According to the evidence, the principal could only block the transfer upon a showing of academic teaching deficiency of the teacher, and this was seldom done. Principals were also given the opportunity to request transfer of teachers from their school to one where the teacher might be able to perform better. Principals had the authority and responsibility to initiate disciplinary charges against a teacher which might result in disciplinary action being taken against that teacher.

The principals possessed the responsibility to initiate proceedings for layoff of teachers necessitated by an insufficient number of pupils to justify the number of teachers assigned to the school. Similarly, the principals could attempt to prevent a layoff by requesting that a position remain open. When an opening occurred for the position of assistant principal, the principal was permitted to recommend who should become the replacement, and the evidence showed this recommendation was usually accepted. Each year, the principal was required to evaluate the teaching staff and, if a teacher were found to be unsatisfactory, to issue a warning notice listing the areas of deficiency and recommendations for improvement. The principal was required to visit the classrooms of the teachers so designated and to confer with them. The evidence indicated that, if the principal reported the teacher had improved, no further action was taken against the teacher, and any charge was dropped.

Testimony was further presented that a principal’s determination that a teacher’s performance was still unsatisfactory resulted in the issuance of a form, rating the teacher as unsatisfactory, and this rating required a conference between the teacher, principal, superintendent of the district of the Chicago school system involved, and the district personnel officer. Then, the principal and superintendent were required to agree upon a joint recommendation as to whether to return the teacher at his or her present school or to transfer the teacher. Such a rating froze the teacher’s salary, denied the teacher summer school employment, and blocked the teacher’s promotion. Evidence was presented that those recommendations were usually followed by higher authorities. Principals had the responsibility to recommend the discharge of teachers in appropriate cases. Similarly, grievance proceedings started with a meeting between a teacher and a principal, with a responsibility on the principal to resolve the matter, if possible. Testimony was presented that the decision of the principal was usually upheld on subsequent review.

We deem the evidence presented sufficient to support the determination by the IELRB that the principals, in the exercise of independent judgment, effectively made recommendations in regard to the various supervisory functions listed in the definition of supervisor in section 2(g) of the Act. Determination of whether the principals spend a majority of their time “exercising” that authority was recognized by the IELRB as being a very difficult task. In struggling with this issue, the IELRB relied upon its analysis in Southern Illinois University Board of Trustees. There, it ruled that a foreman for a group of electricians employed by the subject institution, although performing functions described in section 2(g) of the Act, did not spend a preponderance of his time in that capacity. However, the IELRB concluded there that, ordinarily, “[w]hen an individual exercises significant supervisory authority on a continuing basis with respect to a substantial number of educational employees, that individual, in most instances, will meet the" ‘preponderance ... exercising’ test even though the time spent recording or acting on the results of the supervision may be small.” (Emphasis added.) Southern Illinois University Board of Trustees, 4 Pub. Employee Rep. (Ill.) par. 1030, at IX — 121.

In the foregoing case, the IELRB found the foreman clearly spent a preponderance of his time performing nonsupervisory functions. Here, where the direct evidence was not clear how the principals spent a preponderance of their time, IELRB concluded the circumstantial evidence indicated the principals were engaged in a “continual on-going teacher evaluation process,” which did not consist merely of giving advice to and conferring with teachers, but also involved the day-to-day responsibility of being cognizant of the teachers’ performance. (Chicago Board of Education, 4 Pub. Employee Rep. (Ill.) par. 1074, at IX — 302.) Under the uncertain evidence presented here, a determination by the IELRB that, even within the described bureaucracy of the Chicago public schools, the principals were inherently involved in an “ongoing” responsibility of evaluation which predominated the time of the principals was well within the expertise and discretion of the IELRB. We give considerable deference to its application of that expertise and hold the determination in regard to the time spent by the principals was not contrary to the manifest weight of the evidence. Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 536 N.E.2d 743, appeal denied (1989), 127 Ill. 2d 613.

The CPA argues that, under the express language of section 2(g) of the Act, the principals cannot be supervisors, because section 2(g) defines “supervisors” as “individuals] having authority to *** hire *** other employees within the appropriate bargaining unit.” (Emphasis added.) (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(g).) • The CPA maintains this language unambiguously states that, for the supervisor exclusion from the term “educational employee” to be applicable, a person who would otherwise be a “supervisor” must be in the same bargaining unit as the employees being supervised. Citing the rule of statutory construction that every statutory word and phrase must be given effect (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394), CPA contends the word “other” when qualifying the word “employees” must be taken to mean that a person is only a supervisor within the meaning of section 2(g) of the rule when that person is also an employee in the same bargaining unit as those that person supervises. The CPA asserts this interpretation is logical, because the Act envisions a format whereby all but a few of those working for an educational employer should be allowed to choose a bargaining unit, but those in supervisory capacities should not be in the same bargaining unit as those being supervised. The CPA maintains the problems of conflict of interest and loyalty which the Act seeks to avoid are solved by its interpretation of section 2(g) of the Act, by allowing the principals to organize in an entity such as CPA that would not include any personnel being supervised by the principals.

If the General Assembly had intended to permit individuals who devote a majority of their time exercising labor-related supervisory powers over others to organize for collective-bargaining purposes as long as their organization was separate from that of those they supervised, the General Assembly would have so stated directly and not in the extremely indirect manner suggested by CPA. Justifiable concern was expressed by the IELRB that the interpretation promulgated by CPA would virtually eliminate the position of supervisor and would limit those who could not require collective bargaining to those in the managerial category (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(o)) and the few people in the confidential exclusion to section 2(n) of the Act (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(n)). We agree with the IELRB that the legislature did not intend the interpretation maintained by CPA.

Because we uphold the IELRB determination that the CPA members are not “educational employees” within the meaning of section 2(b) of the Act, because they come within the supervisory exclusion set forth in section 2(b) and are thus unable to organize under section 3(a) of the Act, we need not decide whether the IELRB properly determined the principals are also included within the managerial exclusion to section 2(b).

Finally, we come to the question of whether a prior memorandum or past practice required the Board of Education to meet with CPA or its president. In support of its contention such a meeting was required, CPA relies upon section 7(a) of the Act, which states in part:

“Nothing in this Act shall interfere with or negate the current representation rights or patterns and practices of employee organizations which have historically represented employees for the purposes of collective bargaining, including but not limited to the negotiations of wages, hours and working conditions, resolutions of employees’ grievances, or resolution of jurisdictional disputes, or the establishment and maintenance of prevailing wage rates, unless a majority of the employees so represented expresses a contrary desire under the procedures set forth in this Act.” Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1707(a).

The CPA also calls our attention to Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 522 N.E.2d 161. There, an association which had consisted of both patrol officers and supervisors had been meeting with village officials for a period of time concerning wages, hours, and working conditions although the village officials had stated they refused to recognize the group as a bargaining agent. The appellate court affirmed an order of the Illinois State Labor Relations Board (ISLRB) in which the ISLRB had determined the association was entitled to be the bargaining agents for its members by virtue of an historical pattern of recognition within the meaning of section 9(b) of the Illinois Public Labor Relations Act. Ill. Rev. Stat. 1985, ch. 48, par. 1609(b); see also City of Peoria v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 429, 518 N.E.2d 1325.

Here, CPA and its predecessors had met informally with the Board of Education for many years when, in 1965, a memorandum of understanding was entered into recognizing CPA as representing the principals regarding problems related to working conditions, salary, welfare, and professional responsibility. The agreement was extended each year until December 31, 1979, after which no written agreement was entered into. Meetings of some sort occurred until the Act became effective and, during this time, the Board of Education did deduct principals’ CPA dues from the principals’ pay and remitted the money to CPA. The Board of Education also recognized grievances brought by CPA on behalf of a member and processed those grievances until the effective date of the Act.

Prior to the effective date of the Act, the relationship between the association and the village in Village of Oak Park was much more like the ordinary collective-bargaining relationship between employers and exclusive bargaining representatives of the employees than was the situation here. However, certain aspects of such a normal bargaining relationship existed here until the Act took effect. Nevertheless, we deem the difference significant. Although some grievances involved salary, the evidence did not indicate any bargaining as to salary occurred after 1979. We deem this distinction alone sufficient to permit the IELRB to properly conclude no sufficient showing was made that CPA had historically represented the employees for collective-bargaining purposes up until the effective date of the Act.

In addition, the IELRB points out that section 7(a) of the Act speaks of “employee” and “employee organizations.” (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1707(a).) “Supervisors” are excluded from the group designated as “employees” by section 2(b) of the Act. (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1702(b).) Thus, persons who are not “employees” are not entitled by the Act to the benefits of an historical pattern of bargaining. To support its argument, the IELRB relies upon its decisions in Southern Illinois University, 2 Pub. Employee Rep. (Ill.) par. 1090, case No. 85 — UC—0007—S (Illinois Educational Labor Relations Board, June 24, 1986), and Community High School District No. 218, 2 Pub. Employee Rep. (Ill.) par. 1087, case No. 84— UC — 0011—C (Illinois Educational Labor Relations Board, June 24, 1986). In Village of Oak Park, the court specifically explained that, by the terms of sections 3(n) and (s) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, pars. 1603(n), 1603(s)), supervisors were permitted to be in the same bargaining unit as those they supervised if such was the case in a bargaining unit existing at the time of the effective date of that legislation. (Village of Oak Park, 168 Ill. App. 3d at 15, 522 N.E.2d at 166.) The Act contains no such provision. We agree with the IELRB and deem this paragraph to contain an additional reason why the CPA gained no right as an exclusive bargaining representative from its early dealings with the Board of Education.

For the reasons stated, we affirm the IELRB order dismissing the complaint, as amended, against the Board of Education.

Affirmed.

KNECHT and SPITZ, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    GLADYS A. LEWIS, Plaintiff-Appellant, v. CHAMPAIGN COUNTY VFW POST NO. 5520 et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0797
    Opinion filed August 10, 1989.
    Rehearing denied September 19, 1989.
    Raymond R. Kimpel, of Summers, Watson & Kimpel, of Champaign, for appellant.
    Craig J. Causeman and Howard W. Small, both of Thomas, Mamer & Haughey, of Champaign, for appellee Champaign County VFW Post No. 5520.

      Robert P. Moore and David R. Moore, both of Law Offices of Robert P. Moore, P.C., of Champaign, for appellee American Legion Post No. 24.
   JUSTICE KNECHT

delivered the opinion of the court:

This is an appeal from an order granting summary judgment in favor of the defendants in a dramshop action. We affirm.

On July 9, 1988, the plaintiff, Gladys A. Lewis (Lewis), filed a dramshop action (Ill. Rev. Stat. 1985, ch. 43, par. 135) against the defendants, Champaign County VFW Post No. 5520 (VFW) and American Legion Post No. 24 (Legion), to recover damages for the personal injuries she suffered at the hands of William Nelson (Nelson), an intoxicated patron of both taverns.

Following pretrial discovery in the action, the defendants responded with separate motions for summary judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) The VFW initially contended Lewis had not established the intoxication of Nelson. During argument on these motions, however, the VFW joined with the Legion in contending Lewis was guilty of complicity in the intoxication of Nelson.

On August 30, 1988, over the objections of Lewis, the circuit court entered summary judgment in favor of the defendants on the basis of Lewis’ complicity in the intoxication of Nelson.

The following facts were revealed in pretrial discovery: Lewis and Nelson had been involved with one another on both a personal and a professional level for a period of approximately 2V2 years. In that period, as on the day of the incident in question, Lewis and Nelson had often combined their business dealings with casual socializing over alcoholic drinks in the taverns of the defendants. As a result of their socializing, Lewis grew to realize that the potential for violent behavior on the part of Nelson increased with his consumption of alcohol. After being physically attacked by Nelson, Lewis attempted, without any great success, to limit the number of alcoholic drinks he consumed while in her company.

On July 15, 1986, the day of the incident in question, Lewis and Nelson spent most of the morning attending to personal matters in Danville, Illinois. After concluding their personal matters late in the morning, Lewis and Nelson initially stopped off at a tavern to install some business equipment. Nelson consumed his first alcoholic drink of the day during the short time it took to install the equipment. They then returned to Champaign, Illinois. Lewis and Nelson next stopped off at the VFW to inquire about the reinstallation of their business equipment. Following these inquiries, they spent the remainder of the afternoon socializing together at the VFW. Nelson consumed an additional three or four strong alcoholic drinks. Lewis consumed her first weak alcoholic drink of the day. As they left the VFW, Lewis realized Nelson was “feeling” the effects of the alcohol. Lewis and Nelson finally stopped at the Legion to repair some business equipment. After completing these repairs, Lewis and Nelson spent the remainder of the evening socializing with acquaintances at the Legion. Nelson consumed at least another eight strong alcoholic drinks. Lewis consumed an additional two weak alcoholic drinks with water on the side. As Nelson became increasingly verbally abusive with each drink that evening, Lewis attempted to persuade him to return with her to their home. At that point, she did not fear for her physical safety while in the company of Nelson. Nelson ultimately returned with Lewis to their home. On their return, Nelson physically attacked Lewis.

The issue on appeal is whether there was a triable question of fact as to the alleged complicity of Lewis in the intoxication of Nelson. We affirm.

The Dramshop Act (Act) provides:

“Every person who is injured within this State, in person or property, by any intoxicated person has a right of action in *** her own name, severally or jointly, against any person, licensed under the laws of this State *** to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within *** the territorial limits of this State, causes the intoxication of such person.” Ill. Rev. Stat. 1987, ch. 43, par. 135(a).

The Act imposes no-fault liability. (Nelson v. Araiza (1978), 69 Ill. 2d 534, 538, 372 N.E.2d 637, 638.) Despite this form of liability, a plaintiff should not be allowed to profit from her own wrongful acts. (Osinger v. Christian (1963), 43 Ill. App. 2d 480, 483-84, 193 N.E.2d 874-75.) Accordingly, a plaintiff who is guilty of complicity in the intoxication of the alleged inebriate may not recover in a dram-shop action. See James v. Wicker (1941), 309 Ill. App. 397, 33 N.E.2d 169; Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745.

Lewis contends the evidence does not establish she was guilty of complicity in the intoxication of Nelson. In support of her contention, Lewis cites two factors: (1) she did not physically provide any alcoholic drinks for Nelson; and (2) she attempted, without success, to limit the number of alcoholic drinks Nelson consumed while in her company. These factors, standing alone, do not accurately represent the participation of Lewis in the drinking activity of Nelson.

To be guilty of complicity, a plaintiff must actively, though not necessarily voluntarily, encourage or otherwise participate in the intoxication of the inebriate. (Nelson, 69 Ill. 2d at 543, 372 N.E.2d at 641.) The requisite participation is established where the plaintiff (1) physically provides more than a negligible amount of alcohol to the inebriate (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 811-12, 360 N.E.2d 108, 110-11); (2) voluntarily joins in drinking with the inebriate (Krepfl v. Burke (1974), 24 Ill. App. 3d 173, 180, 321 N.E.2d 30, 35); or (3) embarks on a tour of taverns with the inebriate (Meier v. Pocius (1958), 17 Ill. App. 2d 332, 333-34,150 N.E.2d 215, 216).

The facts revealed in pretrial discovery indisputably establish Lewis was guilty of complicity in the intoxication of Nelson. First, Lewis embarked on a tour of taverns with Nelson. Second, Lewis voluntarily joined in drinking with Nelson. Third, Lewis had adequate cause to fear for her physical safety prior to returning to her trailer home with Nelson. For these reasons, we cannot accept the assessment of the evidence as offered by Lewis.

“[I]f the evidence is not disputed and all reasonable persons would conclude that [the] plaintiff voluntarily participated in the drinking [activity of the inebriate] to a material and substantial degree, then such participation bars [the dramshop action of the] plaintiff as a matter of law.” (Tezak v. Cooper (1960), 24 Ill. App. 2d 356, 362, 164 N.E.2d 493, 496.) Given the facts revealed in pretrial discovery, there was no triable question of fact before the circuit court as to the complicity of Lewis in the intoxication of Nelson. We therefore conclude the circuit court properly granted summary judgment in favor of the defendants.

Affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur.


author: JUSTICE LUND

text:
      In re ESTATE OF GEORGE F. DICK, JR., Deceased (Helen A. Dick, Petitioner-Appellant, v. George F. Dick III, Ex’r-Appellee).
    Fourth District
    No. 4—89—0211
    Opinion filed August 17, 1989.
    Rehearing denied September 19, 1989.
    Helen A. Dick, appellant pro se.

    No brief filed for appellee.
    John E. Fick and William M. Rice, both of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for amicus curiae.

   JUSTICE LUND

delivered the opinion of the court:

This appeal follows another attempt by petitioner Helen A. Dick to relitigate matters relating to the estate of George E Dick, Jr., deceased. The estate proceedings were finalized by orders of July 5, 1956. Also involved are petitioner’s past actions against executor George F. Dick III and the Peoples Bank of Bloomington, Blooming-ton, Illinois (Bank). Basically, the present action is another attempt to litigate ownership of 80 shares of the Bank’s common stock eventually left to George F. Dick III under the will of George F. Dick, Jr.

Petitioner’s last litigation relating to these matters ended when the Illinois Supreme Court refused to hear an appeal from our Rule 23 order filed June 9, 1988. (In re Estate of Dick (4th Dist. 1988), No. 4 — 87—0809 (unpublished order under Supreme Court Rule 23).) On November 23, 1988, petitioner filed a revocation of waiver of final notice under the George F. Dick, Jr., estate heading and file number. Petitions for citation were also filed by her in 1988 in the estate file. On February 24, 1989, the circuit court of McLean County entered an order stating the estate was closed, and the recent filings were of no legal effect. Petitioner appeals.

The Dick family and the Bank have been parties of interest in two appeals to this court. (See Peoples Bank v. Dick (4th Dist. 1985), No. 4 — 85—0110 (unpublished order under Supreme Court Rule 23); In re Estate of Dick (4th Dist. 1988), No. 4 — 87—0809 (unpublished order under Supreme Court Rule 23).) An examination of the record establishes that the present proceedings are an attempt to sidestep our previous decisions. Res judicata applies, and the trial court must be affirmed:

“The doctrine of res judicata is based on requirements of justice and public policy and reflects a public policy that requires an end to litigation after each party has had a full opportunity to present all pertinent facts. The doctrine rests on the policy of the law against the bringing of vexatious actions, and its purposes are to protect the defendant from harassment and the public from multiple litigation.” (23A Ill. L. & Prac. Judgments §281, at 74-75 (1979).)

Trial courts should consider sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137) if future actions similar to the present one are filed by petitioner. Injunctive relief might well be appropriate. We are not entering sanctions under Supreme Court Rule 375 (134 Ill. 2d R. 375) because this appeal preceded the August 1, 1989, effective date of the rule.

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

Affirmed.

McCULLOUGH, P.J:, and SPITZ, J., concur.


author: JUSTICE WOODWARD

text:
    WASTE MANAGEMENT OF ILLINOIS, INC., Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Second District
    No. 2—88—0861
    Opinion filed May 25, 1989.

      Pedersen & Houpt, of Chicago (Donald J. Moran, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, and Wayne Wiemerslage, of Environmental Protection Agency, both of Springfield (Robert Ruiz, Solicitor General, and Carla D. Davis, Michelle D. Jordan, and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    William Barrett, Assistant State’s Attorney, of Geneva (David R. Akemann, of counsel), for respondent McHenry County Board.
    Thomas F. Baker, State’s Attorney, of Woodstock, and Michael J. Phillips, Assistant State’s Attorney, of Freeport, for amicus curiae.

   JUSTICE WOODWARD

delivered the opinion of the court:

Appellant, Waste Management of Illinois (Waste Management), appeals from a decision of the Pollution Control Board (PCB), which upheld the McHenry County Board’s (MCB’s) denial of site-location suitability of a new regional pollution control facility (landfill) to be located in unincorporated McHenry County.

In 1986, Waste Management initially petitioned the MCB for site-location suitability approval of a new regional pollution control facility in unincorporated McHenry County, pursuant to section 39.2 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 x/2, par. 1039.2). The MCB held a hearing on the application, which lasted for 20 days and generated a 4,000-page record. The MCB denied the petition on the ground that it was not in accordance with criteria ii and iii of section 39.2(a), which reads in relevant part:

“(a) The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; and
(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release.” (Ill. Rev. Stat. 1985, ch. 111½, par. 1039.2.)

Waste Management appealed this ruling to the PCB, which issued an opinion affirming the MCB’s ruling as to criterion ii and reversing it as to criterion iii.

In Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, this court affirmed the PCB’s findings that criterion ii had not been met and found that it need not address the merits on issues raised concerning the third criterion in view of its decision affirming the PCB’s denial of site-location suitability approval.

In 1987, Waste Management once again sought from the MCB approval of the same landfill application. The entire record of the first proceeding was made part of the record in the 1987 hearing, which, in itself, generated 2,284 pages of transcript, over 50 exhibits, and additional written comments. The MCB again found that Waste Management had not satisfied criteria ii and iii and, consequently, denied the application. Upon review, the PCB upheld the MCB’s decision on the basis that Waste Management’s failure to meet criterion ii defeated the entire application. This appeal followed.

Initially, Waste Management argues that the PCB’s finding regarding criterion ii is against the manifest weight of the evidence. A reviewing court will not reverse an administrative agency’s decision unless it is against the manifest weight of the evidence. (McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89.) Its function is not to reweigh the evidence to substitute its judgment for that of the administrative agency. (154 Ill. App. 3d at 100.) When there is conflicting testimony, the reviewing court is not free to reverse merely because the lower tribunal credits one group of witnesses and does not credit the other. Terminal-Hudson of Illinois, Inc. v. Goldblatt Brothers, Inc. (1977), 51 Ill. App. 3d 199.

It is unnecessary here to restate the voluminous conflicting evidence regarding criterion ii as all parties are well aware of it. After carefully reviewing the evidence presented by both sides, we find that the PCB’s decision affirming the MCB’s finding that Waste Management’s application had not satisfied criterion ii is not against the manifest weight of the evidence. Waste Management’s evidence on the second criterion (ii), primarily through the testimony of Daniel Dietzler, Dan Nelson, and Christopher Lannert, was more than offset by the testimony of David Anderson, Greg Lindsey, George Noble, Musa Qutub, Michael Robinson, Robert Lever, Jerome Chudzick, Gerald DeMers, and Pratapf Singh. This, coupled with the fact that the evidence in the 1986 hearing supported the MCB’s initial decision (see Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434), leaves us with no alternative but to affirm PCB’s decision regarding criterion ii. To do otherwise would be to substitute our judgment for that of the reviewing agency, which, in the instant case, had thoroughly reviewed and evaluated the evidence relating to criterion ii.

Waste Management next argues that criterion iii has been established by the manifest weight of the evidence. As noted above, this court did not address criterion iii in Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434. In Waste Management, the court did not address the MCB’s cross-appeal which challenged the PCB’s reversal of the MCB’s finding that petitioner’s application did not meet criterion iii. This court reasoned that because petitioner’s application failed to meet the second criterion, the entire application must fail. (160 Ill. App. 3d at 443.) It concluded that there was no need to deal with criterion iii. Similarly, in the 1987 proceeding, the PCB did not rule on criterion iii after finding that Waste Management’s application failed as to criterion ii. Here, because of our decision affirming the PCB’s finding that Waste Management did not comply with criterion ii, we need not address the manifest weight of evidence as it relates to criterion iii.

Due to this holding, we need not necessarily address Waste Management’s argument that criterion iii has been established by the doctrine of collateral estoppel. Nevertheless, because this issue may be raised in subsequent proceedings, we will address it.

Waste Management argues that the requirements for the application of the collateral estoppel doctrine as provided in Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, have been met. Specifically, these requirements are (1) that the issue previously decided be identical with the one presented in the case under review; (2) that the party against whom the collateral estoppel is asserted was a party or in privity with a party to the prior litigation; and (3) there has been a final judgment on the merits in the former suit. 114 Ill. App. 3d at 652.

Conversely, the PCB asserts that Waste Management waived the collateral estoppel issue by failing to timely assert that argument before the MCB. The PCB contends that a review of the record reveals that Waste Management failed to raise this issue before the start of the MCB’s 1987 hearing. Instead, Waste Management waited to raise this issue until it submitted proposed findings to the MCB. Also, the PCB emphasizes the fact that Waste Management did not make a prehearing motion, which argues that the MCB was collaterally estopped from making a finding regarding criterion iii. Moreover, the PCB argued that Waste Management presented evidence supporting its claim that its proposal had satisfied criterion iii.

In reply, Waste Management argues that it did not waive its right to assert the collateral estoppel doctrine. Waste Management contends that it acted consistently with its claims of collateral estoppel by putting on only one witness whose direct examination took only 14 pages of transcript. Waste Management states that this minimal testimony was necessary to show the MCB that the facts had not changed significantly, as the single witness indicated. Consequently, the requirements for asserting the doctrine of collateral estoppel were met.

In general, estoppel is an affirmative defense which must be pleaded to be available. (Hoover v. Crippen (1987), 163 Ill. App. 3d 858.) A party claiming estoppel has the burden of establishing it by clear, concise, and unequivocal evidence. Johnson v. Security Insurance Co. (1985), 135 Ill. App. 3d 690.

The PCB contends that A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, is analogous to the present case. In A.R.F Landfill, this court held that A.R.F waived its right to object to any claim of bias or prejudice of the county board members by failing to object on that basis in any of the proceedings prior to or during the local hearings. (A.R.F. Landfill, 174 Ill. App. 3d at 88.) The PCB argues that it was similarly improper for Waste Management to wait until the conclusion of the MCB’s hearing to raise the issue of collateral estoppel and that, by failing to raise the issue at the opening of the MCB’s second application proceeding, Waste Management waived this issue. We agree. It was up to Waste Management to raise the issue of collateral estoppel as to criterion iii at the beginning of the 1987 siting hearing. Not only did it not raise the issue at the proper time, it, in essence, relitigated the issue by calling Thomas Collins as a witness to address criterion iii. If, as Waste Management contends, the PCB and MCB were estopped to relitigate the third criterion, then it should have offered no testimony regarding said criterion. This testimony only serves to further negate its argument that the collateral estoppel issue was not waived.

For the reasons stated above, we affirm the judgment of the Pollution Control Board.

Affirmed.

NASH and INGLIS, JJ., concur.


author: JUSTICE NASH

text:
    THE TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Ex’r under the Will of John F. Cuneo, et al., Defendants-Appellees.
    Second District
    No. 2—88—1246
    Opinion filed August 18, 1989.

      Charles L. Siemon and James N. Azim III, both of Siemon, Larsen & Purdy, of Chicago (Gerald P. Callaghan, of counsel), for appellant.
    Charles E Marino, of Chicago, for appellee Village of Mundelein.
    John J. Lawlor, of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee North Shore Gas Company.
    Gerald J. Porento, of Commonwealth Edison Company, of Chicago, for appellee Commonwealth Edison Company.
    Robert E. Wiss and John J. Foran, both of Foran, Wiss & Schultz, of Chicago (Thomas A. Foran, of counsel), for other appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, the town of Libertyville, filed a complaint pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.), in which it sought to condemn fee simple and less than fee simple interests in real property held by defendants, Continental Illinois National Bank and Trust Company of Chicago, as executor under the will of John E Cuneo; Continental Illinois National Bank and Trust Company of Chicago, John F. Cuneo, Jr., Conseula Cuneo McAlister, Charles L. McEvoy and William G. Myers, as trustees under trust Number 31 — 45799—9; Continental Illinois National Bank and Trust Company of Chicago, Julia Shepherd Cuneo, Lawrence A. Byrne and Russell G. DeYong, as trustees under the will of John F. Cuneo; Julia Cuneo; and The Cuneo Foundation.

The fee simple interest sought to be taken was alleged to be in land which cannot be farmed and the property in which less than a fee simple interest was sought to be taken by plaintiff was used primarily for farming purposes. Plaintiff appeals from an order of the trial court which granted defendants’ motion for summary judgment and dismissed its complaint. Plaintiff contends that defendants’ property is not exempt from condemnation under section 4.02 of the Act (Ill. Rev. Stat. 1985, ch. 139, par. 324.02) because the fee simple property is not used for farming or agricultural purposes, and the remaining property is primarily held for investment and development, and not for agricultural purposes. Alternatively, plaintiff requests this court to reconsider its decision in Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 1070-71, 504 N.E.2d 1305, where we held that the Act does not permit the taking of a conservation easement by this plaintiff where the real estate presently qualifies as farm or agricultural land. We affirm.

Initially, we note that, while plaintiff’s complaint contains a legal description of all of the land it seeks to condemn, it cannot be determined from the record which portions of defendants’ land plaintiff seeks to take in fee simple and those portions in which it seeks a less than fee simple interest. The parties agree that of the 880 acres of land involved in this case, plaintiff seeks to acquire a less than fee interest in approximately 780 acres, which plaintiff refers to as the easement property on appeal.

The complaint alleges that the Act authorizes Libertyville to acquire for the purpose of its open-space program a fee simple title, or such lesser interest as it desires in the property, and that it adopted a resolution declaring taking of the property to be a matter of public necessity. The complaint also alleges that the less than fee simple interests to be taken will be restricted by the township to certain uses, including farming, agricultural, existing residential, and foot and bicycle trails. The less than fee interest is described in the resolution as “that interest, the acquisition of which will restrict and limit the development of those portions of the Property to activities for which they are presently used, subject to certain conservation and other restrictions necessary to accomplish the purposes of the Open Space Act.”

Defendants first moved to dismiss the complaint on the ground, inter alia, that plaintiff had no eminent domain power to condemn the property because of the farmland exemption under the Act. (See Ill. Rev. Stat. 1987, ch. 139, par. 324.02.) Before the trial judge ruled on this motion, defendants “move[d] for a summary judgment of dismissal of the Complaint For Condemnation” requesting the trial court “to enter an order granting defendant summary judgment in their favor and against the Plaintiff, dismissing the complaint.”

Defendants’ motion for summary judgment reasserted that plaintiff did not have the authority to condemn the property because it is used for farming or agricultural purposes, that all of the property has been and is currently devoted primarily to raising and harvesting crops and that our decision in Town of Libertyville v. Bank of Waukegan thus precludes condemnation. The affidavit of William G. Myers, a defendant in this case, states that the real estate which plaintiff seeks to condemn is part of a 1,520-acre tract of land commonly known as Hawthorn-Mellody Farms. For many decades, and currently, Hawthorn-Mellody Farms has been devoted primarily to income-producing farming and agricultural purposes which have included the raising and harvesting of crops, and the feeding, breeding, and management of livestock. The unimproved portions of the property consist of trees and shrubs, and two bodies of water and a section of the Seavey Drainage Ditch, which together provide drainage and a source of irrigation for cropland. The property also contains roadways and rights-of-way, and the only buildings on the property are barns, silos, other farm-related structures, and five residences which occupy less than one acre of land. For the 1977 real estate tax assessment year, all of the property, with the exception of a 150-foot strip of land identified in the complaint as parcel 1, was assessed and taxed as farmland under sections 20a — 1 through 20a — 3 of the Revenue Act of 1939, and the use of the property has not changed since 1977. Myers further stated in his affidavit that the property continues to be assessed as farm or agricultural property under section 20e of the Revenue Act of 1939, effective August 1977 (Ill. Rev. Stat. 1985, ch. 120, par. 501e).

In a supplemental affidavit, Myers states that prior to 1984, Processing and Books, Inc., the capital stock of which is owned by the Cuneo family or trustees for their benefit, conducted all farming activities on Hawthorn-Mellody Farms. For 1984 and subsequent years, farming activities were conducted by Robert J. Meyer, an independent farmer. Payments by Meyer for the use of Hawthorn-Mellody Farms were $118,220, $123,360, and $113,000 for 1984, 1985, and 1986, respectively.

Robert W. Kozel, vice-president of Processing and Books, Inc., states in his affidavit that income and expense from the farming operations at Hawthorn-Mellody Farms in 1983 were $183,475 and $148,635, respectively. Income and expense attributable solely to the property sought to be taken by plaintiff were not separately stated.

In his affidavit Robert J. Meyer states that he is engaged in the business of farming, and that for the years 1984 through 1986, he rented 1,028 acres of the Hawthorn-Mellody Farms’ land for the purpose of growing crops. Estimated income, expense, and rental payments for these years were as follows:

1984 1985 1986
INCOME $ 263,682 $ 270,420 $ 212,540
EXPENSE -129,110 -137,109 -126,995
RENT -118,220 - 123,360 -113,000
NET INCOME $ 9,951 - $27,455 $ 16,352

Because Meyer does not maintain separate records for his farming business, he is unable to calculate the income or expense attributable to the land, or any portion of it, that he farms at Hawthorn-Mellody Farms. Meyer’s estimated income and expense for Hawthorn-Mellody Farms property were calculated by considering the number of acres of Hawthorn-Mellody Farms land devoted to the growing of soybeans and corn; the total number of acres Meyer grows in soybeans and corn; Meyer’s total income and expense, exclusive of rent, attributable to soybean and corn crops; and the estimated crop yield from Hawthorn-Mellody Farms. Meyer farms all tillable portions of the property which is the subject of the complaint for condemnation.

Affidavits and depositions submitted by plaintiff in opposition to the defendants’ motion state that, at the time the complaint for condemnation was filed, defendants had been negotiating for over eight years with the Village of Libertyville and the Village of Vernon Hills regarding the possible annexation and rezoning of the unincorporated portions of Hawthorn-Mellody Farms. A petition for annexation filed in 1985 with the Village of Libertyville, which was subsequently withdrawn, contemplated various uses, including residential, office, commercial, and industrial. A market absorption and fiscal impact analysis prepared by Allen L. Kracower & Associates, Inc. (Kracower), an urban planner retained by defendants several years ago, which was submitted to the Village of Libertyville in connection with the annexation proposal, projected that by the year 2009, the market would absorb 4,443 residential dwelling units and 7,501,960 square feet of light industrial, commercial, and office space. A petition for annexation filed with the Village of Vernon Hills in 1988 also proposes the construction of a residential and commercial regional planned unit development. Lane Kendig, a professional land use planner retained by plaintiff, reviewed the petitions to annex and rezone the property and opined that defendants were in the process of developing the property for commercial and residential purposes. Kracower testified at his deposition that, with defendants’ permission, he erected a sign on the property which described the property as a planned commercial, office, and residential development. Defendants received numerous inquiries and offers after the sign was erected and sold 129 acres of the property during 1988. (Because defendants do not argue that this appeal is moot as to the property sold, we do not consider the issue. (See Town of Libertyville v. Moran (1989), 179 Ill. App. 3d 880, 886, 535 N.E.2d 82).) Defendants have also retained a traffic consultant, a law firm, and a civil engineer in connection with the proposed annexation and rezoning of the property.

The trial court granted defendants’ motion for summary judgment and dismissed the complaint. While the court did not state the basis for its ruling, the motion only alleged that Libertyville did not have the power to condemn the property because of its primary use for farming purposes.

Plaintiff appeals, contending that because the fee simple property is not farmable and the remaining property is primarily held for investment and developmental purposes, the property is not used for farming or agricultural purposes, and it thus does not qualify for exemption from condemnation under the Act. Plaintiff also requests this court to reconsider its holding in Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 504 N.E.2d 1305.

Plaintiff instituted this eminent domain proceeding under its open-space program which it adopted pursuant to the Act. (See Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.) The Act purports to authorize plaintiff to acquire the fee or a lesser right or interest in tracts of open land in its township for open-space purposes. (Ill. Rev. Stat. 1985, ch. 139, par. 322(e).) A township may acquire such land “by gift, legacy, purchase, condemnation *** except where the real estate qualifies for additional valuation under Sections 20a — 1 through 20a — 3 of the ‘Revenue Act of 1939’ because of its use for farming purposes, lease, agreement or otherwise the fee or any lesser right or interest in real property that is open land.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 139, par. 324.02.) While sections 20a — 1 through 20a — 3 of the Revenue Act of 1939 have been repealed (Pub. Act 83 — 347, eff. September 14, 1983) (repealing Ill. Rev. Stat. 1981, ch. 120, pars. 501a — 1 through 501a — 3), statutes which adopt by specific reference provisions of other statutes are not affected by a subsequent amendment or repeal of the incorporated statute. (North Shore Sanitary District v. Pollution Control Board (1973), 55 Ill. 2d 101, 106, 302 N.E.2d 50.) Accordingly, sections 20a — 1 through 20a — 3 apply in this case notwithstanding the repeal of those sections. See Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 326-27.

Property qualifies for additional valuation under section 20a— 1 of the Revenue Act of 1939 if it is used for farming or agricultural purposes for the three years immediately preceding the real estate tax assessment year. Real property is used for farming or agricultural purposes if it was (1) more than 10 acres in area and (2) devoted primarily to the raising and harvesting of crops, feeding, breeding and management of livestock, dairying, or any other agricultural or horticultural uses (3) with the intention of securing substantial income from those activities. Real property used for farming purposes includes the construction and use of dwelling and other buildings customarily associated with farming uses when associated with such uses. Ill. Rev. Stat. 1981, ch. 120, par. 501a — 1.

Libertyville first contends, without citation to authority, that the property in which it seeks a fee simple interest is not exempt from condemnation because it is not used for farming. This property primarily contains trees and shrubs, two bodies of water, a drainage ditch, roadways, rights-of-way, and farm-related structures. Five residences which occupy less than one acre of the land are also located on the property.

The Revenue Act only requires that the property be devoted primarily, and not exclusively, to farming or agricultural purposes, and dwellings or other buildings normally associated with farming or agricultural uses do qualify for additional valuation under section 20a — 1 of the Revenue Act. (Ill. Rev. Stat. 1981, ch. 120, par. 501a — 1.) Plaintiff’s construction of the terms “farming” or “agricultural” purposes ignores reason and reality. Under plaintiff’s construction of these terms, if a farmer planted trees or bushes to prevent soil erosion, that land could be condemned by Libertyville as it is not actually being farmed. We decline to adopt such a narrow construction. “The definition given by Webster [agricultural] is, ‘of or pertaining to agriculture; connected with, or engaged in tillage.’ ” (People ex rel. Pletcher v. City of Joliet (1926), 321 Ill. 385, 388, 152 N.E. 159, 160.) An agricultural purpose has not been restricted to the growing of crops in Illinois. (County of Lake v. Cushman (1976), 40 Ill. App. 3d 1045, 1050, 353 N.E .2d 399; see, e.g., Soil Enrichment Materials Corp. v. Zoning Board of Appeals (1973), 15 Ill. App. 3d 432, 435, 304 N.E.2d 521 (the construction of a four-million-gallon pot which held sewage sludge to be pumped to surrounding farmlands for use as a fertilizer was an agricultural use).) Here, the unimproved portions of the property in which plaintiff seeks a fee simple interest contain trees and shrubs, and bodies of water and a drainage ditch which provide a source of irrigation and drainage for cropland. The property also contains farm structures, roadways, and rights-of-way. In addition, we note that the property currently qualifies for assessment under section 20e of the Revenue Act, which provides special tax assessment rules for real property constituting a farm (Ill. Rev. Stat. 1985, ch. 120, par. 50le), which is defined, inter alia, as “land used solely for the growing and harvesting of crops” (Ill. Rev. Stat. 1985, ch. 120, par. 482(21)). We conclude that the fee simple property was primarily used for farming or agricultural purposes and may not be taken by plaintiff.

Plaintiff next contends that the less than fee simple property it wishes to acquire control of is devoted primarily to investment and development purposes, and not for farming or agriculture. Plaintiff did not challenge affidavits submitted by defendants in the trial court describing the substantial income derived from the property by farming it. In its reply brief, plaintiff states that the profit and loss statements submitted by defendants are not relevant to the consideration of whether the property qualifies for additional valuation under the Revenue Act of 1939, and Libertyville does not dispute the substantial income derived from farming activities. Plaintiff argues, instead, that the holding of property for investment and developmental purposes constitutes a present use of the property and that defendants’ primary use of the property is for these purposes. We find Santa Fe Land Improvement Co. v. Illinois Property Tax Appeal Board (1983), 113 Ill. App. 3d 872, 448 N.E.2d 3, to be dispositive of this argument.

In Sante Fe, the plaintiff filed an application with the tax assessor seeking agricultural valuation of its property under section 20a — 1 of the Revenue Act. (Ill. Rev. Stat. 1975, ch. 120, par. 501a — 1.) The undisputed facts showed that all tillable land was used to grow crops; utilities had been constructed several years prior to the assessment year; roads had been constructed on the property; the land had been zoned industrial; and the plaintiff had marketed industrial park sites. (Santa Fe Land Improvement Co., 113 Ill. App. 3d at 873, 448 N.E.2d at 4.) The court held that the present use of the property controls. (Santa Fe Land Improvement Co., 113 Ill. App. 3d at 875, 448 N.E.2d at 5-6; see also Du Page Bank & Trust Co. v. Property Tax Appeal Board (1986), 151 Ill. App. 3d 624, 627, 502 N.E.2d 1250.) The statute does not speak to possible alternative uses or intended future uses. “[T]he lands in question which in 1978 were farmed and had not been sold as industrial development sites were used solely for the growing and harvesting of crops.” (Santa Fe Land Improvement Co., 113 Ill. App. 3d at 875, 448 N.E .2d at 6.) From the foregoing, we conclude that although defendants may be contemplating nonagricultural uses of their property at some unspecified time in the future, the present use of the property for farming qualifies it for farmland assessment under section 20a — 1 of the Revenue Act, and it is thus exempt from condemnation under section 4.02 of the Township Open Space Act. Ill. Rev. Stat. 1985, ch. 139, par. 324.02.

Plaintiff also contends that because the less than fee interest it seeks is a conservation easement (see Ill. Rev. Stat. 1987, ch. 30, par. 401), that interest is not devoted to a farming or agricultural use and is not exempt. Plaintiff requests that we reconsider our decision in Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 1070-71, 504 N.E .2d 1305, 1308-09, where this court held that a township may not acquire by condemnation the fee or any lesser right or interest in property which is used for farming or agricultural purposes. As we have concluded that the land in which plaintiff seeks a less than fee interest qualifies as farmland, plaintiff’s argument is without merit, and we decline to reconsider our decision in Town of Libertyville v. Bank of Waukegan.

Recent amendments to the Act support our decision. Since our holding in Bank of Waukegan, the legislature has amended the Act (Pub. Act 85 — 1140, eff. July 29, 1988) in certain respects, but did not do so to change our construction that a township is not permitted to condemn developmental rights where the underlying property is used for farming. The legislature’s reenactment of a statute which has been judicially construed is tantamount to an adoption of that construction. (Independent Voters v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90, 99-100, 510 N.E.2d 850.) Furthermore, we note that a bill introduced in the Illinois House of Representatives, which was not passed (see Final Legislative Synopsis & Digest 1415 (Legislative Reference Bureau 1989)), would have granted the condemnation power plaintiff asserts here. HB3006 provided that a township may acquire pursuant to an open-space program “the fee or *** a lesser right or interest, including development rights in land used for farming or agricultural purposes.” Regarding section 4.02 of the Act, the bill further provided that “in no event shall this subsection, as it relates to condemnation of real estate interests which qualify for additional valuation under Sections 20a — 1 through 20a — 3 of the ‘Revenue Act of 1939’ because of their use for farming or agricultural purposes, be construed to limit the township’s ability to condemn the development rights in land used for farming or agricultural purposes.” (Emphasis in original.) (85th Ill. Gen. Assem., House Bill 3006, 1988 Sess.) Plaintiff can acquire no rights from proposed legislation which has not been enacted.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


text:
      In re MARRIAGE OF MARK JOHNSON, Petitioner-Appellee, and ANNE MARIE JOHNSON, n/k/a Anne Nadler, Respondent-Appellant.
    Second District
    No. 2—88—1261
    Opinion filed August 18, 1989.

      Bruce A. Brown and Fred T. Myers, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora, for appellant.
    Gilbert X. Drendel, Jr., and Susan B. Tatnall, both of Drendel, Schanlaber, Horwitz & Tatnall, of Aurora, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Respondent, Anne Marie Johnson, n/k/a Anne Marie Nadler (Anne), appeals from an order of the circuit court dismissing her petition to modify the joint-parenting agreement entered into by Anne and petitioner, Mark Johnson (Mark). Anne raises two issues on appeal: (1) whether the two-year requirement of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)) is applicable to a joint-parenting agreement entered pursuant to section 602.1 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 602.1); and (2) even if section 610(a) is applicable, whether the joint-parenting agreement served to waive the affidavit requirement of section 610(a).

Anne and Mark’s marriage was dissolved on June 29, 1987. The court incorporated a joint-parenting agreement into the judgment of dissolution under the terms of which the parties were awarded joint custody, with Mark being the primary custodian of the two children. Anne was awarded “possession” of the children according to a framework set out by the parties.

On November 10, 1988, Anne filed a petition to modify the agreement, alleging that at the time judgment was entered on the agreement, she was working approximately 60 hours per week and was unable to spend much time with the children. Anne further alleged that the agreement designated Mark the primary custodian because of Anne’s work schedule. Since the date when the judgment was entered, Anne had remarried and quit her job, and at the time the petition was filed she was not working and had more time to spend with the children.

Anne asserted that the parties had modified the original agreement by setting up an arrangement whereby the children lived with Anne one week, and with Mark the following week. This plan of alternating weeks with the children ended when, in September 1988, Mark unilaterally and without agreement from Anne reinstated the original agreement. Anne requested that the court modify the agreement to provide that Anne would be the primary custodian of the children.

In response to the petition, Mark filed a motion to dismiss the petition and a petition to enforce the agreement and judgment. The essence of Mark’s motion to dismiss was that Anne’s petition to modify was filed within two years of the entry of the judgment and did not include affidavits alleging that the children’s physical, mental, or emotional health was in danger.

The court granted Mark’s motion to dismiss the petition on the basis that it had been filed within two years of the judgment and lacked affidavits, as required by section 610(a) (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)). The court entered an order that stated “there is no just reason for delaying enforcement or appeal of this order,” but also continued the proceedings, giving petitioner leave to refile the petition with affidavits. On the basis of the order that there was no just reason to delay enforcement or appeal of the order, Anne filed this appeal.

In her jurisdictional statement, Anne states that this court’s jurisdiction is based on the finding of the trial court that no just reason existed to delay enforcement or appeal of the order, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Although the parties have not raised the issue, it is the responsibility of the reviewing court to determine if it has jurisdiction. See Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252, 1253.

Rule 304(a) provides that when there is a final judgment as to less than all parties or claims, an appeal may be taken if the trial court makes the requisite finding in writing. (107 Ill. 2d 304(a).) However, inclusion of the “magic language” does not by itself make an interlocutory order appealable. (See In re Marriage of Leopando (1983), 96 Ill. 2d 114, 120, 449 N.E.2d 137, 140.) The Illinois Supreme Court in Leopando held that a petition for dissolution of marriage advances a single claim, and all ancillary issues are related to that claim. (Leopando, 96 Ill. 2d at 119, 449 N.E.2d at 140.) The court, in In re Custody of Purdy (1986), 112 Ill. 2d 1, 490 N.E.2d 1278, rilled that the Leopando holding does not apply to post-dissolution proceedings, stating that the order at issue there was appealable because it disposed of all related claims. Purdy, 112 Ill. 2d at 5, 490 N.E.2d at 1279-80.

An order is final and appealable if it terminates the litigation between the parties on the merits so that, if affirmed, the trial court need only execute the judgment. (Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115, 518 N.E.2d 116, 118.) If an order does not dispose of all the issues, it is final and appealable only if it disposes of the rights of the parties either on the entire controversy or on some separate part of it. (Kellerman, 119 Ill. 2d at 115, 518 N.E.2d at 118.) If the order in the present case is interlocutory, it may only be appealed pursuant to Rule 306(a)(l)(v). 107 Ill. 2d R. 306(a)(l)(v); Leopando, 96 Ill. 2d at 120, 449 N.E.2d at 140; In re Marriage of Kitchen (1984), 126 Ill. App. 3d 192, 195, 467 N.E.2d 344, 347.

The order in this case is neither final nor appealable for two reasons. First, it is not final because the court advised respondent’s counsel that he could refile the dismissed petition with affidavits. An order dismissing a pleading is not final unless it is entered with prejudice. (Bundy v. Church League (1984), 125 Ill. App. 3d 800, 803, 466 N.E.2d 681, 684.) In addition, the order did not dismiss the petition on the merits, but because no affidavits were attached and the petition was filed within two years of the judgment of dissolution. Second, the order did not dispose of all related claims and issues. Although the order did not specify why the matter was continued, the court had yet to rule on petitioner’s other petition to enforce the original custody judgment. Had the court denied the petition to enforce, any modification by the parties would have de facto governed. If the court had granted the petition to enforce, respondent would have been able to appeal that order along with the order dismissing her petition. Thus, this court lacks jurisdiction to hear the appeal.

Even if we had jurisdiction, this appeal should also be dismissed because the issue is moot. An appeal is moot when there is “ ‘no real present question involving actual interests and rights.’ ” (People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 8, 520 N.E.2d 316, 319, quoting Chicago City Bank & Trust Co. v. Board of Education (1944), 386 Ill. 508, 520, 54 N.E.2d 498.) The judgment of dissolution of marriage was entered on June 29, 1987, and two years from that date is June 29, 1989. Since more than two years have passed, section 610(a) will no longer apply, and respondent may petition for modification of the custody order based on a change of circumstances pursuant to section 610(b) (Ill. Rev. Stat. 1987, ch. 40, par. 610(b)). Consequently, the question of whether section 610(a) applies to the joint-parenting agreement is moot in this case.

Accordingly, the appeal will be dismissed.

Appeal dismissed.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE McNAMARA

text:
    BRADLEY PRINTING COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Betty Dunn, Wife of James O. Dunn, Deceased, Appellee).
    Second District (Industrial Commission Division)
    No. 2—88—1138WC
    Opinion filed July 21, 1989.
    Rehearing denied September 19, 1989.

      Mark A. Braun, of Braun, Lynch, Smith & Strobel, Ltd., of Chicago, for appellant.
    Frank J. Wiedner, of Wiedner & McAuliffe, and Industrial Commission of Illinois, both of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Betty Dunn, brought an action under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) seeking to recover death benefits for fatal injuries sustained by her husband, James Dunn. The arbitrator found that Dunn’s death arose out of and in the course of his employment with Bradley Printing Company and awarded benefits in the amount of $456.33 per week to be paid to claimant on her behalf and on behalf of minor children until the sum of $250,000 has been paid or until the period of 20 years has passed, whichever is greater. The arbitrator additionally awarded $1,750 for burial expenses. The arbitrator’s findings and award were upheld by the Industrial Commission (Commission), and the circuit court of Du Page County confirmed the decision of the Commission. Bradley appeals, alleging that the Commission’s finding that Dunn’s death arose out of and in the course of his employment is against the manifest weight of the evidence.

In August 1983, Dunn was employed as a salesman for Bradley. Bradley salesmen are paid on a commission basis. Dunn worked primarily on accounts in the Chicago area, but there were no limitations on his territory. His customer and prospect list included six names outside the Chicago area, two in Indiana, and one each in Michigan, Florida, Arizona and Minnesota. Peter Schon, Dunn’s sales manager, testified that Dunn had informed him that he was working on the accounts in Michigan and Indiana.

In July 1983, Dunn advised Schon that he would be vacationing in Three Rivers, Michigan, during the first half of August 1983. Schon testified that Dunn also informed him that he intended to combine work and vacation at that location. Claimant testified that Dunn arrived at Three Rivers on August 6, 1983. For the next 10 days, Dunn traveled between Three Rivers and Chicago twice. When he was in Three Rivers, Dunn made several telephone calls to customers. Claimant testified that during previous years, Dunn had followed a similar practice of commuting between Three Rivers and Chicago and of making business telephone calls when in Three Rivers.

On August 16, 1983, Dunn drove to Chicago from Three Rivers. On the way to Chicago, Dunn took a family friend to O’Hare airport. He then called on a customer in Aurora and finally proceeded to Bradley. Schon testified that he spoke with Dunn that afternoon on the company premises. Dunn advised Schon that he was picking up proofs for a prospective client. Dunn indicated that he wanted to review the proofs personally and hand deliver them to the client.

On August 17, 1983, Dunn attended a scheduled sales meeting at Bradley. Kenneth Vander Wheele, Bradley’s vice-president of finance, testified that it was company policy for salesmen to attend scheduled meetings unless excused by Schon or another principal. Vander Wheele stated, however, that attendance records were not kept of these meetings and that he knew of no disciplinary action if a salesperson did not attend a meeting. Schon stated, however, that it was his practice to contact any salesperson who did not attend a sales meeting. He would demand an explanation for the absence and personally would ensure that the person received and understood the information presented at the meeting. Approximately 20 of the 28 salesmen attended the August 17 meeting.

Schon testified that following the sales meeting, Dunn advised him of a successful meeting with a prospective customer on the previous day. Dunn further stated that after leaving the office, he intended to make several customer stops on the return trip to Three Rivers. Later that afternoon, Dunn sustained fatal injuries in an automobile accident which occurred on the Indiana tollroad 1-80.

Following Dunn’s death, claimant met with Schon and Richard Joutras, the chairman of the board at Bradley. Claimant brought Dunn’s work in progress and all other items connected with his business. Claimant testified that Joutras represented to her that Bradley agreed to share the commissions to which Dunn was entitled. She stated that Joutras acknowledged that Dunn was working at the time of the accident and that additional compensation would be provided for the loss. Joutras testified that he recalled the meeting but did not remember stating anything specific with regard to Dunn being within the scope of his employment at the time of his death.

The arbitrator entered an award based on his finding that in light of all the circumstances, the fatal injuries sustained by Dunn arose out of and in the course of his employment with Bradley. The arbitrator’s findings were upheld by the Commission and subsequently were confirmed by the circuit court.

Bradley first argues that the Commission incorrectly based its conclusion on the assumption that Dunn’s August 17, 1983, trip from Chicago to Three Rivers had a business purpose. Bradley maintains that at the time the accident occurred, the business character of Dunn’s trip had ended and the trip had become personal.

Initially we note that Bradley urges this court to view the August 16 trip from Three Rivers to Chicago and the August 17 trip from Chicago to Three Rivers as distinct units. In our view, however, these trips were both part of one cohesive trip and should not be analyzed as separate units.

Generally, whether an incident arose out of and in the course of employment depends first upon the purpose of the trip taken. (Boyer Chemical Laboratory Co. v. Industrial Comm’n (1937), 366 Ill. 635, 10 N.E.2d 389.) The test for determining the purpose of a trip which has both personal and business characteristics, first enunciated in Marks’ Dependents v. Gray (1929), 251 N.Y. 90, 93-94, 167 N.E. 181, 183, is as follows:

“If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. [Citation.] If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

We believe that Dunn’s employment with Bradley created, the necessity for the trip from his temporary residence in Three Rivers to Chicago. The Commission was presented with evidence that Dunn notified Bradley he would be in Three Rivers the first part of August 1983 and that he intended to, and did, conduct business from that location. During the next week and a half, Dunn commuted between Three Rivers and Chicago for business purposes. On August 16, 1983, he left Three Rivers and proceeded to Chicago for the purpose of dropping a friend off at the airport, conducting business, and attending the Bradley sales meeting. The record reveals that on August 16, Dunn in fact went to the airport, met with a customer, and then performed various other business activities and that on August 17, he attended the sales meeting. After the meeting, Dunn informed his manager that he intended to make business calls. In view of these activities, we conclude that there was ample evidence to support the Commission’s determination that the trip beginning on August 16 had a business purpose.

Bradley nonetheless maintains that because the sales meeting was not mandatory, Dunn’s decision to attend that meeting was purely personal and, therefore, the purpose of his trip was personal. One of Bradley’s officers, however, testified that salesmen were expected to attend the meetings and that absences from the meetings required prior approval. Thus, the decision to return to Chicago to attend the sales meeting was not a personal decision on Dunn’s part. Rather, the decision to attend the meeting was motivated by business concerns.

Bradley additionally contends that because Dunn took a friend to the airport before conducting any business, the purpose of his trip was personal. We believe, however, that this personal deviation does not alter the overall character of the trip. The deviation was completed and the business route resumed once Dunn proceeded from the airport to the business destination.

Bradley also maintains that even if the trip had a business character, the Commission’s conclusion that Dunn’s accident arose out of and in the course of his employment with Bradley was erroneous. Bradley urges that Dunn’s activities at the time of his death were not reasonably within the course of his employment. Bradley concludes that Dunn had completed any business and he had begun the return trip to his vacation home.

Generally, an employee’s injury sustained in transit between the employee’s home and place of employment does not arise out of and in the course of employment, and therefore, is not covered under the Act. (Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 210 N.E.2d 209.) An exception to that rule exists when the employee is a traveling employee. In such situations, courts will not separate the going to and coming from work from the moment the traveling employee actually is calling on a customer. (Urban v. Industrial Comm’n (1966), 34 Ill. 2d 159, 214 N.E.2d 737.) In order to be compensable, however, the injury must be suffered in the doing of something which the employee reasonably may do at any time during which he is employed and at a place where he reasonably may be during that time. Urban v. Industrial Comm’n (1966), 34 Ill. 2d 159, 214 N.E.2d 737; J.E. Porter Co. v. Industrial Comm’n (1921), 301 Ill. 76,133 N.E. 652.

The question of whether an injury arose in the course of employment is a question of fact, and the Commission’s resolution on that issue will not be disturbed on appeal unless manifestly against the weight of the evidence. (Aaron v. Industrial Comm’n (1974), 59 Ill. 2d 267, 319 N.E.2d 820.) The test of whether a decision of the Commission is supported by the manifest weight of the evidence is not whether the reviewing court might reach the opposite conclusion on the same evidence, but whether there is sufficient factual evidence in the record to support the decision. Benson v. Industrial Comm’n (1982), 91 Ill. 2d 445, 440 N.E.2d 90.

We believe that there is sufficient evidence to support the Commission’s decision. Dunn’s fatal accident occurred in Indiana, on the route which he normally used to go to his Three Rivers temporary residence. Nevertheless, the evidence presented at trial indicates that Dunn was a traveling employee engaged in a course of conduct consistent with his employment. Therefore, in our judgment, his activities remained compensable. (See Urban v. Industrial Comm’n (1966), 34 Ill. 2d 159, 214 N.E .2d 737.) We believe that at the time of his death, Dunn was conducting an activity which he reasonably might be expected to do as part of his employment, and he was at a place where he reasonably might be at that time. See Robinson v. Industrial Comm’n (1983), 96 Ill. 2d 87, 449 N.E.2d 106.

Bradley was aware both of Dunn’s temporary residence in Three Rivers and of his commute from Three Rivers to Chicago to conduct business. Furthermore, Dunn’s activities on August 16 and August 17 were such that Bradley reasonably could have foreseen their occurrence. Dunn conducted business, met with his manager, and attended a scheduled sales meeting. After the sales meeting on August 17, he informed the sales manager that he intended to make several business calls on the return trip to Three Rivers. The accident occurred in Indiana, a State in which Dunn had prospective clients.

There is no indication that Dunn had embarked upon a course of conduct incompatible with his work at any time after the sales meeting and prior to the automobile accident. Thus we conclude that the Commission properly determined that Dunn’s activities that day were neither unforeseeable nor unreasonable and that he remained in the course of his employment. Accordingly, we find that the Commission’s determination is not against the manifest weight of the evidence.

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

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
    CLAUD THOMPSON, d/b/a C & D Corporation, Plaintiff-Appellant, v. PATRICK CADILLAC et al., Defendants-Appellees.
    Second District
    No. 2—88—0968
    Opinion filed August 15, 1989.
    Rehearing denied September 20, 1989.

      Maureen H. Flaherty, of Lehrer, Flaherty & Canavan, of Wheaton, for appellant.
    Andrew J. Katlin, of Rosenthal & Schanfield, of Chicago, for appellee Patrick Cadillac.
    Michael J. Daley, of Nisen & Elliott, of Chicago, for appellee David Hoffman.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Claud Thompson, d/b/a C & D Corporation, appeals from a summary judgment entered in favor of defendants, Patrick Cadillac, David Hoffman, and Greater Chicago Auto Auction, Inc., contending that the trial court erred when it found that plaintiff did not have standing to sue because C & D Corporation was not incorporated under the Business Corporation Act of 1983 (see Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.). We reverse and remand.

In November 1983, plaintiff purchased a 1981 Cadillac from defendant Patrick Cadillac Company, which had purchased the car from defendants David Hoffman and Greater Chicago Auto Auction, Inc. (Greater Chicago). At the time of purchase plaintiff received an odometer statement which certified that the car had been driven 34,145 miles. The sales agreement identified the purchaser as “C & D Corp DBA Jo Ann’s Bakery,” and the transferee listed on the odometer statement and automobile title and registration was C & D Corp. The car was paid for by a check drawn on the account of “C & D Corp. D.B.A. Joann’s Bakery.” All transaction documents were signed by plaintiff as Claud Thompson and the record also shows that his C & D Corporation was the owner of Jo Ann’s Bakery. In November 1984, the odometer records section of the Michigan Department of State notified plaintiff that the odometer on the Cadillac might have been tampered with as their records showed that the car had 87,000 miles on it at the time of its transfer to plaintiff. On December 30, 1985, plaintiff notified Patrick Cadillac that he was revoking his acceptance of the vehicle, and he demanded the return of the full purchase price of the car, incidental costs, and attorney fees. Defendant Patrick Cadillac refused the revocation.

Plaintiff filed a five-count complaint seeking a judicial revocation of the contract; damages for violation of the Illinois Vehicle Title and Registration Law (Ill. Rev. Stat. 1987, ch. 95V2, par. 3 — 112.1), the Motor Vehicle Information and Cost Savings Act (15 U.S.C. §1987 (1982)), and “An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ***” (Ill Rev. Stat. 1987, ch. TZV-k, par. 261 et seq.); and damages for fraud. The complaint alleged, inter alia, that plaintiff Claud Thompson, d/b/a C & D Corporation, is an individual plaintiff, and that plaintiff C & D Corporation is an Illinois corporation solely owned by Claud Thompson. Defendant Patrick Cadillac admitted this allegation in its answer, and, as to the counts pertaining to defendants Hoffman and Greater Chicago, those defendants answered that, because this allegation did not refer to or concern David Hoffman or Greater Chicago Auto Auction, Inc., defendants need not, and do not, answer it.

Defendant Patrick Cadillac moved for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) alleging that neither C & D Corporation nor Jo Ann’s Bakery had capacity to sue because a corporate plaintiff cannot maintain a civil action unless it is authorized to do business in Illinois and has paid all franchise taxes and other fees due to the State of Illinois; that Claud Thompson’s use of the name C & D Corporation would violate section 220 of the Business Corporation Act (Ill. Rev. Stat. 1987, ch. 32, par. 211.1) and section 1 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State” (Assumed Name Act) (Ill. Rev. Stat. 1987, ch. 96, par. 4); that Claud Thompson did not have standing to sue because he had no legal or equitable right, title, or interest in the subject matter of the controversy; and that the suit was barred by laches.

Defendants Hoffman and Greater Chicago also moved for summary judgment raising, inter alia, as an additional basis that there was no evidence that defendants Hoffman and Greater Chicago intended to defraud plaintiff.

The trial court granted defendants’ motions for summary judgment, stating:

“The attack on the motion for summary judgment is a three-prong attack by both parties. Okay. You’ve got capacity to sue, question of intent and the question of delay. I am most troubled by the capacity to sue, standing to sue.
* * *
I don’t have to consider intent; I don’t have to consider Statute of Limitations; I don’t have to consider laches.
* * *
Motion is granted on that basis [capacity and standing to sue]. That’s the determining fact, in my opinion. *** I’m not so sure that the question of laches applies; I’m not so sure about this intent, but I think that is determinative of whether or not you can proceed in this case.”

Plaintiff appeals, contending that the trial court erred in granting defendants’ motions for summary judgment as a matter of law on the ground that plaintiff had no capacity to sue because of his failure to incorporate under the Business Corporation Act and his failure to register under the Assumed Name Act. In the defendants’ joint brief, they also argue that the trial court’s summary judgment should be affirmed because the plaintiff’s claim is barred by laches; that the evidence did not show that defendants intended to defraud plaintiff; and that Claud Thompson lacked standing to sue based on the doctrine of judicial estoppel because he represented, at the time he purchased the car and at his deposition, that C & D Corporation was an Illinois corporation. Plaintiff did not file a reply brief addressing the issues raised by defendants that they did not intend to defraud plaintiff or that laches barred plaintiff’s claim, but has filed a motion to strike these issues because the trial court did not consider them and defendants did not file a cross-appeal raising these issues. Plaintiff’s motion, which was ordered taken'with the case, also requests leave to file instanter a late reply brief.

We grant plaintiff’s motion to strike the additional issues raised in defendants’ brief on appeal and allow plaintiff leave to file a late reply brief. The sole basis upon which the trial court entered summary judgment was that plaintiff did not have standing to sue, which is a ground for dismissal under section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)). (See In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 380, 510 N.E.2d 555.) Because it is clear from the record that the trial judge did not consider the additional issues defendants raise, we do not do so.

We next consider whether plaintiff’s failure to register the name “C & D Corp.” under the Assumed Name Act prevents plaintiff from maintaining the present suit. That act provides, inter alia:

“No person or persons shall conduct or transact business in this State under an assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the County Clerk of the County in which such person or persons conduct or transact or intend to conduct or transact such business, a certificate setting forth the name under which the business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons owning, conducting or transacting the same, with the post office address or addresses of such person or persons and every address where such business is, or is to be, conducted or transacted in the county.” (Ill. Rev. Stat. 1987, ch. 96, par. 4.)

Violation of the Assumed Name Act is a Class C misdemeanor (Ill. Rev. Stat. 1987, ch. 96, par. 8), and that penalty is exclusive (Grody v. Scalone (1950), 408 Ill. 61, 65, 96 N.E.2d 97). A party operating under an assumed name without registering the name under the Assumed Name Act may sue and be sued. People v. Arnold (1972), 3 Ill. App. 3d 678, 681, 279 N.E.2d 436.

Plaintiff also contends that the Business Corporation Act does not bar him from maintaining this action because of his use of a corporate name when not incorporated. Defendants argue, as they did in the trial court, that C & D Corporation cannot maintain this lawsuit until it pays its franchise taxes. Section 15.85 of the Business Corporation Act provides, inter alia, that “[n]o corporation required to pay a franchise tax, license fee or penalty under this Act shall maintain any civil action until all such franchise taxes, license fees and penalties have been paid in full.” (Ill. Rev. Stat. 1987, ch. 32, par. 15.85.) We find defendants’ argument without merit as C & D Corporation is not a corporation and is not subject to payment of a franchise tax. Furthermore, we note section 220 of the Business Corporation Act, which provides:

“If any *** person puts forth any sign or advertisement, and therein assumes, for the purpose of soliciting business, a corporate name, not being incorporated, such *** person commits a petty offense and shall be deemed guilty of an additional petty offense for each day he *** continue[s] to so offend.” (Ill. Rev. Stat. 1987, ch. 32, par. 211.1.)

In Edgerton v. Preston (1884), 15 Ill. App. 23, the court considered a substantially similar Illinois statutory provision and held that the only penalty for a violation of the statute was a fíne, and that contracts entered into by an individual violating the statute would not be rendered invalid. (Edgerton, 15 Ill. App. at 27.) The Illinois Supreme Court has cited Edgerton with approval, in dicta. People ex rel. Power v. Rose (1905), 219 Ill. 46, 63, 76 N.E. 42.

Furthermore, at least insofar as defendant Patrick Cadillac is concerned, it is estopped from denying that C & D Corporation is legally incorporated. Where one deals with a pretended corporation in a manner which recognizes its existence and the pretended corporation changes its position to its detriment, the other party is estopped from denying that the pretended corporation has been legally organized. (Zimmerman Ford, Inc. v. Cheney (1971), 132 Ill. App. 2d 871, 874, 271 N.E.2d 682; Spreyne v. Garfield Lodge No.l of the United Slavonian Benevolent Society (1904), 117 Ill. App. 253, 255.) Here, plaintiff’s right to recover against defendant Patrick Cadillac does not depend on the capacity in which plaintiff contracted with it. (See Zimmerman Ford, Inc., 132 Ill. App. 2d at 874; cf. National Cash Register Co. v. Clyde W. Riley Advertising System (1928), 329 Ill. 403, 160 N.E. 545 (capacity in which party contracted was essential to the determination of priority of liens to purchased property).) While we recognize that an action brought by a nonexistent entity is void ab initio (see Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 385, 36 N.E.2d 573), plaintiff, Claud Thompson, d/b/a C & D Corporation, is an individual, and exists.

Defendants also argue that plaintiff Thompson lacks standing to sue under the doctrine of judicial estoppel. As defendants have not cited any authority holding that the doctrine of judicial estoppel deprives a party of standing to sue, we do not consider the issue. See 107 Ill. 2d R. 341(e)(7).

Accordingly, the summary judgment of the circuit court is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

INGLIS and LINDBERG, JJ., concur.