text:
    AMERICAN COUNTRY INSURANCE COMPANY, Plaintiff-Appellee, v. EFFICIENT CONSTRUCTION CORPORATION et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1 — 89—2327
    Opinion filed January 29, 1992.

      Jerome E. Boyle, of Chicago, for appellants.
    Robert Schey & Associates, P.C., of Chicago (Philip S. Aimen, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants Efficient Construction Corporation (Efficient) and Ex-cellant Builders, Inc. (Excellant), appeal from an order of the circuit court entering judgment in favor of plaintiff American Country Insurance Company (American) and against Efficient and Excellant following a bench trial in a declaratory judgment action. We reverse and remand.

Excellant and Efficient are sister companies engaged in the business of performing general contracting and building services. Efficient is an operating company which performs payroll and other administrative services for the construction projects undertaken by Excellant. Harry Brooks is the president of both Excellant and Efficient.

In June of 1986, Excellant entered into an agreement with R.T.B. Construction, Inc., to act as the general contractor for the construction of Stratford Marketplace, a shopping mall in Bloomingdale, Illinois. The steel erection work on Stratford Marketplace was subcontracted by Excellant to Chicago Builders & Erectors (Chicago Builders). According to the terms of the subcontract, Chicago Builders agreed to handle all aspects of the structural steel work on the Stratford Marketplace. Work began on the Stratford Marketplace on July 7, 1986. Sherman Jensen was the project manager for Excellant having responsibility for field progress reports, which contain, inter alia, listings of the subcontractors on the job, the number of employees of each subcontractor present and a description of the work performed.

Chicago Builders subcontracted the installation of the sheet metal roof decking on the Child World building at the Stratford Marketplace to Dick’s Fox Valley Steel (Fox Valley). Excellant did not have a contract with Fox Valley. Under its contract with Excellant, Chicago Builders undertook all responsibility for work performed by Fox Valley.

On Saturday, September 13, 1986, while working on the roof decking, Frederick Long, an employee of Fox Valley and brother of Fox Valley president Richard Long, suffered a serious injury following a fall from the roof of the Child World building. Jensen was not present at the work site that day. Jensen subsequently learned of the injury on Monday, September 15, 1986. Jensen met with Jeff Wallerstein, president of Chicago Builders, Richard Long, and the ironworkers and painters who were present when Frederick Long was injured. Jensen was informed that Frederick Long had landed on his hands and knees and was taken to the hospital by ambulance. Jensen prepared a daily progress report dated September 13, 1986, which indicated that at the time of the accident (1) the weather was sunny; (2) three men from King Painting were painting joists; (3) five men from Chicago Builders were setting decking; and (4) the report was made on September 15,1986.

Jensen also called Excellant’s office, mentioned the injury to a receptionist, and told John Ford, an Excellant vice-president with responsibility for handling the paperwork on the project, that an iron-worker had been hospitalized following a fall from the roof the previous Saturday. Brooks did not learn of the injury at that time. Eight months after the accident, Brooks was served with a summons and complaint filed by Frederick Long against Excellant, Efficient, and Chicago Builders as well as two other entities. The complaint alleged violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). Brooks immediately sent the summons and complaint to Fleetwood Marketing, an agent of American which had issued a comprehensive general liability policy covering Excellant, Efficient and Brooks.

Patrick Lynch, the claims manager for American, received the summons and complaint from Fleetwood Marketing on May 20, 1987. Lynch assigned the claim to Mark Frayne, an adjuster at Bandringa Chicagoland Claims Service, Inc. On June 11, 1987, American sent a letter to Harry Brooks, reserving its right to assert the defense that Excellant and Efficient had failed to notify American of the injury “as soon as practicable” as required by the policy.

Frayne and Lynch proceeded to investigate the claim. Frayne took sworn statements from Jensen, Brooks and the ironworkers and painters present at the scene of the accident. Frayne also obtained pertinent weather reports, copies of the daily progress reports prepared by Jensen, insurance certificates from subcontractors, and copies of contracts with subcontractors. Lynch obtained, but never reviewed, a copy of the file on Frederick Long’s worker’s compensation case. Lynch also obtained a statement from Frederick Long.

On July 30, 1987, American filed its complaint for declaratory judgment in the trial court. The second amended complaint sought a declaratory judgment that American is not required to indemnify or defend Efficient or Excellant against Frederick Long’s Structural Work Act claim. The complaint alleged that Efficient and Excellant failed to comply with the notice provisions of the insurance policy issued by American to Brooks, Efficient and Excellant. The insurance policy provides in part:

“4. Insured’s Duties in the Event of Occurrence, Claim or Suit.
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to time, place and circumstances thereof and the names and address of the injured and of available witnesses shall be given by or for the insured to the Company or any of its authorized agents as soon as practicable.”

Following a trial, the court entered judgment in favor of American and against Efficient and Excellant on the grounds that American had no duty to either indemnify or defend Excellant and Efficient in the Frederick Long Structural Work Act lawsuit. This appeal followed.

On appeal Excellant and Efficient contend that the trial court erred in ruling that their notice to American following receipt of a summons and complaint from Frederick Long was not made “as soon as practicable” as required by the terms of the parties’ insurance policy. We agree.

The grant or denial of declaratory relief is discretionary, and absent an abuse of that discretion, the trial court’s determination will not be disturbed on appeal. (State Farm Mutual Automobile Insurance Co. v. Dreher (1989), 190 Ill. App. 3d 182, 185, 547 N.E.2d 1, 3.) Nevertheless, the trial court’s exercise of this discretion is subject to a searching appellate review and is not given the same deference as is the trial court’s exercise of discretion in other contexts. Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 769, 518 N.E.2d 270, 274.

In construing the “as soon as practicable” language, courts have weighed the desirability of compensation to the insured against the importance of the notice provision to the insurance company as a means of providing an opportunity to investigate the accident and protect itself against unjustified claims. (McFarlane v. Merit Insurance Co. (1978), 58 Ill. App. 3d 616, 618, 374 N.E.2d 951, 952.) Policy provisions establishing when the insured must notify the insurer concerning covered occurrences require notification within a reasonable time, considering all relevant facts and circumstances. (Grasso v. Mid-Century Insurance Co. (1989), 181 Ill. App. 3d 286, 289, 536 N.E.2d 977, 979.) A lengthy passage of time is not an absolute bar to coverage provided the insured has a justifiable excuse for the delay. (Mc-Farlane, 58 Ill. App. 3d at 619, 374 N.E.2d at 953.) The key element of the requirement to notify is the appearance to a reasonable person that a claim covered by a policy may be brought against the insured and not the appearance that the insured may be liable. National Bank v. Winstead Excavating (1981), 94 Ill. App. 3d 839, 842, 419 N.E.2d 522, 524.

• 2 In the present case, Excellant subcontracted the sheet metal roof decking work to Chicago Builders, which in turn subcontracted the roof installation work to Fox Valley. Frederick Long was an employee of Fox Valley. On the date of the accident, no one from Excellant was present at the work site. When Jensen, Excellant’s project manager, learned of the accident the following Monday, he interviewed the pertinent parties and prepared a written report. No Excellant employees were involved in the incident. Excellant president Harry Brooks was not informed of the accident at that time. Under these circumstances, Brooks was under no duty to notify American because it was not clear at that time that a claim covered by its insurance policy might be brought by Frederick Long against Excellant and Efficient. Moreover, even if Brooks had learned of the incident immediately after it happened, he would have also been aware that Excellant had subcontracted all of the steel erection work to Chicago Builders, which had in turn subcontracted the work to Fox Valley. Under these circumstances, it was reasonable for Excellant to conclude, prior to service of summons, that no covered claim would be asserted against it by Frederick Long. An insured is not required to report every injury it is aware of; it is only required to report those injuries which a reasonable person would understand is likely to lead to a claim, and this is especially so where, as here, the insured is not a direct participant in the injury.

Furthermore, the adequacy of American’s investigation of the incident was not materially prejudiced by the delay in notice. During the course of its investigation, American obtained sworn statements from Excellant employees, the ironworkers and painters present at the scene on the date of the accident, weather reports, daily progress reports, insurance certificates, a copy of Frederick Long’s worker’s compensation case and a statement from Frederick Long. In light of its exhaustive investigation, we cannot find that American was prejudiced by the delay in notice.

We, therefore, conclude that Excellant and Efficient were entitled to judgment in their favor. Accordingly, the judgment in favor of American and against Excellant and Efficient is reversed, and this case is remanded with directions for the entry of a judgment consistent with this opinion.

Reversed and remanded.

TULLY and CERDA, JJ., concur.

       Justice White heard oral arguments in the above appeal prior to his retirement. Justice Tully was designated the third member of the panel and has read the record and briefs.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    JESSE PALOMAR, JR., Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, a/k/a The Chicago Metropolitan Sanitary District, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 90—1122
    Opinion filed January 29, 1992.

      Glenn J. Jazwiec, of Chicago, for appellant.
    Raymond Clark Persin, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Jesse Palomar, Jr., filed a complaint against defendant, the Metropolitan Sanitary District of Greater Chicago, for damages for personal injuries that he suffered in an accident which occurred on June 24, 1987, upon defendant’s premises. On November 7, 1989, defendant filed a motion for summary judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) On April 4, 1990, the trial court granted summary judgment in favor of defendant. Plaintiff filed a notice of appeal on April 17,1990.

Plaintiff makes the following allegations on appeal: (1) that sections 5(a) and 1(a) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.1(a), 138.5(a)) do not bar him from suing defendant because defendant failed to demonstrate that plaintiff was a loaned employee pursuant to section 1(a) of the Act; (2) that he was not an employee of defendant pursuant to the Act because he was employed by Independent Mechanical Industries, Inc. (Independent), which contracted with defendant; and (3) that defendant waived its right to argue that it was an employer pursuant to sections 5(a) and 1(a) of the Act.

Defendant maintains that (1) it was plaintiff’s employer pursuant to section 5(a) of the Act, and that plaintiff therefore has no right to recover damages; (2) there is no question of material fact upon which the trial court’s order of summary judgment should be vacated; and (3) plaintiff failed to invoke section 1(a) of the Act as a basis for his argument at trial, and he has therefore waived his right to do so on appeal.

The issues before this court are (1) whether plaintiff and defendant have waived their right to review of the questions they raise on appeal; and (2) whether plaintiff was a loaned employee of defendant at the time of the accident as a matter of law, or whether a question of material fact existed as to whether plaintiff was a loaned employee of defendant. We reverse and remand.

Plaintiff was hired by Independent in November of 1984. Plaintiff was assigned by Independent to work at defendant’s facility commonly known as the West-Southwest Treatment Plant in Stickney, Illinois. Independent supplied contract tradesmen to defendant pursuant to a contract which was in effect on the date plaintiff was injured. The contract made the following relevant provisions:

“GENERAL
Section (1). The contractor shall furnish *** Machinists, *** and other classifications of labor, if required, for necessary maintenance and alterations to boilers, steam generating units, duct work, pumps, blowers and various sewage and sludge handling equipment and structures at the West- Southwest Sewage Treatment Works and other installations, throughout the duration of this Contract. ***
SUPERVISION
Section (2). The contractor shall furnish a competent superintendent for the proper administration, coordination and supervision of the work. *** No direct payment shall be made for such superintendent under any of the unit price items of the Contract. The cost for superintendence shall be included in the unit prices bid for Items 1-10.
*** The Engineer will order and approve the number of workmen the Contractor shall employ on the work and the Contractor shall increase or reduce the number of workmen employed when so ordered by the Engineer. It is intended that the Contract tradesmen accomplish sufficient quality and quantity of work. The Engineer has the responsibility to advise the Contractor of any shortcomings in performance by individuals. If the work is not brought up to an acceptable level, the Engineer will order dismissal. The Contract tradesmen shall be required to adhere to District policies regarding employee conduct and to obey work rules. The Engineer has the authority to order dismissal of Contract tradesmen for lack of performance or for contravention of District personnel policies. * * *
MEASUREMENT
Section (6). The unit prices per man-hour agreed upon to be paid under the respective items of this Contract shall include all costs necessary to perform the work specified herein, including wages (including welfare and pension) for journeymen and foremen, taxes, *** general supervision, overhead and profit.”

All of Independent’s contract tradesmen assigned to work for defendant met each morning at the main building of defendant’s facility. Conrad Pomorski, an employee of Independent, was in charge of all contract tradesmen who were working at defendant’s facility. The acting foreman of the machinists at defendant’s facility was Ed Stifter. Stifter was an employee for defendant. Stifter provided plaintiff and the other machinists with their job assignments. Plaintiff was a machinist assigned to the machine shop. Defendant also, employed several engineers who supervised its employees in various buildings at the facility. Plaintiff was working in the Digester Building under the supervision of Amulfo Harting, an engineer employed by defendant, on the day that he was injured.

Plaintiff stated in his affidavit that he reported to Stifter on the morning of June 24, 1983, and that he then went to work in an area of defendant’s facility known as the Digester Building. Plaintiff maintained that when he arrived at his work area, he saw sludge on the floor. Plaintiff then stated that he and his co-worker Raymond Blattner, also an employee of defendant, contacted Harting by telephone to advise him of the situation. Plaintiff further stated that Harting advised Blattner that the pump had to be installed on that day, and he suggested that plaintiff and Blattner install the pump with the sludge there. Plaintiff maintained that he then called Stifter and complained about the sludge, and that Harting then informed plaintiff that the pump had to be installed. Plaintiff stated that Harting later visited the area and told Blattner that he would have to clean the area himself. Plaintiff stated that Blattner complied and attempted to rinse the sludge away using a water hose. Plaintiff further stated that he and Blattner then set the pump in place. Plaintiff slipped and fell on the remaining sludge while he was attempting to bolt the pump in place. The accident occurred at approximately 10:30 a.m. Plaintiff stated that he worked until 3 p.m., at which time he reported the accident to Pomorski, and that he told Pomorski that he was leaving work early because he was in pain. Plaintiff left work shortly thereafter. Plaintiff worked for defendant for three years prior to this accident.

On the day following the accident, plaintiff telephoned Mr. Stifter and told him that he could not come to work. Stifter advised plaintiff that he would tell Pomorski that plaintiff would be absent. The next day, plaintiff reported to work, but he complained that he was in pain. Plaintiff was then directed to a clinic where he was examined by Dr. Monohar Jethani, who diagnosed him with severe lower back strain. Plaintiff was later examined by Dr. Robert Beatty. Dr. Beatty diagnosed plaintiff with a herniated disk. Plaintiff had surgery to correct his herniated disk on July 26, 1987, at Hinsdale Hospital in Hinsdale, Illinois. (See Stedman’s Medical Dictionary 413 (5th ed. 1982).) Plaintiff also underwent a foraminotomy at the same hospital on October 27,1988. See Stedman’s Medical Dictionary 550 (5th ed. 1982).

Plaintiff filed an application for adjustment of claim with the Industrial Commission of the State of Illinois (Industrial Commission), on or about September 16, 1988. As a result of this claim, plaintiff and Independent entered into a settlement contract. The settlement contract referred to plaintiff as the “petitioner-employee,” and it referred to defendant as the “employer-respondent.” A request for a hearing was attached to the settlement contract which indicated that plaintiff and Independent were functioning pursuant to and in compliance with the provisions of the Act, and that plaintiff and Independent had an employer-employee relationship. The settlement was approved by the Industrial Commission on December 28, 1989. Plaintiff received two settlement checks totaling $7,936 from Independent on that date. In addition, plaintiff received $3,510 in disability benefits pursuant to the Act.

On November 25, 1988, plaintiff received a note from a representative of Independent discharging him from his employment. Plaintiff later filed a claim against defendant for damages arising out of his accident.

After plaintiff sued defendant, he stated in an affidavit that all of his work was supervised and controlled by Independent. Plaintiff maintained that defendant’s employees did not supervise, control, or direct him in the performance of his duties and that he was only accountable to Independent and its agents. However, plaintiff admitted in a discovery deposition that the foreman of the machinists for the sanitary district was “in charge” of all of the machinists in the machine shop. Furthermore, plaintiff stated in his affidavit that he had been assisted and directed by machinists employed by Independent when he needed help with his work. In addition, plaintiff stated that Independent had the sole right to discipline and terminate him. Plaintiff also stated that during the period of time that he was assigned to work at defendant’s plant, he received his paychecks and W-2 forms from Independent, and that all of his tax and social security deductions were made by Independent. Plaintiff further stated that he was required to wear a blue hard hat while he worked on defendant’s premises, and that defendant’s employees wore white hard hats stamped with defendant’s logo. Similar affidavits were filed by Blattner and Robert Petkiewicz, an employee of Independent.

Plaintiff’s allegation that defendant waived its right to argue that it met the statutory definition of a loaning employer, and defendant’s contention that plaintiff waived his right to review of the issue of his exclusion from the Act because he failed to raise this issue below, do not pass muster.

As a general rule, issues not presented to or considered by a trial court are deemed waived and may not be considered upon review, even in an appeal of a grant of summary judgment. (Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 240, 500 N.E.2d 707, 711.) However, Supreme Court Rule 366 makes the following relevant provision:

“In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, * * *
(5) enter any judgment and make any order that ought to have been given or made ***.” (134 Ill. 2d R. 366(a)(5).)

This court has found that “ ‘under Rule 366 [citation], a reviewing court may, in exercise of its responsibility for a just result, ignore consideration of waiver and decide a case on grounds not properly raised or not raised at all by the parties.’ ” City of Wyoming v. Liquor Control Comm’n (1977), 48 Ill. App. 3d 404, 407-08, 362 N.E.2d 1080, 1083, quoting Occidental Chemical Co. v. Agri Profit Systems (1975), 37 Ill. App. 3d 599, 603, 346 N.E.2d 482, 485.

A review of the record indicates that the issues in question were not properly raised by either of the parties. However, we believe that a just result in this case requires that we ignore the consideration of waiver with respect to the aforementioned issues. See City of Wyoming, 48 Ill. App. 3d at 407-08, 362 N.E.2d at 1083.

The issue on appeal of a grant of a motion for summary judgment is whether there is a question of material fact upon which the trial court’s order of summary judgment should be reversed. Defendant maintains that there is no question of material fact upon which the trial court’s order of summary judgment should be vacated, because it was plaintiff’s employer pursuant to the Act, because it had the right to control plaintiff, and because defendant in fact controlled plaintiff. Plaintiff contends that a question of material fact exists with respect to the issue of whether he is a loaned employee within the meaning of the Act. We agree with plaintiff.

Summary judgment is appropriate only when the pleadings, depositions, admissions, and affidavits in the record present no genuine issue of material fact. (Village of Glenview v. Northfield Woods Water & Utility Co. (1991), 216 Ill. App. 3d 40, 47, 576 N.E.2d 238, 243.) Summary judgment should be awarded with caution so as not to preempt a party’s right to a jury trial, or a party’s right to demonstrate a factual basis for a case where a question of material fact may exist. (Decatur Construction, Inc. v. Central Illinois Public Service Co. (1974), 16 Ill. App. 3d 1056, 1059, 307 N.E.2d 431, 433.) “[When] reasonable persons disagree upon the facts of [a] case, the trial court should deny summary judgment and allow such disputed facts and inferences to be resolved by a trial court.” Village of Glenview, 216 Ill. App. 3d at 47, 576 N.E.2d at 243.

We find that the trial court erred when it granted defendant’s motion for summary judgment because a question of material fact exists concerning the issue of whether plaintiff was a loaned employee pursuant to the Act.

Our supreme court has noted that “an employee in the general employment of one person may, with his consent, be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing such special service, and this principle *** [may be] applied to workmen’s compensation cases.” American Stevedores Co. v. Industrial Comm’n (1951), 408 Ill. 449, 453-54, 97 N.E.2d 325, 327.

Section 1(a)(4) of the Act defines a loaning employer as “[a]n employer whose business *** consists of *** furnishing employees to or for other employers *** for the performance of the work of such other employers and who pays such employees their salary or wages notwithstanding that they are doing the work of such other employers ***.” 111. Rev. Stat. 1987, ch. 48, par. 138.1(a)(4).

Section 5(a) of the Act prohibits a worker who was loaned to another employer from suing that employer regarding a work-related injury. Section 5(a) of the Act provides as follows:

“No common law or statutory right to recover damages from the employer, *** any service organization retained by the employer, *** to provide safety service, advice or recommendations for the employer *** for injury *** sustained by any employee while engaged in the line of duty as such employee, other than the compensation herein provided ***.” Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).

See also Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 847, 502 N.E.2d 341, 343.

The primary test for determining the existence of a loaned employer-employee relationship is whether or not the alleged loaned employee is subject to the control and direction of the borrowing employer. (M & M Electric Co. v. Industrial Comm’n (1974), 57 Ill. 2d 113, 116-17, 311 N.E.2d 161, 163.) Whether or not such a relationship exists is a question of fact for the jury to determine. (Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 123, 171 N.E.2d 60, 63.) When making this determination, the fact finder “must weigh such factors as the matter of hiring, the mode of payment, the right to discharge, and the manner or direction of the services.” Gundich, 21 Ill. 2d at 123,171 N.E.2d at 63.

In the instant case, conflicting inferences may be drawn from the evidence, and the facts of the case at bar are clearly in dispute. Plaintiff maintains that Independent had the authority to control and direct plaintiff in the performance of his work. Plaintiff argues that Independent had the sole right to control and supervise plaintiff’s work pursuant to the contract between Independent and defendant. In addition, plaintiff stated in his affidavit that his work was supervised and controlled solely by Independent and that he was only accountable to Independent and its agents. Blattner and Petkiewicz also provided affidavits in which they stated that Independent controlled plaintiff in his work.

Defendant maintains that it had the right to control plaintiff’s work pursuant to the contract and that it did in fact control plaintiff’s work. Defendant maintains that plaintiff received his work from its employees. Defendant argues that when plaintiff complained about his working conditions, he did not call Pomorski, but notified defendant’s personnel instead. Defendant has also noted that plaintiff installed the pump pursuant to the order of defendant’s employee, over and above his own objections that the area was not safe. Furthermore, defendant argues that the section of the contract entitled “procedures” provided that defendant could designate work to be done by plaintiff, and that defendant had the right to change or reject work performed by plaintiff.

In addition, plaintiff argues that he is not defendant’s employee because he received his paychecks and W-2 forms from Independent, and that all of his tax and social security deductions were made by Independent. Defendant, however, maintains that although Independent paid plaintiff’s wages, and deducted plaintiff’s taxes and social security installments from his paycheck, it is clear from the section in the contract entitled “measurement” that defendant was ultimately responsible for the payment of the same.

Plaintiff also argues that Independent is his employer because Independent had the sole right to discipline and terminate him pursuant to the contract. Defendant, however, maintains that it had the authority to discharge plaintiff pursuant to a contract provision under the section entitled “supervision.”

In the present case, a genuine issue of material fact existed concerning the issue of whether plaintiff was a loaned employee pursuant to the Act. The parties disagree with respect to the facts of the case, and conflicting inferences may be drawn from the evidence. Therefore, the question of whether plaintiff was a loaned employee of defendant must be decided by the trier of fact and may not be preempted by the trial court on a motion for summary judgment. Accordingly, we rule that the trial court erred when it granted defendant’s motion for summary judgment.

Accordingly, the judgment of the circuit court is reversed, and this cause is remanded for trial.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    ALAMMA P. VADAKARA, Plaintiff-Appellee, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1 — 91—2107,1—91—2162 cons.
    Opinion filed January 30, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellants.
    David Blumenfeld, Ltd., of Chicago (William C. Coughlin, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, the Department of Professional Regulation (Department), denied plaintiff Alamma P. Vadakara's application for licensure as a pharmacist on the grounds that she did not attend a five-year pharmacy program as required by Illinois law. On administrative review, the circuit court reversed the Department’s decision. The Department has appealed, contending that the circuit court’s decision was against the manifest weight of the evidence. The sole issue before us is whether the trial court erred in concluding that the plaintiff graduated from a five-year pharmacy program as required by the Pharmacy Practice Act of 1987 (Ill. Rev. Stat. 1989, ch. Ill, par. 4121 et seq.) and the Department regulations for administering the Act (68 Ill. Adm. Code §1330.20 (1991)).

Section 6 of the Pharmacy Practice Act of 1987 (Act) states in pertinent part that “[e]ach individual seeking licensure as a registered pharmacist shall make application to the Department and shall provide evidence *** that he is a graduate of a first professional degree program in pharmacy of a university recognized and approved by the Department.” (Ill. Rev. Stat. 1989, ch. Ill, par. 4126.) Section 1330.20 of the Department’s regulations for administering the Act provides that one of the criteria for Department approval is that the pharmacy program have “a curricular offering of post-secondary instruction totalling at least five (5) academic years including any preprofessional education requirements.” (68 Ill. Adm. Code § 1330.20(a)(3) (1991).) The Act also makes reference to a “first professional degree program in pharmacy of at least 5 academic years” in setting out requirements for graduates of pharmacy schools which were not recognized and approved by the Department. Ill. Rev. Stat. 1989, ch. Ill, par. 4126.

The record reveals that the plaintiff received a “Diploma in Pharmacy” after completing a one-year program extending from June 1978 to July 1979. From January 1980 to May 1984, the plaintiff attended a four-year course of studies to obtain a bachelor degree in pharmacy. She applied to the Department for examination as a registered pharmacist in 1986 and again in 1990. Both applications were denied on the basis of a finding by the State Board of Pharmacy that the pharmacy program attended by the plaintiff was less than five years.

The central dispute in this cause involves the effect to be accorded the one-year diploma in pharmacy which the plaintiff received prior to attending the four-year bachelor degree program. As stated above, the Department regulations provide that to be an approved program, a pharmacy program must have “a curricular offering of post-secondary instruction totalling at least five (5) academic years including any preprofessional education requirements.” (Emphasis added.) (68 Ill. Adm. Code §1330.20(a)(3) (1991).) The plaintiff maintains that the one-year diploma constituted a prerequisite to the four-year degree program and therefore combined with the degree program to satisfy the Illinois requirement of a five-year pharmacy program. The Department contends that the record refutes the contention that the one-year diploma was a prerequisite for admission to the bachelor degree program and shows clearly that the plaintiff’s pharmacy program extended over only four years.

The documents attached to the plaintiff’s application included the prospectus for admission to the degree of Bachelor of Pharmacy in the Medical College of the University of Kerala, the syllabus of the bachelor degree program and the transcript showing the courses the plaintiff took and the grades she received. The prospectus, dated 1986, states that the curriculum “extends over a period of four years” and lists tuition fees broken down into each of the four years. It further states that of the 28 available seats, five seats are reserved “for Diploma holders in Pharmacy.” The syllabus of the bachelor degree program specifies the duration of the course as “[f]our years with a minimum of 200 working days in the year.” The syllabus also lists the scheme of study and the courses offered over the course of the four-year program. The plaintiff’s college transcripts show the courses she took and the grades she received in each of the four years. The record contains an undated letter from G.R. Nair, the director of the plaintiff’s pharmacy college, stating that the plaintiff was a student “from June 1978 to May 1984 (one year — Diploma in pharmacy as a pre-requisit[e] and four year pharmacy degree program).”

The Department concluded, based upon the above documents, that the plaintiff’s course of study in pharmacy did not fulfill the requirements of Illinois law. No hearing was held before the Department. The circuit court reversed the Department on administrative review, finding that “the plaintiff has completed a five (5) year program in Pharmacy.”

The Department contends on appeal that the circuit court’s decision was against the manifest weight of the evidence. (Baltin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 530, 519 N.E.2d 1151.) We agree. As stated earlier, the central dispute between the parties is whether the one-year diploma in pharmacy constituted a “preprofessional education requirement” which would be included in determining the duration of the plaintiff’s pharmacy program. In our opinion, the record does not support the plaintiff’s contention that the pharmacy diploma was a prerequisite to the four-year bachelor degree program. The documents before the Department clearly established that the plaintiff attended a four-year pharmacy program. The prospectus, the syllabus and the plaintiff’s transcripts all reveal a four-year course of study, and none of those documents mention any such prerequisite. The sole fact supporting the plaintiff’s position is a letter by the college director characterizing the one-year pharmacy diploma as a “pre-requisite” for admission to the four-year program. We believe this characterization is refuted, however, by the prospectus, which states that only 5 of the 28 available seats were reserved for holders of the diploma. Based upon this evidence, we believe the circuit court erred in finding that the plaintiff satisfied the requirement of attending a five-year pharmacy program.

The Department further contends that it did not violate the plaintiff’s right to due process by failing to hold a hearing before denying her application. We do not believe this issue is appropriately raised by the Department in light of the plaintiff’s failure to request a hearing as an alternative form of relief.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE MURRAY

text:
    LUCILLE BOONE, Adm’r of the Estate of Lucia Boone, Deceased, Indiv. and for the Benefit of the Department of Public Aid, Plaintiff-Appellant, v. EVANSTON HOSPITAL, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 90—3064
    Opinion filed January 31, 1992.
    Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Anne Scheitlin, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Lucille Boone (Boone), as administrator of the estate of Lucia Boone (Lucia), deceased, appeals from the dismissal of count III of her three-count amended complaint against defendant Evanston Hospital. Evanston Hospital questions whether the appeal itself should be dismissed.

In plaintiff’s complaint it was alleged that Lucia Boone worked at Evanston Hospital as a phlebotomist and that in June 1986, and again in September 1986, she was stuck in the hand with a needle she was using while performing her duties drawing blood from patients. As a result, Lucia contracted hepatitis, had to be admitted to Evanston Hospital as an in-patient in November 1986, and later underwent surgery for a liver transplant at the University of Chicago Medical Center. Nonetheless, she succumbed in December 1986.

Evanston Hospital allegedly refused to pay for Lucia’s medical expenses and even denied that Lucia was an employee, placing her as a public aid patient. As a result, the Department of Public Aid (Department) paid Evanston Hospital over $300,000 in medical expenses for Lucia’s treatment.

On April 30, 1990, Boone filed a three-count amended complaint against the hospital. The action was brought to recover money damages pursuant to the Illinois Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, pars. 1, 2) (count I) and the Illinois Survival Act (Ill. Rev. Stat. 1989, ch. 110½, par. 27—6) (count II). Count III, entitled an “alternative count,” sought to recoup from Evanston Hospital, for the benefit of the Illinois Department of Public Aid, monies expended by the Department on the plaintiff’s deceased for medical and funeral expenses.

On September 17, 1990, an order was entered striking counts I and II and dismissing with prejudice count III. No explanation was provided in the order for the trial court’s actions and no transcript of the hearing held on defendant's motions to strike and dismiss has been filed with this court. However, according to defendant’s brief (unchallenged by plaintiff), counts I and II were stricken on the ground that the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) was plaintiff’s sole remedy against the hospital and count III was dismissed with prejudice on the basis that plaintiff did not have standing to bring an action on behalf of the Department of Public Aid. The order, with respect to count III, also noted that there was no just cause to delay enforcement or appeal. 134 Ill. 2d R. 304(a).

On October 18, 1990, Boone filed her notice of appeal with regard to the dismissal of count III. When no record on appeal was filed within the time allotted by Supreme Court Rule 326 (see 134 Ill. 2d R. 326), Evanston Hospital moved to dismiss the appeal and the motion was granted by an order of this court dated March 8,1991.

On May 3, 1991, Boone filed a motion to reinstate the appeal, at the same time seeking leave to file her brief and record instanter. Over the hospital’s written objection, this court granted plaintiff’s motion in an order dated May 14,1991.

Evanston Hospital now claims that this appeal should be dismissed because of Boone’s failure to timely file the record on appeal and that this court erred by reinstating the appeal. We disagree.

The procedure followed here, i.e., the dismissal for failure to comply with Supreme Court Rule 326 and the reinstatement of the appeal upon plaintiff’s motion, is identical to the procedure followed in Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031, wherein the court stated:

“Having elected to reinstate and hear the appeal, this court need not reverse itself and again dismiss the appeal. Supreme Court Rule 301 (Ill. Rev. Stat. 1977, ch. 110A, par. 301) makes it clear that, after the filing of the notice of appeal, no other procedural step in the appellate process is jurisdictional. Since plaintiff’s notice of appeal was properly filed, this court has appellate jurisdiction, and can choose to hear the appeal on its merits, even though procedural variations warrant dismissal. O’Brien v. Kawazoye (1975), 27 Ill. App. 3d 810, 814-15, 327 N.E.2d 236.” 86 Ill. App. 3d at 146.

Although we do not condone noncompliance with procedural rules, we agree with the proposition that, because compliance with procedural rules is not jurisdictional, this court has the discretion to overlook “procedural variations” which might warrant reversal. The exercise of this discretion is necessary to avoid the harsh result of dismissal and to allow review on the merits. Consequently, we find no need to reverse our decision to reinstate the appeal.

We now turn our attention to Boone’s issue on appeal, i.e., whether the trial court properly dismissed count HI of Boone’s complaint. In her appeal, Boone contends that sections 11—22 and 11—22b of the Illinois Public Aid Code clearly allow for suits being brought against third parties who may be liable, by either the Department or a beneficiary, or both, for benefits provided by the Department. (Ill. Rev. Stat. 1989, ch. 23, pars. 11—22, 11—22b.) While we agree that this statement is true, we do not agree that this fact leads one to the conclusion that a suit may be brought by a beneficiary of public aid, in the name of or for the benefit of, the Department. Therefore, we affirm the trial court’s dismissal of count III.

Section 11—22 of the Public Aid Code (Code) (Ill. Rev. Stat. 1989, ch. 23, par. 11—22) states that when an applicant for, or recipient of, public aid or medical assistance receives a personal injury for which another party is liable and the applicant or recipient brings a viable cause of action, claim or demand against that third party based upon that personal injury, the Department is entitled to place a charge on that claim, demand or cause of action, to the extent of the total amount of assistance provided to the applicant or recipient from the time of the injury to the date of recovery on the claim.

This section of the Code, we believe, contemplates the filing of an appropriate cause of action or claim by the applicant or recipient. It then gives the Department the right to enforce a lien on any recovery obtained by the public aid recipient based upon a verdict, judgment or settlement on such cause of action or claim brought by the recipient. The section also provides that a trial court has the power to adjudicate the rights of the parties and apportion their share of the recovery, as well as enforce the charge by the Department and determine, in its discretion, whether to reduce the Department’s charge against the recovery.

In section 11—22b of the Code (Ill. Rev. Stat. 1989, ch. 23, par. 11— 22b), entitled “Recoveries,” it states in paragraph (b)(1) that:

“When benefits are provided or will be provided to a beneficiary under this Code because of injury for which another is liable, or for which a carrier is liable in accordance with the provisions of any policy of insurance issued pursuant to the Illinois Insurance Code, the Illinois Department shall have [the] right to recover from such person or carrier the reasonable value of benefits so provided. The Attorney General may, to enforce such right, institute and prosecute legal proceedings against the third person or carrier who may be liable for the injury in an appropriate court, either in the name of the Illinois Department or in the name of the injured person, his guardian, personal representative, estate, or survivors.”

Although this section gives the Department the right to bring the cause of action in the name of the beneficiary, it does not provide for the reverse. We conclude, therefore, that such an action by the beneficiary is not allowed. We reach this conclusion because other paragraphs within this section provide that the Department has the discretion to compromise, settle or even waive any claim for benefits. (Ill. Rev. Stat. 1989, ch. 23, par. 11—22b(b)(2).) If the beneficiary were afforded the right to bring a claim on behalf of the Department, it would infringe upon the Department’s ability to exercise its discretion on whether to enforce its lien or seek recovery.

Furthermore, in another paragraph of this section, paragraph 11— 22b(c)(3) (Ill. Rev. Stat. 1989, ch. 23, par. 11—22b(c)(3)), it states:

“When an action or claim is brought by persons entitled to bring such actions or assert such claims against a third person who may be liable for causing the death of a beneficiary, any settlement, judgment or award obtained is subject to the Department’s claim for reimbursement of the benefits provided to the beneficiary under this Code.”

We believe that the operative words in this paragraph are “by persons entitled to bring such actions or assert such claims against a third person.” We interpret this paragraph, in conjunction with other paragraphs of this section, to mean that the beneficiary must bring a cause of action in its own right. In the event that the beneficiary brings an appropriate cause of action or asserts an appropriate claim against the third person, the Department may join or intervene in the action or claim brought by the beneficiary or bring its own action.

The cases cited to by Boone are distinguishable due to the fact that in those cases the beneficiary filed a viable cause of action against a third party in which the Department intervened. In the case at bar, Boone did not file a viable cause of action in her own right, but rather, attempted to enforce the rights of the Department. As discussed above, we do not believe that the beneficiary has this right.

For the reasons stated above, we affirm the order of dismissal issued by the circuit court.

Affirmed.

LORENZ and GORDON, JJ., concur.


author: JUSTICE McNAMARA

text:
    THOMAS BURNS, Plaintiff-Appellee, v. CELOTEX CORPORATION et al., Defendants (A & M Insulation Company, Defendant-Appellant; Owens-Illinois, Inc., et al., Defendants-Intervening Appellees).
    First District (6th Division)
    No. 1 — 91—3272
    Opinion filed January 31, 1992.
    Rehearing denied March 5, 1992.
    Haskell & Perrin, of Chicago (Edward J. Matushek III and Alan S. Zelkowitz, of counsel), for appellant.
    Robert H. Riley, Catherine Masters Epstein, and Joseph J. Kralovec III, all of Schiff, Hardin & Waite, of Chicago, for appellees Owens-Illinois, Inc., and Keene Corporation.
   JUSTICE McNAMARA

delivered the opinion of the court:

This interlocutory appeal arises from a September 11, 1991, order of the circuit court of Cook County enjoining defendant, A & M Insulation Company (defendant or A & M), from proceeding with its motions and discovery in a pending asbestos-related product liability action. This court granted Owens-Illinois, Inc., and Keene Corporation (collectively Owens-Illinois), other defendants in this action, leave to file a brief as appellees. Plaintiff has not filed a brief in this appeal. For the reasons stated herein, we dismiss defendant’s appeal.

Plaintiff, Thomas Burns, filed this action against A & M and 14 other defendants in May 1990 alleging asbestos-related personal injuries caused by exposure to defendant’s products. Plaintiff had been diagnosed with pleural plaques, the thickening of the lining of the lungs, which is a benign manifestation of asbestos exposure without disability or physical impairment. Plaintiff’s case was assigned to Judge Dean M. Trafelet, who handles the pretrial and trial of all asbestos-related personal injury cases in the circuit court of Cook County. These cases currently number more than one thousand.

On March 26, 1991, Judge Trafelet entered a general order which created the “Asbestos Deferred Registry” (deferred docket). The purpose and history of the order are discussed extensively in In re Asbestos Cases (1991), 224 Ill. App. 3d 292 (hereinafter Mulligan v. Keene Corp. or Mulligan), and we summarize only the most relevant provisions herein. This order (the deferred docket order) allows a plaintiff who has been diagnosed with asbestos-related disease, but presently exhibits no impairment, to file an action and be placed on an inactive or deferred docket until his condition deteriorates to disability, if ever. The order exempts any claim on the deferred docket from discovery provisions. If and when plaintiff develops a prescribed degree of impairment, plaintiff may request removal from the deferred docket. If the parties agree that plaintiff meets the criteria for removal, the court will remove the claim from the docket and claimant may proceed. If the parties do not agree, the court determines the removal issue and enters an appropriate order. Plaintiff may also voluntarily remove himself by withdrawing his claim. The order purports to allow the trial court to focus on cases involving present impairment or death while preserving plaintiff’s rights if his condition deteriorates. The deferred docket was initially proposed by both plaintiffs and defendants in asbestos-related cases, and after extensive negotiation and consultation, the majority of parties supported the proposed order. A & M did not support the order.

In August 1991, defendant filed a motion for summary judgment and sought to initiate discovery. Plaintiff requested the court to place the case on the deferred docket. The trial court granted plaintiff’s motion and enjoined defendant from proceeding with discovery and from seeking hearings on the pending motions in this case. Defendant filed this interlocutory appeal pursuant to Supreme Court Rule 307 (137 Ill. 2d R. 307).

On appeal, defendant contends that the trial court’s order was an abuse of discretion. Additionally, defendant argues that the underlying order creating the deferred docket was a denial of due process and an abuse of discretion. We conclude, however, that this court lacks jurisdiction to consider the appeal.

Supreme Court Rule 307(a)(1), an exception to the general rule allowing appeals only after final judgment, allows appeal from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (134 Ill. 2d R. 307(a)(1).) Whether an order constitutes an appealable, injunctive order under Rule 307(a)(1), however, must be determined from its substance rather than its form. Mulligan v. Keene Corp., 224 Ill. App. 3d 292; Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551.

We find Mulligan, recently decided by this court, instructive. In Mulligan, defendant appealed from the deferred docket order which forms the basis for the order in this appeal. This court held that the deferred docket order was a noninjunctive, nonappealable order because it did not affect the parties’ relationship outside of the litigation. The court relied upon the following passage from In re A Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not to do a particular thing. Orders of the circuit court which can be properly characterized as ‘ministerial,’ or ‘administrative’ — because they regulate only the procedural details of litigation before the court — cannot be the subject of an interlocutory appeal. (See People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171 (stating that discovery orders and subpoenas are not appealable interlocutory orders).) Such orders may be considered noninjunctive because they did not form part of the power traditionally reserved to courts of equity, but, instead, were part of the inherent power possessed by any court to compel witnesses to appear before it and give testimony. (See JFS v. ABMJ (1983), 120 Ill. App. 3d 261, 262.) They do not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief.” (Emphasis added.) (In re A Minor, 127 Ill. 2d at 261-62, 537 N.E.2d at 298.)

The Mulligan court characterized the deferred docket order as “administrative” because it regulates the procedural details of litigation. The court stated that the deferred docket order did not affect the parties’ relationship outside the parameters of litigation, but rather was an exercise of the court’s inherent authority to control its docket. (Mulligan, 224 Ill. App. 3d at 292.) The court thus concluded that it lacked jurisdiction and dismissed the appeal.

Under Mulligan, we conclude that the order appealed from herein is noninjunctive. This order, like the order in Mulligan, does not affect the parties’ relationship apart from the litigation, but rather regulates the procedural details of the litigation. In our view, the order, which invokes the provisions of the deferred docket order, is a traditional exercise of the court’s authority to control its docket. Moreover, we reject defendant’s argument that the order denies it the right to pursue discovery and to determine the extent or legitimacy of the claims against it. For these reasons, we do not believe that this order constitutes a reviewable, interlocutory order under Rule 307(a)(1).

Moreover, defendant has advised that subsequent to the filing of its brief, it learned from plaintiff’s counsel that plaintiff did “not want his action to remain on the [deferred docket].” Owens-Illinois agrees that plaintiff now wishes to remove this case from the docket.

The record does not indicate nor have we been informed whether plaintiff wishes to voluntarily withdraw his complaint or whether he wants to be removed from the docket in order to actively pursue his claim. In either case, however, the order appealed from here expires under its own terms upon plaintiff’s removal from the docket. Under the circumstances, we are unable to grant effective relief. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 491 N.E.2d 1160.) Moreover, we will not render an opinion that would have only an advisory effect. Giddens v. Lake County Sheriff’s Office Merit Comm’n (1990), 195 Ill. App. 3d 459, 552 N.E.2d 368.

For the reasons stated, we conclude that this court lacks jurisdiction to consider this appeal. Consequently, the appeal is dismissed.

Dismissed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE CAMPBELL

text:
    BERNARD A. HEEREY, Plaintiff-Appellee, v. THE CITY OF DES PLAINES et al., Defendants-Appellants.
    First District (1st Division)
    No. 1 — 90—1171
    Opinion filed February 3, 1992.

      Judith N. Kolman, City Attorney, of Des Plaines, and Odelson & Sterk, Ltd., of Evergreen Park (Mathias W. Delort, Burton S. Odelson, and Michael R. Gibson, of counsel), for appellants.
    Nathaniel I. Grey, P.C., of Chicago (Mary Kay Morrissey, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant City of Des Plaines (the City) and defendants Vern Chase, Louis Pagones, Robert McKoveck, Michael D’Onofrio, Tim Oakley, Tom Barrett and David P. Clark, who are all employees of the City, appeal orders of the circuit court of Cook County which granted plaintiff Bernard A. Heerey mandamus relief compelling defendants to issue a building permit to plaintiff. The circuit court also granted injunctive relief to plaintiff.

The record on appeal indicates the following facts: On March 16, 1990, plaintiff filed a five-count complaint against defendants. The complaint alleges that plaintiff has owned real estate located in Des Plaines at 875 East Rand Road since December 31, 1986. The complaint also alleges that in order to make the property more attractive to prospective tenants, plaintiff began discussions on obtaining a building permit on July 30, 1987, and that these discussions continued through 1990. According to plaintiff’s affidavit, on February 28, 1990, a contractor for plaintiff filed an application for a building permit with the City for alterations to “the front office building” on the property. The complaint alleges that another building, “the back building,” which is an industrial building, is also located at 875 East Rand Road.

On March 2, 1990, defendant Chase, who is the permit coordinator for the City, told plaintiff’s architect that the permit would not be approved unless the property was subdivided and approved. The City issued a stop work order regarding plaintiff’s property on March 14, 1990. Plaintiff further alleged that he had entered into a lease giving lessee United Business Machines, Inc., possession of the front office building on May 1, 1990. This lease requires that plaintiff complete certain alterations and remodeling before May 1, 1990.

The complaint alleges that defendants’ refusal to issue a building permit for his property was improper. Although the complaint initially contained five counts, defendants successfully moved to dismiss counts III and V; those counts are not a subject of this appeal. As to the remaining counts: count I sought mandamus to compel defendants to issue the requested building permit; count II sought to permanently enjoin defendants from interfering with the alterations to plaintiff’s property and to rescind the stop work order; and count IV sought a declaration that plaintiff was not required to subdivide his property in order to obtain a building permit, to obtain a certificate of occupancy or to lease his buildings to separate tenants.

Plaintiff’s initial motion for a temporary restraining order was denied. Following the above-noted dismissal of counts III and V, defendants filed an answer and affirmative defenses to the remaining counts of the complaint. Defendants argued that: (1) plaintiff had failed to exhaust his administrative remedies before filing suit; (2) plaintiff could not seek injunctive relief where mandamus would be the proper remedy; and (3) plaintiff’s interpretation of the relevant city ordinances was incorrect. The trial court denied the motion to dismiss.

Counts I, II and IV were tried on April 5, 1990. On direct examination, plaintiff testified that he owned not only the property located at 875 East Rand Road, but also the property at 855 East Rand Road. Plaintiff stated that he had owned these properties for several years. Plaintiff identified the location of these properties on a plat of subdivision. Plaintiff also identified the buildings at issue from a set of photographs. The trial court asked plaintiff questions about the photographs to clarify which buildings were at issue. Plaintiff then testified that these properties are located among several other businesses along Rand Road. Plaintiff testified that he had begun work on the front office building at 875 East Rand Road to make the property more attractive to tenants, but that construction had been stopped due to the actions of the City.

On cross-examination, plaintiff testified that he had bought the property at issue from Mr. Eglidi. Plaintiff stated that when he bought the property, the front office building was occupied by Mr. Eglidi and the back building was occupied by Depend-On Trucking. Both Eglidi and Depend-On vacated the property several months after it was purchased by plaintiff. The front office building remained without a tenant until plaintiff signed a lease with United Business Machines.

On redirect, plaintiff stated that following the departure of Depend-On, the back building had been leased to the Truck and Equipment Company, which moved out in 1990. Plaintiff also stated that the properties at 855 and 875 East Rand road were greater than five acres in size.

Vern Chase, the City permit coordinator, testified that he told plaintiff’s architect that the building permit sought by plaintiff would not be issued because there were two buildings on the property and City ordinances required that the property be subdivided. Chase also stated that he believed that most of the corrections to the permit requested by the City had been made by plaintiff. On cross-examination, Chase identified a building permit application for the property at issue which had been granted to the Carbetta Construction Company in 1971. Chase testified that the 1971 permit had been granted because the back building was an accessory use to the front building where Carbetta had its offices. To Chase’s knowledge, the property at issue had not been resubdivided since 1920.

Defendants called Timothy P. Oakley, the City engineer, to testify. Oakley stated that plaintiff’s property occupied two tax parcels comprising about 2.4 acres of an unsubdivided platted lot which exceeded five acres.

Louis Pagones, the director of municipal development for the City, testified that he was also the ex officio building commissioner. Pagones stated that he would issue a “certificate of occupancy,” or “certificate of compliance,” when the work involved in a building permit is completed to the satisfaction of the City and the requirements of city ordinances have been met. Pagones further stated that no certificates of occupancy had been issued for the property at issue since the back building was built in 1971. Pagones testified that he could not issue a building permit if the plans submitted did not comply with all relevant laws and ordinances.

On cross-examination, Pagones listed two reasons why the building permit was not issued. First, Pagones believed there were going to be two principal uses on the lot. Second, Pagones believed that the Plat Act (Ill. Rev. Stat. 1989, ch. 109, par. 1 et seq.) required plaintiff to subdivide the property.

After admitting all exhibits into evidence, taking judicial notice of all ordinances and hearing closing arguments, the trial court ruled in favor of plaintiff, granting mandamus and injunctive relief. The trial court’s order also specifically found that the back building was an accessory use under the city ordinances. Defendants timely filed a notice of appeal.

On appeal, defendants contend that: (1) plaintiff failed to exhaust his administrative remedies before filing suit; (2) mandamus was improper because plaintiff was not in compliance with city ordinances and State law; (3) injunctive relief was improper because mandamus was available as a remedy; and (4) plaintiff should be barred from obtaining relief because he sought equitable relief with unclean hands.

I

We first address defendants’ contention that this case should have been dismissed because plaintiff failed to exhaust his administrative remedies. Generally, exhaustion of local administrative, zoning procedures is required before a judicial action may be maintained. (E.g., Lunar Oil Co. v. Ladendorf (1970), 131 Ill. App. 2d 487, 266 N.E.2d 782.) The exhaustion doctrine, however, is not jurisdictional; rather, it is an expression of judicial policy aimed at allowing local officials the first chance to correct any errors they might make. (County of Lake v. MacNeal (1962), 24 Ill. 2d 253, 259, 181 N.E.2d 85, 89.) Thus, the doctrine is subject to exceptions, e.g., where it is patently futile to seek relief before the agency. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437.) However, the exhaustion requirement cannot be avoided simply because relief probably will be denied by the local authorities. (Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 383 N.E.2d 964.) The futility doctrine, as it is sometimes called, is limited to the factual situation presented on a case-by-case basis. Dock Club, Inc. v. Illinois Liquor Control Comm’n (1980), 83 Ill. App. 3d 1034, 404 N.E.2d 1050.

In this case, defendants contend that plaintiff was required to comply with the following City ordinance:

“5.2 APPEALS FROM THE BUILDING COMMISSIONER
5.2 — 1 Appeals
a. An appeal may be taken to the Building Control & Inspection Committee by any person, firm or corporation, or by any officer, department, board, or bureau aggrieved by a decision of the Building Commissioner. Application for the appeal may be made when it is claimed that:
(1) The true intent of the City Building Ordinance of the regulations adopted thereunder have been incorrectly interpreted; or
(2) The provisions of the ordinance do not fully apply.
The appeal shall be taken within such time as shall be prescribed by the Building Control & Inspection Committee by filing with the Building Commissioner a notice of appeal specifying the grounds thereof. The Building Commissioner shall, within seven (7) days of the receipt thereof, transmit to the Building Control & Inspection Committee all of the papers constituting the record upon which the action appealed from was taken. This Building Control & Inspection Committee shall thereupon hold a public hearing on the appeal within sixty (60) days of the receipt thereof.
b. The Building Control & Inspection Committee shall make written findings of fact and shall submit same, together with its recommendations, to the City Council for final action. Such final action shall be taken not more than sixty (60) days from the date of termination of the public hearing.
c. All decisions and findings of the Building Control & Inspection Committee, on appeals, shall in all instances be final administrative determinations and shall be subject to review by court as by law may be provided. A copy of such findings shall remain on file in the Office of the Building Commissioner as public records.” (Des Plaines, Ill., Building Code §5.2.)

The City ordinance further provides as follows:

“5.3 PERMITS, CERTIFICATES, AND PLANS
5.3 — 1 Building Permits.
* * *
j. Action on Application
The Building Commissioner shall examine or cause to be examined all applications for permits and amendments thereto within a reasonable time after filing. If the application or the plans do not conform to the requirements of all pertinent ordinances and laws, said commissioner shall reject such application in writing stating the reasons therefor.” (Des Plaines, Ill., Building Code §5.3 — l(j).)

The Building Code also provides that the director of municipal development performs the functions of the building commissioner. Des Plaines, Ill., Building Code §1—23—2(A).

Given these provisions of the City’s building code, the trial court did not abuse its discretion in rejecting the exhaustion argument presented by defendants in their motion to dismiss and at trial. Defendants failed to establish that the building commissioner issued a final appealable decision in this case. The record indicates that there was merely an oral statement by Chase, who is not the ex officio building commissioner, that the permit would not be approved until the plat of subdivision had been approved. Defendants’ failure to issue a written denial contravenes the City’s own ordinances. A court may award a remedy such as mandamus where the purported administrative agency has proceeded illegally. See Torres v. County of Kane, Public Aid Committee (1985), 130 Ill. App. 3d 296, 474 N.E.2d 45.

Defendants argue that the City did not have a reasonable time to deny the permit because plaintiff filed his suit approximately 20 days after applying for the permit. The record indicates, however, that defendants found time not only to orally inform plaintiff’s architect that the permit would be denied along with the reason therefor, but also to issue a stop work order on plaintiff’s construction. Accordingly, defendants’ argument is unpersuasive in this case.

Defendants also argue that plaintiff admits in his complaint that the permit was denied. The record, however, indicates that the complaint alleges that defendants “would not issue a building permit,” “refus[ed] issuance for a permit” and “prevented [plaintiff] from obtaining approval of his subdivision application.”

Even if such allegations could be construed as an admission that the permit was denied, the trial court did not abuse its discretion on the exhaustion issue. In a case involving a similar ordinance, this court stated that a mere recommendation to a village board regarding a building permit was not a final order subject to judicial review under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). (Constantine v. Village of Glen Ellyn (1991), 217 Ill. App. 3d 4, 14, 575 N.E.2d 1363, 1370.) Similarly, when the ultimate authority to rule on a specific zoning application rests with a city council, that council acts in a legislative, rather than administrative, capacity. (See Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 543, 458 N.E.2d 575, 583 (board of trustees made final decisions on special use permits).) Likewise, when acting in a quasi-judicial capacity, the decision of a zoning board of appeals is a final and reviewable administrative decision; however, when acting as a legislative committee, its recommendation to the legislative body is nonfinal and unreviewable. See Constantine, 217 Ill. App. 3d at 14, 575 N.E.2d at 1370 (involving denial of a building permit); Traders Development Corp. v. Zoning Board of Appeals (1959), 20 Ill. App. 2d 383, 156 N.E.2d 274 (involving variance resolutions).

Subsection (b) of the ordinance in this case provides that the building control and inspection committee makes recommendations to the City Council for final action. Placing the ultimate decision in the hands of the city council suggests that the process embodied in the ordinance is legislative, rather than administrative. Thus, plaintiff was not required to exhaust administrative remedies which did not exist. See Constantine, 217 Ill. App. 3d at 15, 575 N.E.2d at 1371 (exhaustion not required where the “ordinance provided no meaningful appeal procedure”).

We note that subsection (c) of the ordinance provides that the decisions of the committee are final administrative determinations subject to judicial review as provided by law. Defendants also assert in their brief that the decisions of the city council are appealable under the Administrative Review Law. These suggestions appear to be inconsistent with subsection (b).

It is therefore unclear whether the process here is legislative or administrative. It is also unclear whether plaintiff can appeal from the committee’s determination or recommendation. Nevertheless, even assuming arguendo that the procedure is administrative, the unfairness of imposing a procedure which would leave plaintiff unsure of when he may file a complaint for judicial review, with the attendant risk of losing the ability to obtain such review completely, weighs in favor of allowing judicial review without exhausting all possible administrative remedies. (Constantine, 217 Ill. App. 3d at 15, 575 N.E.2d at 1371 (no meaningful appeal procedure); cf. Condell Hospital v. Illinois Health Facilities Planning Board (1988), 124 Ill. 2d 341, 368-69, 530 N.E.2d 217, 229-30 (emphasizing the need to provide a clear route from the administrative agency to the circuit court).) Given the ordinance and circumstances at issue in this case, the judicial policy of allowing local officials the first chance to correct a mistake is outweighed by the danger that persons might lose their rights entirely in an attempt to comply with the ordinance.

Moreover, regarding defendants’ assertion that the city council decision is appealable under the Administrative Review Law, we note that even if the ordinance creates an administrative process, a home rule unit, such as the City, lacks the constitutional authority to specify in an ordinance that the Administrative Review Law must apply on appeal. (E.g., Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 317 N.E.2d 3.) Indeed, in this case, the ordinance in this case does not mandate appeal pursuant to the review law.

Where a statute or ordinance purporting to create an administrative process does not expressly refer to the review law, common law methods of obtaining judicial review of final administrative decisions may be proper. (See Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 541, 367 N.E.2d 1286, 1292; City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill. App. 3d 881, 520 N.E.2d 1097; National Marine Service Inc. v. Environmental Protection Agency (1983), 120 Ill. App. 3d 198, 210, 458 N.E.2d 551, 558-59.) These common law methods include mandamus, certiorari and injunctive relief. (Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 883, 324 N.E.2d 65, 69.) As the ordinance does not make clear whether it is the building control and inspection committee or the city council which issues a decision which could be subjected to judicial review, there was no error in permitting plaintiff to seek the common law remedies of mandamus and injunctive relief.

In sum, regardless of whether the City ordinance creates a legislative or administrative process, the trial court did not err in determining that exhaustion was not required in this case.

II

Defendants next contend that plaintiff was not entitled to mandamus. Mandamus is an extraordinary remedy and the party seeking the writ must show a clear legal right to the relief requested. (Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 518 N.E.2d 270; Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 374 N.E.2d 932.) In order to compel the issuance of a building permit by mandamus, plaintiff must show that the refusal to issue the permit was improper and that he complied with the proper application procedures. (See People ex rel. Union National Bank v. City of Chicago (1973), 12 Ill. App. 3d 50, 52, 297 N.E.2d 768, 769.) In their brief, defendants do not specify which of their arguments address this issue, but it appears that defendants argue that plaintiff’s proposed remodeling violated both City ordinances and the Plat Act. We address each of these arguments in turn.

Defendants refer to section 5.3—1(j) of the Des Plaines building code, which requires that any proposed work conform to the building code and any applicable laws and ordinances. Defendants also refer to the following provision of the Des Plaines Zoning Ordinance:

“10.4. NUMBER OF BUILDINGS ON A ZONING LOT 10.4.1 Except in the case of planned unit developments, not more than one principal detached residential building shall be located on a zoning lot, nor shall a principal detached building be located on the same zoning lot with any other principal building.” (Des Plaines, Ill., Zoning Ordinance §10.4.1.)

The Des Plaines Zoning Ordinance further provides the following definitions:

“1.2.48 LOT OF RECORD: A ‘Lot of record’ is an area of land designated as a lot on a plat of subdivision recorded or registered, pursuant to statute, with the Recorder of Deeds or the Registrar of Titles of Cook County. * * *
1.2.51 LOT, ZONING: A ‘zoning lot or lots’ is a single tract of land located within a single block, which (at the time of filing for a building permit) is designated by its owner or developer as a tract to be used, developed or built upon as a unit, under single ownership and control. Therefore, a ‘zoning lot or lots’ may or may not coincide with a lot of record.” Des Plaines, Ill., Zoning Ordinance §§1.2.48,1.2.51.

In this case, the record indicates that the trial court found that plaintiff’s property is a single zoning lot; the parties do not dispute this finding. The trial court also found that the testimony and exhibits established that the rear building was an accessory use which did not violate section 10.4.1 of the City building code. On appeal, defendants contend that the evidence establishes only that the rear building was constructed as an accessory use, not that it would be an accessory use under plaintiff’s remodeling plans.

Defendants’ brief on this point consists almost entirely of statements such as the fact that there is one zoning lot “requires that the zoning lot be subdivided before any work goes forward which would establish two separate uses of the property” and that “a parcel of property which once was a unified whole but which now serves two separate uses should be subdivided.”

Defendants cite no cases which support either proposition. Defendants instead cite cases involving the City of Chicago’s zoning laws. (O’Laughlin v. City of Chicago (1976), 65 Ill. 2d 183, 357 N.E.2d 472; Ganley v. City of Chicago (1980), 81 Ill. App. 3d 877, 401 N.E.2d 1184; Ganley v. City of Chicago (1974), 18 Ill. App. 3d 248, 309 N.E.2d 653.) Although the Chicago ordinance in these cases has definitions of “zoning lots” and “lots of record” similar to the Des Plaines ordinance at issue here, cases like O’Laughlin involved the demolition of an existing structure with the intent of erecting multiple structures which did not conform to the Chicago ordinance. In this case, plaintiff is remodelling the front structure; the record does not indicate that the rear structure has been altered or demolished. Moreover, unlike the O’Laughlin line of cases, the record here indicates that plaintiff is leasing the structures to others rather than selling them.

In short, while the cases cited by defendant establish that the erection of separate uses on a zoning lot may violate a city ordinance in a particular factual situation, they do not establish a per se rule that separate uses violate the ordinances cited by defendant in the factual situation presented on appeal. This is particularly true where defendants have not provided this court with the exhibits, such as the photographs of the structures, upon which the trial court relied in reaching its determination that the rear structure remained an accessory use structure.

Defendants next refer to section 5—3—2 of the Des Plaines building code in their brief, which provides as follows:

“Certificate for Altered Buildings or structures. No building or structure enlarged or extended, or so altered, in whole or in part, as to change its classification of occupancy, and no altered building or structure for which a Certificate of Compliance has not been heretofore issued, shall be occupied or used in whole or in part, until a Certificate of Compliance has been issued by the Building Commissioner ***.
No change in occupancy shall be made in a building or structure that is not consistent with the last issued certificate of compliance for such building or structure, unless a new certificate of compliance is secured.”

Defendants, however, offer no evidence that the alteration of the front building planned by plaintiff changes its classification of occupancy; indeed, defendants fail to even discuss the meaning of a “classification of occupancy.” Nor do defendants provide any evidence that there has been a change in occupancy which is inconsistent with the previously issued certificate of compliance. Nor do defendants cite any authority in support of the proposition that separate uses per se constitute such a change in occupancy.

In addition, the ordinance addresses the issuance of a certificate of compliance, not the issuance of a building permit. The plain language of section 5.3—3(c) of the Des Plaines building code, which also concerns the issuance of such certificates, clearly implies that issuance of a building permit is a prerequisite to the issuance of a certificate. Indeed, defendant Pagones testified that plaintiff would have to have complied with a building permit to receive said certificate. Defendant has failed to demonstrate that plaintiff’s alleged noncompliance with the prerequisites for a certificate of compliance is relevant to whether plaintiff has met the prerequisites for issuance of a building permit. Defendant has also failed to cite any authority to support the contention that compliance or noncompliance with a previously issued certificate is a prerequisite to the issuance of a building permit.

The final contention defendants raise on this issue is that plaintiff’s plans violate a provision of the Plat Act which requires a landowner who subdivides his land into two or more parts, any of which is less than five acres, to have the land surveyed and to create a subdivision plat. (See Ill. Rev. Stat. 1989, ch. 109, par. 1(a).) This statute addresses the duty of the landowner who seeks to subdivide or transfer title to some portion of his property. As plaintiff does not seek to subdivide or sell his property, defendants have failed to show that the trial court erred in granting mandamus to plaintiff.

III

Defendants’ third contention is that the trial court erred in issuing injunctive relief because mandamus is the only appropriate remedy for the wrongful refusal to issue a building permit. (See Koziol v. Village of Rosemont (1961), 32 Ill. App. 2d 320, 326, 177 N.E.2d 867, 870.) Nevertheless, where there is no legal justification for the refusal to issue a building permit, a court may grant incidental injunctive relief to prevent a municipality or its officers from interfering with the plaintiff’s use of his or her property. (Rosehill Cemetery Co. v. City of Chicago (1933), 352 Ill. 11, 33-34, 185 N.E. 170, 178-79.) The order in this case indicates that the trial court found that the elements of mandamus had been proven; thus, there was no legal justification for the refusal to issue the building permit. The order enjoins defendants from interfering with the remodeling or occupancy of the subject building based upon the failure to subdivide the property. The relief granted falls within the scope of the Rosehill Cemetery Co. case. Thus, the trial court did not err in granting both mandamus and injunctive relief.

IV

Finally, defendants assert that plaintiff should be barred from relief because he came to court with unclean hands. The record does not indicate that this affirmative defense was raised by defendants in their papers before the trial court. Where the record on appeal is insufficient to allow meaningful review of the defense and the trial court did not rule upon it, defendants cannot assert it on review. (La Grange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 714, 423 N.E .2d 496, 499.) Thus, the defense is waived on appeal.

For all of the aforementioned reasons, the decisions of the circuit court of Cook County are affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.