author: JUSTICE STOUDER JUSTICE BARRY

text:
    CENTRAL ILLINOIS LIGHT COMPANY et al., Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Appellees (Roland E. Burris, Illinois Attorney General, et al., Respondents).
    Third District
    Nos. 3-91-0745, 3-91-0786, 3-91-0800, 3—91—0808 cons.
    Opinion filed January 22, 1993.
    Supplemental opinion filed on denial of rehearing December 30, 1993.

      W. Michael Seidel, of Defrees & Fiske, of Chicago, and Scott A. Cisel, of Central Illinois Light Company, of Peoria (Edward J. Griffin, of counsel), for Central Illinois Light Company.
    Larry Jones, E.M. Fulton, and Harold L. Stoller, all of Illinois Commerce Commission, of Springfield (James E. Weging and Susan Weidel, Special Assistant Attorneys General, of counsel), for Illinois Commerce Commission.
    Karen Lusson, of Citizens Utility Board, of Chicago, for Citizens Utility Board.
    M. Kathleen Nolan, of Illinois Office of Public Counsel, of Chicago, for Office of Public Counsel.

      Eric Robertson and Randall Robertson, both of Lueders, Robertson & Konzen, of Granite City, for Caterpillar, Inc.
    Laurie M. Judd and Douglas S. Slayton, both of Kavanagh, Scully, Sudow, White & Frederick, of Peoria, for Board of Education of City of Peoria School District No. 150, Board of Education of Farmington Central Community Unit School District No. 265, Board of Education of Illini Bluffs Unit School District No. 327, and Board of Education of Washington School District No. 50.
   JUSTICE STOUDER

delivered the opinion of the court:

Central Illinois Light Company (CILCO) filed a petition with the Illinois Commerce Commission (the Commission) on February 22, 1990, to increase rates for its gas service. The new rates were designed to increase annual operating revenues by approximately $14,486,000 — about 10.61% — based on CILCO’s forecast of its revenue requirement for 1991, the test year. In addition, CILCO sought the Commission’s approval of a rider tariff to recover the costs of cleaning up coal tar deposits at up to five sites of former gas manufacturing plants. The plants involved in this effort operated between approximately 1850 until sometime in the 1940’s, and no action was taken to remediate potential environmental damage from the dumping of coal tar until 1986.

After an extensive hearing, on January 16, 1991, the Commission issued its order approving rate increases by 9.96%, or approximately $12,936,000 before revenue taxes, per year. Although initially the Commission deferred CILCO’s coal tar rider tariff request for later consideration at a generic proceeding, on reconsideration the Commission entered an order on August 2,1991, granting CILCO’s request.

These appeals were brought to the appellate court directly from the administrative proceedings pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335) and section 10 — 201(a) of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. lll2/3, par. 10 — 201(a)). In addition to CILCO, intervenors in the administrative proceeding, including several boards of education, the Office of Public Counsel (OPC) and the Citizens Utility Board (CUB), are appellants before this court. Caterpillar, Inc., another intervenor, appears before us as an appellee. Intervenors Attorney General Roland E. Burris, the City of Peoria and the County of Peoria are not parties to the appeal.

In this consolidated appeal, CILCO takes issue with: (1) the Commission’s rejection of CILCO’s updated information on its investment in rate base for the test year; (2) the Commission’s deduction from rate base of certain accumulated deferred income taxes (ADITs); and (3) the Commission’s decision to deny CILCO’s request to include unamortized rate case expenses in rate base. The school boards take issue with: (1) the Commission’s decision to grant a 32.6% rate increase for most of CILCO’s natural gas transportation customers; and (2) the Commission’s decision to grant CILCO’s request to recover the costs of coal tar cleanup in its rider tariff (Rider TAR). The Office of Public Counsel and CUB join in the boards’ challenge to Rider TAR.

The Commission’s role in setting rates and the proper standard for reviewing its orders were cogently set forth by our supreme court in People ex rel. Hartigan v. Illinois Commerce Com’n (1992), 148 Ill. 2d 348, 366-67, 592 N.E.2d 1066, 1074:

“The Commission is the administrative agency responsible for setting rates that public utilities may charge their customers. (Ill. Rev. Stat. 1985, ch. lll2/3, pars. 9 — 102 through 9 — 202; Hartigan I [(1987),] 117 Ill. 2d [120, 142].) The Commission is the fact-finding body in the ratemaking process. (Hartigan I, 117 Ill. 2d at 142.) It is governed by the Public Utilities Act (Act) (Ill. Rev. Stat. 1985, ch. lll2/3, par. 1 — 101 et seq.) and the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1985, ch. 127, par. 1001 et seq.). The Commission’s powers are limited to those granted by the legislature in the Act. Business & Professional People I [(1989)], 136 Ill. 2d [192, 201].
Because the Commission is an administrative agency, judicial review of its orders is limited. (Business & Professional People I, 136 Ill. 2d at 204.) Although the Commission is not required to make findings regarding every step, its findings of fact must be sufficient to allow for informed judicial review and will be affirmed if they are based on substantial evidence in the record. (See Ill. Rev. Stat. 1985, ch. lll2/3, pars. 10 — 201(e)(iii) through (eXiv); Yowell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1935), 360 Ill. 272, 275-76.) The Commission’s findings of fact are prima facie correct and will not be overturned by a reviewing court unless they are against the manifest weight of the evidence, beyond the Commission’s statutory authority, or violative of constitutional rights. (Citizens Utilities Co. v. Illinois Commerce Com’n (1988), 124 Ill. 2d 195, 206; Independent Voters v. Illinois Commerce Com’n (1987), 117 Ill. 2d 90, 95.) Moreover, the burden of proof is on the party appealing the Commission’s order. Ill. Rev. Stat. 1985, ch. lll2/s, par. 10-201(d).”

I.

CILCO’S UPDATED EVIDENCE OP REVENUE REQUIREMENTS

Initially, we find that the Commission did not err in rejecting CILCO’s updated revenue needs for the 1991 test year. When CILCO filed its rate case in February 1990, its letter to the Commission stated: “The new schedules are designed to provide additional base rate revenues of approximately $14.5 million annually based upon a forecasted test year ending December 31, 1991, which represents an overall increase in revenues of 10.6 percent.” At that time, CILCO applied budget information available from the fourth quarter of 1989 for forecasting 1991 construction requirements. Subsequently, in July 1990, during the testimony of Robert Sprowls, CILCO’s treasurer, updated evidence of the construction requirements was admitted. The new evidence was based on information then available for the first quarter of 1990 and showed an increase of approximately $2.9 million for 1990 and projected a $3.0 million increase for 1991.

According to Sprowls, the increased construction expenditures related primarily to the construction of new gas mains and service lines necessitated by the widening of streets, the relocation of sewers, the development of new subdivisions, the replacement of older gas mains in the City of Springfield and the replacement of mains in the Peoria area. After subtracting out that portion of the projected increase relating to the installation of a new electric generating unit, which was being deferred, the witness proposed that CILCO’s net investment in 1991 rate base be increased by approximately $5.5 million to accommodate the new construction requirements.

In its final order denying CILCO’s request to include the updated evidence in its rate base, the Commission stated:

“While the nature and amounts of these increases were well documented by Company witnesses, the Commission does not believe that the ratemaking process is well served when updates prepared during the rebuttal stage of the hearings result in such substantial increases over prior forecasts of costs which have the effect of increasing the utility’s revenue requirement. Absent a showing that increases of this magnitude could not reasonably have been foreseen at an earlier time such as when the rate case filing or supporting forecasts were prepared, the Commission does not believe that a utility should be permitted to increase or rehabilitate its revenue requirement in this manner over objections by witnesses for another party.”

Although by rule the Commission may permit a utility to update its filing for significant and material changes during the suspension period (83 Ill. Adm. Code §285.150(d) (1991)), it is not required to do so. Updated filings should be presented in accordance with a schedule established during the proceedings so as to allow staff an opportunity to review the filing, particularly, as here, where the change is significant. In this case, it is not at all clear from the record on appeal that CILCO’s update was presented in a timely manner. Any agreement among the parties as to CILCO’s intention to present updates for the test year was not made a part of this record. The updated information was available to CILCO in April 1990, but not revealed to the other parties until Sprowls testified on cross-examination in July 1990. Moreover, as argued by CUB, it appears that the $5.5 million increase proposed by CILCO for construction updates failed to account for other undisputed downward adjustments proposed by Commerce Commission staff and witnesses for the intervenors that could have affected the test year revenue requirement. Under the circumstances, we find that the Commission’s decision to reject the updated test year filing is not contrary to the manifest weight of the evidence and should be affirmed.

II.

DEDUCTION OF ADITs RELATED TO PREPAYMENT OF PENSION EXPENSES

Next, CILCO contends that the Commission acted arbitrarily and unreasonably in deducting from rate base accumulated deferred income taxes (ADITs) related to the prepayment of pension expenses. Income taxes are operating expenses which a utility is permitted to recover through its rates as a cost of providing services. Deferred income taxes are accumulated by the utility as a result of differences between the time the utility recovers the taxes through its rates and the time the taxes are paid. Because the taxes are supplied by ratepayers, they represent cost-free capital available to the utility for investment and should not earn a return for the benefit of the shareholders. For this reason, ADITs are deducted from the regulated utility’s rate base. City of Alton v. Commerce Comm’n (1960), 19 Ill. 2d 76, 165 N.E.2d 513.

In this case, CILCO did not deduct about $1.2 million of ADITs related to prepayment of pension expenses. According to CILCO, the utility made advance payments to the company pension fund in 1986 and 1987 in anticipation of a reduction in corporate income taxes after 1986. CILCO reasoned that since the pension payments were advanced with shareholder funds the ratepayers were not entitled to a deduction for ADITs related to the pension payments. Witnesses for the intervenors and Commerce Commission staff, however, opined that since the pension prepayment resulted in higher book entry income taxes than were actually paid to the taxing authorities and the ratepayers prepaid the tax expense to the utility, the ADIT deduction properly belonged to the ratepayers. The Commission found the latter theory reasonable and accepted the recommendation that ADITs related to the pension prepayments be deducted from rate base. We agree.

In our opinion, the ADITs, whether property related or not, are properly deducted from rate base because the utility’s income taxes are paid for with ratepayer funds, not shareholder funds. Even though the underlying pension fund prepayment was made with shareholder funds, to deny the ratepayers a deduction for ADITs related to nonproperty expenses would result in an unwarranted return on money that the shareholders did not invest in the company. We affirm the Commission’s order allowing the deduction.

III.

EXCLUSION FROM RATE BASE OF UNAMORTIZED RATE CASE EXPENSES

Finally, CILCO argues that the Commission acted arbitrarily and contrary to law in denying the utility’s request to include the unamortized portion of CILCO’s rate case expenses in rate base. The Commission determined to amortize rate case expenses over a five-year period instead of three years as proposed by CILCO. In its order, the Commission explained that if the amortization period is too short, the utility over-recovers its expenses; whereas, if it is too long, the remaining unamortized expenses can be recovered in a subsequent rate case.

By including the unamortized rate case expenses in rate base, CILCO sought to recover the financing costs associated with the expenses. As explained by CILCO witness Sprowls, the utility loses the time value of money paid to present its rate case if rate base treatment is not accorded the unamortized balance. Staff and witnesses for the intervenors, on the other hand, recommended excluding the unamortized portion of rate case expenses from rate base so as to provide an equitable sharing of rate costs between ratepayers and shareholders. Both sides cited prior decisions of the Commission in support of their positions.

We have reviewed the testimony of record and find that the Commission’s determination in this case is sufficiently supported by credible evidence and is neither contrary to law nor arbitrary and capricious. Accordingly, we affirm the Commission’s decision to exclude unamortized rate case expenses from rate base.

IV.

APPROVAL OF 32.6% RATE INCREASE FOR TRANSPORTATION CUSTOMERS We turn next to the school board intervenors’ appeal. All of the school board intervenors were considered “transportation” customers — that is, they purchased their natural gas from another supplier and contracted with CILCO to move the gas through its system from the point where CILCO hooks up to an interstate pipeline to the customer’s facility. Transportation customers were given the option of relying solely on the gas purchased independently or purchasing backup gas from CILCO on a limited or unlimited basis.

Prior to the rate increase here at issue, transportation customers paid 7 cents per therm for the distribution charge plus the cost of back-up gas if that service was selected. Testimony admitted at the hearing established that CILCO’s cost to distribute gas to the transportation customers was 6.33 cents. Under the new rates proposed by CILCO, the customers were split into two classes, “general” (Rate 2) and “large” (Rate 3) customers. The rates for transportation customers are determined by applying companion “riders” to the class rates. The school board intervenors qualify only for the general rate and their rate as transportation customers is determined under either Rate 2, Rider 28 (with no back-up or limited back-up service) or Rate 2, Rider 29 (with unlimited back-up). Rate 3 transportation customers’ rates are determined under Rider 30.

The percentages of increase/decrease proposed by CILCO and approved by the Commission for the various categories of customers are at the heart of the school boards’ arguments challenging their new rates. The approved increase applicable to general nontransportation customers is 3.8%, whereas large nontransportation customers receive a 27% decrease. Rider 28 and Rider 29 transportation customers’ rates will increase by 32.6%, whereas Rider 30 large transportation customers will have a 27% decrease in their rates.

Section 9 — 201(c) of the Public Utilities Act requires the Commission to determine rates and other charges and classifications that are “just and reasonable.” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 9 — 201(c).) On appeal, this court is required to reverse a decision of the Commission “in whole or in part” if we find that the Commission’s findings “are not supported by substantial evidence based on the entire record of evidence presented to or before the Commission for and against such *** decision.” Ill. Rev. Stat. 1989, ch. lllzk, par. 10— 201(eXviXA).

The crux of the school boards’ argument is that there was no evidence admitted at the hearing quantifying CILCO’s position that the large transportation customers with a “high load factor” (representing constancy in gas usage throughout the year) had been subsidizing the “low load” transportation customers, such as the school boards. The evidence showed that cost of service to transportation customers was 6.33 cents per therm and that they were paying 7 cents per therm prior to the filing of this rate case. Therefore, the argument continues, the 32.6% rate base increase applied to them is arbitrary and must be reversed. CILCO and Caterpillar respond that the premise of the school boards’ argument ignores the critical fact that the 6.33 cent cost-of-service figure represents the average cost of serving all transportation customers, not just the low load transportation customers. As such, CILCO reasons, the school boards’ reliance on this singular factor is misplaced. We agree.

Consideration of the cost-of-service factor alone does not guarantee a just and reasonable rate schedule. As stated in Cerro Copper Products v. Illinois Commerce Comm’n (1980), 83 Ill. 2d 364, 371-72, 415 N.E.2d 345:

“The fundamental purpose of providing a particular rate schedule is to generate a rate of return which the Commission has approved as just and reasonable and which will enable the utility to continue operation at an acceptable level of operating income. Many and complex factors must be considered. The fair value of the utility’s property, the existing capital-formation structure, the proposed financing for any construction programs, original cost rate base, operating expenses, revenue and income, and the cost of providing *** service to the various classifications of consumers must be examined before the Commission issues an order and announces a schedule of rates.”

We have reviewed the record on appeal and find that the Commission’s approval of CILCO’s rate design for its transportation customers is supported by substantial evidence. The only cost-of-service study admitted into evidence in this case was conducted by CILCO. When the transportation option was originally offered by CILCO in the 1980’s, it was designed for a single customer. However, by the time that this rate case was filed, about 43% of CILCO’s delivery of gas represented transportation service. These customers realized an immediate 50% reduction in their base rate charges by making the switch from general to transportation service, and CILCO began to realize losses of revenue.

The embedded cost-of-service study was performed to categorize CILCO’s customers and costs depending, inter alia, on their demands on CILCO’s gas system, the volumes of gas delivered to them and the number of customers in each category. The study and testimony relating thereto established that residential customers were being undercharged and that the large industrial customers who used the gas system more consistently and efficiently (the high load factor customers) had made a greater contribution to payment of fixed costs than had the smaller, low load factor customers. Accordingly, CILCO’s new proposed rates were designed to bring the base rates charged to the various classes of customers closer to cost of service by decreasing the base rate for those customers which had substantially subsidized the low load factor customers and increasing the rates for the low load factor customers sufficiently to provide a reasonable rate of return for the utility’s shareholders.

Obviously, given the disparities demonstrated by CILCO’s study, an across-the-board percentage increase in rate base to all customer classes would not have been just or reasonable. We do not agree with the school boards that the record is deficient in its evidentiary justification for the various percentage changes for the utility’s customers or that the customers were arbitrarily categorized for purposes of CILCO’s rate schedule. In our opinion, the evidence of record amply supports the Commission’s ultimate conclusion that the rate design for transportation customers, as recommended by CILCO and the Commission staff, is fair and reasonable.

V.

RECOVERY OF COAL TAR CLEANUP COSTS

The intervenor school boards, CUB and OPC also challenge the Commission’s decision on rehearing to grant CILCO’s requested Rider TAR. The rider allows CILCO to recover from ratepayers the cost of cleaning up certain coal tar environmental hazards.

The record shows the coal tar deposits are located at the site of previous manufactured gas plants (MGPs). These plants operated between approximately 1850 and 1950. In these plants gas was “produced” from coal or coke. As a by-product of this process, waste products such as coal tar, coal tar sludge, coking liquors, coke oven gas condensates, gas purification waste and crude coal oil were produced. These wastes were for the most part stored or buried on site. When these plants were decommissioned, the above-ground structures were for the most part razed, while the below-ground structures were filled with demolition debris and covered with clean fill materials.

Some two or three decades later, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (42 U.S.C. §9601 et seq. (1980)), commonly known as Superfund. The Act authorizes State and Federal governments to institute actions for the containment, cleanup and removal of hazardous wastes. (42 U.S.C. §9604 (1980); United States v. Reilly Tar & Chemical Corp. (D. Minn. 1982), 546 F. Supp. 1100.) The State of Illinois has enacted similar legislation. (See Ill. Rev. Stat. 1991, ch. lll1^, par. 1020 et seq.) The Illinois Environmental Protection Agency (IEPA) has encouraged Illinois utilities to investigate and voluntarily remediate coal tar pollution, in order to avoid formal proceedings by the agency. In the instant case, CILCO’s actions regarding the cleanup of coal tar wastes have been on a voluntary basis. No action has been brought by the State of Illinois or the United States Government.

CILCO became aware of the possible hazardous waste problem at the former MGP sites in 1984. CILCO identified four possible sites in its service area. It was determined that the wastes posed no immediate threat to the public or the environment. While excavating at one of these sites in 1986, CILCO discovered contaminated soil. Following an investigation of the problem, and working in cooperation with the IEPA, CILCO has moved toward remediation of the problem at this site. CILCO plans to clean up each site one site at a time.

In the instant proceedings, CILCO proposed to recover all payments to outside vendors incurred in the investigation and cleanup of former MGP sites through a rider, designated Rider TAR. The intervenors opposed CILCO’s proposed recovery from ratepayers, and in the alternative proposed other mechanisms for recovery from both ratepayers and shareholders.

In its January 16, 1991, order, the Commission accepted the reeomendation of staff that the decision on the coal tar issue would best be addressed industry-wide in a “generic” proceeding. The Commission therefore denied approval of CILCO’s Rider TAR request. The Commission subsequently granted CILCO’s application for rehearing, and further hearings were held on the coal tar issue. We note that on the same day the Commission granted CILCO’s application for rehearing, the Commission also initiated on its own motion a “generic” proceeding on the coal tar issue.

In its August 2, 1991, order on rehearing, the Commission, with three members dissenting, found the cleanup costs were current and legitimate business expenses mandated by State and Federal environmental laws. The Commission noted that under general principles of ratemaking, current and legitimate business expenses which are reasonably incurred are to be recovered from the utility’s ratepayers. The Commission found that although these costs did not “clearly fit” within the Act’s stated policy of recovery of costs from those who cause the costs to be incurred (see Ill. Rev. Stat. 1991, ch. lll2/3, par. 1 — 102(dXiii)), the Commission concluded the remediation costs were not sufficiently different or extraordinary to require deviation from the general rule. The Commission found the best mechanism for recovery of such costs was a rider with a prudency review provision.

Under the rider, CILCO will also be able to recover the carrying charges on the unamortized balance of the costs incurred through August 2, 1991. The costs incurred prior to August 2, 1991, are to be spread over the remaining months of 1991 and the 12 months of 1992, and are to be recovered by the end of 1992. Costs incurred after August 2, 1991, are to be recovered on a 12-month basis. As a result of the allowance of carrying charges and the recovery of subsequent costs as they are incurred, ratepayers will bear 100% of the recoverable costs.

On appeal, the intervenors contend the Commission erred as a matter of law and violated the policy of the Act in granting CILCO’s Rider TAR request.

As an initial matter, we note the Commission reached a decision in the “generic” coal tar proceeding on September 30, 1992 (see Illinois Commerce Commission on its Own Motion — Investigation Concerning Issues Related to Coal Tar Cleanup Expenditures (September 30, 1992), Nos. 91 — 0080 through 91 — 0095). In that decision, the Commission concluded that neither the shareholders nor the ratepayers should bear the full burden of coal tar cleanup expenditures. The Commission specifically found no “legal requirement” that ratepayers absorb all cleanup costs and that equity required a sharing of such costs between ratepayers and shareholders.

None of the parties have brought this decision to our attention; therefore, no arguments have been presented to show what effect, if any, this decision should have on our ruling.

This court is struck by the fact that the exact same arguments and reasoning specifically rejected in CILCO’s case were adopted by the Commission majority in the generic proceeding as the basis for its ruling. We acknowledge the Commission is under no legal duty to adhere to its own previous orders. “The concept of public regulation includes of necessity the philosophy that the commission shall have power to deal with each situation as it comes before it, regardless of how it may have dealt with a similar or even the same situation in a previous proceeding.” (Mississippi River Fuel Corp. v. Illinois Commerce Comm’n (1953), 1 Ill. 2d 509, 513, 116 N.E.2d 394, 396-97.) However, these two cases were proceeding in tandem with each other. Why the utility-specific CILCO case was resolved prior to the resolution of general issues in the generic case is puzzling to this court.

The parties in this proceeding have argued the question of who should bear these costs is a legal issue contingent on statutory authority. The Commission has decided this legal issue in a conflicting manner. Thus, it is rather likely that the courts will be confronted with two Commission decisions which are diametrically opposed to each other. In order to avoid unduly conflicting judicial decisions, we believe that in the interest of judicial economy this cause should be remanded to the Commission for further consideration of the coal tar issue in light of the Commission’s recent ruling in the generic proceeding.

Therefore, we affirm the Commission’s order of January 16, 1991; however, we reverse the Commission’s order on rehearing dated August 2, 1991, and remand to the Commission for further proceedings in light of its decision in the generic coal tar proceeding.

Affirmed in part; reversed in part and remanded.

SLATER, J., concurs.

JUSTICE BARRY

concurring in part and dissenting in part:

I subscribe fully to my colleagues’ disposition of issues I through IV in this appeal. I do not, however, concur in their apparent approval of the Commission’s ultimate decision to pass along to CILCO’s ratepayers all or part of the costs of cleaning up the utility’s 50-year-old coal tar deposits (issue V).

In its original order of January 16, 1991, the Commission stated:

“The Commission has carefully reviewed the evidence and arguments presented by all parties. While noting that the issue has been well analyzed by CILCO in its testimony and briefs, the Commission is of the opinion that the recommendation of Staff should be adopted. Given the nature and statewide scope of the issue, a determination of the proper ratemaking treatment relative to the recovery of cleanup costs can best be addressed in a generic proceeding, provided that these expenditures are accounted for in a manner that would allow CILCO to preserve the opportunity to recover such costs, including carrying costs, if and to the extent the Commission decides that such recovery is appropriate. Under Staff’s proposal, these costs would be accounted for in such a manner. The Commission also agrees with Staff that the carrying charge should be set at the after tax cost of capital. The Commission would add that Staff’s proposal for a generic proceeding is especially appropriate where, as in the instant case, the Company is seeking approval to recover costs through a PGA type mechanism which would continually pass through costs to ratepayers without the scrutiny of a rate proceeding. The Commission concludes that CILCO’s proposal to implement Rider TAR should not be approved at this time.”

Subsequently, the Commission granted CILCO’s application for rehearing and entered its final order on August 2, 1991, approving Rider TAR. In the order the Commission finds that the coal tar cleanup costs are “current and legitimate business expenses reasonably incurred” and that they are not “extraordinary by their nature or sufficiently different to require a deviation from the general rule that [such] expenses reasonably incurred are subject to recovery from ratepayers.” Three of the commissioners dissented. Having carefully reviewed the record on appeal, I would reverse the Commission’s order on rehearing granting CILCO’s request to recover its coal tar cleanup expenses from the ratepayers.

The Commission is an administrative agency governed by the Public Utilities Act (111. Rev. Stat. 1989, ch. lll2/3, par. 1 — 101 et seq.) and the Illinois Administrative Procedure Act (111. Rev. Stat. 1989, ch. 127, par. 1001 et seq.). Its rate-setting authority is limited to powers granted by the legislature in the Public Utilities Act. (People ex rel. Hartigan v. Illinois Commerce Comm’n, 148 Ill. 2d at 366, 592 N.E.2d at 1074.) It is the declared policy of this State to provide “environmentally safe and least-cost public utility services *** which are equitable to all citizens.” Goals of regulation include ensuring environmental quality and equitable treatment of consumers and investors. With respect to the latter, this State’s objective is to allocate the cost of supplying public utility services “to those who cause the costs to be incurred.” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 1 — 102(d)(iii).) In presenting its rate case before the Commission, a regulated utility “has the burden of proving that any operating expense for which it seeks reimbursement directly benefits the ratepayers or the services which the utility renders.” (Candlewick Lake Utilities Co. v. Illinois Commerce Comm’n (1983), 122 Ill. App. 3d 219, 227, 460 N.E.2d 1190, 1196, citing Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 461, 303 N.E.2d 364.) The Commission’s interpretations of law, unlike determinations of fact, are not binding on a reviewing court. Hartigan, 148 Ill. 2d at 367, 592 N.E.2d at 1074.

By my view, the Commission erred in its determination as a matter of law that the coal tar cleanup costs are recoverable from current ratepayers. Contrary to the Commission’s finding, the coal tar cleanup costs here at issue are an “extraordinary” expense. The cause of the expense is the utility’s decision to dispose of hazardous waste deposited on the sites of manufactured gas plants more than 50 years ago. This is not a case of installing environmental controls for the current operation of the utility. Were such the case, the Public Utilities Act clearly authorizes the recovery of prudently and reasonably incurred costs. See Ill. Rev. Stat. 1989, ch. lll2/3, par. 1 — 102(b)(ii).

Nor does the mere fact that the utility failed to recognize the environmental impact of its practice until some 40 to 50 years later and is now mandated by Federal and State law to clean up the sites convert the cleanup costs into current business expenses which inure to the benefit of current ratepayers. If anything, the costs expended to clean up coal tar deposits inure primarily to the benefit of the utility’s property owners — i.e., the shareholders — and secondarily to the general citizenry of this State. The cleanup is unrelated to the providing of current utility service. Therefore, evidence that the utility’s past practices of disposing of the waste were deemed reasonable 50 years ago or that the manufactured gas plants were decommissioned in a reasonable and prudent manner cannot be used to justify the utility’s theory that current ratepayers should bear the burden of paying for the cleanup.

In my opinion the Public Utilities Act provides no authority for the utility’s recovery of “extraordinary” expenses neither related to supplying current services nor caused by current consumers of the utility’s services. I would hold that the Commission exceeded its statutory authority in approving CILCO’s request to charge its consumers for any of the utility’s coal tar cleanup costs.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE STOUDER delivered the opinion of the court:

On January 22, 1993, this court filed an opinion (Justice Barry, dissenting) in this case affirming the Commission’s order of January 16, 1991. However, we reversed and remanded the Commission’s August 2, 1991, order on rehearing before the Commission which dealt solely with the proper ratemaking treatment of coal tar remediation costs.

Previously, while this case was under advisement, this court became aware of the Commission’s September 30, 1992, decision in what was termed the “generic coal tar case.” (Illinois Commerce Commission on its Own Motion — Investigation Concerning Issues Related to Coal Tar Cleanup Expenditures (September 30, 1992), Nos. 91 — 0080 through 91 — 0095.) Also while this case was under advisement, the parties to the generic case filed appeals from the September 30 generic order. (The Hlinois Supreme Court subsequently ordered the appeals consolidated in this district.) Noting the conflict between the Commission’s decision in the instant case and the Commission’s decision in the generic case, we initially ordered the cause remanded to clear up the conflict. CILCO filed a petition for rehearing which, inter alia, challenged this court’s remandment of the coal tar issue.

We have now addressed the coal tar issue on the merits in the generic case, finding the Commission had the authority to work a “sharing” of coal tar remediation costs between ratepayers and utility shareholders. (Central Illinois Light Co. v. Illinois Commerce Comm’n (3d Dist. December 29, 1993), No. 3—92—0864 (Justice Barry, dissenting).) Having approved the Commission’s action in the generic case, we believe the cause in the instant case should now be remanded, and direct the Commission to reconsider the facts and enter an order consistent with the generic order.

Therefore, as modified we affirm the Commission’s order of January 16, 1991; reverse the Commission’s order on rehearing dated August 2, 1991, and remand the cause, with directions, to the Commission for further proceedings in light of our decision in case No. 3 — 92—0864; otherwise, CILCO’s petition for rehearing in the instant case is denied.

Affirmed in part; reversed in part and remanded with directions; petition for rehearing denied.

SLATER, J., concurs.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVELINA RICHARDSON et al., Defendants-Appellants.
    Second District
    Nos. 2—91—0919, 2—91—0920 cons.
    Opinion filed October 19, 1993.
    G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

The defendants, Evelina Richardson and Donald Calhoun, who are husband and wife, pleaded guilty to theft. (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)(A) (now 720 ILCS 5/16-1(a)(1)(A) (West 1992)).) At the sentencing hearing held on May 17, 1991, the trial court sentenced the defendants to 30 months’ probation and ordered them to pay restitution in an amount not to exceed $8,517. The court then continued the case for a hearing to determine the exact amount to be paid. The hearing was held on August 9, 1991, after which the court ordered that the defendants pay $8,760. The defendants appeal, contending that the trial court violated section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c) (now codified, as amended, at 730 ILCS 5/5 — 8—1(c) (West 1992))), which proscribes an increase in sentence once it has been imposed. We affirm.

The defendants were charged with theft of property in excess of $300 from L & R Management Company (L & R). On April 15, 1991, the defendants entered a negotiated plea of guilty in exchange for a term of probation and restitution of the amount stolen. The factual basis for the plea was that the defendants were managers of an apartment building owned by L & R. One of their duties was to collect the rents from the tenants in the building and remit them to L & R. However, a records check revealed that the defendants had not tendered approximately $5,000 to $7,000 collected in rent. The trial court accepted the pleas on the condition that the presentence investigations not reveal any felony convictions. The defendants were then released on a recognizance bond pending a sentencing hearing.

At the sentencing hearing held on May 17, the State asked that the defendants be sentenced to 30 months’ probation and that they pay $8,517 in restitution. The defendants agreed with the term of probation but asked for a hearing on the amount of restitution. The trial court sentenced the defendants to 30 months’ probation conditioned upon their establishing residence in Lake County and maintaining full-time employment. The court also ordered the defendants to pay restitution to L & R in an amount not to exceed $8,517, and it set a date for a hearing to determine the exact amount of restitution to be paid.

At the restitution hearing held on August 9, Beth Germain, the vice-president of L & R, stated she first became aware of a shortfall when she went to the building managed by the defendants to notify several tenants of delinquencies in their rent payments. In most cases, the tenants were able to show receipts for rent payments which Germain had not received. This led to further investigation by Ger-main, who compiled a list of the monies that were owed to L & R. Germain’s list and accompanying receipts showed that the total amount lost by the company was $8,760. The trial court ordered the defendants to repay that amount to L & R.

The defendants contend that the trial court imposed its sentence on May 17, when it ordered them to pay restitution in an amount not to exceed $8,517. Therefore, the court’s later order that they were to pay $8,760 violated section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c) (now codified, as amended, at 730 ILCS 5/5 — 8—1(c) (West 1992))), which prohibits the trial court from increasing a sentence once it has been imposed.

The State argues that the defendants waived this issue since they did not file a motion to reconsider the sentence, as required under amended Supreme Court Rule 604(d). (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992.) However, the defendants’ argument is that the August 9 order is void because it was entered outside the sentencing authority of the trial court. The argument that a judgment in a criminal case is void is a matter which can be raised at any time, regardless of whether it was properly preserved for review. (People v. Perruquet (1989), 181 Ill. App. 3d 660, 664.) We therefore address the merits of the defendants’ argument.

The final judgment in a criminal case is the sentence. (People v. Caballero (1984), 102 Ill. 2d 23, cert denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362.) In a criminal adjudication, restitution, when ordered, is an increment of the sentence imposed. (People v. White (1986), 146 Ill. App. 3d 998, 1003.) A sentencing order should be so complete that no further action by the court or a ministerial officer is required to ascertain its meaning. White, 146 Ill. App. 3d at 1003.

In this case, the May 17 order setting a maximum restitution amount of $8,517 was not certain enough that it could be enforced without further judicial action. Unlike other cases which have upheld restitution orders setting a maximum amount to be paid, the trial court’s order did not provide that the money was to be used to pay for identifiable costs and expenses incurred by the victim. See People v. Nash (1989), 183 Ill. App. 3d 924 (the court’s sentencing order provided a maximum amount of money to be paid for the cost of any counseling the victim and her family might require); People v. Durk (1991), 215 Ill. App. 3d 186 (the court’s sentencing order provided a maximum amount of money to be paid for the purchase of eyeglasses and medical bills).

Thus, the May 17 restitution order was not a final judgment since a second judicial hearing was required in order to determine the exact amount to be paid. Since the May 17 order was not a final judgment, the trial court was not prohibited from subsequently increasing the amount of restitution.

Contrary to the defendants’ argument, our holding does not require that we remand the cause for a new sentencing hearing. In People v. Stinson (1990), 200 Ill. App. 3d 223, cited by the defendants in support of their argument, the trial court placed the defendant on 24 months’ probation and specifically reserved the question of restitution. The appellate court held that the failure to fix restitution at the time of sentencing resulted in an invalid order. (Stinson, 200 Ill. App. 3d at 224.) It vacated the restitution order and remanded the case so that the trial court could fix an exact amount of restitution. (Stinson, 200 Ill. App. 3d at 225.) In the present case, the trial court fixed an exact amount of restitution on August 9 when it ordered the defendants to pay $8,760. Unlike Stinson, there is no need for the case to be remanded to the trial court.

The defendants also argue that the case should be remanded for a determination of a payment schedule. Section 5 — 5—6(f) of the Unified Code of Corrections states in relevant part:

“If the defendant is ordered to pay restitution and the court orders that restitution is to be paid over a period greater than 6 months, the court shall order that the defendant make monthly payments; the court may waive this requirement of monthly payments only if there is a specific finding of good cause for waiver.” 730ILCS 5/5 — 5—6(f) (West 1992).

The trial court explained to the defendants at the May 17 hearing that the restitution was to be paid during the period of probation and that the early termination of their probation would be considered if the restitution was paid before the end of the 30-month period. The court did not order the defendants to make monthly payments. However, the presentence reports indicated that the defendants have numerous debts and are in poor financial condition. The trial judge recognized the defendants’ inability to make monthly payments when he told them at the May 17 hearing that they “will have to *** make whatever payments they can towards restitution.” We hold that this statement was a sufficient finding of good cause for waiver of the monthly payments. See also People v. Whitfield (1986), 146 Ill. App. 3d 322 (trial court’s order calling for restitution to be made within one year but not defining a payment schedule was reasonable since the defendant was not yet employed and did not know how much he would be earning or how often he would be paid).

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

Affirmed.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE DiVITO PRESIDING JUSTICE McCORMICK,

text:
    RICHARD LUTTRELL, Plaintiff-Appellant, v. JUDY PANOZZO, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—3330
    Opinion filed August 17, 1993.
    McGrath & Harty, of Orland Park (Richard B. Harty and D. Yarraveto, Jr., of counsel), for appellant.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (James R DeNardo and Sara E. Cook, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a hearing on a rule to show cause, plaintiff Richard Luttrell was found in indirect civil contempt for violating an order restraining him from telephoning or coming within 100 feet of defendant Judy Panozzo and he was ordered to pay a fíne of $2,000. On appeal, he contends that the circuit court improperly applied the preponderance of evidence standard rather than that of proof beyond a reasonable doubt. We agree, and for the reasons that follow, we reverse the judgment and remand for further proceedings.

On August 2, 1990, plaintiff filed a complaint in the circuit court of Cook County seeking the dissolution of his partnership with defendant. In his complaint, he alleged that he and defendant lived together in a home owned by defendant at 670 Huntley Terrace in Crete, Illinois, for approximately 15 years and that he engaged in various commercial enterprises, while she worked “principally as a housewife.” In May 1990, defendant “ordered” him to vacate the residence and then refused to return some of his personal property or to compensate him for his efforts in improving the value of the home. His complaint requested that defendant be enjoined from transferring any of the joint assets, that an accounting be conducted, and that the partnership be dissolved and assets distributed.

Defendant responded with a motion for a restraining order against plaintiff alleging that since the filing of the complaint, he “ha[d] engaged in a pattern of verbal and/or physical harassment *** including threatening phone calls, verbal threats and intimidation.” On September 14, 1990, the circuit court granted the motion, restraining plaintiff during the pendency of the litigation from telephoning defendant’s residence, from coming within a 100-foot radius of her, from coming 'upon her property, and from removing any of her property from the residence. Defendant was likewise restrained from selling or transferring any claimed partnership property.

On September 24, 1990, defendant filed a motion for a rule to show cause why plaintiff should not be held in contempt for violating the court’s restraining order. In the motion, she alleged that plaintiff continued to harass and intimidate her, and that plaintiff followed her in his automobile “on numerous occasions” after she left her home. She also asserted that plaintiff was responsible for stealing her car, a claimed partnership asset. The next day, the court granted defendant’s motion and restrained plaintiff from disposing of the missing vehicle until a hearing was held.

At the hearing, defendant testified that plaintiff harassed her several times after the court imposed the restraining order. First, plaintiff often stood across the street in the driveway of the house that he purchased after they separated, and watched her come to and leave the house. On September 19, 1990, he yelled at her as she pulled out of her driveway and then followed her in his car at a high speed, coming as close as three feet to her bumper. Next, on September 22, 1990, defendant’s car was stolen from a parking space near her friend John Huizinga’s home. Four days later, however, the day after the court issued the rule to show cause, she awoke to find the car sitting in her driveway. Then, on October 23, 1990, when defendant, accompanied by Huizinga in his car, took the car to Huizinga’s repair yard in Hammond, Indiana, plaintiff followed them to Hammond, jumped out of his car, and started beating his fists on Huizinga’s windshield. When she tried to stop plaintiff, he shoved her aside and screamed that he wanted his belongings. Plaintiff then began to drive away, but then turned around and repeated his actions in a violent manner. Finally, on October 29, 1990, plaintiff phoned her at approximately 7:10 a.m. and threatened her. Approximately one hour later, plaintiff called again, said “did you hear me,” and hung up.

John Huizinga testified that on October 23, 1990, he and defendant drove in separate cars to his repair yard in Hammond in order to fix defendant’s car. When they arrived at the yard, plaintiff, who had followed them from Crete, pulled up and blocked the gate so that they could not back out. Plaintiff then exited his vehicle, began banging on Huizinga’s window, and threatened to kill him. Plaintiff also repeatedly hit the window as hard as he could, and then returned to his car and drove away. Moments later, plaintiff returned, and when defendant stepped in front of the door of his car, he “grabbed her and threw her against [Huizinga’s] car.”

Plaintiff then testified that he called defendant only once after the restraining order was entered, when his uncle died and he needed his aunt’s phone number. He also denied following either plaintiff’s or Huizinga’s vehicle to Hammond. Instead, he was driving on the adjacent truck route with a friend, Peggy Mulvihill, near Huizinga’s property when he noticed Huizinga’s car. He then pulled into the lot, walked over to Huizinga, and said that Huizinga’s mechanics were stealing his tools. Defendant then ran from her car, which was parked 75 to 100 feet away, and said that he was violating the restraining order. Finally, he stated that he had not purchased the house across from defendant; instead, his son lived there and he visited there approximately one day each week.

Peggy Mulvihill testified that on October 23, 1990, she was sitting in plaintiff’s car in Hammond when he got out and began yelling at Huizinga about his tools. Defendant then began yelling and screaming and approached plaintiff. Although plaintiff may have struck Huizinga’s car, he did not strike either Huizinga or defendant. Seconds later, plaintiff returned to the car and took her home.

In rebuttal, defendant testified that plaintiff’s car was approximately 15 feet away from her when he pulled into Huizinga’s lot in Hammond, and that no one else was sitting in his car at that time.

At the conclusion of the evidence, the circuit court found that the preponderance of the evidence demonstrated that plaintiff had committed civil contempt when he shoved defendant in Hammond on October 23, 1990, and when he made threatening phone calls to her on October 29, 1990. The court fined plaintiff $1,000 for each incident and admonished him that any further violations would result in incarceration. This appeal followed.

Initially, we address defendant’s contention that plaintiff’s brief should be stricken and the appeal dismissed. Defendant maintains that plaintiff has failed to comply with the dictates of Supreme Court Rule 341 (134 Ill. 2d R. 341) by omitting the requisite jurisdictional statement and appendices. Moreover, she asserts that he has failed to define adequately the issues involved and to present a cogent argument because he has cited authority only in the “Points and Authorities” section of his brief and simply lists facts which support his contention in his “Argument” section. Although we agree that plaintiff’s brief is deficient, we do not conclude that the deficiencies are so great that his brief need be stricken and the appeal dismissed. See Gallo v. Henke (1982), 107 Ill. App. 3d 21, 25, 436 N.E.2d 1068.

First, the mere failure to provide a jurisdictional statement or appendices is not fatal because neither is a necessary component of this court’s jurisdiction. Rather than a limitation on the court, Rule 341 is simply an admonishment to the parties, and this court may reach the merits of an appeal if the “interestfs] of justice” so require. (Swanson v. Board of Police Commissioners (1990), 197 Ill. App. 3d 592, 597, 535 N.E.2d 35, appeal denied (1990), 133 Ill. 2d 574, 561 N.E.2d 708.) Thus, this court may properly entertain any appeal where jurisdiction is proper. (See Frankel v. Otiswear, Inc. (1991), 216 Ill. App. 3d 204, 211, 576 N.E.2d 955 (holding that jurisdiction over the appeal existed pursuant to Supreme Court Rule 301 even though the appellant failed to include a jurisdictional statement).) Because a finding of contempt is a final and appealable order pursuant to Rule 301 (People v. Verdone (1985), 107 Ill. 2d 25, 30, 479 N.E.2d 925), we find that jurisdiction in this case is proper. Furthermore, although we agree that plaintiff’s argument leaves much to be desired, we believe that the interests of justice require an examination of the merits. See Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 451, 453 N.E.2d 820 (reaching the merits of the case despite the appellant’s failure to present an organized or cohesive argument).

On appeal, plaintiff questions the quantum of proof necessary for the penalty imposed in this case. Under our law, contempt is characterized as either civil or criminal. “The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed.” (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 43, 558 N.E.2d 404, appeal denied (1991), 136 Ill. 2d 541, 567 N.E.2d 328.) If the sanctions are intended to coerce the contemnor to perform a particular act, then the contempt is civil in nature. Because the contemnor is able to “purge himself of contempt” by complying with the mandate of the court, he is said to hold the “keys to his cell.” (In re Marriage of Logston (1984), 103 Ill. 2d 266, 289, 469 N.E.2d 167.) In a civil contempt proceeding, the contemnor is entitled to only “minimal due process,” notice and the opportunity to be heard. In re Marriage of Cummings (1991), 222 Ill. App. 3d 943, 948, 584 N.E.2d 900.

In contrast, sanctions for criminal contempt are imposed for the purpose of punishing past misconduct. (Hicks v. Feiock (1988), 485 U.S. 624, 631-35, 99 L. Ed. 2d 721, 731-33, 108 S. Ct. 1423, 1429-31; In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 469, 490 N.E.2d 95.) If the rationale behind the sanction is similar to that used in punishing other types of criminal behavior — retribution, deterrence, and vindication of societal norms — then the contempt proceedings must conform to the same constitutionally mandated procedural requirements as other criminal proceedings, including recognition of the presumption of innocence, the right to be proved guilty beyond a reasonable doubt, and the privilege against self-incrimination. (In re Marriage of Ruchala (1991), 208 Ill. App. 3d 971, 978, 567 N.E.2d 725; Betts, 200 Ill. App. 3d at 44, 58.) The failure to provide these procedural guarantees will result in the vacatur of the contempt finding on appeal. See Wilde, 141 Ill. App. 3d at 472 (vacating a summary finding of indirect criminal contempt and remanding the cause for a “full and proper hearing”).

Here, a $2,000 fine was imposed upon plaintiff in retribution for his violations of the restraining order. Because these were past actions which could not be undone, plaintiff does not have the ability to purge the contempt. We therefore conclude that plaintiff was found guilty of criminal rather than civil contempt and he was thus entitled to all the procedural safeguards applicable to criminal prosecutions. Since the standard of proof applied by the circuit court was preponderance of the evidence rather than proof beyond a reasonable doubt, the finding of contempt must be reversed and the cause remanded.

For the forgoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

SCARIANO, J., concurs.

PRESIDING JUSTICE McCORMICK,

dissenting:

Respectfully, I dissent from the majority’s conclusion that plaintiff was found guilty of criminal contempt rather than civil contempt. The line of demarcation between civil and criminal contempt is often indistinct. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 452-53, 453 N.E.2d 820.) With a mindset that said civil contempt, the trial court was oblivious to the possibility that some day these proceedings would be deemed criminal contempt. The trial court specifically stated that the contempt is indirect civil contempt and the burden is the preponderance of the evidence. Nevertheless, the majority finds to the contrary and concludes that the contempt is criminal.

To apply the litmus test distinguishing between criminal and civil contempt, the trial court must determine if the intent of the sanction is to punish for past deeds or to coerce future compliance with court orders. Punitive sanctions are criminal and coercive sanctions are civil. However, substance prevails over form. Where sanctions are punitive, but referred to as civil, respondent must be accorded criminal contempt due process. (People v. Rodriguez (1987), 162 Ill. App. 3d 149, 514 N.E.2d 1033.) The court may as a sanction sequester a respondent’s funds for civil contempt. Geittmann v. Geittmann (1984), 126 Ill. App. 3d 470, 467 N.E.2d 297.

The majority finds that the fines were imposed in retribution of plaintiff’s past violation of the restraining order, and not to compel future compliance with the order. The record does not support the finding. We should not ignore the trial court’s pronouncements that addressed future compliance with the trial court’s order:

“THE COURT: For these events, Mr. Luttrell is fined $1,000 apiece. Mr. Luttrell should be mindful of the fact that this is the only time he will be fined for any conduct under this order. The next time this matter comes, if it prevails, if further conduct is presented where this court is convinced that the orders are being violated, Mr. Luttrell will be assured that he will spend some time in the county jail.”

The propriety of fines or incarceration as sanctions for an act of civil contempt is well settled. Fines and incarceration have uniformly been recognized as proper sanctions for violations of a prohibitory injunction of a civil nature. Rothchild & Co. v. Steger & Sons Piano Manufacturing Co. (1912), 256 Ill. 196, 99 N.E. 920.

Here, the trial court ordered plaintiff to pay $2,000 to the clerk of the circuit court of Cook County. The clerk was not instructed to disburse the funds or dispose of them in an ultimate way. Until this is done, plaintiff has not been permanently deprived of these funds. The funds are merely sequestered and subject to further order of the trial court. If the trial court directs the clerk to disburse the funds to an agency of government or another entity, for their own use, the trial court loses jurisdiction and the plaintiff is permanently deprived of said funds.

In civil contempt respondent may reverse the sanction by purging the contempt. In this case the trial court retains jurisdiction over the funds and has not ordered the ultimate disposition. Plaintiff’s subsequent compliance or noncompliance with the trial court’s order will determine an ultimate disposition of the funds by the trial court. As with other sanctions for civil contempt, the sanction here allows plaintiff to purge the contempt by compliance with the order.

The evidence is sufficient to prove by a preponderance that respondent willfully violated the restraining order. It is inherent in the trial court’s order of contempt and the sanctions imposed that these funds are retained for the purpose of assuring future compliance with the trial court’s order.

Therefore, I would affirm the judgment of the circuit court of Cook County and remand this case for further proceedings.


author: PRESIDING JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE JAMESON et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—91—0454, 1—91—2876, 1—92—0240 cons.
    Opinion filed August 17, 1993.
    Rehearing denied August 5, 1993.
    Rita A. Fry, Public Defender, of Chicago (Ira Churgin, Cheryl K. Lipton, and Julia M. Campbell, Assistant Public Defenders, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, Eileen M. O’Neill, and Michelle R. Martone, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court;

This is a consolidated appeal arising from the separate trial and convictions of defendants Willie Jameson, Willie Davis and Larry Smith. On the State’s motion we consolidated defendants’ appeals from those convictions because all three defendants contend that their enhanced Class X sentences must be vacated because the State failed to give them statutorily mandated pretrial notice of the State’s decision to seek such enhancement. Defendant Jameson also questions the sufficiency of the sentencing-hearing evidence permitting such enhancement, but we find this contention to be unavailing in light of People v. Williams (1992), 149 Ill. 2d 467, 599 N.E.2d 913.

In docket No. 1 — 91—2876, following a bench trial in the circuit court of Cook County, defendant Willie Davis was found guilty of the Class 1 felony of possession with intent to deliver 2.4 grams of cocaine (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(cX2)), but he was then sentenced as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)) to a term of seven years’ imprisonment.

In docket No. 1 — 92—0240, defendant Larry Smith was convicted of the Class 2 felony of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19— 1), in a bench trial, but then sentenced as a Class X offender to a term of 13 years’ imprisonment.

In docket No. 1 — 91—0454, defendant Willie Jameson was also convicted of burglary in a bench trial and sentenced as a Class X offender to a term of 12 years’ imprisonment.

All three defendants were sentenced as Class X offenders pursuant to section 5 — 5—3(c)(8) of the Unified Code of Corrections (Code), which provides in pertinent part:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).

All three defendants contend that their sentences must be vacated because the State failed to properly notify them of its decision to seek an enhanced sentence under section 111 — 3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3). The State replies that such notice was not required under the statute; and in any event, the State urges that defendants’ sentences should be affirmed because they did not raise this objection in the trial court where their eligibility for Class X sentencing was established and where they sustained no prejudice as a result.

Section 111 — 3 of the Code provides in pertinent part:

“When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, ‘enhanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense ***; it does not include an increase in the sentence applied within the same level of classification of offense.” (111. Rev. Stat. 1989, ch. 38, par. Ill — 3(c).)

Defendants argue that this section is applicable to their situation and that the failure of the State to plead its intent to seek the enhanced penalty in the charging instrument or in some way provide them with notice of its intent prior to trial deprived them of their right to due process of law requiring that their sentences be vacated. We disagree.

The plain language of this statute shows that its provisions apply to those situations where the State intends to enhance the penalty by raising the classification of the offense due to a prior conviction. By definition, the term “enhanced sentence” specifically excludes those situations, as the one at bar, where the sentence is increased for a crime within the same level of classification of offense. Where the sentence, but not the classification of offense, was enhanced by defendants’ prior convictions, there was no statutory violation in the sentencing procedure employed here where defendants were sentenced as Class X offenders in compliance with People v. Williams. People v. Contreras (1993), 241 Ill. App. 3d 1023, 609 N.E.2d 949.

The defendants’ sentences were enhanced because of their prior convictions, but the offenses of which they were convicted were not raised to a higher classification. (Cf., e.g., retail theft (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 10(2)); criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b)).) Thus, by definition, the provisions of section 111 — 3 requiring that the intention to seek such a higher penalty be included in the charge are inapplicable. But see dicta in People v. Osborne (1992), 233 Ill. App. 3d 420, 423, 599 N.E.2d 126.

In addition, we observe that the Class X sentencing statute at issue contains no notice requirement, and in this respect contrasts with the habitual criminal statute (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1), where defendant must first be “adjudged” a habitual criminal (see Williams, 149 Ill. 2d at 477-78), and specific procedures followed in order to secure a sentence of life imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 2). The procedures incorporated therein conform to the ruling of the United States Supreme Court in Oyler v. Boles (1962), 368 U.S. 448, 451-52, 7 L. Ed. 2d 446, 450, 82 S. Ct. 501, 503-04, that due process does not require advance notice that the trial on the substantive offense would be followed by a habitual criminal proceeding, although a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge.

In this case where the sentence but not the classification of the offense was enhanced, section 111 — 3 was clearly inapplicable. Rather, the situation was governed by section 5 — 5—3(c)(8), which contains no specific notice provision, and the record shows that the procedure employed in the circuit court did not run afoul of the due process ruling of the United States Supreme Court cited above. At the defendants’ sentencing hearings their attorneys did not ask for additional preparation time or call the court’s attention to any error or omission in the presentence investigation reports or arguments of the State which established defendants’ eligibility for sentencing under this statute. Applying the reasoning set forth in Williams to this situation, we may properly conclude that defendants had the burden of raising any sentencing deficiencies and they thus waived this issue for purposes of review. (Williams, 149 Ill. 2d at 493.) Further, their argument is without foundation or merit.

Defendant Jameson has also contended that the State failed to establish, at his sentencing hearing, the dates of commission of the prior offenses which enabled his Class X sentencing.

At defendant Jameson’s sentencing hearing the State in aggravation relied upon the presentence investigation report and the criminal history sheet. The State’s evidence established, inter alia, that in December 1982, defendant was arrested for robbery and in March 1983, he pled guilty to robbery and was sentenced to four years’ probation and thirty days in the Illinois Department of Corrections. In August 1985, defendant was arrested and in December 1986 pled guilty to burglary, robbery and theft and was sentenced to three years in the Illinois Department of Corrections. Defendant committed the offense at issue in this cause on August 20, 1989. Subsequent to the State’s presentation of defendant’s criminal history, defense counsel stated he had reviewed the presentence investigation report and had no corrections or additions to make.

Defendant Jameson now contends that the State failed to prove when these prior felonies were committed so as to meet the statutory requirement that the second conviction be based on an offense committed after defendant’s conviction on the first offense. But defendant never raised this issue in the trial court, nor did he object to the State’s use of the arrest dates for these convictions, contained in the presentence investigation report, from which to draw the inference as to the proper sequence of these prior convictions. As the supreme court held in Williams:

“Any claimed deficiency or inaccuracy within a presentence report must first be brought to the attention of the sentencing court, and a failure to do so results in waiver of the issue on review.” (People v. Williams, 149 Ill. 2d at 493.)

Like the court in Williams, we find that defendant waived this issue by failing to raise it in the trial court. We also note that the court in Williams approved of the use of presentence reports to inform the court of the defendant’s criminal history. Williams, 149 Ill. 2d at 493.

Accordingly, we affirm defendants’ convictions and sentences. As part of this judgment we also grant the State’s request that defendants be assessed $50 as costs for the State’s defense of this appeal.

Affirmed.

SCARIANO and DiVITO, JJ., concur.


author: PRESIDING JUSTICE TULLY

text:
    HEALTHCHICAGO, INC., Plaintiff-Appellant, v. TOUCHE, ROSS AND COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—0331
    Opinion filed August 18, 1993.

      Beigel & Sandler, of Chicago (Herbert Beigel and Philip Fertik, of counsel), for appellant.
    Bell, Boyd & Lloyd, of Chicago (Francis J. Higgins and John J. Verscaj, of counsel), for appellee.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Plaintiff, HealthChicago, Inc., a health-maintenance organization, filed this action for damages on September 25, 1989, asserting against its former auditor, defendant, Touche, Ross & Co., claims in tort for professional malpractice and breach of contract. In its original complaint, plaintiff alleged that defendant failed to inform it of the need for changes in its pricing structure and levels of claims reserves and that such failure cost plaintiff approximately $25 million. On December 15, 1989, defendant moved to dismiss both the contract and tort counts of the complaint. By order dated April 27, 1990, the trial court dismissed the tort count of the original complaint. Later, the contract count was dismissed, with leave to amend. On November 26, 1990, plaintiff filed an amended complaint which restated the tort claim. Defendant then moved pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615 (now codified as 735 ILCS 5/2 — 615 (West 1992))) to dismiss the amended complaint. On January 8, 1991, the trial court dismissed the contract count with leave to amend and dismissed the tort count with prejudice. It is from the dismissal of the amended complaint’s tort count that plaintiff appeals to this court pursuant to Supreme Court Rule 301.134 Ill. 2d R. 301.

Subsequent to the filing of the notice of appeal on January 18, 1991, plaintiff did not seek a stay of or voluntary dismiss the contract count still pending in the circuit court. On March 24, 1993, the trial court granted defendant summary judgment on the contract count. No appeal was ever taken from the judgment order entered on that date. Thus, defendant now argues that the order disposed of all matters remaining in the circuit court and is now final and res judicata. Defendant further asserts that as plaintiff failed to appeal from the order of March 24, 1993, the appeal is now moot as issues involved in this appeal no longer exist. We agree and dismiss plaintiff’s appeal.

It is a well-recognized principle of law that a reviewing court will decide only actual controversies in which the interests or rights of the parties to the litigation can be granted effectual relief. (Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 601 N.E.2d 704.) An appeal becomes moot when a court can no longer effect the relief originally sought by an appellant or when the substantial question involved in the trial court no longer exists. (Malone v. Chicago Transit Authority (1966), 76 Ill. App. 2d 451, 222 N.E.2d 93.) When a case is rendered moot, a court’s decision on the merits cannot afford either party relief and any decision thus reached is merely an advisory opinion. (In re Marriage of Landfield (1987), 118 Ill. 2d 229, 514 N.E.2d 1005.) “Illinois courts do not issue advisory opinions and should not indulge in the practice of rendering opinions simply for the sake of creating precedents to govern future cases.” People v. Halasz (1993), 244 Ill. App. 3d 284, 285-86, 614 N.E.2d 311.

In the case sub judice, no relief can be granted by this court as the substantial question between the parties was litigated to a final and now unappealable judgment in the circuit court. While plaintiff alleged two separate legal theories in its amended complaint, the case consists of a single core of operative facts flowing from an alleged breach of the written agreement between the parties. Thus, the core of operative facts in this case yields but one cause of action, irrespective of the number of theories pled. When defendant was found as a matter of law by the trial court to have fully complied with all of its contractual obligations to plaintiff it became legally and logically impossible for defendant to be held liable in tort for a misrepresentation regarding its competence to perform on the contract given the judgment that it fulfilled the same. Consequently, as the same facts and evidence are essential to the maintenance of both claims, there is then identity between them and the doctrine of res judicata necessarily takes effect. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278; see also Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 473 N.E.2d 78.) Therefore, we find this case to be moot as no decision we might issue would afford plaintiff any relief in light of the final judgment of the circuit court which rendered this action res judicata.

For all the above-stated reasons, we dismiss plaintiff’s appeal.

Appeal dismissed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE HOFFMAN

text:
    ARLEIGH R. STEIN, Indiv. and as Successor Co-Trustee, et al., Plaintiffs-Appellees, v. RANDILYN L. SCOTT, Defendant-Appellant (Lindeigh C. Stein et al., Defendants-Appellees).
    First District (4th Division)
    No. 1—92—0992
    Opinion filed August 19, 1993.

      Malcolm W. Burnett, Jr., of Northbrook, for appellant.
    Cowan & Minetz, Chartered, of Chicago (Sarah S. Hersen, of counsel), for appellees.
   JUSTICE HOFFMAN

delivered the opinion of the court:

Plaintiffs, Arleigh Stein and NBD Trust Company of Illinois, as co-trustees, brought a declaratory judgment action to construe certain provisions of a trust of which defendant, Randilyn Scott, was beneficiary, and Stein’s children, defendants Lindeigh, Gillian, and Avivah Stein, were residuary beneficiaries. Following cross-motions for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (HI. Rev. Stat. 1991, ch. 110, par. 2 — 1005), the trial court entered summary judgment in favor of plaintiffs. Defendant Scott now appeals from this judgment, contending the trial court erred in granting summary judgment for plaintiffs and in denying a request that her attorney fees from the declaratory judgment action be reimbursed from trust funds.

We affirm.

On December 30, 1988, Iola J. Ralph, the mother of both Stein and Scott, established the Iola J. Ralph Trust (trust) under the terms of the Iola J. Ralph Declaration of Trust. The declaration provided that upon Ralph’s death, plaintiffs were to succeed her as co-trustees of her trust. Article IV of the declaration, which governed the distribution of trust funds to Ralph’s children, provided in relevant part that upon Ralph’s death, the trustees should divide the trust estate into equal shares creating one respective share for each of Ralph’s then-living children. The share created for Stein was to be distributed outright to her. The share designated for Scott, who had become physically disabled in 1984 and was confined to a wheelchair, was to be held and disposed of as follows:

“Randilyn’s Share. During the life of my daughter, Randilyn, the trustee may in the trustee’s discretion pay to, or use for the benefit of, Randilyn so much or all of the income and principal of her share as the trustee from time to time deems necessary or advisable for Randilyn’s extra and supplemental care, maintenance, support and education in addition to and over and above the benefits Randilyn otherwise receives or may become entitled to as a result of Randilyn’s handicap or disability from any local, state, or federal government or from any private agencies, any of which provides services or benefits to handicapped or disabled persons. It is my express purpose that any distributions to or for *** [Scott’s benefit] *** from her share be used only to supplement other such benefits received by or available to her. Any excess income shall be added to principal.”

The above section further stated that upon Scott’s death, the balance of her share should be distributed to her then-living descendants, and if there were none, to Ralph’s descendants. Ralph died January 31, 1989, leaving Stein and Scott as her sole surviving heirs. Scott has no living descendants and is incapable of bearing children. Stein has three children, Lindeigh, Gillian, and Avivah, who were made defendants in this action.

In late 1989, Scott submitted to plaintiffs a comprehensive request seeking payment from her share of the trust for amounts she had allegedly expended for her “care, maintenance and support” since Ralph’s death. Plaintiffs denied Scott’s request on the basis that she was not entitled to such funds under the terms of the trust.

Plaintiffs subsequently filed an action for declaratory relief seeking construction of the trust provisions governing the distribution of Scott’s share. Their amended complaint alleged that they were required by the trust, in determining the amount to distribute to Scott, to take into consideration her income and financial resources apart from handicap or disability benefits (hereinafter, other income), and that they may require the expenditure of any or all of these amounts prior to making any payments to her. The trust prohibited any distributions to the extent that they would reduce Scott’s receipt of or disqualify her from entitlement to any handicap or disability benefits. Plaintiffs alleged that Scott was divorced and without children and had sufficient income and financial resources apart from her share of the trust to provide for her care and support. In her response to the amended complaint, Scott, in relevant part, denied that Ralph intended that plaintiffs give any consideration to her other income or that they could require exhaustion of this income prior to giving her a distribution from her share. Scott admitted, however, that plaintiffs were precluded from distributing any funds to her to the extent it would reduce her receipt of disability benefits or disqualify her from entitlement to any such benefits.

The parties then filed cross-motions for summary judgment. In Scott’s motion, she argued that the trust language was clear and unambiguous in that it precluded plaintiffs from considering or requiring exhaustion of any of her other assets or income prior to making payment to her from her share of the trust. Plaintiffs’ cross-motion argued that construction of the trust was necessary to ascertain the meaning of its silence as to their discretion to consider and require exhaustion of such other income and financial resources.

Both parties thoroughly briefed their positions, and following a hearing, the trial court entered an order denying Scott’s motion and granting summary judgment for plaintiffs. The court found that the trust terms governing Scott’s share were unambiguous, and that they constituted a broad grant of discretion to plaintiffs allowing them to take into consideration other income and financial resources when determining the amount, if any, to be paid to Scott from the trust.

Scott’s attorney subsequently filed a petition requesting that his fees for the declaratory judgment action be reimbursed from Scott’s share of the trust. The court denied this petition and entered judgment in favor of plaintiffs on all issues raised by the pleadings. Scott then timely filed the instant appeal.

Scott initially contests the trial court’s finding that the trust authorized plaintiffs, in their discretion, to consider and require exhaustion of her other income prior to distributing funds to her. Because this case involves a disposition based upon summary judgment, we employ a de novo standard of review. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204.) Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Outboard Marine, 154 Ill. 2d at 102.

The central purpose of trust construction is to ascertain the settlor’s intent from the trust as a whole and to effectuate that intent if not contrary to public policy. (Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 172, 582 N.E.2d 120.) In construing trusts, courts must apply the same rules of construction as apply to wills and other contracts. Harris Trust, 145 Ill. 2d at 172; Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 450, 427 N.E.2d 1217.

The settlor’s intent is to be determined solely by reference to the plain language of the trust itself, and extrinsic evidence may be admitted to aid interpretation only if the document is ambiguous and the settlor’s intent cannot be ascertained. (Larison v. Record (1987), 117 Ill. 2d 444, 448, 512 N.E.2d 1251; Tishman Midwest Management Corp. v. Wayne Jarvis, Ltd. (1986), 146 Ill. App. 3d 684, 689, 500 N.E.2d 431.) Whether a contract is ambiguous is a question of law to be determined by the court, and ambiguity can be found only if the language is reasonably or fairly susceptible to more than one interpretation. (Tishman, 146 Ill. App. 3d at 689.) A contract is not ambiguous merely because the parties disagree on its meaning. In re Estate of Krotz (1988), 168 Ill. App. 3d 545, 549, 522 N.E.2d 790; Tishman, 146 Ill. App. 3d at 689.

In the appeal at bar, neither party disputes that the trust terms were unambiguous. However, Scott asserts that the fact that the trust contained no express direction that plaintiffs consider her other income, or that they could require exhaustion of any portion of it, means that plaintiffs are absolutely precluded from doing so.

This argument, however, disregards the plain implication of the trust language. The first sentence of the provision for Scott’s share states that “the trustee may in the trustee’s discretion pay to, or use for the benefit of, [Scott] so much or all of the income and principal of her share as the trustee from time to time deems necessary or advisable” for her supplemental support and care. (Emphasis added.) This provision confers upon the trustees unfettered discretion to determine if and when Scott should receive trust funds, and in what amount. It imposes no restriction as to how this determination should be made, except that any distribution must be “over and above the benefits [Scott] otherwise receives or may become entitled to” because of her handicap. In light of this language, it is indisputable that Ralph intended that the determination of what is necessary or advisable for Scott’s financial support, above and beyond available handicap benefits, be left solely to plaintiffs’ judgment; and this broad grant of responsibility necessarily includes the prerogative to consider all financial resources at Scott’s disposal.

Scott argues that if Ralph intended that Scott’s income be considered or exhausted regardless of source, she would not have singled out disability benefits as those to be supplemented by trust funds. Again, this argument ignores the trustees’ responsibility to evaluate Scott’s needs aside from what she receives or may be entitled to in disability benefits. In construing trusts, courts should give effect to each word and phrase and should decline to adopt a construction which would render any portion of the language meaningless or nonsensical. (Harris Trust, 145 Ill. 2d at 172-73.) To interpret this language as precluding any consideration of other income would be to compromise the role of the trustees implicit in the trust and render superfluous the broad grant of discretion given to them. Additionally, both sides agree that Ralph did not intend for Scott to receive trust funds to the extent those funds may prevent her from receiving disability benefits to which she may otherwise be entitled. Indeed, as plaintiffs observe, were trust funds to be disbursed to Scott without consideration of her other income and assets, her eligibility for such benefits could be impaired, frustrating Ralph’s specific intent. Thus, the trial court properly found that plaintiffs may take into account Scott’s other income when determining whether to make payments to her and may require exhaustion of all or any part thereof. We further note that there is no contention in this case that, in denying the requested distribution, plaintiffs acted in bad faith or fraudulently or that they abused their discretion as trustees.

Scott refers us to two cases which allegedly support a “general rule” that, in the absence of express trust language that the beneficiary’s own assets must be exhausted or considered, the trustee is barred from doing so before making payments. Both cases relied upon by Scott are inapposite to the case at bar.

In Hart v. Connors (1967), 85 Ill. App. 2d 50, 228 N.E.2d 273, the court found no evidence, express or implied, that the beneficiary was to exhaust her own resources before looking to the trust. Unlike here, the trustee was directed, not merely given discretion, to make distributions to the beneficiary as necessary for her support or maintenance. Furthermore, there was a finding by the court that the testator was primarily concerned with the comfort of the beneficiary and intended that she have unencumbered use of the trust for that purpose. Hart, 85 Ill. App. 2d at 54.

Similarly, in Nielsen v. Duyvejonck (1968), 94 Ill. App. 2d 224, 236 N.E.2d 743, the will contained no express direction that the life tenant, who was the trustee as well as beneficiary of the trust, exhaust his own assets before invading the corpus of his life estate. Thus, the court held that he could look to the corpus of the estate for his maintenance and support, notwithstanding that he may have income and assets of his own. However, the relevant provisions of the will gave him “full power and authority to sell or dispose of any part [of the estate], whenever in his sound discretion he shall deem it necessary for his comfort and support.” (Nielsen, 94 Ill. App. 2d at 226.) The beneficiary, rather than a third party, was vested with broad discretion to use trust funds for Ms own comfort and support; tMs was obviously not the case here.

Scott next argues that the court erred in denying her attorney’s request that Ms fees for this action be borne by the trust.

Although the general rule is that attorney fees are not awarded in the absence of a statute or agreement to the contrary (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52, 245 N.E.2d 468), a well-recognized exception exists permitting recovery of fees from an estate where the testator’s intentions were so ambiguous that judicial construction of his will was required to resolve adverse claims to Ms property, or where there is an “honest difference of opinion” as to the proper construction of the document. (Merchants National Bank v. Old Second National Bank (1987), 164 Ill. App. 3d 11, 16, 517 N.E.2d 652; see Northern Trust Co. v. Winona Lake School of Theology (1978), 61 Ill. App. 3d 966, 975, 377 N.E.2d 1182.) Prior cases have held that fees should not be awarded unless construction is, in fact, necessary; if construction proves unnecessary, those seeking unsuccessfully to enforce their own interests are not entitled to fees from the estate. Merchants National Bank, 164 Ill. App. 3d at 16; Winona, 61 Ill. App. 3d at 975; see also Northern Trust Co. v. Heuer (1990), 202 Ill. App. 3d 1066, 560 N.E.2d 961.

Although the parties in this case disagreed as to the meamng of the trust language, we do not believe Ralph’s intent was so unclear as to justify an award of fees. (See Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 1140, 433 N.E.2d 1098.) Additionally, because there was no finding of ambiguity, an award of fees would be contrary to the above cases. Accordingly, the trial court did not abuse its discretion in declimng fees. Continental Illinois, 104 Ill. App. 3d 1131, 433 N.E.2d 1098.

Scott’s final contention is that the court erred by entering judgment on all issues raised by the pleadings, because unresolved issues of fact remained in the case. Specifically, in her answer to the amended complaint for declaratory relief, Scott maintained that Stein, as co-trustee, had influenced the decision to deny Scott’s request because Stein was a contingent beneficiary of Scott’s share. Thus, she affirmatively requested that Stein be removed as trustee. She now claims that this issue remains unresolved.

It is well recognized that a party who has induced the trial court to make an error or acquiesced in its making cannot assign that same matter as error on appeal. Martin v. McIntosh (1976), 37 Ill. App. 3d 526, 531, 346 N.E.2d 450; Posner v. Wechter (1934), 276 Ill. App. 138.

Scott did not renew her affirmative claim in her motion for partial summary judgment; she only argued, in her response to plaintiffs’ summary judgment motion, that Stein’s affidavit should be considered in light of her position as contingent beneficiary. More importantly, during the hearing on attorney fees, plaintiffs’ counsel requested that the court dispose of Scott’s affirmative claim. Scott’s counsel, however, responded that he believed those issues were “mooted” based upon the court’s ruling on the summary judgment motions. Accordingly, given her posture at trial, Scott cannot now be heard to argue that the court erred in entering summary judgment on the pleadings.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.