author: JUSTICE McCULLOUGH

text:
    DON FALCON et al., d/b/a The El Leo Partnership, Plaintiffs-Appellees, v. ALLEN E. FAULKNER, d/b/a Faulkner Quarter Horses, Defendant (Ron Thomas, as Agent/Employee of Faulkner Quarter Horses, Defendant-Appellant).
    Fourth District
    No. 4-90-0466
    Opinion filed February 21, 1991.

      John E Adams, of Quincy, for appellant.
    Babette B. Rokusek, of Keefe, Gorman & Brennan, of Quincy, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The Eleventh Judicial District Court for Flathead, Montana, entered a judgment in favor of plaintiffs, Don and Berta Falcon, d/b/a The El Leo Partnership (Falcon), and against defendant Ron Thomas (Thomas) in the amount of $131,010.80. Plaintiffs filed a petition for registration of foreign judgment, which the circuit court of Adams County granted. It is from that order defendant Ron Thomas appeals. Defendant contends (1) he did not have sufficient minimum contacts with the State of Montana for the Montana court to exercise personal jurisdiction over him; and (2) the plaintiffs committed fraud on the Montana court which gave it colorable jurisdiction. We affirm the circuit court.

Plaintiffs raised and bred horses in Columbia Falls, Montana, where they lived throughout these proceedings. Defendant Thomas resided in Quincy, Illinois, at all times relevant to this appeal. Thomas bought and sold horses as well as breeding-rights contracts to specific horses. Defendant Allen E. Faulkner, d/b/a Faulkner Quarter Horses (Faulkner), is located in Edmond, Oklahoma. Faulkner was in the business of breeding horses and was the owner of the stallion named “Impressive.”

Sometime in 1985, Thomas purchased from Faulkner approximately six breeding-rights contracts for “Impressive,” a well-known stallion in the horse-breeding industry. Thomas either paid cash for these contracts ($10,000 each) or traded a mare in lieu of a cash payment. Thomas then either attempted to breed one of his own mares pursuant to one of the contracts or sold the contract to another horse owner for breeding to “Impressive.” It is through the latter alternative that this dispute arises.

The exact sequence of events which form this dispute is contradicted by the parties. Thomas contends he first met Falcon at a horse show in Denver, Colorado, in January 1986. It is here, according to Thomas, he first advised Falcon of the fact that he had for sale a breeding-rights contract for “Impressive.” Thomas advised Falcon he bought the contract for $10,000 but would sell it to Falcon for $7,500. Falcon told Thomas he was interested in breeding his mare “First El Leo” to “Impressive” but had to speak with his partners before making a firm commitment. Thomas alleges Falcon told him to telephone him in Montana at a later date to further discuss this sale. Thomas did later call Falcon in Montana at which time Falcon told Thomas he had not had a chance to speak with his partners. Falcon told Thomas he would return the call to Thomas in Quincy after speaking to his partners. During this phone call, Thomas told Falcon the sale price was $7,500. Thomas alleges Falcon called him back in Quincy and offered $2,500. They negotiated the price and finally agreed upon a price of $5,000. Thomas sent Falcon a copy of his breeding contract and in return Falcon sent a check for $2,500 and a letter. The letter stated the check was for partial payment on the contract and “if [Thomas] don’t mind” a check for the other $2,500 would follow when Falcon’s mare was in foal.

Falcon contends the first time he was aware this breeding-rights contract existed was when Thomas made an unsolicited phone call to him in Montana advising him of the contract. Falcon contends Thomas quoted the price of the contract at $7,500 in this first conversation. According to Falcon, Thomas called at least six times in a two-week period after the initial phone call to discuss this offer. Finally they agreed upon a price of $5,000, with Falcon paying $2,500 down and the balance when the mare was in foal. Falcon contends it was in a phone call from Thomas to Falcon in Montana that this final price and terms were agreed upon. Falcon wanted to see the contract before sending any money, so Thomas mailed the contract to Falcon. Falcon read the contract and noticed a provision that required the consent of Faulkner before the contract could be transferred. Falcon called Faulkner on March 26, 1989, and spoke to Faulkner, who consented to the transfer from Thomas to Falcon. Falcon noted this on the contract and then filled in the name, registration number and age of “First El Leo” as well as the name and address of the El Leo Partnership as the owner of the contract.

Subsequently, Falcon delivered the mare to Faulkner for breeding with ‘‘Impressive.’’1 After approximately 2xk months, the mare was delivered back to Falcon on the belief that she was pregnant. Unfortunately, she was not. One year later, Falcon again delivered the mare to Faulkner for breeding with “Impressive.” However, Faulkner refused to breed the horses, stating Thomas had told him not to.

Falcon contends Thomas told Faulkner not to breed the horses until Thomas received an additional $5,000; $2,500 being the balance due under the original contract and another $2,500 which represented the cost of boarding the mare a second time. Thomas alleges Falcon gave up the right to the second breeding because of a letter Falcon wrote to Thomas in July 1986 after the first breeding. This letter stated Falcon’s mare was veterinarian checked and was not in foal. Thus, Falcon wrote, “If you are agreeable, I’d like my $2,500 back and you can have the breeding to do as you wish.” Although Thomas never returned the money, he contends Falcon gave up the second breeding and, thus, he was justified in refusing to allow the second breeding.

It is on the basis of this refusal of the second breeding that Falcon filed suit in Montana against Thomas and Faulkner. The complaint alleged breach of contract and fraud. Thomas failed to appear or answer the complaint and, thus, a default judgment was entered against him. The Montana trial court found (1) Thomas first informed Falcon of this breeding right contract through an unsolicited telephone call from Thomas to Falcon in Montana; (2) this offer was accepted by Falcon in Montana and this amounted to the transaction of business in Montana, which in turn gave the Montana court personal jurisdiction over Thomas; (3) Thomas instructed Faulkner not to allow the second breeding and this refusal deprived Falcon’s mare from having a foal; and (4) Thomas knowingly made false representations to Falcon and these false representations were material and substantial to the agreement. Thus, according to the Montana court, Thomas’ actions were malicious and in bad faith and, therefore, were outside the scope of Thomas’ employment and/or agency with Faulkner. Finally, the Montana court fixed the amount of judgment at $131,010.80, which included the value of the foal (had it been conceived), breeding costs, punitive damages at $25,000, attorney fees, and court costs.

It is this judgment Falcon sought to register in Adams County, Illinois. Thomas filed a motion to strike the petition for registration of foreign judgment, and both parties submitted briefs in support of their respective positions. The circuit court also heard testimony from Falcon and Thomas at an evidentiary hearing. Thomas alleged the judgment could not be registered because the Montana court lacked personal jurisdiction and further alleged Falcon committed fraud on the Montana court in procuring the judgment. Falcon argued Thomas had sufficient contacts with Montana to enable the court to obtain jurisdiction and no fraud was committed upon the court. It should be noted the record is unclear as to what happened with respect to defendant Faulkner in the Montana proceedings. The Montana judgment made no mention of Faulkner, and he was not a party to the matter in the Illinois courts.

After considering the briefs and hearing testimony, the circuit court granted the petition for registration of foreign judgment. The circuit court found Thomas was not the agent of Faulkner and, therefore, did not commit any acts that were in bad faith or outside the scope of his agency. The circuit court found Thomas first made the offer to assign the breeding contract to Falcon through a telephone call to Falcon in Montana and that Falcon in return made phone calls to Thomas in Illinois. The circuit court further found it was impossible to determine the exact point at which the contract was formed. In addition, the circuit court found Thomas sent Falcon a contract with some language missing and Falcon subsequently filled in the missing language after speaking with Faulkner and obtaining consent to transfer the contract. The circuit court found the contract between Faulkner and Thomas was assigned to Falcon in Montana when Falcon filled in the missing language. Finally, the circuit court found Thomas instructed Faulkner not to allow the second breeding until Falcon paid the balance due Thomas for the assignment of the breeding contract.

Based on these findings, the circuit court concluded the Montana court had jurisdiction over Thomas. Contacts that justified the Montana jurisdiction, as determined by the circuit court, were as follows:

(1) Falcon resided in Montana (deemed not a significant contact);
(2) Thomas initiated the transaction by a call to Montana (deemed not a particularly significant contact in this case);
(3) Thomas sent the contract papers to Montana expecting that Falcon would fill them out there (deemed a more significant contact); and
(4) the assignment of the Faulkner-Thomas contract to Falcon was technically performed in Montana when Falcon filled in the blanks on the contract.

Thomas’ first argument is that he did not have sufficient “minimum contacts” with the State of Montana to allow the Montana court to acquire personal jurisdiction. When a party seeks to register the judgment of a foreign State, Illinois courts may question the jurisdiction of the rendering State. This inquiry depends upon whether the defendant was subject to jurisdiction under the rendering State’s law as limited by due process requirements. Texas Axles, Inc. v. Baillie (1986), 140 Ill. App. 3d 760, 489 N.E.2d 16.

The Montana long-arm statute provides:

“(1) *** All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
(a) the transaction of any business within this state.” (Mont. Code Ann., tit. 25, ch. 20, Rule 4B(1)(a) (1989).)

The Montana Supreme Court interpreted this provision of the long-arm statute in Prentice Lumber Co. v. Spahn (1970), 156 Mont. 68, 474 P.2d 141. In that case, a resident of Montana sued a Wisconsin resident for money due under a lumber contract. The plaintiff was a Montana corporation engaged in the business of selling lumber wholesale, and the defendant was an individual doing business in retail lumber and construction. The defendant only made one direct order for lumber to the plaintiff. The other lumber orders were made to plaintiff by a third party. The lumber was shipped directly to defendant in Wisconsin on the order of the third party. The defendant paid the plaintiff directly by check until the third party advised otherwise. In total, there were 16 transactions between the plaintiff and defendant. They had never met, and the defendant had never been in Montana.

The trial court there had dismissed the complaint, finding the Montana court lacked jurisdiction over the Wisconsin defendant. The supreme court reversed, holding there was jurisdiction over the nonresident defendant. The court stated there were sufficient “minimum contacts” with the State of Montana to satisfy the long-arm statute and due process requirements. The court stated:

“[T]he facts of the instant case square with the federal test and recognizing a prevailing trend toward expanding the permissible scope of state jurisdiction over the person or nonresident defendants *** Rule 4B(lXa) [of the Montana Rules of Civil Procedure], encompasses the facts of this case and confers Montana’s jurisdiction over [defendant].” Prentice, 156 Mont. at 76, 474 P.2d at 145.

The trial court here found Thomas initiated the transaction by a telephone call to Montana and sent the papers to Montana expecting that Falcon would complete them in Montana. The court further found the assignment was technically performed in Montana when Falcon filled in the missing language. Given the interpretation of the long-arm statute by the Montana Supreme Court, we believe that Thomas “transacted business” in the State of Montana sufficient to comply with the long-arm statute. The activities of Thomas within the State of Montana are at least as compelling as those of defendant in Prentice. The first part of this inquiry as to whether there was jurisdiction under Montana law is satisfied.

However, the jurisdictional inquiry does not end there. The assertion of personal jurisdiction over a nonresident defendant must also satisfy due process requirements.

The seminal case in jurisdictional issues is International Shoe Co. v. State of Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154. The Supreme Court held due process is satisfied if a nonresident defendant has “minimum contacts” with a foreign State such that the maintenance of the suit does not offend the traditional notions of fair play and substantial justice. The court expanded this holding to its farthest reaches in McGee v. International Life Insurance Co. (1957), 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199. There, the Court upheld jurisdiction over a nonresident defendant when the only contact between the defendant and the forum was the mailing of a re-insurance certificate by the defendant to a decedent in California. The Court held that for due process purposes, it was sufficient that the insurance contract was the basis of the suit and it had substantial contact with the forum.

However, one year later, in Hanson v. Denckla (1958), 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228, the Court curtailed the sweeping effect of McGee. The Court stated that there must be some act by which the defendant purposefully avails himself of the privilege of conducting business in the forum and, thus, invokes the benefits and protections of the laws of the forum in order to satisfy due process.

The constitutional limits of International Shoe and its progeny can be satisfied in one of two ways. First, if the defendant’s contacts with the forum are “substantial” or “continuous and systematic,” general jurisdiction may be proper even if the cause of action is unrelated to defendant’s contacts with the forum. If the defendant’s contacts are not continuous and systematic, jurisdiction may still be proper as limited jurisdiction if there is a strong relationship between the cause of action and the defendant’s contacts with the forum. Decker Coal Co. v. Commonwealth Edison Co. (9th Cir. 1986), 805 F.2d 834.

In Simmons v. Montana (1983), 206 Mont. 264, 670 P.2d 1372, the Montana Supreme Court adopted a three-part test developed by the Ninth Circuit Court of Appeals which comports with International Shoe and the cases that follow it for due process analysis. The test is used when jurisdiction depends on the relationship between the defendant’s contacts with the forum and the cause of action. The test is as follows:

‘(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws. (2) The claim must be one which arises out of or results from the defendant’s forum-related activities. (3) Exercise of jurisdiction must be reasonable.’ ” (Simmons, 206 Mont. at 276, 670 P.2d at 1378, quoting Data Disc, Inc. v. Systems Technology Associates, Inc. (9th Cir. 1977), 557 F.2d 1280, 1287.)

Since Thomas’ activities are not “substantial” or “continuous and systematic,” this test must be utilized to determine if due process was satisfied. The first inquiry is whether Thomas purposefully availed himself of the privilege of doing business in Montana. Purposeful availment centers on whether a defendant’s contacts are attributable to his own actions or solely those of the plaintiff. (Decker, 805 F.2d at 840.) It requires some affirmative act by the defendant which allows or promotes the transaction of business with the forum. (Decker, 805 F.2d at 840.) If a defendant directly solicits business in the forum State, the resulting transaction probably constitutes the deliberate transaction of business within the forum, thereby invoking the privilege of conducting business in the forum. (Decker, 805 F.2d at 840.) It has also been stated that contract negotiations in the forum are probably sufficient contacts to invoke the privilege of transacting the business in the forum. Decker, 805 F.2d at 840.

The Montana Supreme Court has stated that a nonresident defendant’s act of entering into a contract with a resident of the forum is not a sufficient contact by itself for jurisdiction. (Simmons, 206 Mont. at 279, 670 P.2d at 1380.) Likewise, interstate communication alone is not a sufficient contact for exercising personal jurisdiction. Simmons, 206 Mont. at 279, 670 P.2d at 1380.

Thomas purposefully availed himself of the privilege of transacting business in Montana. He telephoned Falcon in Montana with an offer to sell the breeding contract. Thomas and Falcon negotiated the terms of the contract through various telephone calls between Montana and Illinois. Thomas sent the contract to Falcon in Montana with the expectation that Falcon would fill in the missing language, which he subsequently did. It was Thomas’ own actions, through the unsolicited telephone call to Falcon in Montana, that caused the assignment of the contract to occur. Falcon did not initiate the transaction. Thomas, by the telephone call, allowed and promoted the transaction of business in Montana. Thomas directly solicited business in the State of Montana and, thus, purposefully availed himself of the privilege of conducting business in the State of Montana.

The second part of the test requires the cause of action to arise out of or relate to the defendant’s forum-related activities. The cause of action here was for breach of contract and fraud. There are two contracts involved in this matter: the first being an assignment from Thomas to Falcon of the breeding-rights contract and the second being the actual breeding contract between Falcon and Faulkner. The breach occurred in the Falcon-Faulkner contract when Faulkner refused the second breeding. However, there could not have been a breach of the Falcon-Faulkner contract if the Falcon-Thomas assignment never occurred and if Thomas had not told Faulkner to refuse the second breeding. Therefore, the cause of action arose out of or is related to Thomas’ contacts with Montana.

Finally, the third prong of the test requires that the exercise of jurisdiction must be reasonable. There are seven factors which are relevant to this inquiry. These factors are:

“(1) The extent of purposeful interjection into the forum state;
(2) The burden on the defendant of defending in the forum;
(3) The extent of conflict with the sovereignty of defendant state;
(4) The forum state’s interest in adjudicating the dispute;
(5) The most efficient judicial resolution of the controversy;
(6) The importance of the forum to plaintiff’s interest in convenient and effective relief;
(7) The existence of an alternative forum.” (Decker, 805 F.2d at 840.)

These factors determine whether, under the totality of the circumstances, a defendant could reasonably anticipate being called to defend in a lawsuit in the forum State. The relevance of each factor is to be considered and balanced accordingly. Decker, 805 F.2d at 840.

Applying these seven factors to the facts of this case, we find as follows. First, Thomas purposefully interjected himself into Montana in two ways: (a) with the unsolicited phone call to Falcon and (b) by mailing the contract to Falcon. It was Thomas’ actions alone that initiated this transaction. Second, the burden on Thomas to defend in Montana was not unreasonable due to the advances made in interstate transportation and communications. Thomas could very easily call an attorney in Montana to defend him in the case or drive himself to Montana to appear and defend. Third, conflicts with State sovereignty interests are minimal due to the Supreme Court’s indication that the personal jurisdiction requirement is a function of the individual liberty interest protected by the due process clause rather than federalism concerns. (Decker, 805 F.2d at 841.) Fourth, Montana clearly has an interest in protecting its citizens from improper conduct of others in the transaction of business. If a Montana resident is a party to a contract, Montana courts clearly have an interest in seeing that its citizens receive all the benefits expected under the contract. The best way to insure this is to allow the Montana court to resolve the contractual disputes. Fifth, efficient judicial resolution can be had in either Montana or Illinois since the only parties to the dispute reside in those States. Sixth, Montana is the most convenient forum for Falcon since he resides there. However, Illinois would be better for effective relief. If Illinois were the forum, there would be no need for Falcon to register the judgment in order to execute it. Seventh, there are alternative forums in Illinois or Oklahoma. Oklahoma could be a possible forum because the actual breach of the underlying contract occurred there, and Illinois could be the forum if a court were to conclude that the assignment contract was formed in Illinois. Considering all of these factors, based on the totality of the circumstances, it was not unreasonable for a Montana court to exercise jurisdiction over Thomas.

Therefore, defendant has sufficient minimum contacts with the State of Montana to allow the Montana court to exercise personal jurisdiction over him. The trial court’s decision that personal jurisdiction existed was not against the manifest weight of the evidence.

The second issue raised by Thomas is that Falcon committed fraud upon the Montana court which allowed it to obtain colorable jurisdiction. Thomas contends Falcon’s characterization of him as “agent/employee of Faulkner” in the caption of this case is fraudulent. Thomas alleges further fraud occurred because the copy of the contract attached to the complaint is not the same contract offered as evidence by Falcon at the evidentiary hearing in Illinois.

Both Illinois and Montana have adopted the Uniform Enforcement of Foreign Judgments Act (Act) (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 601 et seq.; Mont. Code Ann. §§25 — 9—501 through 25— 9 — 508 (1989)). Therefore, we may look to Illinois law to determine if fraud occurred on the Montana court which would prevent the registration of the foreign judgment in Illinois. Section 12 — 602 of the Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 602) provides for the registration of foreign judgments in this State. Section 12 — 608 of the Act (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 608) sets forth the defenses available to prevent registration of the foreign judgment. A judgment debtor may defend against a foreign judgment sought to be registered in Illinois but not on grounds that could have been presented to the foreign court when the judgment was rendered. Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702.

Hlinois courts will not rehear the merits of the case because of the principles of res judicata. Under these principles, the nature and the amount of the judgment, together with all defenses that could have been raised in the original trial court, are foreclosed. (Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 494 N.E.2d 900.) However, a collateral attack may be had on a foreign judgment in two instances. The defense of fraud in the procurement of the judgment (extrinsic fraud) or the defense of lack of jurisdiction in the foreign court may be raised. Dawson, 144 Ill. App. 3d at 537, 494 N.E.2d at 903.

Illinois courts have distinguished between two types of fraud. There is fraud which prevents the forum court from acquiring jurisdiction, or merely gives it colorable jurisdiction (extrinsic fraud); and fraud which occurred after the forum court acquired jurisdiction, such as false testimony or concealment (intrinsic fraud). It is only extrinsic fraud that renders a judgment void. (Dawson, 144 Ill. App. 3d at 540, 494 N.E.2d at 905.) The classic definition of “extrinsic fraud” refers to situations where “the unsuccessful party has been prevented from exhibiting fully his case *** as by keeping him away from court *** or where the defendant never had knowledge of the suit.” United States v. Throckmorton (1878), 98 U.S. 61, 65-66, 25 L. Ed. 93, 95.

In Dawson, the defendant argued that there was fraud in the procurement of a judgment against him. The plaintiffs had filed a suit on a note that was in default on which the defendant’s signature appeared. The defendant argued he had never signed the note, he had never authorized his signature to be signed and, therefore, the note was a forgery. The defendant’s signature was on the note but it had been signed by his attorney. This court held this type of alleged fraud fell into the intrinsic fraud category. This court stated the defendant could have defended on the basis of that fraud in the foreign court but he chose not to do so. Thus, since this was not the type of fraud that prevented the foreign court from acquiring jurisdiction or merely gave it colorable jurisdiction, it was not a defense to the registration of the judgment.

The first fraud alleged by Thomas is the mischaracterization of himself as the agent of Faulkner in the caption of the case. The Montana court found Thomas was the agent of Faulkner and that Thomas made false representations to Falcon which were outside the scope of his agency. It was on the basis of these false representations, outside of the scope of the agency, that the Montana court determined punitive damages were awardable to Falcon. Although the Montana court did find Thomas was the agent of Faulkner, that court did not use this agency status in determining if there was jurisdiction over Thomas. The determination of the agency status only goes to the amount of the judgment rendered against Thomas and not to the existence of jurisdiction. Furthermore, Thomas could have defended this mischaracterization of agency in the Montana trial. If Thomas was not the agent of Faulkner, he could have presented evidence to that effect at the Montana trial. Since this characterization as agent only goes to the amount of the judgment and not to the existence of jurisdiction, it is not extrinsic fraud and, thus, is no defense to the registration of the foreign judgment.

The second fraud alleged by Thomas is that the contract attached to the complaint filed in the Montana court is not the same contract that Falcon presented at the evidentiary hearing in Illinois. Furthermore, Thomas contends neither the contract attached to the complaint nor the contract presented at the evidentiary hearing, both of which are between Falcon and Faulkner, is the contract that Thomas originally sent to Falcon. Thomas testified that the contract he sent to Falcon showed his name and address as the owner of the contract while the contracts attached to the complaint and presented at the evidentiary hearing show Falcon as the owner of the contract. At the hearing, Thomas presented another contract which was meant to be representative of the type of contract that he originally sent to Falcon. The contract that Thomas presented showed Thomas as the owner of the contract but did not contain information filled in by Falcon after receiving Faulkner’s consent to the assignment. Thomas attempted to use this contract as demonstrative evidence of the type of contract that he claimed he originally sent to Falcon. But, he admitted this was not the contract he sent originally to Falcon, and he further admitted that he did not have a copy of the contract he sent to Falcon.

Again, this is not the type of fraud that would prevent the Montana court from acquiring jurisdiction over Thomas. If the contract that was attached to the complaint was not the contract that was entered into between Thomas and Falcon, Thomas could have challenged the validity of the complaint at the Montana trial. Thomas could have defended on the basis that the complaint was invalid because it did not include the contract between himself and Falcon. Furthermore, even if this were an incorrect contract, it has no relevance to the determination of jurisdiction. Jurisdiction is based on the contacts Thomas had with Montana, not whether the correct contract was attached to the complaint. The correctness of the complaint is relevant to the issue of whether there is a cause of action against Thomas.

Thomas’ allegations that the contract attached to the complaint was not the same contract Falcon presented at the evidentiary hearing is similarly irrelevant. The inquiry is whether there was a fraud committed on the Montana court which prevented it from acquiring jurisdiction or gave it colorable jurisdiction. Events that happened after this jurisdiction was acquired, namely, the alleged presentation of a different contract at the evidentiary hearing, did not prevent the Montana court from acquiring jurisdiction in the first instance. Any alleged fraud which transpired herein was within the realm of intrinsic fraud, fraud that occurred after the court acquired jurisdiction.

In conclusion, since the Montana court had jurisdiction over Thomas and there was no fraud in the procurement of the judgment, there is no defense to the registration of the foreign judgment. The decision of the circuit court granting the petition for registration of foreign judgment is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    ALTON COMMUNITY UNIT SCHOOL DISTRICT No. 11, Counties of Madison and Jersey, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4-90-0255
    Opinion filed February 21, 1991.

      C. Dana Eastman, Jr., of Thomas, Mottaz, Eastman & Sherwood, of Alton, and Everett E. Nicholas, Jr., Philip H. Gerner III, and Timothy A. Bridge, all of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gregory J. Malovance and Steven E. Mitchel, both of Winston & Strawn, of Chicago, for respondent Alton Education Association.
   JUSTICE GREEN

delivered the opinion of the court:

Acting pursuant to section 15 of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1715), on February 3, 1988, and May 25, 1988, respondent Alton Education Association, IEA-NEA (Association), filed a charge and an amended charge, respectively, with respondent Illinois Educational Labor Relations Board (IELRB) alleging the commission of unfair labor practices against petitioner Alton Community Unit School District No. 11, Counties of Madison and Jersey, State of Illinois (District). The Association was the duly elected bargaining representative for the educational employees of the District.

On June 14, 1988, after an investigation, the IELRB ordered a complaint to issue. After hearings before a hearing officer, on March 12, 1990, the IELRB issued an opinion and order finding the District guilty of failing to bargain in good faith (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(5)), refusing to sign a collective-bargaining agreement (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(6)) and, derived from that conduct, “[interfering, restraining or coercing employees in the exercise of the rights guaranteed under [the] Act” (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(1)). (Alton Community Unit School District 11, 6 Pub. Employee Rep. (Ill.), par. 1047, No. 88 — CA—0032—S (Illinois Educational Labor Relations Board, Mar. 12, 1990).) Petitioner has taken administrative review to this court. We reverse and remand to the IELRB with directions.

The dispute involved here arises from the operation of section 24A — 4 of the School Code, which states in pertinent part:

“Each school district shall develop, in cooperation with its teachers or, where applicable, the exclusive bargaining representatives of its teachers, an evaluation plan for all teachers in contractual continued service.” Ill. Rev. Stat. 1987, ch. 122, par. 24A — 4.

The evidence shows that negotiations between the Association and the District for a collective-bargaining agreement for the 1986-88 period were difficult, resulting in an 18-day strike in the autumn of 1986. One of the areas of disagreement concerned the contents of the plan required by section 24A — 4 of the School Code. In order to bring the District schools back into operation, lessen the strife, and reach a collective-bargaining agreement for the 1986-88 period, the parties agreed to defer resolution of the evaluation plan issue by entering into an agreement, which is section 3.3 of that 1986-88 contract. Section 3.3 states:

“Formal Evaluation. A joint committee shall be established with equal representation from both parties to develop the evaluation plan in accordance with state guidelines and submitted to the Board of Education for approval. Following state approval of the plan, bargaining shall then resume on the aspects of the plan to be included in the contract. The evaluation plan shall not be implemented by the Board of Education until bargaining is concluded.”

A joint committee was formed, and it agreed on an evaluation plan. The District refused to sign a document containing the plan. The IELRB found the plan was a collective-bargaining agreement and that the District violated section 14(a)(6) of the Act, which makes the failure to sign a collective-bargaining agreement an unfair labor practice. The parties admittedly bargained the question of which portion of the plan was to become part of the “contract,” i.e., the 1986-88 collective-bargaining agreement of which section 3.3 was a part. They were unable to reach agreement. The parties agree that the phrase in section 3.3, “to be included in the contract,” refers to being subject to the grievance and arbitration provisions of the 1986-88 contract. Section 10(c) of the Act requires collective-bargaining agreements negotiated under the Act to contain a “grievance resolution procedure” which “shall provide for binding arbitration of disputes concerning the administration or interpretation of the agreement.” (Ill. Rev. Stat. 1987, ch. 48, par. 1710(c).) The IELRB accordingly held that despite the wording of section 3.3, the Association did not have to bargain with the District as to whether provisions of the evaluation plan became subject to the grievance and arbitration provision of the 1986-88 contract. The IELRB determined that under section 10(c), the plan became subject to the grievance and arbitration provision of the 1986-88 contract unless the Association voluntarily agreed otherwise. Accordingly, the IELRB held the District failed to bargain in good faith with the Association when it bargained to impasse on this question.

The parties do not dispute that if the IELRB properly found the District had committed the unfair labor practice of refusing to sign a collective-bargaining agreement or of failing to bargain in good faith, for each violation the IELRB could also find the District guilty of a violation of section 14(a)(1) of the Act for "[interfering, restraining or coercing employees in” their exercise of rights conferred by the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(1).) Section 14(a)(1) of the Act is a catchall provision, a violation of which may sometimes arise from the commission of another unfair labor practice. See Board of Education v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 490, 524 N.E.2d 711.

In order for the reader to acquire an understanding of the basis of the instant dispute, a recitation of facts is necessary. Section 3.3 of the collective-bargaining agreement for 1986-88 went into operation during September 1986. Shortly after that agreement was executed, Association president Ruth Henderson and District superintendent David Van Winkle met to discuss forming a joint committee, as required by section 3.3 of the parties’ 1986-88 collective-bargaining agreement. Henderson and Van Winkle decided that the Association and the District would each have six representatives, including a co-chairman, on the committee. Van Winkle appointed the District representatives, including Alton High School assistant principal Leonard Hawthorne as cochair. Henderson served as cochair for the Association and appointed the remaining Association representatives.

The evaluation plan committee held its initial meeting on October 15, 1986, at which time the committee cochairs discussed the committee format and procedures. At the subsequent meeting, the evaluation plan committee divided itself into six subgroups, each comprised of a single Association representative and a single District representative. Subgroups met several times during the autumn of 1986 and extracted provisions from other evaluation plans for possible inclusion in the committee’s plan.

The subgroups then formed four-member subgroups, which were responsible for reviewing the provisions collected by the two-member subgroups and developing the language for the committee’s evaluation plan. The four-member subgroups met approximately six times.

In May 1987, the evaluation planning committee held its first substantive meeting as a complete committee. By the end of June 1987, the committee as a whole had met seven times. During these meetings, the parties discussed proposed language and attempted to reach agreement. The committee first resolved aspects of the plan over which there was little or no disagreement. In several areas, the Association opposed a District proposal, such as (1) whether job descriptions would contain language that the employees would perform “other jobs or tasks as assigned” by their immediate supervisors, (2) whether the employees would be required to keep their rooms attractive, and (3) the date by which evaluations must be completed. The disagreements over the plan’s provisions and counterproposals were expressed between the two sets of representatives of the committee, and the parties eventually resolved this disagreement by either adopting the Association’s counterproposal, or by compromise. The agreed-upon provisions were then incorporated into the final evaluation plan.

In June 1987, after having met 18 times, considering subgroup meetings and meetings of the entire evaluation plan committee, the parties completed the evaluation plan. The completed evaluation plan was submitted to the District’s board of education, and, on July 21, 1987, the board of education approved the plan. On July 24, 1987, the District was notified that the Illinois State Board of Education had also approved the plan.

Pursuant to section 3.3 of the 1986-88 agreement, the parties resumed meeting in September 1987 to discuss which aspects of the evaluation plan would be incorporated in the 1986-88 collective-bargaining agreement, and thereby be subject to the grievance arbitration provision of that agreement. The parties initially met on September 17,1987.

The District offered three proposals at the September 17 meeting. It first proposed that only the areas of “performance observation,” “summative evaluation,” “professional growth plan,” and “rebuttal” should be included in the collective-bargaining agreement. After the District presented its first proposal, the parties caucused, and the District returned with a second proposal. The District added the areas of “remediation,” “unsatisfactory evaluation,” and “consulting teacher” to the procedural aspects it had initially proposed, and concluded that these aspects were also procedural. The District’s third proposal was the same as its second proposal. During the September 17 meeting, the District maintained the position that only procedural aspects of the plan would be included in the collective-bargaining agreement, i.e., matters subject to grievance procedures.

The Association’s initial position was that the entire evaluation plan should be incorporated in the collective-bargaining agreement. At the September 17, 1987, negotiating session, the Association’s only counterproposals involved the deletion of proposed contract language on nontenured teachers, the rating system, and a statement of philosophy.

At the next negotiating session on September 23, 1990, the District resubmitted its most recent proposal and reiterated its position that only procedural aspects of the evaluation plan should be subject to the contractual grievance procedure. The Association’s chief spokesperson, Philip Robbins, stated that the Association was resubmitting its initial proposal that the entire evaluation plan must be included in the collective-bargaining agreement. Robbins then stated the parties could “start from ground zero and negotiate an entire [evaluation] plan,” or the Association would file an unfair labor practice charge based upon the District’s alleged refusal to bargain in good faith. Robbins indicated later in the session that the Association would file the unfair labor practice charge.

Between September 23, 1987, and January 27, 1988, an exchange of letters between Van Winkle and Henderson took place. On February 3, 1988, the Association filed an unfair labor charge against the District. The last meeting of the parties occurred on August 11, 1988. The District restated its earlier position that only “procedural” aspects of the plan should be subject to the grievance procedure and offered no further proposals. The Association offered no new proposal. No later bargaining meetings took place.

Although the facts of this case are simple, the issues presented are complex. Folio-wing usual IELRB procedure, the evidence was presented to a hearing officer, who then filed a recommended decision and order which made certain findings of an unfair labor practice against the District. (Alton Community Unit School District 11, 5 Pub. Employee Rep. (Ill.) par. 1054, No. 88 — CA—0032—S (Illinois Educational Labor Relations Board, hearing officer’s recommended decision and order, Mar. 1, 1989).) Exceptions were taken by the District, and the matter was considered by the IELRB, which then entered the opinion and order (Alton Community Unit School District 11, 6 Pub. Employee Rep. (Ill.) par. 1047, No. 88 — CA—0032—S (Illinois Educational Labor Relations Board, Mar. 12, 1990)), from which administrative review has been taken. Its findings and determinations differed somewhat from those of the hearing officer, suggesting that both the hearing officer and the IELRB struggled with the issues involved here.

At the heart of the dispute is the question of whether the teacher evaluation plan developed by the joint committee, as provided for by section 3.3 of the 1986-88 collective-bargaining agreement, was, itself, an agreement reached through collective bargaining. Section 14(a)(6) of the Act makes the failure of an educational employer, such as the District, to sign “a collective bargaining agreement” an unfair labor practice. (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(6).) The hearing officer found the District’s refusal to sign the evaluation plan was not a violation of section 14(a)(6) of the Act because the plan’s relationship to the 1986-88 master agreement, which the District had signed, was such that the evaluation plan became part of that agreement and further signing was unnecessary. However, we agree with the IELRB that a further signing was required if the evaluation plan was collectively bargained.

As we later explain, the theory that the District had failed to bargain in good faith under section 14(aX5) by bargaining to impasse, and the question of what portions of the plan were to become subject to the grievance and arbitration provisions of the 1986-88 contract arise from section 10(c) of the Act. It states, in part, that every collective-bargaining agreement arising under the Act “shall contain a grievance resolution procedure” which “shall provide for binding arbitration of disputes concerning the administration or interpretation of the agreement.” (Ill. Rev. Stat. 1987, ch. 48, par. 1710(c).) If the evaluation plan was not an agreement reached by collective bargaining, the failure-to-bargain-in-good-faith finding would be without foundation.

In its decision and order, the IELRB began its consideration of whether the teacher evaluation plan was collectively bargained by noting the ambiguity in section 3.3 of the 1986-88 agreement. It noted that the first sentence of section 3.3 speaks of the committee’s duty to “develop” a plan rather than to “bargain” for a plan which tended to indicate bargaining was not intended. The IELRB then considered the second sentence of section 3.3, which states that “bargaining” was to resume after approval of the plan. The IELRB deemed that sentence was ambiguous as to whether the word “bargaining,” which was to resume, referred to bargaining in regard to the plan or bargaining in regard to inclusion in the 1986-88 agreement. The IELRB also noted that the parties’ conduct was ambiguous. It stated the non-adversarial format used indicated bargaining was not taking place; but the conduct of the committee work, whereby some proposals by District representatives were objected to by the Association representatives, and then compromises would be made by the District representatives, indicated bargaining did take place. The IELRB then reasoned that the District was required to bargain as to the entire teacher evaluation plan and, under the evidence, it could not find the Association had “clearly and unmistakably waived” that right. Accordingly, the IELRB determined the evaluation plan was a collective-bargaining agreement which the District was required to sign.

In holding the District had a duty to bargain as to all aspects of the evaluation plan, the IELRB relied upon its decision in LeRoy Community Unit School District 2, 5 Pub. Employee Rep. (Ill.), par. 1131, No. 88 — CA—0031—S (Illinois Educational Labor Relations Board, June 23, 1989), as to which appeal to this court was pending, and other of its similar rulings. However, after the IELRB issued its decision herein, this court issued its opinion on administrative review of the IELRB’s decision in LeRoy, wherein we reversed in part, holding that a school district had a duty to bargain only as to the procedural aspects of a teacher evaluation plan and not as to its substantive aspects. Board of Education, LeRoy Community Unit School District No. 2 v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 347, 556 N.E.2d 857, appeal allowed (1990), 133 Ill. 2d 552.

The IELRB urges us to reconsider our holding in LeRoy in regard to the duty of a school district to bargain the substantive aspects of a teacher-evaluation plan. However, if we do not overrule LeRoy, the IELRB recognizes that it should be required to reconsider its determination as to whether the evaluation plan was bargained here, and it therefore requests that we remand this cause for it to make a decision based on proper considerations as to whether the plan was bargained. As LeRoy is now before the supreme court, we see no useful purpose for us to reconsider a ruling thereon. For reasons we will explain, we conclude we must reverse at least portions of the order on review and remand to the IELRB regardless of the outcome of LeRoy.

We agree with the IELRB and the Association that irrespective of the outcome in LeRoy, teacher evaluation plans are, at least, subjects of permissible collective bargaining. We agree that, as set forth in the IELRB decisions in LeRoy and Chicago Board of Education, District 299, 5 Pub. Employee Rep. (Ill.) 1092, No. 86 — CA— 0098 — C (Illinois Educational Labor Relations Board, May 2, 1989), the give and take between a committee of representatives from employers and employees which resemble that typical of labor negotiations, can, under some circumstances, constitute collective bargaining. We find the evidence here was sufficient to support, but not to require, a determination that the parties bargained the terms of the teacher evaluation plan in their entirety — regardless of whether bargaining was mandatory in regard to substantive aspects of the plan.

The Association maintains the evidence showed that as a matter of law the parties bargained the evaluation plan. It suggests that a Pennsylvania statutory provision drawing a distinction between “collective bargaining” and “meeting and discussing” was rejected by the General Assembly and the Governor in the passing of an amendatory veto of the Act. (See II Senate Journal, 83d Ill. Gen. Assem. (June 23, 1983), at 3223, 3225, 3227 (1983 Sess.) (text of Senate Amendment No. 4 to House Bill 1530); 83d Ill. Gen. Assem., Senate Proceedings, June 23, 1983, at 154, 158 (discussion and vote on Senate Amendment No. 4 to House Bill 1530); Governor’s Veto Messages 1983, House Bill 1530 (Sept. 23, 1983).) We conclude we need not address that contention.

We have related evidence which, within the expertise of the IELRB, can be taken to indicate the existence of bargaining between the District and the Association over the evaluation plan. However, as the IELRB pointed out, other evidence tended to show that bargaining was not taking place. The committee operated in a manner to avoid being adversarial. Section 3.3 of the contract spoke of the committee’s responsibility being to “develop a plan” while, in the next paragraph, addressing bargaining over the portions of the plan to be included in the 1986-88 contract. We cannot conclude, as a matter of law, that the teacher evaluation plan arose from collective bargaining.

In addition to disagreeing with the IELRB determination that the teacher evaluation plan was reached through collective bargaining, the District maintains the terms of section 3.3 of the 1986-88 collective-bargaining agreement constituted a waiver by the Association of bargaining as to the plan. The District argues that the direct wording of section 3.3, which speaks of the function of the evaluation plan committee being to “develop” a plan rather than to negotiate or bargain as to a plan, negates bargaining within the committee. We have previously discussed the matter in connection with the IELRB determination that bargaining did take place in regard to the evaluation plan. We conclude the wording of section 3.3 was sufficiently ambiguous that the IELRB could properly find no waiver of bargaining occurred in regard to the development of the plan.

The existence of a duty on the part of the District to bargain as to all aspects of the evaluation plan was presumed by the IELRB and was material to its decision that collective bargaining was not waived by the Association and actually took place. Accordingly, if the holding of this court in LeRoy that a district is not required to bargain as to substantive aspects of an evaluation plan is upheld by the supreme court, the IELRB must make a new decision as to whether the plan arose from collective bargaining.

As we previously stated, the IELRB found the District failed to bargain in good faith because it bargained to impasse the question of whether provisions of the evaluation plan were to be “included in the contract,” i.e., subject to the grievance and arbitration provisions of the 1986-88 collective-bargaining agreement. Section 10(c) of the Act states in pertinent part:

“The collective-bargaining agreement negotiated between representatives of the educational employees and the educational employer shall contain a grievance resolution procedure which shall apply to all employees in the unit and shall provide for binding arbitration of disputes concerning the administration or interpretation of the agreement.” (Ill. Rev. Stat. 1987, ch. 48, par. 1710(c).)

We have related the substance of the bargaining between the parties after the evaluation plan was completed. The apparent theory of the IELRB is that after the parties were unable to agree as to which portions of the plan were to become subject to the grievance and arbitration procedure of the parties’ 1986-88 contract, section 10(c) required the District to concede to the Association that all of the provisions of the evaluation plan were subject to the grievance and arbitration provisions of the 1986-88 contract. We disagree.

We recognize that clear express language in a collective-bargaining agreement arising under the Act is necessary to exclude a dispute arising under the agreement from the application of grievance and arbitration provisions. (Staunton Community Unit School District No. 6 v. Illinois Educational Labor Relations Board (1990), 200 Ill. App. 3d 370, 558 N.E.2d 751; Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 524 N.E.2d 758.) However, that is not the issue here. The second sentence of section 3.3 of the 1986-88 collective-bargaining agreement contained an express, unambiguous agreement that after the “State approval of the plan, bargaining” would take place as to the portion of the plan which would be subject to the grievance and arbitration procedures. If parties can waive application of grievance and arbitration provisions of a collective-bargaining agreement by clear express language, logic dictates that they can also agree to bargain as to what portion(s) of the plan would be subject to the grievance and arbitration provisions of the contract.

In Chicago Board of Education, 6 Pub. Employee Rep. (Ill.), par. 1048, No. 88 — CA—0056—C (Illinois Educational Labor Relations Board, March 12, 1990), the IELRB stated that the rule permitting waiver of grievance and arbitration provisions to certain aspects of a collective-bargaining agreement, when expressly stated and resulting from good-faith collective bargaining, furthers the theory of collective bargaining. That IELRB also stated:

“Finally, although we have concluded that the parties may legally waive the applicability of the grievance and arbitration process as to specified matters, the statutory policy favoring arbitration is too strong to permit one party to precondition bargaining on agreement that a mandatory subject of collective bargaining be excluded from arbitration. To protect the policy favoring arbitration from such erosion, we conclude that the exclusion of a mandatory subject from the grievance and arbitration procedure is a permissive subject of bargaining. A party may not insist to impasse on such an exclusion, and the opposing party need not consider such an exclusion if it is proposed. Section 10(c) confers on an exclusive representative a right to a grievance and arbitration procedure which the exclusive representative cannot be compelled to waive. Were we to conclude that an exclusion of a mandatory subject from the grievance and arbitration process is a mandatory subject of bargaining, we would eviscerate Section 10(c), as well as the policy of the Act favoring the grievance and arbitration process. ’ (Emphasis added.) 6 Pub. Employee Rep. (Ill.), par. 1048, No. 88 — CA— 0056 — C, at IX — 149.

While exclusion of a mandatory or permissive subject of bargaining from grievance and arbitration provisions cannot be required, and a party may not be able to insist to impasse that some aspect be excluded from those provisions, such rules do not prohibit parties from freely and independently agreeing to bargain as to such matters. No case has been called to our attention holding that parties may not agree to collectively bargain an issue such as that involved here and be bound by the agreement to do so.

If the effect of the second sentence of section 3.3 was that the parties would merely discuss which portions of the teacher evaluation plan would be subject to the grievance and arbitration provisions of the contract and what portions would be excluded from its operation under the IELRB’s interpretation, the District failed to meet that objective by agreeing to section 3.3 and the bargaining which took place was useless. While some slight evidence indicated some negotiators for the Association thought that all parts of the plan were to be subject to the grievance and arbitration provisions of the 1986-88 agreement, the parties engaged in negotiations and agreement was reached as to making certain aspects of the plan subject to grievance and arbitration provisions.

Negotiators believed they had agreed to collectively bargain which aspects of the plan would be subject to the contractual grievance and arbitration procedures. No evidence indicates that, at any time during the bargaining, the Association took the position that it did not have to bargain. Rather, the bargaining broke down because of the insistence of the District it would not negotiate as to application of grievance and arbitration to substantive aspects of the plan, and of the Association that all provisions of the plan would be subject to arbitration. This is borne out by the fact that the amended charge filed by the Association alleged only that the District had failed and refused to sign the agreement and “since September 17, 1987, *** [had] failed and refused to bargain in good faith regarding a mandatory subject of bargaining namely, submission of [the evaluation instrument] to a grievance resolution procedure that includes binding arbitration.” (Emphasis added.)

If we were correct in LeRoy that substantive aspects of an evaluation plan are not mandatory subjects of bargaining, then the District cannot properly be held to have committed an unfair labor practice against the Association by bargaining this matter to impasse. Accordingly, the IELRB’s finding that the District committed an unfair labor practice based on bargaining to impasse, and the derivative finding pursuant to section 14(a)(1) of the Act, cannot stand. However, if the supreme court holds that substantive provisions of a teacher evaluation plan developed pursuant to section 24A — 4 of the School Code are matters of mandatory bargaining, the finding of unfair labor practice against the District may be supported by the District’s refusal to bargain on the issue of the application of the grievance and arbitration procedure to substantive provisions of the evaluation plan.

We reverse the decision of the IELRB and remand the cause to that agency pursuant to sections 3 — 111(a)(6) and (a)(7) of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, pars. 3— 111(a)(6), (a)(7)). We suggest that agency withhold ruling until the decision of the supreme court in LeRoy.

If the supreme court upholds our determination that the question of substantive provisions of a teacher evaluation plan under section 24A — 4 of the School Code is not subject to mandatory bargaining, the IELRB shall reconsider its ruling on the question of whether the plan here was the result of collective bargaining. If that issue is decided in favor of the Association, the IELRB may reenter its order finding a violation of sections 14(a)(6) and derivatively 14(a)(1) in that regard and impose appropriate cease and desist and other orders. Under these circumstances, the reversal of the findings in regard to sections 14(a)(5) and derivatively 14(a)(1) of the Act will remain in force.

If the supreme court determines in Leroy that substantive as well as procedural aspects of a teacher evaluation plan are subject to mandatory bargaining, the IELRB shall reinstate its findings pursuant to sections 14(a)(6) and derivatively 14(a)(1) of the Act. The IELRB may then consider whether the District was guilty of failing to bargain in good faith because of its refusal to consider application of substantive provisions of the plan to the grievance and arbitration provisions of the parties’ collective-bargaining agreement for 1986-88. If the IELRB finds the District guilty of section 14(a)(5) and, derivatively, section 14(a)(1), it may also impose appropriate cease and desist and other orders against the District in this respect.

Reversed and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


text:
    DEL GARLAND, Plaintiff-Appellant, v. JAMES KAUTEN et al., Defendants-Appellees.
    Fourth District
    No. 4-90-0433
    Opinion filed February 21, 1991.
    Michael J. Meyer, of Law Offices of Michael J. Meyer, of Effingham, for appellant.
    Randall A. Mead, of Drake, Narup & Mead, P.C., of Springfield, for appellee James Kauten.

      Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Frederick P. Velde and Adrian E. Harless, both of Heyl, Royster, Voelker & Allen, of Springfield, for appellee H.A. Wellons.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Del Garland on March 27, 1989, filed a complaint against the defendants alleging medical malpractice. Each defendant filed a motion to dismiss pursuant to the provisions of section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 622). On March 27, 1990, the trial court granted the motions to dismiss and on May 29, 1990, denied the plaintiff’s motion to vacate and reconsider.

The plaintiff asserts on appeal two issues: (1) whether section 2— 622 of the Code is unconstitutional as a violation of separation of powers, and (2) whether the court erred in dismissing the complaint with prejudice.

With respect to the first issue, the plaintiff argues that pursuant to DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, 540 N.E.2d 847, appeal allowed (1989), 127 Ill. 2d 614, section 2 — 622 is unconstitutional as a violation of separation of powers and is a legislative delegation of judicial authority to health professionals, which invades the power of the courts to hear and determine cases. There is a split of authority among the districts of the appellate court on this question.

Although the Second, Third, and Fourth District Appellate Courts have upheld the validity of section 2 — 622 (see Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79, 517 N.E.2d 1154, 1156-57 (first rejecting due process and equal protection challenges, and further rejecting a separation of powers argument), appeal denied (1988), 121 Ill. 2d 567, 526 N.E.2d 827; Sakovich v. Dodt (1988), 174 Ill. App. 3d 649, 652, 529 N.E.2d 258, 259-60 (rejecting due process and equal protection challenges), appeal denied (1989), 124 Ill. 2d 562, 535 N.E.2d 921, cert. denied (1990), 494 U.S. 1019, 108 L. Ed. 2d 501, 110 S. Ct. 1326; Alford v. Phipps (1988), 169 Ill. App. 3d 845, 850-51, 523 N.E.2d 563, 566-67 (rejecting arguments that section 2 — 622 created an unconstitutional barrier to plaintiff’s right to trial by jury and denied her due process of law)), only Bloom and DeLuna have analyzed the separation of powers issue.

In Bloom, the Second District Appellate Court reasoned that section 2 — 622 did not violate separation of powers by vesting a judicial function in nonjudicial personnel, stating:

“While a medical review panel authorized to make conclusions of law has been found to improperly exercise a judicial function (Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 322, 347 N.E.2d 736), application of section 2 — 622 does not involve interpretations of law. This provision merely requires the reviewing of facts by a health professional ‘knowledgeable in the relevant issues involved in the particular action and who practices in the same specialty as the defendant if the defendant is a specialist’ (Ill. Rev. Stat. 1985, ch. 110, par. 2— 622(a)(1)). There is no infringement upon the judicial function of applying the law seen in section 2 — 622, as it requires only a determination of fact by an expert in the medical field.” (Bloom, 164 Ill. App. 3d at 479, 517 N.E.2d at 1157.)

By contrast, in DeLuna, the First District Appellate Court expressly disagreed with Bloom, reasoning as follows:

“A comparison of section 2 — 622 with the medical review panel provisions invalidated in Bernier [v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763,] and Wright [v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 347 N.E.2d 735,] shows conclusively that section 2 — 622 goes even further. While it does not provide for the sharing of judicial authority, it takes away from the court altogether a vital decision-making function and confers it upon the members of a private professional group who hold in their hands the keys to the courtroom itself, into which no one may enter, not even the judge who ordinarily sits there, unless the pleading which traditionally initiates an action at law bears their imprimatur or their nihil obstat. And if the complaint does not so comport, the judge is mandated under the clear provisions of section 2 — 622 to dismiss the action, which, as we have already noted, is the very reason why our supreme court in O’Connell [v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322,] held a similar provision to be violative of the judicial article of our constitution. Thus, section 2 — 622 strikes at the very essence of judicial authority.
Moreover, although the medical review panel provisions stricken in Bernier and Wright gave non-judicial members a judicial role, the decision of the panel did not preclude the court from conducting a trial and making its own determination on the merits of a cause. Unless the parties agreed otherwise, ‘the matter is to proceed to trial, as in any other case.’ (Bernier, 113 Ill. 2d at 231.) Section 2 — 622 goes further and makes the health professional’s determination a prerequisite to the court’s power to hear the evidence and determine the merits of the plaintiff’s claim. The court is not allowed to permit the matter to proceed to discovery and trial without the prior written determination of a health professional. Only the health professional is authorized to make the legal conclusion as to whether the plaintiff is entitled to advance beyond the filing of his complaint, and such conclusion will have to depend on the professional’s own understanding of what is required to file a suit. Thus, it becomes clear that section 2 — 622 confers upon the healing art profession the decision-making power heretofore exercised only by our courts as to whether a particular case has merit, and yet ‘the very purpose of a court of law is to determine whether an action filed by a party has merit.’ (Emphasis added.) Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 952, 381 N.E.2d 1367, cert. denied (1979), 444 U.S. 828, 62 L. Ed. 2d 36, 100 S. Ct. 53.
Further, the decision-making function is assigned to medical professionals who are untrained in the law, are not appointed through our established judicial selection methods, are not made to answer to any judicial supervisory authority, and are not bound by any precedent, legal principles, guides, or standards by which they are to evaluate claims. Indeed, there is no legal obligation imposed upon health professionals to review claims of malpractice and to provide reports thereon, nor could a court compel them to do so. In this connection, it is noteworthy that it was but a few short years ago that our supreme court decried the difficulty of getting ‘the doctors and nurses in attendance [at an anesthetized plaintiff’s surgical operation to] voluntarily *** disclose the identity of the negligent person and the facts establishing liability’ occurring during surgery, and applied the doctrine of res ipsa loquitur, expressly adopting the ruling and reasoning of the California Supreme Court in Ybarra v. Spangard (1944), 25 Cal. 2d 486, 490-92, 154 P.2d 687, 689-90. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) And notwithstanding that ours is a ‘fact pleading’ State, as opposed to one permitting ‘notice pleading,’ section 2 — 622 adds to those rigors that of requiring a plaintiff to make a showing to a layman of at least the essential elements of a prima facie case even before he reaches the office of the clerk of the court to plunk down his filing fee.
If a panel of three judges cannot operate constitutionally (In re Contest for Governor, 93 Ill. 2d 463, 444 N.E.2d 170), nor a panel consisting of one circuit judge and two laymen (Bernier, 113 Ill. 2d 219, 497 N.E.2d 763), we [cannot] perceive how a solitary layman can be permitted under our State Constitution to ‘determine’ what constitutes a ‘reasonable and meritorious cause’ for the filing of a lawsuit. The unconstitutional invasion of the court’s authority in this case is all too disturbingly clear. The legislature has overstepped the bounds of constitutional authority; its delegation of judicial power is incongruous with the provisions of article II and section 1 of article VI of the Constitution of the State of Illinois. For the reasons indicated, we conclude that section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622) is unconstitutional.” (DeLuna, 184 Ill. App. 3d at 808-10, 540 N.E.2d at 851-52.)

The view stated in DeLuna has since been presented to and rejected by the Second District Appellate Court in Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633, 554 N.E.2d 1071, 1077, appeal denied (1990), 133 Ill. 2d 572, and Kus v. Sherman Hospital (1990), 204 Ill. App. 3d 66, 72, 561 N.E.2d 381, 384.

Whether section 2 — 622 violates the principle of separation of powers is a question of first impression in this district and, having carefully considered the analysis of Bloom and DeLuna, we find the reasoning of Bloom more persuasive. The plaintiff’s argument that section 2 — 622 is unconstitutional is without merit.

The plaintiff also argues that pursuant to McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293, the trial court erred in dismissing the complaint with prejudice.

Plaintiff filed his complaint on March 27, 1989, with affidavit of counsel stating that, because of the statute of limitations, he was unable to comply with section 2 — 622. Plaintiff took no further action and, on September 19, 1989, defendant Wellons filed a motion to dismiss "with prejudice because of the plaintiff’s failure to comply with section 2 — 622. Defendant Kauten filed a similar motion to dismiss October 6, 1989. Other than filing a notice of claim of unconstitutionality on November 13, 1989, no further action was taken by the plaintiff. No certificate and written report were ever filed by the plaintiff. Until hearing on defendants’ motions to dismiss, plaintiff never requested an extension of time to file the required certificate and written report.

There is nothing before this court which would indicate that the trial court found the dismissal with prejudice was statutorily required. Also, in McCastle, at the hearing on the motion to dismiss, the plaintiff stated that affidavits could be filed and made available to the court. This was in conjunction with the plaintiff’s desire to be given leave to file an amended complaint. The supreme court stated:

“The decision whether to grant leave to amend the pleadings is within the sound discretion of the trial court. However, we will not hesitate to overturn the trial court’s determination where there has been a manifest abuse of discretion. [Citation.] Here, the trial court proceeded under the erroneous belief that section 2 — 622 requires dismissal with prejudice.” McCastle, 121 Ill. 2d at 194, 520 N.E.2d at 296.

Here, the plaintiff, in initially filing his complaint, complied with section 2 — 622(a)(2) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(2)), which states:

“That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.”

The only pleading filed by the plaintiff, other than the complaint and affidavit on March 27, 1989, was the notice of claim of unconstitutionality filed November 13, 1989. On March 7, 1990, almost one year after the complaint was filed, plaintiff filed a response to defendant’s motion to dismiss, asserting the unconstitutionality of section 2 — 622 and, in the alternative, requesting leave to amend by filing a certificate and report within 30 days or a voluntary dismissal pursuant to section 2 — 1009 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1009) or a dismissal without prejudice.

By invoking the statute of limitations provision of section 2— 622, the plaintiff sought 90 days in which to file the affidavit and written report as required. Plaintiff did nothing, however, and let the 90-day period pass, and not until the time of the hearing on defendants’ motion to dismiss, March 7, 1990, did plaintiff file a response to defendants’ motions to dismiss. Plaintiff did not file any motion for extension of time within 90 days from the filing of the complaint. Plaintiff has shown no good cause for the delay and has failed to present any evidence of good cause for failure to file the certificate and report as required by section 2 — 622. Supreme Court Rule 183 (107 Ill. 2d R. 183) does allow late filing for good cause. It states:

“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

The trial court’s dismissal of the plaintiff’s complaint was proper. Premo v. Falcone (1990), 197 Ill. App. 3d 625, 554 N.E.2d 1071; Batten v. Retz (1989), 182 Ill. App. 3d 425, 538 N.E.2d 179.

As this court stated in Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638, 536 N.E.2d 125, 129:

“The determination of whether the pleadings are sufficient to comply with section 2 — 622 is a matter of discretion for the circuit court. This pleading determination depends on the facts and circumstances of each case. (Alford, 169 Ill. App. 3d at 854-55, 523 N.E.2d at 569.) Where the pleadings are determined to be insufficient, the circuit court must determine whether to allow amendment or dismissal. Absent a manifest abuse of discretion, the amendment or dismissal determination of the circuit court will not be disturbed on appeal. McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 194, 520 N.E.2d 293, 296.”

It is clear the trial court was correct in dismissing the plaintiff’s complaint. The order of the circuit court of Sangamon County is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.