author: JUSTICE NASH

text:
    THE KAWASAKI SHOP OF AURORA, INC., Plaintiff-Appellee and Cross-Appellant, v. KAWASAKI MOTORS CORPORATION, U.S.A., Defendant-Appellant and Cross-Appellee.
    Second District
    No. 2 — 88—1058
    Opinion filed September 22, 1989.

      Terry M. Weyna, of Burditt, Bowles & Radzius, Ltd., of Chicago, and Tyler & Hughes, P.C., of Aurora (George E. Bullwinkel and Lloyd J. Tyler, of counsel), for appellant.
    William C. Murphy and Craig S. Mielke, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, and Winston & Strawn, of Chicago (Edward L. Foote & Robert M. Foote, of counsel), for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Kawasaki Motors Corporation, U.S.A. (the Manufacturer), appeals from a judgment in favor of plaintiff, The Kawasaki Shop of Aurora, Inc. (the Dealer), for $323,690 as compensatory damages, and $79,422.50 for attorney fees, in this action for breach of contract and alleged violation of the Motor Vehicle Franchise Act (Ill. Rev. Stat. 1987, ch. 121½, par. 751 et seq.). The Manufacturer contends that the trial court erred in instructing the jury and that the verdict was against the manifest weight of the evidence.

In a cross-appeal, the Dealer contends that the trial court erred when it refused to treble the damage award, as it may do under the Act. We affirm the judgment of the circuit court in both the appeal and the cross-appeal.

The Kawasaki Shop of Aurora, Inc., maintained a Kawasaki dealership in Aurora, Illinois, under a franchise agreement entered into with Kawasaki Motors Corporation, U.S.A., in 1971. From 1971 to 1980, the business was located at Route 2 and U.S. 30 then relocated to New York Street, where it remained until 1982 when it moved to Hill Avenue. In 1980, the Dealer became a subsidiary of Capital Control, Ltd., when Capital Control acquired 100% of the stock of the Dealer from the owners, Bruce and Cathy Riemenschneider, in return for 30% of its own stock. Capital Control, which maintains a number of motorcycle sales franchises doing business as Fox Valley Cycles, was attempting to consolidate the market in motorcycle dealerships in Aurora with the ultimate aim of operating a multiple-brand dealership from one store. Capital Control had purchased a Suzuki franchise which it intended to move to a store from which it sold Honda products, and was also negotiating to purchase a Yamaha franchise to add to the Honda and Suzuki lines in one building. Capital Control wished to move the Dealer into the same shop. In the fall of 1981 the Dealer advised the Manufacturer that it intended to move the Kawasaki franchise and did move to 419 Hill Avenue in 1982, where the Honda and Suzuki franchises were located. Yamaha moved into the same store in 1985.

Following the change of ownership of Dealer in June 1981, a new dealership agreement was entered into between the Manufacturer and Dealer which provided in relevant part:

“A. DISTRIBUTOR hereby grants to DEALER during the continuance of this Agreement the privilege of purchasing for resale at DEALER’S place of business in the city and at the location indicated above designated Kawasaki brand motorcycles, and parts and accessories therefor supplied by DISTRIBUTOR (hereinafter collectively called/Products’).
B. DEALER will not move its place of business to any new or different location than that described in Paragraph 1, or establish any additional place or places of business for the sale, servicing or display of Products without the prior written, consent of DISTRIBUTOR.”

While the agreement required approval by the Manufacturer prior to a move to a new or different location, a dealer is not required to get approval to take on competitive motorcycle lines, and, in contemplation of this possibility, in paragraph 11, the agreement states the dealer’s responsibility to provide representation of the Kawasaki products equal to that provided other brands or lines of products also sold. The contract further provided that the Manufacturer and Dealer agree that the Dealer’s area of primary responsibility for the sales and service of the Kawasaki products shall be a five-mile radius of the dealer’s place of business as specified in the contract. In June 1981, when the agreement was entered, the Kawasaki dealership had been located on New York Street for about a year. However, the agreement listed the dealer location as Route 2, U.S. 30, in Aurora, the address where it had been located from 1972 until 1980. Each of the locations at which the Dealer operated its Kawasaki franchise was within a five-mile radius of the location specified in the agreement.

In September 1981, Bruce Riemenschneider met with James Shevlet, the regional sales manager for the Manufacturer, who advised Riemenschneider that the Hill Avenue location was not suitable and he would not allow Riemenschneider to move in with Honda. In October 1981, Riemenschneider received a letter from the Manufacturer advising that Shevlet disapproved of the move from the Route 2, U.S. 30, address to the Hill Avenue location.

In February 1982, the Dealer moved from its actual location on New York Street to Hill Avenue. According to Riemenschneider, there had been no problems with the Manufacturer because of the past move, and they thought they had a good new location. In fact, the Manufacturer’s district manager, Mr. Johnson, had assisted in the first move knowing that no written permission had been given. The move was within the same market area described in the contract and was made primarily to keep overhead down and to offer more convenient shopping for customers which would result in discounted prices to buyers. By letter of February 1982, effective May 1, 1982, the Manufacturer terminated Dealer’s franchise contract, and it subsequently opened a new Kawasaki dealership about a mile and a half south of the Hill Avenue location to which it had objected.

The Dealer brought this action alleging that the Manufacturer’s termination of the franchise violated the Motor Vehicle Franchise Act (Ill. Rev. Stat. 1987, ch. 121½, par. 751 et seq.) and, in a second count of its complaint, alleged that the Manufacturer had breached its dealership contract. The complaint sought treble damages under the statutory action, alleging that the Manufacturer’s conduct was willful and wanton, and attorney fees. The Manufacturer counterclaimed, alleging that the Dealer had breached its dealership contract by not obtaining approval prior to the move. The jury returned verdicts under both counts of the complaint in favor of the Dealer and assessed damages at $323,690. In response to a special interrogatory, the jury also found that the Manufacturer’s violations of the Motor Vehicle Franchise Act were “willful and wanton.” The trial court awarded the Dealer $79,422.50 as attorney fees pursuant to the Act, but did not award treble damages which are also allowed by the statute, finding it was not warranted in this case.

On appeal, the Manufacturer contends that certain instructions to the jury relating to the application of the Motor Vehicle Franchise Act were fatally defective. We consider first its argument that the jury was improperly instructed on the issue of “site control,” which the Manufacturer was alleged to have unreasonably restricted in violation of the Act.

The court gave an instruction tendered by the Dealer, as follows:

“It shall be unlawful directly or indirectly to impose unreasonable restrictions on the motor vehicle dealer or franchisee relative to transfer, sale, right to renew, termination, discipline, site-control, compliance with subjective standards, and assertions of legal or equitable rights.”

This instruction was based on section 7 of the Motor Vehicle Franchise Act, which provides:

“Unreasonable dealer or franchise restrictions. It shall be unlawful directly or indirectly to impose unreasonable restrictions on the motor vehicle dealer or franchisee relative to transfer, sale, right to renew, termination, discipline, noncompetition covenants, site-control (whether by sublease, collateral pledge of lease, or otherwise), right of first refusal to purchase, option to purchase, compliance with subjective standards and assertion of legal or equitable rights.” Ill. Rev. Stat. 1987, ch. 121½, par. 757.

The Manufacturer objected on the grounds the instruction did not define the term “site-control” or include the parenthetical explanation in the statute “(whether by sublease, collateral pledge of lease, or otherwise).” It argues that no issue of site control was present in the case, asserting that the statute intended only to prohibit a manufacturer from controlling a dealership through a property interest in the real estate and buildings from which the dealership operated. The Manufacturer considers that the legislative intent to so limit application of the site-control prohibition is apparent from the omitted, descriptive terms of “sublease, collateral pledge of lease, or otherwise.” We do not agree.

Where instructions contain statutory language, portions of a statute which are not relevant to the evidence in the case should be deleted. (Harris v. Day (1983), 115 Ill. App. 3d 762, 773, 451 N.E.2d 262.) The Dealer responds that occurred here, and, as the parenthetical language of the statute was not relevant to the facts, it was properly omitted.

There are few Illinois cases which have considered the Motor Vehicle Franchise Act, and there is no Illinois case law interpreting its “site-control” provision. The Act has been said to have been created for the benefit of the dealers and must therefore be liberally construed to carry out the legislative intent. (Geri’s West, Inc. v. Ferrall (1987), 153 Ill. App. 3d 579, 583, 505 N.E.2d 1348.) In Bethesda Ford, Inc. v. Ford Motor Co. (D. Md. 1983), 572 F. Supp. 623, cited by the Manufacturer, the court stated that “site control” took place when a leasing company owned by a motor vehicle manufacturer loaned money to a dealer-owned company, in return for which it acquired the option to lease the facility from the dealer-owned company and sublease it back to the dealer. That court considered, under its facts, that j “site control” was “the right to ensure that the property would be used exclusively as a Ford dealership for the duration of the Leasing I Co. lease.” (Bethesda Ford, 572 F. Supp. at 626.) In Bethesda Ford, site control became an issue because of a lease provision which imposed on the dealer the obligation to use a facility exclusively for that manufacturer’s product and prohibited the dealer from switching to another franchise at that location. In Texaco, Inc. v. A.A. Gold, Inc. (1974), 78 Misc. 2d 1050, 357 N.Y.S.2d 951, site control also was found to have occurred through use of a lease by a franchise. However, neither case contains language suggesting that site control could occur only through use of a lease provision.

The Manufacturer also argues that the doctrine of ejusdem generis dictates the construction of the word “otherwise” in the parenthetical clause, “whether by sublease, collateral pledge of lease or otherwise.” Ejusdem generis requires that in a statutory clause, where the word “other” follows specifically described classes of persons or things, “other” is interpreted as meaning “other such like.” (Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton (1985), 105 Ill. 2d 389, 396, 475 N.E.2d 536.) Appellate decisions teach that this rule should be followed in construing a statute unless there is something in the statute, or its context, which shows that the doctrine of ejusdem generis should not be applied. (City of Chicago v. Bethlehem Healing Temple Church (1968), 93 Ill. App. 2d 303, 309, 236 N.E.2d 357.) The Manufacturer contends that its contractual right to approve or disapprove the physical location of a dealership is not an “other such like” sublease of the real estate upon which a dealership is located, and that the Act does not suggest that the term “site control” should be so broadly construed.

The prohibition against site control in the Act protects the franchisee/dealer from being subjected to unreasonable control by the franchisor. In our view, there is no difference between termination of a leasehold because of a dealer’s failure to exclusively sell the Manufacturer’s products, and termination of a franchise for the same reason. The Manufacturer concedes that the sole reason for its opposition to the Dealer’s move to the new location, and for its subsequent termination of the Kawasaki franchise, was the Dealer’s affiliation with Honda. No argument is made that the new location would not be an appropriate site to market Kawasaki products, except that they would be in direct competition with Honda; however, the franchise agreement between the Manufacturer and Dealer specifically provided for multiline dealerships.

The primary function of the court in interpreting and construing a statute is to ascertain and give effect to the legislature’s intent in enacting the statute by examining the language and the statute as a whole and by determining the objective the statute seeks to accomplish and problems it seeks to remedy. (Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 1047, 501 N.E.2d 1370.) Improper site control in violation of the Motor Vehicle Franchise Act can be accomplished by a franchisor through provisions of a lease, but that clearly is not the only means by which it may occur. We are not persuaded that the legislature intended that restrictions effecting site control would be considered unreasonable and prohibited only when found in a lease. The jury here considered that the conduct of the Manufacturer in applying the terms of its contract with the Dealer resulted in an unreasonable restriction on the Dealer to' control the location of its business. To limit the jury solely to consideration of a lease arrangement, which does not exist here, would effectively remove the protection to a dealer intended by the Act. We find that the trial court properly instructed the jury as to site control.

The Manufacturer next contends that the court erred by failing to instruct the jury as to the provisions of the Motor Vehicle Franchise Act relating to notice to a dealer of his violation of a franchise contract. However, as the Manufacturer has not offered any citation to authority to support this argument, it will not be considered. (See 113 Ill. 2d R 341(e)(7).) In its reply brief, the Manufacturer reargues similar issues with a discussion of numerous cases, but arguments raised for the first time in a reply brief will not be considered. See 113 Ill. 2d R 341(g).

The Manufacturer contends that the trial court improperly instructed the jury as to the standard to be applied in determining whether it was guilty of willful and wanton misconduct. However, the Manufacturer did not object to the definition of willful and wanton misconduct tendered at the instruction conference on the present grounds urged that statutory violations carry a special standard of willful and wanton conduct. The Manufacturer’s only objection to the instruction in trial was that the Dealer’s initial willful and wanton instruction omitted the parenthetical language of Illinois Pattern Jury Instructions, Civil, No. 14.01 (2d ed. 1971). The Dealer subsequently resubmitted the instruction with the parenthetical language, and the Manufacturer’s further objection then was not on the grounds now urged, but that the issue should not be submitted to the jury. The Manufacturer’s present objection to the definition of willful and wanton given to the jury was first raised in its post-trial motion.

As the purpose of the instructions conference is to give counsel an opportunity to object to any proposed instruction, a party cannot allow the jury to receive the instruction without specific objection and claim for the first time in a post-trial motion that error was committed. (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 387, 428 N.E.2d 190.) The argument is waived.

The Manufacturer next contends that the issue of its claimed breach of .contractual duties to the Dealer, the second theory of recovery alleged in Dealer’s complaint, should not have been submitted to the jury. However, no objection was made at the instruction conference and objections to jury instructions must be preserved at that time. (See Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 802, 450 N.E.2d 824.) In its reply brief, the Manufacturer argues that it moved for a directed verdict on the breach of contract count, which was denied, and it was therefore not necessary to repeat its objections. However, the Manufacturer fails to cite any authority for this proposition, and it will not be considered. It was proper here for the jury to be instructed on the contract issues presented, the legal principles to be applied, and the facts that must be proved. See Friedman v. Park District (1986), 151 Ill. App. 3d 374, 388, 502 N.E.2d 826.

The Manufacturer contends next that the jury was improperly instructed that the conduct of the parties may be taken into consideration when deciding the issue of the alleged breach of contract. The jury was instructed, over the Manufacturer’s objection, that:

“Every contract implies good faith and fair dealing between the parties. The law implies a promise against arbitrary and unreasonable conduct.”

The court further instructed the jury:

“Whether the parties to a contract gave it a particular construction may be regarded by you in giving effect to the provisions of the contract. The subsequent acts of the parties showing the construction that they themselves have put upon the agreement may be considered by you for the purpose of assisting you in arriving at a determination of what the arrangement was between the parties. Whether or not the parties gave the contract any particular construction is for you to decide.”

The Manufacturer asserts that these instructions emphasize isolated portions of the evidence and should not have been given because instructions which single out particular facts or evidence and give them undue prominence are erroneous. Reed v. Northwestern Publish ing Co. (1988), 124 Ill. 2d 495, 524, 530 N.E.2d 474.

The Dealer offered evidence that it had moved its location once before with the Manufacturer’s knowledge and apparent acquiescence, but without its written approval. The Manufacturer argues that the instruction suggests that any departure by the Manufacturer from a particular course of conduct (acquiescence to a change in location) amounted to a breach of contract and was in error, as was the instruction emphasizing the implied covenant of good-faith and fair-dealing aspects of the contract. However, as the trial court correctly determined, these instructions accurately state the law of Illinois. (See Borys v. Josada Builders, Inc. (1982), 110 Ill. App. 3d 29, 33, 441 N.E.2d 1263, 1266 (“It is well established that every contract contains an implied promise of good faith and fair dealing between the contracting parties”); Board of Trade v. Dow Jones & Co. (1982), 108 Ill. App. 3d 681, 689, 439 N.E.2d 526, 532 (“The courts will adopt a reasonable construction of a contract which is placed on the contract by the conduct of the parties”).) Additionally, the instructions as tendered by the Dealer were modified by the trial court to be phrased in the alternative so that the jury could consider or disregard the conduct of the parties. We do not find that these instructions improperly single out any aspect of the evidence.

Finally, the Manufacturer argues that the verdict was against the manifest weight of the evidence because the Dealer failed to prove by a preponderance of the evidence that the Manufacturer acted arbitrarily, in bad faith, or unconscionably, that the Manufacturer had good cause to terminate Dealer’s dealership, that the Manufacturer did not violate the Act by exercising unreasonable “site control,” and that the Dealer did not demonstrate that the Manufacturer failed to renew its franchise without good cause.

The Dealer alleged in its complaint that the Manufacturer violated section 4(b) of the Act, which provides, in relevant part:

“It shall be deemed a violation for any manufacturer *** to engage in any action with respect to a franchise which is arbitrary, in bad faith or unconscionable and which causes damage to any of the parties or to the public.” Ill. Rev. Stat. 1987, ch. 121½, par. 754(b).

No Illinois court has interpreted this provision. The Manufacturer argues that because its actions were based on its good-faith belief that the change from a single-line dealership to multiline motorcycle sales would lead to a loss of sales of Kawasaki products, its actions were reasoned and rational, were not taken in bad faith, and were not unconscionable. However, implicit in this Act is the idea that a dealer should not be terminated for affiliating with a competing line (see Ill. Rev. Stat. 1987, ch. 121½, par. 754(e)(12)), and the Manufacturer’s argument does not provide a defense in this case to the claimed section 4(b) violation as the franchise agreement permitted multiline sales by the Dealer, but it was terminated for doing so here.

Next, the Manufacturer contends that it had good cause to terminate the contract between it and the Dealer as the Manufacturer would be damaged by the Dealer’s move to a location from which Honda products were sold.

In Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 466 N.E.2d 958, the standard of “good cause” necessary to terminate a franchise under the common law was examined:

“Good cause has been defined as a failure to substantially comply with obligations under the agreement. [Citations.] One commentator has also noted that the test used by most courts *** seems to center on a determination of commercial reasonability. Breaches of contract affecting the interest of the franchisor in marketing his product constitute good cause for termination.” (Dayan, 125 Ill. App. 3d at 993, 466 N.E.2d at 973.)

However, in that case, the franchise was in a deplorable condition and there had been numerous customer complaints. (Dayan, 125 Ill. App. 3d at 995, 466 N.E.2d at 973.) Here, the Dealer was willing to market Kawasaki products in accordance with contract requirements for multiline dealerships, and the Manufacturer was only interested in terminating the Dealer to prevent competition with Honda. We cannot find, as a matter of law, that the Manufacturer had good cause to terminate the franchise.

The Manufacturer argues that it did not impose unreasonable site control upon the Dealer as many dealership contracts of other manufacturers contain a similar restriction. However, a site-control provi- I sion in a franchise agreement will not be considered as a prima facie violation; it is only when a manufacturer unreasonably applies this provision that a violation of the Motor Vehicle Franchise Act will be found.

On consideration of the Manufacturer’s arguments, we find that the verdict was not against the manifest weight of the evidence.

In its cross-appeal, the Dealer contends that the trial court erred in denying statutory relief as the unlawful termination of the franchise by willful and wanton conduct justifies the treble damages provided for in the Act.

Under the first count of its compliant, which alleged violation of the Motor Vehicle Franchise Act, the Dealer sought actual damages

and prayed that such amount be trebled because defendant’s conduct was willful and wanton. The jury returned a verdict for the Dealer and against the Manufacturer for $323,690 as actual damages. The trial court also submitted a special interrogatory to the jury, which responded that the Manufacturer’s conduct which proximately caused the plaintiff’s damages was willful and wanton. The court awarded attorney fees to the Dealer in the amount of $79,422.50, and entered judgment on the verdict of $323,690; it refused the Dealer’s request to treble the damages, finding that to be unwarranted.

Section 13 of the Act provides in relevant part:

“Where the misconduct is willful or wanton, the court may award treble damages. *** Where the franchisee or dealer substantially prevails the court *** shall award attorney’s fees and assess costs against the opposing party.” Ill. Rev. Stat. 1987, ch. 121½, par. 763.

Although the Dealer contends that the legislature intended to mandate treble damages where the franchisee’s conduct was willful and wanton, the language of the statute is unambiguous and provides that the power to award treble damages is permissive, not mandatory, on the part of the court.

The Manufacturer argues that unfair competition and practices and unreasonable dealer or franchise restrictions are in two different parts of the Motor Vehicle Franchise Act, and treble damages apply only to the former.

Section 13 provides in relevant part:

“Damages; equitable relief. Any franchise or motor vehicle dealer who suffers any loss of money or property, real or personal, as a result of the use or employment by a manufacturer *** of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by this Act may bring an action for damages and equitable relief, including injunctive relief. Where the misconduct is willful or wanton, the court may award treble damages.” Ill. Rev. Stat. 1987, ch. 121½, par. 763.

Section 4 states in relevant part:

“Unfair competition and practices, (a) The unfair methods of competition and unfair and deceptive acts or practices listed in this Section are hereby declared to be unlawful.” Ill. Rev. Stat. 1987, ch. 121½, par. 754.

The Manufacturer argues that section 13 tracks the language of section 4, and treble damages may, therefore, be applied only to the acts and practices defined and set forth in section 4. It asserts that although the jury found that the Manufacturer had violated the Act, but did not specify which provisions were violated, it is evident that the jury found the Manufacturer exercised site control. As unreasonable restrictions on a dealer relative to site control are declared unlawful under section 7, the Manufacturer argues that treble damages are not available on this cause of action as the legislature did not intend to punish unreasonable conduct, but unfair conduct. However, at the instruction conference, the Manufacturer offered its own instruction which also included unreasonable restrictions among unfair methods of competition and unfair deceptive acts or practices. The Manufacturer’s instruction was rejected in favor of the Dealer’s, and it cannot now be heard to argue that a given instruction was erroneous when it tendered an instruction containing the same language. It is clear that all grounds for objection should be particularly specified at the instruction conference and renewed in the post-trial motion. (107 Ill. 2d R 239(b); Bean v. Norfolk & Western Ry. Co. (1980), 84 Ill. App. 3d 395, 410, 405 N.E.2d 418.) There is no suggestion made in the Act that the legislature intended to limit damages, equitable relief, and treble damages to actions described in only one section of the Act.

The Dealer argues that in submitting a special interrogatory on willful and wanton conduct to the jury, any discretion on an award of treble damages was thereby delegated to the jury and the trial court was divested of any discretion in this issue. The Dealer has not cited any legal authority for this argument (see 113 Ill. 2d R. 341 (e)(7)), and we do not find it persuasive.

In arguing that treble damages must be awarded and that this court should reverse the findings of the trial court, the Dealer cites a number of cases, but does not address the issue of reviewing the exercise of discretion by the trial court. Only where the trial court has abused its discretion will the reviewing court step in and substitute its judgment. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929, 428 N.E.2d 1005.) The trial judge explained his decision not to award treble damages, stating that his order was not a judgment notwithstanding the verdict of the jury as to liability, damages, or the special findings of willful and wanton, but that the court merely found that the imposition of treble damages was not warranted in this case, a finding with which we agree. In the context of punitive damages, the measure is usually for the jury, but the statute in this case gives the trial judge discretion whether to impose treble damages. A jury finding of willful and wanton conduct determines a question of fact, and it is then within the discretion of the trial judge, as a matter of law, whether or not to impose treble damages in light of the evil to be punished and the measures necessary to correct it.

In deciding in this case whether to award treble damages, the trial court made the following findings:

“(1) punitive damages are not favored;
(2) punitive damages are not usually awarded in contract cases;
(3) the trial court is usually required to supervise jury verdicts of willful and wanton conduct, and here, the compensatory damages awarded did more than merely compensate; and
(4) this action was new and novel.”

Our supreme court has held that the general rule against punitive damages for breach of contract has no application where the cause of action is premised upon a separate and independent legal basis. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 187, 384 N.E.2d 353.) In the same decision, the court refused to impose punitive damages on a “new and novel” cause of action. There, the court judicially created the tort of retaliatory discharge where an employee is fired for filing a worker’s compensation claim (Kelsay, 74 Ill. 2d at 188), whereas here, a statutory cause of action was already the law. However, for the reasons stated by the trial court, we find that imposition of treble damages is not warranted in this matter.

As treble damages were not awarded, we need not consider the Manufacturer’s further argument that the treble damages provision of the Motor Vehicle Franchise Act is unconstitutionally vague and overly broad.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF CATHERINE A. RYAN, Petitioner-Appellee, and JOHN J. RYAN, Respondent-Appellant.
    Second District
    No. 2 — 88—1191
    Opinion filed September 21, 1989.

      Steven H. Katz and Julie De Lara, both of Steven H. Katz, Ltd., of Waukegan, for appellant.
    Roger A. White, of Roger A. White & Associates, Ltd., of Lake Bluff, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

In this pending action for dissolution of marriage respondent, John J. Ryan, appeals from an order denying a continuance of a hearing and from a judgment entered against him in favor of petitioner, Catherine A. Ryan, for $22,511.12. The appeal is dismissed as it is not from a final order.

Petitioner brought this dissolution action against respondent in 1988, and an agreed order was subsequently entered requiring respondent to pay petitioner $250 per week as temporary maintenance and child support and to pay certain other family debts, including mortgage payments, utilities, dentist, orthodontist and therapists’ fees and tuition for the children. In August 1988, petitioner sought entry of a rule to show cause why respondent should not be held in contempt for failure to make certain of the payments ordered. Hearings were continued several times and partially heard on October 14. After further continuances, in part to permit respondent to complete his testimony, the matter was set to be heard on December 5. Respondent moved for a continuance of the hearing, which was denied. He was not present at the December 5 hearing, and no further evidence was offered on respondent’s behalf by his attorney.

The trial court entered an order which found that respondent was not in contempt but had failed to pay the debts as ordered and entered judgment for $22,511.12, representing the obligations due through October 14, 1988. The court denied respondent’s request that the judgment be stayed and found that there was no just cause to delay its enforcement or appeal.

Although neither party has questioned this court’s jurisdiction, we have a duty to raise this question sua sponte. (Waitcus v. Village of Gilberts (1989), 185 Ill. App. 3d 248, 250, 541 N.E.2d 213, 215.) While respondent has complied with Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)) by making a statement of jurisdiction in his brief, it is inadequate. It simply states that the appeal is brought pursuant to Rule 304(a) (107 Ill. 2d R. 304(a)) because other issues in the dissolution proceeding have not been adjudicated, and points out that the order contained the requisite Rule 304(a) finding of no just reason to delay enforcement or appeal. However, Rule 304(a) only permits an appeal from a final judgment as to one or more but fewer than all parties or claims, and that is not the posture of this case.

An order is not final unless it terminates the litigation between the parties on the entire controversy or some definite part thereof so that, if the judgment is affirmed, the trial court has only to proceed with execution. (In re Marriage of Verdung (1987), 162 Ill. App. 3d 374, 388, 515 N.E.2d 454, 463.) In a dissolution-of-marriage case, the issues of support, property division, dissolution and custody are not separate claims but are issues that are ancillary parts of the single claim for dissolution. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 120, 449 N.E.2d 137, 140.) To avoid piecemeal appellate review in a dissolution proceeding (such appeals may be of value to counsel but seldom to the parties and never to the reviewing court), orders that determine only a single issue are not appealable until all other issues in the case are finally resolved. The special finding language of Rule 304(a) cannot make a nonfinal order appealable. In re Marriage of Koch (1983), 119 Ill. App. 3d 388, 389, 456 N.E.2d 644, 645.

In the present case, the petitioner was not seeking a rule to show cause to enforce a final judgment of dissolution. In post-decree enforcement proceedings, all ancillary issues have already been determined and are ripe for review. In this case, however, no other issue in the dissolution of marriage proceeding had been determined when the notice of appeal was filed. Petitioner was seeking to enforce an order which by its own terms was temporary. A temporary support or maintenance order is nonappealable because it does not constitute a separate claim and is inextricably interrelated to the single claim of dissolution of marriage. Any inequity in a temporary order could be addressed in the trial court either at the hearing for permanent maintenance and division of marital property and debts or on an appeal of the entire case when it is final. (In re Marriage of Meyer (1986), 146 Ill. App. 3d 83, 86, 496 N.E.2d 1193, 1195.) The fact that an order is enforceable, as is the judgment sought to be reviewed here, does not necessarily make it appealable (see First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552).

The case before us actually is not an appeal of a temporary maintenance order but an attempt by petitioner to enforce a temporary maintenance and payment of debt order, as the judgment on appeal arose out of a petition for rule to show cause. A trial court may enforce a support order by contempt of court (In re Marriage of Page (1987), 162 Ill. App. 3d 515, 519, 515 N.E.2d 1061, 1064) or by entering a judgment for an arrearage in ordered payments (Haymond v. Raymond (1978), 60 Ill. App. 3d 969, 976, 377 N.E.2d 563, 569). An adjudication of contempt is final and appealable because it is an original, special proceeding collateral to and independent of the case in which it arises, where the imposition of the sanction does not directly affect the outcome of the principal action. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 415, 259 N.E.2d 282, 289; In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 493, 522 N.E.2d 808, 812.) However, an order arising from the contempt proceeding is not appealable until a sanction is imposed by the trial court. In re Marriage of Kitchen (1984), 126 Ill. App. 3d 192, 194, 467 N.E.2d 344, 347.

Because the rule to show cause was denied in this case, we do not have jurisdiction to review the judgment, nor do we have jurisdiction simply because the judgment was for arrearages in a fixed amount. That judgment may be modified, be incorporated in a final decree of dissolution, released, or rendered moot in the pending action. Until every issue in the dissolution proceeding is resolved, there is no final order for the purpose of appeal.

There is an additional reason to consider that an appeal of this judgment is premature found in section 505(c) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(c)), which states that judgment is deemed entered in the amount of each installment on the due date of the installment of a support order. Although the statute states each such judgment has the full force, effect, and attributes of any judgment of this State, including the ability to be enforced, this fact alone will not confer appellate jurisdiction. If such judgments for arrearages were deemed final for the purposes of appeal, then an appeal conceivably could be taken with every monthly installment, clearly frustrating the purpose of the Leopardo decision to prevent piecemeal appeals. Moreover, since such judgments can be released by filing an affidavit that the support has been paid (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 183(i)), the subject of the appeal could become moot during the course of the appeal.

Accordingly, as we lack jurisdiction to now consider it, the appeal must be dismissed.

Appeal dismissed.

DUNN and INGLIS, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY E. DAILEY, Defendant-Appellant.
    Fourth District
    Nos. 4 — 89—0098, 4 — 89—0099 cons.
    Opinion filed September 19, 1989.

      Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On August 16, 1988, the circuit court of Ford County entered judgment on a jury verdict returned in case No. 88 — CF—5 finding defendant Jeffrey E. Dailey guilty of the offense of battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3.) On October 19, 1988, the court similarly entered judgment in case No. 88 — CF—22 when the jury returned verdicts finding defendant guilty of the offenses of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)), theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)), and resisting arrest (Ill. Rev. Stat. 1987, ch. 38, par. 31 — 1). The court later vacated the conviction for resisting arrest. Following a consolidated sentencing hearing in these cases, on November 29, 1988, the court sentenced defendant to a term of 364 days’ imprisonment in case No. 88 — CF—5 and to a term of 30 months’ probation in case No. 88 — CF—22, the latter sentence to be served consecutive to the sentence of imprisonment imposed in No. 88 — CF—5.

Defendant now appeals in case No. 88 — CF—5, contending: (1) he was denied his right to a fair trial when the court failed to give its own definitional instruction on self-defense after it had agreed to do so; and (2) the court committed reversible error in submitting its own issues instruction on battery which misstated the State’s burden of proof for that offense.

Defendant also appeals in case No. 88 — CF—22 (No. 4 — 89—0099). There, he claims the court erred in (1) refusing his instruction concerning self-defense; and (2) ordering his term of probation to be served consecutive to the term of incarceration imposed in No. 88— CF — 5. We reverse both cases and remand them for a new trial.

In case No. 88 — CF—5 (No. 4 — 89—0098), the evidence showed defendant approached a local bank president, Dennis Smith, in a bar in Piper City in order to discuss his dissatisfaction with the service he had been receiving from that bank. While several witnesses testified the conversation between the two men was not terribly heated at that time, Smith said he suggested to defendant it would be better if they had their discussion at the bank at a later point in time.

Defendant left the bar first, and he and his brother-in-law “just rode around town.” As Smith was leaving the bar later that evening, defendant passed by the bar and saw him. Defendant said he stopped his car and told Smith he needed to talk to him. Defendant claimed that, after some conversation, Smith tried to strike him in the face but missed him and hit him in the shoulder. Defendant said he then hit Smith three times in the face. Smith said defendant knocked him down and inflicted several blows to his face as he was getting out of his car. Smith said he did not “take any punches” at the defendant that evening.

During the instructions conference held following the presentation of the evidence, the defendant tendered the following self-defense instruction:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.”

(See Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981) (IPI Criminal 2d).) The State indicated it had no objection with that instruction so long as the following language was added to it:

“However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.”

(See IPI Criminal 2d No. 24 — 25.06.) The court reasoned that, because the jury could believe defendant’s version of what had happened, it would give defendant's tendered instruction with the additional language recommended by the State as a court instruction.

However, in delivering the instructions to the jury for deliberations, the court failed to tender that definitional instruction concerning self-defense. Although defendant did not raise this error during trial or in any post-trial motion, he claims the court’s failure to give this essential instruction constituted plain error and denied him his right to a fair trial. We agree.

We initially note the court’s issues instructions for the offenses of battery and aggravated battery did contain an element that “defendant was not justified in using the force which he used.” (See IPI Criminal 2d Nos. 11.06, 11.08.) Moreover, defendant did highlight his position of self-defense during his own testimony and during closing arguments. However, we conclude this was insufficient to cure the error which occurred.

The instant case is similar to People v. Wilson (1976), 43 Ill. App. 3d 583, 357 N.E.2d 81. There, the court agreed to to give defendant’s proffered jury instruction regarding a jury’s limited use of evidence of a previous conviction after the State introduced a record of his prior conviction for burglary during rebuttal. (IPI Criminal No. 3.13 (1968).) However, the court failed to read that instruction to the jury, and the record failed to affirmatively show whether that specific instruction was included with the written instructions given to the jury.

In Wilson, as here, defendant failed to raise the error in a post-trial motion. In addition, other jury instructions were given, and arguments made, which related to the specific issue in question. However, on appeal, the appellate court concluded defendant had not waived the issue by failing to raise it, and the failure of the court to give the requested instruction denied defendant a fair trial. We reach the same conclusion here.

Defendant further contends the court committed reversible error when it gave the following instruction to the jury:

“To sustain the charge of battery, the State must prove the following proposition:
First: that the defendant knowingly and intentionally caused bodily harm to [the victim].
Second: that the defendant was not justified in- using the force which he used.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that each one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Clearly, the language quoted above misstates the State’s burden of proof, for a defendant should be found not guilty if the State fails to prove any one of the propositions stated. (See IPI Criminal 2d No. 27.01.) The record here contains several corrected copies of this particular instruction, however, and uncertainty exists in the record as to whether the jury actually received an accurate, corrected or an inaccurate, uncorrected copy of that instruction. We need not decide that issue here because we reverse this cause based upon the first issue raised by defendant. However, we note this error would have been a further grounds for reversal had such uncertainty not appeared in the record.

We next turn to the contentions raised by defendant in case No. 88 — CF—22. There, the evidence showed defendant went to talk to Richard Hitchens, a captain of the Piper City Volunteer Fire Department, after his car caught on fire, and the fire department extinguished it. Defendant said that, when he arrived at the station, several firemen were standing outside drinking beer. Defendant stated he asked one of the men if he could have some of his beer, but that request was denied. Defendant said he then asked if there was any beer left inside, and the men told him they did not know.

Defendant testified he went inside the firehouse and got a can of beer out of the refrigerator. He said he had drunk beer at the fire station in the past, although Hitchens’ testimony indicated he knew of no instance where persons other than firemen had gotten beverages out of the refrigerator. Defendant further said that, when he returned outside, an unidentified assailant knocked him to the ground and began fighting with him. Defendant indicated Audrie Haskins, the chief of police and a volunteer fireman, soon joined the fight and began striking him. Defendant admitted he threw two punches which made contact with Haskins, but he could not remember whether he kicked Haskins. Defendant said he did not know Haskins’ identity during the course of the fight because he was dressed in plain clothes, but defendant later realized Haskins was a police officer as he, defendant, got on his bicycle and started to ride away.

Haskins testified several firemen were outside the firehouse drinking beer when defendant rode up on his bicycle and asked if he could have a beer. Haskins said one of the firemen told him he could not have one. Defendant then proceeded inside the firehouse and got a beer from the station refrigerator. Haskins said someone asked him to stop defendant, so he went inside the station and told defendant to return the beer to the refrigerator. He stated defendant shoved him and went outside. He followed defendant and attempted to grab the beer from him. Haskins said defendant then threw the beer at him and began fighting with him. Haskins later attempted to arrest the defendant. Several witnesses to the fight corroborated Haskins’ testimony.

During the jury instructions conference, defendant tendered to the court several instructions concerning self-defense. The trial court refused those instructions, however, because: (1) defendant said he did not know whether he had hit Haskins; (2) no evidence of use of excessive force by a police officer existed; and (3) defendant provoked the use of force against himself. Defendant contends the court erred in refusing those instructions because defendant did, in fact, remember hitting Haskins and only could not recall whether he had kicked him in the groin. He further argues Haskins did use excessive force in attempting to arrest him, and defendant’s testimony suggested he did not provoke the use of force against himself.

Here, comments made by the court in refusing the proffered instructions indicated it found the evidence offered in support of defendant’s theory of self-defense of doubtful credibility and that defendant actually provoked the use of force against him. However, the credibility of witnesses can only be resolved by the jury and not by the trial court. People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287.

A defendant is entitled to have a jury consider his claim of the justifiable use of force where that defense has some foundation in the evidence. This is true even where the evidence concerning that theory is very slight, inconsistent, or of doubtful credibility. (People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) While evidencew concerning defendant’s theory of self-defense here is admittedly very slight, we must conclude it was sufficient to warrant giving the self-defense instructions tendered by defendant. The jury could have believed under the circumstances presented that defendant possessed a subjective, reasonable belief it was necessary to use force in order to avert danger to himself.

We also note the court erred in ordering defendant’s sentence of 30 months’ probation in case No. 88 — CF—22 to be served consecutive to the 364-day sentence he received in case No. 88 — CF—5. This type of sentence is unauthorized under both People v. Mack (1985), 133 Ill. App. 3d 788, 479 N.E.2d 445, and People v. Lowery (1988), 177 Ill. App. 3d 639, 532 N.E.2d 414. Under the circumstances, those sentences could only have been served concurrently.

For the reasons stated, the judgments of the circuit court in case Nos. 88 — CF—5 and 88 — CF—22 are hereby reversed and the causes are remanded to the court for new trials.

Reversed and remanded.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE LUND

text:
    JOHN T. CUNNINGHAM, SR., et al., Plaintiffs-Appellants, v. MILLER’S GENERAL INSURANCE COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0046
    Opinion filed September 19, 1989.

      Frank H. Byers, of Byers, Byers & Greenleaf, Ltd., of Decatur, for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Edward M. Kay, William J. Schaefle, Michael L. Foran, and Sonia V. Odarczenko, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On December 19, 1988, the circuit court of Macon County vacated a default judgment entered against defendant Miller’s General Insurance Company. Plaintiffs John and Cora Cunningham appeal this determination.

On March 2, 1987, plaintiffs’ home suffered severe fire damage. Their home insurance carrier was defendant. After an extensive exchange of information, defendant denied coverage. Accordingly, on February 9, 1988, plaintiffs filed suit against defendant. Summons was served on defendant on February 23. No answer was filed, and on April 8, 1988, plaintiffs moved for and received a default judgment. On May 10, a hearing was conducted on damages, and defendant was not given notice. The court set the judgment at $65,478 plus attorney fees of $600.

On June 14, a nonwage garnishment summons was issued on defendant’s bank account. On June 23, upon being advised of the garnishment, defendant filed a motion to stay execution of the judgment. This stay was entered. On June 28, defendant filed a petition to vacate the default judgment, pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401).

Defendant’s petition alleged it acted with due diligence in that upon being served with plaintiffs’ complaint, the matter was forwarded to counsel in Chicago. This counsel, after reviewing the matter, prepared an answer and arranged for a Decatur law firm to serve as local counsel. On March 23, 1988, the answer was placed with an overnight delivery service for delivery to the Decatur law firm. It never arrived. The first anyone knew of the problem was when plaintiffs garnisheed defendant’s bank account. This history was supported by numerous affidavits, including one by the delivery service that stated they turned the envelope over to Federal Express, and Federal Express records show it was not delivered.

The petition also alleged defendant had meritorious defenses of fraud and arson. Again, these allegations were supported by numerous affidavits. These affidavits establish that a trail of a combination of a petroleum naphtha and kerosene, which are combustibles, was found running between the bedrooms where the fire was located, and that the opinion of several experts who viewed the scene was that the fire was intentionally set. The petition also alleged plaintiffs were having financial problems and had a suspicious fire at the same residence several years earlier.

Plaintiffs’ answer to the petition averred that defendant was negligent and not diligent by failing to follow up on the filing of the original answer. It further alleged, and supported with plaintiffs’ affidavit, that plaintiffs did not set the fire, had received threats from disgruntled ex-tenants, and some unknown person had gained forced entry on the night of the fire.

After hearing arguments, the circuit court concluded:

“An attorney who undertakes the representation of a client has the obligation to the client, to the court, to the rules of practice and to the Supreme Court Rules to assure the timely filing of pleadings. These rules are there for a reason and they are to assure the orderly flow of cases through the system. At the same time justice requires that matters such as this be heard on their merits. While I feel very strongly that the defendant’s counsel here was, as counsel has put it, mistaken as to their follow up to assure the timely filing of its answer, that nonetheless this court has long held the belief that matters should be heard on their merits unless there has been a flagrant violation of the laws of practice which in this case there is not. *** I am going to vacate this judgment because, as I said, it’s my belief that matters should be heard on their merits, but at the same time, I hope if you undertake to represent clients in other counties outside your own county in the future, that you take a little bit of time to learn what their rules of practice are.”

Section 2 — 1401 of the Code provides a comprehensive statutory procedure for which judgments can be challenged more than 30 days after their rendition. To be entitled to relief under this section, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221, 499 N.E.2d 1381, 1386; First National Bank v. Mattoon Federal Savings & Loan Association (1988), 175 Ill. App. 3d 956, 959, 530 N.E.2d 666, 668.) The quantum of proof necessary to sustain a section 2 — 1401 petition is a preponderance of the evidence. (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.) Whether such a petition should be granted lies within the sound discretion of the circuit court, depending on the facts and equities presented. (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386; Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 873-74, 449 N.E.2d 1021, 1022-23.) As such, a court of review is justified in disturbing the judgment of the circuit court only if it finds that the court abused its discretion. Kaput v. Hoey (1988), 124 Ill. 2d 370, 378, 530 N.E.2d 230, 234; Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.

It is readily apparent the court did not apply this standard in reaching its determination. Rather, the court based its decision on its belief that matters such as this one are better resolved on their respective merits. While we wholeheartedly agree with this general principle of law, this is not the standard for analysis in section 2— 1401 petitions. We encourage the court in the future to make its decision based on the three recognized elements. However, even though the wrong analysis was applied, our independent review convinces us that the court’s ultimate decision to vacate the default judgment should be affirmed.

Initially, plaintiffs contend the vacature order is incorrect because defendant failed to prove by a preponderance of the evidence that it had a meritorious defense. They note that the burden is on defendant, and that Airoom requires an evidentiary hearing be held when the facts are in contention. Since no evidence was presented, they maintain that defendant has not met its burden of proof as to the existence of a meritorious defense.

It is correct that when the central facts, sufficient to support the grant of relief under section 2 — 1401 are controverted, an evidentiary hearing must be held. (Airoom, 114 Ill. 2d at 223, 499 N.E.2d at 1387; Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 286, 433 N.E.2d 253, 259.) However, these “central facts” of a section 2 — 1401 petition are not those which would establish the underlying action, but rather facts which are sufficient merely to support an order vacating the judgment. Manning v. Meier (1983), 114 Ill. App. 3d 835, 840, 449 N.E.2d 560, 564; Yorke v. Stineway Drug Co. (1982), 110 Ill. App. 3d 1009, 1014, 443 N.E.2d 644, 648.

In the case now before us, defendant has alleged, through numerous affidavits, facts that show the fire was intentionally set, that it was surrounded with some unusual circumstances, and that plaintiffs may have had a financial motive for setting the fire. Plaintiffs alleged facts which would show that they did not set the fire, and that some third person broke into the house and started it. This conflict of facts goes to the merits of the underlying action. It does not affect whether there is the existence of a meritorious defense. Accordingly, no hearing was required.

Further, the Airoom court observed that a party can waive this evidentiary hearing by failing to request one. (Airoom, 114 Ill. 2d at 223, 499 N.E.2d at 1387.) In the case at bar, neither party requested such a hearing. Therefore, even if one should have been held, it has been waived, and the determination is properly based on the pleadings, affidavits, and supporting materials in evidence. See Airoom, 114 Ill. 2d at 223, 499 N.E.2d at 1387.

As has been suggested by the above discussion, we find by a review of the documents that defendant has established the existence of a meritorious defense. Without going into great detail, defendant’s petition and affidavits establish that plaintiffs had left the residence that evening to go to Chicago and had locked the house. Around 1 a.m., a fire was found in the home. Analysis found the presence of liquid accelerants at the fire scene. Experts concluded the fire was intentionally set. It was further alleged that six years prior to this, a similarly suspicious fire occurred in the residence and that plaintiffs’ financial situation, according to their income tax statements, was precarious.

While plaintiffs refuted some of these allegations with their response and affidavits, it is not up to the court in a section 2 — 1401 petition to determine the ultimate outcome of the proceeding. Defendant has asserted sufficient facts which, if believed by the trier of fact, would defeat plaintiffs’ claim. This is sufficient.

Plaintiffs next contend defendant has failed to show it acted with due diligence in defending the original lawsuit. Due diligence requires the section 2 — 1401 petitioner have a reasonable excuse for failing to act within the appropriate time. (Airoom, 114 Ill. 2d at 222, 499 N.E.2d at 1386.) The petitioner must show that his failure to defend against the lawsuit was the result of an- excusable mistake, and that under the circumstances, he acted reasonably, and not negligently, when he failed to resist the judgment. (First National Bank, 175 Ill. App. 3d at 960, 530 N.E.2d at 669.) The courts are primarily concerned with determining whether a party has wilfully disregarded the process of the court, or is so indifferent to it, that he is chargeable with culpable negligence. (Beno, 114 Ill. App. 3d at 874, 449 N.E.2d at 1023.) In determining the reasonableness of the excuse offered by the petitioner, all the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys. Airoom, 114 Ill. 2d at 222, 499 N.E.2d at 1387.

The facts in Verson AUsteel Press Co. v. Mackworth Rees, Division of Avis Industrial, Inc. (1981), 99 Ill. App. 3d 789, 426 N.E.2d 241, are similar to our present situation. There, defendant’s president was served with a summons. The evidence showed that it was the company’s procedure for that document to be forwarded to the head of the insurance department. The evidence also showed it did not arrive there and, accordingly, defendant did not answer the complaint and was defaulted. The appellate court concluded that this breakdown in defendant’s customary procedure for processing legal documents did not constitute inexcusable neglect nor demonstrate a conscious disregard of the court’s processes, and it vacated the default order. See also Bird v. Kostbade (1977), 52 Ill. App. 3d 741, 367 N.E.2d 1058; Spencer v. American United Cab Association (1965), 59 Ill. App. 2d 165, 208 N.E.2d 118.

Similarly, in the present case, we find defendant exhibited due diligence. The record shows that upon receipt of this summons, it was sent to counsel in Chicago. This counsel arranged for local counsel to file the answer in the proper court. The answer was then sent by an overnight delivery service. The delivery service records show they received the package, but indicated it was not delivered. We do not believe this conduct shows inexcusable neglect or demonstrates a conscious disregard of the court’s processes.

Admittedly, with better follow-up procedures by defendant’s counsel, most of this could have been avoided. However, this does not alter the fact that defendant intended to contest the action, and defendant and his counsel acted promptly to answer the complaint. The fact the overnight carrier lost the package should not preclude defendant from its desire to litigate the case on its merits. Where a reasonable excuse is shown, a party should be allowed to have its day in court, provided no prejudice results to the opposing party. (Verson Allsteel, 99 Ill. App. 3d at 793, 426 N.E.2d at 245.) Here, the only prejudice to plaintiffs is that they must now contest the matter on its merits, rather than receive a windfall through the default procedures.

Since defendant has proved the existence of a meritorious defense and that it acted with due diligence in the original action, its section 2 — 1401 petition should have been granted. Thus, even though the wrong standard was applied, we affirm the court’s decision to vacate the default judgment.

Affirmed.

KNECHT and GREEN, JJ., concur.


text:
    JAMES PEACOCK GIBB III, Plaintiff-Appellant, v. BETTY LOU TRIEZENBERG, f/k/a Betty Lou Gibb, Defendant-Appellee.
    Fourth District
    No. 4 — 89—0129
    Opinion filed September 19, 1989.

      Arnold F. Blockman, of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellant.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff James Peacock Gibb III appeals from an order of the circuit court of Champaign County entered February 2, 1989, in which it ordered plaintiff to pay certain college expenses of his son Randy James Gibb. On appeal, plaintiff contends the court erred in failing to consider the following factors in determining his share of the contribution toward his son’s educational expenses: (1) the relationship between him and his son; (2) his lack of consent to the college selected by his son; and (3) the availability of less expensive public schools. Plaintiff further claims the court’s findings as to the latter two contentions and its judgment determining the amount of his obligations are against the manifest weight of the evidence. For the reasons stated in this opinion, we affirm the order of the trial court.

On January 25, 1988, defendant Betty Lou Triezenberg petitioned the court to fix the college expenses for the child of the parties and to modify the previously entered judgment of dissolution. The petition alleged Randy Gibb was then 18 years of age and wanted to attend Washington University in St. Louis, Missouri, in the fall of 1988. The petition further indicated that, subtracting the amount of the grant Randy was to receive, the additional costs of room, board, and tuition at that university would still be $10,328 per year. Further expenses for the son were estimated at $2,864 per year. The petition stated plaintiff had sufficient assets to pay the costs of the son’s college education but had expressed an unwillingness to do so. Defendant requested the court to enter an order requiring plaintiff to pay $13,202 per year for Randy’s college expenses.

We deem it appropriate to note at this point that, as will be more fully shown later, the petition was inaccurate in that Randy Gibb had started attending Washington University in the fall of 1987. Plaintiff raises no issue as to any variance between pleading and proof. The variance could have been corrected by amendment. Obviously, the experienced counsel involved did not consider the matter significant.

Plaintiff raised several “affirmative defenses” in response to defendant’s petition. He claimed he and his son had no relationship, and he should have no obligation to pay for the college expenses of a son with whom he had had no contact. Second, he contended neither the son nor defendant consulted with him regarding the choice of college, and he was not given the opportunity to approve of his son’s selection. Finally, he indicated Washington University, a school which plaintiff took no part in choosing, was an expensive private school, and his son could have easily been accepted to any public institution in Illinois. As a result, plaintiff claimed he should either have no obligation to pay for the schooling or, in the alternative, his obligation should be based upon the costs of attending a public institution. Defendant moved to strike those “affirmative defenses.”

At the time set for hearing on defendant’s petition but before hearing evidence, the court heard arguments and ruled on defendant’s motion to strike plaintiff’s affirmative defenses. The court indicated the lack of consent and the selection of a private school were both valid items for the court to consider. Thus, it denied defendant’s motion as to those defenses. However, it granted the motion as it pertained to the lack of relationship between the plaintiff and his son. At a subsequent point in the proceedings, the court stated it did not think the status of the relationship was relevant to the issues before it. It denied any offers of proof made by plaintiff’s attorney relating to that defense.

The evidence at the hearing on defendant’s petition held December 22, 1988, revealed the parties divorced in 1977. At that time, plaintiff worked for the Illinois State Water Survey at a salary of $20,000; defendant was employed as a teacher and made $5,000. Plaintiff described their standard of living at that time as “comfortable” or “modest.” Defendant said Randy was then seven years old and had a good relationship with his father. She stated plaintiff indicated in 1977 he would take care of his son’s educational expenses.

Plaintiff testified that, in the summer of 1985, he and Randy discussed possible schools he might attend. Plaintiff admitted he told Randy to look at Washington University, among others, because of the financial aid available there. He also suggested the University of Michigan as well as the University of Illinois. Randy corroborated this testimony and further stated his father had strongly recommended he not attend the University of Illinois since it was so close to home.

Starting in October 1986, plaintiff wrote several letters to defendant concerning Randy’s college selection process. Plaintiff suggested his son obtain counselling on the subject and apply to State schools in addition to the competitive, expensive schools to which he had applied. He informed defendant he “expect[edj to be an integral part of Randy’s future plans.”

In November 1986, both Randy and his mother wrote plaintiff and told him they had previewed Washington University and that Randy was very much interested in attending school there. They also told him he had been accepted at both University of Michigan and University of Illinois. Plaintiff stated this was the first time he learned of Randy’s intention to attend Washington University.

Defendant conceded plaintiff had tried to get involved in the college selection process, but she did not obtain his consent before sending Randy to Washington University because she was Randy’s legal guardian. She said Randy had chosen Washington University as the school he wished to attend, and plaintiff was not consulted about his choice.

Randy started at Washington University in the fall of 1987, majoring in international business. For the 1987-88 academic school year, he received a $5,400 grant plus additional loan money. Defendant testified the balance of the costs of Randy’s college expenses for that school year, after deducting grant and loan money, totalled $6,203, plus $2,864 for other miscellaneous expenses. Defendant further testified that, due to a tuition increase for the 1988-89 school year, the actual cost of attending Washington University for that year would total a little over $10,000.

Randy worked at K mart 25 to 40 hours per week during the summer of 1988 and made $1,200. He was also enrolled in the work study program at the university and earned about $100 per month. Randy indicated he had good grades and worked 5 to 10 hours per week as a teaching assistant. He believed the school was well suited for his interests in international business.

Plaintiff testified he received an undergraduate degree in engineering from the University of Illinois and currently earned $77,000 annually. He also said he received a $4,000 bonus in 1988 and would probably receive a similar bonus in 1989. Finally, he stated he received 5% to 10% of his base pay in overtime in 1988. He indicated that, although his wife worked, she was also working on her Ph.D. and did not earn much money. He stated his expenses exceeded his income.

Defendant said she graduated from Illinois State University and was employed as a teacher, earning $25,000 per year. She also stated her current husband, a car salesman, made approximately $40,000 annually. She indicated Randy lived with her during the summer and other school vacations.

Following presentation of evidence and arguments of counsel, the court declined to reconsider its earlier ruling in refusing to consider the poor father-son relationship as an aspect of the case. In doing so, it stated it had “found no case where that [factor] was held to be the determining factor, [that,] if there [was] an estranged relationship between the parent and child, *** the parent’s obligation to support the child, whether it be educational expenses or other, would terminate or no longer be there.” Furthermore, it emphasized that, “clearly, the relationship between the parent and child can’t be controlling as to whether or not there is an obligation on the part of the parent to pay for educational expenses.” It noted section 513 of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 513) required it to consider three relevant factors in making its decision, and the parent-child relationship was not one of them.

In reaching its decision, the court discussed Randy’s employment and academic abilities and the fact that defendant was providing for some of his needs during the summer and school vacations. It also discussed Randy’s selection of Washington University as the college to attend. The court emphasized plaintiff had first mentioned the college to Randy, and the son then explored that possibility. Also, the father had encouraged Randy not to attend the University of Illinois. The court found no vindictiveness in the choice of a private school over a public school.

The court further considered the present incomes of both parties and stated plaintiff clearly possessed the ability to pay for his son’s college expenses. It also noted defendant was able to pay, and had contributed in the past, for her son’s expenses. It refused to base its decision on the costs of attending the University of Illinois. It decided the selection of a private school here was “perfectly permissible,” and Randy’s selection of Washington University in particular was in his best interest. It indicated its decision could change, though, if the current expenses changed in the future.

After reviewing all factors, the court ordered plaintiff to pay retroactively the sum of $11,000 for the past educational expenses during the 1988 calendar year. It further ordered him to pay $1,000 a month starting in January 1989 and ending June 1991. The plaintiff was not required to pay the $1,000 sum in the month of July in any given year, however.

Section 513 of the Act provides in part as follows:

“The Court *** may make such provision for the education and maintenance of the child ***, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has *** attained majority age. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (Emphasis added.)
(Ill. Rev. Stat. 1987, ch. 40, par. 513.)

Plaintiff now contends the court erred in failing to consider (1) the lack of a father-son relationship; (2) his lack of consent to the college selected by his son; and (3) the availability of less expensive public schools as relevant factors in making its decision. While he recognizes no law exists which mandates the court to consider these specific factors, he argues the court committed error when it wholly refused to consider them as relevant and focused only on those factors enumerated in section 513 quoted above.

We note initially the court only expressly refused to consider the evidence relating to the first factor, the absence of a relationship between plaintiff and his son. With regard to the two remaining factors, the court expressly stated they were “valid” factors for a court to consider. Comments made by the court regarding selection of the school revealed the court believed Randy himself had made the decision to attend Washington University, but plaintiff had played a bigger role in that decision than he had suggested. In addition, although the court stated it would not base its decision on the costs of attending the University of Illinois, a less expensive public institution, it indicated its decision may have been different under different circumstances. These comments suggest that, contrary to plaintiff’s assertions, the court did, in fact, take the latter two factors into consideration in making its decision, and its findings with regard to those factors were not contrary to the manifest weight of the evidence.

With regard to the first factor relating to the absence of a father-son relationship, the court did describe evidence concerning that factor as “not relevant” to the issues before it. However, it also emphasized the lack of a relationship would not, of itself, terminate the parent’s obligation to pay the expenses. This is consistent with present case law. (Hight v. Hight (1972), 5 Ill. App. 3d 991, 995, 284 N.E.2d 679, 682; Imes v. Imes (1977), 52 Ill. App. 3d 792, 367 N.E.2d 1075.) We recognize the court could, and perhaps should, have considered that factor in addition to the factors enumerated in section 513 of the Act (see In re Marriage of Gardner (1980), 85 Ill. App. 3d 1004, 407 N.E.2d 802), but we conclude that, under the circumstances, the court did not commit reversible error in refusing to consider it here.

Based on the evidence presented, the court correctly concluded plaintiff clearly possessed the ability to pay the expenses of his son’s college education. The court also determined both defendant and Randy were contributing: defendant, by providing for her son’s needs during breaks from college and, Randy, by working during the summer and at school. Moreover, the accrued expenses for which she was awarded $11,000 in reimbursement began to accrue in January 1988. Thus, she received no reimbursement for Randy’s expenses for the first semester of the 1987-88 college year.

Plaintiff further maintains that, even if he was able to make the payments and defendant was doing her share, the determination of the amount of payments he was to make was contrary to the manifest weight of the evidence because the amount he was requested to pay exceeded Randy’s needs. The dispute in this regard apparently arises because Randy was able to secure loans in the total amount of $4,125 each of his first two years. Plaintiff maintains he should have no responsibility for repayment of those loans. He claims Randy should be expected to continue to borrow this sum of money, and plaintiff should have no responsibility for repayment of the loans. We disagree. The court was well within its discretion in ordering plaintiff to make payments for college expenses which would not require his son to go into substantial debt to procure a college education.

The sum of $1,000 per month 11 months of each year as a basis for (1) plaintiff’s duty to reimburse defendant for 1988; and (2) the sum to be contributed by defendant in the future, was apparently determined after consideration of defendant’s testimony and charts showing (a) an estimate of Randy’s expenses for the 1987-88 year; and (b) a projection of his likely expenses for the 1988-89 year. These charts, giving figures for those school years, were not parallel to the calendar years for which payments were ordered. However, this should create no problem because payments required for the year 1991 end June 1991, which should coincide with Randy’s college graduation.

According to defendant’s estimate, Randy’s actual expenses for the 1987-88 year for tuition, activity fees, and room and food were $15,728. This figure would appear to be very accurate, as few sums seemed to be disputed. In addition to these sums, defendant estimated Randy spent an additional sum of $2,864 for such items as “utilities,” “clothing and laundry,” “medical and dental,” “recreational and personal,” additional food, and “transportation.” These estimates were less certain than the estimates for the larger items, but they appear to be reasonable and likely. Thus, defendant estimated Randy’s total expenditures for the 1987-88 year were $18,592. Those total expenditures were partially offset by a grant of $5,400, leaving the sum of $13,192 representing net expenditures. If that net sum is further reduced by the $4,125 in loans which Randy received, the net estimate expenditure would be only $9,067, an amount less than the $11,000 reimbursement awarded to defendant for 1988 and less than the yearly rate of $11,000 at which plaintiff was required to contribute in the future.

Defendant’s projections of Randy’s expenses for the 1988-89 college year are, in many ways, similar to those.for 1987-88. The sum of $16,690 was projected for tuition, room, and board. Defendant apparently also expected her son to incur miscellaneous expenses similar to those incurred in 1987-88, and to receive an estimated grant of $5; 100. If that were the case, Randy’s needs for that year would be approximately $14,454 without benefit of projected loans and only $10,329 if loans were obtained.

Consistent with our determination that the court could properly require the father to make payments for college support in amounts sufficient to negate needs for loans, we hold the payments the court ordered the father to make were not shown to exceed Randy’s needs.

We affirm the decision of the circuit court.

Affirmed.

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


author: PRESIDING JUSTICE McCULLOUGH

text:
    INTERNATIONAL BUREAU OF FRAUD CONTROL, LTD., Plaintiff-Appellant and Cross-Appellee, v. GARY L. CLAYTON, Director of the Department of Registration and Education, et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 4-88-0792
    Opinion filed September 14, 1989.

      Richard W. Cosby, of Cosby & Bell, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, International Bureau of Fraud Control, Ltd. (IBFC), brought a declaratory judgment action, seeking a determination that its activities in collecting bad checks were not debt collection pursuant to the Collection Agency Act (Act) (Ill. Rev. Stat. 1987, ch. 111, par. 2001 et seq.). IBFC also sought a declaration that section 3 — 806 of the Uniform Commercial Code — Commercial Paper (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 806) did not limit the imposition fees and costs in excess of $10 to collections involving court proceedings. It sought a declaration that it could recover its reasonable costs from the drawer. IBFC also sought to enjoin the Hlinois Department of Registration and Education and its director (DRE) from seeking sanctions against IBFC’s license for collecting excessive service fees.

Both parties moved for summary judgment. The trial court found no disputed issues of fact existed. It held IBFC was acting as a collection agency under the Act. It also found section 3 — 806 of the UCC did not limit the service fee charged to the drawer in a nonlitigation collection to $10. IBFC appeals, arguing collecting cash for bad checks is not debt collection. DRE cross-appeals, arguing the trial court erred in construing section 3 — 806 of the UCC. We affirm in part, reverse in part, and remand.

The facts are undisputed. IBFC is a licensed collection agency, whose sole activity is reducing to money checks which have been returned to the payee because the drawer did not have an account with the drawee bank or did not have sufficient funds to cover the check. IBFC’s principal clients are retail merchants and service providers to retail merchants. Upon specific referral, IBFC contacts the drawer of the dishonored check and requests he make good the check by paying IBFC as agent for the payee. Funds thus received are sent to the payee after fees, costs, and expenses are deducted.

IBFC attempts to collect money for the checks only after the drawer’s bank has notified the drawer of the dishonor and the payee has sent out one or more written notices of dishonor to the drawer and demanded payment. In addition to the written notice, according to the payee’s business practice, it may have orally communicated the notice of dishonor to the drawer and orally demanded payment. In most cases, the drawer will have been contacted by an agency which collects debts and bad checks. After the drawer fails to act in response to the notices and actions of the payee’s collection agency, the matter is handled by IBFC.

Approximately 90% of the checks referred to IBFC are two to six years old. IBFC incurs costs and expenses in seeking payment for the dishonored checks. It seeks reimbursement for these expenditures from the drawers. On July 16, 1986, the DRE sent IBFC a letter stating its expense recovery from the drawer in nonlitigation collections was limited to $10 pursuant to section 3 — 806 of the UCC. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 806.) The IBFC instituted the instant action.

Before we address the merits of the cause, we must first address the DRE’s contention that the trial court and this court lack jurisdiction to entertain this cause as it is barred by sovereign immunity. The DRE argues the action is an action against a State agency and public official who were acting in the exercise of their official duties.

Technically, sovereign immunity has been abolished in Illinois, except as the General Assembly may provide by law. (Ill. Const. 1970, art. XIII, §4.) Section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1987, ch. 127, par. 801) provides the State may not be a defendant except as provided in the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.) and the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.1 et seq.). The Court of Claims has exclusive jurisdiction over all tort actions against the State. (Robb v. Sutton (1986), 147 Ill. App. 3d 710, 498 N.E.2d 267.) Thus, sovereign immunity precludes actions against State agencies or public officials acting pursuant to their lawful authority. (Board of Trustees of Community College District No. 508 v. Burris (1987), 118 Ill. 2d 465, 515 N.E.2d 1244.) However, where an action against an agency or official alleges an unwarranted assumption of authority, the action is not an action against the State. (Board of Trustees, 118 Ill. 2d 465, 515 N.E.2d 1244; Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004.) Where the action is to enjoin a public official from acting in excess of his authority in the future, the trial court has jurisdiction and principles of sovereign immunity do not apply. Board of Trustees, 118 Ill. 2d 465, 515 N.E.2d 1244; Hernandez, 135 Ill. App. 3d 372, 481 N.E.2d 1004.

In the instant case, the IBFC is seeking an interpretation of a statute, determination that its activities are not debt collection, and an injunction, to preclude the DRE and its director from future actions in excess of their authority. Sovereign immunity concepts do not, therefore, apply. Board of Trustees, 118 Ill. 2d 465, 515 N.E.2d 1244; Robb, 147 Ill. App. 3d 710, 498 N.E.2d 267; Hernandez, 135 Ill. App. 3d 372, 481 N.E.2d 1004.

The IBFC argues its service of collecting cash for checks which have been dishonored based upon insufficient funds or lack of an account with the drawee is not “debt collection” within the meaning of the Act. It notes the Act does not specifically say a dishonored check is a debt, the legislative history of the Act does not define dishonored checks as debts, and no other statute defines a dishonored check as a debt. The IBFC also states the legislature has provided special penalties for those who dishonor checks under the instant circumstances. Therefore, it argues the legislature distinguished the dishonored check under these circumstances from ordinary debt.

Section 2.02 of the Act defines collection agencies as:

“[A]ny person, association, partnership or corporation who, for compensation, either contingent or otherwise, or for other valuable consideration, offers services to collect an alleged debt.” (Ill. Rev. Stat. 1987, ch. 111, par. 2004.)

The Act does not apply to persons whose collection activities are directly related to their business. It specifically excepts banks, credit unions, abstract companies, real estate brokers, attorneys, insurance companies, loan companies, condominium associations, and retail merchants who collect their own accounts. Ill. Rev. Stat. 1987, ch. 111, par. 2005.

An entity, acts as a collection agency pursuant to section 3(a) of the Act when it “[e]ngages in the business of collection for others of any account, bill or other indebtedness.” (Ill. Rev. Stat. 1987, ch. 111, par. 2006(a).) The Act further provides for registration of collection agencies, the posting of a bond, and makes several types of activities unlawful. (Ill. Rev. Stat. 1987, ch. 111, pars. 2007, 2011, 2012 through 2033.) The purpose of the Act is to make unlawful abusive collection practices. (E. Malstrom, The Illinois Collection Agency Act, 1975 U. Ill. L.F. 441.) The Act does not define “account, bill, or other indebtedness.” It does not define “debt.” People ex rel. Daley v. Datacom Systems Corp. (1988), 176 Ill. App. 3d 697, 531 N.E.2d 839.

The IBFC first contends a dishonored check is not a debt. It does not seek to collect for the debt underlying the check. Therefore, under the plain language of the Act, collecting cash for dishonored checks is not debt collection. Consequently, we must consider the nature of debts as well as the relation established by the issuance of a check. Debt is defined as “[a] sum of money due by certain and express agreement.” (Black’s Law Dictionary 363 (5th ed. 1979).) “Indebtedness” in a broad sense is anything that is due and owing. Black’s Law Dictionary 691 (5th ed. 1979).

We turn now to a consideration of checks. Generally, a check given in exchange for a service or good is a written promise to pay the underlying obligation. (Leavitt v. Charles R. Hearn, Inc. (1974), 19 Ill. App. 3d 980, 312 N.E.2d 806.) The UCC defines a check as a draft or order upon a bank signed by the maker for the payment of a sum certain from the drawer’s account to a definite person or bearer, which is due upon demand. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 104; Economy Fuse & Manufacturing Co. v. Standard Electric Manufacturing Co. (1935), 359 Ill. 504, 194 N.E.2d 922.) Payment for goods may be made by check. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 511.) However, such payment is conditional and is defeated by dishonor of the check. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 511(3).) The drawer is responsible for the payment of the dishonored check (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 413(2)), and the payee has an immediate action against the drawer upon dishonor and notice of dishonor (Ill. Rev. Stat. 1987, ch. 26, par. 3-507(2)).

The drawer may discharge his liability on the instrument by payment or any act which discharges his promise to pay the money. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 601.) Additionally, section 3 — 802(b) of the UCC provides that if a check is dishonored, an action may be maintained on the instrument or on the obligation. Discharge of the obligor on the instrument discharges him on the obligation. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 802(b).) Therefore, any action which discharges the drawer on the instrument discharges him on the obligation.

“Obligation” is synonymous with “debt.” (Roget’s II The New Thesaurus 234 (1980).) We conclude that when a check is given in payment for goods or services and is dishonored, the relation of debtor-creditor is established between the drawer and the payee of the check. (See generally Calvin Watson Motor Sales v. Devaull (1964), 51 Ill. App. 2d 125, 201 N.E.2d 1.) IBFC’s actions in reducing to cash checks which have been dishonored discharges liability on the instrument and the obligation underlying it. Thus, it is the collection of an indebtedness under the Act.

IBFC argues the legislature’s treatment of checks dishonored for insufficient funds or lack of an account indicates it distinguished these situations from ordinary debt. IBFC contends the legislature did not intend to afford the protection of the Act to drawers in such circumstances. We disagree. If the requisite mental state is found, a person issuing a check under the instant circumstances may have committed a deceptive practice. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 1.) The drawer who commits a deceptive practice may be liable to the payee for triple the amount of the check or for between $100 and $500 in addition to criminal liability. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — la.) However, not all persons who issue checks which are dishonored for insufficient funds have committed deceptive practices. The fact that fraudulent conduct is punishable does not mean the legislature intended to exclude all drawers of dishonored checks from the protection afforded by the Act.

We turn now to the cross-appeal. The DRE argues the trial court erred in its interpretation of section 3 — 806 of the UCC. (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 806.) Section 3 — 806 states:

“Any person who issues a check or other draft which is not honored upon presentment because the drawer does not have an account with the drawee, or because the drawer does not have sufficient funds in his account, or because the drawer does not have sufficient credit with the drawee, shall be liable in the amount of $10, or for all costs and expenses, including reasonable attorney’s fees, incurred by any person in connection with the collection of the amount for which such check or other draft was written, whichever is greater, and shall be liable for interest upon the amount of such check or other draft ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 806.)

The trial court found the phrase “costs and expenses” referred to in the statute need not relate to litigation or be awarded by the court.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent in drafting the statute. (Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307.) In doing so, the entire statute must be considered, as well as the evil to be remedied or the object to be attained by the statute. (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219.) The language of the statute should be first considered. If the language is clear, the court should not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) The words should be given their popularly understood meaning. (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394.) Courts avoid interpretations which would render any portion of the statute meaningless or void. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) When a statute employs words having a well-known legal significance, courts will, absent an expression to the contrary, assume that the legislature intended the words to have that meaning. Harris, 111 Ill. 2d 350, 489 N.E.2d 1374.

With these principles in mind, we consider the instant statute. The words “costs” and “expenses” in their popularly understood sense are synonyms. (Webster’s Third New International Dictionary 515, 800 (1961).) “Costs” also has a well-known legal significance. It refers to litigation expenses awarded by the court to a successful party. (Black’s Law Dictionary 312 (5th ed. 1979).) Therefore, using the popular meaning of the terms and not tying them to litigation creates a redundancy in the statute. Such a result should be avoided. (Harris, 111 Ill. 2d 350, 489 N.E.2d 1374.) However, if the term “costs” is given its well-known legal significance, the redundancy is eliminated. We believe the phrase “costs and expenses” referred to in the statute means those court costs and expenses which are awarded by the court after litigation.

IBFC urges this court to consider only the language of the statute in seeking the legislative intent. We note an ambiguity exists in the statute, since the ordinary meaning of the words differs from their legal significance. Therefore, we will consider the legislative history. The legislative history supports a conclusion that costs and expenses are tied to litigation. Representative Klemm in introducing the legislation stated:

“House Bill 2536 defines ten dollars as the maximum the retailer may charge without going to court. This will eliminate the necessity of a merchant to prove his actual cost each time he collects a fee of under ten dollars for dishonored checks. This is a maximum amount and does not require merchants to charge any specific fee, and I move its adoption.” (82d Ill. Gen. Assem., May 13, 1982, at 190 (statements of Representative Klemm) (debates on House Bill 2536).)

Senator Sangmeister stated:

“House Bill 2536 amends the Uniform Commercial Code and very simply establishes that on an NSF check that a retailer would have the fixed sum of ten dollars as his cost for attempting to redeem or make good the check that has been presented to him which has gone bad. He has that alternative or to go to court and get whatever costs the court may give, but it would set ten dollars as the fee.” (Emphasis added.) 82d Ill. Gen. Assem., June 23, 1982, at 124 (statements of Senator Sangmeister) (debates on House Bill 2536).

We conclude the drawee’s liability pursuant to section 3 — 806 is limited to $10 or the actual cost and expenses incurred in litigation to collect upon the amount of the check. Therefore, for the above reasons, we affirm in part, reverse in part, and remand.

Affirmed in part; reversed in part and remanded.

LUND and GREEN, JJ., concur.