author: JUSTICE McCULLOUGH

text:
    THE VILLAGE OF SOUTHERN VIEW, Plaintiff-Appellant, v. THE COUNTY OF SANGAMON et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0867
    Opinion filed May 7, 1992.

      Val C. Simhauser, of Simhauser Law Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (John Kenneth Peek, Assistant State’s Attorney, of counsel), for appellee County of Sangamon.
    Michael O’Hara, of Cavanagh & O’Hara, of Springfield, for other appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court;

Plaintiff Village of Southern View filed a three-count complaint on August 13, 1991, seeking injunctive and declaratory relief alleging that the failure to mail a copy of the notice of a public hearing on a proposed zoning amendment to the clerk of Southern View rendered the amendment rezoning the land void ab initio. Defendant Sangamon County filed a motion for judgment on the pleadings on September 10, 1991, alleging the provision in the ordinance requiring that a copy of the notice be mailed to the clerk of Southern View was not a jurisdictional prerequisite to action by the county board or the zoning board of appeals. On September 11, 1991, defendants First America Bank, as trustee under trust No. 35 — 6438, and Recyclers International Corporation filed a motion to dismiss and/or for summary judgment alleging that the requirement of mailing a copy of the notice to the clerk of Southern View was ministerial rather than jurisdictional in nature and, thus, the amendment to the ordinance zoning the land was not void. A hearing on defendants’ motions was held on October 16, 1991, and the trial court issued a written order on October 31, 1991, granting summary judgment in favor of defendants. Southern View appeals that order granting defendants’ motions, contending the zoning amendment was void ab initio because a copy of the notice of the public hearing was not mailed to the clerk of Southern View. Appearing before this court were plaintiff’s attorney and counsel for First of America Bank on behalf of all defendants. We affirm.

Defendants filed a petition to rezone land located within Viz miles of the corporate limits of Southern View from “A” to “1-2” in order to construct a landscape-waste composting facility. A public hearing on this proposed zoning amendment was held on October 18, 1990, before the Sangamon County zoning board of appeals. The Sangamon County board of supervisors approved the reclassification of the land on November 20, 1990. Construction of the landscape-waste composting facility began on August 21,1991.

Section VTI(G) of the Sangamon County zoning ordinance details the procedure for amending the ordinance. (Sangamon County Zoning Ordinance §VTI(G) (1985).) Specifically, section VII(G)(4)(a) sets forth the prerequisites for notice of a public hearing on any proposed amendment. (Sangamon County Zoning Ordinance §VII(G)(4)(a) (1985).) That section provides:

“No amendment shall be granted by the County Board except after a public hearing before the Zoning Board of Appeals of which there shall be a notice of the time and place of the hearing published at least once, not more than thirty (30) or less than fifteen (15) days before the hearing, in one or more newspapers with a general circulation within Sangamon County. A written notice shall be served at least ten (10) days before the hearing on the owners of the properties located adjacent to and across the street or alley from the location where the amendment is requested. In addition, at least fifteen (15) days prior to each hearing, notice of such hearing shall be posted on the street frontage of the land proposed to be reclassified by amendment. The notice need only be placed in one place on the site. In the event the hearing is postponed, the property shall be reposted with the new time, place, and date, and shall be republished and as in the initial case, but with new time, place and date for the hearing. A copy of such notice shall be mailed to the clerk of each municipality, the corporate limits of which lie within one and one-half miles of the land proposed to be reclassified. If the real estate subject to the petition shall be situated within a township or in which there is a newspaper regularly published or in which there is a newspaper generally circulated that is not published in the City of Springfield, Illinois, then there shall be published in said newspaper, a legal publication identical to and in addition to that above stated. Meetings of the Zoning Board of Appeals on amendments shall be held in the County Building.” Sangamon County Zoning Ordinance §VII(GX4Xa) (1985).

It is undisputed that notice of the time and place of the hearing was published in a newspaper with a general circulation in Sangamon County, served upon the owners of the adjacent property and posted on the land to be rezoned, all within the time limitations specified in the ordinance. It is further undisputed that the corporate limits of Southern View lie within 11/2 miles of the land which was reclassified. However, a copy of the notice of the public hearing was not mailed to the clerk of Southern View. Southern View was not represented at the public hearing on this proposed amendment.

In its opinion granting defendants’ motions, the trial court found the timely publication of the proposed zoning change and the public hearing were the jurisdictional prerequisites for validity of any zoning action by the county boards. The court further found that the ordinance required additional notice for adjacent landowners and timely posting of notice on the land proposed to be rezoned. The court then stated that the requirement that Southern View be mailed a copy of the notice was ministerial in nature, rather than jurisdictional. Since the mailing requirement was ministerial, the trial court concluded the zoning reclassification amendment was not void ab initio because of the failure to mail this copy of the notice and, thus, granted defendants’ motions.

Southern View asserts the word “shall” must be interpreted consistently throughout section VTI(G)(4)(a) of the ordinance, thus making the mailing requirement jurisdictional. It maintains that if the word “shall,” when used in conjunction with the publication, service on adjacent property owners, and posting requirements, is given a mandatory interpretation, a similar interpretation must also be given to the mailing requirement.

Defendants contend that only the first three notice requirements (publication, service on adjacent property owners, and posting on the affected land) are jurisdictional and the mailing requirement is ministerial. Defendants suggest three reasons in support of this view. First, they point out that the publication, service on adjacent property owners and posting requirements all have time limitations, while the mailing requirement does not. Second, defendants refer to subsection VII(G)(4)(b) of the ordinance, which provides that, if the amendment is proposed by a member of the county board or planning commission, a copy of the application or the county board’s order shall be served on the record owners of the property within a specific time limitation. Defendants highlight the language stating that this service is “in addition to” the posting and publishing requirements of subsection VII(G)(4)(a). Defendants, as did the trial court, regard the omission of the mailing requirement in this subsection as indicative of the drafters’ intent to make it ministerial rather than jurisdictional, as under subsection (a). Finally, defendants suggest that since this requirement only calls for “mailing” a “copy” of the notice, rather than actual service upon the clerk of the municipality, it is not jurisdictional but only ministerial.

The purpose of notice is to give all parties an opportunity to support or oppose a matter at issue. (Kleidon v. City of Hickory Hills (1983), 120 Ill. App. 3d 1043, 1048, 458 N.E.2d 931, 937.) In construing notice requirements as well as statutes of limitation, courts must look to substance, rather than merely form, in seeking the true intention of the legislature. (White v. Prezler (1956), 7 Ill. 2d 624, 628, 131 N.E.2d 540, 543.) Substantial compliance with notice provisions has been held to be insufficient where statutory provisions are not merely technical requirements but are jurisdictional. M.L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677, 678, 393 N.E.2d 663, 664.

Generally, in construing municipal ordinances, the rules governing construction of statutes are applied. (In re Application of County Collector (1989), 132 Ill. 2d 64, 72, 547 N.E.2d 107, 110.) It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674, 677.) Legislative intent can be ascertained from a consideration of the entire Act, its nature, its object and the consequences that would result from construing it one way or the other. Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 96, 566 N.E.2d 1283, 1302.

In construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute, they will be given a generally accepted and consistent meaning where the legislative intent is not clearly expressed to the contrary. (People v. Lutz (1978), 73 Ill. 2d 204, 212, 383 N.E.2d 171, 174.) Where a meaning is attributed to a word and it again appears in the same statute, it should be given a consistent meaning unless a contrary legislative intent is clearly expressed. (Chapman v. County of Will (1973), 55 Ill. 2d 524, 529-30, 304 N.E.2d 287, 290.) Where a particular provision appears in a statute, the failure to include that same requirement in another section of the statute will not be deemed to have been inadvertent. Siciliano v. Village of Westchester Firefighters’ Pension Fund (1990), 202 Ill. App. 3d 964, 967, 560 N.E.2d 885, 887.

Section 5 — 12014 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 12014) provides for the procedure to amend a zoning ordinance. The Sangamon County zoning ordinance is more restrictive than the Counties Code, but is not inconsistent with it. Therefore, the boards of the county must follow the dictates of the ordinance. It is obvious that when a statute prescribes certain steps as conditions to the enactment of an ordinance, these steps must be substantially complied with, and we have further held that where a general zoning ordinance includes additional procedural requirements for its amendment not inconsistent with those of the statute, these requirements must also be complied with. Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 496,182 N.E.2d 219, 224.

Under the rules of statutory construction, this court must give the word “shall” the same meaning throughout the ordinance unless there appears a contrary intent. Likewise, the use of the word “shall” is mandatory and jurisdictional unless a legislative intent underlying the ordinance indicates otherwise. Thus, if the word “shall,” as used in the publication, posting and service on adjacent property owners requirements, is mandatory, then it must also be mandatory when used in conjunction with the mailing requirement, absent a contrary intent. If the mailing requirement is mandatory and jurisdictional, the amendment rezoning the land is void. Notice setting forth the time and place of the hearing to zone property is mandatory and jurisdictional, and any amendment passed in contravention thereof is void. (Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill. App. 3d 163, 174, 565 N.E.2d 669, 677.) The failure to give the requisite notice and to conduct a hearing renders a zoning change invalid for lack of jurisdiction. Village of Riverwoods v. County of Lake (1968), 94 Ill. App. 2d 320, 237 N.E.2d 547.

We conclude that the legislative intent underlying this county zoning ordinance suggests that the mailing of a copy of the notice of the public hearing on the proposed amendment to the clerk of Southern View was a ministerial, rather than a jurisdictional, requirement. First, a likely purpose of this mailing requirement was to increase the likelihood that the clerk of a municipality located within 11/2 miles of property to be rezoned become aware and receive notice of the public hearing on the zoning amendment. If the drafters of the ordinance wanted to ensure that this mailing requirement serve as actual notice to the clerk, they could have put a time limitation on the mailing requirement or required it to be by certified mail. However, no time limitation or requirement that this notice be by certified mail appears in the ordinance. Thus, since the first three requirements of the ordinance have time limitations, while the fourth does not, and the fourth also does not require certified mail, we conclude that this mailing requirement is ministerial and not jurisdictional.

Moreover, we find, as did the trial court, the distinction between requiring Southern View be “mailed” a “copy” of the notice, rather than be “served” with the notice, to be a further indication of the ministerial nature of this requirement. The “mailing” of a “copy” of the notice would only serve to be additional notice or a safeguard to ensure that the clerk was in fact aware of the pending public hearing. Likewise, the omission of the mailing requirement in subsection (b) of section VII(G)(4) is indicative of the drafters’ intent to make the first three requirements jurisdictional with the mailing requirement being only ministerial since, if it were jurisdictional, it would have been included in this subsection as well.

Therefore, the provision of the Sangamon County zoning ordinance requiring the mailing of a copy of the notice of the public hearing on a proposed zoning amendment to the clerk of a municipality located within IV2 miles of the land proposed to be rezoned is ministerial rather than jurisdictional in nature and the failure to mail such copy of the notice does not render an amendment to the zoning ordinance void. However, even though we conclude this requirement is only ministerial, it should nevertheless be complied with in all future instances.

Accordingly, for the foregoing reasons, the trial court’s granting of summary judgment in favor of defendants is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    ALONZO WILLIAM CLAY, Independent Ex’r of the Estate of Erma Wesley Dahl, Deceased, Plaintiff-Appellant, v. WILLIAM A. HARRIS, Defendant-Appellee.
    Fourth District
    No. 4—91—0821
    Opinion filed May 7, 1992.
    Rehearing denied June 15, 1992.
    Alonzo William Clay, of Pontiac, appellant pro se.

    Steven D. Ziegler, of Satter, Beyer & Spires, of Pontiac, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Alonzo Clay, as independent executor of Erma W. Dahl’s estate, appeals the Livingston County circuit court’s dismissal of his complaint against defendant, William A. Harris, to recover the sale price of a car sold to Harris at an auction and for damages for storing the car. Clay argues the circuit court judge erred by concluding Harris could rescind their contract. We disagree and affirm.

On August 20, 1989, Clay, as independent executor of the estate of Erma Wesley Dahl, auctioned a 1973 Chevrolet Caprice automobile. Harris successfully bid $4,100 on the car. No announcement was made during the auction about whether a certificate of title to the car would be available. After the auction, Harris’ son paid for the car and requested the certificate of title to it. The auctioneer told him Clay had the certificate of title. Harris’ son drove the car to Harris’ home.

The following day, Harris went to Clay’s office to obtain the certificate of title. He discovered Clay did not have the certificate. Clay told Harris that, after looking through the decedent’s papers, he could not find the certificate. He offered to try to secure a certificate of title to the car and stated he could apply for a lost title.

When Harris inquired further, Clay told him he did not know how long it would take to secure a lost title, but he would not cash Harris’ check for the car until he received the certificate of title. Harris told Clay he needed to use the car on Friday, August 25, for a trip out of State, and if he did not receive the certificate of title by 5 p.m. on this date, he would return the car to Clay. He explained he needed the title to legally drive the car or to obtain a license for the car.

Harris stopped in Clay’s office again on Wednesday, August 23, and was told Clay had not located the certificate. Clay rejected Harris’ suggestion he consider accepting the second highest bidder’s offer for the car. Harris again explained he needed the certificate before 5 p.m., August 25.

Because he had not received the certificate of title shortly before 5 p.m. on August 25, Harris drove the car to Clay’s office, parked it, gave the keys to Clay’s secretary and indicated to her where the car was parked. Clay testified the car was returned to him in this way on or before August 30 and had since been stored in his garage. Harris’ check for the car and other items purchased at the auction had not yet been deposited. Harris retrieved this check from the bank and wrote a new check for other items purchased, less the $4,100 for the car.

Clay received a duplicate certificate of title to the car on September 15, 1989. He requested it sometime after the auction and it was issued by the Secretary of State on September 13, 1989. On September 15, Clay wrote to Harris to tell him he had received the duplicate certificate. Clay also stated that he expected to receive Harris’ check for the car shortly. Harris did not respond.

On September 20, 1990, Clay filed a complaint against Harris for the car’s purchase price and storage costs. The circuit court denied Clay’s summary judgment motion. At the June 11, 1991, bench trial, the circuit court concluded the parties had entered an oral contract by virtue of Harris’ bid on the car and Clay’s acceptance of Harris’ bid. He also found the contract contained an implied term requiring Clay to deliver the certificate of title to Harris within a reasonable time. The parties were given an opportunity to file memoranda regarding the effect of Clay’s failure to deliver a certificate of title with assignment and warranty of title to Harris when the car was given to him.

On July 12, 1991, the circuit court ruled in favor of Harris and dismissed Clay’s claim for $4,100 as payment for the car. The judge held the contract between the parties required Clay to deliver to Harris a properly executed certificate of title. Clay’s failure to do so when possession of the vehicle was transferred to Harris constituted delivery of nonconforming goods. He further reasoned Harris provided Clay a reasonable time to cure this nonconformity by allowing him five days to obtain the title. Harris could rescind the contract because Clay did not provide title within that time. The judge also denied Clay’s request for damages amounting to $770 for storing the car. Clay’s post-trial motion was also denied. This appeal followed.

Clay raises numerous arguments why the trial court erred by concluding Harris could rescind his agreement to purchase the car. He begins by providing this court a long explanation about why his case is important. Each case reviewed by this court is decided based on the merits. Although the bases for Clay’s additional arguments are difficult to discern, we will address each as fully as possible.

Clay argues the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 100 et seq.) should not override general sales principles. He directs us to section 2 — 401(2) of the Uniform Commercial Code — Sales (Commercial Code) (Ill. Rev. Stat. 1989, ch. 26, par. 2— 401(2)), which states title to goods sold passes to the buyer when the seller physically delivers the goods. He also directs us to the traditional rule that a sale at a public auction is final and title to the property passes to the bidder once the auctioneer strikes off the item. See Ill. Rev. Stat. 1989, ch. 26, par. 2 — 328(3).

However, the trial court indicated the question of when title to the vehicle passed to Harris was not the guiding factor. We agree. The issue raised is whether, pursuant to the parties’ agreement, an implied term was that Clay deliver a certificate of title to Harris.

Clay contends their contract did not require him to deliver a certificate of title to Harris. He notes he did not discuss this topic with any bidder before the auction, and the topic was not announced during the auction. The court did not, however, find there was an express agreement between the parties. Rather, Clay’s obligation to deliver the title to Harris was implied. We note Clay’s actions intimate he presumed he was selling the car with the certificate of title. He testified he thought the certificate was within the papers he had given to the auctioneer. He also told Harris the auctioneer had the certificate. When Harris told Clay the auctioneer did not have it, Clay told Harris he would not cash Harris’ check until the certificate was replaced through the Secretary of State.

Harris argues the trial court correctly concluded the parties’ agreement contained an implied term requiring Clay to deliver a properly executed certificate of title to Harris when he took possession of the car. In the alternative, the title, at a minimum, had to be delivered within a reasonable time after Harris took possession of the car. Clay’s failure to meet this implied term constituted delivery of nonconforming goods and permitted Harris to rescind the contract.

Clay seems to argue a sale completed at an auction cannot be rescinded based on provisions of the Vehicle Code. He bases this argument on cases which have concluded that because the Vehicle Code is penal in nature it must be strictly construed. See Smith v. Rust (1941), 310 Ill. App. 47, 54, 33 N.E.2d 723, 726.

Smith states the following as to strict construction of the Vehicle Code: “[I]t should be construed according to its exact and technical meaning, recognizing nothing that is not expressed, and limiting its application to cases clearly described within the words used.” (Smith, 310 Ill. App. at 54, 33 N.E.2d at 726.) The Vehicle Code clearly obligated Clay to apply for a replacement title to the car before selling it to Harris.

It states in relevant part:

“If an owner transfers his interest in a vehicle, other than by the creation of a security interest, at the time of the delivery of the vehicle he shall execute to the transferee an assignment and warranty of title in the space provided on the certificate of title, or as the Secretary of State prescribes, and cause the certificate and assignment to be mailed or delivered to the transferee or to the Secretary of State.” Ill. Rev. Stat. 1989, ch. 951/2, par. 3— 112(a).

It also provides:

“A transferor of a vehicle, other than a dealer transferring a new vehicle, shall deliver to the transferee at the time of the delivery of possession of the vehicle the properly assigned certificate of title of this vehicle.” Ill. Rev. Stat. 1989, ch. 951/2, par. 3— 115(c).

Harris also argues that because parties to a contract are presumed to know existing law which relates to their agreement, the provisions delineated above became implied terms of the parties’ contract which Clay was presumed to know. He cites this court’s previous ruling in Lehmann v. Arnold (1985), 137 Ill. App. 3d 412, 422, 484 N.E.2d 473, 480, as support. Clay’s failure to meet these requirements amounted to delivery by him of nonconforming goods.

Clay again directs us to Smith and argues purchasers have not been permitted to interject the Vehicle Code into their contracts with sellers of vehicles. Smith is distinguishable from this case, however, because it found the parties’ entire agreement was embodied in an unambiguous written agreement. The seller was a car dealer. The writing provided for the seller’s retention of the certificate of title until the buyer completed payments. (Smith, 310 Ill. App. at 49-50, 33 N.E.2d at 724.) Unlike Smith, the issue in this case relates to an oral agreement. The circuit court in this case concluded the agreement between Clay and Harris included the implied condition the certificate of title would be provided to Harris by Clay when Harris was given possession of the car or within a reasonable time after.

Clay also directs us to an earlier ruling by this court which we find distinguishable. Pageanas v. Mixon Motor Co. (1951), 344 Ill. App. 446, 101 N.E.2d 280, involved a written contract to purchase between a car dealer and a buyer in which the parties agreed the finance company would retain the certificate of title, which was written in the buyer’s name, until the vehicle was paid for in full.

There was no written contract between Clay and Harris. Moreover, the Vehicle Code provisions which we find relevant to this case exclude contractual agreements involving the creation of a security interest, as in Pageanas, and the transfer of an interest in a car by a car dealer, as in Smith. Ill. Rev. Stat. 1989, ch. 95V2, pars. 3 — 112(a), 3 — 115(c); Pageanas, 344 Ill. App. at 448, 101 N.E.2d at 281; Smith, 310 Ill. App. at 49, 33 N.E.2d at 724.

Clay argues even if the Vehicle Code applies to the contract between him and Harris, their sales transaction is excluded pursuant to section 3 — 114(c), which states:

“If the interest of an owner in a vehicle passes to another under other provisions of the Probate Act of 1975, as amended, and the transfer is made by a representative or guardian, such transferee shall promptly mail or deliver to the Secretary of State, the last certificate of title, if available, and a certified copy of the letters of office or guardianship, and an application for certificate of title. Such application shall be made before the estate is closed.” Ill. Rev. Stat. 1989, ch. 951/2, par. 3 — 114(c).

Clay argues this provision relieves him, as the representative of Dahl’s estate, from any responsibility for executing or delivering anything to Harris when the title certificate was not available. He contends this provision provided a way for Harris to obtain a certificate of title in his own name.

Section 3 — 114(c) applies only when the interest of the owner passes under other provisions of the Probate Act. Here, the car did not pass under the Probate Act, but was sold by Clay as executor of Dahl’s estate.

Clay next contends in his reply brief that section 3 — 112(e) of the Vehicle Code precludes a finding in favor of Harris. He directs us to the language, “[ejxcept as provided *** as between the parties.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 3 — 112(e).) He seems to argue Harris could not rescind the contract because the parties intended for title to the car to pass to him immediately.

He also directs us to cases in which courts have ruled title to a car passed to the transferee although the transferee had not secured a certificate of title. (See State Farm Mutual Automobile Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894, 898, 365 N.E.2d 1329, 1332.) Ownership of the car is not at issue. The issue, again, is whether the car sold by Clay to Harris conformed with what the parties intended.

The Vehicle Code obligated Clay to provide Harris a properly executed certificate of title. The trial court correctly concluded the parties’ contract implied a properly executed and assigned certificate of title would be delivered to Harris within a reasonable time after the auction. The judge reasoned that a person who buys a car at an auction has a reasonable expectation to receive the car and be able to lawfully operate it within a reasonable time.

Their agreement did not include a specific time at which this would occur. Where the time for performance of a particular obligation is not specified, a reasonable time to perform is implied. (Guel v. Bullock (1984), 127 Ill. App. 3d 36, 42, 468 N.E.2d 811, 816.) The trial court concluded five days, the length of time Harris waited for delivery of the certificate of title before he returned the car to Clay, was reasonable. The judge also concluded requiring Harris to wait more than 20 days from the date he bought the car to receive the certificate of title from Clay would not have been reasonable.

Whether an oral contract exists and the nature of its terms and conditions, including what constitutes a reasonable time for performance, are questions of fact and should not be disturbed unless contrary to the manifest weight of the evidence. Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391, 400, 457 N.E.2d 66, 73.

The trial court’s conclusion should not be disturbed. Harris may have been significantly prejudiced had he been required to wait more than 20 days for the certificate of title. Harris testified he purchased the car to use it within that same week to travel out of town. The lack of the certificate of title precluded him from doing so. Moreover, contrary to Clay’s argument, Harris was unable to obtain a registration for the vehicle without the certificate of title. In order to apply for and obtain a new registration of a car, Harris had to have proof of ownership, the certificate of title. Ill. Rev. Stat. 1989, ch. 951/2, pars. 3 — 100, 3 — 405(a), 3-502.

The cases cited by Clay as supporting his argument that a buyer can independently seek registration of a recently purchased car do not stand for this position. Rather, these cases address whether title can pass without the certificate of title passing. (L.B. Motors, Inc. v. Prichard (1940), 303 Ill. App. 318, 321, 25 N.E.2d 129, 130; Lucas, 50 Ill. App. 3d at 898, 365 N.E.2d at 1332.) Again, this is not the issue we address. Clay delivered to Harris, through Harris’ son, who drove the car home, a nonconforming item by failing to deliver the certificate of title within a reasonable time after Harris took possession of the car.

Under the Commercial Code, a buyer can revoke acceptance of an article the nonconformity of which substantially impairs the article’s value if the buyer accepted the nonconforming item on the reasonable assumption that its nonconformity would be cured and it was not timely cured. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 608(1)(a).) Harris accepted the car without the properly executed certificate of title. It was reasonable for him to assume, based on the auctioneer’s representation, the nonconformity would be timely cured. This, however, did not occur.

The circuit court judge reasonably viewed the parties’ oral contract as including the implied condition that Clay would provide the certificate of title to Harris when he was given possession of the car or within a reasonable time after. The court did not err by concluding Harris could rescind his purchase of the car due to Clay’s failure to seasonably cure the defect, the lack of title, in the vehicle.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


text:
      In re MARRIAGE OF LILA D. FISCHER, Petitioner-Appellee, and RONALD FISCHER, Respondent-Appellant.
    Fourth District
    No. 4—91—0557
    Opinion filed April 30, 1992.
    Mark T. Petty, of Arcola, for appellant.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On December 28, 1990, the Champaign County circuit court entered a two-year plenary order of protection on behalf of petitioner Lila Fischer against respondent Ronald Fischer. The order, in part, granted Lila exclusive possession of the residence where the parties had lived. It was filed within a dissolution of marriage proceeding initiated by Lila. Several months after the entry of the order of protection, Lila’s petition for dissolution was voluntarily dismissed; and two days thereafter, Ronald asked the court to reconsider or vacate the protective order. Ronald argues the circuit judge erred in ruling that because the order of protection had become final 30 days after its entry, he could not reconsider or vacate the order. We conclude the circuit court retains continuing power to vacate or modify a protective order, and the court therefore erred by not ruling on the merits of Ronald’s request.

I. Facts

Ronald Fischer, 55 years old, and Lila Fischer, 58 years old, were married on February 20, 1990. No children were bom of the marriage. Lila filed a petition for dissolution of marriage on November 5, 1990, docketed Champaign County case No. 90 — C—1624. On November 26, 1990, Ronald filed a petition for temporary relief and response to Lila’s petition. In his response, Ronald alleged the parties’ rights and responsibilities upon dissolution of their marriage were controlled by a post-nuptial agreement which had been proposed and drafted by Lila’s counsel. The agreement in part provided that upon dissolution of the marriage, each party would retain his or her nonmarital property. Ronald claimed the home where the parties had resided during their marriage belonged to him as nonmarital property.

Lila filed a petition for an order of protection on December 13, 1990. (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 19.) The court entered an emergency order on December 14 and continued the matter until December 28. (See Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 17.) The emergency order prohibited Ronald from abusing or harassing Lila and granted her exclusive possession of the residence in which the parties resided. Ronald filed a petition for an order of protection on December 17, 1990. (Ill. Rev. Stat. 1989, ch. 40, pars. 2312 — 17, 2312 — 19.) Lila’s petition, the emergency order, and Ronald’s petition were all filed in the dissolution case. Sometime before the December 28 hearing, a hearing was set for March 18, 1991, on the other issues in the dissolution proceeding.

At the December 28 hearing, the court issued a plenary order against Ronald on behalf of Lila pursuant to section 219 of the Illinois Domestic Violence Act of 1986 (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 19). Lila was granted exclusive possession of the residence and the additional admonishments continued in force against Ronald. The order indicated it expired December 28, 1992. It also indicated the petition was an “independent” form of petition as opposed to one filed in a matrimonial, criminal, juvenile, or other civil proceeding. The parties, however, do not contest that the petition was in fact filed within the dissolution proceeding.

Because no transcript of the December 28 hearing could be located, a bystander’s report (134 Ill. 2d R. 323(c)) was filed by Ronald’s counsel and was agreed to by Lila’s counsel. According to the report, at the December 28 hearing, the judge indicated that if, during the dissolution proceedings, Ronald showed the residence at issue was his nonmarital property, the order of possession granted to Lila by the order of protection would be reversed when the dissolution proceeding terminated. The judge characterized the order as “interim,” using the term in a general sense and not as an interim order under section 218 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2312— 18), and indicated he was issuing the order for two years because he did not know when title to the residence would be determined in the dissolution case.

On March 14, 1991, Lila filed a motion to dismiss her petition for dissolution of marriage. On March 18, the judge granted Lila’s motion. The record of this hearing also indicates the “existing Order of Protection [was] to remain in full, force and effect.” On March 20, Ronald requested the court to vacate or modify the order of protection to the extent that it granted exclusive possession of the residence to Lila. He asked the court to grant him exclusive possession of the residence or to find Lila had no right to exclusive possession. On March 21, Lila filed a motion to dismiss Ronald’s motion, contending the protective order was a final order for purposes of appeal, and Ronald failed to appeal within 30 days from its December 28, 1990, entry.

On May 23, 1991, the court considered the parties’ motions. It amended the December 28, 1990, protective order nunc pro tunc to correct a clerical error, granted Ronald’s motion for leave to file amended pleadings within 14 days, and set July 5 as the hearing date for Ronald’s motion to reconsider the protective order. Testimony at this May 23 hearing established that sometime after Lila sought dismissal of her petition for dissolution, Ronald filed a petition for dissolution of the parties’ marriage.

Ronald’s amended pleading alleged the December 1990 order of protection should be vacated because (1) Lila had voluntarily dismissed the dissolution proceeding in which the protective order had been filed, and (2) the residence to which Lila had been granted exclusive possession belonged to him as nonmarital property. He alleged that he and a previous wife had acquired the residence in 1985, and the former wife had thereafter transferred her interest to him.

At the July 5 hearing to reconsider the protective order, the judge concluded he was bound by a second district decision in In re Marriage of Blitstein (1991), 212 Ill. App. 3d 124, 569 N.E.2d 1357, although he noted he thought that ruling was incorrect. Based on Blitstein, the trial court concluded the December 1990 order of protection, which granted Lila possession of the residence, had been a final order which could no longer be reconsidered. The judge indicated that when the pending dissolution proceedings filed by Ronald determined whether the post-nuptial agreement was effective between the parties and whether the residence belonged to Ronald as nonmarital property, Ronald might be awarded the residence and the order of protection could expire. The court scheduled a hearing for September 9, 1991, on Ronald’s petition for dissolution and to rule on the post-nuptial agreement. The parties have informed this court that respondent’s petition for dissolution has been granted.

II. Issues Raised

Ronald appeals from the trial court’s denial of his motion to vacate the order of protection and the denial of his motion to reconsider. He argues the judge erred by ruling the order of protection was a final order which he had to appeal within 30 days of its issuance. He contends the court retained jurisdiction and authority to reconsider, amend, or vacate the order of protection for 30 days from the date all other issues were decided in the dissolution case. Because the court dismissed Lila’s dissolution petition on March 18, Ronald contends it had jurisdiction to reconsider the order when he filed his motion on March 20.

A. Application of Rule 301(a)

Ronald reasons that the court retained jurisdiction because it had not authorized an interlocutory appeal of the protective order at the time of its entry. Supreme Court Rule 304(a) provides that if multiple claims for relief are involved in an action, an appeal can be brought from a final judgment of one or more of the issues only when the circuit court indicates there is no reason to delay enforcement or appeal of its order. 134 Ill. 2d R. 304(a).

The Champaign County circuit court had not made such a finding when it entered the December 1990 protective order. Ronald had not sought such a finding by the court. He contends Lila should have sought this ruling to insure the order of protection was final, and the fact that she did not establishes she knew the December 28 order was not final for purposes of appeal. However, there was no reason for Lila to appeal the order of protection; she was awarded exclusive possession of the residence. Because Ronald was denied possession of the home, he might have sought the circuit court’s permission to appeal its order before the other issues raised in the dissolution proceeding were determined.

However, when the judge entered the plenary order of protection on December 28, the only basis for an appeal by Ronald was that the residence was his nonmarital property; the proceeding in which the order was filed remained pending. Any argument he could then have made would have been fruitless as long as the court concluded the balance of hardships between the parties favored Lila. The Act authorizes the granting of exclusive possession of a residence to the petitioner, although the residence is owned by respondent, if both parties have a right to occupy the residence. Even if the property was owned solely by Ronald, Lila had a right to occupy the premises as his spouse. Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 14(b)92).

Ronald also contends the December 1990 protective order could be viewed as independent of the other claims in the dissolution proceeding if the judge had severed this claim. The order would then have been final, and he would have had to appeal within 30 days of its entry. The Illinois Supreme Court has stated if a court has not made a finding that there is no just reason for delay in enforcement, the claim is immediately appealable only if the court in its severance order unequivocally states the claim has been severed and shall proceed separate from the other claims. (Carter v. Chicago & Illinois Midland Ry. Co. (1988), 119 Ill. 2d 296, 307-08, 518 N.E.2d 1031, 1037.) The circuit court did not enter a severance order.

We find Rule 304 does not control the determination of the propriety of the circuit court’s conclusion that it could not reconsider the December 1990 order of protection. Rather, the question raised is whether the circuit court had the authority to vacate or modify the order beyond the 30-day period after it was entered.

B. Protective Order is an Injunction

Lila characterizes the protective order as an injunctive order appealable by Ronald only within 30 days of its entry. We agree that the protective order was an injunction. An injunction is a “ ‘judicial process operating in personam and requiring [a] person to whom it is directed to do or refrain from doing a particular thing.’ ” (In re a Minor (1989), 127 Ill. 2d 247, 261, 537 N.E.2d 292, 298, quoting Black’s Law Dictionary 705 (5th ed. 1983).) An order of protection is an injunctive order because it directs a person to refrain from doing something, such as to refrain from entering or residing where he or she lived before the order was entered. Supreme Court Rule 307(a)(1) provides:

“An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” 134 Ill. 2d R. 307(aXl).

Lila is correct that if Ronald objected to the entry of the order, he had to appeal within 30 days of its entry. Rule 307(a) states “[t]he appeal must be perfected within 30 days from the entry of the interlocutory order.” 134 Ill. 2d R. 307(a); see also In re Marriage of Wass (1981), 94 Ill. App. 3d 436, 439, 419 N.E.2d 32, 34; Terry v. Terry (1970), 121 Ill. App. 2d 331, 257 N.E.2d 520 (abstract of opinion).

Lila’s reliance on Blitstein, and the circuit court’s reliance on the same case is, however, misplaced. In Blitstein the respondent appealed the entry of an order of protection which, by its terms, was to terminate when a final judgment was entered in the marital dissolution proceedings; the petitioner moved to dismiss the appeal, contending the order was not appealable until all issues related to the pending dissolution proceeding were determined. She relied on In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, in reasoning that questions related to the dissolution proceeding were ancillary, and were not separate claims which could be appealed from independent of all other related claims. Blitstein, 212 Ill. App. 3d at 129, 569 N.E.2d at 1360.

The Blitstein court correctly reasoned that, unlike issues of child custody, child support, property division, and the grounds for dissolution, an order of protection is not an issue inherently related to a dissolution proceeding. The court noted that petitions for orders of protection are not only instituted in conjunction with dissolution proceedings, but are filed independently, or in conjunction with other civil proceedings or with criminal proceedings.

It viewed the protective order as a separate, not an ancillary, claim and reasoned the order was an injunctive order which was immediately appealable. (Blitstein, 212 Ill. App. 3d at 130, 569 N.E.2d at 1360; see also In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 721, 558 N.E.2d 388, 393.) Although we agree with this reasoning, it does not control this case because it addressed a different issue. The party who appealed the protective order in Blitstein timely challenged the entry of the protective order on its merits. Blitstein, 212 Ill. App. 3d at 130-31, 569 N.E.2d at 1361; see also Lombaer, 200 Ill. App. 3d at 724, 558 N.E.2d at 395.

Lila misconstrues Ronald’s objection on appeal. He does not object to the original entry of the order. He objects to the court’s refusal to consider whether it should be dissolved. The issue is not whether the December 1990 injunctive order was properly granted, but whether the circuit court’s July 5, 1991, order refusing to reconsider continuing it in full force and effect was correct. We find the court retained the authority to vacate or modify the December 1990 order of protection.

C. Trial Court Has Continuing Authority

In Benson v. Isaacs (1961), 22 Ill. 2d 606, 177 N.E.2d 209, the Illinois Supreme Court affirmed a circuit court’s dismissal of a petition to dissolve an injunction because the evidence did not establish a change in the law or the facts since the injunction was entered. The court stated an “injunction will be modified or dissolved, as to its prospective effect, where the court finds that the law has changed or that equity no longer justifies a continuance of the injunction.” (Benson, 22 Ill. 2d at 609, 177 N.E.2d at 210.) The Champaign County circuit court in this case should have reviewed the merits of Ronald’s request for modification or vacation of the order.

A court’s authority to dissolve or modify a previously entered injunctive order exists in a dissolution proceeding just as in other civil proceedings. See In re Marriage of De Rosa (1983), 115 Ill. App. 3d 774, 778, 451 N.E.2d 13, 15; Melvin v. Melvin (1968), 94 Ill. App. 2d 403, 236 N.E.2d 913 (abstract of opinion); Field v. Field (1967), 79 Ill. App. 2d 355, 359, 223 N.E.2d 551, 553-54.

The protective order at issue was entered pursuant to section 219 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 19). The provisions of the Act establish that the circuit court had continuing discretion to modify or vacate the order, or to rule it should remain in effect. Specifically, section 205 of the Act provides in relevant part, “[a]ny proceeding to obtain, modify, reopen or appeal an order of protection, whether commenced alone or in conjunction with a civil or criminal proceeding, shall be governed by the rules of civil procedure of this State.” Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 5.

Section 224 of the Act further states, “[tjhis Section does not limit the means, otherwise available by law, for vacating or modifying orders of protection.” (Ill. Rev. Stat. 1989, ch. 40, par. 2312 — 24(d).) Section 11 — 108 of the Code of Civil Procedure provides in part: “A motion to dissolve an injunction may be made any time before or after answer is filed.” (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 108.) We therefore conclude that Ronald’s motion to vacate or reconsider is in the nature of a motion to dissolve and was timely filed.

Additional support for the position that the circuit judge erred by concluding he lacked authority to reconsider the protective order appears in section 220(b)(1)(ii) of the Act, which states:

“(1) A plenary order of protection entered in conjunction with another civil proceeding shall state that it remains in effect:
***
(ii) if incorporated into the final judgment in that other proceeding, until modified.” Ill. Rev. Stat. 1989, ch. 40, par. 2312-20(b)(1)(ii).

The court had the authority to incorporate the order into the final dismissal order on Lila’s dissolution petition. The court likewise had the authority to consider and grant Ronald’s subsequent request for modification or vacatur, or to determine the order should remain in effect. Accordingly, the court should have considered the merits of Ronald’s motion to vacate or reconsider the protective order.

We express no view about whether the changed circumstances, e.g., the parties no longer being married, warrant dismissal of the protective order. A circuit court’s exercise of discretion in ordering an injunction and in denying a motion to dissolve should not be overturned absent a clear showing of abuse of discretion. (Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 787, 388 N.E.2d 1110, 1112.) We reverse and remand to the circuit court, finding it has continuing authority to decide whether to modify or dissolve the protective order.

Reversed and remanded.

STEIGMANN and COOK, JJ., concur.


author: JUSTICE LUND

text:
    GALLAGHER DRILLING, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 4—91—0782
    Opinion filed April 30, 1992.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Mark E. Wilson, Assistant Attorney General, of Chicago, of counsel), for appellant.
    David T. Lumerman, of St. Louis, Missouri, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The Illinois Department of Revenue (Department) appeals from orders of the circuit court of Sangamon County which reversed a decision by the Department denying a claim for credit of use taxes, interest, and penalties to Gallagher Drilling, Inc. (Gallagher).

Facts

Gallagher is an Indiana corporation which stored equipment in Illinois. During the relevant periods of time, Gallagher did not file use-tax returns with the Department. In January 1987, the Department audited Gallagher and determined Gallagher owed use taxes, interest, and penalties totalling $74,101 for the period beginning July 1, 1981, and ending in 1986. Subsequently, Gallagher paid the tax, interest, and penalties, but filed a claim for credit. This claim is in the nature of a claim for refund for the period July 1, 1981, through December 31, 1983. Gallagher contended that a statute of limitations barred the Department from assessing taxes for this period of time. After an administrative hearing, the Department denied the credit, but the circuit court, sitting in administrative review, reversed and ordered the credit.

Issue

Gallagher contends the limitations in section 5 of the Retailers’ Occupation Tax Act (Act) (Ill. Rev. Stat. 1981, ch. 120, par. 444) barred assessment of the tax. The Department contends an amendment to the Act, effective September 13, 1984, was retroactive to at least July 1, 1981, and that there was no effective limitation period. The applicable use tax provisions are incorporated into the provisions of the Act.

Statutory Provisions

Until September 13, 1984, section 5 of the Act provided, in part, as follows:

“Except in case of wilful failure or refusal to file a return when due, or with the consent of the person to whom the notice of tax liability is to be issued, no notice of tax liability shall be issued on and after each July 1 and January 1 covering gross receipts received during any month or period of time more than 3 years prior to such July 1 and January 1, respectively.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 120, par. 444.)

Effective September 13, 1984, the provision was amended (Pub. Act 83-1416, §6, eff. Sept. 13, 1984 (1984 Ill. Laws 2813, 2851)) to provide:

“Except in case of failure to file a return, or with the consent of the person to whom the notice of tax liability is to be issued, no notice of tax liability shall be issued on and after each July 1 and January 1 covering gross receipts received during any month or period of time more than 3 years prior to such July 1 and January 1, respectively.” (Emphasis added.) Ill. Rev. Stat., 1985 Supp., ch. 120, par. 444.

The Department does not claim wilful failure or refusal on the part of Gallagher. It claims that the amendment effective September 13, 1984, must be given retroactive effect. If it is not retroactive, then the claim for credit for the period July 1, 1981, through December 31,1983, should be allowed and the circuit court affirmed.

Decision

The amendment here extended the period of the statute of limitations; cases dealing with the shortening of a statute of limitations are not in point. The exact issue presented in this case was decided in favor of the Department by the decision of the First Appellate District in Sargent & Lundy v. Sweet (1990), 207 Ill. App. 3d 888, 566 N.E .2d 482. That opinion stated:

“The long-standing rule in Illinois is that where a limitations period has not expired prior to an amendment, the amendatory act controls all actions and remedies not previously barred. (Smolen v. Industrial Comm’n (1926), 324 Ill. 32, 154 N.E. 441; People v. Rednour (1969), 43 Ill. 2d 307, 253 N.E.2d 414; People v. Covington (1970), 45 Ill. 2d 105, 257 N.E.2d 106.)” (Sargent & Lundy, 207 Ill. App. 3d at 890, 566 N.E .2d at 483, appeal denied (1991), 137 Ill. 2d 672, 571 N.E.2d 156.)

The petition for leave to appeal the appellate decision in Sargent & Lundy was denied by our supreme court.

We have examined the authorities cited by Gallagher for his argument that Sargent & Lundy should not be followed, but have found no reason to disregard the well-reasoned First District Appellate Court opinion. The opinion of the circuit court which was in favor of Gallagher must be reversed, and the decision of the Department denying the credit (refund) is reinstated.

Reversed.

McCULLOUGH and COOK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY DEAN EDWARDS, Defendant-Appellant.
    Fourth District
    No. 4—91—0546
    Opinion filed April 30, 1992.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

This appeal arises from an order denying defendant Jimmy Edwards’ motion to withdraw his guilty plea. Defendant was charged in the circuit court of Douglas County with three counts of criminal sexual assault, in violation of section 12 — 13(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3)). It was alleged that sometime between January 1 and April 30, 1990, defendant had placed his penis in the mouth of his daughter, had placed his penis in his daughter’s vagina, and had placed his mouth on his daughter’s vagina. It was further alleged that his daughter was under 18 years of age when these acts were committed.

Defendant was represented by private counsel. On the second day of his trial, defendant withdrew his plea of not guilty and entered a plea of guilty on two of the counts. The third count was dismissed. Another criminal case pending against defendant was also dismissed. At the conclusion of his sentencing hearing, defendant was sentenced to 12 years’ imprisonment on each count, with the sentences to run consecutively. Defendant timely filed a motion to withdraw his guilty plea.

In the motion to withdraw, defendant alleged that (1) his sentence was excessive; (2) the State had failed to disclose a felony conviction of one of its witnesses prior to trial, which conviction might have been used to impeach the witness; and (3) his guilty plea was entered under circumstances which made him believe it would be impossible for him to receive a fair trial. Supporting affidavits were filed with the motion.

Defendant’s affidavit detailed circumstances affecting his decision to change his plea. He described how the assistant State’s Attorney, on the first day of trial, had attempted to make an offer of proof concerning defendant’s prior wrongdoing. After two unsuccessful attempts to properly make the offer, the trial judge adjourned the trial for the day and told the assistant State’s Attorney to have her witness present the following day for another attempt to make the offer of proof. When the witness was not present the next morning, the judge recessed the trial for an hour, saying as he left the courtroom, “You ladies will settle this case.” (Defense counsel was also a woman.) Defendant alleged that these events and the judge’s remarks led him to believe the judge was prejudiced against him and that he could not receive a fair trial. His affidavit further stated that his attorney indicated that the testimony of defendant’s sister, a potential State’s witness, would be damaging to his case if believed by the jury. He also said that prior to the sentencing hearing he and his attorney learned that his sister had an undisclosed felony conviction, which could have been used against her if she testified.

Defense counsel submitted her affidavit, stating she had received discovery answers from the State revealing that defendant’s sister had a prior misdemeanor theft conviction in another county. She had spoken with defendant’s sister and concluded that her testimony would be potentially damaging to defendant, and she advised defendant of this concern. On the day of defendant’s sentencing, she learned that the sister had a felony conviction. If that information had been available to her at the time of trial, it would have played a significant part in her conversations with defendant about whether he should proceed with trial or enter a plea of guilty.

Prior to the hearing on defendant’s motion, defense counsel filed a motion for leave to withdraw as counsel. In that motion, she alleged that she was a potential witness in connection with defendant’s motion to withdraw his guilty plea. A hearing was held on counsel’s motion. She indicated to the court that she believed her continued representation of defendant on his motion to withdraw would be a violation of Rule 3.7(a) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 3.7(a)). That rule provides, in relevant part, as follows:

“A lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer may be called as a witness on behalf of the client, except that the lawyer may undertake the employment and may testify:
(1) if the testimony will relate to an uncontested matter;
(2) if the testimony will relate to a matter of formality and the lawyer reasonably believes that no substantial evidence will be offered in opposition to the testimony;
(3) if the testimony will relate to the nature and value of legal services rendered in the case by the lawyer or the firm to the client; or
(4) as to any other matter, if refusal to accept or continue the employment would work a substantial hardship on the client.”

134 Ill. 2d R. 3.7(a).

Defense counsel said she was a witness to the statement made by the judge, which defendant alleged had a bearing on his decision to plead guilty. The trial judge’s statement was not on the record because it was made as the court reporter was leaving the courtroom. She believed her testimony would be necessary to establish the fact that the statement was made. The court denied the motion, based upon counsel’s representation that there were other witnesses who could testify as to the statement.

On May 13, 1991, defense counsel filed her certificate in compliance with Supreme Court Rule 604(d) (134 Bl. 2d R. 604(d)). That certificate stated defense counsel had consulted with defendant, both by mail and in person, to ascertain his contentions of error in the entry of his guilty plea and that she prepared the motion to withdraw the plea after her consultation with him. It further stated that defense counsel had reviewed the trial court file and was familiar with the facts of the case, having represented defendant since its inception. The certificate also stated that defense counsel was present at the entry of the plea of guilty. It did not state, as required by the rule, that defense counsel had examined the report of proceedings of the guilty plea.

On May 13, 1991, a hearing was held on defendant’s motion to withdraw. It is unnecessary to a decision on this appeal to recount the entire proceedings of this hearing. We note, however, that defendant testified the judge, on the second day of trial, made a comment to the effect that when court resumed after a recess, the case would be resolved. He interpreted this to mean he would not get a fair trial. He testified that after this statement was made, he decided to give up and plead guilty.

Defense counsel also testified about the judge’s comment. No explanation was offered as to why other alleged witnesses to the judge’s statement were not present to testify. Defense counsel testified that the assistant State’s Attorney made two unsuccessful attempts to tender an offer of proof on the first day of trial. The judge was rather upset about this, and he adjourned the trial and told the assistant State’s Attorney to have her witness prepared for yet another attempt the next morning. When the witness was not produced, the judge called a recess and, as he was leaving the courtroom, said, “[Y]ou ladies will resolve this case.” Counsel testified that after this statement was made, defendant decided there was no point in continuing to fight and decided to plead guilty.

Upon questioning by the trial court, counsel admitted that none of defendant’s fears about not receiving a fair trial were communicated to the court when he entered his plea. She also conceded the judge’s statement might have simply been due to the fumbling manner in which the assistant State’s Attorney handled the offer of proof. In fact, she testified this was her perception of the statement, but that defendant had gotten a different impression. Defendant’s motion to withdraw was denied by an order entered on June 26,1991. This appeal followed.

Defendant’s sole claim of error on appeal is that defense counsel did not properly comply with Rule 604(d) because she did not certify that she had examined the report of proceedings of defendant’s plea of guilty. Rule 604(d) provides, in relevant part, as follows:

“Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. When the motion is based on facts that do not appear of record it shall be supported by affidavit. The motion shall be presented promptly to the trial judge by whom the defendant was sentenced, and if that judge is then not sitting in the court in which the judgment was entered, then to the chief judge of the circuit, or to such other judge as the chief judge shall designate. The trial court shall then determine whether the defendant is represented by counsel, and if the defendant is indigent and desires counsel, the trial court shall appoint counsel. If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost. The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 134 Ill. 2d R. 604(d).

An examination of the record reveals that the proceedings of defendant’s guilty plea had not been transcribed prior to the hearing on defendant’s motion to withdraw that plea. The State does not dispute this fact. It argues, however, that only appointed counsel is required by the rule to examine the report of those proceedings and to certify to that examination. In making this argument, the State relies on the following sentence from Rule 604(d): “If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost.” (134 Ill. 2d R. 604(d).) According to the State, since the rule specifically requires that a transcript be ordered only for indigent defendants, private counsel would not be required to certify to a review of the report of the proceedings of the guilty plea.

The State has cited no case law to support this alleged double standard. The State’s interpretation, however, would defeat one of the purposes underlying this rule — to ensure that a defendant’s constitutional rights are protected. (People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221.) We do not believe that the supreme court intended to provide greater protection to indigent defendants than to defendants who are able to retain private counsel. Therefore, this argument must be rejected.

A transcript of the proceedings on defendant’s guilty plea is part of the record on appeal in this case. That transcript was prepared after the hearing on the motion to withdraw, and the trial court evidently examined it prior to denying defendant’s motion. A review of that transcript reveals no error occurred during defendant’s guilty-plea hearing. He was thoroughly admonished by the trial court of all rights he was giving up by changing his plea. Though given several opportunities by the court to speak during that hearing, defendant did not once indicate his plea was the product of fear or coercion, or that he did not understand the ramifications of his plea. We also note that defendant’s motion to withdraw was based solely upon matters outside the record of that plea hearing. Under such circumstances, there was a time when we might have found harmless error in defense counsel’s failure to examine the report of those proceedings and to so certify. However, under our supreme court’s decision in Wilk, we are constrained to hold this error was not harmless, and this case must be remanded to the trial court for further proceedings.

This is not the first time since Wilk that we have had cases before us wherein defense counsel in some way failed to fully comply with the affirmative duties required by Rule 604(d). For instance, we have recently addressed such issues in People v. Johnson (1990), 207 Ill. App. 3d 122, 565 N.E.2d 284, and People v. Hancock (1991), 208 Ill. App. 3d 1092, 567 N.E.2d 633. In both cases, defense counsel failed to review the report of the guilty-plea proceedings, and this court observed that a review of the record indicated each defendant’s motion to withdraw his guilty plea was without merit. However, as we stated in Hancock:

“ ‘[W]e are compelled to follow the supreme court’s directive in Wilk that Rule 604(d) contains rules which must be followed and are not merely suggestions. We no longer approach these cases in terms of whether the error in failing to comply with Rule 604(d) was harmless or prejudicial, but instead follow a rule of strict compliance.’ ” Hancock, 208 Ill. App. 3d at 1093, 567 N.E.2d at 634, quoting People v. Hayes (1990), 195 Ill. App. 3d 957, 961, 553 N.E.2d 30, 33.

Simply put, the requirements of this rule must be met. Neither excuses for noncompliance nor strained interpretations of the rule will be accepted. We might also observe that although this rule is one to be complied with by defense counsel, the trial courts can help ensure that compliance is met. In the instant case, it was apparent at the hearing on defendant’s motion to withdraw his plea that defense counsel had not examined the report of the guilty-plea proceedings. In response to a question from the State’s Attorney as to whether she remembered the trial court asking defendant if he had been coerced into entering a plea of guilty, defense counsel testified she believed the question had been asked, but that she would have to see a transcript of the hearing to be certain. At the conclusion of the hearing on defendant’s motion, defense counsel requested that a transcript of the guilty-plea proceedings be prepared to assist the trial court in making its ruling. The trial court responded that since defendant was not indigent, counsel could make her own arrangements with the court reporter to have the proceedings transcribed.

Defendant also asks us to order that different counsel be appointed to represent him upon remand. Defendant’s complaint with his present counsel stems from her testimony at the hearing on his motion to withdraw concerning the judge’s remark about settling the case. At the hearing on defendant’s motion to withdraw his plea, defense counsel testified, in response to a question from the trial court, that she believed the remark was prompted merely by the judge’s dissatisfaction with the assistant State’s Attorney’s mishandling of an offer of proof.

Defendant argues that by testifying in a manner contradictory to his position, defense counsel abandoned her representation of him and actually undermined the strength of his position. We do not agree that counsel abandoned her representation of defendant by testifying to this contested issue. Her testimony was ostensibly given on defendant’s behalf. She stressed in her testimony that defendant held a different view of the judge’s remark than she did. We also point out that a determination as to the voluntariness of a guilty plea is made with reference to a defendant’s state of mind, not his counsel’s. Nonetheless, the trial court should appoint new counsel for defendant on remand. Defense counsel’s testimony placed her in violation of Rule 3.7(a) of the Illinois Rules of Professional Conduct. In addition, her testimony had the apparent effect of undermining defendant’s confidence in her ability to effectively argue in favor of his motion to withdraw his plea. Under such circumstances, defendant is entitled to new counsel.

For the foregoing reasons, the judgment of the circuit court of Douglas County is vacated and the cause remanded for further proceedings. Upon remand, new counsel shall be appointed to represent defendant.

Vacated and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.