author: JUSTICE EGAN

text:
    VACOUNTESS MARLOW et al., Indiv. and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. AMERICAN SUZUKI MOTOR CORPORATION, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2648
    Opinion filed December 2,1991.

      Robert A. Holstein C. Corey, S. Berman, Thayer C. Torgerson, and Donald A. Horowitz, all of Holstein, Mack & Klein, of Chicago, for appellants.
    John J. Pappas and Debra K. Marcus, both of Pappas, Power & Marcus, and Edward M. Crane, James F. Martin, and Antonio D’Amico, all of Skadden, Arps, Slate, Meagher & Flom, both of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs individually and as representatives of a class sought a declaratory judgment that a motor vehicle manufactured by Suzuki Motor Companies and sold to 150,000 persons throughout the United States was defectively designed.

The plaintiffs were Natheree Marlow, Frank Forest and Heidi Gallegos, individually and as representatives of a class of all persons who purchased or leased or were or are owners or lessees of the Suzuki Samurai automobile; and Vacountess Marlow and Virginia Gallegos, individually and as representatives of a class of all persons who were injured during the operation of or while a passenger in a Suzuki Samurai automobile that rolled or flipped over or otherwise lost control due to manufacturing or design defects in the vehicle. Only Va-countess Marlow and Virginia Gallegos are involved in this appeal. The claims of Natheree Marlow, Frank Forest and Heidi Gallegos were voluntarily dismissed.

The defendants were American Suzuki Motor Corporation (American Suzuki), a California corporation, Suzuki Motor Companies, a Japanese corporation, the manufacturer of the Samurai automobile, Bauer Buick Company, a foreign corporation doing business in Illinois, and Ed Murphy Suzuki, an Illinois corporation. Only American Suzuki is involved in this appeal; the other defendants were dismissed on the plaintiffs’ motion.

The plaintiffs filed a five-count complaint with a jury demand, alleging that the Samurai automobile is defective in design or production in that it suddenly and unintendedly rolls over when the driver operates the vehicle at normal operating speeds and under normal driving conditions. The complaint alleged, on information and belief, that the defects have resulted in numerous auto accidents. Counts I through IV were brought by Natheree Marlow, Heidi Gallegos and Frank Forest. Count I alleged a violation of an implied warranty; count II alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.)) count III alleged fraud; and count IV alleged a breach of an express warranty. Count V was brought by Vacountess Marlow and Virginia Gallegos and requested a declaration pursuant to the declaratory judgment provision of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701) that the Suzuki Samurai is unreasonably dangerous as a result of design and manufacturing defect. Count V specifically recited that the plaintiffs were not “seeking a determination of liability” nor asking “for a determination of proximate cause of the numerous serious injuries involving individual members of the class.” Included in the relief sought under count V were a request to issue an order finding the Samurai defective in design and for the establishment of a “claims procedure for informal arbitration procedures *** to adjudicate the individual personal injury claims of the class members including the proximate cause and individual damages issued for each claim.”

The plaintiffs’ attorney had previously filed a class action suit on June 24, 1988, against American Suzuki, which in substance was identical to the allegations later made in counts I through IV of this action and sought identical relief. American Suzuki removed that case to the Federal court, along with four other virtually identical nationwide class actions that had been filed in the circuit court of Cook County at that time. While motions to remand those cases to the circuit court were pending, the plaintiffs’ attorney voluntarily dismissed that case. The four actions remaining in the Federal court were subsequently found to have been properly removed and were transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the Eastern District of Pennsylvania, where they were consolidated into multidistrict proceedings along with other actions that had been filed in the Pennsylvania, New Jersey and California Federal courts.

The plaintiffs filed this action while the multidistrict proceedings were still pending. The plaintiffs, however, named two Illinois automobile dealerships (Bauer and Murphy) as additional defendants. The defendants later contended that the two Illinois automobile dealerships were named to destroy citizenship diversity and to preclude removal of this action to the Federal court for consolidation into the multidistrict proceedings. Count V in the complaint before us had not been filed in the previous action which had been removed to the Federal court. American Suzuki moved to dismiss count V for failure to state a claim and to stay counts I through IV pending the outcome of the parallel multidistrict proceedings. The plaintiffs voluntarily dismissed their claim in the multidistrict proceedings. American Suzuki then moved to dismiss counts I through IV for failure to state a claim.

On February 14, 1990, the judge dismissed counts I through IV and granted the plaintiffs leave to amend on or before March 14, 1990. Count V was dismissed with leave to amend on or before February 28,1990. No action was taken for nearly five months.

The plaintiffs, without ever amending count V, asked the trial court for a final and appealable order dismissing count V and also moved to voluntarily dismiss counts I through IV. At the hearing on the plaintiffs’ motions on August 13, 1990, the plaintiffs’ attorney agreed to dismiss the Illinois resident car dealerships with prejudice. The trial judge then entered an order permitting the voluntary dismissal of counts I through IV without prejudice and dismissed count V with prejudice. The sole issue before us is whether count V pleaded proper allegations to support a declaratory judgment.

The plaintiffs have filed a motion to strike the defendant’s statement of facts and an appendix to the defendant’s brief on the ground that they contain matters outside the record. They also moved to strike part of the defendant’s brief on the ground that it constitutes an argument against class certification which, the plaintiffs contend, is not an issue.

On February 8, 1990, before the hearing on American Suzuki’s motion to dismiss, Virginia Gallegos, one of the plaintiffs, filed a separate common law tort action in the law division of the circuit court of Cook County seeking to recover for the personal injury she had allegedly sustained in the same accident that formed the basis of her request for relief in count V of this action.

On June 26, 1990, before a final order had been entered in this case, another nationwide class action (Connick case) was filed against American Suzuki in the circuit court of Cook County on behalf of the same Pennsylvania and New Jersey plaintiffs who had voluntarily discontinued their actions in the multidistrict proceedings. They were represented by the same attorneys who had filed the earlier actions in the circuit court of Cook County. That action reasserted the claims that had been pending in the multidistrict proceedings and included claims virtually identical to counts I through IV of the complaint in the case before us. American Suzuki moved to consolidate that action with this action. After the case before us was dismissed, the plaintiffs, Heidi Gallegos, Natheree Marlow and Frank Forest, filed a petition for leave to intervene in the Connick case.

Two days after the complaint in this case was dismissed with prejudice, Vacountess Marlow, another plaintiff in count V, also filed a separate common law tort action in the law division of the circuit court of Cook County seeking to recover for the same alleged personal injuries that formed the basis of her request for declaratory relief in count V of this action. The plaintiffs ask us to strike any reference in the defendant’s brief to the Connick class action and the common law actions brought by Virginia Gallegos and Vacountess Marlow. The defendant has asked us to take judicial notice of those other cases. We took the motions to strike with the case.

We disagree that the Connick action is outside the record in this case. It was referred to in the defendant’s objections to the motion for voluntary dismissal. The Gallegos and Marlow individual tort actions, however, were not in the record. As a general rule, an appellate court will not take judicial notice of a record in another court unless it is incorporated in the proceedings before it. Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 315 N.E.2d 215.

In Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159, the plaintiffs filed a complaint for a temporary restraining order which included a prayer for a finding of the existence of a partnership or joint venture between the parties and for a declaration that a constructive trust existed. The appellate court pointed out that the plaintiffs had filed a complaint at law against the defendant containing the same allegations and raising all the issues raised by the petition for a temporary restraining order. The court held that on that basis alone the trial judge would not have abused his discretion if he determined that the pending action at law was a more appropriate forum for the resolution of the issues raised in what was tantamount to a request for a declaratory judgment. Unlike the Krebs case, the common law action of Virginia Gallegos, although pending at the time of the hearing in this case, was not called to the attention of the judge, and the common law action of Vacountess Marlow was filed after the complaint in this case had been dismissed. It thus appears that those actions have run afoul of the rule. In our judgment, however, those actions are subject to an exception to the rule.

In Hazdra Homes, Inc. v. County of Du Page (1975), 27 Ill. App. 3d 685, 326 N.E.2d 561, the plaintiff filed a complaint for a declaratory judgment seeking a declaration that a zoning ordinance was void as to the plaintiff’s property. During oral argument the attention of the appellate court was called to the existence of two other lawsuits involving the subject property which had been filed after the filing of the appeal. The appellate court held that one of the lawsuits was relevant to the case before it and, over objection, judicially noticed that case. The court held that the rule should not be applied “to produce absurd results or injustice.” (27 Ill. App. 3d at 687.) Like the Hazdra court, we cannot ignore what is relevant and is now before us. Like the Krebs court, we believe that the common law actions are relevant on the question of whether the trial judge properly exercised her discretion, and we judicially notice them. The Connick class action concerns only counts I through IV, which are not in issue here. That case is not relevant, and we see no reason to take judicial notice of it, even though it is in the record. The motion to strike references to the Con-nick action is allowed; the motion to strike any reference to the common law actions brought by the plaintiffs is denied.

The defendant argues that count V is “in reality, a thinly disguised attempt to circumvent the statutory requirements for maintaining a class action.” The plaintiffs have moved to strike that part of the defendant’s brief and argue that the issue of class certification is not relevant to the question of whether a declaratory judgment may be entered here. We disagree. For reasons to be explained later, we conclude that whether this case may proceed as a class action is a question, to use the defendant’s language in another context, “inextricably intertwined” with the question of whether the case may proceed as a declaratory judgment. In addition, we note that the plaintiffs themselves tell us that the “declaratory judgment action stands in the same position as the class action device.” The motion to strike part of the defendant’s brief is denied.

Before beginning an analysis of the complaint before us, it is appropriate to recognize some principles of law applicable to declaratory judgment actions. The granting or denying of declaratory relief rests within the sound discretion of the trial court, and the complaining party on appeal must show affirmatively an abuse of discretion. (Charleston National Bank v. Muller (1974), 16 Ill. App. 3d 380, 306 N.E.2d 358.) The declaratory judgment statute was not designed to supplant other remedies. (Albright v. Phelan (1971), 2 Ill. App. 3d 142, 276 N.E.2d 1.) The mere existence of another remedy does not require dismissal, but it may constitute sufficient grounds for a dismissal in the trial court’s discretion. (Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159.) Declaratory judgment should not be granted unless the court can by such judgment dispose of the controversy between the parties. Farmers Insurance Group v. Harris (1972), 4 Ill. App. 3d 372, 279 N.E.2d 789.

Since the case was dismissed on motion, and it is our task to determine if the trial judge abused her discretion, we should attempt to examine the record, as best we can, through the eyes of the trial judge. To begin, she was confronted with a contradiction between the identity of the class and the declaration sought by the complaint. The plaintiffs are identified as individuals and as representatives of a class “who were injured during the operation of or while a passenger in a Suzuki Samurai automobile that rolled or flipped over or otherwise lost control due to manufacturing or design defects in said vehicle.” (Emphasis added.) Included in the “class allegations” of the complaint is the statement that the “central question in each class member’s claim is whether the Suzuki Samurai has a common design or production defect which causes them to suddenly and unintendedly roll over when a driver attempts to avoid an accident, avoid an obstacle in the roadway, or makes any sudden maneuver of the vehicle under normal traffic conditions.” (Emphasis added.) The complaint alleges that the plaintiffs, Vacountess Marlow and Virginia Gallegos, were operators of Suzuki Samurais which “became unstable and rolled over, causing plaintiffs to be injured.” (Emphasis added.) The complaint also alleges “[o]n information and belief, the above described common defects have resulted in numerous auto accidents.” (Emphasis added.)

It is clear that in the class allegations of the complaint the plaintiffs maintained that they and the members of their class were wrongfully injured because of the defect in the design of the Samurai vehicle. On the other hand, count V specifically recited that the plaintiffs were not “seeking a determination of liability” nor asking “for a determination of proximate cause” of the injuries suffered by the members of the class, including the plaintiffs.

It is inescapable that someone must determine from the class allegations that the plaintiffs were injured because of a defective design. For if the plaintiffs were not injured due to the defective design, they have no cause of action, and the class action must fall since the plaintiffs could not then properly represent the class. Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.

It is also inescapable that the obligation of making that determination devolves upon the judge. Regardless of whether the determination is to be made after a trial or at a certification hearing, the judge must decide a question of fact — causation—which the plaintiffs allege is to be decided by separate juries throughout the nation in actions brought by the individual class members. On that basis alone, we could uphold the trial judge’s discretion in refusing to put herself in the incongruous position of deciding a fact which could be contradictory to the finding of fact made by a jury subsequently.

There are other reasons for upholding the judge’s exercise of discretion. The statute provides that the court shall refuse to enter a declaratory judgment if it appears that the judgment “would not terminate the controversy or some part thereof, giving rise to the proceeding.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701.) The defendant argues that declaratory relief would not end the controversy because the issues of causation and damages would remain unresolved; the plaintiffs respond that the requirement of the act will be satisfied by a declaration concerning defective design which is “some part” of the controversy. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a).

The plaintiffs cite no cases in support of their position but rely solely on the language of the act itself. The application of the phrase “some part” has been described thus:

“The phrase, ‘or some part thereof,’ in the Illinois statute recognizes the fact that litigation may be many-sided and the administration of justice is advanced if the narrowing and limiting conception of singleness implied in the categorical use of such terms as ‘controversy’ and ‘transaction’ is avoided. It is not intended by the phrase to permit piecemeal litigation. *** The phrase ‘or some part thereof’ is in harmony with other provisions of the Civil Practice Law which encourage joinder of claims and the disposition in one suit of as many existing disputes between the parties as is possible commensurate with the due and proper administration of justice.” (Ill. Ann. Stat., ch. 110, par. 2 — 701, Historical & Practice Notes, at 13 (Smith-Hurd 1989).)

Our reading of that language leads to the conclusion that the phrase, “some part” of the controversy, does not mean an element of a single claim, but, rather, it means an entire claim which is part of more than one claim.

In Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159, previously discussed in another context, the plaintiffs filed an action for injunction and later an amendment which the appellate court construed to be a prayer for declaratory relief which sought a finding of the existence of a partnership or joint venture between the plaintiffs and the defendant. The plaintiffs had previously filed a complaint at law containing the same allegations and raising all the issues raised in their petition for a temporary restraining order. The appellate court upheld the dismissal of the claim for declaratory relief on the ground that any finding by the trial court that the parties were partners or joint venturers would still leave the parties in litigation over such terms of the partnership agreement and whether or not there had been a breach of those terms. The court also held, as we do here, that the existence of another available remedy supported the exercise of the court’s discretion in dismissing the complaint. We believe the reasoning of the appellate court in Krebs is applicable here.

Similarly, although an opinion of the Federal district court is not binding upon us, we find persuasive the reasoning of the district court in Sarafin v. Sears, Roebuck & Co. (N.D. Ill. 1978), 446 F. Supp. 611. In that case the plaintiff filed a declaratory judgment complaint as a class action. In dismissing the complaint, the district judge said this:

“Plaintiff here is not attempting to settle a controversy before it ripens into a legal liability, nor is she trying to terminate litigation. On the contrary, the declaratory relief she requests would operate as a prelude to or preparation for a myriad of individual damage claims. Courts have declined to entertain actions for a declaratory judgment where the declaration would result in piecemeal litigation or would try particular issues without settling the entire controversy. [Citations.] It is not necessary to put the entire dispute to rest, but the issues must be separable so that an important and autonomous part of the controversy can be finalized.” (Emphasis added.) (446 F. Supp. at 615.)

We conclude, therefore, that declaratory relief in this case would result in impermissible piecemeal litigation.

In addition, we fail to see why a declaratory judgment action may be maintained if brought in the guise of a class action but may not be maintained if brought as an individual complaint. The class should be entitled to no greater rights than the individual plaintiffs. Significantly, this case could have been dismissed against the individual plaintiffs because the declaration that the design of the Samurai was defective would not have ended the controversy and for the additional reason that there was another traditional remedy available as evidenced by the common law actions the plaintiffs filed. As previously noted, dismissal of the plaintiffs individually would require dismissal of the entire complaint on behalf of any class. Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.

The defendant has pointed out that the legal definition of product defect varies substantially from State to State. (See Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence, 33 Vand. L. Rev. 593, 602-39 (1980).) It has done so to support its argument that declaratory relief in this case would deprive both American Suzuki and the putative class members of due process.

Illinois courts generally rely upon the consumer-expectation test of section 402A of the Restatement of Torts. (Restatement (Second) of Torts §402A (1965); Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) Some courts employ a strict risk-utility balancing test. (See, e.g., Acord v. General Motors Corp. (Tex. 1984), 669 S.W.2d 111.) Other States instruct juries to balance several enumerated factors. (Rix v. General Motors Corp. (1986), 222 Mont. 318, 723 P.2d 195.) Others provide the jury with a choice of tests to apply. (Bernal v. Richard Wolf Medical Instruments Corp. (1990), 221 Cal. App. 3d 1326, 272 Cal. Rptr. 41.) States also differ on evidence considered admissible to prove negligent or unreasonably dangerous design. For example, some courts will allow evidence of subsequent design changes for limited purposes. (See, e.g., Collins v. Interroyal Corp. (1984), 126 Ill. App. 3d 244, 466 N.E.2d 1191.) Others prohibit evidence of subsequent remedial measures in products liability actions. See, e.g., Orkin Exterminating Co. v. Dawn Food Products (1988), 186 Ga. App. 201, 366 S.E.2d 792.

The plaintiffs seek to minimize any problem created by the possibility that the claims of class members in other States may require resolution under substantive law which differs from that of Illinois. They argue that the judge could create a subclass for each such differing jurisdiction. In support the plaintiffs have cited Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478, and Martin v. Heinold Commodities, Inc. (1987), 117 Ill. 2d 67, 510 N.E.2d 840.

In Miner, the principal issue was whether due process precluded an Illinois plaintiff from maintaining a multistate class action in Illinois. The plaintiffs, residents of Illinois, brought suit on behalf of a national class. The trial judge upheld the class action on behalf of all Illinois residents but denied it as to residents of other States. The supreme court held that there was no denial of due process if adequate notice was given to nonresidents and if the plaintiff provided adequate representation. The defendant also argued that there was no predominating question of law and that “the individual questions of law relating to each of the 50 States [was] the predominant focus of the action.” (Miner, 87 Ill. 2d at 16.) The supreme court held that maintenance of a class action did not require a common question of both law and fact and that, since a common question of fact did exist, the issue was reduced to whether that common question of fact “predominated] over the individual questions of law inherent in the application of the laws of the 50 States.” (87 Ill. 2d at 17.) The case was remanded to the circuit court to determine whether it would be feasible to subdivide the class. Resolution of the question was “dependent upon plaintiff's ability to establish that the differing laws of the States are subject to grouping in a manageable number of subclasses.” 87 Ill. 2d at 18.

In Martin the trial judge granted the plaintiff’s motion to certify the cause as a class action and subsequently granted the plaintiff’s motion for partial summary judgment. The appellate court reversed partial summary judgment, citing Miner, but remanded the case to the trial court for the purpose of conducting a hearing to determine whether the common law in the States where nonresident class members resided was substantially similar to Illinois law or whether there were differing laws of the other States which were subject to grouping in a manageable number of subclasses. Martin v. Heinold Commodities, Inc. (1985), 139 Ill. App. 3d 1049, 487 N.E.2d 1098.

The supreme court affirmed the order of the appellate court reversing summary judgment but reversed the order remanding the case to the trial court for a new hearing on the question of certification. The court held that remand was unnecessary because the court concluded that the substantive law of Illinois could be applied to resolve the factual issues common to the entire class. The plaintiffs do not claim here that the substantive law of Illinois would be applicable to all claims made by nonresidents of Illinois.

The trial judge was not asked to and did not conduct a certification hearing in this case. Consequently, we are unable to determine from the record before us whether the creation of subclasses would lead to a denial of due process to the absent members of the class and, therefore, we refrain from ruling on the defendant’s due process argument with respect to a conflict-of-laws problem. We observe, in passing, that in both Miner and Martin no issue was made of the defendant’s standing to argue that the right to due process of nonresident plaintiffs would be violated by the maintenance of a multistate class action. We make that observation because the plaintiffs maintain here that the defendant has no standing to raise the argument that due process is denied to nonresident plaintiffs. Whether the defendant has such standing is not controlling. In passing on class certification it is the responsibility of the trial judge to insure that the due process rights of nonresident class members are protected.

Our abstention from passing on the due process aspect of any possible conflict-of-laws problem does not mean that we must ignore the difficulties facing a trial judge in resolving such a problem. It is certainly a factor to be considered by the judge in the exercise of discretion whether to entertain a declaratory judgment action. If the case proceeded with subclasses it would be the obligation of the plaintiffs, Illinois residents subject to Illinois law, to research the law in each State and to provide the court with appropriate jury instructions of the law governing defective designs for several subclasses. The court, of course, has its “own obligation to act as a guardian on behalf of the absent members of a class.” (Ill. Ann. Stat., ch. 110, par. 2 — 803, Historical & Practice Notes, at 125 (Smith-Hurd 1983).) Therefore, the duty to properly instruct the jury may devolve upon the judge. The same judicial duty is applicable to the due process requirement of notice to absent members of the class.

The defendant has pointed out the ramifications of permitting the plaintiffs to proceed in this case. By way of illustration, the defendant maintains that a resident of Hawaii would be prevented from pm-suing a claim against American Suzuki based on injuries sustained in his home State because the plaintiffs had failed to demonstrate that the Samurai was defective to the satisfaction of a jury in the circuit court of Cook County. The defendant also argues that the plaintiffs’ failure or success would interfere with cases that may already be pending in other forums and would also affect the potential claims of persons who have not yet filed actions or sustained injuries. The defendant maintains that those who have not yet filed actions or sustained injuries could not possibly be provided with notice and the opportunity to reject the plaintiffs’ proposed representation of their interests.

The plaintiffs respond that the absent members are given the procedural protection which includes an opportunity to “opt out” of the litigation by the reception of proper notice. That notice would allow class members to exercise their own discretion in deciding whether to allow the plaintiff class representatives to pursue litigation on their behalf.

The plaintiffs concede that due process requires that class members in this case be given individual notice. (Cf. Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140.) The plaintiffs, however, do not explain what form of notice would be made, who would pay for it, or how individual class members could be identified. We can understand that discovery procedures might ascertain the existence of those who had filed suit or had made claims against American Suzuki, but the identification of those who have suffered injury but have not yet made claims is quite another matter. Obviously, notice to all class members “who were injured during the operation of or while a passenger in a Suzuki Samurai automobile *** due to manufacturing or design defects” in the Samurai would be, to understate, a monumental task. Therefore, the judge would be obligated not only to insure that the jury would be instructed properly, but to fashion an appropriate notice to the members of the class. To determine in one trial whether the Samurai vehicle was defectively designed is indeed a praiseworthy end, but not an end to be achieved by saddling a court and a jury with a procedural and substantive law nightmare.

We have discussed what a trial judge could perceive as detriments in the maintenance of a class action seeking an adjudication of but one element of a tort action. We now turn to the benefit claimed by the plaintiffs. They maintain that a declaratory judgment that the Samurai design was or was not defective would save precious judicial time and effort in the future in that it would remove that issue from all other tort actions between injured parties and American Suzuki. We suspect that the plaintiffs are overly sanguine. Still to be resolved by separate juries would be the troubling issues of causation and damages, if the verdict is for the plaintiffs. And if the verdict is for the defendant, we have grave doubts that the injured class members spread throughout the nation would supinely accept any judgment entered in the circuit court of Cook County in favor of American Suzuki’s design. We also feel confident that the full faith and credit provision of the United States Constitution would be sorely tested as a vast number of judges throughout the land would examine such a judgment here with a microscopic eye to insure that the judgment was not acquired through collusion between American Suzuki and the plaintiffs, that the plaintiffs adequately represented the class and that notice met the strict requirements of due process. Finally, we note that the plaintiffs’ concession that any declaration in this case would not be binding upon future persons injured as a result of the design defect considerably weakens the plaintiffs’ claim that the declaration here would end the controversy insofar as the question of a design defect is concerned. We conclude, therefore, that the trial judge did not abuse her discretion in dismissing count V.

In view of our holding, it is unnecessary to consider the defendant’s additional argument that the granting of declaratory relief in this case would be a violation of American Suzuki’s constitutional right to trial by jury in that it would involve the use of separate juries in determining American Suzuki’s liability.

The plaintiffs maintain that the declaratory judgment action stands in the same position as the class action device and the doctrine of nonmutual offensive collateral estoppel, which they define as follows:

“Non-mutual offensive collateral estoppel is a device by which plaintiffs can benefit from earlier findings against the defendants with whom they are now litigating, even though plaintiffs were not parties to the earlier suit or suits. Plaintiffs can estop the defendants from forcing the relitigation of issues on which the defendants were previously unsuccessful if the plaintiffs can show 1) that the issues in the two suits are identical and that the fact-finder in the earlier proceeding had to have found against defendants on that issue and 2) that defendants had a full and fair opportunity to contest the earlier decision.”

Reduced to its essentials, the rule means that a finding against the defendant may collaterally estop the defendant from relitigating an issue in a case brought by another plaintiff, but that other plaintiff would not be collaterally estopped from relitigating an issue which has been decided in the defendant’s favor. The principal cases upon which the plaintiffs rely are Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 58 L. Ed. 2d 552, 99 S. Ct. 645, and Ezagui v. Dow Chemical Corp. (2d Cir. 1979), 598 F.2d 727. Whether the rule will be applied is subject to the trial court’s discretion. Parklane Hosiery, 439 U.S. at 331, 58 L. Ed. 2d at 562, 99 S. Ct. at 651-52.

We are at a loss to see how the rule could be applicable here, or why the plaintiffs cite it, because the plaintiffs concede that in the case before us a finding in favor of the defendant would be res judicata as to all other members of the class. Moreover, there is authority against the application of the rule in this case.

In Goodson v. McDonough Power Equipment, Inc. (1983), 2 Ohio St. 3d 193, 443 N.E.2d 978, the supreme court of Ohio expressly held that nonmutual collateral estoppel may not be used to preclude the re-litigation of the issue of defective design relating to mass-produced products when the injuries arise out of distinct underlying incidents. The court pointed out that the time the trial court must expend in deciding whether the identical issue was actually decided in the previous case offsets the time sought to be saved in the name of judicial economy. The court added the following observation:

“The danger is multiplied in cases such as this one where the issue determined in the first litigation relates to a product’s design. This is due to the nature of the questions and the potentially broad impact of the resolution. These questions are very technical, requiring expert testimony to bring out the specifics. Also, a jury’s ultimate determination requires delicate balancing between the design decisions actually made by the manufacturer and those which are postulated as feasible within the industry at any given point in time. Thus, the determination made by a jury in any particular case will ofttimes not be free from doubt.
Just as the risk of an erroneous determination is increased by the complex nature of design issues, the potential impact of such a decision would be unfairly broadened by the offensive application of nonmutual collateral estoppel. This could result in a single jury, sitting in review of certain limited facts, entering a verdict which would establish safety standards for a given product for the entire country. It would not be prudent to raise a decision made by one jury in the context of one set of facts to the standard under which all subsequent cases involving separate underlying factual circumstances are judged. See, e.g., Weinberger, Collateral Estoppel and the Mass Produced Product: A Proposal, 15 New Eng. L. Rev. 1 (1979).” (Emphasis added.) 2 Ohio St. 3d at 203, 443 N.E.2d at 987.

The plaintiffs also argue that courts have already allowed class plaintiffs to benefit from the declaratory judgment act in complex court litigation and refer to Gabel v. Hughes Air Corp. (C.D. Cal. 1972), 350 F. Supp. 624, aff’d in part & rev’d in part on other grounds (9th Cir. 1973), 557 E2d 759. We agree with the defendant that Gabel is not applicable here. Gabel involved one occurrence, the collision of two airplanes, in which 50 persons were killed. In upholding declaratory judgment, the district court emphasized that “[o]ne unitary set of facts will determine the cause of the crash and the extent of the liability therefore of the United States and of the carrier Air West and of the defendant [pilot].” (350 F. Supp. at 628.) In the case before us there is no “unitary set of facts” which will determine the cause of each of the separate injuries of the members of the class.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLES GAS LIGHT AND COKE COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION, Respondent-Appellee.
    First District (6th Division)
    No. 1—91—1507
    Opinion filed December 2,1991.

      James Hinchliff, Gerard T. Fox, Matthew A. Greene, and Marianne S. Grammer, all of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (G. Darryl Reed, Special Assistant Attorney General, of Chicago, of counsel), for respondent.
    Timothy W. Kirk, of Peoria, for amicus curiae.

   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

The Peoples Gas Light and Coke Company (Peoples Gas) petitions this court to review an order entered by the Illinois Commerce Commission (Commission) that the complainant, Christine Perkins, was not the customer of record from February 1984 to May 1985 and, therefore, could not be held responsible for the unpaid gas service. The issue raised by Peoples Gas on appeal is whether the Illinois Commerce Commission has jurisdiction to determine Peoples Gas’ rights as a creditor under section 15(a)(1) of the Rights of Married Women Act (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1)) (FEA).

On August 13, 1990, the complainant, Christine Perkins, filed a complaint with the Commission alleging that Peoples Gas improperly held her responsible for unpaid gas service in the amount of $4,200 which was provided to her residence, the service address, from February 1984 until January 1987. A hearing was held before a hearing examiner during which certain facts were established.

The complainant married Maurice Perkins in 1967. In February 1984, they purchased and moved into the residence at issue. The title to the property was in both names, but the Peoples Gas account was established only in Maurice Perkins’ name. The account was delinquent from the time it was first opened until the gas service was turned off on May 29, 1985. At that time there was an outstanding balance in the account of $3,286.82. Peoples Gas attempted to collect the unpaid amount from Maurice Perkins by filing suit against him on June 30, 1986. However, Peoples Gas was only able to collect $574.38 through garnishment of his wages before Maurice Perkins quit his job and moved. With the payment of the above amount, there was still an outstanding balance of $2,566.32.

In January 1987, Peoples Gas determined that there had been unauthorized gas usage since the time the gas was turned off in May 1985, and the service to the main line was discontinued to prevent any further unauthorized use. In November 1987, Peoples Gas sent a bill in the amount of $1,337.10 to the “occupants” of the service address for the unauthorized gas usage. This bill remained unpaid until October 1989, when the complainant applied for gas service in her name. At that time there was an outstanding balance of $4,318.34 on the account for unpaid gas service. This amount included what Peoples Gas had been unable to collect from Mr. Perkins, the amount for the unauthorized gas usage, and delinquent payment charges. The complainant paid the total outstanding balance on the account, and service was restored with an account in her name.

The Commission entered an order denying the complaint in part and granting it in part. The Commission found that the complainant was responsible for the payment of unauthorized gas service from 1985 to 1987, but that she was not responsible for unpaid service from February 1984 through May 1985, because her husband was the only customer of record during that period. The Commission also refused to address the issue of Peoples Gas’ rights as a creditor under the FEA, stating that “the Family Expense Statute creates a right to sue in the civil courts, and it is beyond our jurisdiction to determine a customer’s liability under that Act.” Peoples Gas then filed a petition for rehearing which was denied.

Peoples Gas first contends that the Commission’s order that it did not have jurisdiction to determine its rights as a creditor under the FEA must be reversed in part because it violates Illinois law. Peoples Gas claims that under the FEA it has a right to look to the complainant for the payment of her husband’s gas bill during the relevant time period. The FEA provides:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1).)

Under this statute, a debtor’s spouse can be held liable for a debtor’s bills if a family “in fact” existed at the time of the expenditures (see Schlesinger v. Keifer (1889), 30 Ill. App. 253, 257), and the expenditures were incurred for a family expense. A family expense is defined as one which contributes to the welfare of the family and benefits or maintains its integrity. (Carson Pirie Scott & Co. v. Hyde (1968), 39 Ill. 2d 433, 436, 235 N.E.2d 643; White v. Neeland (1983), 114 Ill. App. 3d 174, 175-76, 448 N.E.2d 649.) The parties do not dispute the fact that a family “in fact” did exist in this case and that the provision of gas service was an expenditure which benefited the family. Thus, under the FEA, Peoples Gas could look to the complainant for the payment of gas service from February 1984 until May 1985, even though Maurice Perkins was the customer of record.

However, in its order the Commission reached a contrary conclusion based on the application of its own procedural rule, 83 Ill. Adm. Code §280.50 (1985) (Procedures Rule), rather than the FEA. This rule provides that a utility company may refuse to provide service to an applicant who has failed to pay for past service furnished to him or her by the utility company unless, at the option of the utility company, the applicant pays the past-due bills. The Commission determined that under this rule it was improper for Peoples Gas to make the provision of service to the complainant contingent on her payment of the past-due gas bills because she was never billed for service and therefore never failed to pay any past-due bills. The Commission further noted that the complainant was not the customer of record and did not assume any obligation to pay for service. The Commission then concluded that it only had jurisdiction to determine whether the complainant could properly be billed for the outstanding gas bills under the Public Utilities Act “and the rules promulgated thereunder” and that any claim that Peoples Gas might have against the complainant under the FEA was a court action which was outside the jurisdiction of the Commission.

The Commission derives its power and authority from the the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 — 101 et seq.). (See also Illinois Power Co. v. Illinois Commerce Comm’n (1986), 111 Ill. 2d 505, 510, 490 N.E.2d 1255.) Section 4-201 of the Act provides in relevant part:

“It is hereby made the duty of the Commission to see that the provisions of the Constitution and statutes of this State affecting public utilities, the enforcement of which is not specifically vested in some other officer or tribunal, are enforced and obeyed ***.” (Ill. Rev. Stat. 1989, ch. lll2/3, par. 4— 201.)

Because the FEA is a State statute which clearly affects Peoples Gas’ ability to collect revenue for its service, the Commission was authorized by this provision to determine Peoples Gas’ right to bill the complainant for the outstanding gas bills at issue. Furthermore, even if the Commission’s interpretation of its Procedures Rule was correct, where an administrative rule conflicts with a statute, the administrative rule is invalid. Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 302, 411 N.E.2d 973; National Account Systems, Inc. v. Anderson (1980), 82 Ill. App. 3d 233, 239, 402 N.E.2d 656.

The Commission raises several arguments in support of its position which are likewise without merit. The Commission initially argues that this court should defer to the Commission’s interpretation of the Public Utilities Act and of its rules and regulations. However, the Commission’s determinations are not presumed to be correct nor are courts bound by them where there are no factual disputes and the only issues are legal ones. (Illinois Independent Telephone Association v. Illinois Commerce Comm’n (1988), 183 Ill. App. 3d 220, 228-29, 539 N.E.2d 717.) In this case, the determination of the scope of the Commission’s power is a legal issue. Thus, we are not bound to accept the Commission’s conclusions regarding its jurisdiction. (Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283, 286, 488 N.E.2d 639.) Although courts may also defer to an agency’s interpretation of an ambiguous statute in order to determine the legislative intent (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153, 447 N.E.2d 296), we find no ambiguity in section 4 — 201 of the Public Utilities Act, which provides the Commission with the jurisdiction at issue.

The Commission also argues that under the Public Utilities Act, its jurisdiction does not extend to matters which are properly the subject of civil suits, citing Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 29 N.E.2d 1014. However, this argument is misplaced where the relief Peoples Gas sought was not damages but only payment for the service it provided.

Finally, we note that while the Commission maintained that it did not have jurisdiction to determine Peoples Gas’ rights under the FEA, it did just that when it ordered Peoples Gas to credit the complainant’s account for the amount equal to the outstanding bills from February 1984 until May 1985. For the reasons discussed above, we conclude that this portion of the Commission’s order was a violation of the FEA. Section 10 — 201(e) of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 10 — 201(e)(iv)(C)) provides that the Commission’s rule, regulation, order or decision can be reversed in whole or in part where it violates the State or Federal constitution or laws.

For the aforementioned reasons, the order of the Illinois Commerce Commission is reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Order reversed and remanded.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF JOAN S. OLDHAM, Petitioner-Appellee, and ELIZABETH OLDHAM, Ex’r of the Estate of J. Rufus Oldham, Respondent-Appellant.
    First District (2nd Division)
    Nos. 1—89—0965,1—89—3527 cons.
    Opinion filed December 3,1991.

      Schiller, Du Canto & Fleck, Ltd., of Chicago, and Snyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellant.
    Altheimer & Gray, of Chicago (John K. Chatz, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This is an appeal by respondent, Elizabeth Oldham (Elizabeth), widow of decedent J. Rufus Oldham and executor of his estate. Before his marriage to Elizabeth, Rufus was married to petitioner, Joan Oldham (Joan). During this latter marriage Rufus and Joan adopted two children, Christopher and Jodie. Rufus and Joan were divorced after which Rufus married Elizabeth. By the time this action was filed, the children were adults.

Two Cook County circuit court orders allowed Joan’s claim for Christopher and Jodie’s college expenses made against the estate. Elizabeth questions whether (1) the Cook County circuit court had jurisdiction to enter the order for college expenses of adult children, without the existence of an intervening order; (2) the responsibility for college expenses was governed by a property settlement incorporated in the divorce judgment or the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.); (3) DeVry Institute of Technology (DeVry), chosen by the children, is a college or university within the meaning of the settlement agreement; and (4) Civil Practice Law section 2 — 1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) (section 2 — 1401) relief was properly granted to Joan.

Rufus and Joan’s divorce decree, entered by the Cook County circuit court domestic relations division on August 20, 1968, incorporated a dissolution agreement covering custody, support payments, and property distribution. The clause at issue here provides:

"Husband covenants and agrees that, provided he is then financially able so to do, and further provided that the minor children aforesaid respectively evince an interest in and scholastic aptitude for the same, he will pay all necessary and reasonable expense incident to an education at the college or university level for each of the aforesaid minor children, which said obligation shall survive the attainment by the said children of the age of majority if the same shall be necessary to provide completely such education.”

Rufus’ mother, Irene, died in 1984, leaving a substantial estate to Rufus. Until then, he was a $27,000-per-year accountant. Rufus died 10 days after his mother, on April 6, 1984. Rufus’ estate was probated in Lake County, Illinois, and Elizabeth, his surviving spouse, was named executor. Joan filed claims against the estate for tuition expenses, inter alia, in the Lake County circuit court, probate division on February 28, 1986. Elizabeth’s motions to dismiss these claims were denied. While these claims were pending, Joan filed an enforcement action in the domestic relations division of the Cook County circuit court on April 29, 1986. Joan then filed a verified petition to substitute Elizabeth, as executor of Rufus’ estate, as a party, seeking an order to enforce the divorce decree settlement agreement requiring payment of Jodie and Christopher’s educational expenses and insurance proceeds. Elizabeth attempted to have the petition dismissed, and Joan filed an amended petition on April 2, 1987.

Following a bench trial, the Cook County circuit court, on July 15, 1987, entered an order allowing the claim for college expenses (sometimes the July 15 order), and directing the executor to pay the reasonable and necessary expenses incident to Jodie Oldham attending Western Illinois University or a comparable college or university on a semester-by-semester basis; and incident to Christopher Oldham attending Oakton Community College or a comparable college or university on semester-by-semester basis. Payment was made conditional upon proof of the children’s acceptance, good standing, and maintenance of a “C” average. Elizabeth sought reconsideration of the order, arguing, inter alia, that the petition failed to state a cause of action because support payment actions do not survive the death of a spouse. On January 5, 1988, the parties agreed to an order wherein the motion to reconsider was withdrawn.

Following the January 5 action, Joan sought to have the educational expense claim recognized by the Probate Division of the Lake County circuit court on January 20, 1988. Joan’s emergency motion to advance funds, filed March 1, 1988, based upon the July 15 order was refused, the court finding that the enrollment of the Oldham children at DeVry did not constitute a college or university as contemplated, by the July 15 order. The Lake County court also found that Joan failed to submit to the executor proof regarding educational expenses, grades, and other items required by the July 15 order.

Joan filed an emergency motion in the Cook County circuit court on March 8, 1988, seeking to clarify the July 15, 1987, order. In response, Elizabeth moved for involuntary dismissal, asserting that the July 15 order was final and that the Cook County circuit court lacked jurisdiction to hear the motion. On March 30, 1988, the Cook County circuit court granted Elizabeth’s motion. Joan then moved for reconsideration of the dismissal, citing section 2 — 1401, alleging due diligence and a meritorious claim. The circuit court of Cook County allowed her motion and scheduled a hearing on the matter.

At hearings on the petition, which began on March 28, 1988, Dr. Leroy Sullivan, DeVry’s dean of academic affairs and chief academic officer, testified that DeVry offers an associate’s degree, a baccalaureate, and a master’s degree. The baccalaureate of science is awarded in engineering, electronics technology, computer information systems, business operations, and accounting. DeVry is accredited by the North Central Accrediting Region, and is approved by the Illinois State Board of Higher Education. Sullivan stated that the business operations program was “akin” to a “bachelor’s [sic] in business administration with a computer applications orientation.” DeVry students are expected to maintain a 2.0 grade point average. The program is 132 semester hours in length and contains “traditional” college courses including “the liberal arts components of an academic program.” The difference between DeVry’s program and the more “traditional” bachelor’s degree in business administration is that the traditional approach focuses on theory and research more than practical applications. As compared to Oakton Community College (Oakton), Sullivan stated that Oakton “does not offer the level or scope of programming that DeVry does” and that DeVry’s curriculum is “superior” to Oakton’s. In comparing DeVry with Western Illinois University (Western), Sullivan averred that the business operations program at DeVry was “comparable” to a similar program at Western.

Jodie Oldham testified that she attended Oakton following high school, from 1982 through 1986 or 1987. During that time, she was accepted for admission at both Western and Southern Illinois University, but did not attend any classes at either institution. In January 1988, she began her study at DeVry, where she is currently pursuing her bachelor’s degree, concentrated in business operations and management. Her grade point average is 2.10, and she is currently carrying six classes. She attends class daily, except on Wednesdays, and also holds two jobs. Both jobs require weekend work schedules and hours on Wednesday. Jodie received a student loan; however, her account at DeVry was $500 in arrears.

Following graduation from Glenbrook North High School in 1980, Christopher Oldham enrolled at Oakton and received passing grades in all but two classes. In November 1987, he left Oakton and started at DeVry, where he, too, is studying business operations. He is currently taking five courses and three labs. Christopher met some of his financial obligation by securing a guaranteed student loan and by paying the rest from his own earnings. He is employed by Evanston Hospital and works weekends.

Elizabeth presented the testimony of Dr. Steven Crow, deputy director of the Commission of Institutions on Higher Education, North Central Association of Colleges and Schools. He stated the American Assembly of Collegiate Schools of Business was the only agency that accredits business programs at the undergraduate level, but DeVry is not so accredited.

Elizabeth’s motion to dismiss the petition, raising questions as to whether the petition adequately met the statutory requirements of section 2 — 1401, was denied on July 19, 1988. On January 12, 1989, the Cook County circuit court granted Joan’s section 2 — 1401 petition and amended the July 15, 1987, order by including DeVry as an acceptable college in the order and by waiving the 30-day notice period with respect to funds to be paid through the date of the order. Elizabeth subsequently filed a section 2 — 1203 motion on February 10, 1990, which Joan moved to strike on March 1, 1990. Although this motion was still outstanding, Elizabeth filed a notice of appeal on April 11, 1989, seeking review of the circuit court’s orders of June 28, 1988, July 19, 1988, and January 12, 1989. Upon discovery of the premature appellate filing, Elizabeth was given leave by this court to withdraw the appeal. Upon disposition of the post-trial motion, the estate filed a second notice of appeal on December 28, 1989 (appeal No. 1 — 89—3527), and was given leave to reinstate number 1 — 89—0965 and consolidate the two appeals. The second notice of appeal seeks review of (1) the July 15, 1987, order; (2) the June 28, 1988, order; (3) the July 19, 1988, order; and (4) the January 12, 1989, order, allowing the section 2 — 1401 petition.

I

Elizabeth initially argues that the circuit court of Cook County lacked jurisdiction to enter the July 15, 1987, order allowing the claim for the college expenses of the adult children.

Courts in divorce proceedings retain jurisdiction to enforce their decrees. (In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 112, 438 N.E.2d 957; Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 795, 300 N.E.2d 603.) Elizabeth contends, however, that Joan’s petition failed to state a cause of action upon which relief can be granted because no order pursuant to section 513 of IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 513) (section 513) was entered into by the parties prior to Rufus’ death, citing In re Estate of Champagne (1987), 153 Ill. App. 3d 560, 505 N.E.2d 1352, thereby removing the only legal basis for Joan’s action. Although Elizabeth failed to raise in the circuit court her argument concerning Joan’s purported failure to state a cause of action, where a complaint fails to state a cause of action, an objection may be made to it any time and by any means, and such an objection may be raised for the first time on appeal. Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 974, 447 N.E.2d 1358; Ording v. Springer (1980), 88 Ill. App. 3d 243, 410 N.E.2d 428; Psyhogios v. Village of Skokie (1972), 4 Ill. App. 3d 186, 280 N.E.2d 552.

In Champagne, the former wife filed a claim against her former husband’s estate for the educational expenses of their adult son. The claim was made pursuant to (1) the couple’s July 1966 judgment of divorce, which provided that decedent would pay for their son’s college education; and (2) a July 1983 stipulation and agreed order which provided that decedent would pay $400 per month for the son’s college expenses. The estate moved to strike the claim, arguing that the monthly payments were made until decedent’s death and that no provision of the Act allowed for higher education expenses to be charged against an estate. The circuit court dismissed the claim, finding that the order for the adult child’s educational expenses did not obligate the estate.

In reversing the dismissal, the Champagne appellate court noted that prior to the passage of the Act, a child support order in a divorce decree had no legal effect after the death of one of the parties. (See In re Estate of Lewis (1974), 18 Ill. App. 3d 748, 750, 311 N.E.2d 694; Johnson v. Continental Illinois National Bank & Trust Co. (1967), 88 Ill. App. 2d 124, 133, 232 N.E.2d 59.) The Champagnes’ agreed order, however, was made pursuant to section 513. Sections 513 and 510(c) (Ill. Rev. Stat. 1987, ch. 40, pars. 510(c), 513), when read together, avert the harsh result rendered under the prior law. (Champagne, 153 Ill. App. 3d at 562.) Section 510(c) now provides that “the obligation to support, unless otherwise agreed in writing or provided in the judgment, will survive the death of the parent obliged to provide child support.” (Champagne, 153 Ill. App. 3d at 562.) The court further ruled that section 510(c) applies not only to minor children, but to children who have reached the age of majority, by virtue of section 513’s language. Champagne, 153 Ill. App. 3d at 563.

Elizabeth nevertheless argues that neither party here sought enforcement or modification of the 1968 decree under IMDMA; therefore, the circuit court erred in allowing the claim to survive Rufus’ death. The absence of such an “intervening order” in the case sub judice distinguishes it from Champagne, Elizabeth urges', since the lack of such an order leaves the instant action beyond the purview of IMDMA, and the effect of the prior law is unavoidable. We disagree.

In Illinois, a property settlement between spouses whose marriage is being dissolved, which has been approved by the court and incorporated in the judgment of dissolution, becomes merged in the judgment, and the rights of the parties thereafter rest on the judgment. (Sondin v. Bernstein (1984), 126 Ill. App. 3d 703, 708, 467 N.E.2d 926; In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 399, 395 N.E.2d 1209.) In interpreting such an agreement, normal rules for construction of contracts apply (In re Estate of Kite (1974), 19 Ill. App. 3d 932, 312 N.E.2d 366) so as to give effect to the apparent intent of the court and the intention of the parties. (Sondin v. Bernstein, 126 Ill. App. 3d at 708.) When no ambiguity exists on the face of the judgment, the intent of the parties will be determined only from the language of the instrument itself. Halper v. Halper (1978), 57 Ill. App. 3d 588, 373 N.E.2d 598.

The specific language in the settlement agreement clause before us demonstrates Rufus’ promise to pay educational expenses, provided he has the financial ability to pay and the children’s scholastic aptitude is present. In In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015 (Houston), the appellate court held that the settlement agreement requiring payment of college tuition and expenses, rather than section 513, was controlling in an enforcement action:

“We believe that respondent’s reliance on section 513 is misplaced. That provision deals, in relevant part, with court-awarded payments for the education and maintenance of the parties’ children *** after a marriage has been dissolved. *** This case, however, does not involve an initial award of payments for educational expenses made by the court at the time of dissolution or in a post-decree motion [citation], or even a request for modification of such an award. Nor is this a situation where the original dissolution decree reserved the question of educational expenses for future consideration.” (Houston, 150 Ill. App. 3d at 613-14.)

The court held that section 513 need not be applied when the settlement agreement clearly addresses the issue of maintenance and educational expenses. We find Houston applicable to this case.

The present case involves a claim to enforce a settlement agreement which previously had been incorporated into the dissolution judgment of the court. The agreement here established Rufus’ obligation to pay for the children’s college expenses even where they attained their majority, subject only to his financial ability to pay and the children’s aptitude .for higher education. The fact that Rufus died before his ability to pay was adjudicated did not mitigate that responsibility. Section 801 of IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 801) applies IMDMA to all proceedings commenced on and after the effective date of the Act, October 1, 1977. This post-decree proceeding is subject to IMDMA. (Potocki v. Potocki (1981), 98 Ill. App. 3d 501, 503, 424 N.E.2d 714; Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 895, 416 N.E.2d 366.) Section 510(c) of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 510(c)) protects children of divorced parents from disinheritance. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 580-82, 376 N.E.2d 1382.) Otherwise, the fortuitous death of Rufus Would thwart the intent of the parties and the court, with serious prejudice to the intended beneficiaries of the agreement, the children.

Accordingly, the terms of the agreement at issue here leave no question of Rufus’ obligation to pay the children’s educational expenses. The lack of any court order mandating contribution to the children’s college expenses prior to Rufus’ death did not foreclose contribution from the estate after his death.

Joan’s claim for educational expenses against the estate stated a cause of action upon which relief could be granted. The order to that effect entered on July 15, 1987, by the circuit court of Cook County is affirmed.

II

Elizabeth next contends that the circuit court failed to follow the settlement agreement when it allowed the Oldham children to attend DeVry, an issue centering upon whether DeVry is a “college or university” as defined in the settlement agreement and, if so, whether it is comparable to Western or Oakton.

A similar issue, relating to what constitutes a college, was raised in In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 536 N.E.2d 946. There, the court concluded that the term “college or professional school” used in the settlement agreement at issue was unambiguous: “ ‘While the word [college] has other meanings, *** in its most common use ‘college’ designates an institution of learning *** which offers instruction in the liberal arts and humanities and in scientific branches, but not in the technical arts or those studies preparatory to admission to the professions.’ ” (In re Marriage of Holderrieth, 181 Ill. App. 3d at 203, quoting 14 C.J.S. Colleges & Universities §1 (1939).) The court held that the term “college” refers to the “undergraduate study in the liberal arts or sciences leading, usually after four years, to a bachelor’s degree.” (In re Marriage of Holderrieth, 181 Ill. App. 3d at 204. Accord Brown v. Brown (1984), 327 Pa. Super. 51, 55, 474 A.2d 1168, 1170 (and cases cited therein).) In so holding, the court ruled that the Denver Automotive and Diesel College is not what is customarily referred to as a college or professional school. (In re Marriage of Holderrieth, 181 Ill. App. 3d at 205.) The evidence presented revealed that the school’s program lasted only 15 months; upon completion of the program, students were awarded a two-year associate’s degree; the school taught only automobile and diesel mechanics; and students received no instruction in English, literature, social studies, math, or the fine arts.

In contrast here, Dr. Sullivan testified that DeVry offers a baccalaureate degree in four academic areas including electronic engineering, computer information systems, accounting, and business operations. Both the Oldham children are pursuing degrees in the business operations program, described by Sullivan as roughly equivalent to a bachelor’s degree in business administration. Moreover, students enrolled in the program are required to take traditional liberal arts courses such as English composition, speech, and writing. The school offers associate’s degrees as well as a master’s degree and is accredited by the appropriate regional association of colleges and schools.

Based upon the language used in the settlement agreement and the evidence adduced at the hearing, we find no error in the circuit court’s ruling that DeVry was a college or university under the terms of the settlement agreement.

The evidence also supports the court’s holding that DeVry was comparable to Oakton and Western. It was established that Oakton only offers its students a two-year associate’s degree, whereas DeVry offers a bachelor’s and a master’s degree. As for Western, Sullivan stated that the degrees sought by the Oldhams were equivalent to Western’s bachelor’s degree in business administration. The only difference cited was in the teaching philosophy each school followed, with Western adopting a more theoretical manner of study and DeVry utilizing a more practical approach. Elizabeth attempts to characterize Sullivan’s statement of the comparability of the two programs as an overall statement of comparability between the schools as a whole. A careful review of his testimony reveals, however, that Sullivan merely described the two business programs as being “comparable.” The relevant inquiry is whether the two institutions offer comparable education in the area of business administration or business operations. The quality of the education at one institution may differ greatly from another; however, the settlement agreement does not condition educational expenses on the quality of the education to be received. The circuit court’s ruling that DeVry is comparable to Oakton or Western was not erroneous and must be affirmed.

Ill

Elizabeth lastly asserts that the circuit court abused its discretion by granting Joan’s section 2 — 1401 petition.

Section 2 — 1401 of the Code provides a statutory mechanism by which a final order or judgment may be vacated or modified more than 30 days after its entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381; Manning v. Meier (1983), 114 Ill. App. 3d 835, 837, 449 N.E.2d 560.) A petition brought under this provision is not a continuation of the original proceeding, but a commencement of a new cause of action with the purpose of bringing to the attention of the circuit court facts not of record which, if known by the court at the time judgment was entered, would have prevented its rendition. (Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 239, 454 N.E.2d 806; Manning v. Meier, 114 Ill. App. 3d at 837-38.) The petitioner must affirmatively set forth four elements under section 2 — 1401 to be entitled to relief: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting that claim or defense in the original action; (3) due diligence in presenting the section 2 — 1401 petition; and (4) misapprehension of the circuit court with regard to the facts, the valid defense or claim through no fault or negligence of petitioner, at the time the challenged order or judgment was entered. (Gayton v. Levi (1986), 146 Ill. App. 3d 142, 148, 496 N.E.2d 1045.) The question of whether a section 2 — 1401 petition should be granted lies within the discretion of the circuit court; its judgment will not be disturbed absent an abuse of that discretion. Smith v. Airoom, Inc., 114 Ill. 2d at 221.

Elizabeth maintains that Joan did not meet the statutory requirements of section 2 — 1401. The record demonstrates otherwise. The petition was timely brought, well within the statute’s two-year time limitation. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401.) In fact, Joan filed her action immediately after the circuit court of Lake County denied enforcement of the July 15 order. She could not have acted more diligently under these circumstances.

Joan’s petition also asserted facts which set forth the existence of a meritorious claim. She alleged that the July 15 order allowed the claim to be made against the estate in addition to the fact that (1) the children needed funds for their educational expenses; (2) they were attending DeVry Institute of Technology; and (3) the Lake County court refused to recognize DeVry as “comparable” to those institutions listed in the July 15 order. Joan could not have anticipated that the Lake County court would rule DeVry incomparable to Western at the time the original order was entered. Upon this record, the circuit court did not abuse its discretion in modifying the July 15 order.

For the foregoing reasons we affirm the circuit court orders in Nos. 1-89-0965 and 1-89-3527.

Affirmed.

DiVITO and McCORMICK, JJ., concur.

      The circuit court denied the petition as to the issue on the claim for insurance proceeds; that portion of the decision is not raised as an issue in this appeal.