text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK EGGE, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1223
    Opinion filed February 16, 1990.

      Joseph C. Corsino, of Flossmoor, for appellant.
    Cecil M. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court;

I

Defendant Mark Egge appeals from the circuit court’s denial of his motion to withdraw a guilty plea and vacate a conviction of driving under the influence of alcohol following that plea. We have concluded that the circuit court abused its discretion by not allowing Egge’s motion; accordingly, the judgment is vacated and remanded.

II

On January 29, 1988, Egge’s appellate counsel — who did not represent him at trial — moved to withdraw the guilty plea and vacate the judgment. Appellate counsel submitted an affidavit executed by Egge, in support of that motion, which the State has not attempted to rebut.

In his affidavit, Egge alleges that he appeared before Judge Michael McNulty on July 17, 1986, for committing the offense of driving under the influence of alcohol. (See Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501.) Before the hearing, according to Egge, his trial counsel advised him to plead guilty in order to receive a sentence of supervision, thereby retaining his driving privileges; trial counsel failed to inform Egge that he could be sentenced to conditional discharge, which was a conviction that would result in the loss of those privileges. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 6—1 et seq.) Trial counsel likewise neglected to inform Egge that he might be fined. Egge also avers that trial counsel never advised him of his constitutional or statutory rights.

Egge further alleges that he pleaded guilty before Judge McNulty, as planned. Egge claims that trial counsel failed to identify himself for the record. Trial counsel offered no evidence in mitigation, notwithstanding the facts that the accident which occurred at the time of Egge’s arrest involved only his vehicle, and that his injuries were so minor that no hospitalization was required. Trial counsel never raised Egge’s driving record before the judge, even though it included no alcohol- or drug-related incidents. The assistant State’s Attorney offered no evidence in aggravation. Although Judge McNulty advised Egge that he could be sentenced to one year in prison, the judge failed to advise him that the lesser sentence of supervision was available. In addition, Judge McNulty neglected to advise Egge of his right to plead not guilty and to persist in that plea throughout the proceedings; the judge also failed to explain the differences between a bench trial and a jury trial, the right to trial by jury, the privilege against self-incrimination, the right to cross-examine the witnesses against him, or the State’s burden to prove him guilty beyond a reasonable doubt. Moreover, Egge maintains that the judge did not inquire whether his plea was voluntary, and whether it was obtained by force, threats, or coercion.

After stating that Egge was not a good candidate for supervision, Judge McNulty sentenced him to conditional discharge and a $500 fine. The judge failed to advise Egge of his right to move to withdraw the guilty plea and to have the judgment vacated. Trial counsel did not object to Judge McNulty’s insufficient admonishments, before or after sentencing. Additionally, Egge says that trial counsel did not move to substitute judges, request a continuance, or withdraw the guilty plea. Egge states that Judge McNulty was extremely upset and angry with all persons appearing before him on the date of the hearing, with no apparent reason. At one point, Egge claims that the judge screamed at him and his trial counsel to not argue with the court. Immediately thereafter, apparently out of frustration, Egge pleaded “guilty as hell” to the offense of driving under the influence.

In his affidavit, Egge goes on to aver that he was coerced into pleading guilty by a promise of a disposition of supervision. It was only after Egge was sentenced that trial counsel explained he would lose his driving privileges as a consequence of the sentence. Trial counsel told Egge that nothing could be done to reverse his sentence. Egge did not become aware of his right to move to have the guilty plea withdrawn and the judgment vacated until a subsequent case, involving separate issues, before a different judge, on November 17, 1987. Finally, Egge alleges, his trial counsel neither filed a post-judgment motion nor prepared a notice of appeal.

A review of the transcript of proceedings before Judge McNulty confirms many of the facts Egge alleged in his unrebutted affidavit. Trial counsel failed to state his name for the record, and he is referred throughout the transcript as “Mr. Defense Attorney.” The assistant State’s Attorney acknowledged that Egge had no prior alcoholic background. As the remainder of the transcript is brief, and gives the flavor of the proceedings, we set it forth:

“THE COURT: *** I will not give him supervision. I don’t think he’s a good candidate. It’s something other than a blow. [Egge’s alcohol concentration was .14.] I would give him one year conditional discharge with a fine plus ASER Is that what you want? Obviously not, but that’s what I’m going to offer. I’m not going to change my mind. You can take a jury trial or take it out of here and try somebody else. That’s it, period.
MR. DEFENSE ATTORNEY: Judge, I really-.
THE COURT: Don’t argue with me.
MR. DEFENSE ATTORNEY: We’ll accept that.
THE COURT: Mr. Egge, you’re charged here with driving a motor vehicle under the influence of alcohol. How do you plead, guilty or not guilty[?]
MR. EGGE: I’m guilty as hell.
THE COURT: Let the record reflect the Defendant is guilty as hell.
When you plead guilty as hell you waive your right to a trial by jury. You waive your right to a trial of any kind. You waive your right to cross examine [sic] the witnesses that the State would put on. The possible sentence the Court can give you is a year in jail, do you understand that?
MR. EGGE: Yes, sir.
THE COURT: Knowing these things and understanding these things. [Nic] Do you persist in your plea of guilty?
MR. EGGE: Yes, sir.
THE COURT: Having had occasion to observe the Officer’s Alcoholic Influence Report, I find there’s a factual basis for the plea. Anything further in aggravation or mitigation?
MR. GENTILE [Assistant State’s Attorney]: No, Judge.
MR. DEFENSE ATTORNEY: No, sir.
THE COURT: One year conditional discharge, fine of $500 plus ASER Three month date is 10-4-86, S.O.M. And the one year date is 7-16-87.
You have 30 days to appeal the sentence.”

Egge’s appellate counsel’s motion to withdraw the guilty plea and to vacate the judgment was heard before Judge Montelione on March 31, 1988, as Judge McNulty had left the bench. After entertaining argument by the parties, Judge Montelione denied the motion. He conceded that Judge’s McNulty’s admonitions did not literally comply with the applicable rules. But since Judge McNulty admonished Egge regarding his right to appeal, and since no notice of appeal was filed, Judge Montelione ruled he had no jurisdiction. In any event, Judge Montelione stated, the point was moot because Egge had served his sentence. It is from Judge Montelione’s ruling that Egge appeals.

Ill

Illinois Supreme Court Rule 604(d) provides:

“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.” (107 Ill. 2d R. 604(d).)

Thus, the lapse of more than 30 days from the imposition of sentence generally divests the trial court of jurisdiction to entertain a motion to withdraw the guilty plea and vacate the judgment. Yet two exceptions to this rule have been recognized: first, where the trial court neglects to properly admonish the defendant pursuant to Illinois Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)); or, second, where the failure to file a motion to withdraw and vacate constitutes ineffective assistance of counsel. (See People v. Green (1983), 116 Ill. App. 3d 815, 817-18, 452 N.E.2d 767, 769.) In our case, each of these exceptions applies.

Supreme Court Rule 605(b) states:

“On Judgment and Sentence Entered on a Plea of Guilty. In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that he has a right to appeal;
(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as a party [sic] of a plea agreement will be reinstated and will also be set for trial;
(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” 107 Ill. 2d R. 605(b).

The transcript of proceedings before Judge McNulty reveals that he only substantially complied with Rule 605(b)(1), by admonishing Egge, “You have 30 days to appeal the sentence.” Judge McNulty neglected to comply — even minimally — with the five remaining requirements set forth in Rules 605(b)(2) through (b)(6). Because Judge McNulty failed to properly admonish Egge pursuant to Rule 605(b), we are of the opinion that the first exception to Rule 604(d)’s 30-day requirement — noted in Green — applies in this case.

The State relies upon People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, to support the proposition that Egge’s proper remedy is to be found in the Post-Conviction Hearing Act. (See Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) However, the appellate court in People v. Patrick (1989), 188 Ill. App. 3d 542, 544 N.E.2d 1042, was faced with a Rule 605(b) violation, as we are. In discussing Wilk, the Patrick court observed that most of the Wilk defendants had been admonished in accordance with Rule 605(b). But in the case before it, the appeals court noted, the trial court failed to admonish defendant as Rule 605(b) required. In such a case, the appellate court reasoned, defendant should not be penalized for not following the precise procedure to preserve his Rule 605(b) rights. See Patrick, 188 Ill. App. 3d at 545, 544 N.E.2d at 1044.

The facts of our case resemble Patrick more closely than they resemble Wilk. Like defendant in Patrick, Egge was not correctly admonished pursuant to Rule 605(b); unlike the only defendant in Wilk who was not given the Rule 605(b) admonishments, Egge’s trial counsel prepared neither a motion to reconsider his sentence nor a notice of appeal. Consequently, we refuse to penalize Egge for not following procedures that his trial counsel and Judge McNulty neglected to advise him of.

Taken together with Egge’s unrebutted affidavit, the transcript of proceedings before Judge McNulty demonstrates that Egge was also the victim of ineffective assistance of counsel. In People v. Porter (1978), 61 Ill. App. 3d 941, 378 N.E.2d 788, defendant appealed from the denial of his motion to withdraw his guilty pleas and vacate the judgment, arguing that he was denied effective assistance of counsel. The only issue raised by defense counsel in the motion to withdraw and vacate was that defendant was sentenced excessively. On appeal, defendant contended that he was the victim of ineffective assistance of counsel because an obvious and meritorious issue — the trial court’s flagrant violation of Supreme Court Rule 402 (58 Ill. 2d R. 402) at the plea hearing — was not raised in the motion. Rule 402 provides now, as it did then:

“Pleas of Guilty.
In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.” 107 Ill. 2d Rules 402(a), (b).

The Porter court determined that the trial court failed to comply with Rule 402. (Porter, 61 Ill. App. 3d at 945, 378 N.E.2d at 791.) This failure, the appellate court reasoned, was certainly a meritorious issue that should have been raised in defense counsel’s motion to withdraw and vacate. The effect of counsel’s failure to raise the issue was to waive a substantial defect in the entry of the guilty pleas, upon which a successful motion and appeal could have been based. The appeals court defined ineffective assistance of counsel as representation so poor as to amount to no representation at all, or to reduce the proceedings to a sham or mockery. (See Porter, 61 Ill. App. 3d at 945-46, 378 N.E.2d at 791.) Applying this definition to the facts of the case before it, the court held that defense counsel’s failure to include the obvious Rule 402 violations in his motion denied defendant effective assistance of counsel; defendant’s representation was so deficient as to constitute no representation. As a result, the appellate court reversed the trial court’s denial of defendant’s motion to withdraw and vacate, and it ordered the cause remanded so defendant could plead anew. See Porter, 61 Ill. App. 3d at 946, 378 N.E.2d at 791.

Here Judge McNulty’s failure to comply with Rule 402 was, in the language of Porter, flagrant. He did not attempt minimal compliance with Rule 402(a)(l)’s requirement that Egge be advised of the minimum sentence. Similarly, Judge McNulty did not attempt compliance with Rule 402(b)’s mandate that he inquire whether Egge’s plea was voluntary. Furthermore, his compliance with the remaining requirements of Rule 402(a)(1) was minimal at best. Egge was thereby denied effective assistance of counsel when his trial counsel neglected to raise these irregularities in a motion to withdraw and vacate. In fact, our case presents an even stronger basis for remanding than Porter, since in that case defendant — unlike Egge — at least had the benefit of a motion to withdraw and vacate, although it was carelessly drafted. What is more, other conduct by Judge McNulty mentioned above should have provided Egge’s trial counsel with additional grounds for a motion and appeal. Therefore, trial counsel’s conduct undeniably deprived Egge of effective assistance of counsel. Indeed, a description of trial counsel’s conduct as ineffective is charitable, on the basis of the record before us.

Trial counsel's conduct was likewise ineffective when judged by the two-pronged test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, as applied in Wilk. That is, we think that trial counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that — but for his unprofessional errors — the result of the proceedings before Judge McNulty would have been different. (See Wilk, 124 Ill. 2d at 108, 529 N.E.2d at 223-24.) It is safe to conclude, then, that the second exception to Rule 604(d), as recognized in Green, applies.

IV

We are cognizant of the fact that much time has elapsed since Egge’s plea hearing, which may make retrial difficult for the State. Nevertheless, Supreme Court Rules 605(b) and 402 help ensure that criminal defendants are afforded the process which, over the centuries, has come to be regarded as due in our common law system. As a consequence of Judge McNulty’s failure to comply with Rules 605(b) and 402, combined with trial counsel’s failure to assert his client’s rights, the plea hearing was so lacking in due process that we cannot permit Egge’s plea and judgment to stand.

For the reasons stated, Judge McNulty’s judgment upon Egge’s plea must be vacated, and he must be allowed to withdraw his plea of guilty and to plead anew; his sentence, in turn, must be vacated. (See People v. Kidd (1989), 129 Ill. 2d 432, 447, 544 N.E.2d 704, 710.) In the alternative, Egge sought relief from judgment under section 2 — 1401 of the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Given the foregoing disposition, we deem discussion of this question unnecessary.

Judgment vacated and remanded with directions.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
      In re APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, FOR ORDER AND JUDGMENT OF SALE OF LANDS AND LOTS UPON WHICH ALL OR A PART OF THE GENERAL TAXES FOR 5 OR MORE YEARS ARE DELINQUENT PURSUANT TO SECTION 235a OF THE REVENUE ACT OF 1939, AS AMENDED (Pioneer Bank & Trust Company, as Trustee, et al., Petitioners-Appellants, v. Joseph Zadik, Respondent-Appellee).
    First District (5th Division)
    No. 1—88—3736
    Opinion filed February 16, 1990.
    Rehearing denied March 19, 1990.

      John W. Lally, of Chicago, for appellants.
    Bruce M: Buyer, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Petitioners Pioneer Bank & Trust Co., the trustee under trust No. 23678, and Easy Life Real Estate and Management Co., the beneficiary of the trust (hereinafter referred to as Pioneer), appeal from an order of the circuit court of Cook County dismissing their “motion to vacate void judgment and tax deed.” The basis of their arguments on appeal is that respondent, Joseph Zadik, fraudulently concealed their existence as owners of property that he purchased in a tax sale and for which he subsequently was granted a tax deed. For the reasons set forth below, we affirm.

On June 27, 1983, Zadik purchased property located at 1427-31 North Paulina in Chicago for general taxes owed to the State of Illinois for the years 1976 to 1980. On August 9, 1983, the circuit court of Cook County entered an order confirming the sale. On October 4, 1983, Zadik ordered a title commitment from the Chicago Title and Trust Company, which ultimately indicated Jose and Dominga Lopez as parties in interest to the property. On January 23, 1984, Zadik filed a petition for a tax deed to the property. On the same day, he had a notice published in the Chicago Daily Law Bulletin, announcing that a petition for a tax deed to the property had been filed and that the expiration date for redemption of the property was July 31, 1984. The notice, which was addressed to Jose and Dominga Lopez, the record owners of the property, and “unknown owners or parties interested in said land or lots,” was also published on April 13,16 and 17, 1984.

On August 17, 1984, a hearing on Zadik’s petition was conducted. Zadik testified that personal service of notice on the Lopezes was unsuccessful. Zadik also stated that he and his attorney had checked the records of the recorder of deeds and county assessor’s offices to determine the existence of any interested parties or newly interested parties in the property. He further testified that he had paid the taxes on the property for the years 1981,1982 and 1983.

On September 28, 1984, the trial court entered an order granting Zadik a tax deed to the property. Four years later, Pioneer filed a motion to vacate the order awarding Zadik the tax deed and to declare it null and void. In its motion, Pioneer asserted that on January 4, 1984, the property had been conveyed to it by the Lopezes and that its deed was filed with the recorder of deeds office on January 11, 1984. Pioneer further alleged that it was a necessary party to Zadik’s petition for a tax deed and entitled to notice by actual service of process. Accordingly, it contended that the order awarding the tax deed was void since Zadik failed to “name, sue or serve” it. Lastly, Pioneer claimed that it wrs not time barred from filing its section 2 — 1401 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) because that section sets no time limit on setting aside void orders.

Zadik subsequently filed a motion to strike and dismiss Pioneer’s post-judgment motion, arguing that the motion failed to state a cause of action. In response, Pioneer filed a “Reply Brief” claiming that the 1984 judgment order was void because of Zadik’s failure to include it as an indispensible party and that the two-year limitation period for bringing a post-judgment motion after entry of a judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) was tolled “because of fraudulent concealment in the tax buyer’s [Zadik’s] testimony.”

On December 6, 1988, the trial court granted Zadik’s motion to strike and dismiss Pioneer’s section 2 — 1401 motion. This appeal followed.

Pioneer argues before this court that (1) the in rem jurisdiction obtained by the trial court over property is not a “license to ignore due process nor grab property without notice to the owner” and (2) “a tax buyer may not fraudulently conceal the record owner from the trial judge.”

We first observe that the Revenue Act relating to tax sales and tax deeds provides that tax deeds issued pursuant to the Act are incontestable except by direct appeal from the order directing the county clerk to issue the deed. (Ill. Rev. Stat. 1987, ch. 120, par. 474.) Relief also may be sought, however, pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401), allowing for post-judgment relief.

In the instant case, Pioneer did not file a direct appeal from the 1984 judgment, and this remedy is unavailable to it. Instead, Pioneer sought relief pursuant to section 2 — 1401, which provides, in pertinent part:

“(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section . ***
(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters of record. ***
(c) The petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.
(f) Nothing contained in this Section affects any existing rights from a void order or judgment, or to employ any existing method to procure that relief.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.)

Under its section 2 — 1401 motion, Pioneer’s first “argument” includes its contention that the trial court lacked jurisdiction to enter the order granting the tax deed because it was an indispensible party to the proceedings and was not named, sued or served with actual notice and, accordingly, the court’s order was void.

It is well settled that a tax sale is an in rem action and a court acquires jurisdiction after the county collector makes his application for judgment and order of sale. (Vulcan Materials Co. v. Bee Construction (1983), 96 Ill. 2d 159.) In a tax deed proceeding, a determination of whether a party has been given the notice required goes to whether the court should order the tax deed to issue, not to whether the court has jurisdiction in the proceeding. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31.) Accordingly, in the instant case, whether Pioneer had no notice of and was an indispensible party to the tax deed proceedings does not go to the jurisdiction of the trial court to enter its order. Pioneer’s argument that the court’s order was void for lack of jurisdiction is therefore without merit.

We must also reject Pioneer’s second argument pursuant to its section 2 — 1401 motion that the two-year limitation period within which to file its post-judgment motion was tolled as a result of Zadik’s alleged fraudulent concealment from the trial court of its existence as the owner of the property. Our review of the record reveals that Pioneer simply did not allege that it was under a legal disability or duress or that its ground for relief was fraudulently concealed at the time of the proceedings on Zadik’s petition, as required by section 2— 1401. Instead, all that Pioneer’s motion alleged was that the property was conveyed to it by the Lopezes and that the deed thereto was filed with the recorder of deed’s office on January 11, 1984; Pioneer did not allege or plead fraud, but rather suggested omission or mistake by Zadik in not discovering its ownership of the subject property. Moreover, it is well settled that the “fraudulent concealment” that tolls the two-year limitation period must be of an affirmative character, designed to prevent and which does prevent discovery. (Elliott v. Johnson (1987), 156 Ill. App. 3d 70.) More particularly, as stated by our supreme court in Exline v. Weldon (1974), 57 Ill. 2d 105, 110-11:

“The concept of fraud ‘implies a wrongful intent — an act calculated to deceive.’ [Citation.] The failure to attain knowledge concerning certain facts is not necessarily indicative of a lack of diligent inquiry [citation]; and, even if a more persistent effort could have been made in the conduct of the search and inquiry, this is not proof of fraud unless there exists evidence of wrongful intent or a deceptive design. [Citation.] Decisions of this court have upheld the validity of the tax-deed proceedings under varying circumstances. Analyzing the diverse factors in each is unnecessary. It is sufficient to note that the burden is upon the owner to establish the invalidity of the procedure.”

Additionally, the court has also stated that “[t]he failure to discover a particular fact does not, in and of itself, indicate a lack of diligent inquiry ***, and neither is it a conclusive indication of fraud.” Dahlke v. Hawthorne, Lane & Co. (1966), 36 Ill. 2d 241, 246. See also Urban v. Lois, Inc. (1963), 29 Ill. 2d 542 (where a mortgagee was omitted from the list of persons having an interest in the premises for which a tax deed was sought, the omission was held insufficient to justify setting aside the tax deed); Shapiro v. Hruby (1961), 21 Ill. 2d 353 (where the failure to search the Torrens records was the basis of a claim for fraud, the failure to do so was held insufficient to set aside the tax deed).

Here, it is clear that Pioneer did not allege an affirmative failure to disclose by Zadik. We further observe, as pointed out by Za-dik, that Pioneer’s motion was not verified and does not allege or show by an affidavit or otherwise that Zadik knew it was the titleholder of the property and concealed this fact from the trial court. We therefore hold that Pioneer’s section 2 — 1401 motion was, as argued by Zadik, insufficient to state a cause of action as a matter of law.

Finally, we briefly note the failure of Zadik to discover the Lo-pezes’ conveyance of their property to Pioneer is not any more incredible than Pioneer’s failure, or its copetitioner Easy Life Real Estate and Management Co., allegedly a buyer of property sold for taxes, to be unaware of the tax sale of the subject property to Zadik and his notices for application for a tax deed at the time. We further observe that had petitioners attempted to pay the annual taxes on the property subsequent to the issuance of the tax deed, as they were legally obligated to do, they would have been able to timely file a section 2— 1401 motion. We also note that even if Pioneer had properly pleaded concealment/fraud, the trial court’s order would be rendered voidable, not void. Accordingly, Pioneer would be required to satisfy the jurisdictional requirement under section 2 — 1401 that it acted diligently in pursuing its rights. More particularly, as our supreme court stated in Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, in discussing the requirements of section 72, now section 2 — 1401:

“A trial court cannot review its own order or judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the expiration of thirty days. [Citation.] A petition under section 72 of the Civil Practice Act is therefore the filing of a new action; and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. Where the petition fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss. [Citation.] Assuming that the present petition alleges facts which would otherwise justify the granting of relief, the absence of any excuse for not asserting them in apt time must preclude it. The rule is well established that a person may not avail himself of the present remedy unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. [Citations.] Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence.”

Here, Pioneer’s motion was devoid of any allegation requiring the tolling of the running of the statutory period.

Lastly, we find it unnecessary to address Pioneer’s argument that it was denied due process of law since its section 2 — 1401 motion did not plead or raise this issue in the trial court and, accordingly, it is waived. See In re Application of Cook County Treasurer & Ex-Officio Collector (1983), 119 Ill. App. 3d 212.

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

Affirmed.

COCCIA, P.J., and GORDON, J., concur.


text:
    JOHN WOLF, Plaintiff-Appellee, v. MEISTER-NEIBERG, INC., et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1—89—2364, 1—89—2365 cons.
    Opinion filed February 16, 1990.

      Harvey A. Paulsen, of Paulsen & Kane, of Chicago, for appellant Meis-ter-Neiberg, Inc.
    Pretzel & Stouffer, Chartered, of Chicago, for appellant Lennie Szarek, Inc.
    Thomas L. Kieft, of Dowd & Dowd, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This interlocutory matter comes before this court in the consolidated appeals of defendants, Meister-Neiberg, Inc., and Lennie Szarek, Inc., pursuant to Supreme Court Rule 308 (107 Ill. 2d 308). The plaintiff is John Wolf (Wolf). The undisputed facts are as follows.

On November 26, 1984, Wolf filed a complaint sounding in tort, alleging injury as a result of a trip-and-fall event at a construction site located at 310 Wainwright Drive in Northbrook, Illinois, on March 20, 1984. Named as defendants were Meister-Neiberg, Inc. (Meister-Neiberg), a general contractor, and Lennie Szarek (Szarek), a subcontractor. Both defendants filed an answer to Wolfs complaint denying any connection with the said construction site. On January 22, 1988, long after the applicable statute of limitations had passed, Wolf filed an amended complaint alleging that the accident occurred at a construction site in Schaumburg, Illinois. Both Meister-Neiberg and Szarek filed motions for summary judgment to dismiss Wolf’s cause pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). In their motion Meis-ter-Neiberg and Szarek raised the defense of the application of the statute of limitations. Meister-Neiberg and Szarek argued that the Illinois statute of limitations which requires a complaint such as Wolfs to be filed within two years (Ill. Rev. Stat. 1987, ch. 110, par. 13— 202) barred Wolfs action. Meister-Neiberg and Szarek based their charge on the provisions of section 2 — 616 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616) which permit the relation back of an amended pleading to avoid the impact of any statute of limitations only if two requirements are met: (1) the original pleading was timely filed, and (2) the original pleading and amended pleading indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266.) Defendants contended that the relation-back provision was inapplicable because Wolfs amended complaint stated a cause of action separate and distinct from the cause of action alleged in the original complaint; i.e., the amended complaint alleged that Wolfs injury occurred at a different location than the location alleged in his original complaint. Wolf argued, in effect, that the statute of limitations and relation-back provision in section 2 — 616(d) applied to his cause because both Meister-Neiberg and Szarek had notice of the correct location prior to the running of the applicable statute of limitations.

The trial court denied both Meister-Neiberg’s and Szarek’s motions. The trial court also certified under Supreme Court Rule 308 (107 Ill. 2d R. 308) the following question:

“In a slip and fall case does an amended complaint filed after the expiration of the statute of limitations relate back to the original timely-filed complaint when,
(a) The location of the accident as alleged in the amended complaint differs materially from the location alleged in the original complaint, but
(b) The defendants were on notice of the correct location prior to the expiration of the statute of limitations, said notice provided to defendant by way of sworn discovery deposition testimony ***?”

Meister-Neiberg and Szarek applied for leave to appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). This court granted the two applications for leave to appeal and consolidated the two appeals. Both Szarek and Meister-Neiberg filed motions requesting that their applications for leave to appeal stand as their briefs on appeal. Wolf filed a response to the applications with a request that his response stand as his brief. The court granted all motions. The court also entered a stay of the trial court proceeding.

For the following reasons, the trial court’s order denying the defendants’ motions is affirmed, the stay of proceeding heretofore entered is lifted, and the cause is remanded to the trial court for further proceedings.

It is the law in this State that an amendment to a pleading substantially changing the location of an alleged injury from that originally alleged in a complaint does not trigger the application of the relation-back provisions of section 2 — 616 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616) so as to preclude the application of the applicable statute of limitations. This rather harsh and strict rule has at least one exception which we find applicable to this case, i.e., where the defendant or defendants had notice of the proper location of the charged injury during the period of the applicable limitations statute. (Zeh v. Wheeler (1986), 111 Ill. 2d 266.) Meister-Neiberg argues, however, that this exception, noted in Zeh, is dicta and the dicta should not be followed in this case.

Dicta is a much maligned legal expression. Dicta is really divided into two areas, one, properly called “judicial dictum” and the other called “obiter dictum.” If a particular rule stated in a case is the expression of opinion upon a point in a case deliberately passed on by the court, it is judicial dictum and not obiter dictum. (Scovill Manufacturing Co. v. Cassidy (1916), 275 Ill. 462.) On the other hand, obi-ter dictum or dicta is an opinion expressed by the court on a legal question casually reached by the court on an issue unrelated to the essence of the controversy or based on hypothetical facts. (Larson v. Johnson (1953), 1 Ill. App. 2d 36.) Judicial dictum has been held binding precedent even by modern day “liberal courts.” (In re Marriage of Drews (1985), 139 Ill. App. 3d 763.) Obiter dicta, on the other hand, even that given by the supreme court, is not binding authority, though it may be persuasive. Harms v. Sprague (1983), 119 Ill. App. 3d 503, aff'd (1985), 105 Ill. 2d 215.

Even if the dictum in Zeh v. Wheeler (1986), 111 Ill. 2d 266, is unadulterated obiter dicta, we believe the trial court and ourselves are correct in following it for a number of cogent reasons. First,.although there is some authority to the contrary, the Illinois Code of Civil Procedure is to be construed liberally to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 106.) Second, it is the policy of our Code of Civil Procedure to favor a hearing on the merits of a litigant’s claim. (Meeker v. Payne (1981), 101 Ill. App. 3d 723.) Finally, even if the dictum in Zeh is plain “old obiter dictum,” Justice Stamos, formerly of this court, raised it to the dignity of judicial dictum in Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26.

For all of the above reasons, the certified question is answered “Yes.” The trial court’s denial of Meister-Neiberg’s and Szarek’s motions is affirmed, the stay order previously entered is voided, and the cause is remanded to the trial court for further proceedings.

Affirmed and remanded.

COCCIA, P.J., and LORENZ, J., concur.


text:
      In re FORMATION OF THE MAYWOOD UNIFIED PARK DISTRICT (Maywood Park District, Objector-Appellant, v. Grady Rivers et al., Petitioners-Appellees (Stanley T. Kusper, Jr., as County Clerk of Cook County, Illinois, Respondent)).
    First District (5th Division)
    No. 1—89—2553
    Opinion filed February 16, 1990.

      Gregory A. Friedman, Charlene L. Holtz, and Evdoxia Beroukas, all of Friedman & Holtz, P.C., of Chicago, for appellant.
    Mathias W. Delort, of Odelson & Sterk, Ltd., of Evergreen Park, for ap-pellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Objector-appellant, Maywood Park District (Maywood), appeals from an order of the circuit court of Cook County certifying a petition filed by petitioner-appellee, Maywood Unified Park District (Unified), seeking to submit for referendum at the November 7, 1989, election the question of whether to form a new park district within boundaries coterminous with those of the Village of Maywood and, in so doing, to supersede the West Maywood and Central Area Park Districts. (Objector Maywood was formed as a result of consolidation by ordinances of the West Maywood and Central Area Park Districts. Petitioner Unified was formed by a group of citizens calling itself “Citizens for a Maywood Unified Park District.”) Maywood seeks reversal of the trial court’s order, arguing: (1) that the court “erred in certifying the petition to supercede [sic] existing park districts and form a new park district”; (2) the court lacked jurisdiction to certify the question for referendum because the petition which granted such jurisdiction was invalid as a matter of law; (3) the court erred in holding that it lacked standing to object to the petition; and (4) the court erred in failing to take judicial notice of consolidation ordinances merging the West May-wood and Central Area Park Districts.

The undisputed facts are as follows. On June 19, 1989, the boards of West Maywood and Central Area Park Districts passed a resolution of their intent to consolidate both park districts into one. On June 28, Unified filed a notice of intent to form a new park district to include West Maywood and Central Area Park Districts, as well as the remainder of the Village of Maywood. On June 29, West Maywood and Central Area Park Districts passed ordinances consolidating themselves into the Maywood Park District.

Subsequent to the consolidation of the West Maywood and Central Area Park Districts, Unified circulated its petition. The petition, entitled “IN RE; FORMATION OF THE MAYWOOD UNIFIED PARK DISTRICT,” was filed with the circuit court on July 21. In support thereof, three separate petition sheets were submitted; one set of signatures of legal voters residing in the West Maywood Park District, a second set of signatures of legal voters residing in the Central Area Park District, and a third set of signatures of voters residing in the area within the Village of Maywood not a part of or situated within either park district. The heading on the petition sheets contained the following question:

“Shall a new park district, to be known as the Maywood Unified Park District, be organized to completely supercede [sic] and replace the existing Central Area Park District and the West Maywood Park District and have corporate boundaries that are the same as the corporate boundaries of the Village of Maywood, Illinois?”

On August 18, Maywood filed a motion to strike and dismiss Unified’s petition on the ground that it did not meet the requirements of section 2 — 2.1 of the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 2.1). Maywood argued that pursuant to section 2 — 2.1, two or more park districts must exist within a municipality’s boundaries prior to seeking a petition to have the question of formation of a park district coterminous with the municipal boundaries certified for referendum, which was not the case at the time Unified filed its petition; only one park district existed, i.e., Maywood, which was formed by consolidating the West Maywood and Central Area Park Districts. Maywood further alleged that Unified’s petition heading was inappropriate and improper in that it “misrepresented the facts to the voters,” since the West Maywood and Central Area Park Districts did not exist at the time Unified’s petition was circulated or at the time of hearing in the trial court; the West Maywood and Central Area Park Districts had been “consolidated by ordinances almost a month prior to the circulation of the petition, which were attached to May-wood’s objection to Unified’s petition. On August 28, Maywood filed an additional objection stating as its grounds that the trial court set the date for public hearing on the petition on September 11, four days after the last date for certification of Unified’s petition.

On September 6, Unified filed a motion to strike and dismiss May-wood’s objections as insufficient in law and in fact. On the same date, Unified’s counsel filed a motion for leave to intervene and an application for leave to file a petition in quo warranto on behalf of Grady Rivers, Jr., a candidate running for Unified’s board, a motion to join Stanley T. Kusper, Jr., as a necessary party-respondent, and for certain injunctive relief. On September 11, Unified filed a memorandum in support of its motion to strike and dismiss Maywood’s objections, arguing that Maywood’s objections were filed after the statutory deadline of the Election Code (see Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8), that the filing of its petition superseded any attempt to consolidate by the two “old” park districts, and that Maywood was not a proper objector pursuant to section 10 — 8 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8) because it is not a registered voter, it was not properly formed and, in any event, park districts have no statutory authority to object to consolidation petitions.

On September 11, the trial court entered an order denying May-wood’s additional objections, granting Unified leave to file instanter its motion to strike and dismiss Maywood’s objections to the petition and memorandum in support thereof, granting Maywood time within which to file a reply, and setting the next hearing for September 15. The court also granted Unified's motion to add Stanley T. Kusper, Jr., as an additional party, enjoined Kusper from issuing ballots for the Village of Maywood until the court disposed of Maywood’s objections to Unified’s petition, and entered and continued Rivers’ motion for leave to intervene and to file a complaint in quo warranto.

On September 14, Maywood filed its response to Unified’s memorandum in opposition to strike and dismiss based on its assertion that Unified’s petition was improper and, accordingly, the trial court lacked jurisdiction over the matter. Maywood further argued in support of its lack of jurisdiction assertion that section 10 — 8 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8) “did not control the Petition but that Section 28 — 4 of the Election Code did,” which section contains no time limitations for filing objections and no limitations as to who could file objections (see Ill. Rev. Stat. 1987, ch. 46, par. 28 — 4). Lastly, Maywood contended that the filing of the petition was an illegal attempt to nullify the completed consolidation of the two former park districts (West Maywood and Central Area), because those park districts had been consolidated by ordinances properly passed almost one month before the filing of Unified’s petition.

On September 15, Unified filed a response memorandum in support of its motion to strike and dismiss Maywood’s objections arguing that the merger of the West Maywood and Central Area Park Districts was ineffectual because Unified had published its notice of intent to file its petition on June 28, 1989, and the consolidation ordinances were not passed until June 29.

In response, Maywood advised the court that the West Maywood and Central Area Park Districts met on June 19 and passed a joint resolution which stated their intent to consolidate. Grady Rivers, Jr., one of the petitioners by intervention, was present at the meeting. Unified’s last argument to the court was that even if the ordinances were timely passed, they were illegal because they failed to receive a two-thirds vote of all the board commissioners.

In an order entered by the trial court on September 15, the court overruled the objections of Maywood, found that Maywood had no standing to file objections pursuant to section 10 — 8 of the Election Code (see Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8), sustained Unified’s motion to strike and dismiss Maywood’s objections, dissolved the in-junctive order against Kusper, found that the petition met the requirements of the Park District Code (see Ill. Rev. Stat. 1987, ch. 105, par. 1 — 1 et seq.) and general election law, ordered the question as to whether to form a new park district submitted to referendum, ordered the clerk of the circuit court to certify the names of the appropriate candidates granted Grady Rivers, Jr., leave to file his complaint in quo warranto, granted Maywood leave to file an answer or plead to the complaint, and found that the order was final and appeal-able. It is from this order that Maywood appeals.

For the reasons set forth below, we reverse and remand this matter for further proceedings.

We first find, as Maywood argues, that the trial court erroneously applied section 10 — 8, instead of section 28 — 4, of the Election Code (Ill. Rev. Stat. 1987, ch. 46, pars. 10 — 8, 28 — 4) in dismissing Maywood’s objections based upon lack of standing. Section 10 — 8, which is entitled “Objections to nomination papers, public question petitions and constitutional amendment petitions,” provides, in pertinent part:

“Any legal voter of the political subdivision or district in which the candidate or public question is to be voted on, or any legal voter in the State in the case of a proposed amendment to Article IV of the constitution or an advisory public question to be submitted to the voters of the entire State, having objections to any certificate of nomination or nomination papers or petitions filed, shall file an objector’s petition together with a copy thereof in the principal office or the permanent branch office of the State Board of Elections, or in the office of the election authority or local election official with whom the certificate of nomination, nomination papers or petitions are on file. In the case of nomination papers or certificates of nomination, the State Board of Elections, election authority or local election official shall note the day and hour upon which such objector’s petition is filed ***. In the case of objections to a petition for a proposed amendment to Article IV of the Constitution or for an advisory public question to be submitted to the voters of the entire State, the State Board of Elections shall note the day and hour upon which such objector’s petition is filed ***. In the case of objections to a petition for a public question, to be submitted to the voters of a political subdivision, or district thereof, the election authority or local election official with whom such petition is filed shall note the day and hour upon which such objector’s petition was filed ***.
The objector’s petition shall give the objector’s name and residence address, and shall state fully the nature of the objections to the certificate of nomination or nomination papers or petitions in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board.
The provisions of this Section and of Sections 10 — 9, 10 — 10 and 10 — 10.1 shall also apply to and govern objections to petitions for nomination filed under Article 7 or Article 8, *** and also apply to and govern petitions for the submission of public questions under Article 28.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8.)

Section 10 — 9 of the Election Code is entitled “Electoral boards— Hearing on objections,” which designates the various electoral boards for the purpose of hearing and passing upon an objector’s petition as described in section 10 — 8. (Ill. Rev. Stat. 1987, ch. 46, pars. 10 — 8, 10 — 9.) Section 10 — 10 is entitled “Notice of objections — Notice of hearings — Subpoenas—Rules of procedure — Certified copy of ruling” and provides for the procedures to be followed by the appropriate election authorities in processing objections. (Ill. Rev. Stat. 1987, ch. 46, par. 10 — 10.) Section 10 — 10.1 is entitled “Decision of electoral board — Judicial review” and provides the procedure for review to be taken by a candidate or objector after an adverse decision by an electoral board, first with the State Board of Elections and then, if another adverse decision is rendered, with the circuit court in accordance with the provisions of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Ill. Rev. Stat. 1987, ch. 46, par. 10 — 10.1.

On the other hand, section 28 — 4 of the Election Code, which is entitled “Objections to petitions — Hearing—Notice,” provides, in pertinent part:

“The provisions of Sections 10 — 8 through 10 — 10.1 relating to objections to nominating petitions, hearings on objections, and judicial review, shall apply to and govern, insofar as may be practicable, objections to petitions for the submission of questions of public policy required to be filed with local election officials and election authorities, and to petitions for proposed Constitutional amendments and statewide advisory public questions, required to be filed with the State Board of Elections ***
Objections to petitions for the submission of public questions which are required by law to be filed with the circuit court shall be presented to and heard by the court with which such petitions are filed. In such cases, unless otherwise provided in the statute authorizing the public question, the court shall *** conduct such hearing and entertain all objections as may be properly presented on or before such hearing date in the manner as provided in Article 10 [III. Rev. Stat. 1987, ch. U6, par. 10 — 1 et seq. for the conduct of proceedings before electoral boards, insofar as practicable ***.” (Emphasis added) Ill. Rev. Stat. 1987, ch. 46, par. 28 — 4.

In comparing the above-cited Election Code provisions, we note that section 10 — 8 clearly requires that an objector to a public question submitted to be voted on must be a “legal voter.” However, as Maywood argues, section 10 — 8 pertains to objections required to be filed with an electoral board, whereas a petition for the formation of a park district is required to be filed with the circuit court pursuant to the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 1 — 1 et seq.) in conjunction with the provisions of section 28 — 4 of the Election Code. We further observe that although section 10 — 8 provides that it and sections 10 — 9 through 10 — 10.1 shall govern article 28, and in fact that provision is specifically repeated in the first paragraph of section 28 — 4, we find it odd that the same provision was not specifically set out in the paragraph thereunder concerning petitions for the submission of public questions required by law to be filed with the circuit court. Instead, the legislature appears to have chosen to apply the governance of article 10 broadly to situations where the petitions are required to be filed with the circuit court, by use of the limiting phrase of “insofar as practicable” and by not specifying individual sections of the Election Code as being applicable, such as the “legal voter status” required by section 10 — 8.

In light of the foregoing, we believe, as did the court in In re Organization of Greater Algonquin District (1982), 103 Ill. App. 3d 1056, that application of section 10 — 8 to determine a party’s standing in proceedings to form a park district would be impracticable. In Algonquin, the petitioners challenged the standing of certain objectors; the Village of Lake Hills, whose objection was based on its claim that portions of the proposed park district were already part of the village or in the process of being annexed, as well as owners of legal title of real property or beneficiaries of trusts owning real property in the area. In holding that the respondent-objectors had standing, the Algonquin court specifically stated:

“Considering the differences between organization of a park district and nomination of persons for public office under the Election Code, it would appear that the interest necessary to file objections to a petition to organize a park district should not be restricted to only ‘legal voters.’ (See, e.g., In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.) We find here that the statements of interest contained in the objections are sufficient to entitle all the objectors to object to the formation of the district.” (Emphasis added.) 103 Ill. App. 3d at 1065.

We further briefly note that Shick v. Dixmoor Park District (1989), 184 Ill. App. 3d 513, upon which Unified relies in support of its argument that Maywood lacked standing, is distinguishable from the situation before us. In Shick, where a voter filed a petition with the Cook County Officers Electoral Board for submission of a question whether the Dixmoor Park District should be dissolved, the court observed:

“[T]he park district has cited no authority in support of the proposition that its board is authorized to challenge plaintiff’s petition. The county clerk, although conceding that the individual commissioners of the park district can challenge the dissolution petition as registered voters, denies that the park district, as such, can challenge plaintiff’s petition.” (184 Ill. App. 3d at 518.)

Unlike the situation here, the petition at issue in Shick was required to he filed with an electoral hoard. We further note that the above-quoted excerpt is merely an observation by the court; whether the Dixmoor Park District or its board had standing was not addressed by the court, as indicated by the remainder of the paragraph, which reads as follows:

“The county clerk instructs us that the last day for filing objections to the subject petition was January 23, 1989. [Citation.] That is, the county clerk argues, any voter wishing to object had until five business days after the last day for filing petitions to file objections with the County Officers Electoral Board; for the April 4, 1989, election, the last day to file petitions was January 17, 1989. Based on this fact, January 23, 1989, was the last day to file petition objections with the electoral board. The park district did not file objections until February 21, 1989, when several commissioners submitted affidavits attacking plaintiff’s petition. Section 10 — 8 of the Election Code also mandates that plaintiff's petition is deemed valid, by operation of law, since it was not challenged in a timely manner. Thus, the park district’s contention that there was no opportunity to challenge plaintiff’s petition is without merit.” (184 Ill. App. 3d at 518.)

Shick, therefore, is not support for Unified’s position.

We also believe that the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 1 — 1 et seq.) supports our position. Although no definite provision exists concerning the required status of parties who desire to object to a petition to submit the question of the formation of a park district to the voters, we find that to limit them to “legal voters” would contravene a park district’s general corporate powers “to sue and be sued” and its general obligation to do any and all acts necessary for its corporate purposes and protection of the park district. See Ill. Rev. Stat. 1987, ch. 105, par. 8 — 1.

In light of the foregoing, we therefore hold that Maywood had standing, if it constituted a properly formed park district, to object to Unified’s petition. Since the validity of Maywood’s existence has been challenged in a quo warranto complaint filed by Grady Rivers, Jr., a candidate for the office of commissioner of the Maywood Unified Park District, against the commissioners of Maywood Park District, which is pending in the trial court, we do not address any other issue raised by the parties here. This matter must be remanded to the trial court for proceedings on the quo warranto complaint to determine the validity of Maywood’s existence as a properly formed park district and, if validly formed, the trial court must find that Maywood had standing to object and it must conduct further proceedings on the issues raised by the parties to determine whether any vote on the referendum question should be declared valid or invalid.

Reversed and remanded.

LORENZ and GORDON, JJ., concur.


author: JUSTICE McNAMARA

text:
      In re G.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. G.S., a Minor, Respondent-Appellant).
    First District (6th Division)
    No. 1—88—0057
    Opinion filed February 16, 1990.
    Rehearing denied March 27, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Diann L. Doppelt, Assistant State’s Attorneys, of counsel), for the People.
    Ruthanne DeWolfe and Diane Redleaf, both of Legal Assistance Foundation of Chicago, of Chicago, for amicus curiae.

   JUSTICE McNAMARA

delivered the opinion of the court:

Respondent G.S., a minor, appeals from a finding of delinquency based on an aggravated battery. He contends that commitment to the Department of Corrections, rather than referral for private psychiatric treatment, was an abuse of discretion, violating due process and the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 1).

Robert Gordon, the 15-year-old victim, testified that on May 16, 1987, at 10 p.m., he was walking with two friends in Chicago when he heard Brian Martin yelling gang sayings. Gordon and his friends crossed the street to avoid Martin. They heard a gunshot and began to run. Gordon turned and saw G.S. fire twice more at Gordon, who fell to the ground when a bullet struck his right shin. Gordon then saw G.S. on one knee aim and fire again, but the bullet struck a garage. Gordon subsequently underwent surgery to remove the bullet and fragments.

John Goodwin, age 16, testified that he was with Gordon when he saw G.S. shooting at them. After Gordon fell, Goodwin saw G.S. drop to one knee and shoot at Goodwin. He believed G.S. was wearing a short-sleeved white shirt.

G.S. testified that he and several friends were walking that night when they saw Gordon and his friends. G.S. then saw Sammy Rafer inside a car, waving a gun. Rafer fired the gun four or five times.

G.S.’s brother testified for G.S. that on that night, G.S. wore a black T-shirt.

Based on the evidence, the court made a finding of delinquency.

At a subsequent dispositional hearing, probation officer Keller testified that G.S. had three previous court referrals, two for battery, and one for arson. He pointed out that the psychiatric evaluation recommended hospitalization and specified that it could be either public, private or in a correctional setting. G.S. had been hospitalized at Riveredge Hospital in 1986 for psychiatric treatment. G.S.’s mother wished to place G.S. in a 45-day program at Forrest Hospital, which was a secured setting. Keller recommended, based on the severity of the offense, his interviews with G.S.’s psychiatrist and the various psychological evaluations, that G.S. be committed to the Department of Corrections.

Dr. Daniel Schiff, a psychiatrist with the county department, juvenile division, evaluated G.S. Dr. Schiff concluded in writing that in-patient psychiatric hospitalization would assist in further evaluating any neurological problems and working out a lasting treatment program. He described G.S. as emotionally unstable, with quick surges of untempered emotion, and with possible brain or seizure disorders.

A report from Dr. Robert Zagar, a psychologist, stated that G.S. exhibited a penchant “for translating needs, wishes and desires into highly impulsive emotional and behavioral expressions of a quite hysterical nature.” Dr. Zagar recommended long-term psychotherapy, medication, speech and hearing therapy, special education placement in a psychiatric facility whether correctional, private or public. He stated that without such efforts, “[regardless] of whether he stops or continues drinking and abusing drugs, he will act out in a psychologically self-destructive and overtly dangerous way.” He concluded that G.S. “exhibits four of the tetrade of symptoms of criminally violent family member, gang membership, alcohol and drug abuse plus severe learning difficulties, all [of] which seem to be clinically and to statistically predict homicide.”

A letter from Dr. Lerwut Wongsarnpigoon, a psychiatrist, stated that G.S. was being treated on an outpatient basis with medication for major depression and mood swings. The doctor recommended re-hospitalization because the present placement in the juvenile detention center was exacerbating G.S.’s psychiatric condition.

A June 1986 social history and assessment from Riveredge Hospital stated that G.S. had been involved in fights, associated with a gang, had a gun, had a chronic problem obeying curfew, and had “severe mood swings and engag[es] in physical attacks on the mother, in which he pushes, hits and kicks her.” G.S. was frequently a truant and used drugs and alcohol regularly. His mother believed he might experience petit mal seizures. A July 1986 discharge summary from Riveredge stated that G.S. initially had been verbally abusive and threatening to the staff, and was placed in restraints shortly after admission. He was again put in restraints following a visit from his mother.

The State recommended placement in the Department of Corrections, and defense counsel argued for probation with placement in a private psychiatric hospital. The court committed G.S. to the Department of Corrections and stated that it would write a letter strongly indicating that G.S. be given psychiatric care. The court specifically found that G.S. was beyond the control of his parents or guardian; that it would be in his best interest and the best interest of the community that he be made a ward of the court; and that he was a danger to himself and the community.

Under the Juvenile Court Act, the court may commit a delinquent to the Department of Corrections where less severe placement alternatives would not be in the best interest of the minor and the public, and the court may consider prior arrests, station adjustments, curfew violations and the social investigation. (Ill. Rev. Stat. 1985, ch. 37, pars. 705 — 1(1), 705 — 7, 705 — 10(l)(a).) Moreover, the disposition entered by a juvenile court judge rests within that court’s discretion, and this court will not disturb that decision absent an abuse of discretion. In re T.M. (1984), 125 Ill. App. 3d 859, 466 N.E.2d 1328.

The court was given several alternatives for G.S.’s disposition. Defense counsel argued that G.S. should be placed in a private hospital for psychiatric evaluation and treatment. The court carefully considered this option, but rejected it for several reasons. The program was limited to 45 days. Also, the court had made repeated referrals to that particular hospital resulting in the premature release of the minors.

Of great significance here, however, is the nature of the crime committed. Two eyewitnesses watched G.S. repeatedly shoot at the victim and his companions as they tried to flee. Even after the victim fell to the ground, G.S. took aim and continued shooting. The shooting was apparently unprovoked and gang related. The gravity of the offense distinguishes this case from those relied upon by G.S. See, e.g.,In re B.S. (1989), 192 Ill. App. 3d 886.

Furthermore, Dr. Zagar expressly warned against releasing G.S. He opined that it was likely that G.S. would commit additional violent crimes, including homicide.

Given these sound reasons underlying the court’s decision, we find no abuse of discretion.

G.S. points to his obvious need for psychiatric care. He refers to a head injury at age four and other possible neurological problems. The trial court acknowledged G.S.’s needs. There was nothing presented, however, indicating G.S. would not receive adequate treatment through the Department of Corrections. The court stated it would write a letter to the Department of Corrections “indicating that he should get the type of psychiatric help he needs and let them place him in a psychiatric setting rather than the mother doing it privately.” Moreover, the court was required to perform the difficult task of weighing G.S.’s needs against society’s critical need to be protected from further acts of grave violence by G.S.

G.S. also maintains that the disposition violated his right to due process. There has been no evidence presented, however, that G.S. will be denied a right to psychiatric treatment at the Department of Corrections. Cf. Nelson v. Heyne (7th Cir. 1974), 491 F.2d 352 (right to treatment includes right to minimum acceptable standards of care and treatment for juveniles).

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

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE RAKOWSKI

text:
    J.M. BEALS ENTERPRISES, INC., Successor to Industrial Hard Chrome, Inc., Plaintiff-Appellee, v. INDUSTRIAL HARD CHROME, LTD., Successor to C.G. Therkildsen, Inc., Defendant-Appellant (American Mutual Insurance Company of Boston, Defendant-Appellee).
    First District (6th Division)
    No. 1—88—2425
    Opinion filed February 16, 1990.
    Rehearing denied March 27, 1990.

      Biestek & Scott, Ltd., of Arlington Heights (Edward A. Scott III, of counsel), for appellant.
    Morgan, Lanoff, Denniston & Madigan, Ltd., of Chicago (Samuel M. Lanoff and Mark L. Dressel, of counsel), for appellee J.M. Beals Enterprises, Inc.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This is an appeal from a summary judgment in favor of plaintiff J.M. Beals Enterprises, Inc. (Beals, Inc.), successor to Industrial Hard Chrome, Inc. (Industrial, Inc.). In granting the motion, the trial court ruled that under the terms of a purchase and sales agreement (P&SA), defendant Industrial Hard Chrome, Ltd. (Industrial, Ltd.), successor to C.G. Therkildsen, Inc. (Therkildsen, Inc.), must pay the retrospective premiums charged to Beals, Inc., by defendant American Mutual Insurance Company of Boston (American). On appeal, Industrial, Ltd., raises the single issue of whether the trial court erred in granting summary judgment for Beals, Inc., because it determined, as a matter of law, that Industrial, Ltd., was only entitled to the surplus generated by American after the final policy audit and not entitled to any and all refunds or credits issued while the audit was still in process and some premiums might still be due.

This appeal arises out of an action for declaratory judgment filed by Beals, Inc., to determine the legal effect of certain terms in a P&SA with the defendant Therkildsen, Ltd.

The undisputed facts are that on or about October 18, 1985, J.M. Beals (Beals); Industrial, Inc.; Charles George Therkildsen (Therkild-sen); and Therkildsen, Inc., entered a P&SA for the transfer of assets from Industrial, Inc., to Therkildsen, Inc., which renamed the transferred company Industrial, Ltd. Article I of the P&SA provided for the transfer of the assets “owned by the Company at closing.” Article I also contained the following provision: “Buyer shall assume only the liabilities and obligations itemized in Schedule B at closing which has been approved in writing by the parties hereto and which are part of this Agreement as though specifically attached hereto.” Article IV(H) stated that all outstanding contracts were listed in schedule C, a listing which included “Workmen’s Comp. Insurance.”

The parties agree that one of the items transferred from Industrial, Inc., to Industrial, Ltd., was an insurance policy for workers’ compensation and employer’s liability issued by American to Industrial, Inc. The parties agree further that the premiums owed to American before the transfer of assets were not listed in the itemization of liabilities in schedule B.

The American policy had been purchased by Beals to provide coverage on Industrial, Inc., effective February 1, 1985, to February 1, 1986. That policy provided for retrospective premium calculations. Thus, Beals would pay initial premiums, and American would later audit the account and issue refunds, credits, or charges in accordance with policy provisions. On October 26, 1985, after the sale, American cancelled the policy for Industrial, Inc., and issued a new policy to cover Industrial, Ltd.

After the cancellation of the policy for Industrial, Inc., American audited the account. As a result of the audit process, American sent Industrial, Ltd., a refund for $9,070 on January 20, 1986, and two credits for $4,417 and $685 on January 31, 1986, for a total of $14,172.00. In the complaint for declaratory judgment, Beals, Inc., claimed that it and not Industrial, Ltd., should have received this money as a refund from the cancelled policy. Since Beals, Inc., is no longer advancing this claim on appeal, it now effectively concedes that Industrial, Ltd., is entitled to this money.

As a result of the same auditing process, American sent an invoice for $4,816 in premiums due to Therkildsen, who forwarded it to Beals for payment. Beals paid that amount to American on June 17, 1986. Later American claimed an additional retrospective premium charge of $1,578. At present the parties dispute whether Beals, Inc., or Industrial, Ltd., should have been responsible for $6,394, which was the final total of premiums due.

On June 1, 1988, the trial court heard motions for summary judgment filed simultaneously by Beals, Inc., Industrial, Ltd., and American. At that time, Industrial, Ltd., argued that the retrospective premium charges due to American had not appeared in schedule B of the P&SA, which listed all liabilities Therkildsen, Inc., or Industrial, Ltd., would assume. Beals, Inc., argued that the American policy was an asset transferred in the sale but the exact value of the asset could not be determined until after American had audited the policy history. In effect, Beals, Inc., asserts that the amounts due to American were not liabilities but simply setoffs against the amounts American would pay Industrial, Ltd.

After hearing the arguments, the trial court held that the $4,816 already paid by Beals and the $1,578 still unpaid were setoffs against the $14,172 which Industrial, Ltd., had already received. Thus, Industrial, Ltd., should have received only $7,778. Consequently, the court entered judgments against Industrial, Ltd., for $1,578 to American and $4,816 to Beals, Inc., on the theory that Industrial, Ltd., had received too much money because the true value of the policy had not been determined until after American had completed the audit and placed all charges against the policy refunds.

Summary judgment is proper where the parties agree on the relevant facts and the record presents purely questions of law. (International Insurance Co. v. Melrose Park National Bank (1986), 145 Ill. App. 3d 286, 288, 495 N.E.2d 1197, 1198.) When parties agree that the language of a contract is clear and unambiguous, then construing the contract is a matter of law appropriate for summary judgment. La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697, 699.

A court must construe the meaning of a contract by looking at words used and cannot interpret the contract in a way contrary to the plain and obvious meaning of these words. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480, 481.) If the contract is clear and unambiguous, a reviewing court must enforce the contract as written. (A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 329, 477 N.E.2d 30, 33.) Furthermore, a court may not add provisions to an unambiguous contract even if these make the contract more equitable. Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 809-10, 459 N.E.2d 1164, 1168.

A contract term is ambiguous when its terms can reasonably be interpreted in more than one way. (Zurich Midwest, Inc. v. St. Paul Fire & Marine Insurance Co. (1987), 159 Ill. App. 3d 961, 963, 513 N.E.2d 59, 60.) The mere fact that parties disagree on some term, however, is not a sign that the term is ambiguous. Johnstowne Centre, 99 Ill. 2d at 288, 458 N.E.2d at 481.

In the absence of ambiguity, a court must treat the language in a contract as a matter of law and construe the contract according to its language, not according to constructions which the parties place on this language. (Lenzi v. Morkin (1984), 103 Ill. 2d 290, 293, 469 N.E.2d 178, 179.) Unless the contract clearly specifies its own meanings, the court must interpret the words or language of the contract with their common and generally accepted meanings. (Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 1081, 408 N.E.2d 778, 781.) Furthermore, the court must place the meanings of words within the context of the contract as a whole. Board of Trade v. Dow Jones & Co. (1983), 98 Ill. 2d 109, 122-23, 456 N.E.2d 84, 90.

In this case, all three parties filed motions for summary judgment and agreed as to the facts and contract language. On appeal, their positions have not changed. Even Beals, Inc., now agrees that, if the American policy audit had yielded only premiums due, Beals, Inc., would have had to pay these premiums because they were not listed as transferred liabilities on schedule B of the P&SA. Furthermore, Beals, Inc., now concedes that Industrial, Ltd., is entitled to the net surplus generated by the American policy during the final audit process. Therefore, if the audit had yielded only surplus finds, these would belong solely to Industrial, Ltd.

Both Beals, Inc., and Industrial, Ltd., agree that the contract itself is not ambiguous. The parties also agree that Industrial, Ltd., should receive the surplus credits from the American policy but did not assume liability for retrospective insurance premiums. The parties only disagree about whether the retrospective payments are, as a matter of law, liabilities or simply setoffs against the policy surplus. Industrial, Ltd.’s entire premise is that the retrospective premiums were a liability. It argues this irrespective of the fact that if one awaited the final audit there would only be a surplus.

The dispute simply is whether the language of the contract means that Industrial, Ltd., is entitled to all surplus funds generated at any point during the audit process or only the net surplus .remaining after the audit was completed. The contract is silent on this point. Since there is no ambiguity, the court must interpret the contract as a matter of law by giving the instrument a “fair and reasonable interpretation based on consideration of all its language and provisions.” Shelton v. Andres (1985), 106 Ill. 2d 153, 159, 478 N.E.2d 311, 314.

Industrial, Ltd., has not given any reason, nor can we conceive of any, why the deficit or surplus should be determined on a day-by-day basis. At the time the P&SA was executed, it was clear that the American policy was of undetermined value. It could become either an asset or liability depending on future audits. As it turned out, the policy provided a surplus, that is, more credits than additional premiums and the trial court so held. This, we hold, is a reasonable interpretation of the contract. Indeed, if the periodic audits had been replaced by one final audit, the parties would be in agreement.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.