author: PRESIDING JUSTICE GOLDENHERSH

text:
      In re MARRIAGE OF WALTER LEE DeBOW, Petitioner and Counterrespondent-Appellee, and EARLINE DeBOW, Respondent and Counterpetitioner-Appellant.
    Fifth District
    No. 5—91—0221
    Opinion filed November 10, 1992.

      John T. Papa, of Pratt & Callis, P.C., of Granite City, for appellant.
    John Baricevic, of Belleville, for appellee.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent/counterpetitioner, Earline DeBow (respondent), appeals from an order of the circuit court of St. Clair County distributing marital property and obligations between the parties. In this cause, respondent raises two issues: (1) whether the disposition and division of marital obligations and marital assets, namely a $3,400,000 judgment awarded to petitioner/counterrespondent, Walter Lee DeBow (petitioner), for injuries sustained after a beating by a fellow inmate during petitioner’s incarceration in the East St. Louis city jail, was equitable and supported by the evidence, and (2) whether the child support award conforms to the requirements of section 505 of the Blinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505). We affirm in part, reverse in part, and remand with directions.

Respondent has filed a motion requesting we take judicial notice of a petition and order entered in In re Estate of Walter DeBow, a Disabled Person, St. Clair County No. 88—P—442. In that cause, the trial court entered an order on February 21, 1992, allowing the guardian, Richard DeBow, to remove petitioner herein from a treatment center and to provide care and housing at the guardian’s own home. The court also allowed the request of the guardian for a monthly disbursement of $6,500 to pay petitioner’s room, board, supervision and therapy. By an order entered August 11, 1992, this amount was reduced to $4,000 per month, and a separate motion was filed to take judicial notice. Respondent asserts that in the interests of judicial fairness and economy, this court should take judicial notice of the foregoing proceedings because they constitute a substantial change in anticipated costs of caring for petitioner herein. Petitioner objects and responds that the proffered documents do not reflect the true intent of the trial court. Petitioner contends that in the event this court does take judicial notice of the aforementioned proceedings, we should review the entire transcript of the hearing on the petition for approval of expenditures, which was not originally tendered. Petitioner later filed a copy of the entire transcript and record in No. 88—P—442, and we have reviewed it.

A trial court should take judicial notice of closely related proceedings. (See Goad v. Evans (1989), 191 Ill. App. 3d 283, 547 N.E.2d 690 (which held that the circuit court in a wrongful death action should have taken judicial notice of a letter of administration appointing the plaintiff administrator of her son’s estate).) Judicial notice may be taken of factual evidence where the facts are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy. (People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792.) Judicial notice of other proceedings may be proper where the same parties are involved and the allegations from those proceedings have been proved. (Walsh v. Union Oil Co. (1972), 53 Ill. 2d 295, 291 N.E.2d 644.) Here, the order in No. 88 — P—442, which was attached to respondent’s motion, authorizes the requested change in petitioner’s residence, as well as authorizes the $6,500 disbursement to his guardian. The record supports the order. For reasons later explained, we do not believe that these changes affect the disbursement of marital assets. Therefore, in the interest of judicial economy and the reasons stated above, this court grants respondent’s motions to take judicial notice.

I

Petitioner and respondent were married on July 21, 1975, but had lived together for approximately nine years prior to their marriage. The parties have two children, Pierre DeBow, bom September 25, 1970, and Tamika DeBow, bom February 1, 1979. On January 24, 1984, petitioner sustained injuries while he was being held in the East St. Louis city jail. On May 17, 1985, the estate of Walter DeBow was awarded a $3,400,000 jury verdict against the City of East St. Louis for petitioner’s injuries. The judgment was affirmed by this court in DeBow v. City of East St. Louis (1987), 158 Ill. App. 3d 27, 510 N.E.2d 895.

At the time of petitioner’s injury, the parties were married. Due to petitioner’s injuries, respondent was appointed as guardian of the estate and person of petitioner. As such, she hired a law firm to represent her and her husband in their suit against East St. Louis and attended each day of the trial. Respondent was directly involved in making medical decisions for her husband during his hospitalization and subsequent rehabilitation. Respondent acted as guardian until April 30, 1986, when petitioner’s brother and sister were substituted.

On January 19, 1988, petitioner, through his guardian, filed a petition seeking dissolution of marriage from respondent. After initially contesting the action, respondent filed a counterpetition seeking dissolution. The parties ultimately stipulated to grounds for dissolution and child custody. Respondent has custody of both children. At the time the action was filed, the only major marital asset was the $3,400,000 judgment against the City of East St. Louis. The parties stipulated that East St. Louis had agreed to periodic payments on the judgment. The payments are to be funded by a bond issue of July 1988, satisfied by a utility tax on power usage within East St. Louis. As of June 1, 1990, all scheduled payments had been met. The viability of the bonds, however, is questionable. Petitioner’s attorney in the suit against East St. Louis, Clyde Kuehn, filed an affidavit in the instant proceedings. It stated, in pertinent part:

“2. These bonds as presently constituted, and given the financial reputation and condition of the City of East St. Louis[,] are virtually incapable of selling without a greater than fifty percent discount.
3. The structure of the bond, being dependent upon power usage of the businesses and residents of the City of East St. Louis, and being secondary to a prior bond issue[,] is extremely high risk.
4. The continued viability of the payment on this issue is tied not only to the financial improvement of the City of East St. Louis, but also to the decline in population and business enterprises within the corporate limits.
Any future payments in satisfaction of the bonds are necessarily dependent upon utility tax revenues that depend upon increased usage and/or increase in utility rates. A decline in population and/or business, and corresponding decline in power usage could reduce the revenue that is the sole source of bond commitment.”

Testimony was presented on property and support issues. At the hearing, respondent testified that she attended 12th grade but did not graduate. Since the beginning of her relationship with petitioner in 1966, respondent has had only minimal employment. She worked for McDonnell-Douglas in 1966 as a sheet metalist for a short period of time. In 1972, respondent was hired by Cordis Carburetor, where she worked for one month. Petitioner urged respondent to quit both jobs and stay at home. At present, respondent does not believe she can work 40 hours per week. Respondent stated that she suffers from allergies and asthma and frequently has attacks, which keep her awake and often require her to seek treatment at an emergency room. Respondent also complained of back and leg pain. No medical evidence was offered to support respondent’s testimony concerning her physical infirmities.

Respondent testified that her monthly expenditures in 1989 included a rent payment of $425 per month and grocery bills of $400 per month. Respondent also had unspecified clothing, medical and dental expenses. At the time of the hearing, respondent’s automobile needed a minimum of $500 in repairs. Since July 5, 1988, respondent has received $1,500 in monthly child support payments from petitioner’s estate. Since January 1984, respondent and the parties’ two children have received $321 per month in Social Security benefits. Respondent testified that since 1984, she has borrowed approximately $6,500 from friends and family to pay expenses incurred by her and her two children.

Pierre DeBow has a learning disability. At the time of the hearing he had not completed high school and was one year behind where he should have been. A guardian ad litem was appointed in this case to protect the children’s rights. He opined that Pierre would be able to complete high school and care for himself. The guardian ad litem also found Tamika DeBow to be an excellent elementary school student. Respondent hopes Tamika will attend a private high school and later attend college. Both children want to maintain a relationship with petitioner.

Respondent testified that the parties have outstanding obligations which include the following:

Bills while residing with petitioner
prior to injury $5,000.00
Illinois Power 400.00
Illinois Bell 345.00
H.C. Crummery (bedroom furniture) 1,200.00
Health Spa 160.00
Avis Rental Car 230.00

Respondent had outstanding legal fees totaling $4,815 for this and prior actions. Respondent does not have enough income to allow the children to visit petitioner in New Jersey, where he presently resides.

Petitioner has made progress since his injury. Initially, petitioner was in a coma. He subsequently regained consciousness and was transferred to a number of long-term care facilities. At the time of the hearing, respondent was being cared for at Independent Life Springs care facility in New Jersey. Since his transfer to New Jersey, respondent has made considerable progress. He is no longer confined to a wheel chair. He visited his brother’s home, goes to shopping centers, walks, runs, and dances. He is able to conduct lengthy telephone conversations with respondent. Petitioner’s main problem seems to be short-term memory loss. It was generally agreed that petitioner would need specialized care for the rest of his life. At the time of the hearing, petitioner’s care at the New Jersey facility cost approximately $7,500 per month. Petitioner now resides with his guardian, and the estate disburses $4,000 per month to the guardian for petitioner’s care.

There was testimony presented by petitioner’s guardian at the hearing on the petition for approval of expenditures and change in residence that the cost of treating petitioner at Independent Life Springs had increased 80% over his four-year stay. Because of these increases, petitioner was not getting the rehabilitative and therapeutic treatment necessary for an even greater recovery. Petitioner’s guardian wanted petitioner to move in with him, his wife and his stepson, so that the cost of petitioner’s care could be stabilized. Petitioner anticipated that his family would receive approximately $15,000 per year out of the funds disbursed by the estate for petitioner’s care. The remaining $60,000 would be spent on intensive therapy. Petitioner’s guardian explained that the high cost of residential living in a facility such as Independent Life Springs is primarily due to around-the-clock supervision. With the guardian and the guardian’s family providing 24-hour supervision, more money could be spent on intensive therapy, which petitioner did not get at Independent Life Springs.

The Illinois Department of Public Aid exercised a lien against petitioner’s judgment for care provided to petitioner prior to his transfer to New Jersey. That lien has been satisfied from payments made by the city. Other medical expenses incurred by petitioner have also been paid. Forty percent of the payments made by the city on the judgment goes to the firm which represented petitioner’s estate in the suit against the city. Costs associated with the instant litigation have also been satisfied by the estate.

The order from which respondent appeals was entered on March 7, 1991. In that order, the trial court incorrectly stated that petitioner had obtained a $4 million judgment against the City of East St. Louis. The correct amount of this judgment is $3,400,000 as agreed by the parties. The trial court also found evidence that the City of East St. Louis “will be unable to meet the obligations of the judgment and the agreement entered into for the payment of the judgment.” The trial court stated that even though the judgment was marital property, its main concern was that petitioner would receive all medical and rehabilitative treatment necessary to prepare him for a life independent of an institution. With petitioner’s health being of primary importance, the trial court discussed the cost of his health care. At the time of the hearing, petitioner’s stay at Independent Life Springs cost $260 per day. (By February 18, 1992, the date of the hearing on the petition for approval of expenditures and change in residence to the guardian’s home, petitioner’s stay at Independent Life Springs had increased to $325 per day.) The trial court then assumed that the annual inflation rate for health care would be 9% and further assumed petitioner would live to be 74 years old, making the total estimated cost for his care and treatment $6,598,571, barring any significant medical complications. Given the speculative nature of any future payments by the city and the court’s emphasis on the well-being of petitioner, the court directed payment as follows:

“a) That the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) previously awarded as temporary child support is to continue as present support and petitioner/ counter-respondent is ordered to make said payments during the minority of the children or when they complete high school, whichever occurs later.
b) That there be no distribution between the parties during the first 5 years when the Judgment bonds shall become due, or when the Guardian has accumulated a cash reserve of $500,000.00, whichever occurs later, but rather they should be paid directly to the petitioner/counter-respondent’s guardian to be placed in trust for his medical and rehabilitation needs. This would allow a sufficient reserve to build up so that the petitioner/counter-respondent’s needs would be satisfied for not only the present, but also for a sufficient time in the future.
c) That commencing on 7/1/93 or whenever the cash reserve of $500,000.00 has been accumulated, whichever occurs later, and following each and every year thereafter, the first 50% of said proceeds (after attorney’s fees and costs) would be paid directly to the petitioner/counter-respondent’s Guardian so that the trust fund could remain ongoing. The balance of said funds shall then be split equally between the parties within 30 days that said bonds are due.
d) That if at any time the funds accumulated for the medical care and need of the petitioner/counter-respondent fall below the sum of $500,000.00, all distribution of the funds shall cease, and there shall be no distribution between the parties until cash reserve is built up to the level of $500,000.00. Upon attaining that level, distribution shall be in accordance with paragraph (c).”

Petitioner appeals from the trial court’s order.

II

The first issue we are asked to address is whether the disposition and division of marital assets, namely the $3,400,000 judgment, and marital obligations were equitable and supported by the evidence. Respondent contends that the trial court abused its discretion in determining that petitioner’s well-being took precedence over support considerations. Respondent argues that “there is absolutely no support in the record to establish a cash reserve of $500,000.00 in the estate account or to delay any distribution of the marital asset until July 1, 1993, or beyond.” According to respondent, this distribution scheme punishes her and her children when they have committed no offense. We disagree.

The parties agree that the $3,400,000 judgment is marital property. (In re Marriage of Burt (1986), 144 Ill. App. 3d 177, 494 N.E.2d 868.) The only question is whether the trial court made a proper distribution of this asset between the parties. The distribution of marital assets is left to the sound discretion of the trial court. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 180, 429 N.E.2d 465, 468; In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1019, 471 N.E.2d 1008, 1012; In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 414, 464 N.E.2d 795, 802-03.) An abuse of discretion in distributing marital assets upon dissolution occurs only when a court so exceeds the bounds of reason that no reasonable person would take the view the court adopted. In re Marriage of Click (1988), 169 Ill. App. 3d 48, 57, 523 N.E.2d 169, 175; Hilkovitch, 124 Ill. App. 3d at 414, 464 N.E.2d at 803.

Section 503(d) of the Act expressly directs the trial court to take into consideration the following relevant factors when dividing marital property:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” (Ill. Rev. Stat. 1989, ch. 40, pars. 503(d)(1) through (d)(11).)

In In re Marriage of Burt (1986), 144 Ill. App. 3d 177, 494 N.E.2d 868, our colleagues in the Fourth District Appellate Court faced nearly the same challenge we face here. In Burt, the husband obtained a structured settlement of $230,000 for a personal injury claim resulting from an automobile accident during pendency of the parties’ divorce proceedings. The trial court found that the settlement was marital property. The Burt court agreed and went on to find that the trial court did not abuse its discretion in distributing the proceeds of the settlement. A portion of the settlement consisted of furnishing the petitioner with an annuity of slightly more than $3,400 per month to be paid to him beginning on his 65th birthday, some 20 years in the future. The annuity had a present cash value of $55,000. (144 Ill. App. 3d at 178-79, 494 N.E.2d at 869.) The Burt court agreed with the trial court that the wife “should have a one-half interest in the value of the annuity and one-half of the cash balance of the settlement, which balance, together with interest, then totaled $49,279.82.” (144 Ill. App. 3d at 179, 494 N.E.2d at 869.) To effectuate this decision, the court ordered the petitioner to pay the respondent the sum of $52,139.91. The Burt court affirmed the settlement, finding that the trial court had to choose between attempting to make the petitioner whole for his pain and suffering and making sure the petitioner’s family would be taken care of properly because there was not enough money to do both. In such a situation, the Burt court determined that support considerations should predominate. (144 Ill. App. 3d at 183, 494 N.E.2d at 872.) The Burt court did find, however, that a court is authorized to consider the disability of the injured spouse and accordingly award more to the disabled spouse. Specifically, the Burt court noted:

“By the terms of section 503(d), in dividing marital property, the court is expressly directed to consider ‘the age, health, *** employability, *** and needs of each of the parties’ (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)(7)) together with the opportunity of a spouse to secure future income (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)(10)). This, of itself, authorizes the court to consider the disability of an injured spouse and award a larger portion of marital property, including proceeds of a cause of action to that spouse. Moreover, the factors expressed in section 503(d) are not the only factors that can be considered. Other factors may be considered if relevant. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465; Ill. Ann. Stat., ch. 40, par. 503, Historical & Practice Notes, at 61 (Smith-Hurd Supp. 1986).) The pain and suffering and disability of an injured spouse would be relevant considerations.” Burt, 144 Ill. App. 3d at 182, 494 N.E.2d at 871.

In the present case, the trial court’s main concern was “to insure that *** petitioner *** receive all the medical and rehabilitative care and treatment necessary not only to treat him for the permanent injuries that he sustained but to prepare him, to the greatest extent available, for life as independent from an institutionalized setting as possible.” This is a legitimate concern, as acknowledged not only by the Burt court but by several others. (See In re Marriage of Click (1988), 169 Ill. App. 3d 48, 57-58, 523 N.E.2d 169, 175; In re Marriage of Fuggiti (1985), 130 Ill. App. 3d 190, 474 N.E.2d 386; In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283.) To reach this goal, the trial court, first, ordered payment of fees to the law firm which represented petitioner in his personal injury action; second, ordered that the temporary child support award of $1,500 per month be made permanent; third, ordered that there be no distribution between the parties during the first five years when the bonds become due or until a cash reserve of $500,000 be accumulated, whichever occurred later, in order to build up a sufficient reserve to ensure petitioner’s needs be satisfied now and in the future; and, finally, ordered that beginning on July 1, 1993, or when a $500,000 reserve has accumulated, whichever occurred later, and every year thereafter the first 50% of the proceeds of the judgment be paid to petitioner’s guardian to ensure that the trust remains ongoing and the remaining 50% be split between petitioner and respondent. In short, this order requires that after attorney fees and child support are paid, the remaining money be split between the parties at a rate of 75% for petitioner and 25% for respondent. This division will not occur, however, until a cash reserve of at least $500,000 is on hand in order to ensure that petitioner’s needs will be met now and in the future. Respondent apparently does not contest the actual percentages awarded to the parties but contends that this imposed gap in her receipt of support is unwarranted because it is not clear that the city will be unable to meet its payments to petitioner as scheduled. We disagree.

Respondent asks us to take judicial notice of an order entered in a separate probate matter which allowed petitioner’s guardian to remove petitioner from Independent Life Springs treatment center and care for petitioner at home. For reasons previously stated, we have agreed to take judicial notice of the order and the record in No. 88—P—442. (For additional authority, see Seniuta v. Seniuta (1975), 31 Ill. App. 3d 408, 334 N.E.2d 261, where, in a divorce action, the court took judicial notice that there had been mortgage foreclosures on the husband’s properties.) Likewise, we will take judicial notice of our own recently entered opinion in Estate of DeBow v. City of East St. Louis (1992), 228 Ill. App. 3d 437, 592 N.E.2d 1137, appeal allowed (1992), 146 Ill. 2d 626, in which the financial difficulties of the city and their effect on obligations owed petitioner were noted. Petitioner’s attorney in his suit against the city filed an affidavit in the instant case which states that, because of the financial condition and reputation of the city, the bonds “are virtually incapable of selling without a greater than 50% percent discount” and that the bonds are extremely high risk. The attorney pointed out that continued viability of payment to petitioner is tied not only to the financial improvement of the city but also to the population of residents and businesses within the corporate limits. We believe it is clear that the city has been unable to meet its payments to petitioner as scheduled, and that it is likely the city will continue to have difficulty meeting its obligations to petitioner.

III

Respondent next contends that the trial court’s order is in error because no disposition was made concerning the marital obligations existing at the time petitioner was injured or expenses incurred by the family thereafter. A review of the record, however, reveals that the evidence presented to substantiate the amounts owed was less than convincing. The only evidence presented concerning marital obligations was through the testimony of respondent herself. The following is the colloquy which ensued between respondent and her attorney concerning marital debts of the parties:

“Q. Do you have bills that you have accumulated over the past? Do you owe money to people now, loans or things of that sort?
A. Yes, I do. I owe all kinds of loans. I owe one brother of mine $800.
Q. What is his name?
A. J-e-r-e — Jeremiah.
Q. All right. And, do you owe him $800?
A. Yes.
Q. Okay. Who else?
A. I owe Ruby Baker.
Q. How much do you owe Ruby?
A. Four hundred.
Q. Anyone else?
A. Shannie Coleman.
Q. Is that your sister?
A. Yes.
Q. How much do you owe her?
A. Three hundred.
Q. And, were these loans for living expenses?
A. Yes and car repairs.
Q. Okay. Anything else, anybody else that you owe money to?
A. Avis, two-thirty.
Q. What is Avis?
A. My car.
Q. All right. Again, is that for living expenses in the past?
A. I had to pay my utility bill, yes, last week.
Q. Anyone else that you owe money to?
A. Well, we have some bills that Walter and I accumulated some bills together. I tried to get an apartment last year in North County, and they do a credit check. When they did the credit check, they came up with approximately $5,000 worth of was U.E., Pleasant Hollow.
Q. What is Pleasant Hollow?
A. Pleasant Hollow is — we were leasing a house in Pleasant Hollow. And, as a matter of fact, I went into a savings of my two older children, which their father is deceased and left them an insurance of $10,000, and when we were together living in Pleasant Hollow I went into their account at his request. I kept getting behind in the house note. I went into their account and practically drained it of paying — of bringing up the house notes when he would not pay them himself.
Q. How much was borrowed from your older children then?
A. $5,000 and I do have some receipts.
Q. And, now the bills that you said showed up on your credit report, these were bills incurred during the time that you and Walter were living together before the accident.
A. That’s correct.
Q. Okay. And that amounted to about $5,000.
A. That’s right.
Q. And, in addition to that there is about $5,000 that came out of your older children’s savings accounts?
A. Yes.
Q. Do you owe any bills to anybody else, like companies or utilities or things of that sort?
A. I owe Bell Telephone $345.
Q. Anyone else?
A. One of my own to a health spa.
Q. Okay. And, how much is owed there?
A. Approximately $160. I’m not sure on that one.
Q. Okay. Any other bills outstanding right now of any kind that we have not talked about or any money owed to anybody or any company that we haven’t talked about?
A. I bought a bedroom suite.
Q. And, how much is owed on the bedroom?
A. Including the bedding is twelve hundred.
Q. And, whom is that owed to?
A. I think it’s H.C. Crummery.”

No receipts or bills were introduced into evidence to substantiate the claims made by respondent concerning marital obligations. It is the function of the trial court to assess the credibility of the witnesses and determine the weight to be afforded their testimony. (In re Marriage of Click, 169 Ill. App. 3d at 57, 523 N.E.2d at 175.) Based upon the record before us, we cannot say that the trial court abused its discretion in not awarding respondent the amounts she claimed were owed.

Respondent also complains that the trial court failed to make a finding concerning medical expenses incurred by petitioner prior to his transfer to New Jersey. However, respondent’s own statement of facts states that the medical expenses incurred by petitioner have been satisfied in full. After an examination of these amounts, we find them to be reasonable and find no error in the trial court’s failure to include a discussion of these payments in its order.

IV

Finally, we must consider whether petitioner’s removal from the New Jersey treatment center to his guardian’s home and corresponding reduction in monthly expenses constitute “a substantial change in the anticipated costs of caring for Walter DeBow,” as argued by respondent. We do not believe that the order entered in In re Estate of Walter DeBow, a Disabled Person, St. Clair County No. 88—P—442, which allowed these changes, necessitates a change in the trial court’s order.

Caring for petitioner at his New Jersey treatment center cost, on the average, $7,500 per month, while the costs of keeping petitioner at his guardian’s home will cost $4,000 per month. The costs of keeping petitioner at Independent Life Springs had increased 80% over a four-year period. It is encouraging that petitioner is at this time doing well enough to be transferred from Independent Life Springs to his brother’s home. Nevertheless, there has been no evidence presented that petitioner will not need continued therapy and treatment, at least on an outpatient basis, or that respondent will never again need to be placed in a facility such as Independent Life Springs. Instead, the evidence presented showed that petitioner would receive more intensive therapy with his change in residence, which would allow him to recover more fully. Without more evidence that this new living arrangement is permanent or that petitioner has so greatly improved that he will not need continued treatment and therapy, we do not conclude that the trial court’s order is erroneous.

The trial court correctly considered petitioner’s disability and took into account financial difficulties facing the City of East St. Louis. The requirement that $500,000 must accumulate in petitioner’s account before any support payments are made to respondent is justified. Based upon the record before us, we cannot say that the trial court so exceeded the bounds of reason that no reasonable person would take the view it adopted. In re Marriage of Click, 169 Ill. App. 3d at 57, 523 N.E.2d at 175; In re Marriage of Hilkovitch, 124 Ill. App. 3d at 414, 464 N.E.2d at 803.

V

The other issue we are asked to address is whether the child support award made by the trial court conforms to statutory requirements found in section 505 of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 505.) Respondent argues that the trial court failed to comply with the requirements of section 505 by failing to state upon what evidence the order was based. Using her own computations, respondent contends that the trial court’s award of $1,500 per month for child support is only 17% of petitioner’s net income and, therefore, does not comply with section 505 of the Act, which requires that 25% of the supporting party’s net income be paid for child support for two children unless the court finds a reason for deviating from the guidelines. (Ill. Rev. Stat. 1989, ch. 40, par. 505.) Petitioner responds that the trial court’s order does conform to the requirements of section 505 of the Act because it clearly states a reason for deviation from the 25% guideline, namely, the trial court’s overriding concern for the care of petitioner. Petitioner claims that $1,500 per month meets the needs of the children and the order should be affirmed. We agree with respondent that the trial court’s order with regard to child support was inadequate.

Section 505 of the Act governs the trial court’s award of child support. (Ill. Rev. Stat. 1987, ch. 40, par. 505.) It provides that the court is to determine the minimum amount of support by using a set of guidelines. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) These guidelines provide that for two children, the supporting party is to contribute 25% of his or her net income as and for those children’s support. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) The section further provides:

“(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. ***
* * *
If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so. The guidelines may be exceeded by the court without express findings, or by agreement of the parties.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).)

Relevant factors to be considered include the following:

“(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).)

The language of the statute and the cases interpreting section 505 indicate that the trial court must make express findings when ordering an award lower than the award set forth in the guidelines. In re Marriage of Wright (1991), 212 Ill. App. 3d 392, 571 N.E.2d 197; In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.

Here, we do not believe that the trial court met the express requirements of the Act. In its order, the trial court stated that its main concern was petitioner’s medical needs. A review of the record and the order does not, however, disclose that the trial court took into consideration any of the other factors listed within section 505. A guardian ad litem was appointed to protect the needs of the minor children. The guardian ad litem indicated that Pierre DeBow had some special educational needs which the trial court failed to address in its order. The trial court made permanent the $1,500 temporary award of child support awarded in the related probate matter without making the specific findings of fact necessary to order a lower award than suggested in the guidelines of section 505.

Since the trial court did not meet the statutory guidelines of section 505 in that it failed to award the appropriate 25% of petitioner’s net income without giving an adequate explanation in the order as to why a deviation from the statutory percentage is justified, we must reverse that portion of the order awarding respondent $1,500 per month in child support. We remand with directions to the trial court to consider the factors expressed in section 505 of the Act and, if an award lower than 25% of petitioner’s net income is warranted, give express reasons for the deviation. See In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed in part and reversed in part and the cause is remanded with directions.

Affirmed in part, reversed in part, and remanded with directions.

H. LEWIS and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE H. LEWIS

license: Public Domain

text:
    BEVERLY TOOLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Buske Van Lines, Inc., Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—91—0883WC
    Opinion filed November 6, 1992.
    Rehearing denied December 4, 1992.

      Peter C. Drummond, of Staunton, for appellant.
    R. Kent Schultz, of Holtkamp, Liese, Beckemeier & Childress, P.C., of St. Louis, Missouri, for appellee.
   JUSTICE H. LEWIS

delivered the opinion of the court:

The claimant, Beverly Tooley, appeals the judgment of the circuit court confirming the decision of the Industrial Commission of Illinois (hereafter referred to as the Commission). The Commission affirmed and adopted the decision of the arbitrator, who found that the claimant failed to prove the existence of an employment relationship between herself and the respondent, Buske Van Lines. Upon review the claimant articulates four issues: (1) whether the Commission applied an improper standard to determine if claimant was respondent’s employee; (2) whether the finding of the arbitrator that claimant did not receive any compensation from the respondent is incorrect as a matter of law; (3) whether the evidence does indicate that claimant received compensation; and (4) whether the Commission’s finding that the testimony of the respondent’s witness, Charles Estes, was credible is against the manifest weight of the evidence. We affirm.

Section 1(b)(2) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(b)(2)) (hereafter referred to as the Act) defines an “employee” as “[ejvery person in the service of another under any contract of hire, express or implied, oral or written.” The underlying purpose of workers’ compensation legislation in Illinois and in other States is to provide financial protection in various forms, including the restoration of lost wages, to workers whose earning power is interrupted or terminated as a consequence of injuries arising out of and in the course of their employment. (Board of Education v. Industrial Comm’n (1972), 53 Ill. 2d 167, 290 N.E.2d 247.) Consistent with the philosophy of the legislation, which assumes that a worker is gainfully employed at the time of his injury, it is generally recognized that a true employer-employee relationship does not exist in the absence of the payment or expected payment of consideration in some form by employer to employee. (Board of Education, 53 Ill. 2d 167, 290 N.E.2d 247.) As a consequence, the workers’ compensation statutes throughout this country have uniformly been construed to exclude from coverage purely gratuitous workers who neither receive, nor expect to receive, pay or other remuneration for their services. Board of Education, 53 Ill. 2d 167, 290 N.E.2d 247.

Further, the relationship of an employer and an employee is a product of mutual assent. (Board of Education, 53 Ill. 2d 167, 290 N.E.2d 247; Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 403 N.E.2d 1290.) Although the definition of “employee” contained in the Act is to be broadly construed, there can be no employer-employee relationship and there can be no liability for workers’ compensation under the Act in the absence of a contract of hire, express or implied. (Crepps v. Industrial Comm’n (1949), 402 Ill. 606, 85 N.E.2d 5.) The relationship of employer and employee is a contractual relationship, the requisites to the formation of which are determined by an application of the principles governing the formation of other contracts. (Crepps, 402 Ill. 606, 85 N.E.2d 5.) The relationship is a product of a meeting of minds expressed by some offer on the part of one to employ or to work for the other and an acceptance on the part of the other. Crepps, 402 Ill. 606, 85 N.E.2d 5.

In compensation proceedings, the existence of an employer-employee relationship is primarily a question of fact and can become a question of law only where there is no conflict in the evidence and but one conclusion can reasonably be drawn therefrom. (Crepps, 402 Ill. 606, 85 N.E.2d 5.) The Commission exercises original, rather than appellate, jurisdiction in reviewing decisions of the arbitrator. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033.) Thus, it is within the province of the Commission to judge the credibility of witnesses, to draw reasonable inferences from their testimony, and to determine what weight the testimony is to be given. (Paganelis, 132 Ill. 2d 468, 548 N.E.2d 1033.) Accordingly, the decision of the Commission on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Paganelis, 132 Ill. 2d 468, 548 N.E.2d 1033.

In the instant case the arbitrator found, and the Commission adopted his findings, that “in this case there is absent the mutual assent necessary in order to form an employment relationship” and that the claimant “failed to establish the existence of payment or expected payment of consideration in some form or another by the Respondent to the [claimant].” The arbitrator stated further, “The issue is whether there was any payment or expected payment by the Respondent to the [claimant]. Having previously found that there was no such payment or expected payment, the Arbitrator finds no employment.”

Upon judicial review the circuit court expressly stated that the finding of the arbitrator that an employer-employee relationship did not exist between the claimant and the respondent is not contrary to the manifest weight of the evidence. The circuit court concluded: “The record supports the findings that there was no mutual assent for a contract of employment. What was done by the parties was to arrange for claimant ‘to accompany her newly married husband’ on his trucking jobs.”

At the hearing conducted before the arbitrator on August 14, 1989, the claimant testified that as she and her husband were unloading boxes of potato chips on May 8, 1987, she was injured when two boxes weighing about 20 to 30 pounds struck her in the back; she heard a pop and after about five minutes experienced severe pain in her back. The claimant stated that in March of 1987 the respondent had employed her husband as a driver, that her husband had “inquired as to the possibility of [her] being a trainee to be a co-driver with him,” and that she had talked to the respondent’s employee Chuck Estes about the possibility. She had, she said, told Chuck Estes that she would like to drive with her husband and to help him drive. She stated further, “he told me that if I met all the qualifications, I could start as a trainee until I could pass all tests and everything, and then I could get my license and I could drive if I passed all the qualifications.” She obtained a Class D instruction permit issued by the Illinois Secretary of State allowing her to drive a truck as long as someone was beside her. She said she was not allowed to drive a truck by herself until she obtained a Class D license. At the time she was injured, she had not taken the final examination, that is, the “driving part,” to obtain a Class D license and has never taken that examination.

Claimant submitted a completed application to the respondent and passed a physical examination. From Chuck Estes she received “authorization cards, so that I was able to be on the truck with my husband as a trainee.” She said that Chuck Estes had had her watch a video tape concerning the keeping of logs and “green sheets” and dealing with emergencies. “And after I watched that,” she said, “he told me to be sure and study up on everything so I’d know how to fill out paperwork, and that I could drive as long as my husband was sitting beside me, after I learned everything, but he said I would learn as I was on the truck. So after that, he told me that he would call us when we had a run and I could begin my training.” Thereafter she began to accompany her husband in the truck, learning on the truck to fill out a log and “green sheets.” Truck drivers, she said, are paid “so much a haul,” which was, she thought, 19 cents per mile. She testified that checks were issued to her husband but not to her and that although Chuck Estes had told her she would be paid for unloading, she never was, despite having unloaded five or six times during the time she accompanied her husband. She testified that she had been promised employment by Chuck Estes in the event she obtained a Class D license. She indicated that she had understood that before she could become an employee of the respondent she had to pass a separate driving test to be given by the respondent, which had never been administered.

Charles Estes testified for the respondent that at the time in question he worked as its safety director and that he “took care of the driver qualification files.” He stated that claimant’s husband had indicated to him “[t]hat he had recently been married, that he had lost his job on the railroad, that he was going to be forced into driving truckfs] for a living, but he would like to be able to take his wife with him, since they were recently married.” The witness indicated that he had met with claimant and her husband on about April 3, 1987, concerning her riding with her husband on the truck. The witness told her that in order to ride with her husband she would need to do certain things, including filling out an “application” and taking the test from the State of Illinois to obtain a Class D permit. The witness testified: “To my knowledge, she never asked me for a job. She asked to go in the truck with her husband.” Asked to explain the difference between requesting a job and requesting to drive with her husband, the witness answered:

“Well, if she would have applied for a job, she would have been an employee and expected to drive at least 50 percent of the time. Since she didn’t have the license to do so, then she could merely be a rider, not a driver; or not an employee, I should say.”

He had, he said, given her an employment application in order to be in compliance with the requirements of the Department of Transportation. Without a completed application, he explained, “she could not legally drive the vehicle.” Asked whether the claimant had at any time indicated that she wanted to be an employee of the respondent, the witness responded: “The only time that [claimant] indicated that to me was when she wanted all [her husband’s] wages put in her payroll name and her to be paid. And I told her she couldn’t have that because she was not an employee.” This conversation occurred after she had begun riding with her husband. Thereafter she continued to drive with her husband and did not indicate to the witness that she wanted to become an employee.

The witness indicated that all drivers are limited by the Department of Transportation to driving and working only a certain number of hours and that whenever the claimant drove the truck, pursuant to her “instruction permit,” the number of hours that she drove was subtracted from the number of hours her husband was permitted to drive. This was so because her husband had to be awake while she was driving. A driver is not permitted to drive over 70 hours per week. Before the claimant could have become a driver, she would have had to have a Class D license from the State of Illinois to operate a commercial vehicle and to have taken a road test with the witness in the vehicle “to determine if her skills were good enough to turn loose with a vehicle.” He described the road test by the respondent as being mandated by the Department of Transportation. At no time did the claimant satisfy either of these two requirements.

When asked what would have happened in terms of claimant’s obtaining employment with the respondent if she had passed its road test and the State’s test for a Class D license, the witness responded: “She would still have had to be a co-driver with her husband after the issuance of the D license and the road test, due to lack of experience. I mean, she could not drive a vehicle by herself.” She would, he said, have been paid as a co-driver with her husband if she had passed those two tests. The witness had told the claimant that if she met all qualifications, including the two that were unfulfilled, she “could” be employed but not that she “would” be. Employment would not have been “automatic” because clearance from the respondent’s insurer would have been necessary. The witness testified that he had never promised claimant employment with the respondent, compensation or payment for driving with her husband, or payment for assisting her husband in loading or unloading. The witness said that prior to the accident on May 8, 1987, he had had no knowledge that claimant had been assisting her husband in the loading or unloading of the trailer. Asked why the claimant was referred to as a “driver-trainee” if all she wanted to do was to ride with her husband, the witness explained: “[A]nyone who wanted to go with her husband was classified as a driver-trainee. This was not an unusual file. There were a few more.” A fully qualified co-driver would be able to drive 70 hours a week, as would the other driver in the truck for a total of 140 driving hours. Two fully qualified drivers could earn more money than a single qualified driver because they could drive more miles.

The record itself shows that the Commission did not apply an improper standard to determine whether the claimant was an employee of the respondent. The Commission plainly resolved questions of credibility, which are within its province to determine, in favor of Charles Estes. The finding of the Commission that there was no payment or expected payment by the respondent to the claimant is not against the manifest weight of the evidence. Similarly, the finding of the Commission in favor of the respondent concerning the factual question of whether an employment relationship existed between claimant and respondent is not against the manifest weight of the evidence. Although the possibility of future employment may have been contemplated by the parties, the claimant has not shown the existence of an employer-employee relationship at the time of her injury. Accordingly, we may not disturb the decision of the Commission, and the judgment of the circuit court confirming the Commission’s decision is affirmed.

Affirmed.

McCULLOUGH, PM., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES E. SMITH, Defendant-Appellee.
    Fifth District
    No. 5—91—0897
    Opinion filed November 12, 1992.

      Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Charles E. Smith, was charged with residential burglary, theft (under $300), and battery in connection with an incident which occurred in the early morning hours of September 2, 1988. During jury selection, defendant made an oral motion in limine to exclude evidence from two other cases against him involving similar offenses in the same general area and time period which the State intended to introduce to demonstrate modus operandi. The circuit court of Jackson County granted defendant’s motion on the basis the attacks against the other two victims did not possess any distinctive feature not common to most offenses of that nature. The State appeals arguing suppression of the evidence substantially impairs its ability to prosecute the case. We reverse.

In the early morning hours of September 2, 1988, an assailant entered the house of the victim, an unmarried woman living alone, through a window. The victim was asleep in bed when a man suddenly pounced on her. The assailant used his body to hold her down and placed a pillow over the victim’s face so she could not see him. He then turned on a light and began speaking softly and politely to the victim. He made the victim turn on her stomach and began fondling her buttocks. The victim convinced the man not to sexually assault her because she was a “fat, old woman.” The assailant then took money from her purse, and before leaving asked the victim what she would tell the police. The State’s offer of proof concerning the testimony of the other two victims who had been attacked in the same area of the city and within a three-week time period revealed several similarities. The other two victims were both unmarried women who lived alone. In the early morning hours, a man entered the victims’ houses through windows, pounced on the victims while they were sleeping and held them down with his body. Defendant, who had already been convicted in the first case prior to trial in the instant case, told the first victim in a polite, soft-spoken voice that he raped and robbed women. After placing a pillow over her face so that she could not see him, he turned on a light. He then sexually assaulted her vaginally. Defendant next made the victim turn on her stomach, but she convinced him not to assault her again. Defendant then asked her what she would tell the police, took money from her purse and left. The second victim also had her face covered with a pillow while the assailant spoke to her politely in a low, soft-spoken voice. Once her face was covered, the assailant turned on a light and assaulted the victim vaginally. He then had the victim turn on her stomach and, after displaying a knife, assaulted her again. The assailant finished by asking the victim what she would tell the police, rifling through her purse, taking cash and credit cards, and leaving by way of the same window he had entered earlier. Defendant was awaiting trial in the second case. The trial court recognized several similarities in the offenses against the three victims but did not believe they possessed any distinctive features not common to most offenses of that nature sufficient to demonstrate modus operandi. The court therefore granted defendant’s motion in limine.

Generally, evidence of other crimes is inadmissible if relevant merely to establish a defendant’s propensity to commit crime. (People v. Woltz (1992), 228 Ill. App. 3d 670, 673, 592 N.E.2d 1182, 1185; People v. Brown (1991), 214 Ill. App. 3d 836, 844, 574 N.E.2d 190, 195.) Such evidence is admissible, however, if relevant to prove any purpose such as intent, identity, motive, absence of mistake, common design, or, as here, modus operandi, provided that the probative value of the evidence outweighs its risk of unfair prejudice. (People v. Maxwell (1992), 148 Ill. 2d 116, 130, 592 N.E.2d 960, 967, petition for cert. filed (August 24, 1992), No. 92—5615; People v. Phillips (1989), 127 Ill. 2d 499, 520, 538 N.E.2d 500, 508; Brown, 214 Ill. App. 3d at 844-45, 574 N.E.2d at 195; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-86, 485 N.E.2d 1292, 1296-97.) Modus operandi, literally “method of working,” refers to a pattern of criminal behavior or method of operation so distinctive that separate crimes or wrongful conduct are recognized as the work of the same person. (People v. Williams (1989), 185 Ill. App. 3d 840, 853, 541 N.E.2d 1175, 1185; Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297.) In order for such evidence to be admissible, there must be a clear connection between the other crime or crimes and the one charged which creates a logical inference that if a particular defendant committed one of the acts, he also committed the other or others. (Woltz, 228 Ill. App. 3d at 675, 592 N.E.2d at 1186; Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297; see also People v. Watson (1981), 98 Ill. App. 3d 296, 298, 424 N.E.2d 329, 331.) This inference arises when the crimes share distinctive features not common to most offenses of the same type and, by so doing, earmark the offenses as one person’s handiwork. (Woltz, 228 Ill. App. 3d at 675, 592 N.E.2d at 1186; People v. Lewis (1983), 115 Ill. App. 3d 389, 400, 450 N.E.2d 886, 894, rev’d on other grounds (1984), 103 Ill. 2d 111, 468 N.E.2d 1222.) While there must be a strong and persuasive showing of similarity between the crimes, it is not necessary that the crimes be identical. (Williams, 185 Ill. App. 3d at 853, 541 N.E.2d at 1185; Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1297.) The test cannot be one of exact, rigorous identity, for some dissimilarity will always exist between independent crimes. (Phillips, 127 Ill. 2d at 520-21, 538 N.E.2d at 508; Williams, 185 Ill. App. 3d at 856, 541 N.E.2d at 1186.) More importantly, it is the similarity of conduct as a whole, not the uniqueness of any single factor, which is the key to establishing modus operandi. (Watson, 98 Ill. App. 3d at 298-99, 424 N.E.2d at 332.) While common features may be insufficient to raise the inference of modus operandi individually, together such features may reveal a distinctive combination which suggests the work of one person. (Lewis, 115 Ill. App. 3d at 400, 450 N.E.2d at 894.) What is controlling, therefore, is the totality of the similarities.

Here, the evidence the State wished to introduce presented at least 13 areas of similarities that, taken together, strongly suggested the same person was responsible for all three incidents. In all three offenses, the victims were unmarried women living alone who were awakened in the early morning hours by an assailant physically pouncing on them and holding them down with his body in similar fashions. In each instance, the assailant covered the vietim’s face with a pillow before turning on a light. In each instance, the assailant was soft-spoken and polite. Each time, the victim was made to turn over on her stomach and was assaulted in some manner. Afterwards, the assailant questioned each victim as to what she intended to tell the police. And, in each instance, the assailant took money from the victims’ purses before leaving through the same windows used to gain entry into the houses. Finally, all three incidents occurred within a three-week period of time in the same general area of the city. True, some dissimilarities existed, particularly with respect to the extent of the sexual assaults upon the victims. But, rigorous identity in the offenses is hardly likely to occur. (Phillips, 127 Ill. 2d at 520-21, 538 N.E.2d at 508.) Additionally, the only reason the victim here was not further assaulted sexually was because she convinced her attacker she was a “fat, old woman.” Such dissimilarities do not justify excluding evidence of the other two offenses. We therefore conclude the trial court abused its discretion in granting defendant’s motion in limine. (See People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Watson (1981), 98 Ill. App. 3d 296, 424 N.E.2d 329; People v. Therriault (1976), 42 Ill. App. 3d 876, 356 N.E.2d 999; People v. Emmett (1975), 34 Ill. App. 3d 167, 340 N.E.2d 235; cf. People v. Woltz (1992), 228 Ill. App. 3d 670, 592 N.E.2d 1182.) Accordingly, we reverse the order of the trial court and remand this cause for trial.

For the aforementioned reasons, we reverse the order of the circuit court of Jackson County granting defendant’s motion in limine and remand this cause for further proceedings.

Reversed and remanded.

CHAPMAN and W.A. LEWIS, JJ., concur.


author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    BARBER-COLMAN COMPANY, Plaintiff-Appellant, v. A AND K MIDWEST INSULATION COMPANY, a/k/a Midwest Insulation, et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0387
    Opinion filed November 13, 1992.

      GOLDENHERSH, P.J., specially concurring.
    J.C. Mitchell and Stephen R. Green, both of Mitchell & Armstrong, Ltd., of Marion, for appellant.
    Edward J. Heller, of Reed, Heller & Mansfield, of Murphysboro, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Barber-Colman Company (Barber-Colman) filed a two-count complaint against the defendants on February 21, 1991. Count I alleged that A&K Midwest Insulation Company (A&K) breached its contract with Barber-Colman by refusing to pay for work performed. Count II was an action upon a bond posted on behalf of A&K by United States Fidelity & Guaranty Company (Guaranty Company).

Guaranty Company filed a section 2 — 619(5) motion (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(5)) to dismiss count II on the basis that it was untimely filed and attached two affidavits in support of its motion. The motion stated that suit on the bond was filed February 21, 1991, and that in order to qualify under the terms of the bond A&K must have worked on the construction project after February 21, 1990. The supporting affidavits of A&K’s president and the president of the subcontractor on the project state that A&K ceased work months prior to February 21, 1990. The trial court dismissed count II. Barber-Colman filed a motion to vacate but filed no counteraffidavits or other material to controvert defendant’s affidavits. The trial court denied the motion to vacate, and plaintiff appeals.

Plaintiff contends that section 2 — 619 of the Code of Civil Procedure (Code) cannot be used to raise a statute of limitations defense unless the defect appears upon the face of the pleadings. Plaintiff also argues that motions to dismiss admit factual allegations and that since it alleged, “This suit was not filed after the expiration of one (1) year following the date on which the principal ceased work on the Contract ***,” this allegation must be deemed admitted for purposes of the motion, an admission which defeats the motion. We disagree with each of these arguments. In order to explain our ruling, we will discuss motions to dismiss brought under Code sections 2 — 615 and 2 — 619 and motions for summary judgment brought pursuant to Code section 2 — 1005 (III. Rev. Stat. 1991, ch. 110, pars. 2 — 615, 2 — 619, 2— 1005).

SECTION 2-615

On January 1, 1934, section 45 of the Civil Practice Act abolished general demurrers. (See Triangle Sign Co. v. Randolph & State Property, Inc. (1957), 16 Ill. App. 2d 21, 147 N.E.2d 451.) A demurrer was a pleading by a defendant which admitted that the matters of fact alleged in the complaint were true but contended that they were insufficient for the plaintiff to proceed upon or to oblige the defendant to answer. (Black’s Law Dictionary 389 (5th ed. 1979).) Section 45 later became section 2 — 615 of the Code of Civil Procedure with no substantive change. Ill. Ann. Stat., ch. 110, par. 2 — 615, Historical & Practice Notes, at 408 (Smith-Hurd 1983); see also Teren v. City of Chicago (1952), 413 Ill. 141, 108 N.E.2d 476.

A motion to dismiss under section 2 — 615 attacks only the legal sufficiency of the complaint. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) Such a motion, as opposed to a section 2 — 619 motion, does not raise affirmative defenses. A section 2 — 615 motion attacks only defects apparent on the face of the complaint. (Urbaitis v. Commonwealth Edison (1991), 143 Ill. 2d 458, 475, 575 N.E.2d 548, 555; see Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) A significant difference between section 2 — 615 motions, as compared to section 2 — 619 motions, and motions for summary judgment is that a section 2 — 615 motion is based on the pleadings rather than on the underlying facts. Accordingly, affidavits (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311), the products of discovery (Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill. App. 3d 97, 515 N.E.2d 1027), documentary evidence not incorporated into the pleadings as exhibits (Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 445 N.E.2d 517), testimonial evidence (Maas, 112 Ill. App. 3d 191, 445 N.E.2d 517), or other evidentiary materials (Baughman v. Martindale-Hubbell, Inc. (1984), 129 Ill. App. 3d 506, 472 N.E.2d 582) may not be considered by the court in ruling on a section 2 — 615 motion. (See also 3 R. Michael, Illinois Practice §27.4, at 504-05 (1989) (hereinafter Illinois Practice).) A basic premise of a section 2 — 615 motion is that it accepts, for purposes of the motion, that all well-pled facts in the complaint are true.

There are six bases for attacking pleadings under section 2— 615:

(1) that the pleading be made more definite and certain;
(2) that designated immaterial matter be stricken;
(3) that necessary parties be added or misjoined parties be dismissed;
(4) that the pleading fails to allege essential elements in the cause of action;
(5) that the pleadings fail to state a claim upon which relief may be granted; and
(6) that the pleadings entitle the moving party to judgment.

(Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615; see LaSusa & Heinrich, Pre-trial Motions Under Sections 2—615 & 2—619, 3 C.B.A. Rec. 32 (Nov. 1989).) None of these bases require the movant to provide any factual matter to the court in order to prevail. The question presented by a motion to dismiss under section 2 — 615 is whether sufficient facts are contained in the pleadings which, if proved, would entitle the plaintiff to relief. Urbaitis, 143 Ill. 2d at 475, 575 N.E.2d at 555.

SECTION 2-1005

If a motion challenging the pleadings may be determined solely from the face of the pleadings, a section 2 — 615 motion is appropriate. If matters not apparent on the face of the pleadings must be considered to decide the motion, that is, if the defect challenged lies in the underlying facts rather than in the pleadings, a motion for summary judgment under section 2 — 1005 is the proper tool. 3 Illinois Practice §27.1, at 485-86.

Turning to summary judgment motions, Illinois Practice furnishes historical background:

“Summary judgment motions did not exist at common law. *** The common law motions could not go behind the pleadings, and all well pleaded allegations had to be accepted at face value. ***
*** The need for a motion that could challenge the allegations of a pleading and establish that one or more of them was so clearly unfounded in fact that a trial would be a useless expenditure of limited resources, became obvious. ***
*** Summary judgments themselves were first established by statute in England in 1855, but were limited to claims on bills of exchange or promissory notes. ***
* * *
In Illinois, a motion for summary judgment was first recognized when the Civil Practice Act was adopted in 1933. The motion was extended so that it could be filed by defendants as well as by plaintiffs in a 1941 amendment. Prior to a revision in 1955, however, the motion was applicable only in contract actions, actions on a judgment for the payment of money, actions to recover possession of land, and actions to recover possession of specific chattels. In 1955, authority for the entry of summary judgments was extended to. all civil cases. The 1955 amendment established summary judgment practice in Illinois in the form it possesses today.” 4 Illinois Practice §38.1, at 218-20.

Currently, the Code provides that these motions may be made “with or without supporting affidavits” (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 1005(a),(b)); that the party opposing the motion may file opposing affidavits at the time of the hearing or on any earlier occasion (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c)); and that the motion is to be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1005(c)). The fact that the summary judgment motion may be made “with or without” supporting affidavits does not suggest that the motion may be used as a substitute for a section 2 — 615 motion to raise defects appearing on the face of the pleading. (4 Illinois Practice §38.5, at 229.) The Illinois Supreme Court noted that a section 2 — 615 motion to dismiss raises “an inquiry into whether a pleading is sufficient to state a cause of action,” while a summary judgment motion “almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried.” Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605, 609.

In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) The purpose of the summary judgment procedure is not to decide the facts but to ascertain whether a factual dispute exists. (Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 511 N.E.2d 805.) If a party moving for summary judgment supplies facts which, if not contra-dieted, would entitle the party to a judgment as a matter of law, the opposing party cannot rely on its pleadings alone to raise issues of material fact. (Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 92-93, 312 N.E.2d 601, 604; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459; Purtill, 111 Ill. 2d at 240-41, 489 N.E.2d at 871.) Thus, facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit must be taken as true for purposes of the motion. (Purtill, 111 Ill. 2d at 241, 489 N.E.2d at 871-72.) The party opposing the motion need not prove her case to defeat the motion; however, she must present some factual basis which would arguably entitle her to judgment. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 458 N.E.2d 575; Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 458 N.E.2d 990.) Failure of the party opposing the motion to file counteraffidavits does not mean that the motion is to be automatically granted. Rather, it means that all the facts, as distinguished from conclusions, in the movant’s affidavits are uncontradicted and must be accepted as true for purposes of the motion. Purtill, 111 Ill. 2d 229, 489 N.E.2d 867; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Courts should be cognizant of the fact that opponents of motions under section 2 — 1005 or section 2 — 619 may require time to respond to the affidavits filed in support of such motions. Supreme Court Rule 191(b) (134 Ill. 2d R. 191) provides the procedure for continuing a motion if evidence needed to oppose it is unavailable. See also Quinn, What You Should Know About Summary Judgment Motions Under Section 2 — 1005, 4 C.B.A. Rec. 17 (Feb. 1990).

SECTION 2-619

Section 2 — 619 affords an avenue between the completely legal bases of section 2 — 615 motions and the completely factual bases of section 2 — 1005. In fact, at the time of the 1955 revision of the Civil Practice Act, the Joint Committee considered abolishing section 2 — 619 motions because matters under 2 — 619 which appear on the face of the pleadings can usually be reached by a motion under section 2 — 615 and matters covered by section 2 — 619 beyond the pleadings may be reached by a motion for summary judgment. (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662-63 (Smith-Hurd 1983).) The committee resolved, however, to retain it:

“[The section] was widely and successfully used, particularly outside Cook County. For that reason, the Committee put aside theoretical objections to the partial duplication between the predecessors of sections 2 — 615, 2 — 619 and 2 — 1005, retained section 2 — 619 and even expanded it rather materially.” Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 663 (Smith-Hurd 1983).

A section 2 — 619 motion provides a means of disposing not only of issues of law but also of easily proven issues of fact. (Williams v. Board of Education (1991), 222 Ill. App. 3d 559, 562, 584 N.E.2d 257, 260.) Motions to dismiss under section 2 — 619 involve essentially a summary judgment procedure (see Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444), but they differ from summary judgment motions in five important respects:

“(1) they are defensive in nature and may be interposed only by a party who is opposing a cause of action; (2) they must be filed prior to that defendant’s answer; (3) they may not be used to contest the essential allegations of the complaint, but may be used only to assert affirmative matter; (4) they allow a determination of the motion on the merits even if there is "a genuine issue of material fact raised by the affirmative matter as long as the party opposing the motion has not filed a jury demand-, and (5) they need not be accompanied by supporting material if the affirmative matter appears on the face of the complaint.” (Emphasis added.) 4 Illinois Practice §38.3, at 224.

Section 2 — 619 allows for the dismissal of an action based on one of nine specified defenses:

“(1) That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.
(2) That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued.
(3) That there is another action pending between the same parties for the same cause.
(4) That the cause of action is barred by a prior judgment.
(5) That the action was not commenced within the time limited by law.
(6) That the claim set forth in the plaintiff’s pleading has been released, satisfied of record, or discharged in bankruptcy. •
(7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds.
(8) That the claim asserted against defendant is unenforceable because of his or her minority or other disability.
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 619(a)(1) through (a)(9).)

It should be noted that only infrequently (a statute of limitation is one possibility) will the defect for any of these bases for dismissal appear on the face of the pleadings. Consequently, the defendant will almost always be attaching affidavits or other material in support of section 2 — 619 motions. Two questions arise when this procedure is followed: (1) Should the affidavits attached to section 2 — 619 motions be used to attack the factual sufficiency of the claim, as they would under section 2 — 1005? and (2) Is a defendant in a section 2 — 619 motion forced to admit all well-pleaded facts supporting the claim, at least for purposes of the motion, even though it has filed affidavits in support of its motion? In our judgment, the answer to the first question is no, and the answer to the second question is yes, but the defendant admits only those facts which are necessary to the claim.

Some further explanation may be necessary and, if not necessary, hopefully at least helpful. If a defendant wishes to challenge the factual sufficiency of a plaintiff’s claim, the summary judgment motion is the proper vehicle. As the supreme court pointed out, the summary judgment motion

“almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried.” (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605, 609.)

The affidavits filed by a defendant in support of a summary judgment motion, which contest the allegations in plaintiff’s complaint, are specifically challenging the truth of these charges. The defendant is essentially saying, “We would agree that if what the plaintiff claims is true, he states a cause of action; but what he claims is not true, and here are affidavits that establish the lack of truth of his claims.”

A section 2 — 619 motion and its accompanying affidavits, however, are not attacking the factual basis of the plaintiff’s claim; they are asserting “other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(9).

It is only in the context of the plaintiff’s claim that it is proper to state that a defendant in a section 2 — 619 motion admits all well-pleaded facts. The defendant does not admit the truth of any allegations in plaintiff’s complaint that may touch on the affirmative matters raised in the 2 — 619 motion.

This latter assertion should present no problem in most cases since plaintiffs do not typically plead facts that are unnecessary to their claim. If such facts are pled, however, and if they are challenged by a section 2 — 619 motion with accompanying affidavits, the defendant is not required to, and does not, admit their truth even for purposes of the motion. To give an example somewhat removed from this case, consider a contract action in which the defendant contends that there is an identical action pending. The plaintiff in such a case would not ordinarily plead that there was no other action pending; that matter would be raised by the defendant under section 2 — 619(a)(3). If, however, for some reason the plaintiff had pled that there was no other action pending, and the defendant filed a section 2 — 619 motion accompanied by affidavits and a certified copy of the pleadings in the other case, the defendant should certainly not be deemed to have admitted that there v/as no other action pending.

The importance of the earlier emphasis on the words “the claim” now becomes apparent. If the facts alleged in the complaint are the basis of the claim, the section 2 — 619 motion admits them. If, however, the allegations are not a part of the claim and, most particularly, if they challenge the affirmative factual matters raised by the section 2 — 619 motion, they are not admitted.

Another example, this one closer to home, may be helpful. Assume a well-pled personal injury complaint which alleges that the plaintiff was hurt on January 1, 1987, and assume the complaint bears a filing date of March 1, 1989. Assume that a section 2 — 619 motion is filed raising a statute of limitations defense and that plaintiff then amends the complaint to include an allegation that “the statute of limitations did not begin to run until January 1, 1988, when the plaintiff reached her majority.” Note that this new allegation is not necessary to support the plaintiff’s claim; it has nothing to do with plaintiff’s claim; it could have been and was omitted from plaintiff’s original complaint without affecting its legal sufficiency in any way. If the defendant now files another section 2 — 619 motion, and this motion is accompanied by affidavits and a certified birth certificate of the plaintiff showing a birth date of June 6, 1910, he should certainly not be deemed to have admitted the truth of plaintiff’s new allegations. If the plaintiff responds with affidavits and a birth certificate which challenge the defendant’s materials, the court is faced with a dispute that it should resolve under section 2 — 619(c):

“(c) If, upon the hearing of the motion, the opposite party ■ presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(c).)

If, however, the plaintiff does not respond to the defendant’s affidavits, then the materials therein are to be accepted as true for purposes of the motion.

As a final example, the plaintiff could anticipatorily plead an exception to an affirmative defense, the minority of the plaintiff, for instance. Such pleadings are not uncommon in cases involving discovery exceptions to the statute of limitations, but the fact that an exception is pled anticipatorily does not entitle it to any different treatment. An exception to the statute of limitations (section 2 — 619(a)(5)), a claim of fraud to void a release (section 2 — 619(a)(6)), or a difference in the claims of a similar pending case (section 2 — 619(a)(3)) may all defeat a section 2 — 619 motion, but none of them are elements in the claim of the plaintiff, and none of them are admitted by a section 2 — 619 motion.

To summarize this analysis:

(1) a defendant’s section 2 — 615 motion admits the truth of the facts alleged in support of the claim but denies the legal sufficiency of those facts;
(2) a defendant’s section 2 — 1005 motion admits the legal sufficiency of the claim but denies the truth of the facts alleged; and
(3) a section 2 — 619 motion admits both the truth of the facts alleged in support of the claim and the legal sufficiency of the claim, but it raises affirmative matters which it asserts defeat the claim, and as to those affirmative matters, there is no admission of either truth or sufficiency.

See Professor Michael’s excellent discussion of this issue in 4 Illinois Practice §41.2, at 296-98.

Plaintiff relies upon the following statement of the supreme court in Burnett v. West Madison State Bank to argue that section 2 — 619 could not be used in this case:

“It is a well-established principle of pleading that the Statute of Limitations can not be raised by a demurrer or motion to strike unless it affirmatively appears from the pleadings attacked, that the cause of action is barred by the particular section of the Limitations act being interposed as a defense.” (Emphasis added.) (Burnett v. West Madison State Bank (1940), 375 Ill. 402, 408, 31 N.E.2d 776, 779.)

The quoted statement from Burnett has been repeated on more than one occasion and by more than one district. (See Conway v. Conners (1st Dist. 1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015; Cundiff v. Unsicker (3d Dist.. 1983), 118 Ill. App. 3d 268, 454 N.E.2d 1089; Pumala v. Sipos (2d Dist. 1985), 131 Ill. App. 3d 845, 476 N.E.2d 462.) It is unclear whether the motion in Burnett was based on section 2 — 615 or section 2 — 619 or their respective predecessors, but the emphasized language suggests that it was based on section 2 — 615. (See Ill. Ann. Stat., ch. 110, par. 2 — 615, Joint Committee Comments [1955], at 407 (Smith-Hurd 1983) (“This is section 45 of the former act, with some revision. The title has been changed, because demurrers have not been .used since the enactment of the Civil Practice Act of 1933.” (Emphasis added)).) If Burnett was decided on a section 2 — 615 motion, there is nothing surprising in its holding because all section 2— 615 motions are limited to what is contained in the pleadings. Neither Conway nor Cundiff indicates which section the defendant was proceeding under, and consequently they are of little help in this discussion.

Pumala, however, was clearly decided upon a section 2 — 619 motion:

“Only where a bar to the statute of limitations affirmatively appears from the face of the complaint may the issue be raised by a 2 — 619 motion.” (Pumala, 131 Ill. App. 3d at 847, 476 N.E.2d at 463.)

Pumala reversed the trial court’s ruling which had allowed defendant’s section 2 — 619 motion, and it framed the issue as follows:

“Where a complaint designates a date when the alleged cause of action accrued, is dismissal proper where the defendant affirmatively raises a different date and supports this contention by affidavit, no counteraffidavit being filed, nor any motion otherwise attacking the motion to dismiss.” Pumala, 131 Ill. App. 3d at 846, 476 N.E.2d at 462.

Not surprisingly, the plaintiff relies heavily not only upon Burnett but also upon Pumala. As we have indicated, the reliance upon Burnett is misplaced since Burnett was probably discussing a section 2— 615 motion. Interestingly, Pumala cites Burnett, Conway, and Cundiff in support of its extension of the Burnett language to section 2 — 619 motions, but as we have indicated, none of the three was clearly based on section 2 — 619, and at least Burnett was more probably based on section 2 — 615.

We are aware of cases that contain similar language. (See Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799; Rowan v. Novotny (1987), 157 Ill. App. 3d 691, 510 N.E.2d 1111; Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256.) Cain involved a motion brought under section 45, the predecessor to section 2 — 615, so it is of little aid in this case. Both Rowan and Austin View, however, involved motions brought under section 2 — 619 or its predecessor, section 48. It might be possible to distinguish either Rowan or Austin View, but since Pumala is clearly on point, and since we decline to follow Pumala, it is unnecessary to make an attempt. Instead, we will furnish our reasons for declining to follow Pumala.

First, as Professor Michael points out, the language of the statute does not require movants under section 2 — 619 to admit facts:

“While the rule that a motion to dismiss admits all well pleaded facts in the complaint was the established common law rule for demurrers, and hence is clearly applicable to §2 — 615 motions, neither the express terms of §2 — 619 nor any historical precedent requires its application to motions under that section.” (Emphasis added.) 4 Illinois Practice §41.2, at 296.

Second, the statute specifically provides for motions brought under it to be supported by affidavits and challenged by counteraffidavits. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(c).) If there were to be no contesting of any factual disputes, the requirement of affidavits would be an absurdity, and legislative acts are to be construed so as to avoid absurd results. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 527 N.E.2d 1264.) A note of caution should perhaps be sounded at this point. As our earlier discussion indicated, and as Professor Michael states, a section 2 — 619 motion should

“admit all the essential allegations of the cause of action pleaded. This logic, however, should not prevent a §2 — 619 motion where the plaintiff pleaded facts which were not essential allegations of the cause of action ***.” (4 Illinois Practice §41.2, at 297.)

Consequently, section 2 — 619 motions should not be used to attack the factual basis of the claim itself; if such an attack is to be made, it should be by a summary judgment motion under section 2—1005. See Island Lake Water Co. v. La Salle Development Corp. (1986), 143 Ill. App. 3d 310, 493 N.E.2d 44; Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 502 N.E.2d 1096.

Third, there are cases which support the dismissal of claims that did not respond with counteraffidavits to motions to dismiss under section 2 — 619 which were accompanied by affidavits. G. Chicoine Contractors, Inc. v. John Marshall Building Corp. (1966), 77 Ill. App. 2d 437, 222 N.E.2d 712; Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 342 N.E.2d 329; Loughman Cabinet Co. v. C. Iber & Sons, Inc. (1977), 46 Ill. App. 3d 873, 361 N.E.2d 379.

Finally, we rely upon the analysis provided earlier in this opinion to reject the holding of Pumala. What then is the result of the dispute between defendant’s affidavits and plaintiff’s unverified, conclusory allegations about the statute of limitations?

Just as the technical requirements for affidavits filed in support of motions for summary judgment and motions for involuntary dismissal under section 2 — 619 are the same, so are the uses and effects of affidavits. For instance, cases holding that facts within an affidavit in support of a section 2 — 619 motion, not contradicted by counteraffidavit, must be taken as true repeatedly rely on cases where the same conclusion has been reached with regard to motions for summary judgment. (See Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 507, 396 N.E.2d 34, 43, citing Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, and Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 312 N.E.2d 601; see also Lindahl v. City of Des Plaines (1991), 210 Ill. App. 3d 281, 299, 568 N.E.2d 1306, 1318, citing Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 478 N.E.2d 1187.) Plaintiff did not file a counteraffidavit contesting the facts raised in the motion to dismiss. When facts alleged in an affidavit are not contradicted, those facts are taken as true. Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 412, 533 N.E.2d 448, 451; Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 420 N.E.2d 672.

The trial court had the plaintiff’s unverified complaint and the defendant’s motion to dismiss to which defendant had attached affidavits. The plaintiff sought to avoid the statute of limitations by resting on the allegations of its complaint. The affidavits filed by the defendant satisfied the requirements of Illinois Supreme Court Rule 191. (134 Ill. 2d R. 191.) First, the affidavits were based upon the personal knowledge of the affiants. In addition, the affidavits set forth with particularity the facts upon which the defense is based, i.e., that the cause of action is untimely. Finally, these affidavits do not cite any inadmissible conclusions but cite facts admissible in evidence. We find that the defendant’s motion to dismiss effectively raised affirmative matters, and we would ordinarily conclude that the trial court did not err in granting the defendant’s motion to dismiss. However, in view of the plaintiff’s legitimate reliance upon Pumala, which we have declined to follow, we will reverse and remand to allow the plaintiff an opportunity to file counteraffidavits. If no counteraffidavits are filed within a reasonable time, the trial court should reenter its order of dismissal. If, however, appropriate counteraffidavits are filed, the trial court shall proceed as set forth in section 2 — 619(c), that is, resolve the factual dispute itself if there is no jury demand or deny the motion, with leave to assert it at trial, if there is a jury demand.

Reversed and remanded with directions.

WELCH, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

specially concurring:

I specially concur with the majority’s conclusion in this case with the following reservations.

The language of the complaint quoted in the majority opinion states, “ ‘This suit was not filed after the expiration of one (1) year following the date on which the principal ceased work on the Contract ***.’ ” (236 Ill. App. 3d at 1067-68.) As this appeared on the face of the complaint and was controverted, I have some question as to whether, in fact, the Pumala standard (Pumala v. Sipos (1985), 131 Ill. App. 3d 845, 476 N.E.2d 462) may not have been met.

More importantly, I think the distinction between the treatment of jury cases and nonjury cases under section 2 — 619 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) bears more emphasis. As noted in the majority opinion in its quotation from 4 Illinois Practice §38.3, at 224, “Motions to dismiss under section 2 — 619 *** ‘(4) *** allow a determination of the motion on the merits even if there is a genuine issue of material fact raised by the affirmative matter as long as the party opposing the motion has not filed a jury demand ***.’ ” (Emphasis added.) (236 Ill. App. 3d at 1072.) The Pumala case is apparently a jury cause, a medical malpractice action, and on the basis of the record before us, it appears that the instant case is nonjury. A restricted view of the appropriate scope of a section 2 — 619 motion in a jury case such as Pumala is certainly appropriate, whereas the more expansive view of the majority opinion is appropriate in a nonjury cause. As the Historical and Practice Notes for section 2 — 619 indicated:

“The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).)

The Historical Notes also refer to North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664, concerning the different approaches a court should take in dealing with jury or nonjury cases when a motion is filed trader the predecessor of this section.

As indicated by the majority and Professor Michael, it is certainly appropriate that a trial court attempt to dispose of those issues which may be determined under section 2 — 619 prior to trial. It must be emphasized, however, that when a case before the trial court contains a jury demand, the position of the trial court as a determiner of an issue of fact involved in a section 2 — 619 motion is much more severely limited than when the cause of action involves a bench trial. As the Historical Notes and Professor Michael both note, any dispute other than the most easily and conclusively resolved issue of fact should proceed to jury trial.

While I would not disavow the ruling in Pumala since it was a jury case, I concur in the general result reached by the majority and its fair and equitable determination for action on remand of this particular cause.