author: JUSTICE LINN

text:
    FRANK GRACHEN, SR., as Next Friend and Adm’r of the Estate of Frank Grachen, Jr., Deceased, Plaintiff-Appellee, v. RANDOLPH L. ZARECKI et al., Defendants (Charles N. Bolla et al., Defendants-Appellants).
    First District (4th Division)
    No. 1—89—0876
    Opinion filed June 14, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago, and Heyl, Royster, Voelker & Allen, of Peoria (Stanley V. Boychuck, Adam J. Glazer, and David R. Sinn, of counsel), for appellants.
    Stackler & Stackler, and Arnold H. Landis, both of Chicago (Ronald E. Stackler, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Frank Grachen, Sr., administrator of the estate of his son, Frank Grachen, Jr., filed a negligence action arising out of a collision between the decedent’s motorcycle and the defendants’ vehicles. Two of the defendants, Charles Bolla and ABF Freight Systems, Inc., moved to transfer the action from Cook County to Woodford County, on the basis of forum non conveniens.

The trial court denied the motion, and defendants brought this interlocutory appeal pursuant to Supreme Court Rule 306(a)(1)(ii) (107 Ill. 2d R. 306(a)(1)(ii)). The sole issue presented is whether the trial court abused its discretion in applying the unequal balancing test and determining that the public and private factors do not so strongly favor defendants’ preferred forum as to require the transfer.

We affirm.

Background

On September 18, 1987, Frank Grachen, Jr., was travelling south on Route 51, in Woodford County. He was with a group of people including his parents and a cousin, Richard Forkes. Grachen, his father, and Forkes were all riding motorcycles and his mother was driving a van. At approximately 1 a.m., Randolph L. Zarecki, one of the defendants, was driving south in a 1987 Chevrolet on the same road. He collided with Grachen, who was thrown onto the hood of the Chevrolet and then into the oncoming lane of traffic, where he was run over by a truck driven by Bolla and owned by ABF Freight Systems.

Defendants moved to transfer plaintiff’s action from Cook County to Woodford County, on the following grounds: None of the parties reside in Cook County; the accident and subsequent investigation took place in Woodford County; few if any sources of proof are located in Cook County; Cook County’s docket is far more congested than is Woodford’s; and the latter county is more convenient for the trial of the cause. On appeal they have elaborated on these reasons and added the possibility of having the jury visit the accident scene. In addition, they charge that the trial court misapplied the case of Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745, and that the court abused its discretion in denying the motion because the factors strongly favor the transfer.

Opinion

Forum non conveniens is an equitable doctrine that assumes that more than one forum has jurisdiction over the parties and subject matter. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291.) When a defendant invokes the doctrine seeking a transfer of the action to a more convenient location, the court applies an “unequal” balancing test which requires a showing that the relevant factors strongly favor transfer before the motion will be granted. (McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 520 N.E.2d 368; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98.) Relevant private interest factors are the relative ease of access to witnesses and other sources of proof, the parties’ convenience, and other such .practical matters that facilitate an expeditious and inexpensive trial. McClain, 121 Ill. 2d at 289.

Public interest factors include administrative concerns, such as the relative congestion of court dockets, the inappropriateness of imposing jury duty upon residents of a county which has no connection to the litigation, and an interest in having a localized controversy handled locally. McClain, 121 Ill. 2d at 289.

Finally, the plaintiff’s choice of forum is given deference, the courts noting that unless the factors weigh strongly in favor of transfer, “ ‘the plaintiff’s choice of forum should rarely be disturbed.’ ” (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73, 444 N.E.2d 157, 160, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) This choice is given less deference, however, if the plaintiff is not a resident of the chosen forum. McClain, 121 Ill. 2d at 289.

The record reveals that, while none of the individual parties are residents of Cook County, the plaintiff and his wife live in Naperville, approximately 10 miles west of Cook County. According to plaintiff, both he and his wife will testify at trial, as will Richard Forkes, a resident of Cook County. Forkes was at the scene of the collision and witnessed at least a portion of the actual occurrence, while Frank’s parents arrived at the scene immediately after the collision. Several adult passengers of the group travelling with the deceased on that night who also may be called as witnesses live in or near Naperville. Plaintiff asserts that other witnesses whose testimony will bear on Frank’s employment and earnings or who are familiar with his habits, character, and relationship to his family, live in or near Naperville. In addition, plaintiff’s accident reconstruction expert is a resident of Cook County. The damaged motorcycle, which the expert will likely examine, is also located in Naperville, at Frank, Sr.’s home.

From plaintiff’s viewpoint, therefore, Cook County is a substantially more convenient forum than is Woodford County, which is approximately 150 miles away from plaintiff’s residence and sources of proof.

Defendants assert that Woodford County is more convenient as being geographically closer to their counties of residence. Zarecki (not a party to this appeal) lives in McLean County, which adjoins Wood-ford County, and Bolla lives in Bond County, which apparently is at least 150 miles south of Woodford County. They state that the location of evidence and accessibility of witnesses strongly support the transfer; members of the Illinois State Police investigated the accident and personnel of the Woodford County coroner’s office investigated the cause of death. Woodford County would therefore be more convenient for them. Defendants also assert that a jury view of the scene would be effectively precluded by trying the case in Cook County.

These private interest factors are divided among different counties. No one county has the predominating factors in its corner. Plaintiff’s choice of Cook County certainly does not appear to be so insubstantial as to amount to “flagrant forum shopping,” as defendants charge. On the contrary, Cook County is more convenient for plaintiff and his material witnesses and other sources of proof. Woodford County, despite its connections to the litigation, is not as convenient a forum for plaintiff. It is, however, more conveniently situated for defendants. It is also the situs of the accident and the location of some of the potential witnesses and other sources of proof. The police officers responding to the call and the coroner’s office personnel may be expected to give evidence in the case. Nevertheless, it is plaintiff’s burden to prove his case at trial, and many of his material witnesses are located in or near Cook County, 150 miles away from Woodford County. Plaintiff, his wife, Richard Forkes, and the adult passengers travelling with them at the time of the accident were at the scene, Forkes actually witnessing part of the tragic accident and Frank, Jr.’s parents arriving seconds later. Therefore, the fact that the collision occurred in Woodford does not have as much impact on the forum non conveniens issue as it might if most of the occurrence witnesses lived in or near Woodford.

In addition to these witnesses who were at the scene, plaintiff may call other persons whose testimony is necessary to establish elements of liability (the reconstruction expert) or damages (witnesses for decedent’s earnings potential, habits, and relationship with other family members). We do not conclude that the parties’ convenience and the accessibility of evidence favor Woodford over Cook. (See Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745) (It was not an abuse of discretion to deny a motion to transfer a cause from Cook to McHenry County where accident situs and plaintiff’s residence were in McHenry County, medical and other witnesses resided in Cook County, and other, collar counties also had connection to the litigation).

As for a jury’s ability to view the scene, we acknowledge that courts have found this important. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 80, 457 N.E.2d 417.) The importance of the jury’s opportunity to view the scene diminishes, however, if there is little at the scene to aid the jury in deciding the issues. In Moore, the accident occurred at a railroad crossing in Wisconsin, more than 200 miles from Cook County. The court’s recognition that an Illinois jury could not conveniently visit the scene must be viewed in light of specific characteristics of that site. A railroad crossing might have certain features that a jury should observe firsthand, such as whether there is a natural or man-made condition near the crossing that may obscure an approaching motorist’s vision. In the pending case defendants do not suggest any specific facts that would make viewing the site of this accident helpful to a jury. The collision apparently occurred on a relatively straight stretch of highway. Without some indication as to the importance of a jury view of this site, we cannot conclude that the foreclosure of such an opportunity is a factor weighing strongly in favor of defendants’ position.

As for the public interest factors involved, defendants point out that the average time for a case to come to trial in Cook County far exceeds the wait that Woodford County litigants endure. (See Boston v. Rockford Memorial Hospital (1986), 140 Ill. App. 3d 969, 489 N.E.2d 429.) That the Cook County docket is more congested does favor resolution of the dispute in Woodford County. That factor alone, however, is not enough justification to cause a transfer. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101.

Defendants also contend that the residents of Cook County have no interest in having the dispute resolved in their courts, at their expense and time. We do not believe that the residents of Woodford have any stronger stake in the outcome than residents of other counties, however, since the parties involved are themselves from different counties.

Our standard of review is whether the trial court abused its discretion in denying the motion to transfer. (Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 118, 497 N.E.2d 745.) The pertinent inquiry is not whether this court would weigh the factors differently or whether the trial court’s exercise of discretion was “wise.” (See Griffith, 136 Ill. 2d at 115.) As previously stated, the convenience factors favoring defendants’ position must strongly outweigh the factors favoring the forum in which the action is brought. We do not find that the balance here strongly favors Woodford County. Nor do we find that the trial court misapplied the law or ignored any pertinent factors in the balancing process. Therefore, we do not find that the trial court abused its discretion.

The recent Illinois Supreme Court decision of Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, directly supports our decision. Griffith involved a fatal air crash that occurred in Du Page County, Illinois, as five people were en route from Meigs Field in Chicago to Du Page County Airport. All of the plaintiffs (representatives of the five decedents) lived in States other than Illinois. All but one of the decedents had been nonresidents of Illinois. Plaintiffs filed separate actions in negligence and strict liability in Cook County, Illinois. Defendants argued that the private and public interest factors strongly favored transfer to Du Page County. They further contended that a less stringent balancing test should be applied, one that minimizes the deference afforded the plaintiff’s choice. Under their theory, when plaintiffs are not residents of the chosen forum, the court should apply an “equal balancing” test, which need only show that the factors “favor” defendants’ choice.

The supreme court rejected the invitation to alter the current Jo- rum non conveniens analysis in the manner proposed. The court stated, “Under our current forum non conveniens analysis, deference to the plaintiff’s choice of forum is but one factor, along with other relevant private and public interest factors, to be considered in the balancing process. The deference given to plaintiff’s choice of forum is a factor which may be given more or less weight within the test, depending on whether the plaintiff is a resident of the forum selected. *** If the plaintiff is foreign to the forum selected, the forum choice should be given less deference than it would be given if the plaintiff were a resident of the forum selected. The test, then, is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by defendant." (Emphasis added.) Griffith, 136 Ill. 2d at 107-08.

The defendants in Griffith argued that a majority of the potential witnesses resided in or near Du Page County, which was also the site of the accident. They contended that Du Page County had a greater interest in the litigation than Cook County, which had insignificant connections to the action. Moreover, the congested docket, they argued, favored transfer to Du Page.

The supreme court carefully analyzed each point, noting that the trial court had considered all of the issues and commenting that (with the exception of the congested docket) none of the private or public interest factors, singly or together, strongly favored the transfer. The congested docket alone was deemed insufficient. Griffith, 136 Ill. 2d at 115. .

We find that the factors in support of plaintiff’s chosen forum in the pending case are at least as persuasive as those in Griffith. Accordingly; we affirm the trial court’s denial of the motion to transfer.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.

       The corporate defendants have registered agents in Cook County and ABF Freight transacts business there. This vests Cook County with venue over the action, although it is not generally considered significant in forum non conveniens determinations. See Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 226, 506 N.E.2d 1291.

       In their motions for transfer, defendants did not emphasize the need for a jury view of the site. On the contrary, the only reference to this point in the papers is found in the defendants’ reply to plaintiff’s response to the motion to transfer, in which they note that a jury’s view of the motorcycle would not be necessary, but that “far more likely is the possibility that a jury would want to view the scene of the accident.”


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    RICHARD D. BORGESON, Plaintiff-Appellee, v. SOL HEIFETZ, Defendant-Appellant (The American National Bank and Trust Company of Chicago, as Trustee, Defendant-Appellee).
    First District (3rd Division)
    No. 1—89—1762
    Opinion filed February 7, 1990.
    Rehearing denied August 10, 1990.

      Edward A. Berman, P.C., of Chicago, for appellant.
    Kenneth F. Levin, of Kenneth F. Levin, Chartered, of Chicago, for appellee Richard D. Borgeson.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Sol Heifetz, appeals from the entry of partial summary judgment for specific performance of a real estate contract under Supreme Court Rule 307 (134 Ill. 2d R. 307) on interlocutory appeals.

Appellant Heifetz argues that the trial court erred in: directing the issuance of a deed and allowing plaintiff Richard D. Borgeson to clean up contamination using defendant seller’s funds; granting summary judgment because plaintiff’s motion for summary judgment was unsupported by affidavits or depositions and because there were genuine issues of material fact to be resolved; striking his affirmative defense relating to the plaintiff Borgeson’s failure to elect to take the property subject to a title exception; and determining that the existence of contamination on the property interfered with plaintiff’s planned use of the property.

Plaintiff, Richard D. Borgeson, filed a complaint for specific performance on February 3, 1989, against Heifetz and the American National Bank and Trust Company of Chicago as trustee under trust agreement dated March 14, 1984, and known as trust number 60538. In a September 18, 1988, real estate contract and an October 14, 1988, letter agreement, Heifetz agreed to sell to plaintiff property improved with a car wash, gas station, and mini-mart for $680,000. Plaintiff alleged that on January 10, 1989, Heifetz failed to comply with his contract obligations to provide a current survey, repair and/or authorize plaintiff to inspect repairs purportedly made, repair underground leaks in order for plaintiff to lawfully operate the car wash and gas station, provide proposed drafts of closing documents, and convey good and merchantable title. Plaintiff sought an order enjoining and restraining Heifetz from encumbering or conveying the property and requiring Heifetz to specifically perform the contract by conveying title and effecting all necessary repairs to the property.

Paragraph 9(a) of the contract stated in part:

“Seller shall *** deliver *** to Purchaser *** a title commitment for an owner’s title insurance policy *** in the amount of the purchase price showing title *** subject only to (1) the conditions *** and standard or general exceptions contained in the owner’s policy issued by that company; (2) the title exceptions set forth above, in paragraph 4(b); and (3) title exceptions which may be removed by the payment of money at the time of closing and which the Seller may so remove at that time by using the the [sic] funds to be paid upon the delivery of the deed.” (The words in italics were illegible in the record but are supplied in plaintiff’s brief.)

Paragraph 4(b) of the contract stated that title was to be conveyed subject only to general taxes for 1988 and subsequent years; special taxes or assessments for any improvements not yet completed; any installments not due at the date of the contract of any special tax or assessments for completed improvements; building lines and building and liquor restrictions of record; zoning and building laws and ordinances; private, public and utility easements; covenants and restrictions of record as to use and occupancy; party wall rights and agreements; existing leases and tenancies; and acts done or suffered by or through the purchaser.

Paragraph 9(b) of the contract stated:

“If the title commitment discloses exceptions relating to title other than those referred to in paragraph 9(a), Seller shall have 30 days from the date of the delivery to Purchaser thereof to have these exceptions removed from the commitment. If Seller fails to have these exceptions removed within such time, Purchaser may terminate this contract or may elect, upon notice to Seller within 10 days after the expiration of the 30-day period, to take title as it then is with the right to deduct from the purchase price liens or encumbrances of a definite or ascertainable amount. If Purchaser does not so elect, this contract shall become null and void without further action of the parties, and the earnest money shall be returned to the Purchaser.”

A rider attached to the contract included the following terms:

“14. Seller represents that the heating, cooling, electrical, plumbing and mechanical systems and fixtures and all equipment used in the car wash, gas station, and convenience store on the premises are currently in good working order and will be in good working order on the closing date.
* * *
18. Seller represents:
* * *
C) That there is City, County, State or Federal law or regulation which would prevent Buyer or his assignees from operating any or all of the three businesses presently being operated on the subject premises by the Seller.”

A letter agreement entered October 19, 1988, changed the date of closing to January 10, 1989.

On January 6, 1989, the attorney for Borgeson sent a letter requesting the closing of the transaction be postponed from January 10, 1989, to a date later in January.

A January 9, 1989, letter attached to the complaint requested an extension of the date for closing of the contract until on or after January 24, 1989. The letter also stated that plaintiff was ready, willing and able to close subject to defendant’s compliance with the contract by: (1) forwarding copies of certain documents which were listed; (2) clearing up title matters including a pending proceeding in Cook County circuit court shown as an exception to the title insurance commitment; (3) repairing equipment to plaintiff’s satisfaction and permitting inspection by plaintiff prior to closing; and (4) correcting prior to closing leakage that caused soil contamination with benzene and xylene in violation of Federal and State laws.

Heifetz filed an answer in which he stated in paragraph 4:

“Defendant admits that the Contract was a valid, binding and enforceable contract. Defendant denies that the Contract is currently a valid, binding and enforceable contract and affirmatively states that the contract is null and void as specifically detailed in Defendant’s Affirmative Defense, included herein.”

Heifetz admitted in his answer that he received a copy of the January 9, 1989, letter but contended that plaintiff was not ready to proceed with closing on January 10, 1989, and instead had requested an extension in a January 6,1989, letter. Heifetz refused to give an extension.

Heifetz also stated in his answer that he was unable to convey good and merchantable title on January 10, 1989, as disclosed in the title commitment. The commitment stated that an owner’s policy in the amount of $10,000 was to be issued to insure plaintiff and that a loan policy in an amount “to come” was to be issued to insure Broadway Bank. Noted in exception number nine of the title commitment was:

“Proceeding pending in the circuit court of Cook County, Illinois, case no. 86M1403030, on a complaint filed April 15, 1986 by the City of Chicago vs. American National Bank and Trust Company of Chicago, as trustee under trust number 60538, and others for building violation, receiver and demolition.
Lis pendens notice recorded April 18, 1986 as document 86151286
September 6, 1988 order Saul Heiftz [s-ic] fined $800.00 plus $47.50 costs
September 13, 1988 order motion plaintiff Saul Heiftz [sic] fined a total of $800.00 plus $47.50 costs
September 21, 1988 order motion defendant judgment and fine entered against Saul Heiftz [sic] vacated.”

Heifetz alleged in his affirmative defense that on February 23, 1989, and as of April 3, 1989 (the date of the pleading), he was unable to remove exception number nine and that plaintiff neither terminated the contract nor timely elected to take the property subject to the title defect. Heifetz also alleged that a February 23, 1989, letter from his attorney gave plaintiff notice of termination because of Heifetz’ inability to remove exception number nine. The letter stated that more than 40 days had elapsed subsequent to the delivery of plaintiff’s request to remove title exceptions, and that the contract was null and void because plaintiff had not elected to take title pursuant to paragraph 9(b).

Attached to plaintiff’s reply to Heifetz’ answer was a March 3, 1989, letter from plaintiff’s attorney to Heifetz and his attorneys in response to Heifetz’ notice of termination letter. The letter stated that plaintiff was not notified of Heifetz’ inability or unwillingness to remove exception number nine until he received the February 23, 1989, letter. The letter also stated that plaintiff would take title to the property subject to exception number nine.

Plaintiff moved for summary judgment; he argued that Heifetz’ affirmative defense was meritless because Heifetz could not declare himself unable to remove the building code case and then declare himself unable to perform the contract. No affidavits or counteraffidavits were filed in connection with the motion.

Plaintiff argued that the verified pleadings, the attached exhibits, and admissions contained in the pleadings were sufficient for summary judgment to be awarded to plaintiff.

The trial court ruled that there were no “material facts of issue” and entered judgment in.favor of plaintiff. Heifetz’ affirmative defense was found to be insufficient. American National was ordered to deposit the deed into an escrow. Plaintiff was ordered to cure the contamination and was to be credited at closing with all reasonable expenses associated with cleaning up the contamination, the extent of which was unknown. All mechanical equipment was to be in good working order at defendant’s expense. American National was to convey title to plaintiff after amounts were credited or debited according to the sales contract. Heifetz was ordered to do all things necessary to “assist or effect” the order’s terms.

Summary judgment shall be entered if there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) The right to summary judgment must be clear beyond question. (Kolakowski v. Voris (1979), 76 Ill. App. 3d 453, 457, 395 N.E.2d 26, aff’d (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) The motion for summary judgment is construed liberally in favor of the nonmovant. Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 642, 411 N.E.2d 1168.

The trial court erred in granting summary judgment because there was a genuine issue whether the pending proceeding for “building violation, receiver and demolition” was a title exception that could be removed by the payment of money at the time of closing so as to fall under paragraph 9(a)(3) of the contract. There is no information in the record about how the proceeding could be dismissed.

Exception number nine of the title commitment was a proceeding in the circuit court of Cook County in which the City of Chicago complained of building violations and requested a receiver and demolition. The matter was still a cloud on the title even though the $800 fine plus costs was vacated by court order on September 21, 1988, according to the title commitment. This indicated that something more was required to be done in order to have the lawsuit dismissed, in addition to the payment of the fine. The pleadings and exhibits do not indicate what ordinance violations were alleged in the complaint of the City of Chicago. One can only speculate as to how simple or difficult it would be to remove the cloud from the title to the property.

If the exception could not be removed by the payment of a definite amount of money at closing, then paragraph 9(b) would apply because none of the other title exceptions of paragraph 9(a) applied. Under paragraph 9(b), if the seller failed to remove the exception within 30 days of delivery of the commitment to the purchaser, the purchaser could elect to take the title subject to the exception only if he gave notice to the seller within 10 days of the expiration of the 30 days. If the seller did not give such notice, the contract became void without further action of the parties.

If title exception number nine triggered paragraph 9(b) of the contract, summary judgment could not be entered in plaintiff’s favor because plaintiff failed to make a timely election. The date that plaintiff received the title commitment is not in the record, but the latest date that he could have received it was January 9, 1989, because plaintiff requested in a letter of that date to have the title exception removed. The 40th day after delivery could then have been no later than February 18, 1989. Plaintiff’s attempted March 3, 1989, election was too late because the contract became void automatically by plaintiff’s inaction in the 10 days following the 30-day period.

Plaintiff argues that Heifetz refused to remove exception number nine and that Heifetz’ breach of the contract could not relieve him of his duty to perform. There is no indication in the record that Heifetz refused rather than was unable to remove the exception. In any event, the possibility of the seller’s wilful breach is contemplated in paragraph 9(b) of the contract because it refers to the seller’s failure to correct the defect.

Plaintiff also argues that Heifetz did not tender a title commitment for an insurance policy in the required amount so that the commitment did not trigger the notice of election requirement. Whether the commitment was inadequate is a question of fact that would preclude summary judgment. Both plaintiff and defendant have treated the title commitment of December 21, 1988, as the only title commitment to check if there were any exceptions to the title to the property prior to closing the transaction: Plaintiff Borgeson’s attempted election on March 3, 1989, was based on the December 21, 1988, title commitment. Even if the amount of insurance were inadequate, the purchaser would not thereby be relieved of his contractual obligation to either terminate the contract or to give notice of an election to avoid the contract becoming void.

Plaintiff also argues that the filing of the specific performance complaint on February 3, 1989, was a notice of election to take the property subject to the title defect. The complaint was filed within the 30-day period in which Heifetz was permitted to cure title defects and not within the 10-day period after the expiration of the 30 days, in which a notice of election was to be given. Even if plaintiff could make an election to take the property subject to the defect prior to the expiration of the 30 days, the complaint was not notice of an election to take the property subject to the title exception. The complaint did not clearly state that plaintiff desired to take the property subject to the title exception and actually indicated to the contrary in its allegation that Heifetz failed to convey good and merchantable title.

The judgment of the circuit court is reversed and the cause is remanded.

RIZZI and WHITE, JJ., concur.


author: JUSTICE O’CONNOR

text:
    NORTH COMMUNITY BANK, Plaintiff-Appellee, v. AETNA BANK, as Trustee, et al., Defendants (Patricia John, Defendant-Appellant).
    First District (1st Division)
    No. 1—88—0147
    Opinion filed May 7, 1990.
    Rehearing denied August 9, 1990.

      Gottlieb & Schwartz, of Chicago (Jeffrey P. Smith, of counsel), for appellant.
    Altheimer & Gray, of Chicago (F. John McGinnis and David H. Latham, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This case involves consolidated actions contesting title to a piece of commercial property located at 3244 West Irving Park Road, Chicago, Illinois (the Subject Property). Prior to February 1, 1984, the subject property was owned in joint tenancy by Harry John (Harry) and his father, Peter John (Peter). The property contained a one-story building used as an autobody shop. The subject property was legally described as lots 28, 29 and 30 in block 3 in William Boldenweek’s addition to Grant Park in section 14, township 40 north, range 13, east of the third principal meridian, in Cook County, Illinois, commonly known as 3244 West Irving Park Road, Chicago, Illinois.

Patricia John (Patricia), who was married to Harry, received a lien on the subject property to secure a $15,000 judgment, which she received pursuant to the judgment of dissolution of marriage between Harry and Patricia John. Patricia’s judgment settled her interest in the marital home payable upon (1) Harry’s remarriage; or (2) the sale of the subject property; or (3) not later than five years after the entry of the judgment of dissolution of marriage. On April 4, 1983, she properly filed a memorandum of judgment, which contained the correct legal description.

Marshall J. Belgrad (Belgrad), Harry’s attorney in the divorce proceedings, also received a judgment for $3,500 in attorney fees against Harry. On July 6, 1981, Belgrad recorded his memorandum of judgment against the subject property but incorrectly stated the legal description as, “Lot 29 in block 3 of William Boldenwick’s Addition to Grant Park, a Subdivision of the East One-Half of the Southeast Quarter of section 14, Range 4-0, Township 13, East of the Third Principal Meridian, commonly known as 3244 West Irving Park Road, Chicago, Cook County.” (Emphasis added.) The legal description only named lot 29, mischaracterized Boldenweek as Boldenwick, and inverted the range and township numbers. On February 2, 1982, the sheriff of Cook County recorded Belgrad’s certificate of levy. In the certificate of levy, Belgrad again incorrectly described the property as he did in his memorandum of judgment. Then on March 4, 1982, Belgrad assigned his judgment against Harry to Patricia, which was recorded on March 12, 1982. The assignment recited that Patricia paid Belgrad the full value of the judgment plus fees and interest.

The sale of the subject property was noticed for March 17, 1982. Accordingly, on February 22, March 1, and March 8, 1982, the sheriff of Cook County published in the Chicago Daily Law Bulletin a notice of sale with respect to the subject property. The notice of sale, however, inverted the range and township numbers, characterized the property as in “Boldenwick’s Addition” rather than “Boldenweek’s Addition,” listed all three lots, but recited the correct common description. On March 1, 1982, the notice of sale was posted at the Clark Street entrance to the county building, at the La Salle Street entrance to Chicago City Hall, and the sheriff’s office in the Daley Center, and in the Cook County law library in the Daley Center. The sale date was continued 10 times but was never renoticed. Instead, the continuance was by proclamation.

On February 1, 1984, Peter and Harry purportedly conveyed, by a warranty deed, title to the subject property to Aetna in trust. Then Aetna executed a mortgage to North Community Bank (NCB) on or about June 8, 1984, to secure a $100,000 note for the benefit of Jiro Yamaguchi (Yamaguchi), who was allegedly the beneficiary of the land trust.

The sheriff’s sale finally occurred on September 26, 1984, and Patricia was the successful bidder. The redemption period expired on March 26, 1985. On March 28, 1985, the sheriff executed a certificate of sale, which repeated the erroneous legal description as described in the notice of sale. On the same day, the sheriff executed another certificate of sale to correct the township and range numbers, which was recorded. However, the legal description still stated “Boldenwick’s” instead of “Boldenweek’s,” and included lots 28 and 30 even though the levy was only on lot 29.

In April 1985, Aetna defaulted on their mortgage. Three actions relating to the facts stated above were consolidated, and Patricia was named as one of the defendants. Trying to defend the action, Patricia issued subpoenas to NCB, Aetna and Balmoral, the nursing home where Peter resided. In those subpoenas, Patricia requested testimony and production of documents concerning the formation of the Aetna trust and NCB’s loan to Yamaguchi, as well as documents relating to Peter’s competency. Then, NCB filed a motion for summary judgment seeking to foreclose its mortgage and quiet title by cancel-ling Patricia’s sheriff’s deed. Subsequently, Patricia asked the court to enforce her subpoenas so that she could present evidence of a fraudulent conveyance to Aetna, which was necessary to contest NCB’s summary judgment motion. The court refused to consider Patricia’s request until after hearing the motion for summary judgment. During the summary judgment motion, the trial court was advised that there was an issue concerning whether the transfer of title to Aetna was valid and whether NCB had any knowledge concerning Harry’s alleged attempt to alienate the property in violation of court order. Patricia, however, did not present any evidence to oppose the summary judgment motion. Therefore on December 31, 1987, the trial court granted summary judgment for NCB and quashed Patricia’s subpoenas, finding that they were irrelevant. Additionally, the court held that Patricia’s sheriff’s deed was invalid because she was chargeable with constructive notice of certain irregularities in the sheriff’s procedures. Patricia appeals.

Initially, Patricia argues that the trial court erred in granting summary judgment for NCB because she had outstanding discovery requests, which may have proved fraud in the title’s conveyance and that NCB, therefore, would not have standing to a quiet title action. We disagree. While it is true that NCB must have acquired legal title in itself to maintain a quiet title action (La Salle National Bank v. Kissane (1987), 163 Ill. App. 3d 534, 542, 516 N.E.2d 790), Patricia had not presented affidavits or evidence, only argument, regarding alleged fraud, which would vitiate NCB’s title and would defend against NCB’s summary judgment motion. Therefore, the trial court properly heard the summary judgment motion prior to Patricia receiving discovery.

Next, Patricia argues that the alleged errors in the sale were not errors or they were “hypertechnical” and inconsequential, and then argues that she did not have actual notice of the errors. We disagree. These errors in combination were significant: the sheriff’s deed differed from the documents connected with the levy and sale; the notice of sale stated the sale would be of the right, title and interest of Patricia when the levy was on the right, title and interest of Harry; the notice of sale stated the incorrect legal description; and the certificate of sale was not recorded until two days after the redemption period expired. Moreover, Patricia had constructive notice of the irregularities since she was the assignee of the judgment levy, had her own lien on the property, and was a party to the lawsuit out of which the judgment arose. (Henderson v. Harness (1900), 184 Ill. 520, 530, 56 N.E. 786, 789.) As a result of the assignment, Patricia stepped into the shoes of Belgrad and was chargeable with such notice as Belgrad had. (Barnes v. Freed (1930), 342 Ill. 73, 80, 173 N.E. 795.) Also, when Patricia purchased the subject property at her own execution sale, she was chargeable with notice of any irregularities in the sale. (Miller v. McAlister (1902), 197 Ill. 72, 85, 64 N.E. 254, 259.) Consequently, the sheriff’s sale was rendered voidable.

For the foregoing reasons, the trial court properly granted summary judgment for NCB because there were not any genuine issues of material fact presented by affidavits, depositions, or exhibits in opposition to NCB’s motion for summary judgment and Patricia had constructive notice of irregularities in the sheriff’s sale.

Affirmed.

CAMPBELL and MANNING, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    LAKE COUNTY FOREST PRESERVE DISTRICT, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF WAUKEGAN, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—89—0937
    Opinion filed August 1, 1990.

      Donald T. Morrison, of Donald T. Morrison & Associates, P.C., of Waukegan (Joseph T. Morrison, of counsel), for appellant.
    Richards, Ralph, Eiden, Eckert & O’Donnell, Chartered, of Vernon Hills, and Roland A. Eckert, of Epton, Mullin & Druth, Ltd., of Chicago (Robert T. O’Donnell, of counsel), for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Lake County Forest Preserve District (the District), filed an eminent domain action in the circuit court of Lake County. The District sought to acquire by condemnation certain property belonging to defendants, First National Bank of Waukegan, as trustee of trust No. 3085, Swanson Farms Partnership, mortgagor and beneficial owner of the property held in trust No. 3085, Alan Richards and Michael L. Ralph, two of the partners of Swanson Farms Partnership, and Hamilton Financial Corporation, lien holder. Defendants filed a traverse and motion to dismiss, stating that the District failed to make a bona fide effort to agree with the defendants as to the just compensation to be paid for the subject property prior to the filing of the District’s condemnation complaint. An evidentiary hearing was held on August 10, 1989. In its written order issued on September 7, 1989, the court granted defendants’ traverse and motion to dismiss, finding that the District had not made “a good faith, bona fide attempt to agree on the purchase price for the land sought to be condemned.”

The District appeals, raising four issues which can be effectively stated as one: whether the District made a bona fide attempt to reach an agreement with defendants on the amount of compensation for their property.

Illinois’ Eminent Domain Act provides that “[p]rivate property shall not be taken or damaged for public use without just compensation.” (Ill. Rev. Stat. 1987, ch. 110, par. 7—101.) A condition precedent to the exercise of the power of eminent domain is an attempt to reach an agreement with the property owner on the amount of compensation. (City of Oakbrook Terrace v. LaSalle National Bank (1989), 186 Ill. App. 3d 343, 351.) In this regard, the acquiring authority must make a bona fide attempt to agree, and the attempt must be made in good faith. (Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 1040.) Where a wide disparity exists between the value placed on the property by the acquiring authority and the property owner and where the circumstances show that no practical solution can be reached, no further negotiations are necessary. Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 527-28; Oakbrook Terrace, 186 Ill. App. 3d at 351.

The subject property (parcel EF-5) consisted of approximately 19.66 acres of a 35-acre parcel. Defendants purchased parcel EF-5 in May 1986 for $280,000. Thereafter, parcel EF-5 in conjunction with the remainder of the 35-acre parcel was sold for $965,683.71 to Anvil Farms, a joint venture of which defendant Swanson Farms Partnership was a 50% owner with a corporation called Hamilton Development. Late in 1986, defendants began having informal discussions with the Village of Lincolnshire (Village) regarding the annexation of their 35-acre parcel to be developed as the Anvil Farms Subdivision. With future annexation in mind, defendants hired an engineer, a land planner, a tree surveyor, and other professionals to prepare preliminary plats of subdivision and other studies incident to approval by the Village for annexation. In July 1987 defendants were prepared to make their formal proposal for annexation and subdivision to the Village Board of Lincolnshire (the Board). Two of the defendants and their engineer appeared at the Board’s July 23, 1987, meeting to make their presentation. However, at the meeting defendants learned that the District had expressed some interest in acquiring the Keough Properties, which included the subject property. As a result, the Board voted to defer any action on the defendants’ request for annexation until the District’s intent could be clarified.

In a letter, dated July 31, 1987, the District president, Donald Strenger, reported to the Village that the subject property had been brought to the attention of the District’s land acquisition committee (the Committee) on July 10, 1987, that the property had been referred to the administrative staff for preliminary study, that the staff study had not yet been considered by the Committee, and that no determination to recommend the property for acquisition had been made by the land acquisition committee or the District’s finance committee. Defendants received a copy of this letter. In response, defendants sent a letter on August 5, 1987, to Stronger, requesting a definitive statement of the District’s intent requiring acquisition of the subject property.

In a September 23, 1987, letter to the Village the chairman of the land acquisition committee explained the District’s position stating:

“No motion to acquire these properties has been made by any member of the Land Acquisition Committee, and the matter is not scheduled for further consideration.
The prospective purchasers of the Keough Properties [which included the subject property] have been advised that they are free to seek annexation to the Village of Lincolnshire.”

Defendants received a copy of this letter, and shortly thereafter the Village contacted defendants to inform them that they were now free to appear before the Board and resume their petition for annexation.

Between the time of receipt of the September 23, 1987, letter from the District and the District’s October 25, 1988, notice of intent to acquire the subject property, defendants worked with the Village toward annexation and subdivision of the entire 35-acre parcel. The evidence at the hearing showed that prior to October 25 defendants prepared and revised the plat of proposed subdivision improvements, including the general layout plans, the utility plans, and other construction details such as storm sewers, and that defendants obtained final approval of such improvements from the Village. Everything that needed to be done to get the property annexed and subdivided had been accomplished with the exception of the final vote of the Board. Additionally, buyers had already contracted for the 10 contemplated lots on the subject property at an average price of $224,000 per lot.

On October 25, 1988, the District sent the Village a notice of intent to acquire certain properties including the subject property. The District’s notice had the effect of halting defendants’ annexation plans.

In a letter dated November 23, 1988, defendants proposed two alternatives to the District’s plan to acquire their property. One alternative was to exclude the subject property from acquisition. The second was to pay the fair market value for the property plus damages, which the District’s acquisition would cause the remainder of the 35-acre tract. In the letter defendants set forth the amount they anticipated from the sale of the 10 two-acre lots on the subject property, listing the name of each purchaser and the sale price of each lot. The amount defendants were to realize equalled $2,248,000. From this amount defendants subtracted $382,309 spent for site improvements, consisting primarily of roads, sewer, and water, $27,395 for engineering fees, and $75,397 in Village fees, arriving at the final figure of $1,762,899 which represented defendants’ demand for the subject property. Defendants pointed out that damages to the remaining 15 acres of the 35-acre parcel would depend upon whether it was possible still to achieve contiguity with the Village for the remainder if the subject property was acquired by the District. As with the subject property, defendants also had purchasers for all the lots on the remainder.

On December 19, 1988, defendants wrote to the District, repeating their demand of $1,762,899 and asking if the District was willing to pay the amount and, if not, what amount the District would offer. On December 20, 1988, Donald Morrison, an attorney for the District, responded to defendants’ letter, explaining that the District was awaiting an appraisal report on the subject property and would thereafter send a letter of offer to defendants. In a letter, dated March 28, 1989, the District offered $900,000, the appraised price, for the subject property. Following receipt of this offer, defendants contacted Morrison, pointing out that since the District’s offer.was conditioned on the approval by the District’s board of commissioners, defendants wanted some assurance, before beginning negotiations, that the District was willing and able to proceed. Defendants asked that the District first approve acquisition of their property and that it assure defendants that it had appropriated sufficient funds for an acquisition of the subject property in an amount at least equal to the offer made by the District.

On April 14, 1989, Alan Richards and Gerald Vargo, two of the partners in the Swanson Farms Partnership, and ■ Roland Eckert, counsel for defendants, met with Joseph Morrison, another attorney for the District, with the intention of negotiating the price for the subject property. According to Richards’ testimony at the evidentiary hearing, he learned at the April 14 meeting that Morrison had no authority to commit the District to the $900,000 amount, nor could Morrison guarantee defendants that, if they accepted the offer, they would be assured that amount by the District. On cross-examination, however, Richards admitted that Morrison had explained to him the process that the District followed in designating property for acquisition and in negotiating with the owners of the property for the purchase of the property. Additionally, Richards admitted that Morrison had told him the District had the money to pay for defendants’ property. Richards also testified that he suggested the District not purchase the subject property and that at no time during the meeting did he suggest any other amount other than the original price demanded by defendants.

On April 17, 1989, Morrison wrote to defendants, stating that the “general consensus” at the April 14 meeting was that the District’s “offer of $900,000 was not acceptable to the owners” of the subject property, especially in light of the fact that defendants in their letter of November 23, 1988, “demanded the sum of $1,700,000 [sic] for the acquisition of the property.” Morrison concluded with the statement: “Under these circumstances, we were unable to agree as to a price to be paid for this property.” On April 20, 1989, Morrison sought the approval of the District’s land acquisition committee to condemn the subject property. The Committee granted Morrison the authority to file a condemnation suit, and on April 24, 1989, Morrison filed the District’s condemnation complaint.

It is defendants’ argument that the District’s $900,000 offer was, in effect, no offer at all because, as set forth in the District’s March 28, 1989, letter, the $900,000 was subject to approval by the District’s board of commissioners. As such, defendants claim, the District had not presented a true offer.

The District contends, however, that the Eminent Domain Act does not require an offer but only an attempt to agree (Ill. Rev. Stat. 1987, ch. 110, par. 7—102) and that the supreme court in County Board of School Trustees v. Boram (1962), 26 Ill. 2d 167, specifically disavowed that an offer was compulsory. Rather, “an offer is not necessary where *** it is clear from the acts of the parties that it would be futile.” (26 Ill. 2d at 170.) The District maintains that it was clear from defendants’ acts that an offer was futile. Such acts, the District asserts, included the wide disparity between values placed upon the subject property by the District and by the defendants as well as defendants’ unwillingness to negotiate.

The wide disparity in value placed on the subject property occurred because the parties used differing theories on how to value the property. Defendants valued the property using a “subdivision approach” which included loss of profits. Although defendants had purchased the property for $280,000 in March 1987, they were demanding $1,762,899 for the same property two years later. The District, however, utilized a “market value approach,” valuing the entire 19.66 acres as a single parcel worth $900,000. The $900,000 amount was offered pursuant to procedures set forth in section 12 of “An Act to provide for the creation and management of forest preserve districts in counties having a population of less than 3,000,000” (the Forest Preserve Act) (Ill. Rev. Stat. 1987, ch. 96½, par. 6322), which required the District’s board of commissioners (the Board) to approve all expenditures of money.

In Lake County the expenditures for land acquisitions by the District involve a two-step process. First, the District determines the necessity for acquiring a particular parcel. In the instant case, this was done by the formal adoption by the District of a resolution to acquire defendants’ land. Second, an appraisal is made of the property to be acquired. The appraisal is submitted to the land acquisition committee for its approval. Following its approval, the Committee authorizes its attorneys to make the owner of the property an offer by letter for his property. If the owner agrees with the amount offered, the attorneys bring that amount back before the Board for its approval. If the owner does not agree to the amount offered by the District, the letter of offer encourages the owner to contact the District to discuss the amount of compensation to be paid.

In the instant case, the District determined by resolution, dated October 21, 1988, that acquisition of the subject property was necessary for “forest preserve, flood control, and related purposes.” The resolution authorized the District’s attorneys to order an appraisal of the property. In the interim, the District informed defendants that the District had adopted a resolution to acquire defendants’ land and invited defendants to confer with the District regarding the purchase of the land. Defendants responded by letter with a demand of $1,762,899 for their property. Based on the appraisal the District received of defendants’ property, the District offered $900,000 for the property. Defendants informed the District that the offer was inadequate, and the parties then met on April 14, 1989, to discuss their purchase price.

At that meeting the District’s attorney, Morrison, explained the process the District must follow in acquiring defendants’ property and also assured defendants that the District had the funds to pay them the $900,000 the District had offered. During the meeting, defendants suggested that the District not purchase their property. Defendants did not suggest any amount other than that which they had originally demanded. Defendants maintain that they did not suggest any other sum because Morrison had no authority to bind the District to any amount agreed upon by the parties.

The resolution to acquire defendants’ property authorized Morrison to “attempt to agree” with defendants regarding the compensation to be paid for their property. Under both County Board of School Trustees v. Boram (1962), 26 Ill. 2d 167) and the Eminent Domain Act (Ill. Rev. Stat. 1987, ch. 110, par. 7—102), nothing more was required. Here, however, defendants made no attempt to agree. At the meeting designed to discuss the purchase of the property defendants proposed no new figure for their property. At the conclusion of the meeting the difference between the defendants’ demand and the District’s proposed purchase price was more than $800,000.

Following the meeting, Morrison wrote defendants stating that the general consensus of the meeting was that $900,000 was unacceptable to defendants for the acquisition of their property and that the parties were unable to agree on a price to be paid. Defendants did not respond to Morrison’s letter. He then recommended condemnation.

Under the circumstances presented here, we believe the District made a bona fide attempt to reach an agreement with the defendants and that the wide disparity in value placed upon the property by the parties and the failure of the defendants to negotiate any further on April 14 to reduce that disparity justified the District’s taking of defendants’ property.

Cases relied upon by the District illustrate that the disparity in the value placed upon the subject property by the parties made it evident after the April 14 meeting that no practical solution could be reached. In City of Oakbrook Terrace v. La Salle National Bank (1989), 186 Ill. App. 3d 343, the owner contacted the city, offering to sell his property for $382,500. The city had the property appraised and sent the owner an offer of $80,000, the appraised price, but the owner never responded. Based on the disparity between the offer and the demand, this court concluded that the city had made a sufficient effort to reach an agreement on compensation and that no further negotiations were necessary prior to filing its condemnation complaint.

In Waukegan Port District v. Booras (1977), 55 Ill. App. 3d 790, a series of correspondence transpired between defendants’ attorney and the Port District’s attorney concerning the Port District’s eventual acquisition of defendants’ property. Defendants demanded $225,000 but made no follow-up on this demand. When the Port District, in a contract to purchase, offered defendants $100,000 for their property, defendants made no reply to the Port District’s offer, and, therefore, the Port District filed a petition for condemnation. The court found that the Port District had made a bona fide attempt to agree and stated:

“[I]n light of the defendants’ earlier demand of $225,000 for their property and their contention that they ought to be compensated for the incomplete remodelling, it is clear that the defendants and the port district [sic] hhd differing theories on how to value the property, thereby leading to a wide disparity in the value they placed on the real estate. Under such circumstances it is clear that no practical solution could have been reached by further negotiations, and, therefore, none were needed.” 55 Ill. App. 3d at 793-94.

In the instant case, defendants made a demand for greater than the District’s offer and based it on proposed improvements to the property and loss of profits rather than on the fair market value of the property. Defendants also claimed damages to the remainder while the District denied there were any damages. As in Booras, the parties had differing theories on how to value the property, and these differences led to the wide disparity in value.

In Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, the gas corporation offered to purchase underground storage rights from defendants for $45 per acre, or $7,200 for 160 acres of defendants’ land. Defendants valued the underground storage easement at approximately $300,000. The supreme court pointed out that the disparity in value placed upon defendants’ property by defendants and by condemnor showed that no practical solution could have been reached through further negotiations.

In City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, defendant made a demand for $40,000. The condemnor counteroffered with a figure of $12,000, but defendant continued to demand $40,000. In finding that the city had proved its right to condemn defendant’s property, the supreme court pointed out the substantial difference between the parties’ valuation of the property in question and stressed that defendant’s continued demand of $40,000 strongly suggested that the parties were unable to agree.

The foregoing cases clearly support the District’s argument that the wide disparity in value placed upon the subject property and brought about by the parties’ differing theories on how to value the property made any further negotiations after April 14,1989, futile.

Defendants assert that the District’s offer could not be considered a bona fide one since the amount offered to defendants had to be submitted to the Board for final approval. Defendants maintain that an offer creates in the offeree “a power of acceptance permitting the offeree by accepting the offer to transform the offeror’s promise into a contractual obligation” (Black’s Law Dictionary 976 (5th ed. 1979)) and that, therefore, the District’s $900,000 offer was no offer at all. Had defendants accepted the $900,000, that acceptance, defendants assert, would not have transformed the offer into a contractual obligation since the $900,000 would then have to be approved by the Board.

It is defendants’ position that in order for the $900,000 to be considered an offer the Board should have first approved the $900,000 compensation and then offered it to defendants without the final approval condition. Such a procedure, however, would have had the effect of causing the Board to negotiate directly with the defendants. For example, if defendants rejected the $900,000 and demanded a larger amount, that amount would then have to be taken back to the Board for approval. Following the Board’s decision on defendants’ demand, the decision would have to be taken back to defendants, who could accept or reject the decision. Defendants’ acceptance or rejection would then be relayed to the Board for further action on its part. This procedure could go on indefinitely, becoming unduly burdensome as well as impractical and extremely time-consuming. The District’s procedure of first attempting to agree with an owner on the price to be paid for his land, as was the District’s purpose in meeting with the defendants on April 14, and then taking that agreed price to the Board for final approval is far more reasonable than the procedure suggested by defendants.

Furthermore, the procedure followed by the District in the instant case is required by law. The Forest Preserve Act requires that all proposals to expend money must be approved by the majority of the Board. (Ill. Rev. Stat. 1987, ch. 96½, par. 6322.) The District cannot circumvent that requirement by adopting a broad base appropriations ordinance and then spending money wherever it pleased. Rather, it was required to bring specific expenditures, e.g., the $900,000 for defendants’ property, back to the Board for approval.

When the District adopted the October 1988 resolution to acquire defendants’ property, no appraisal of that property had been done. The resolution directed the land acquisition committee and the attorneys for the District to obtain such an appraisal and subsequently to offer to purchase the property in question at the appraisal price subject to approval by the Board. Such a condition was required under the terms of the Forest Preserve Act regarding expenditures (Ill. Rev. Stat. 1987, ch. 96½, par. 6322) and the process utilized by the District for land acquisitions.

We have found no Illinois cases which address the specific issue of whether an offer made subject to approval by the condemning authority is, in fact, an offer. It is clear, however, that Illinois cases have never held that an offer must be a legally binding offer as in real estate cases. Rather, what is required in Illinois is a bona fide attempt to agree on the amount of compensation (see Boram, 26 Ill. 2d at 170), and that is exactly what the District attempted to accomplish when it met with defendants to discuss the wide disparity in value placed upon the subject property by the parties.

Finally, we address the District’s contention that the court’s finding that an appraisal was required to satisfy the good-faith attempt to agree requirement was contrary to law and against the manifest weight of the evidence. As defendants point out, however, the court made no such finding. Rather, the court found that the District’s failure to consider defendants’ entire 35 acres in making its appraisal gave rise to the implication that the District’s offer was not a bona fide one. The court found:

“Plaintiff’s offer of full appraised value when the appraisal itself fails to value the whole parcel owned (35-acres in this case) and specifically ignores damage to remainder when the same appraisal acknowledged that Defendant’s [sic] contiguous ownership is greater than the part taken and further acknowledges that the part taken is necessary to Defendant’s [sic] annexation of property to the Village of Lincolnshire deprives such offer of bonafides.”

In so stating, the court expressed its belief that the damages to the remainder should have been included in the District’s appraisal since the part taken was contiguous to and necessary for the annexation of the remainder to the Village. The court, however, was mistaken regarding the annexation of the remainder. Under section 7—1—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—1), the remainder could be annexed to the Village even if the District acquired the subject property. Section 7—1—1 provides in relevant part:

“Territory which is not contiguous to a municipality but is separated therefrom only by a forest preserve district may be annexed to the municipality pursuant to Sections 7 — 1—7 or 7— 1-8 ***.” Ill. Rev. Stat. 1987, ch. 24, par. 7-1-1.

It appears evident from the language of this provision that defendants’ plans for development of the remaining parcel as part of the Anvil Farms Subdivision could still be carried out regardless of whether the District acquired the subject properly. Any damages to the remainder would then appear to be limited to such factors as the costs attributable to the delay in completing development of the remainder, which the District’s condemnation had caused, and the increase in improvement costs which likely resulted from this delay. Nevertheless, if defendants believed that the remainder would be damaged in this manner or in some other way by the District’s acquisition of the subject property, then they should have filed a cross-petition. (Department of Public Works & Buildings v. Finks (1956), 10 Ill. 2d 20, 23.) Without a cross-petition, a court is powerless to proceed with the assessment of damages. (Central Illinois Public Service Co. v. Rider (1957), 12 Ill. 2d 326, 332.) Since defendants here did not file a cross-petition for damages, it was error for the trial court to find that the District’s failure to consider damages to the remainder demonstrated that the District’s attempt to agree on a purchase price was not made in good faith.

For all of the foregoing reasons, we conclude the District acted in good faith in acquiring defendants’ property by making a bona fide effort to agree with defendants as to the just compensation for their property prior to the filing of the District’s complaint for condemnation. Accordingly, we reverse the judgment of the circuit court of Lake County and remand the case for further proceedings.

Reversed and remanded.

REINHARD and WOODWARD, JJ., concur.


author: JUSTICE GEIGER

text:
      In re WILLIAM CLARKE (The People of the State of Illinois, Petitioner-Appellee, v. William Clarke, Respondent-Appellant).
    Second District
    No. 2—89—0664
    Opinion filed August 1, 1990.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The respondent, William Clarke, appeals from the trial court’s order continuing his hospitalization with the Department of Mental Health and Development Disabilities (the Department). The respondent argues that the trial court erred by denying his procedural rights under the Mental Health and Developmental Disabilities Code (Mental Health Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 100 et seq.) and that the State did not prove by clear and convincing evidence that he was reasonably expected to inflict serious physical harm on another or himself in the near future. We reverse and remand.

On May 30, 1989, a Lake County trial court found the respondent unfit to stand trial on criminal charges; it also found that he was not expected to become fit within one year. The trial court remanded the respondent to the Department for further proceedings pursuant to section 104 — 23(b)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3)). It further ordered that “an agent” of the Department interview the respondent and make fitness recommendations. Pursuant to the trial court’s order, Dr. Syed Anwar, a psychiatrist at the Elgin Mental Health Center (the Center), evaluated the respondent.

On June 14, 1989, the respondent’s social worker filed with the Kane County circuit clerk a petition for the respondent’s involuntary admission. On the same day, one of the Center’s employees filed a notice of a June 16, 1989, hearing on the petition, which later was continued to June 30. On June 30, 1989, the trial court appointed the Kane County public defender as the respondent’s counsel “nunc pro tunc to date of filing of petition.”

At trial, the respondent moved to dismiss the petition, arguing that it was untimely since he was remanded to the Center two weeks before the petition was filed, notwithstanding the requirement of section 3 — 607 of the Mental Health Code that the petition be filed within 24 hours of the admission (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 607). The trial court, in denying the motion, relied upon section 104 — 23(b)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3)) and found that the Lake County trial court retained jurisdiction over the matter until the parties complied with the May 30 order for Dr. Anwar to interview the respondent.

Following a bench trial, the trial court ordered that the respondent be involuntarily admitted to the Department. The respondent brought the instant appeal. Although he presents multiple arguments for reversal, we find dispositive his contention that counsel was not appointed for him until the day of the hearing, thus violating section 3 — 805 of the Mental Health Code. Ill. Rev. Stat. 1987, ch. 9IV2, par. 3-805.

Strict adherence to the procedural requirements of the Mental Health Code is necessary to protect the liberty interests of persons subjected to the involuntary admission process. (In re Splett (1990), 194 Ill. App. 3d 391, 393.) Section 3 — 805 of the Mental Health Code provides:

“Every respondent alleged to be subject to involuntary admission shall be represented by counsel. If the respondent is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint counsel for him. A hearing shall not proceed when a respondent is not represented by counsel ***. Counsel shall be allowed time for adequate preparation.” Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 805.

If an attorney is to be appointed, the trial court must make the appointment at the time the hearing is set, and not merely at the hearing itself. (In re Walters (1989), 183 Ill. App. 3d 452, 455.) The trial court erred in waiting to appoint counsel for respondent (see In re Johnson (1989), 191 Ill. App. 3d 93, 95), and labeling the order nunc pro tunc cannot remedy the error. See In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 915.

Although we reverse and remand on other grounds, because we anticipate that one issue raised will present a problem on remand, we address it. The respondent argues that the trial court erred in denying his motion to dismiss the petition since the petition and certificates were not executed within 24 hours of his admission to the Center and, thus, were in violation of section 3 — 607 of the Mental Health Code (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 607). The trial court found that the respondent was held pursuant to a court order stemming from the criminal charges in Lake County.

The State contends that the Code of Criminal Procedure, not the Mental Health Code, governs the proceedings before the hearing on the petition. We agree.

Section 104 — 23(b)(3) of the Code of Criminal Procedure of 1963 provides that if a trial court finds a criminal defendant unfit to stand trial, it shall remand the defendant to the Department’s custody and order a hearing to be conducted pursuant to the provisions of the Mental Health Code. The Code of Criminal Procedure expressly provides that “[i]f the defendant is committed *** pursuant to such hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the defendant, with the leave to reinstate.” Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3).

The fundamental objective in statutory construction is to ascertain the intention of the legislature and then to give effect to that intent. (People v. Rink (1983), 97 Ill. 2d 533, 539.) The intent of the legislature, as gleaned from the clear language of an Act, is the best source for determining legislative intent. See Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211-12.

After the trial court finds that a defendant is subject to involuntary admission, then the “former defendant so committed shall be treated in the same manner as any other civilly committed patient.” (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3).) It is clear from the language of section 104 — 23(b)(3) that the trial court retains jurisdiction until the defendant is found to be subject to involuntary admission. Moreover, section 104 — 29 of the Code of Criminal Procedure provides, “In the event of any conflict between this Article and the ‘Mental Health and Developmental Disabilities Code’, the provisions of this Article shall govern.” (Ill. Rev. Stat. 1987, ch. 38, par. 104— 29.) We find that the trial court did not err in denying the respondent’s motion to dismiss the petition.

The respondent argues that our finding would permit a trial court to detain a defendant indefinitely without ever initiating a commitment hearing if it found the defendant to be unfit to stand trial. He relP'’ on the case of Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845. However, in Jackson, the Court held that a State must either institute a civil commitment proceeding or release the defendant. 406 U.S. at 738, 32 L. Ed. 2d at 451, 92 S. Ct. at 1858.

The respondent’s argument is misplaced. Section 104 — 23(b)(3) requires that the trial court remand a defendant to the Department’s custody “and order a [commitment] hearing.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 23(b)(3).) Since section 104 — 23(b)(3) provides for a commitment hearing, it satisfies the Jackson requirements; the respondent could not be indefinitely held without initiating a commitment hearing.

Based on the foregoing, we reverse the judgment of the circuit court of Kane County and remand the cause for rehearing.

Reversed and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
    STAUNTON COMMUNITY UNIT SCHOOL DISTRICT NO. 6, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—89—0883
    Opinion filed August 2, 1990.

      Brian A. Braun, S. Jeff Funk, and Megan Paisley, all of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Melissa J. Auerbach, of Cornfield & Feldman, of Chicago, for respondent Staunton Education Association.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The Board of Education, Staunton Community Unit School District Number 6 (District), appeals from a decision of the Illinois Educational Labor Relations Board (Board) dismissing the unfair labor practice charge it filed against the Staunton Education Association (Association). (Staunton Community Unit School District No. 6 Board of Education, 5 Pub. Employee Rep. (Ill.) par. 1178, No. 89—CB—0005— S (Illinois Educational Labor Relations Board, Oct. 16, 1989) (hereinafter Staunton, 5 Pub. Employee Rep. (Ill.) par. 1178).) The District charged the Association attempted to arbitrate an inarbitrable matter when it submitted a grievance, from a part-time teacher seeking full-time teaching status, to the American Arbitration Association (AAA). We agree with the Board that the District’s unfair labor practice charge raised no issue of fact or law and affirm the Board’s decision.

The District and the Association were parties to a collective-bargaining agreement which contained a management-rights provision, which stated:

“ARTICLE V. AREAS FOR DISCUSSION AND AGREEMENT
Except as validly limited by express provisions of this agreement, the District reserves the right to unilaterally determine the standards of service to be offered by it; to set the standards of selection for employment; to direct and assign its employees and to regulate work schedules; to take disciplinary action; to relieve its employees from duty in accordance with the Illinois School Code; to maintain the efficiency of governmental operations; to determine the methods, means and personnel by which its operations are to be conducted; to determine the content of job classifications; to allocate positions according to Salary Schedule agreed to in this agreement; to exercise complete control and discretion over its organization and the facilities, methods means and technology of performing its work.”

The agreement defined a grievance as “a violation of the Agreement,” and provided a five-step grievance procedure. The fifth step in the procedure was final and binding arbitration. The agreement also contained a “zipper clause,” which stated:

“ARTICLE VIL DURATION OF THE AGREEMENT
This Agreement constitutes the full and complete agreement of the parties and may be altered, changed, added to, deleted from or modified only through the voluntary mutual consent of the parties in a written, signed amendment to this Agreement. The Association agrees that all negotiable items have been discussed during the negotiations leading to this Agreement, and agrees that negotiations will not have to be reopened on any item, whether contained in this Agreement or not, nor will negotiations be reopened on the impact of any permissible management action, during the life of this Agreement. The operating of schools and the direction of staff are vested exclusively in the School Board.”

In 1965, the District hired Marcia McGhee as a full-time employee to teach Spanish and French. After the 1976-77 school year, the District reduced foreign language offerings and its work force. McGhee became a part-time employee, teaching only Spanish. She filed a grievance with the District on September 8, 1988, seeking return to full-time status, alleging the District violated Appendix A of the collective-bargaining agreement, the District’s salary schedule. The initial grievance form alleged:

“I am teaching five periods of Spanish daily; a last period study hall is available. Five teaching periods and a study hall is a full schedule.”

The second grievance form stated:

“I am being held to part-time status through ‘gerrymandering’ of the schedule. There are 131 students enrolled in Spanish, placed in only 5 classes. I have no planning period. The two Spanish II classes have 28 and 29 students in each; this should have been made into three classes. There are also two study hall periods available with no assigned teacher. Those pupils are presently being sent to the library.”

The District processed McGhee’s grievance from September 8 until December 9, 1988, and at each stage denied the grievance because it alleged no violation of the collective-bargaining agreement, which is silent as to determinations of full- or part-time status. The District filed an unfair labor practice charge with the Board on November 30, 1988, in anticipation of the Association’s demand for arbitration. The District requested the AAA stay arbitration pending resolution of the case. On December 9, 1988, the Association submitted the grievance to the AAA for final and binding arbitration. The AAA agreed to stay arbitration.

The Board’s Executive Director issued a recommended decision and order, which dismissed the unfair labor practice charge filed by the District. (Staunton Community Unit School District No. 6, 5 Pub. Employee Rep. (Ill.) par. 1085, No. 89—CB—0005—S (Illinois Educational Labor Relations Board, Executive Director, April 20, 1989).) The District filed exceptions to his decision and the Board issued an opinion affirming the Executive Director’s decision to dismiss the unfair labor practice charge. Staunton, 5 Pub. Employee Rep. (Ill.) par. 1178.

The Board found the District raised no issue of fact or law. The Board found no issue of fact had been raised by the District’s charge because neither party presented any evidence other than the collective-bargaining agreement with respect to the arbitrability of the underlying dispute. “The agreement speaks for itself, and we will presume that the parties used words in their ordinary sense. Thus, a question of fact warranting a hearing does not exist.” Staunton, 5 Pub. Employee Rep. (Ill.) par. 1178, at IX-434.

The Board found the arbitration clause in the collective-bargaining agreement did not exclude the subject of the grievance from arbitration and, therefore, it was arbitrable. The Board rejected the District’s arguments that the agreement’s management-rights clause and zipper clause excluded the grievance from arbitration. The Board also rejected the District’s contention that arbitration would violate section 4 of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1704) because the subject matter of the grievance involved the nondelegable authority of the District.

The Board’s expertise in such matters must be given due consideration. “Any other holding on our part would, for practical purposes, make appellate review of bargaining issues trial de novo. Such a result would appear to substitute our general knowledge and study for the expertise required of Board members by section 5 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1705).” (Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 775, 536 N.E.2d 743, 746.) The function of the reviewing court is to determine whether the Board’s findings are against the manifest weight of the evidence. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507.) This court must accord deference to the Board’s interpretation of the Act, unless its interpretation is erroneous. (Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 173-74, 528 N.E.2d 737, 740.) Findings and conclusions of the Board as to factual questions are considered prima facie true and correct. Ill. Rev. Stat. 1987, ch. 110, par. 3—110.

We must first address which forum decides initial questions of arbitrability, the Board or the arbitrator. The District contends the Board properly resolves such questions, while the Association would have the arbitrator make such determinations.

The Illinois Supreme Court has not expressly ruled on whether the Board or the arbitrator should make initial arbitrability decisions, although the court has held the Act divests circuit courts of jurisdiction to make arbitrability decisions. Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 538 N.E.2d 524; Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149.

In Compton, the court stated, in dicta:

“[T]he private sector cases cited by the appellant (see, e.g., United Steelworkers v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347) all involve a question of ‘arbitrability’ which cannot by statute be presented under a public education collective-bargaining agreement in Illinois: whether the parties actually agreed to submit the particular dispute to arbitration. Since the Act specifically provides that all such collective agreements between educational employee unions and their employers must contain a clause which ‘provide[s] for binding arbitration of disputes concerning the administration [and] interpretation of the agreement’ (Ill. Rev. Stat. 1985, ch. 48, par. 1710(c)), no question of the parties’ intent to arbitrate can arise. Likewise, the question of whether a certain matter involves ‘inherent managerial policy,’ and is not, therefore, a mandatory subject of bargaining, is to be determined not by the parties but by the statute, as interpreted in the first instance by the Board.” (Compton, 123 Ill. 2d at 222-23, 526 N.E.2d at 152-53.)

The court made similar comments, also in dicta, in Warren Township-.

“Because of our conclusion that the Board, and not the circuit court, has exclusive jurisdiction to decide questions of arbitrability, we need not address whether the School District’s dismissal of Ms. Frank involved a nondelegable duty under the School Code[,] was a matter of inherent managerial control, or was for any other reason inarbitrable. (See Compton, 123 Ill. 2d at 226.) Under the statutory scheme established by the General Assembly, that question has been left for the Board to decide in the first instance, with review available in the appellate court.” Warren Township, 128 Ill. 2d at 166-67, 538 N.E.2d at 529.

The Association believes that because the District argues the management-rights and zipper clauses render the grievance inarbitrable, the issue is one of interpretation of the collective-bargaining agreement, a matter for the arbitrator rather than the Board. The Association cites Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439, as support for its position. In that case, decided under the Uniform Arbitration Act, the Illinois Supreme Court held:

“If it is obvious that there was an agreement to arbitrate the dispute in question, that is, if the dispute clearly falls within the scope of the arbitration agreement, the court should order arbitration. If it is clear that it does not, arbitration should be refused. [Citation.] The drafters of the uniform act intended, in unclear cases and in the face of an omnibus arbitration clause, that the court should initially defer the arbitrability question to the arbitrator ***.” Donaldson, Lufkin & Jenrette Futures, Inc., 124 Ill. 2d at 449-50, 530 N.E.2d 445.

We agree with the District that the initial question of arbitrability, when raised by the parties in proceedings under the Act, should be resolved by the Board. The Board accomplishes this task by looking at whether the grievance falls within the terms of the collective-bargaining agreement. If the Board makes an initial determination that the grievance is arbitrable, then it goes to the arbitrator, where the parties may again raise arbitrability as well as the merits of the grievance. Thus, in this case it was appropriate for the Board to make an initial determination that the grievance was arbitrable, in order to resolve the pending unfair labor practice charge.

The next question we must decide is whether the Board properly dismissed the District’s unfair labor practice charge, thus sending the dispute to arbitration. The District argues the parties agreed to exclude the subject of the underlying grievance from arbitration, as evidenced by the management-rights and zipper clauses. In the management-rights clause, quoted above, the District reserved the right to direct and assign its employees and to regulate work schedules. The District maintains it had discretionary authority, pursuant to this clause, to assign employees to full-time or part-time work. Because the subject of teacher “loads” or assignments was not specifically included in the collective-bargaining agreement, and in view of the language of the zipper clause, the District concludes there was no agreement to arbitrate the matter and the subject is not arbitrable.

The Board rejected these arguments, concluding the language of the collective-bargaining agreement did not clearly exclude McGhee’s grievance. On appeal, the Board indicates it viewed McGhee’s grievance as a salary dispute, presumably because the grievance alleged a violation of the salary schedule, rather than as a work-assignment dispute.

The Board concluded the District confused a general “reservation of rights clause with one which specifically excludes certain matters from arbitration.” (Staunton, 5 Pub. Employee Rep. (Ill.) par. 1178, at IX-434.) The Board ruled something more was needed to render the grievance inarbitrable. Because the District did not provide any external evidence to demonstrate the parties’ intent to exclude this dispute from arbitration, and because there was no specific language excluding such grievances, the Board dismissed the District’s charge.

On appeal, the District argues the Board’s reasoning was erroneous. First, given the District’s position that the management-rights clause excludes certain matters from the contract and therefore from arbitration, it interprets the Board’s decision as allowing employees to force arbitration of matters outside the contract. “Such a rule would allow arbitration of any conceivable question raised by the employee, including illegal issues or the existence of the Easter Bunny.” This, according to the District, would produce chaos at the bargaining table, increase litigation costs, and contravene the purpose of the Act.

Second, requiring the District to arbitrate a matter it did not agree to arbitrate would jeopardize the stability of the bargaining process because the parties could no longer rely exclusively on their agreement to govern their relations.

Finally, the District argues the Board ignored the plain meaning of the parties’ contract when it ruled that more explicit exclusionary language was necessary to render a matter inarbitrable. A requirement for more precise language would, according to the District, “unduly hamper agreement between the parties.”

The Association contends the District is confusing its defense of the merits of McGhee’s grievance with the question of whether the grievance is arbitrable.

“The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” United Steelworkers of America v. American Manufacturing Co. (1960), 363 U.S. 564, 567-68, 4 L. Ed. 2d 1403, 1407, 80 S. Ct. 1343, 1346.

The United States Supreme Court held, in United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 4 L. Ed. 2d 1409, 80 S. Ct. 1347: “In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail ***.” (Warrior & Gulf 363 U.S. at 584-85, 4 L. Ed. 2d at 1419, 80 S. Ct. at 1354.) In dicta, the Court stated: “Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement.” Warrior & Gulf, 363 U.S. at 581, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1352.

We agree with the Association and the Board that the case cited by the District, Moraine Valley Community College, 5 Pub. Employee Rep. (Ill.) par. 1102, No. 89—CB—0012—C (Illinois Educational Labor Relations Board, May 12, 1989), is distinguishable. The grievance there involved class assignments and changes, areas over which the college claimed to have sole and exclusive authority. The management-rights clause included a specific list of matters reserved to the college, “including but not limited to the responsibilities for the right: *** To determine class schedules, non-classroom assignments, the hours of instruction, and the duties, responsibilities and assignments of faculty members.” (Moraine Valley Community College, 5 Pub. Employee Rep. (Ill.) par. 1102, at IX-253.) The collective-bargaining agreement in this case contained a broad arbitration clause, requiring arbitration of any contract violation. Additionally, there was no contract language expressly excluding any subject from the arbitration requirement.

Any exclusion from arbitration must be expressly stated in the contract. The presence of the management-rights and zipper clauses in this contract did not render this dispute inarbitrable. Express language, excluding from arbitration the assignment of teachers to full-time or part-time employment, was necessary. The Board correctly concluded the parties did not exclude the subject of McGhee’s grievance from arbitration, and this conclusion was not against the manifest weight of the evidence.

The District and the Association briefed the following issue: Can the parties to a collective bargaining-agreement legally exclude a subject from arbitration? Because the issue is not properly before this court, we will not address it.

Likewise, we decline to address the District’s argument that arbitration of this grievance will violate section 10(b) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1710(b)). This statute precludes the parties from implementing a provision in a collective-bargaining agreement if it would be in violation of, or inconsistent or in conflict with other Illinois statutes. The District argues this statute is the successor to the nondelegability doctrine in use before passage of the Act.

Section 10 — 20.7 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 10 — 20.7) gives school boards authority to appoint all teachers and fix the amounts of their salaries. According to the District, this authority includes assigning teachers to full- or part-time work. Thus, even if the parties’ collective-bargaining agreement had addressed McGhee’s grievance, such a provision would have violated section 10(b) of the Act.

The Association contends the District is anticipating that if the Association wins on the merits of the grievance, any award by an arbitrator might conflict with the School Code and thus violate section 10(b) of the Act. The issue of remedy does not render a grievance inarbitrable and the District’s argument is thus premature, according to the Association.

The Board declined to decide whether arbitration would violate the School Code because the District raised this issue in its reply brief before the Board, rather than in its exceptions to the Executive Director’s decision. The issue was thus not raised in a timely fashion. We will not address this issue as it was not decided by the Board. Village of Cary v. Pollution Control Board (1980), 82 Ill. App. 3d 793, 796, 403 N.E.2d 83, 86.

Finally, the District argues section 4 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1704) precludes arbitration of McGhee’s grievance, in that it states, in part:

“Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.”

The District maintains that the assignment of employees to full- or part-time work is much more closely aligned to “inherent managerial policy,” than to the “wages, hours and terms and conditions of employment” required to be bargained by section 10(b).

Section 4 does not apply to this case. The statute addresses bargaining, not arbitration. “[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (Warrior & Gulf, 363 U.S. at 582, 4 L. Ed. 2d at 1417, 80 S. Ct. at 1353.) Section 4 of the Act does not preclude arbitration of McGhee’s grievance.

In summary, the Board rather than the arbitrator makes the initial decision as to whether a grievance is arbitrable, at least when arbitrability is contested in proceedings before the Board. The Board in this case correctly decided McGhee’s grievance is arbitrable and dismissed the unfair labor practice charge filed by the District. The Board’s decision is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.