author: JUSTICE SCARIANO

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1982 AND PRIOR YEARS (National Indemnity Corporation, Petitioner-Appellee, v. Eleanor Otsus, by her Guardian, Patrick T. Murphy, Public Guardian of Cook County, Respondent-Appellant).
    First District (2nd Division)
    No. 1 — 88—0929
    Opinion filed August 29, 1989.
    Rehearing denied November 1, 1989.

      Patrick T. Murphy, Public Guardian, of Chicago (Thomas L. Cowlin, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Joan S. Cherry, Mark R. Davis, and Karen J. Dimond, Assistant State’s Attorneys, of counsel), for appellee Edward J. Rosewell.
    Byron L. Landau and Richard J. Briski, both of Landau, Omahana & i Kopka, of Chicago, for appellee National Indemnity Corporation.
   JUSTICE SCARIANO

delivered the opinion of the court:

Patrick Murphy, the Cook County Public Guardian (hereinafter the Guardian), appeals from the denial of his motion for declaratory judgment, filed on behalf of Eleanor Otsus in response to National Indemnity Corporation’s petition for an order directing the county clerk to issue a tax deed conveying Otsus’ property, arguing that the notice provisions of the Illinois Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 482 et seq.) are unconstitutional and violate due I process.

Mrs. Otsus failed to pay real estate taxes on the property she owned at 2938 W. 102nd Place in Evergreen Park, Illinois, for the year 1982 and prior years. Since her husband’s death in 1970, Mrs. Otsus has lived in reclusion, and has become increasingly mentally imbalanced and deranged. She is now 87 years old.

On October 3, 1984, National Indemnity Corporation (National) purchased Mrs. Otsus’ property at a tax sale for approximately $8,600, the amount of the real estate taxes owed on the property for the years in question. Pursuant to the notice provisions of the Illinois Revenue Act (Ill. Rev. Stat. 1987, ch. 120, pars. 722a, 744, 747), National served Mrs. Otsus personally with notice on March 16, 1987, as well as by publication. The return of service indicates that the sheriff believed Mrs. Otsus did not speak English, when in fact she does. National also provided notice of the proceedings to the Village of Evergreen Park and the PLOWS Council on Aging. (PLOWS is not further identified in the record.) Mrs. Otsus' right to redeem the property expired on July 6, 1987, and she did not redeem before that date. She became a ward of the Cook County Public Guardian on July 21, 1987. The guardian claims that the property alone, without the house, which was in a deteriorated condition, was worth at least $100,000.

On October 29, 1987, the Guardian filed a motion for declaratory judgment, in which he quoted from a report by the PLOWS Council on Aging, prepared in July 1987. (A copy of this report is not included in the record.) According to the report, as quoted in the Guardian’s motion, PLOWS has known Mrs. Otsus since August 1983, “when she was referred by a concerned neighbor. She was living without heat, electricity, water or phone service, and according to neighbors had been deteriorating for some period of time.” Mrs. Otsus would not open her door to speak with people from PLOWS, and the outside of her home was in “total disrepair.” PLOWS reported that “Mrs. Otsus was paranoid, uncooperative and refused offers of help.” The agency attempted to assist Mrs. Otsus, but, because of her diminished capacity and lack of cooperation, her utility bills continued to go unpaid and, in January 1986, she almost froze to death. A neighbor and local church group gained- access to Mrs. Otsus’ home and found it “a disaster.” Her mail was either unopened or burned in her fireplace. According to the report, “It is clear that Mrs. Otsus has had severely impaired mental functioning for a considerable period of time — perhaps ten years or longer. She is not able to understand the consequences of her actions and even in a life threatening situation was unable to make a decision in her own best interest. Mrs. Otsus has a total inability to understand any correspondence that may have been sent to her regarding the tax delinquency and in fact, left unopened all mail except her Social Security check.”

In denying the Guardian’s motion for declaratory judgment, in which he argued that the notice provisions of the Revenue Act are unconstitutional, the trial judge stated:

“My ruling is based on my perception of the Revenue Act, the purpose I believe it is designed to achieve, that is providing funds for the operation of government. What we are doing in this legislation, I mean the General Assembly has sought to balance the rights of people as a whole organized as a society to provide revenue for the functions of government that they have constituted as against the rights of certain individuals. *** [T]he courts of Illinois, including our supreme court, have considered the Revenue Act, and its sometimes harsh provisions with regard to the consequences of failure to pay real estate taxes, but the General Assembly has seen fit to delegate the responsibility for processing the obtaining of the delinquent revenues to private parties, in this case National Indemnity. They have not assumed it as a governmental obligation, but rather have seen fit to delegate the responsibility for seeing that the proper notices and other procedural work requirements are met by private parties, but let’s assume the General Assembly had a purpose in mind when it chose that formula. *** [T]he General Assembly may have determined that this formula or method is the most efficient that it can devise for the generation of the needed revenue to fund government.
* * *
Mr. Murphy has called into question the effectiveness of [the notice provisions], and I can understand his argument, to reject it is not to argue that it may not have some merit, but to reject it here in this form is to suggest that the proper avenue is to seek relief from the General Assembly. I cannot find that the remedy provided by the General Assembly in this circumstance has reached *** unconstitutional dimensions.”

The notice provisions of the Revenue Act require that within five months of the tax sale, the purchaser deliver to the county clerk a notice that the property has been purchased and the date of expiration of the period of redemption, which notice is to be sent, either by registered or certified mail, to the party in whose name the taxes are last assessed. (Ill. Rev. Stat. 1987, ch. 120, par. 722a.) No less than three months nor more than five months prior to the expiration of the period of redemption, the purchaser must give notice of the sale and date of expiration of the period of redemption, “to the owners, occupants and parties interested in the premises,” personally serving these individuals, as well as publishing a notice in “some newspaper [published] in the county,” and mailing a copy of the notice by certified mail. (Ill. Rev. Stat. 1987, ch. 120, par. 744.) Notice of filing a petition for deed must also be served personally as well as published in a newspaper and mailed not less than three months prior to the date fixed for making application that a deed issue. (Ill. Rev. Stat. 1987, ch. 120, par. 747.)

“If the time of redemption expires and the real estate has not been redeemed from the sale and all taxes and special assessments which became due and payable subsequent to the sale have been paid and all forfeitures and sales which occur subsequent to the sale have been redeemed and the notices required by law have been given and the petitioner has complied with all the provisions of law entitling him to a deed, the court shall so find and shall enter an order directing the county clerk on the production of the certificate of purchase and a certified copy of the order, to issue to the purchaser or his assignee a tax deed.” Ill. Rev. Stat. 1987, ch. 120, par. 747.

The Guardian argues that the provisions for notice in the Revenue Act are constitutionally insufficient, because the Act “fails to take into account that persons living in a unique situation of disability cannot tell the difference between a piece of paper claiming to serve legal notice for the loss of property and a pizza advertisement.” He asserts that Mrs. Otsus was incapable of understanding and acting upon the notices given her, and he cites a number of cases in support of his argument that whether notice is adequate must be determined by the circumstances of each case.

In Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652, the Supreme Court held that notice by publication was inadequate to inform known beneficiaries of a common trust fund of the proposed judicial settlement of certain accounts by the trustee stating:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information ***. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the Constitutional requirements are satisfied. *** [Citations.]
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the [person] might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected [citations] or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” (339 U.S. at 314-15, 94 L. Ed. at 873-74, 70 S. Ct. at 657-58.)

The Guardian asserts that, under the circumstances of this case, due process requires “much more than mailing a notice to an incompetent, publishing notice to an incompetent in the Law Bulletin and having an untrained sheriff stick a piece of paper into the face of an incompetent woman.”

The Court considered the sufficiency of notice to an incompetent in Covey v. Town of Somers (1956), 351 U.S. 141, 100 L. Ed. 1021, 76 S. Ct. 724, which involved a proceeding by the town to foreclose a tax lien against a parcel of real estate owned by the incompetent. Notice was given to the incompetent taxpayer by mail, by posting a notice at the post office, and by publication in two local newspapers, as required by statute. No answer was filed and a default judgment was entered and a deed delivered to the town. By statute, the deed was presumptive evidence of the regularity of the proceedings. Five days later the taxpayer was “certified *** as a person of unsound mind,” and one week later she was committed to a hospital for the insane. (351 U.S. at 144, 100 L. Ed. at 1025, 76 S. Ct. at 726.) Covey was then appointed as “[e]ommittee of the person and property of the incompetent,” and shortly thereafter his offer to repay the town the amount of taxes due on the property, in consideration of its return to the incompetent’s estate, was refused. Covey then sought to vacate the default judgment, arguing that the notice given was inadequate “in the case of a known incompetent.” (351 U.S. at 145, 100 L. Ed. at 1025, 76 S. Ct. at 726.) The Supreme Court held that compliance with the statutory notice provisions did not afford notice to the incompetent and that the taking of her property under such circumstances was a violation of due process. Of importance in the Court’s decision was the fact that the incompetent was known by officials and citizens of the town “to be a person without mental capacity to handle her affairs or to understand the meaning of any notice served upon her,” yet no attempt was made to have a committee appointed for her person or property until after entry of the judgment of foreclosure. (351 U.S. at 146, 100 L. Ed. at 1026, 76 S. Ct. at 727.) The Court stated: “Notice to a person known to be an incompetent who is without the protection of a guardian does not measure up to [the constitutional requirements as set forth in Mullane].” 351 U.S. at 146, 100 L. Ed. at 1026, 76 S. Ct. at 727.

The Guardian also relies on Dale v. Hahn (2d Cir. 1973), 486 F.2d 76, cert. denied (1974), 419 U.S. 826, 42 L. Ed. 2d 50, 95 S. Ct. 44, where the issue was whether adequate notice had been given of the appointment of a committee to manage the affairs of an incompetent who was, at the time, committed to a State mental hospital. In its findings of fact, the trial court noted that the testimony “indicated either that appellee had not been served with notice of the proceeding at all, or that ‘it was handed to her in circumstances where its meaning did not get through to her.’ ” (486 F.2d at 78.) The appellate court held that the trial judge’s finding that “the notice given was not reasonably calculated under the circumstances to apprise appellee of the fact that a substantial interest was involved” was not clearly erroneous (486 F.2d at 79), stating

“The premise underlying that finding is that there may be situations in which physical service of process will not constitute adequate notice. We are satisfied that such a premise is supported by the cases.” 486 F.2d at 78.

The Guardian contends that there was clear evidence that Mrs. Otsus was disabled (e.g., the state of her home), and that by serving PLOWS, National demonstrated an awareness of her condition. The Guardian asserts that the statutory provision for serving “interested parties” does not save the statute, because “ ‘interested parties’ may not have any legal interest or authority to represent the property owner.” He further claims that the indemnity fund, provided for in section 247a of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 728a), is of no help to Mrs. Otsus, because she will be homeless and dependent upon public aid while the issue of whether she is entitled to indemnity is litigated and until such payment is made. Additionally, even if Mrs. Otsus receives payment from the indemnity fund, she will have to relocate, leaving the home she has known for years.

Both National and the State (hereinafter appellees) respond that the Illinois Supreme Court resolved the issue of the constitutionality of the Revenue Act notice provisions in Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 459 N.E.2d 966. In that case, the question before the court was “whether due process requires the county collector to give personal notice of an impending tax sale to all parties with an interest in the real estate.” (99 Ill. 2d at 410.) In holding that the notice provisions of the Revenue Act are consistent with due process protection afforded by the United States and lilinois Constitutions, the court stated:

“The most important criterion in the area of procedural due process is ‘reasonableness.’ The State must act reasonably before depriving a person of a property interest, but burdensome or elaborate efforts to notify interested parties are not constitutionally required. ***
The basic contention projected in this appeal is that mortgagees and other interested parties should be given the same notice as assessees before a tax sale takes place. The current Illinois statute provides for notice by mail to the assessee before the tax sale. We find this statutory provision entirely consistent with the due process standards in Mullane and its progeny.” (99 Ill. 2d at 412.)

The court noted that the tax buyer must comply with “stringent statutory notice requirements before the end of the redemption period,” as well as that the names and addresses of mortgagees are not “readily at hand.” (99 Ill. 2d at 413.) The court continued:

“Although we can detect no due process infirmities with the Illinois statute, we are also mindful of the enormous public policy considerations underpinning the tax sale procedure. Tax revenues are literally the lifeblood of government. At no time since the great depression have the fiscal necessities of government at all levels and the need for dependable tax collections been greater than at present.” 99 Ill. 2d at 416.

The notice provisions were also upheld in Catoor v. Blair (N.D. Ill. 1973), 358 F. Supp. 815, aff’d (1973), 414 U.S. 990, 38 L. Ed. 2d 231, 94 S. Ct. 345. In that case, plaintiffs, representing the class of all persons against whom a tax deed had been issued or against whom was pending a petition for issuance of a tax deed in an Illinois court, challenged the constitutionality of the Illinois tax deed statute (Ill. Rev. Stat. 1973, ch. 120, pars. 697 through 756), arguing that they received inadequate notice and lack of opportunity for a judicial hearing on tax sales and redemption rights, in violation of their fourteenth amendment rights to due process and equal protection. The court reviewed the notice provisions of the statute and stated:

“The aforementioned notices and opportunities for a landowner to either pay or object to his real estate taxes must be deemed constitutionally adequate when weighed against the legitimate interest of the state in collecting its taxes.
* * *
Although the Court notes that there is still considerable room for improvement in the challenged statute, we are not convinced that the statute is unconstitutional. As the Supreme Court recently observed,
‘[njo scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.’ ” Catoor v. Blair, 358 E Supp. at 817, quoting San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278.

Appellees distinguish the cases relied upon by the Guardian, claiming that “in Dale, there was a presumption of incompetence for the reason that the proceeding itself was a hearing to appoint a committee to manage the affairs of an incompetent.” They maintain that Covey is “inapposite,” because in that case the authorities knew the taxpayer to be incompetent, and no notices were served on other individuals who might have helped her. They also contend that the law presumes that property owners are sane and competent, and that incompetency cannot be inferred from old age, infirmity or a defective memory. (Esliek v. Montgomery (1972), 3 Ill. App. 3d 447, 278 N.E.2d 412.) Here, counsel for National testified that he believed Mrs. Otsus was eccentric but not necessarily mentally ill.

Neither Rosewell nor Catoor addresses the issue raised in the case at bar: whether compliance with the statutory notice requirements is sufficient when dealing with an incompetent property owner. We find that Covey controls our decision in the instant case. • As in that case, Mrs. Otsus was known in her community as one lacking in competency, yet neither the authorities nor National made an attempt to have a guardian appointed to look after her interests. The record indicates that National became aware of PLOWS’ involvement with Mrs. Otsus as a result of its, National’s, conversations with the Village of Evergreen Park; therefore, we can reasonably conclude that both National and the village knew of Mrs. Otsus’ diminished capacity. Moreover, the village was aware that Mrs. Otsus was not paying her taxes, as it held liens against her property. National points out that it served PLOWS with notice and argues that by doing so, it did all it could to give notice to Mrs. Otsus. We do not know what, if anything, PLOWS did after receiving this notice, but that is not important. By providing for notice to “parties interested in the premises” (Ill. Rev. Stat. 1987, ch. 120, par. 744), the statute does not allow National to avoid its responsibility to give “notice reasonably calculated, under all the circumstances, to apprise [Otsus] of the pendency of the action.” (Mullane, 339 U.S. at 314, 94 L. Ed. 2d at 873, 70 S. Ct. at 657.) Moreover, National cites no authority to support its contention that PLOWS is a party “interested in the premises” as that phrase is used in the Revenue Act.

By serving PLOWS, National demonstrated that it was aware that Mrs. Otsus was in need of assistance and that its purchase of her property was neither routine nor of the ordinary sort. It now argues that technical compliance with the statutory notice requirements was sufficient to give her notice that her property had been sold; however, National knew or should have known that such notice was inadequate to inform Mrs. Otsus that her interest in her property was at risk. The notice provisions of the Revenue Act are not reasonably calculated to apprise an incompetent of the information they are designed to convey, which is that the property has been sold and that there is a statutory period provided for redemption; thus, they are not consistent with the due process standards in Mullane. Requiring a tax purchaser to employ means “such as one desirous of actually informing the [incompetent] might reasonably adopt to accomplish it” (Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657) is neither burdensome nor does it demand “elaborate efforts” (Rosewell, 99 Ill. 2d at 412). Accordingly, we find that the sale of Mrs. Otsus’ property without effective notice to her was a violation of due process.

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

Reversed.

BILANDIC, P.J., and DiVITO, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    LAUREL LOUGHNANE, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—1628
    Opinion filed August 30, 1989.
    Rehearing denied October 27, 1989.

      Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch, Jeffrey P. Smith, and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellant.
    Fishman, Fishman & Saltzberg and William J. Harte, Ltd., both of Chicago (William J. Harte, Stephen L. Garcia, and Michael F. Maloney, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Laurel Loughnane, sued defendant, the City of Chicago, for a broken ankle sustained when she fell on a sidewalk at 610 South Michigan Avenue. At the close of plaintiff’s case in chief, the trial court directed a verdict against defendant on the issue of liability. After trial, a jury returned a verdict for plaintiff in the amount of $158,996, which it reduced to $135,146.60 after finding plaintiff 15% negligent. Defendant appeals the judgment entered on the verdict and the denial of its post-trial motion.

Prior to trial, the trial court granted plaintiff’s motion in limine to prohibit defendant from presenting any evidence, including a Chicago police hospitalization case report, that plaintiff’s fall was caused by ice on the sidewalk in front of 610 South Michigan.

The hospitalization case report stated that “[i]n summary, victim slipped on the icy pavement in front of 624 [sic] South Michigan.” The trial court disagreed with defendant that the report was admissible as the reporting police officers’ past recollection recorded.

The order also barred defendant from introducing a climatological report for the month of January 1982 showing that the Fahrenheit temperature ranged from 13 degrees below zero to 13 degrees above zero and that five inches of snow fell at O’Hare Airport (O’Hare) on January 26. The report, an official publication of the National Oceanic and Atmospheric Administration, was a monthly summary of local climatological data compiled and certified by the National Climactic Center in North Carolina. In ruling that the summary was irrelevant to any issue in the case, the trial court stated that it would allow it only if the accident had occurred in the middle of a corn field or rural area near O’Hare. The trial court also noted that defendant had not availed itself of an opportunity to obtain more relevant, direct evidence by deposing three eyewitnesses and asking whether there was any ice or snow at the scene of plaintiff’s fall.

At trial, plaintiff testified that she left her office at 624 South Michigan Avenue on January 26, 1982, to buy a newspaper at the Americana Congress Hotel. Plaintiff walked north on the Michigan Avenue sidewalk, which she knew to be broken in several places. As she did so, plaintiff was looking straight ahead. In the course of her walk, plaintiff stepped into a hole, twisting her left foot. She then stumbled and fell, landing on her seat. After being helped to her feet by passersby, plaintiff discovered that she could not put any weight on her left foot. The pavement where plaintiff fell was dry. After being helped to her office, plaintiff went to the Northwestern Memorial Hospital emergency room. On cross-examination, plaintiff described the hole into which she fell as an inch or two deep.

At the close of plaintiff’s testimony, defendant moved to bar introduction at trial of the evidence deposition of Dr. Lee Tisa, who first treated plaintiff in March 1985, on the ground that plaintiff did not disclose Dr. Tisa’s identity at the time of her discovery deposition in July 1985. Defendant informed the trial court that it had not learned of Dr. Tisa’s identity until receipt, a week before trial, of a notice from plaintiff’s counsel of the taking of Dr. Tisa’s evidence deposition. The trial court denied the motion on the grounds that defendant should have submitted supplemental interrogatories to plaintiff.

Opinion

On appeal, defendant first contends the trial court erred in barring the climatological summary showing the weather conditions at ¡ O’Hare on January 26,1982.

Weather reports, such as the climatological summary, are generally held admissible by the majority of jurisdictions. (See generally Annot., 57 A.L.R.3d 713, §3 (1974).) This rule is followed in Illinois. (See Chicago & Eastern Illinois R.R. Co. v. Zapp (1903), 110 Ill. App. 553, 556, aff’d (1904), 209 Ill. 339, 70 N.E. 623; Battershell v. Bowman Dairy Co. (1961), 37 Ill. App. 2d 193, 203, 185 N.E.2d 340.) Specifically, weather reports have been admitted in Illinois where they had a tendency to refute testimony of the character of weather conditions on a particular date, although no readings or observations were made at the precise moment of an accident. (Chicago & Northwestern Ry. Co. v. Trayes (1885), 17 Ill. App. 136, 140.) Moreover, the distance of the recording station from the scene of an accident affects only the weight, not the admissibility, of the report. See Celaneses Corp. v. Vandalia Warehouse Corp. (7th Cir. 1970), 424 F.2d 1176; Annot., 57 A.L.R.3d 713 §§4(a), 6 (1974).

Notwithstanding the foregoing rules, we do not believe the trial court erred in barring admission of the climatological summary. Plaintiff admitted that the weather on January 26, 1982, was below freezing. Therefore, the weather conditions on that day were not in dispute. As there was no dispute that the weather was such as to create the possibility that ice could form in the general area of plaintiff’s accident on January 26, 1982, the weather at O’Hare on that date was irrelevant. The climatological summary, as evidence of that weather, could not have proved any more than plaintiff did by her own testimony and, in fact, proved less.

While the climatological summary concerned the weather at O’Hare, plaintiff’s testimony necessarily related to the weather in downtown Chicago. Ordinarily, the distance of the reporting station from the scene involved affects only the weight to be given a weather report, not its admissibility. However, such a report, like any piece of evidence, must be relevant, in the first instance, to be admissible. “Relevancy is established where a fact offered tends to prove a matter in controversy.” (Emphasis added.) (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228.) That is not the case here with regard to the general weather conditions in the Chicagoland area on January 26, 1982. A different case would be presented had plaintiff testified that the weather on January 26 was above freezing. Defendant would have been entitled to refute such testimony. (Chicago & Northwestern Ry. Co. v. Trayes (1885), 17 Ill. App. 136, 140.) However, as plaintiff admitted that it was below freezing, there was no matter in controversy which the report tended to prove. Thus, although the trial court’s rationale was mistaken, we must sustain its order barring the climatological summary as there is a proper basis appearing in the record to do so. Cuellar v. Hout (1988), 168 Ill. App. 3d 416, 522 N.E.2d 322.

The police hospitalization case report, to the extent that it tended to prove the existence of ice at the scene of plaintiff’s fall, is a different matter, however.

Defendant contends that the police report stating that plaintiff slipped on icy pavement was admissible as past recollection recorded or as evidence impeaching plaintiff’s testimony regarding the cause of the accident.

The prerequisites to the admission of a police report as past recollection recorded in Illinois are: (1) the witness must have no independent recollection of the occurrence or event recorded; (2) the report must fail to refresh the witness’ recollection; (3) the facts in the report must have been recorded at the time of the occurrence or soon thereafter; and (4) the truth and accuracy of the report when made must be established. Taylor v. City of Chicago (1983), 114 Ill. App. 3d 715, 449 N.E.2d 272.

Plaintiff contends the police report was inadmissible as past recollection recorded. She asserts, inter alia, that the report does not contain either personal observations or statements of fact based upon appearances observed and recorded at the time, but rather conclusions based upon assumptions and speculation. (Taylor, 114 Ill. App. 3d at 719.) Specifically, plaintiff asserts that, because neither police officer who signed the report was present when she fell, the statement relating to the cause of her fall was not the product of personal observation. Moreover, she argues, the report does not indicate whether the statement as to the cause of her fall was made by plaintiff, one of the officers or hospital personnel. She also notes the inaccuracies the trial court found in the report, to wit, that plaintiff had a “swollen,” not broken, ankle, that she slipped in front of “624,” not 610 South Michigan, and that she slipped on “icy pavement,” not ice.

Taylor does not support the exclusion of the police report in this case. The police report at issue in Taylor stated that the cause of the plaintiff’s injury was “[djrinking and fell,” that the reason for the accident was “[t]oo much to drink,” and, finally, that the “[vjictim consumed a large amount of wine.” (Taylor, 114 Ill. App. 3d at 719.) In Taylor, however, there was no indication that the report contained the plaintiff’s statements or his responses to the investigating officer’s inquiries, rather than the statements of the officer himself. Here, in contrast, defendant made an offer of proof that one of the investigating officers would testify that any statements taken at an emergency room are those of the victim unless noted otherwise on the report. Admittedly, the Taylor, court’s emphasis on personal observations and appearances observed and recorded at the same time creates the impression that not even statements of a victim recorded in a police report would be admissible as past recollection recorded. However, that is not the law.

Past recollection recorded may be employed in connection with double-level hearsay. (E. Cleary & M. Graham, Handbook of Illinois Evidence §803.9, at 565 (4th ed. 1984), citing Minor v. City of Chicago (1981), 101 Ill. App. 3d 823, 428 N.E.2d 1090.) Where that is the case, both levels of hearsay must be exceptions to the hearsay rule. E. Cleary & M. Graham, Handbook of Illinois Evidence §805, at 610-11 (4th ed. 1984).

In Minor, the plaintiff alleged that he tripped over an uneven sidewalk and fell. The trial court prohibited defendant from introducing, as past recollection recorded, a hospital record containing a statement that the plaintiff stepped from a curb and fell. In voir dire examination, the physician who wrote the statement while taking the plaintiff’s medical history testified, inter alia, that the information written down would be related to him by the patient and that, if it came from a different source, he would make a notation to that effect. In reversing, the appellate court stated that the physician’s inability to swear to the truth of the plaintiff’s statement regarding the location of his fall went only to the statement’s credibility, not its admissibility. Minor is squarely on point and dispositive of defendant’s right to have introduced the police report as past recollection recorded. See also Johnson v. City of Chicago (1981), 103 Ill. App. 3d 646, 431 N.E.2d 1105; Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 248 N.E.2d 679; Wolfe v. City of Chicago (1966), 78 Ill. App. 2d 337, 223 N.E.2d 231.

Plaintiff asserts that, in contrast to this case, the police report admitted into evidence in Wolfe stated that the information it contained was given by the plaintiff. (See also Umberger v. Hospital Service Corp. (1972), 4 Ill. App. 3d 123, 280 N.E.2d 264.) She asserts that, where that is not the case and the police officer who made out the report testifies or would testify that the plaintiff made the statement, the rules of present recollection refreshed, under which the document used to refresh recollection is inadmissible, rather than past recollection recorded, apply. Wolfe, 78 Ill. App. 2d at 342.

As plaintiff notes, Wolfe held a police report inadmissible, as past recollection recorded, because the reporting officer testified to his recollection of other matters relating to the accident but not contained in the report. However, plaintiff ignores that Wolfe also held admissible, as past recollection recorded, a hospital report made by a nurse and containing a statement that the plaintiff fell on ice. She also ignores that Wolfe does not conclusively reveal that the hospital report positively and affirmatively stated, as she contends a report must, that the plaintiff stated what happened to her.

The Wolfe court said, “The witness read from the report and testified that plaintiff stated she fell on the ice ***.” The court then noted the nurse’s testimony that a patient’s history was sometimes taken from someone other than the patient, that that practice was not uncommon but that she had no recollection of taking the report from the plaintiff’s husband. (Wolfe, 78 Ill. App. 2d at 341.) Plaintiff contends that, to be admissible as past recollection recorded, a police report must unambiguously reflect that a party stated what happened to her, and that the maker of the report cannot testify to that fact of his or her own recollection. If plaintiff is correct, we see no reason for the court to have noted the nurse’s testimony in Wolfe that she had no recollection of taking the report from the plaintiff’s husband. However, because the Wolfe court did consider the independent recollection of the maker of the report regarding the circumstances of its making, just as the Minor court did, we must reject plaintiff’s assertion. The fact that a report states that a plaintiff fell rather than that a plaintiff stated she fell is immaterial to its admissibility as past recollection recorded.

Moreover, it cannot be denied that the statement that plaintiff slipped on icy pavement was, like the police report itself, admissible in evidence. An out-of-court statement by a party that an accident occurred one way constitutes an admission when she alleges and testifies at trial that the accident occurred another way. Admissions are exceptions to the hearsay rule. (E. Cleary & M. Graham, Handbook of Illinois Evidence §802.1, at 525 (4th ed. 1984).) Moreover, admissions may be used as substantive evidence.

Finally, contrary to the trial court’s reliance thereon, the alleged inaccuracies in the report did not render it inadmissible. Rather, we believe they merely affected the weight to be given the report by the jury. In this regard, we disagree with the trial court that the statement in the report that plaintiff slipped on “icy pavement,” rather than “ice” constitutes an inaccuracy. Any difference between that statement and defendant’s attempted theory at trial that plaintiff fell or slipped on “ice” is so minor as to be immaterial.

The error in excluding the police report, which was relevant to the issue of the existence of ice on the sidewalk where plaintiff fell, prejudiced defendant’s right to present its defense. We cannot say that it did not materially affect the trial result. As such, defendant is entitled to a new trial. (See Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 523 N.E.2d 621; Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.) If, upon retrial, defendant establishes an adequate foundation therefor, the police report should be allowed into evidence as past recollection recorded.

Defendant next contends the trial court erred in allowing the introduction of Dr. Tisa’s evidence deposition despite plaintiff’s failure to reveal his identity until one week before trial. In view of our conclusion that the exclusion of the police report entitles defendant to a new trial, we need not address this issue. Moreover, Dr. Tisa’s identity is now known to defendant. It can thus take whatever measures it deems appropriate to prepare for his testimony at a retrial.

For the reasons stated herein, the judgment of the circuit court entered upon the jury verdict for plaintiff is reversed and the matter is remanded for a new trial.

Reversed and remanded.

RIZZI and CERDA, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JIMMIE FELLS, Petitioner-Appellant.
    First District (5th Division)
    No. 1 — 87—0328
    Opinion filed June 30, 1989.
    Rehearing denied August 2, 1989.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Brian T. Sexton, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Petitioner Jimmie Fells appeals from dismissal of his post-conviction petition without an evidentiary hearing. In 1981, petitioner was indicted on two counts of deviate sexual assault. Represented by the public defender’s office at his jury trial, petitioner was found guilty of one count of deviate sexual assault and was sentenced to 30 years’ imprisonment. Petitioner appealed, alleging that the trial court erred in allowing three police officers to testify in rebuttal concerning prior occasions on which he had received Miranda warnings. The public defender’s office was appointed to represent petitioner on direct appeal. In 1983, petitioner’s conviction and sentence were affirmed by the appellate court in an unpublished Rule 23 order. People v. Fells (1983), 118 Ill. App. 3d 1156.

In September 1986, petitioner, represented by private counsel, filed a petition for post-conviction relief. In his petition, he alleged that his trial counsel was ineffective for not calling a psychiatrist, Dr. Albert Stipes, as a witness at a pretrial hearing on petitioner’s motion to suppress his confession and statements because he had not intelligently and knowingly waived his Miranda warnings. A psychologist, Dr. Edward Blumstein, had testified on petitioner’s behalf at the suppression hearing. The petition also claimed that appellate counsel was ineffective for failing to raise on direct appeal the ineffectiveness of trial counsel. In January 1987, a hearing was held on the State’s motion to dismiss petitioner’s post-conviction petition. The hearing on the motion was held before the same judge who had presided at petitioner’s trial. Following arguments, the court granted the motion to dismiss without an evidentiary hearing.

Petitioner, now represented by the State Appellate Defender’s office, appeals that dismissal order and alleges that his post-conviction petition asserted factually specific claims which, taken as true, established constitutional violations that required an evidentiary hearing. The State contends that petitioner has waived the issue of ineffective counsel by not raising it on direct appeal and, if not waived, his petition should have been dismissed because it contained insufficient facts to support a valid constitutional claim.

We affirm the trial court for the following reasons.

The post-conviction procedure (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) was adopted to give persons convicted of offenses an additional remedy to test claims that their State and Federal constitutional rights were violated in the proceedings that resulted in their convictions. (People v. Johnson (1978), 63 Ill. App. 3d 745.) As a general rule, issues which could have been raised on an initial appeal are deemed waived for purposes of post-conviction proceedings. (People v. Murphy (1979), 78 Ill. App. 3d 132.) However, it is appropriate to raise the issue of trial counsel’s competency in a post-conviction proceeding and consideration of alleged trial errors as they relate to this issue is not barred by an alleged waiver arising from incompetency of appointed counsel on appeal. (People v. Frank (1971), 48 Ill. 2d 500.) Since petitioner is alleging incompetence of counsel on both trial and appellate levels, we must examine that issue as it pertains to his post-conviction petition.

The sole issue in this appeal is whether the trial court properly dismissed petitioner’s post-conviction petition without an evidentiary hearing. It is clear that a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. James (1986), 111 Ill. 2d 283.) Ordinarily, a claim of ineffective counsel requires an evidentiary hearing. However, in the present case, the same judge that presided at petitioner’s trial and heard the motion to suppress had before him all the information necessary to evaluate petitioner’s claims in the post-conviction proceedings. (See People v. Morris (1969), 43 Ill. 2d 124.) An evidentiary hearing would have added no significant information. The proper focus at a hearing upon the State’s motion to dismiss a post-conviction petition is whether the petition’s allegations are supported by the record or accompanying affidavits (the only affidavit filed in this case consisted of petitioner’s assertion that the petition was truthful) so as to establish a substantial violation of constitutional rights. (People v. Silagy (1987), 116 Ill. 2d 357.) No such showing was made by the petition; thus, no evidentiary hearing was required.

We first note that the post-conviction petition, for the most part, is a repetition of the same facts and arguments considered by this court on direct appeal. In affirming petitioner’s conviction, the court was concerned with whether the trial court properly allowed three police officers to testify in rebuttal regarding petitioner’s familiarity with the Miranda warnings. This court, in finding no error, discussed in detail Dr. Blumstein’s testimony at the suppression hearing and also Dr. Stipes’ trial testimony. Both men were defense witnesses who had examined petitioner. At the suppression hearing, Dr. Blumstein first stated that petitioner was in the borderline range of intelligence with a third-grade level of comprehension and that he would probably not understand the meaning of the warnings. On cross-examination, however, the psychiatrist opined that petitioner very likely understood the warnings because he was very streetwise and had been given the warnings many times prior to this arrest. In effect, Dr. Blumstein admitted that petitioner understood the Miranda warnings at a sufficient level.

At the jury trial, Dr. Stipes also initially said that petitioner could not understand the warnings but later, on cross-examination, stated that his opinion would be different if the warnings had been explained to petitioner in the past. After this testimony, the State presented three police officers who stated that they had given petitioner the warnings, which he had claimed to understand, on at least three prior occasions. After the guilty verdict on only one count, petitioner directly appealed to this court on the issue of the officers’ rebuttal testimony.

Petitioner’s assertions that trial counsel was ineffective for not calling Dr. Stipes to testify at the suppression hearing are non-meritorious. The general standard for determining whether a defendant has received effective assistance of trial counsel is whether counsel’s performance was so defective that prejudice resulted which denied defendant a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, “ ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. ’ ” People v. Jimerson (1989), 127 Ill. 2d 12, 33, quoting Strickland, 466 U.S. at 690-91, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

The decision to call one of two examining experts to testify at a suppression hearing and, after that testimony does not meet defense expectations, to then have the second expert testify at trial is certainly a strategic choice. Furthermore, as the trial court noted at the hearing on the State’s motion to dismiss, Dr. Blumstein’s and Dr. Stipes’ testimony did not differ much as to petitioner’s ability to understand the Miranda warnings if he had become familiar with them in the past. Moreover, the court stated that it would have moved sua sponte to suppress petitioner’s statements if Dr. Stipes’ trial testimony would have made a difference as to the court’s determination at the suppression hearing.

We agree with the trial court that the record does not indicate that there was any type of incompetence of counsel on either the trial or appellate level. To the contrary, we find after reviewing the record that petitioner was provided very good representation at trial and on appeal. Since petitioner has failed to indicate any facts that would arguably support his incompetency of counsel allegation or, for that matter, any resultant prejudice so that the trial’s outcome would probably have been different, no evidentiary hearing was necessary. Accordingly, the trial court order is affirmed.

Affirmed.

PINCHAM and LORENZ, JJ., concur.


author: JUSTICE LORENZ

text:
    J. ECK & SON, INC., Plaintiff-Appellant, v. THE REUBEN H. DONNELLEY CORPORATION, Defendant-Appellee.
    First District (5th Division)
    No. 1 — 87—0759
    Opinion filed September 15, 1989.

      Robert Orman, of Chicago, for appellant.
    Byron L. Gregory, Steven H. Hoeft, and Susan E. Cox, all of McDermott, Will & Emery, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from the dismissal of count II of its amended complaint for failure to state a cause of action. We address the issue of whether plaintiff has appealed from a final order and dismiss the appeal for lack of jurisdiction.

Count II of plaintiff’s amended complaint attempted to state a cause of action against defendant for intentional interference with prospective economic advantage. Defendant moved to dismiss count II of plaintiff’s amended complaint for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615).

On November 5, 1984, the trial court entered an order striking count II of the amended complaint and granting plaintiff leave to amend. Plaintiff did not amend count II of its complaint.

Subsequently, on February 6, 1987, the trial court entered an agreed order stating the following:

“IT IS HEREBY ORDERED THAT:
1. Count I of the plaintiff’s Amended Complaint is dismissed, without prejudice, each party to pay its respective costs and fees; and
2. The counterplaintiff’s counterclaim is dismissed, without prejudice, each party to pay its respective costs and fees.
3. If a notice of appeal is filed by the plaintiff within thirty (30) days of the entry of this order, then the time which elapses between the date of the filing of the original complaint and the final disposition of the appeal may not be used by the defendant in the event that any of the claims asserted in Count I of the Amended Complaint are re-filed by the plaintiff. If the claim asserted in Count I of the Amended Complaint is not refiled by the plaintiff within thirty (30) days after the return of the mandate by the Appellate Court to this court, then Count I will be dismissed with prejudice and cannot be re-filed.
4. If a notice of appeal is not filed by plaintiff within thirty (30) days after the entry of this order, then each count of the Amended Complaint shall be deemed dismissed with prejudice and the defendant may thereafter re-file its counterclaim at any time within one (1) year after the entry of this order. In that event, plaintiff may neither assert any of the matters set forth in any of Counts I through IV of the Amended Complaint as either a defense, set-off, recoupment or counterclaim to such claim, nor use as a basis for defense the time elapsed between the original filing of the counterclaim and the re-filing of the counterclaim. If a notice of appeal is timely filed by the plaintiff, then, upon final disposition of that appeal, defendant may re-file its counterclaim within one (1) year after the return of the mandate from the Appellate Court to this court and the plaintiff may not use as a basis for defense the time elapsed between the original filing of the counterclaim and the re-filing of the counterclaim.” (Emphasis added.)

The order states it was entered pursuant to an “agreed motion of the parties” but the motion is not apparent in the record. A transcript of proceedings for this day was not included in the record on appeal.

Plaintiff filed a notice of appeal and stated that it appealed from orders entered February 6, 1987, November 5, 1984, and June 13, 1983. The record does not contain an order entered June 13, 1983.

Opinion

The appellate court must determine whether it has jurisdiction to consider an appeal even though the parties did not raise the issue. (Ben Kozloff, Ine. v. Leahy (1986), 149 Ill. App. 3d 504, 501 N.E.2d 238.) This court has jurisdiction over final judgments under Supreme Court Rule 301 (107 Ill. 2d R. 301). A final judgment is “a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480, 482.) Where an order leaves the cause still pending and undecided, it is not a final order. O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 484 N.E.2d 834.

In the present case, plaintiff seeks review of the November 5, 1984, order striking count II of its complaint and granting leave to amend. Rather than amend, plaintiff elected to stand on count II. This order was not final and not subject to review until a subsequent final order was entered. (See Ben Kozloff, 149 Ill. App. 3d 504, 501 N.E.2d 238.) Plaintiff appealed from the agreed order entered February 3, 1987, dismissing without prejudice count I of the complaint, which was the only remaining count.

Generally, an order dismissing a complaint is not final and appealable unless it states that the dismissal is with prejudice. (O’Hara, 137 Ill. App. 3d 131, 484 N.E.2d 834; Martin v. Marks (1980), 80 Ill. App. 3d 915, 400 N.E.2d 711.) “With prejudice” language is not essential to render an order final and appealable; however, the language indicates that plaintiff will not be allowed to amend and the litigation is terminated. (O’Hara, 137 Ill. App. 3d 131, 484 N.E.2d 834.) On the other hand “without prejudice” language in a dismissal order “clearly manifests the intent of the court that the order not be considered final and appealable.” Flores, 91 Ill. 2d at 114, 435 N.E.2d at 483.

In the present case, the February 3, 1987, order was not final because it dismissed count I of plaintiff’s complaint without prejudice. As a result, plaintiff did not appeal from a final order and this appeal must be dismissed.

We note that the order, as drafted, was confusing and it made several references to whether plaintiff would file a notice of appeal from the order. These references indicate that the trial court believed it was entering a final order; however, the language indicating that a notice of appeal may be filed cannot render a nonfinal order final. (See O’Hara, 137 Ill. App. 3d 131, 484 N.E.2d 834.) To hold otherwise would erode the jurisdictional requirements of this court.

Additionally, if a final and appealable order is entered in the trial court and either party appeals, the parties may move this court to consider the appeal on the existing briefs and record as supplemented. See First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552.

Appeal dismissed.

MURRAY, P.J., and COCCIA, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN MALONE, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 87—2347
    Opinion filed September 15, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Edwin A. Burnette, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Judy L. DeAngelis, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was found guilty of possession of a stolen motor vehicle (Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(a)(1)), sentenced to four years’ probation and ordered to pay $250 as restitution to the victim. In this appeal from that judgment defendant challenges the constitutionality of the statute under which he was convicted.

The evidence adduced by the State at trial showed that defendant was arrested by Chicago police who saw him inside a stolen vehicle working under the dashboard with a screwdriver and pliers. The officers made this observation in a desolate area of the city about V-k hours after the car was reported stolen, and the damaged condition of the car clearly showed that it was being “stripped.”

Defendant denied any involvement with the car and presented an alibi witness to corroborate his testimony that he was at a party when the alleged theft and arrest occurred. The trial court was not convinced, however, and found that the State had proved defendant guilty of the offense of possession of a stolen motor vehicle beyond a reasonable doubt.

In this appeal defendant contends that the statute under which he was convicted is unconstitutional. In support of that contention defendant specifically asserts (1) that the offense created by the statute does not bear a reasonable relation to a legitimate State purpose or use a reasonable method to further or protect the State’s interest for which it was enacted; (2) that in setting a greater penalty for the crime of possession than for the included offense of theft, the statute violates the due process and proportionate penalty clauses of the Illinois Constitution; and (3) that the statute further violates due process guarantees because it embodies contradictory mental states which deny citizens fair notice of what conduct is prohibited by the statute.

In People v. Bryant (1989), 128 Ill. 2d 448, 439 N.E.2d 1221, the supreme court upheld a constitutional challenge to section 4 — 103(b) of the statute which was based on arguments virtually identical to those raised by defendant in points (1) and (2) above. Since we find no appreciable differences in these arguments, we necessarily find Bryant dispositive and no further comment warranted on those issues.

Defendant also contends, however, that section 4 — 103(a) of the Illinois Vehicle Code, which is the definitional portion of the statute, is unconstitutional. His argument is based on the assertion that the statute embodies contradictory mental states which thereby violates due process because citizens were denied fair notice of what conduct is prohibited. Section 4 — 103(a) provides in pertinent part:

“(a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted-, additionally, the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices, and bills of sale. It may be inferred, therefore, that a person exercising exclusive unexplained possession over a stolen or converted vehicle or an essential part of a stolen or converted vehicle has knowledge that such vehicle or essential part is stolen or converted, regardless of whether the date on which such vehicle or essential part was stolen is recent or remote[.]” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 95½, par. 4 — 103(a)(1).

Defendant maintains that the constructive-knowledge provision which is set forth in the last sentence of the above-quoted statute conflicts with the scienter requirement embodied in the phrase “knowing it to have been stolen or converted.” Because of this he asserts that the conduct prohibited by the statute is so ill-defined that a reasonable person has no guidance as to what is necessary to conform to the requirements of the law and, accordingly, that the statute is unconstitutional.

In support of his position defendant analogizes this situation to the disparity contained in the drug paraphernalia statute which was found unconstitutionally vague by the supreme court in People v. Monroe (1987), 118 Ill. 2d 298, 515 N.E.2d 42. There, the section of the statute which defined “drug paraphernalia” included a scienter requirement, while the penalty section of the same statute permitted a conviction based on constructive knowledge. In ruling on this dilemma, the Monroe court commented, “Due process of law requires that a person of ordinary intelligence be given a reasonable opportunity to know what conduct is prohibited” and further, that “Due process is offended where statutes ‘are so incomplete, vague, indefinite and uncertain that men of ordinary intelligence must necessarily guess at their meaning and differ as to their application.’ ” (118 Ill. 2d at 305, quoting People ex rel. Duffy v. Hurley (1949), 402 Ill. 562, 567; see also People v. Jihan (1989), 127 Ill. 2d 379, 537 N.E.2d 751 (construing a statute which outlawed the practice of midwifery without a license).) The Monroe court then concluded that since the definitional section of the statute required that a seller market items for use with drugs, which items must be peculiar to drug usage in order for liability to attach (scienter), while the penalty section of the statute permitted a violation based upon the constructive knowledge of the seller, that the statute was unconstitutionally vague because the conflicting mental states denied citizens fair notice of what conduct was prohibited.

In the case at bar, we find no such conflict for the possession statute at issue merely provides that the requisite knowledge of the stolen nature of the vehicle may be inferred from a person’s exclusive and unexplained possession of it, and thus avoids the inherent illogic contained in the drug paraphernalia statute which was construed in Monroe. (Monroe, 118 Ill. 2d at 304; see also People v. Santana (1987), 161 Ill. App. 3d 833, 515 N.E.2d 715.) Consequently, we find that the language of this statutory provision provides persons of ordinary intelligence with a reasonable opportunity to know what conduct is prohibited, and thereby comports with due process requirements. (Accord People v. Hall (1989), 187 Ill. App. 3d 1084.) As specifically applied to the facts of this case, we find it obvious, even from the brief synopsis of the facts set forth above, that the statute apprised defendant that his conduct in this case was prohibited under its terms. See People v. Jihan (1989), 127 Ill. 2d 379, 537 N.E.2d 751; People v. Davenport (1988), 176 Ill. App. 3d 142, 530 N.E.2d 1118.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE COCCIA

text:
    JESSIE BUTLER, Plaintiff-Appellee, v. THE STATE BOARD OF ELECTIONS, Defendant-Appellant (Cook County Clerk, Defendant).
    First District (5th Division)
    No. 1 — 88—0670
    Opinion filed September 15, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellant.

      No brief filed for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Defendant, the Illinois State Board of Elections (Board), appeals from an order entered by the circuit court, directing the Board to certify the plaintiff, Jessie Butler, as a Democratic candidate for the State senate in the March 15, 1988, primary election. We have concluded that the case is moot; accordingly, we dismiss this appeal.

On February 1, 1988, Butler filed his complaint for writ of mandamus, declaratory judgment, and injunctive relief. Butler alleged therein that he filed nominating petitions with the Board to run in the Democratic primary for two offices: State senator and State representative. On December 21, 1987, he withdrew his petitions for State representative. The Board notified him, on December 28, 1987, that his name would not be printed on the primary ballot for either office, as he failed to withdraw from one of the two incompatible offices within five days following the last day for petition filing, contrary to the Election Code. (See Ill. Rev. Stat. 1985, ch. 46, par. 8 — 9(3).) The Board’s offices were open on Saturday, December 19, 1987, five days after the last day for petition filing. The Board consequently held that Butler’s withdrawal was untimely, since he did not withdraw until December 21. Butler alleged that he had no knowledge that the Board’s offices were open on the Saturday in question, so his withdrawal was not untimely. Accordingly, he requested that the circuit court order the Board to certify him as a candidate for the State senate.

On February 2, 1988, the relief Butler sought was denied by the circuit court. He appealed and we took the case on an expedited basis. Our opinion, in which we remanded the cause to the circuit court for the taking of additional evidence, was issued on February 26, 1988. (Butler v. State Board of Elections (1988), 167 Ill. App. 3d 35, 520 N.E.2d 1051.) That same day, Butler requested, and the circuit court held, an emergency hearing. At the hearing, the Board objected on the grounds that the circuit court had no jurisdiction, as our mandate had yet to issue. Indeed, the mandate did not issue until March 14, 1988. Nevertheless, the circuit court ruled in Butler’s favor, ordering the Board to certify him as a candidate for the State senate. From this ruling, the Board appeals.

On appeal, the Board argues that the circuit court’s actions upon remand were void because it ruled before our mandate issued; thus, the Board concludes, the circuit court lacked jurisdiction. The Board concedes, however, that this case is technically moot, since the election has been held and since Butler lost that election. Nonetheless, the Board contends that the case falls within the public interest exception to the mootness doctrine. Consequently, the Board asks that we rule upon the merits of several issues: first, whether Butler’s lawsuit was barred by sovereign immunity; second, whether the circuit court erred in ruling that the Board lacked jurisdiction to determine that Butler’s withdrawal from an incompatible office was untimely; and, finally, whether the Board properly calculated the deadline for Butler’s withdrawal from one of two incompatible office primaries.

I

The Board is correct in arguing that the circuit court’s order of February 26, 1988, is void. In general, the circuit court loses jurisdiction when the notice of appeal is filed. (See Bank of Viola v. Nestrick (1981), 94 Ill. App. 3d 511, 514, 418 N.E.2d 515, 518.) The mandate of a reviewing court is the transmittal of its judgment to the circuit court, which revests the latter with jurisdiction. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304-05, 427 N.E.2d 563, 569.) Supreme Court Rule 368(a) provides that the reviewing court’s mandate shall be transmitted to the circuit court no earlier than 21 days after the entry of judgment, unless the reviewing court orders otherwise. (107 Ill. 2d R. 368(a).) Prior to the mandate’s transmittal, the circuit court has no jurisdiction. (See Nestrick, 94 Ill. App. 3d at 514, 418 N.E.2d at 518.) If the circuit court attempts to act after the notice of appeal is filed, but before the reviewing court’s mandate is returned, such actions are void. In re Gonder (1986), 149 Ill. App. 3d 627, 628, 500 N.E.2d 1004, 1005.

As noted above, our opinion was filed on February 26, 1988, but the mandate was not returned until March 14, 1988. Therefore, the circuit court’s order of February 26, 1988, is void, for it was entered before that court regained jurisdiction.

II

While we accept the Board’s argument regarding the validity of the order appealed from, it has not persuaded us that we should reach the merits of a technically moot appeal from a void order.

The leading Illinois case on the public interest exception to the mootness doctrine is People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769. In Labrenz, Justice Schaefer identified three criteria which justify the retention, rather than the dismissal, of an otherwise moot case: first, the question presented is public in nature, rather than private; second, an authoritative determination for the future guidance of public officers is desirable; and third, the question will likely recur in the future. (See Labrenz, 411 Ill. at 622, 104 N.E.2d at 772.) Later cases have applied the exception narrowly. (See, e.g., City of Chicago v. Leviton (1985), 137 Ill. App. 3d 126, 129, 484 N.E.2d 438, 440.) If all three factors are not present, the appeal should be dismissed. (In re Johnson (1977), 53 Ill. App. 3d 921, 925, 369 N.E.2d 70, 73.) Moreover, the fact that one party may be a public entity is not sufficient, in and of itself, to justify a reviewing court’s retention of an otherwise moot appeal. Johnson v. Board of Education (1967), 79 Ill. App. 2d 22, 25, 223 N.E.2d 434, 436.

In our case, the third factor identified by Justice Schaefer is not present. That is, the questions presented are not likely to recur. In order for their recurrence to be likely, we would be required to assume that a future candidate shall seek nomination for two incompatible offices, that he file supporting petitions for both offices, that he attempt to withdraw one set of petitions on the last day permitted by law, that the last day be a Saturday, that the Board be open for business on that day, that the Board construe the attempted withdrawal as invalid, that he challenge the Board’s decision, that the election be held before the issues are litigated, and that the candidate lose the election. While the confluence of these circumstances is not impossible, we think them unlikely to occur again.

The Board apparently attempts to invoke a similar exception to the mootness doctrine, that fashioned for issues which are capable of repetition, yet which evade review. (See In re A Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292.) This exception is limited to situations where, first, the challenged action is in its duration too short to be fully litigated prior to its cessation and, second, where there is a reasonable expectation that the same complaining party would be subject to the same action again. (People v. Bailey (1983), 116 Ill. App. 3d 259, 261-62, 452 N.E.2d 28, 30-31.) For the reasons given in our discussion of the public interest exception, we find it unreasonable to expect that similar circumstances will recur.

It is not merely the absence of the relevant criteria that leads us to refuse to apply the aforementioned exceptions to the mootness doctrine. In addition, ruling on the merits of a void order could create a dangerous procedural precedent. More importantly, we are faced with a case in which the appellee has not appeared, filed a brief, or argued. Like circumstances were present in People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 449 N.E.2d 856, and our supreme court dismissed that case on the grounds of mootness.

It must be remembered that the mootness doctrine exists to prevent the reviewing courts of this State from issuing advisory opinions. (See George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76, 491 N.E.2d 1160, 1162.) Advisory opinions fly in the face of our tradition of adversary litigation. (In re Estates of Rice (1979), 77 Ill. App. 3d 641, 656-57, 396 N.E.2d 298, 310.) An early explication of the reasons which underlie the rule prohibiting advisory opinions can be found in volume 243 of the Illinois Reports, from the year 1909. At page nine, and following, a letter from Governor Deneen to Chief Justice Farmer is printed. The Governor requested the supreme court’s assistance in drafting a primary election law that would not be unconstitutional. The chief justice’s response is printed at page 14, and following. The court declined to render what would have been, in effect, an advisory opinion. The chief justice quoted Judge Story’s remarks, at the Massachusetts constitutional convention of 1820, regarding the unwisdom of advisory opinions:

“However great the talents of the judges, however extensive their learning, they are never safe in deciding without argument. *** The right of being heard and the practice of arguing all questions has more than anything else preserved the uniformity of the common law.” 243 Ill. at 20-21.

In light of these sentiments, we decline to reach the merits of a technically moot appeal from a void order, without the benefit of argument from both parties. The Board stands to gain nothing from our review of the merits of the circuit court’s order but precedent for future cases. In Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309, 1311, the supreme court stated that when it becomes apparent that an opinion cannot affect the result as to the parties before it, a court should not resolve questions merely for the sake of setting a precedent to govern future actions. These considerations outweigh whatever public interest may be present in the issues raised by the Board. See People ex rel. Hartigan v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 376, 380, 475 N.E.2d 635, 639.

For the reasons stated, this appeal is dismissed. Because we have not reached the merits of the questions presented, we do not pass upon the correctness of the judgment rendered by the circuit court. Thus, we vacate the circuit court’s judgment without comment on the merits. See George W. Kennedy Construction Co., 112 Ill. 2d at 78, 491 N.E.2d at 1163; see also Dukes, 96 Ill. 2d at 278, 449 N.E.2d at 858.

Judgment vacated; case dismissed.

MURRAY, P.J., and LORENZ, J., concur.


text:
    LOUISE THOMAS, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1367
    Opinion filed September 15, 1989.
    Jeff A. Saltzman, of Chicago, for appellant.

      Mark B. Ruda and Vincent R Cook, both of Condon, Cook & Roche, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Louise Thomas appeals from an order entered by the circuit court, dismissing her breach of contract claim against defendant Allstate Insurance Company. For the following reasons, we affirm.

Thomas’ one-count complaint was filed on December 31, 1987. She alleged therein that her rental property was insured by Allstate. Thomas asserted that on November 13, 1985, while the policy was in effect, certain personal property belonging to her, in the amount of $11,093.90, was stolen. Although she filed a proof of loss, as the policy required, Thomas averred that Allstate committed breach of contract by refusing to reimburse her for the stolen property.

On January 27, 1988, Allstate moved to dismiss Thomas’ complaint, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). Allstate argued that her lawsuit was barred by a limitations clause contained in the rental insurance policy. The policy, a copy of which was attached to Allstate’s motion, provided:

“No suit or action may be brought against us unless there has been full compliance with all the terms of this policy. Any suit or action must be brought within one year after the denial of a claim in whole or in part.”

According to Allstate, it declined to pay Thomas’ claim in a letter dated December 16, 1986. Since her suit was commenced more than one year after declination, Allstate concluded, it was untimely.

An affidavit executed by counsel for Allstate was attached to the motion to dismiss. Counsel alleged that Thomas was examined under oath at his firm after her proof of loss was submitted. Subsequently, Allstate instructed him to prepare a declination letter. This letter, likewise attached to Allstate’s motion, stated in part:

“We herewith reject and return to you an instrument purporting to be a Sworn Statement in Proof of Loss rendered by you to the undersigned insurance company in connection with an alleged loss by theft or burglary which is alleged to have been sustained by you on or about November 13,1985.
Please be advised that said insurance company denies any and all liability to you in the amount of eleven thousand ninety-three and 90/ioo Dollars ($11,093.90) claimed in said instrument purporting to be a Sworn Statement in Proof of Loss or, in any other amount whatsoever. This denial of liability is predicated on, among other reasons fraud and false swearing in submission of the Sworn Statement in Proof of Loss and at the examination under oath and in particular with respect to the quantity, identity and value of items allegedly taken.
The rejection of the instrument referred to and the denial of liability are not to be construed by you as a waiver of any of the rights of said insurance company under its respective policy of insurance ***.”

The letter referred to Thomas by name three times, her policy number two times, the date of loss two times, Allstate two times, and the claim number and file number once. The letter was written on the letterhead of counsel’s firm, but it was signed “Very truly yours, Allstate Insurance Company” by counsel as “One of its attorneys.” In his affidavit, counsel affirmed that the letter was sent via certified mail.

In response to Allstate’s motion, Thomas argued that the declination letter was not valid notice, sufficient to begin the running of the limitations clause, because it was sent by Allstate’s counsel, rather than by Allstate itself. Thomas did not submit an affidavit to rebut the statements included in that submitted by Allstate’s counsel.

In reply to Thomas’ response, Allstate pointed out that she had acted through counsel, which was the very conduct she complained of on Allstate’s part. By letter dated November 6, 1987, a copy of which was attached to Allstate’s reply, counsel for Thomas wrote counsel for Allstate — not Allstate itself — asking for an explanation as to why his client’s claim had been denied. In his letter, Thomas’ counsel did not object to the form of notice or suggest that it was improper.

The hearing on Allstate’s motion to dismiss was held on April 14, 1988. The circuit court granted the motion, agreeing with Allstate that the declination letter was proper notice. Thus, the circuit court concluded, Thomas’ action was barred because it was filed outside the one-year limitations period. The circuit court appears to have based this conclusion, at least in part, upon Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 498 N.E.2d 246.

On appeal, Thomas does not argue that her complaint was filed within a year of the date she received the decimation letter. Nor does she contend that the limitations clause is invalid. Finally, she does not assert that the December 16, 1986, letter was not, in substance, a denial of her claim. Instead, Thomas argues, as she did below, that the declination letter was insufficient notice. Consequently, the limitations period never started running.

Thomas invokes Applemans’ insurance law treatise to support her position. It states that contractual limitations periods do not begin to run until the insurance company notifies the insured of the claim’s denial; the statement of a subordinate officer or agent of the company is not sufficient. See 20A J.A. Appleman & J. Appleman, Insurance Law & Practice §11612 (1980).

The sole case relied upon by Thomas on this point, which the treatise cited in support of the foregoing proposition, is Rexroad v. Grand Lodge Brotherhood of Railroad Trainmen (1924), 245 Ill. App. 221. Plaintiff in Rexroad sued a benefit society when it refused to pay a claim she submitted after her husband’s death. The society’s constitution provided that all actions against it had to be commenced within six months of final claim rejection by its general officers. A local officer wrote plaintiff, informing her that the claim was rejected. Plaintiff subsequently received claim rejection notice from the society’s general officers. She received this notice by letter dated November 18, 1920, less than six months before she commenced her action. Since the notice from the local officer failed to meet the requirements of the society’s constitution, and since plaintiff’s action was commenced within six months of notice from the general officers as the constitution required, the appellate court held that plaintiff’s claim was not barred for failure to bring suit within the specified time. See Rexroad, 245 Ill. App. at 225-26.

The facts of our case are not analogous to the facts of Rexroad. In this case Thomas, unlike plaintiff in Rexroad, filed her action outside the applicable limitations period. Thomas has pointed to no language in Allstate’s policy that, in contrast to the benefit society’s constitution at issue in Rexroad, expressly or impliedly prohibited Allstate from denying her claim as it did. She relies upon a definitional clause in the policy to support her argument that notice by Allstate’s counsel was invalid:

“ ‘Allstate’, ‘we’, ‘us’, or ‘our’ — means the company named on the declarations page.”

Even when read in conjunction with the limitations clause quoted above, the latter clause does not prohibit Allstate from denying Thomas’ claim through its attorneys. Therefore, we reject the notion that an insurer cannot provide notice of claim denial through counsel, when the insurance policy does not rule out such action, and when the declination letter to the insured clearly states that counsel is acting on behalf of the insurer.

In the alternative, Thomas contends that should we determine that the limitations clause is ambiguous, it must be construed in her favor. She cites Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, to support this argument. In Menke, however, the supreme court also stated that if a clause is unambiguous, construction is unnecessary and the clause may be applied as written. (See Menke, 78 Ill. 2d at 423-24, 401 N.E.2d at 541.) We are of the opinion that the limitations clause is unambiguous. Thus, because Thomas’ action was commenced after the limitations period expired, it was untimely.

We note in closing that the Davis case, which the circuit court partly based its ruling upon, does not support the dismissal of Thomas’ complaint. The court in that case was presented with different issues than those presented here. Nevertheless, an appellate court must affirm a circuit court’s judgment of dismissal upon any proper grounds raised in the motion. (Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 817, 506 N.E.2d 681, 683.) Allstate sought dismissal on the grounds of the plain language of the limitations clause, in addition to the Davis case. Therefore, we must uphold the dismissal order entered by the circuit court.

For the reasons stated, the circuit court’s judgment, dismissing Thomas’ complaint, is affirmed.

Affirmed.

LORENZ and PINCHAM, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
      In re ESTATE OF ALLEN M. GRIGG (Mutual Benefit Life Insurance Company, Petitioner, v. Carol A. Grigg, Indiv. and as Adm’r of the Estate of Allen M. Grigg, et al., Respondents (Carol A. Grigg, Indiv. and as Adm’r of the Estate of Allen M. Grigg, and as Legal Guardian of the Minor Children of Allen M. Grigg, Cross-Plaintiff and Appellant; Barbara L. Bronson, Cross-Defendant and Appellee)).
    First District (6th Division)
    No. 1—87—3809
    Opinion filed September 15, 1989.

      Mason D. Sullivan, Ltd., of Chicago, for appellant.
    Dabrowski & McGrath, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

The issue in this case is whether the proceeds of a life insurance policy, payable to someone not related to or dependent on the deceased, may be reached to pay the deceased’s funeral expenses, the expenses incurred in the administration of the estate, the widow and child’s award and the widow’s statutory share. The trial judge ruled that they could not; and the petitioner, who concedes that the proceeds of the policy are not assets of the estate, nonetheless insists that the judge erred.

The decedent, Allen M. Grigg, started working for R.G. Dickenson & Company in September 1985; and took out a term life insurance policy through the company with Mutual Benefit Life Insurance Company (Mutual) in the amount of $50,000. He designated Barbara Bronson (Bronson) as the beneficiary. He indicated in his application for the policy that he was divorced; but he was not.

On January 26, 1986, the decedent died intestate survived by his widow, Carol A. Grigg, (Grigg) and two minor children. Grigg and the decedent had married on June 15, 1963, and lived together until November 4, 1983, when he left her and his children. Sometime after the decedent left his family, he started living with Bronson. Upon his death, Mutual was obligated to pay Bronson $50,000 as the proceeds of the life insurance policy; however, Mutual received claims for the proceeds from various parties.

Grigg was appointed administrator of the estate, which is insolvent, and she filed a citation proceeding to discover and recover assets from Mutual. Mutual filed an interpleader action against Bronson and the estate, deposited the policy proceeds and was dismissed from the suit. Grigg, as administrator, filed an action seeking a determination that Bronson was not a proper beneficiary. That case was decided in Bronson’s favor; and that decision is not in issue here.

Bronson then filed a motion to compel the distribution of the deposited funds. Grigg filed a response and alleged that five claims had been made against the estate: by Wieboldt and Visa, which were for debts incurred by the decedent, by Cuneo Hospital for medical services rendered to the decedent, by Smith Funeral Homes for funeral expenses and by the Chicago Law Bulletin for publishing notices on behalf of the estate. Grigg asked that those claims be paid from the insurance proceeds and also asked that the child and widow’s award and the widow’s statutory share be paid from the proceeds. The judge ruled that the Wieboldt, Visa and Cuneo Hospital claims, total-ling $1,890 be paid from the insurance proceeds, reasoning that they were debts incurred by the decedent himself. He denied all other claims on the ground that those claims may be paid only from estate assets and the insurance proceeds were not estate assets.

Bronson did not file a cross-appeal; but she asked in her brief that we modify the judgment by reversing that part of the order requiring her to pay for the debts incurred by the decedent. When the absence of the cross-appeal was called to the attention of Bronson’s attorney during oral argument, he conceded that the absence of the cross-appeal prevented us from considering any error urged by Bronson. (See National Football League Properties v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App. 3d 820, 327 N.E.2d 247.) Therefore, we will not decide whether the trial judge’s order to pay the claims of Wieboldt, Visa and Cuneo Hospital was correct.

The linchpin of the petitioner’s argument is section 238 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 850), which is as follows:

“All proceeds payable because of the death of the insured and the aggregate net cash value of any or all life and endowment policies and annuity contracts payable to a wife or husband of the insured, or to a child, parent or other person dependent upon the insured, whether the power to change the beneficiary is reserved to the insured or not, and whether the insured or his estate is a contingent beneficiary or not, shall be exempt from execution, attachment, garnishment or other process, for the debts or liabilities of the insured incurred subsequent to the effective date of this Code, except as to premiurns paid in fraud of creditors within the period limited by law for the recovery thereof.”

The petitioner interprets this provision to mean that the exemption for debts of the insured extends only to spouses of the insured or certain related persons dependent on the insured and not to Bronson or any other person not related and dependent on the insured. This is a novel argument. No case is cited so construing the statute, which was enacted in 1937. Indeed, it does not appear that anyone has even advanced the position of the petitioner in any reported case. In Gurnett v. Mutual Life Insurance Co. (1934), 356 Ill. 612, 191 N.E. 250, decided three years before the enactment of the statute, the supreme court held that a policy of insurance is not deemed an asset of the insured unless it is made payable to him, his executors or administrators. No case or text writer has suggested that section 238 has changed the rule of Gurnett.

One writer,- the chairman of the commission that drafted the Insurance Code, cited Gurnett for his statement that “proceeds of life policies payable to a named beneficiary are free from claims of creditors of the insured apart from any statute.” (Havighurst, Some Aspects of the Illinois Insurance Code, 32 Ill. L. Rev. 391, 413 (1937).) He added this observation:

“The reference to proceeds [in Section 238] is superfluous but undoubtedly harmless, since the exclusion of policies payable to beneficiaries outside the designated class could hardly be regarded as making proceeds on such policies subject to creditor’s claims. The wording does not admit of the construction that proceeds of policies payable to the estate of the assured are exempt. The reference to proceeds was added on the demand of agents’ organizations.” (Emphasis added.) 32 Ill. L. Rev. at 413 n.125.

Even if we were to accept the petitioner’s interpretation, her claim must fall. Her claim, it should be emphasized, is for expenses incurred by the administrator, the widow and child’s awards and the widow’s statutory share. This section of the statute refers to “debts or liabilities of the insured.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 73, par. 850.) The debts or liabilities for funeral expenses and costs of administration are not debts of the insured. Neither are the widow and child’s awards; and neither is the widow’s statutory share. They are debts of the estate. Section 2 — 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 2 — 1(a)) provides that the widow shall receive one-half of the “entire estate.” Section 18 — 10 of the Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 18 — 10) specifically identifies the surviving spouse’s or child’s award as “claims against decedent’s estate.” It is obvious, therefore, that section 238 of the Insurance Code is of no support to the petitioner’s claim.

It would serve no purpose to discuss at length the cases cited by the petitioner. None of them is apposite. In re Schriar (7th Cir. 1960), 284 F.2d 471, involved a creditor’s right to reach the cash surrender value, not the proceeds, of a bankrupt’s life insurance policy. Montgomery v. Michaels (1973), 54 Ill. 2d 532, 301 N.E.2d 465, involved Totten trusts, not an insurance policy. We note, moreover, that the holding of Montgomery has been modified by the legislature. Ill. Rev. Stat. 1987, ch. IIOV2, par. 601.

For these reasons, we judge that the circuit court properly denied the petitioner’s claim; and the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.