text:
    DEICHMUELLER CONSTRUCTION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Richard Urbanski et al., Appellees).—RICHARD URBANSKI, Appellant, v. THE INDUSTRIAL COMMISSION et al. (S.J. Groves, Inc., et al., Appellees).
    Third District (Industrial Commission Division)
    Nos. 3—90—0411WC, 3—90—0434WC cons.
    Opinion filed June 17, 1991.
    Rehearing denied July 25, 1991.

      Pamela K. Harman, of Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago, for appellee S.J. Groves, Inc.
    Kevin Luther, of Heyl, Royster, Voelker & Allen, of Rockford, for Deichmueller Construction Co.
    Peter F. Ferracuti and Mark A. Schindler, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for Richard Urbanski.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Richard Urbanski, filed two applications for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) for injuries he sustained while working for two unrelated respondents, S.J. Groves, Inc. (Groves), on July 22, 1986, and Deichmueller Construction Company (Deichmueller) on July 23, 1986. The claimant’s applications were consolidated for hearing before the arbitrator. Following the arbitration hearings, the arbitrator found that the claimant’s injuries arose out of and in the course of his employment with both of the respondents and made the respondents jointly and severally liable for the benefits awarded the claimant. The arbitrator determined that the claimant had become permanently and totally disabled as of July 23, 1986, and awarded him benefits for life. Additionally, the arbitrator awarded the claimant medical expenses in the amount of $311,679.43. The arbitrator also awarded the claimant attorney fees and penalties against both of the respondents. Both of the respondents appealed the arbitrator’s decision to the Industrial Commission (Commission), and, on appeal, the Commission reversed the portion of the arbitrator’s decision in which the arbitrator found that the claimant’s condition of ill-being was causally connected to his employment with Groves on July 22, 1986. However, the Commission determined that the claimant’s condition of ill-being arose out of and in the course of his employment with Deichmueller and that Deichmueller was solely liable for the payment of the claimant’s benefits. In addition, the Commission reversed the arbitrator’s decision as to attorney fees and penalties and increased the amount of medical expenses to which the claimant was entitled to $533,554.62.

Subsequently, Deichmueller and the claimant sought review of the Commission’s decision before the circuit court. On July 18, 1989, Deichmueller filed a request for issuance of summons and a receipt of payment of the cost of the record to the Commission. On that same day, Deichmueller’s attorney filed a bond on behalf of Deichmueller which the attorney had signed as principal. The bond was also signed by a representative of Deichmueller’s insurance company as surety. Deichmueller’s and the claimant’s appeals before the circuit court were consolidated upon motion of the respondent.

On August 16, 1989, Groves filed a special and limited appearance for the purpose of contesting the jurisdiction of the circuit court to consider Deichmueller’s appeal. Also on that date, Groves filed a motion to quash summons and to dismiss Deichmueller’s appeal. The circuit court denied Groves’ motion to quash and to dismiss and considered Deichmueller’s and the claimant’s appeals. Ultimately, the circuit court confirmed the Industrial Commission’s decision, and both Deichmueller and the claimant appeal. Deichmueller’s and the claimant’s appeals were consolidated in this court upon the motion of the parties.

Numerous issues were presented by Deichmueller on appeal. Similarly, the claimant also raised numerous issues; however, the issues raised by the claimant were not new issues but were either the same issues raised by Deichmueller (which pertained to adverse rulings against Deichmueller and favorable rulings for Groves) or were a response to issues raised by Deichmueller which pertained to rulings concerning the claimant alone. In Groves’ answer brief, Groves raised the issue that the circuit court did not have subject matter jurisdiction to consider Deichmueller's appeal because Deichmueller’s bond was defective. Because the jurisdictional issue raised by Groves disposes of this appeal, it is unnecessary to reiterate the issues raised by Deichmueller and the claimant and to set forth the evidence relating to those issues.

The basis of Groves’ contention that the circuit court did not have subject matter jurisdiction to consider Deichmueller’s appeal is that the bond filed by Deichmueller was defective. Groves argues that the bond was signed by Deichmueller’s attorney as principal rather than by a representative of Deichmueller in contravention of the language of section 19(f)(2) of the Workers’ Compensation Act, and therefore, the jurisdiction of the court was not properly invoked. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(2).) Groves cites Illinois Armored Car Corp. v. Industrial Comm’n (1990), 205 Ill. App. 3d 993, 563 N.E.2d 951, as controlling in this case. Deichmueller responds that under the controlling case of Lee v. Industrial Comm’n (1980), 82 Ill. 2d 496, 413 N.E.2d 425, the circuit court did have subject matter jurisdiction because the circuit clerk accepted and filed its bond. Furthermore, Deichmueller argues that because it ratified its attorney’s signing of the bond when it filed its affidavit, stating that its attorney had the authority to sign on Deichmueller’s behalf, DeichmueUer’s attorney was expressly authorized to act on its behalf and was acting as its agent at the time of the filing of the bond, and the circuit court had subject matter jurisdiction.

The statute provides the guidelines as to what must be done to appeal a workers’ compensation case from the Commission to the circuit court. Section 19(f)(1) requires a written request for issuance of summons be made within 20 days of receipt of the Commission’s decision before the jurisdiction of the circuit court can be invoked. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(1).) In addition, at the time of the filing of the written request for issuance of summons and before the summons can be issued, either a receipt of payment or an affidavit of the attorney stating that payment has been made to the Commission for the cost of the record (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(1)) and a bond must be tendered to the circuit clerk (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(2)). Section 19(f)(2) provides that the summons shall not issue “unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(2).) Thus, it is evident from the language of section 19(f)(2) that the bond is to be executed by the party against whom the award has been made, in this case, Deichmueller.

Here, Deichmueller filed a timely bond; however, a representative of Deichmueller did not sign the bond as principal. Nothing in the record at the time of the filing of the bond or during the 20-day time frame for filing appeal documents indicated that Deichmueller’s attorney had the authority, either actual or implied, to obligate Deichmueller to pay the bond. The affidavit filed by Deichmueller for the apparent purpose of ratifying its attorney’s actions was not filed until November 2,1989, well beyond the time for filing appeal documents.

A review of Illinois Armored Car Corp. (205 Ill. App. 3d 993, 563 N.E.2d 951) reveals that the facts of the case sub judice are identical to the facts of that case. In Illinois Armored Car Corp., the respondent timely filed a bond which the employer’s attorney had signed as principal. There, as here, a representative of the insurance company signed the bond as surety. Similarly, the employer in Illinois Armored Car Corp. filed a sworn affidavit ratifying its attorney’s authority to sign the bond after the statutory time for filing appeal documents had expired. The same arguments raised by the respondent in the instant case were also raised by the respondent in Illinois Armored Car Corp., i.e., that the attorney was the employer’s agent and had authority to sign the bond for the employer under agency law, and, alternatively, that Lee v. Industrial Comm’n was controlling and the ratification provided after the running of the statutory time period was sufficient to ensure jurisdiction. This court found that the circuit court’s jurisdiction was not properly invoked in Illinois Armored Car Corp., as the circuit court exercises only special statutory jurisdiction in workers’ compensation cases, and, thus, the statutory requirements to invoke this jurisdiction require strict compliance. (Illinois Armored Car Corp., 205 Ill. App. 3d 993, 563 N.E.2d 951.) This court further determined in Illinois Armored Car Corp. that Lee v. Industrial Comm’n was distinguishable as one respondent-partner signed the bond as principal while the other partner signed the bond as surety, and, as such, the one partner’s signature as principal could obligate the employer for the amount of the bond. In other words, a person with corporate authority signed the bond as principal. Thus, although both partners did not sign the original bond, an amended bond which was subsequently filed bearing both of the partners’ signatures as principal was acceptable, even though it was filed after the 20 days required by the statute. Here, there was no authority given to Deichmueller’s attorney during the 20-day filing period under which it could be said that the attorney could obligate the respondent to pay the amount of the bond. If it is not evident that the respondent is obligated by the bond during the 20-day filing period, the purpose of the bond, that a claimant has a method of collecting on an award against the respondent, is defeated, and strict compliance with the statute has not been met. Thus, for the same reasons expressed in Illinois Armored Car Corp., the circuit court in the instant case did not have subject matter jurisdiction to hear the appeal of Deichmueller. Because the circuit court lacked jurisdiction of Deichmueller’s appeal, we likewise do not have jurisdiction.

Groves also argues that even though Deichmueller’s appeal cannot be considered because of the failure to abide strictly by the statutory requirements to invoke the court’s jurisdiction, nevertheless, the claimant timely filed his appeal and his appeal remains to be considered. However, Groves contends that the claimant’s appeal is moot as his appeal does not raise any issue regarding the Commission’s decision in which the claimant was prejudiced or in which the claimant’s interest was adversely affected. As was noted previously, the issues raised by the claimant were the same as those raised by Deichmueller, i.e., that the Commission’s determinations, that Groves was not jointly and severally liable and that claimant’s condition of ill-being was not causally connected to his employment with Groves but was causally connected only to his employment with Deichmueller, were against the manifest weight of the evidence. Resolution of the issues raised by the claimant would neither increase his award nor decrease his ability to collect his benefits. The resulting situation is that the claimant has an employer who is liable to pay his benefits, and he can achieve nothing more through his appeal. It is well established that an appellant can appeal only from those rulings prejudicial to him. (Riley v. Physicians Weight Loss Centers, Inc. (1989), 192 Ill. App. 3d 23, 548 N.E.2d 811; Prince v. Atchison, Topeka & Sante Fe Ry. Co. (1979), 76 Ill. App. 3d 898, 395 N.E.2d 592.) Here, the claimant was awarded benefits and medical expenses by the Commission; therefore, it cannot be said that he was prejudiced by the Commission’s ruling. We will not consider the claimant’s appeal simply to determine an abstract question of law.

For the foregoing reasons, the judgment of the circuit court of LaSalle County, denying Groves’ motion to quash summons and to dismiss Deichmueller’s appeal, is reversed and remanded, with directions to quash the summons. Additionally, the claimant’s appeal is dismissed since there was no adverse ruling against him.

No. 3 — 90—0411WC, Reversed and remanded with directions.

No. 3 — 90—0434WC, Appeal dismissed.

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


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    PEORIA POLICE SERGEANTS et al., Plaintiffs-Appellees, v. THE CITY OF PEORIA BOARD OF FIRE AND POLICE COMMISSIONERS, Defendant-Appellant.
    Third District
    No. 3—90—0456
    Opinion filed June 26, 1991.

      Roy G. Davis and Linda L. Lougges, both of Keck, Mahin & Cate, of Peoria (Robert M. Riffle, of counsel), for appellant.
    Marcia F. Straub, of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court;

The Peoria Board of Fire and Police Commissioners (Board) appeals from a judgment order of the circuit court of Peoria County invalidating the procedure used to select candidates for promotion to police lieutenant.

The disputed question giving rise to this appeal is whether the rules of the Board governing the promotional process for the rank of lieutenant in the Peoria police department violate the statutory directives contained in section 10 — 2.1—15 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—15), which sets forth the following requirement for promotion:

“The board [of fire and police commissioners], by its rules, shall provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases, where it is practicable, that vacancies shall be filled by promotion. All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to examination.”

Other sections of the Code provide for the Board to make rules for carrying out appointments and removals from service (section 10— 2.1 — 5), to give credit for military service (section 10 — 2.1—10), to give promotional examinations (section 10 — 2.1—11), to make temporary appointments (section 10 — 2.1—16), and other matters.

The Board’s rules establish a three-step promotional process for attaining the rank of lieutenant with each step having a weighted value as follows:

(1) Written examination...............30%
(2) Oral examination..................40%
(3) Promotional potential..............30%

According to the rules, only those candidates with scores in the top 10 following the written and oral examinations of steps (1) and (2) were allowed to proceed to step (3). Furthermore, points for veterans’ service and for seniority were not awarded until the end of step (3), at the conclusion of which the final ranking on the eligibility list would be determined.

The rules specify that the written and oral examinations are to test the ability of the officer to perform in the position. The “promotional potential” of step (3) was determined on the basis of an evaluation or rating by the candidates’ superior officers. The parties stipulated:

“12. Neither Step (1) nor Step (2) specifically took into account the candidates’ length of service within the Peoria Police Department; their length of service as a Sergeant; the opinion of the candidates held by their superiors or subordinates; commendations or reprimands; or attendance to duty or absenteeism, although each candidate had the opportunity to make references to these considerations in response to certain questions posed during the course of their oral examination (Step (2)).”

In 1987, 19 police sergeants for the City of Peoria took the written and oral examinations as candidates for promotion to the rank of lieutenant. Immediately after the preliminary eligibility list was posted, eight of the sergeants who had been dropped from the list filed a petition for mandamus and injunction to prevent the Board from taking any further action and to challenge the validity of the promotional process. The four plaintiffs in this cause, Charles Hurt, Edward Papis, Terry Fondreist, and Larry Lock, were among those not included in the top 10.

The circuit court first granted the sergeants a preliminary injunction but then allowed the Board’s motion to dismiss. Upon appeal to this court, we affirmed the dismissal on the ground that the sergeants had to exhaust their administrative remedies before pursuing judicial remedies. Our decision was not published. Peoria Police Sergeants v. City of Peoria Board of Fire & Police Commissioners (3d Dist. 1989), No. 3-88-0118.

After our appellate court decision, the Board proceeded to step (3) and ultimately certified a list of 10 candidates eligible for promotion. The order of the ranking at the conclusion of step (3) was considerably different than the order of the 10 candidates prior to step (3). The parties stipulated that if plaintiffs had been allowed to participate in all three steps of the promotional process, the candidates’ ranking on the final list could change. However, merely adding in the seniority and veterans points at the end of step (2) would not have changed the list of those eligible for step (3).

The plaintiffs undertook an administrative appeal challenging the scores and the process used to determine the eligibility list. After a nearing, the Board ruled that the promotional process was in full compliance with the applicable statutory provisions. Plaintiffs then filed a complaint for administrative review in the circuit court of Peoria County.

After a hearing, the court ruled that the promotional process used by the Board violated “both the letter and the intent of the controlling statute” by not considering seniority and ascertained merit, as required, before dropping plaintiffs from the list and was, therefore, void and unenforceable. The court remanded the cause to the Board for consideration of all applicants for promotion, and this appeal by the Board followed.

The determinative issue is whether the three-step process used by the Board satisfies the requirements of section 10 — 2.1—15 of the Hlinois Municipal Code that police promotions are to be based on ascertained merit and seniority in service and examination. We agree with the trial court that it does not.

Identical language in section 10 — 1—13 (Ill. Rev. Stat. 1961, ch. 24, par. 10 — 1—13) was construed by the appellate court as follows:

“It is clear from a reading of the statute that the legislature fixed three distinct elements to be considered in making promotions: ascertained merit, seniority in service and examination.” (Lenert v. Wilson (1965), 56 Ill. App. 2d 325, 330, 206 N.E.2d 294, 297.)

The court in Lenert v. Wilson said that the ascertainment of merit for promotion would include a rating of efficiency and would of its nature be a discretionary procedure, not a competitive examination. Lenert v. Wilson made clear that ascertained merit is to be determined separate from the examination and is to be based on the candidate’s past performance on the police force.

The procedure utilized by the Peoria Board did not take into account efficiency or any other aspect of meritorious performance of police duties by the candidates before some were eliminated. Plaintiffs were entitled to have all the statutory requirements measured before the list was reduced. What happened here was that eligibility for promotion was determined on the basis of examination alone, and then rank within the eligibility list was determined by step (3), where each candidate’s merit was ascertained and points for seniority and for military service were added.

As previously mentioned, a comparison of the ranking of the top 10 candidates at the end of step (2) with the ranking of those same candidates at the end of step (3) discloses several changes in position as a result of the “Promotional Potential Evaluation” of step (3). Two of the original top 10 scored very low on step (3). The highest step (3) score was 85.27 while the two lowest scored only 19.12 and 4.38, respectively. Thus it is likely that candidates ranking below the cut off point might well have been included in the top 10 if they had been allowed to complete the promotional testing process.

It is clear from the record that the decision to consider only the top 10 in step (3) was made solely for administrative convenience. Department officials testified that they believed that 10 candidates would be more than sufficient to fill all the vacancies anticipated in the next three years and that it would save the time of the superior officers to evaluate only the top 10. That reason does not justify ignoring the requirements of the statute.

We conclude, therefore, that plaintiffs were denied access to eligibility for promotion as guaranteed them by the law of Illinois. Steps (1) and (2) did not measure ascertained merit or seniority in service, or military service, before eliminating plaintiffs from further consideration, and, as the trial court ruled, plaintiffs were deprived of a fair consideration of their qualifications for the rank of lieutenant.

The trial court was correct in holding that the decision of the Board was erroneous. This cause must be remanded to the Board for consideration of all applicants for promotion by a process compatible with section 10 — 2.1—15, as construed herein.

Another contention put forward by the Board is that plaintiffs should be barred from challenging the promotional process because they did not object when they first were given notice of the procedure and, instead, they acquiesced in the process by participating in it up to the point where they were eliminated. The Board frames this argument in the terms of two different equitable theories: (1) that plaintiffs are barred by equitable estoppel and (2) that they are barred by the “unclean hands” doctrine.

Equitable estoppel could be invoked if plaintiffs’ conduct misled the Board by giving it grounds to believe that plaintiffs’ rights would not be enforced, thereby causing the Board to act to its detriment in reliance on that belief. (Kyker v. Kyker (1983), 117 Ill. App. 3d 547, 453 N.E.2d 108.) The Board argues that plaintiffs misled it into believing that there would be no challenges to its rules and regulations governing promotion until after plaintiffs had been eliminated. Since there is nothing to indicate what detriment the Board suffered by plaintiffs’ participation in steps (1) and (2), this argument must fail. The Board also argues that plaintiffs’ challenge was in bad faith because it did not come until after they had participated in the examinations. The logic of this argument is obscure.

The record discloses that plaintiffs put forward their objections to the promotion process at the earliest possible time after they had been injured by denial of eligibility for promotion. When the plaintiffs initially sought judicial relief, the Board successfully resisted plaintiffs’ efforts to be included in step (3) in the proceeding. Plaintiffs’ conduct does not give rise to equitable estoppel.

The “unclean hands” doctrine would preclude a party who is guilty of misconduct, fraud or bad faith connected to the matter being litigated from obtaining relief in a court of equity. (Comedy Cottage, Inc. v. Berk (1986), 145 Ill. App. 3d 355, 495 N.E.2d 1006.) We find nothing in the record, and the Board makes no reference to anything in the record, that would indicate any misconduct, fraud or bad faith on the part of plaintiffs. As stated above, mere participation in steps (1) and (2) of the promotional process was not evidence of bad faith.

Finally, the Board contends that this cause should have been dismissed by the trial court on the ground that plaintiffs failed to join the 10 candidates who were on the final eligibility list and who were necessary parties to this action. The Board cites the definition of a necessary party as an individual who has a present substantial interest in the matter being litigated and whose interest will be affected by the resolution of the controversy. (Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 Ill. App. 3d 50, 505 N.E.2d 1076.) However, the Board’s contention must fail because, as the trial court correctly ruled, this is an administrative review procedure.

Under section 3 — 107 of the administrative review article of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107), defendants in an action to review any final decision of an administrative agency shall be the agency and all persons who were parties of record to the proceedings before the agency other than plaintiffs. This provision has long been held to define who are indispensable parties in an administrative review action. (Continental Air Transport Co. v. Carpentier (1958), 19 Ill. App. 2d 340, 152 N.E.2d 488.) Here the other candidates were not parties to the hearing on plaintiffs’ claim before the Board and, hence, they are not necessary parties to the review of that proceeding.

The Board’s reliance upon Hauri v. Batzel (1979), 71 Ill. App. 3d 164, 389 N.E.2d 257, is misplaced. In that case, a police sergeant sought an injunction and declaratory judgment to invalidate the eligibility list for promotion to lieutenant in a municipal police department. His complaint was dismissed for failure to state a cause of action, and the dismissal was affirmed on appeal. The reviewing court observed that the plaintiff’s prayer to disqualify the successful candidates could not be considered without joining the officers who would be affected. That case was not an administrative review action and was not subject to section 3 — 107 of the Code of Civil Procedure. Hence, it does not control the case at bar.

For the reasons stated, we affirm the order of the trial court and remand this cause to the Board for further proceedings in accordance with this decision.

Affirmed and remanded.

SLATER and McCUSKEY, JJ., concur.


author: JUSTICE WOODWARD

text:
    HANSEL AND GRETEL DAY CARE CENTER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Susan A. Calvert, Appellee).
    Third District (Industrial Commission Division)
    No. 3—90—0860WC
    Opinion filed June 26, 1991.

      John A. Maciorowski, of Stevenson, Rusin & Friedman, of Chicago, for appellant.
    Michael- K. Brandow, Brian A. Kuehn, and Steven P. Clancy, all of Smith, Waters, Kuehn & Hughes, Ltd., of Peoria, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Susan A. Calvert, filed a claim for benefits from her employer, Hansel & Gretel Day Care Center. Following a hearing, the arbitrator awarded benefits including 73/v weeks of temporary total disability, $3,324.45 in medical expenses and 20% loss of the use of her right leg. The Elinois Industrial Commission (Commission) upheld the arbitrator’s award, and the Commission’s decision was confirmed by the circuit court of Peoria County. The employer appeals. A summary of the relevant evidence appears below.

Claimant testified that she had been employed as a teacher at the Hansel & Gretel Day Care Center since 1978. Her pupils ranged in age from 2 through hVz years. The teaching curriculum included music, art, language development and language motor skills. The teaching program was a cooperative effort but each teacher had his or her own nap room with a certain number of children depending on the size of the room.

Claimant testified that at approximately 2 p.m. on January 3, 1984, she attended a staff meeting. Claimant, who is 5 feet 6 inches and at the time of the incident weighed 155 to 160 pounds, sat at the children’s table with her legs under the table, in a chair used by the children, which was smaller than a regular size chair. When she stood up, she turned her legs to the right side and lowered them a little to get them from under the table and turned them still in that position, until they were away from the table. She then sat back on the chair to stand up but when her legs were in front of her, she felt a sharp pain in her right knee, and she could not stand up. The right knee was bent at the joint, and claimant attempted to straighten it out but something in the knee was “catching.” She remained seated and a little while later tried again to stand, but the pain was still there and the right knee still felt like it caught. She could not straighten the right leg. Finally, with her right knee in the bent position, she “hopped” over to awaken her pupils from their nap. She continued to work that day.

Claimant further testified that after work on January 3, 1984, she was driven to Pekin Hospital, where she was seen by her brother, Dr. Neis Calvert. Dr. Calvert and two nurses attempted to straighten out claimant’s right leg, but it was not until claimant was given a shot of morphine and Valium that they were able to straighten out the right leg and place it in a cast. Claimant was also given medication for the pain.

Claimant further testified that, at the recommendation of Dr. Calvert, she saw Dr. Sombeck, who recommended surgery. Claimant wanted a second opinion and saw Dr. Steven Clark. After examining claimant, Dr. Clark also recommended surgery. Prior to the surgery, claimant underwent an arthrogram, and surgery was performed in February 1984. Following surgery, claimant attended physical therapy classes and worked out on the leg machines at the health club she belonged to.

Claimant further testified that when it is cold outside, and her left knee is uncovered, it will start to ache. When, as a substitute kindergarten teacher, she has to kneel for any length of time putting weight on the right knee, it will begin to ache. When she tried doing aerobics again, her right knee would start to ache, or once in a while, it would feel like it was going to give. She has no further appointments with Dr. Clark.

On cross-examination, claimant testified that she had sat in the children’s chairs every day and had gotten up from those chairs successfully. She admitted that there were higher chairs available for her to sit on. At the time of the incident, she used the same method of getting out of the chair that she had used on other occasions at the day care center and at other places outside the day care center.

Claimant further testified that she had had previous problems with her right knee. In 1974, she twisted both her knees playing touch football in college. She did not seek medical treatment after that incident. She denied telling Mr. Joswick from Crawford and Company that she had had problems with her right knee locking since college. She admitted telling Ms. Ward, director of the day care center, in 1978, that she had problems with her leg stiffening up since the injury in 1974. When claimant began working at the day care center in 1978, she would have difficulty with her leg because of the stiffening but it never was swollen; it would lock up but never gave out. She admitted telling Ms. Ward that she had aggravated her knee while exercising on a machine at the health club she had joined; however, she denied that her knee was swollen at that time. She limped because she had an elastic wrap on her knee to prevent further aggravation to it. She denied hurting her knee at a volleyball game in 1983. Rather, her whole body ached after the game. She did not remember complaining to Ms. Ward about her right knee in 1982 or 1983 nor did she recall any special accommodations made for her with regard to the walking she had to do at the day care center.

Claimant further testified that on January 3, 1984, she told Dr. Calvert that she had a several year history of her right knee occasionally locking. She did not recall giving him a history of walking and twisting her knee. Prior to January 1984, she had never had an arthrogram performed on her knee, and she had never seen a specialist for her knee prior to January 1984.

Ardella Ward, director of the day care center from 1975 through 1984, testified that in the fall of 1978, she observed claimant limping, and claimant informed her that her right leg was stiff and that she had had problems with her right knee since college which came and went. Thereafter, when claimant was having difficulty with her right leg, Ms. Ward would arrange to have claimant teach classes that did not require her to use the stairs and where she could remain seated.

Ms. Ward further testified that in 1982, she noticed claimant’s right knee was swollen about IV2 times its normal size, and her right leg appeared to be stiff. Claimant told her it was due to either the exercise she did or the length of time she was on the machine at the health club. According to Ms. Ward, claimant saw a doctor and wore a brace on her right knee. In the summer of 1983, following a volleyball game, claimant was again limping. Between the volleyball game in 1983 and the incident of January 3, 1984, Ms. Ward did not recall anything with regard to claimant’s right knee.

Ms. Ward further testified that on January 3, 1984, claimant was not directed to sit in any particular type of chair and that there were higher chairs she could have sat on. At the time of the incident, claimant and she were discussing something when claimant went to shift her weight and got a painful look on her face. Claimant stated that it was her knee again. Ms. Ward offered to stay with her, but claimant told her that the problem with her knee “comes and goes.” According to Ms. Ward, claimant resumed her duties at the day care center in March 1984.

On cross-examination, Ms. Ward testified that between 1978 and 1984, claimant did not miss any days from work because of her knee although Ms. Ward attributed this to the fact that she made accommodations for claimant. Ms. Ward did not know how high the table claimant was sitting at was on the date of the incident, but it was a table low enough for the children at the day care center to sit at. Ms. Ward was unaware of anyone else having a problem upon rising from one of the chairs like the one claimant was sitting in. During the period from 1978 to 1984, claimant performed all of the duties Ms. Ward directed her to perform.

On redirect examination, Ms. Ward testified that between 1978 and January 4, 1984, she “accommodated” claimant approximately five times for a week at a time. On re-cross-examination, Ms. Ward testified that sometimes she would “accommodate” claimant as a courtesy to her or because she requested it. On occasion, she would suggest claimant sit in a larger chair. On further redirect examination, Ms. Ward testified that she suggested claimant use a larger chair because it was easier to get up and down from a larger chair.

The evidence deposition of Dr. Steven Glen Clark, a board-certified orthopedic surgeon, was admitted into evidence. He first evaluated the claimant in his office on January 9, 1984. She gave him a history of twisting her knee while arising from a chair six days previous to this time while working at the day care center. His examination of claimant’s right knee revealed some slight swelling, and motion was limited to only about 40 degrees of flexion. The swelling indicated that there had been some injury reasonably within the previous six days. Dr. Clark saw claimant again on January 16, 1984. At that time, claimant’s right knee was bending better but still seemed to catch, which was a symptom of either loose bodies or torn cartilage within the knee joint. An arthrogram was performed on January 17, 1984, the results of which demonstrated a rather extensive tear of the anterior and middle horns of the lateral meniscus or lateral cartilage of the right knee. A knee arthrotomy to remove the torn cartilage was performed on February 8, 1984. In Dr. Clark’s opinion, taking into consideration the type of injury and the type of work she performed, claimant was disabled from January 4, 1984, until January 18, 1984, and from February 8, 1984, until March 7, 1984, when she returned to work. Dr. Clark continued to see claimant periodically until her last visit to him on January 22, 1984, at which time claimant represented that the right knee was doing well, although there was some cold weather intolerance.

Dr. Clark opined that, even in light of claimant’s prior history of right knee problems, her condition of torn lateral meniscus could have been causally related to the incident of January 3, 1984. Dr. Clark based his opinion on the emergency room history and claimant’s history of occasional locking and problems with the right knee. Based upon claimant’s history, she probably did have some degree of cartilage injury prior to January 3, 1984. However, it was impossible to tell exactly what happened on that date because no prior arthrogram or arthroscope had been performed. It could have been an aggravation of a cartilage tear already present, or a limited or minor tear might have been extended at the time of the injury. However, as the injury was described to him, it was certainly conceivable that another injury or certainly aggravation of an existing problem could have occurred at that time. In Dr. Clark’s opinion, claimant’s condition was permanent and could eventually lead to an increased incidence of a degenerative arthritic condition.

On cross-examination, Dr. Clark acknowledged that the history section of claimant’s emergency room record revealed that claimant was walking and twisted her knee and had had previous knee locking but never as long as on this occasion. While Dr. Clark was aware that claimant had a history of prior problems with her knee, he had none of the specifics of that history.

According to Dr. Clark, a limp by itself was more indicative of discomfort and pain rather than a cartilage injury in the knee, unless accompanied by locking of the knee. He admitted that while claimant had a history of her knees giving way, swelling, pain and discomfort, it was not inconsistent that claimant could have had a meniscus tear prior to January 3, 1984. There was no way to tell how long the meniscus tear present had existed. A new cartilage tear could occur as the result of a minor insult, and in light of claimant’s history, her right knee could have locked, gone out or caught simply while she was walking down the street. While Dr. Calvert’s notes indicated there was no effusion on January 3, 1984, it was possible that there had been swelling in December 1983 which had gone down and come back by the time Dr. Clark saw claimant on January 9,1984.

Dr. Clark further testified that he was not familiar with claimant’s work duties other than he knew she worked with small children. There was absolutely no way of determining the exact condition of the meniscus on January 2, 1984, in relation to what it was on January 3, 1984. It could have been exactly the same, or it could have been an extension of the preexisting partial tear.

On redirect examination, Dr. Clark testified that he did not know what significance to attach to the fact that, given claimant’s history, she had not previously had surgery on her right knee.

The evidence deposition of Dr. James W. Milgram, a board-certified orthopedic surgeon, was admitted into evidence. Dr. Milgram testified that he examined the claimant on March 29, 1985. He took a history from the claimant, conducted a physical examination and took X rays. He also reviewed Dr. Calvert’s report of July 30, 1984, the records from Pekin Hospital and the arthrogram report.

Dr. Milgram was then given a hypothetical question in which he was asked to assume the following facts: A 34-year-old female who had had problems with her right knee locking since she incurred a fall in a park when her knee went out and that she had fallen on several other occasions; that in 1982 or thereabout, she joined a health club and, after performing exercises, noted that her right knee swelled up twice its size causing discomfort; that she played volleyball and thereafter walked with a limp; that she was seen for several visits prior to January 3, 1984, for complaints of locking, swelling and pain in the right knee; that on January 3, 1984, she was attempting to get up from a chair when her right knee locked; that the emergency room history stated that she had been walking and twisted her knee, suffering pain and knee locking, which had happened before but not for this long; that an arthrogram revealed an extensive tear of the anterior and middle horns of the lateral meniscus with some medial displacement of the inner fragments; that she was admitted to the hospital with a history of multiple recurrent injuries to the right knee and underwent an arthrotomy with excision of the lateral meniscus of the right knee. When last seen, she was noted to have a full range of motion and good stability.

Based upon the above hypothetical, the medical records and his own evaluation and findings, Dr. Milgram was of the opinion that there was no causal connection between the incident of January 3, 1984, and the claimant’s present state of ill being in that claimant was treated for a preexisting disease which was not influenced in any significant fashion by the episode of January 3, 1984. Claimant suffered no new symptoms nor was there significant aggravation of her preexisting condition of the episode. Dr. Milgram also noted the discrepancy in the emergency room record, i.e., that claimant was walking when she twisted her knee. Claimant’s previous episodes of her knee locking were consistent with tom cartilage and the fact she had had previous episodes was not of any significance, and the injury could have happened at any time.

Dr. Milgram further opined that based upon her history, claimant had a tom meniscus prior to January 3, 1984, and that activities such as walking, turning or getting out of bed could have triggered symptoms involving pain, swelling and locking of the knee. Dr. Milgram also believed claimant should have had surgery long before January 3, 1984, for tom cartilage. He was doubtful that getting out of a chair would cause torn cartilage.

On cross-examination, Dr. Milgram testified that the same amount of weight is used and hence no greater strain occurs if a person rises with legs crossed as opposed to legs extended. There could be more stress on the medial aspect of the joint if the leg was crossed but claimant was complaining of lateral tenderness when the doctor examined her. While it might have been of value to have seen claimant before January 3, 1984, it would not have changed his opinion. Dr. Mil-gram did agree that in forming an opinion as to causal connection, there would have been some value to seeing claimant within six days of the incident of January 3, 1984. Dr. Milgram conceded that a treating doctor’s opinion might have more weight than that of a nontreating doctor.

Dr. Milgram further testified that there was no significance necessarily to the fact that the locking of the right knee experienced by claimant following the January 3, 1984, injury was for a longer duration than previous episodes. He conceded that it was possible that an existing tear in the cartilage may have been extended. However, the January 3, 1984, episode was merely one in a long-term disease process that could have occurred at any particular time. Dr. Milgram was of the opinion that the January 3, 1984, episode did not cause any permanent change in her condition. He did not know if a preexisting tear could have been worsened by the episode of January 3, 1984, because previous episodes were undocumented and because he did not believe such an injury happened on January 3, 1984. He further based his opinion on the fact that there was no bleeding which would have indicated an acute injury and then no extension of the tear took place since one would expect bleeding in the joint if it had happened. However, Dr. Milgram conceded that it was possible that there would have been no blood in the aspirated fluid a number of days after the alleged injury.

On redirect examination, Dr. Milgram testified that he did not know if his opinion would have been any different had he examined claimant six days after the incident of January 3, 1984. There was no evidence that claimant suffered anything other than locking and swelling of her knee as a result of the incident of January 3, 1984. Since these were all symptoms of torn cartilage, she had all the indications for surgery prior to January 3, 1984. In order to say that the alleged injury of January 3, 1984, caused a tear in the cartilage, he would have to have examined the knee before the claimant’s injury and then after it, which was never done. The lack of bleeding dictated against there being a new injury. Given claimant’s history of the injury in 1974 and the previous episodes, to say that anything serious happened while she was getting out of the chair was ridiculous.

Following a hearing, the arbitrator found that the accident of January 3, 1984, arose out of and in the course of claimant’s employment and that a causal connection existed between the injury suffered by claimant on that date and her present condition of ill being. The arbitrator relied on Dr. Clark’s opinion in which he stated that the injury of January 3, 1984, aggravated a preexisting condition in claimant’s right knee and aggravated and extended the tear in the cartilage and that claimant’s injury was permanent. On review, the Commission adopted the findings of the arbitrator and upheld the arbitrator’s decision. The trial court, without comment, confirmed the Commission’s decision. This appeal followed.

The employer contends that since the facts in this case are undisputed, this court is not bound by the decision of the Commission. The employer contends that as a matter of law, claimant’s injury did not arise out of her employment.

In compensation actions, it is a function of the Commission to determine disputed issues of fact, and any factual determinations are not to be disturbed unless contrary to the manifest weight of the evidence. (Buchino v. Industrial Comm’n (1988), 172 Ill. App. 3d 162, 164.) However, when the facts are undisputed, the issue of whether an injury arises out of and in the course of one’s employment becomes a question of law, and any decisions of the Commission on questions of law are not binding on a court of review. (Buchino, 172 Ill. App. 3d at 165.) In the case at bar, the facts surrounding the incident of January 3, 1984, are not disputed. However, while the employer correctly points out that both doctors in this cause testified that any everyday activity could have set off claimant’s current condition of ill being, each drew a different inference from those factors. Since the inference to be drawn from the facts is not undisputed, we cannot say that this cause presents only a question of law, and, therefore, we are not free to independently review this cause but must instead determine if the decision of the Commission is against the manifest weight of the evidence. Compare Buchino, 172 Ill. App. 3d 162.

More is required than the fact of an occurrence at the employee’s place of work. (Greater Peoria Mass Transit District v. Industrial Comm’n (1980), 81 Ill. 2d 38, 43.) A claimant must show that the injury is due to a cause connected to the employment to establish that it arose out of the employment. (Elliot v. Industrial Comm’n (1987), 153 Ill. App. 3d 238, 242.) Although a preexisting condition does not prevent recovery of benefits if that condition was aggravated or accelerated by claimant’s employment, recovery is denied where the claimant’s health has so deteriorated that any normal daily activity is an overexertion, or where the activity engaged in presents risks no greater than those to which the general public is exposed. Caterpillar Tractor Co. v. Industrial Comm’n (1982), 92 Ill. 2d 30, 36.

In Board of Trustees of the University of Illinois v. Industrial Comm’n (1969), 44 Ill. 2d 207, the claimant, a graduate teaching assistant with a history of degenerative disc, turned in his chair and heard something “snap” in his back. He was diagnosed as having a raptured disc which occurred when he turned in his chair. Although both the arbitrator and the Commission found that the injury had arisen out of and in the course of his employment, the circuit court disagreed and set aside the award of benefits. The supreme court affirmed the decision of the circuit court, stating as follows:

“As we have stated, there must be a showing that an injury, to be considered compensable, was due to a cause connected with the employment or incidental to it. There is no evidence here of a causal connection between the appellant’s employment and the injury. The appellant simply turned in his chair and suffered the injury. There was no suggestion that the chair was defective or unusual in any way. The medical evidence was that because of its degenerated condition any simple and normal activity would have caused the appellant’s disc to rupture. The injury was not caused by a risk attributable to employment.” (44 Ill. 2d at 214-15.)

Both Dr. Clark and Dr. Milgram testified that given claimant’s history of knee locking, her right knee could have locked or gone out while she was walking, turning, getting out of bed or, in short, performing the activities of everyday life. Thus, claimant has not established that she was exposed to a risk not common to the general public. See Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52.

The burden of proof is on a claimant to establish the elements of his right to compensation, and unless the evidence considered in its entirety supports a finding that the injury resulted from a cause connected with the employment, there is no right to recover. (Board of Education, 44 Ill. 2d at 214.) While it is primarily the function of the Commission to determine such issues of fact, if upon consideration of all the evidence and circumstances it appears that the finding is contrary to the manifest weight of the evidence, the award must be set aside. (44 Ill. 2d at 214.) In light of the entire record before us in this cause, we conclude that the Commission’s finding that the incident of January 3, 1984, aggravated claimant’s preexisting condition is against the manifest weight of the evidence.

Therefore, we reverse the judgment of the circuit court.

Reversed.

McCULLOUGH, P.J., and McNAMARA, LEWIS, and STOUDER, JJ., concur.


author: JUSTICE BOWMAN

text:
    CHARLES J. GROENINGS et al., as Cotrustees, et al., Plaintiffs-Appellants, v. THE CITY OF ST. CHARLES et al., Defendants-Appellees.
    Second District
    No. 2—90—1052
    Opinion filed June 28, 1991.

      Cowan & Minetz, of Chicago, and Roy A. Safanda, of Safanda & Brannen, and Robert F. Casey, both of St. Charles (Robert S. Minetz, of counsel), for appellants.
    Clara Rubinstein, of Altheimer & Gray, of Chicago, and James D. Skaar, of Smith, Landmeier & Skaar, P.C., of Geneva (Kenneth C. Shepro and Allen L. Landmeier, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiffs appeal from orders dismissing their complaint for failure to state a cause of action and denying their subsequent motion to amend the complaint. The facts of this case, as alleged in the complaint, proposed amended complaint, and exhibits, disclose the following. The plaintiffs (Groenings) own approximately 80 acres of real estate located between, and contiguous to, the two defendants, City of St. Charles (St. Charles) and Village of Wayne (Wayne), in unincorporated Kane County. Both municipalities are non-home-rule units of government.

The Groenings petitioned to St. Charles for annexation of their property but were denied on February 20, 1989. On that same date St. Charles adopted an ordinance authorizing execution of a boundary agreement between itself and Wayne relative to the unincorporated territory, including plaintiffs’ property, which lay between the two municipalities. Through the boundary accord the defendants essentially agreed to neither annex nor exercise zoning or subdivision control authority beyond the territory located on their respective sides of the boundary line established by the accord. The Groenings’ property is situated on the Wayne side of the line. The resolution denying the Groenings’ petition for annexation took into consideration the boundary agreement with Wayne and noted that, under the agreement, St. Charles was prohibited from annexing the Groenings’ property. These facts provide an adequate background for understanding the procedural history which follows. However, other pertinent facts will be presented in our discussion of the issues.

After the annexation petition was denied, the Groenings filed a five-count complaint against St. Charles and Wayne. Counts I, II, and III alleged various constitutional violations, sought to invalidate the Illinois statute which authorized the boundary agreement, and requested damages pursuant to section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1982)). In count IV plaintiffs asserted that defendants had tortiously interfered with their prospective economic advantage. Count V sought to void the boundary agreement or, alternatively, the enabling statute, as a matter of Illinois law.

Subsequently, the plaintiffs successfully moved to voluntarily strike their claims for money damages against Wayne. Both defendants filed motions to dismiss for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Following the parties’ submission of memoranda and oral argument on the motions, the trial court dismissed all counts of the complaint and terminated the litigation.

The Groenings filed motions for leave to vacate, to allow an interlocutory appeal, and to file an amended complaint instanter. A proposed first amended complaint accompanied the motion for leave to amend. At the hearing on the motions, the trial judge inquired regarding the differences between the original complaint and the proposed amended complaint, heard the arguments of counsel, and reviewed the differences between the two complaints himself. After indicating that the amendment would not change his original conclusion that dismissal was appropriate, the judge denied all of plaintiffs’ motions. The judge also stated that the proposed amendment should be part of the record for appellate review. The Groenings appeal from both the order dismissing their complaint and the order denying their motion for leave to amend the complaint.

A complaint should be dismissed for failure to state a cause of action only when it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to relief. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61; Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 970.) While a motion to dismiss admits all well-pleaded facts as true (Teter v. Clemens (1986), 112 Ill. 2d 252, 256), it does not admit conclusions of law or fact which are unsupported by allegations of specific facts which warrant those conclusions. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273.) If, after any conclusions found in the complaint have been excluded, there are not sufficient facts to state a cause of action, the motion must be granted even though it may generally inform the defendant of the claim against him. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426; Towne v. Town of Libertyville (1989), 190 Ill. App. 3d 563, 567.) In ruling on a motion to dismiss, allegations of the complaint are to be interpreted in the light most favorable to the plaintiff (Payne, 152 Ill. App. 3d at 273), but factual deficiencies may not be cured by liberal construction (Knox, 88 Ill. 2d at 427). The granting of a motion to dismiss for insufficiency of a complaint is within the sound discretion of the trial court. (Town of Libertyville, 190 Ill. App. 3d at 567.) The sufficiency of the Groenings’ complaint will be judged by these standards.

Count V of plaintiffs’ complaint turns on the issue of the validity of the annexation provision in the boundary agreement between Wayne and St. Charles. The Groenings’ initial contention is that the provision is void because the two non-home-rule municipalities did not have the power to execute such an agreement.

Plaintiffs rely primarily on Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979, in which Long Grove sought to enforce an annexation clause very similar to the one in dispute here. The parties had executed a boundary agreement, including a provision prohibiting either village from annexing beyond the jurisdictional boundary line, pursuant to section 11 — 12—9 of the Municipal Code (Code) (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 12—9), which provided:

“If unincorporated territory is within one and one-half miles of the boundaries of two or more corporate authorities that have adopted official plans, the corporate authorities involved may agree upon a line which shall mark the boundaries of the jurisdiction of each of the corporate authorities who have adopted such agreement.”

This court noted that non-home-rule units possess only those powers granted to them by law or necessarily implied from or incident to powers expressly granted (Long Grove, 146 Ill. App. 3d at 980) and interpreted section 11 — 12—9 as not providing authority for that part of the parties’ agreement which prohibited annexation. We held that the annexation provision was invalid.

Defendants correctly point out that Long Grove was decided in July 1986 and that in 1987 section 11 — 12—9 was amended by the addition of the following sentence:

“On and after September 24, 1987, such agreement may provide that one or more of the municipalities shall not annex territory which lies within the jurisdiction of any other municipality, as established by such line.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 12—9.)

The Groenings acknowledge the language of the amendment but maintain that it does not apply to non-home-rule communities such as St. Charles and Wayne because it does not explicitly say that it so applies. In plaintiffs’ words, if the legislature had meant to grant the power in question to non-home-rule units “it would have passed a law which stated that ‘non-home rule units are authorized to enter into boundary agreements which prohibit annexation.’ ” As we read it, the crux of plaintiffs’ argument is that the amendment of section 11— 12 — 9 did not affect the holding of Long Grove and, therefore, the interpretation of section 11 — 12—9 as found in Long Grove is applicable to the boundary agreement executed by St. Charles and Wayne. This position is meritless.

First of all, we find the sequence of events involving the statute to be persuasive that the legislature amended section 11 — 12—9 in direct response to our Long Grove opinion. In Long Grove we concluded the municipalities lacked power to execute an annexation agreement because non-home-rule units have only the powers delegated to them by the legislature, and we could find nothing in the language of the statute which even referred to annexation, much less purported to regulate it. Too, section 11 — 12—9 appeared in a portion of the Code which is concerned with the planning function, as distinct from the annexation activity, of a municipality, and the statute reflected no intent to have an effect on the annexation statutes. Subsequently, the legislature added clear and specific language, not only referring to annexation but also empowering municipalities to agree to restrictions on their annexation activity. This language did not change the planning focus of section 11 — 12—9. Rather it seems to have been added as another planning tool which the legislature saw fit to provide to municipalities. In our view, it is reasonable to conclude from these facts that section 11 — 12—9 was amended in response to Long Grove.

Further, in interpreting section 11 — 12—9, the only relevant power we found to be lacking in non-home-rule municipalities was the power to include an annexation arrangement within a boundary agreement. The only reason the municipalities lacked that power was because it was not specified or necessarily implied in the statutory language. While we did not address the matter in Long Grove, the clear implication or, perhaps, underlying assumption of our finding was that all the powers which were specifically set forth in section 11 — 12—9 had been granted to non-home-rule units. We think that when the legislature later added annexation language it fully intended to add the power to execute annexation agreements to the powers already enjoyed by non-home-rule municipalities pursuant to section 11 — 12—9. We can find nothing in our Long Grove decision which intimates that, in order for a law granting municipal power to be applicable to a non-home-rule unit, such law must expressly state that it applies to non-home-rule units. It is noteworthy in this regard that in Village of South Elgin v. City of Elgin (1990), 203 Ill. App. 3d 364, 370, we indicated that the relevant amendment to section 11 — 12—9 was “prompted by this court’s opinion in [Long Grove].” Long Grove gives little support to the contention that section 11 — 12—9 did not authorize the agreement at issue.

Similarly, we are persuaded by the consistency of the language of section 11 — 12—9 as amended, that it is meant to empower non-home-rule municipalities to agree to impose restrictions on annexation activity. The section, which was originally added to the Code in 1961 (1961 Ill. Laws 576 (§11-12-9), added by 1961 Ill. Laws 2757 (§1), eff. August 4, 1961), granted to “corporate authorities” the power to enter into jurisdictional boundary agreements pertinent to nearby, unincorporated territory. At the time, prior to the 1970 Constitution, there was no distinction between home rule and non-home-rule municipalities. Consequently, the power was granted to all municipalities. Plaintiffs do not suggest that this power has since been taken away from non-home-rule municipalities. The amendatory language indicates that “such [boundary] agreements” may provide that “the municipalities” will not annex territory within each other’s jurisdiction as established by the agreed-upon boundary line. Thus, the amendment became an integral part of the statute and, in our opinion, was intended to apply to the same “corporate authorities” as previously designated by the legislature. Since the earlier language referred to all municipalities, there is no reason to surmise the later language does not do likewise.

Our conclusion is also consistent with the changes effected by the 1970 Constitution relative to local government. Prior to adoption of the new constitution, all Illinois municipalities were “creatures of the legislature” (Norwick v. Village of Winfield (1967), 81 Ill. App. 2d 197, 199) which, essentially, had no powers other than what was delegated to them by the General Assembly (Chicago School Transit, Inc. v. City of Chicago (1966), 35 Ill. 2d 82, 83-84). The home rule provision of the 1970 Constitution, however, dramatically changed the nature of State-local relations. In Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, our supreme court acknowledged this change. The court explained that the new constitution “conferred substantial powers upon home-rule units” in regard to their own government and affairs “subject only to those restrictions imposed or authorized therein.” (Kanellos, 53 Ill. 2d at 166.) In other words, the constitution basically shifted the inherent power to act on local affairs from the legislature to home rule units.

The power of non-home-rule units, on the other hand, continued to depend upon the legislature, and, without a grant of power, the local government could not act. (Pesticide Public Policy Foundation v. Village of Wauconda (1987), 117 Ill. 2d 107, 111-12; Ross v. City of Geneva (1978), 71 Ill. 2d 27, 31.) We think it is reasonable to conclude that, since its position vis-a-vis non-home-rule governments was unaltered, the legislature continued to delegate power to such units in the same language it had always used.

The language of pre-1970 laws delegated power to municipalities as an undifferentiated group since all municipalities were alike in terms of the source of their power. After 1970, however, as a general rule only non-home-rule units needed grants of power from the legislature. Under these circumstances it is highly unlikely the lawmakers saw any need to indicate expressly, within the statutes themselves, that a given piece of legislation was directed to non-home-rule units. The unaltered character of the relationship between the State and non-home-rule units is persuasive that the amendment to section 11— 12 — 9 applies to Wayne and St. Charles every bit as much as does the rest of the section and all the other pre-1970 statutes which do not specify that they are intended as power grants to non-home-rule communities.

Having concluded that the disputed boundary agreement was authorized, we next consider plaintiffs’ attack on the authorizing statute. The Groenings urge that if section 11 — 12—9 authorized the defendants’ boundary agreement, then that section of the statute is invalid because it conflicts with a number of principles of Illinois municipal law. Some of plaintiffs’ contentions are based on constitutional grounds which will be discussed below. However, under Illinois law plaintiffs assert that the boundary agreement conflicts with section 7 — 1—8 of the Code (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8), which provides for voluntary annexation of territory to a municipality pursuant to a petition filed with the village clerk. The section states:

“The corporate authorities of the municipality to which annexation is sought shall then consider the question of the annexation of the described territory.” (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—8.)

Plaintiffs contend that this language requires a municipality to consider petitions for annexation while the boundary agreement prohibits consideration of their petition to St. Charles. As a result of this contradiction, according to plaintiffs, the boundary agreement should be declared void. This argument is not persuasive.

To begin with, St. Charles’ resolution denying plaintiffs’ request for annexation, which is attached to plaintiffs’ complaint as an exhibit, reflects that plaintiffs’ petition for annexation was considered by the St. Charles corporate authorities. The resolution makes note of a defect in the petition, refers to the boundary agreement with Wayne, and sets forth reasons why annexation would not be in St. Charles’ best interest. Under these circumstances we cannot say St. Charles did not consider the question of annexation as called for in section 7 — 1—8. Moreover, the boundary agreement, which is also attached as an exhibit to the complaint, indicates that Wayne and St. Charles agreed they would not act to annex beyond the boundary line established by the agreement except as specified by the agreement itself or “upon subsequent joint written agreement” between the parties. Neither defendant agreed that it would never contemplate a requested annexation, even if the property involved lay outside its jurisdictional boundary. Section 7 — 1—8 calls for consideration of annexation petitions by a municipality. The boundary agreement, which provides that the parties can agree to an annexation contrary to the agreement, does not prevent such consideration. We perceive no conflict with section 7 — 1—8.

Plaintiffs also complain that the boundary agreement conflicts with section 7 — 1—13, which allows a municipality to annex only up to 60 acres without the property owners’ consent. According to plaintiffs, since Wayne cannot legally annex their property without their consent, it should not be able to require them to annex to Wayne through a boundary agreement. There is no foundation for this argument. Prior to the boundary agreement, plaintiffs had three possible options as revealed by the record. They could annex to St. Charles, annex to Wayne, or remain unincorporated in the county. Since the boundary agreement, plaintiffs still have two of the three options open to them — voluntarily annex to Wayne or remain in the county. Despite plaintiffs’ insinuations, Wayne is not in a position to require them to annex. We note that plaintiffs offer no authority for the assertion that Wayne can require annexation of their property. Since Wayne can neither forcibly annex plaintiffs’ property nor require annexation by plaintiffs, we are hard-pressed to see how the boundary agreement conflicts with the statute.

Plaintiffs further claim that, even if the statute is found to be valid, they should have been allowed to show that defendants did not comply with the conditions of the statute. Specifically, plaintiffs’ original complaint speaks of defendants’ “gerrymandered boundary line.” However, plaintiffs give no facts to show either what they mean by “gerrymandering” in this context or that such an activity occurred. The complaint refers to exhibit “B,” which is the boundary agreement between Wayne and St. Charles. Neither the exhibit standing alone, however, nor the attached map of the boundary line demonstrates that plaintiffs’ property was “gerrymandered,” whatever is meant by that term. In fact, as far as we can determine, the exhibit does not even depict the location of plaintiffs’ property. Also, we are unable to find any condition in the statute pertaining to “gerrymandering.” Regarding the boundary line, the statute says only that “the corporate authorities involved may agree upon a line which shall mark the boundaries of the jurisdiction of each of the corporate authorities who have adopted such agreement.” In their original complaint plaintiffs alleged nothing to show that the defendants did not follow the statute in establishing the line between them.

To summarize, plaintiffs’ count V turned on questions regarding the application and validity of, and compliance with, section 11 — 12— 9. We have found that defendants’ conduct was authorized by a valid statute and that the complaint alleges nothing to adequately show noncompliance. Therefore, we conclude that no set of facts could be proved under count V which would entitle plaintiffs to relief, and dismissal of the count was proper. Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.

Count IV of plaintiffs’ complaint alleged a “Breach of Prospective Economic Advantage.” In this count plaintiffs assert that “defendants’ conduct constitutes tortious interference with the plaintiffs’ prospective economic advantage” but do not allege any new facts. In their appellate brief plaintiffs correctly set forth the elements of the tort they allege, state that the tort is recognized by Illinois courts, and summarily conclude by stating, “[t]he plaintiffs’ complaint establishes the elements of this tort claim; and, therefore, Count IV should not have been dismissed.” We are given no clue as to how each element of the tort is established by the factual allegations of the complaint, or even which facts support which element. And we certainly are not offered any supporting argument. It is beyond question that points raised in a party’s brief but not argued or supported with authority may be deemed waived for purposes of review. (134 Ill. 2d R. 341(e)(7); People v. Dinger (1990), 136 Ill. 2d 248, 254; Eich berger v. Folliard (1988), 169 Ill. App. 3d 145, 149.) A reviewing court is entitled to have issues clearly defined with relevant authority cited and logical arguments presented, and arguments not adequately presented on appeal may be waived. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401; Vincent v. Doebert (1989), 183 Ill. App. 3d 1081, 1087.) This court is not a depository in which a party may dump the burden of argument and research. (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 825.) Plaintiffs’ argument regarding count IV is waived.

We turn now to the Groenings’ contention that, if, as a matter of Illinois law, section 11 — 12—9 provided authority for the annexation provision in the defendants’ boundary agreement, then the statute should be found unconstitutional as applied to their property. The argument urged by plaintiffs goes something like this. They very much anticipated and believed it reasonably likely that St. Charles would annex their property. However, as a result of the boundary agreement, St. Charles has refused to either annex or extend municipal services to their property. Consequently, if they wish to annex at all, or to procure public services, they now have no choice but to annex to Wayne and thereby will be forced to “concede to any and all development demands” made by Wayne. This circumstance deprives them of the reasonable use of and the right to develop their property as they wish. The reason they are so deprived is because, absent annexation to St. Charles, or access to St. Charles’ superior municipal services, the value of their property has decreased. Specifically, plaintiffs cite St. Charles’ superior fire and police sendees; the inability of Wayne and the corresponding ability of St. Charles to provide water and sewer services; St. Charles’ superior tax base; and St. Charles’ development plan, which will give them greater flexibility in developing their property. Finally, plaintiffs emphasize that they had neither input to nor any recourse from the boundary agreement, even though it had this negative effect on their property.

Plaintiffs assert in count I of their complaint that the infringement of their property interest, as just described, is sufficient to constitute a violation of their rights to procedural due process, substantive due process, and equal protection. Count II prays for a declaratory judgment that the boundary line agreement is void and the enabling statute is unconstitutional. Plaintiffs posit in count III that their property was taken without due process in violation of the “takings” clauses of the fifth and fourteenth amendments. We will address each of plaintiffs’ claims in turn.

Plaintiffs complain that they had neither notice of nor the opportunity to object to the boundary agreement and were thereby denied the process due them. In determining whether a party is entitled to due process, either substantive or procedural, he must first establish the existence of a liberty or property interest. (Smith v. Board of Education (7th Cir. 1988), 853 F.2d 517, 520.) To have a property interest a person must have more than a unilateral expectation of it; rather, he must have a legitimate claim of entitlement to it. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701; Creekside Associates, Inc. v. City of Wood Dale (N.D. Ill. 1989), 684 F. Supp. 201, 204.) It is on this most fundamental element of a procedural due process claim, i.e., the nature of the interest at stake, that plaintiffs’ search for relief falters.

Plaintiffs’ ultimate position is that they have been injured because the boundary agreement blocks the annexation they seek, thus causing a decrease in the value of their property. However, plaintiffs can assert nothing to show for sure that St. Charles would have annexed their land if there had been no boundary agreement. St. Charles is under no obligation to annex plaintiffs’ property (see Kaltsas v. City of North Chicago (1987), 160 Ill. App. 3d 302 (and cases cited therein)), and plaintiffs do not contend that the right to develop their property includes a right to annex to St. Charles. Thus, plaintiffs cannot say that they hold what amounts to an entitlement to annexation itself. Also, while it is clear that the Groenings have an interest in increasing the value of the land through annexation, we can think of no circumstances in which such an interest, standing alone, could be characterized as an entitlement rather than an expectancy.

Evidently recognizing the need for a more viable basis for their claims, the Groenings make a rather sketchy argument that their protected interest is the right to petition for annexation and that this interest has been raised to the level of an entitlement by the Illinois statute which provides for annexation by petition. Since it is an entitlement, the argument goes, the right to petition may not be denied without notice and a hearing. Under the circumstances of this case, plaintiffs’ contention makes little sense. According to their complaint they did, in fact, petition for annexation. To the extent the statute gives them the right to so petition, they exercised that right. Too, plaintiffs cite no authority, and we have found none, for the proposition that the right to petition for annexation is a protected entitlement. We conclude that the right asserted by plaintiffs does not amount to an entitlement and is not sufficient to sustain a due process challenge to section 11 — 12—9.

We next consider plaintiffs’ substantive due process challenge. The application of land use regulations offends substantive due process rights if such application is arbitrary, unreasonable, or capricious and does not bear a substantial relationship to the public welfare. (Safanda v. Zoning Board of Appeals (1990), 203 Ill. App. 3d 687, 695.) This statement of principle assumes that application of the regulation is sufficiently intrusive on the plaintiff’s right to use his property to trigger a constitutional inquiry. In this case we do not think plaintiffs have alleged any such intrusion.

Plaintiffs posit that, as a result of the boundary agreement, their right to the reasonable use of their property has been infringed. This cannot be so. The boundary agreement was just that — an agreement regarding the municipalities’ future conduct and nothing more. Neither St. Charles nor Wayne did anything to affect the use of the property one way or another. At all times the Groenings’ land has been located in the county and subject to county regulations. The uses of the property currently possible within the county have not changed. Also, the agreement neither caused the plaintiffs’ property to be annexed to Wayne, nor to be deannexed by St. Charles. At the very most, the only thing that has changed is the viability of plaintiffs’ opportunity for annexation to St. Charles. All the plaintiffs can say regarding damages is that, due to the agreement, they may not be able to get as much money out of their property as they possibly could have if it were annexed by St. Charles. What plaintiffs really seem to want is for St. Charles to act to increase the value of their property. This St. Charles is not obligated to do.

Plaintiffs’ argument assumes that their property rights include an unassailable right to do that which will increase the value of their land. We note that the cases invoked by plaintiffs in this regard are zoning cases. In zoning cases, however, the actual use of property is denied or limited by the offending regulation. (State of Washington ex rel. Seattle Title Trust Co. v. Roberge (1928), 278 U.S. 116, 73 L. Ed. 210, 49 S. Ct. 50 (zoning ordinance made specific use contingent on consent of two-thirds of neighboring owners); Nelson v. City of Rockford (1960), 19 Ill. 2d 410 (application of zoning ordinance unreasonably restricted use to one and two family residences); Trust Co. v. City of Chicago (1951), 408 Ill. 91 (amendment to ordinance unreasonably down-zoned property for benefit of only a few residents); DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357 (refusal to rezone unreasonable where owner heavily impacted by present zoning and rezoning would benefit public interest); Kraegel v. Village of Wood Dale (1973), 10 Ill. App. 3d 486 (refusal to allow 23 units more than allowed by zoning ordinance unreasonable where ordinance allowed similar densities and proposed use would benefit community); Brown v. Board of Zoning Appeals (1959), 21 Ill. App. 2d 273 (variance from zoning ordinance unreasonably denied where petitioners met requirements for variance, no detriment to public good shown, and denial depreciated value of plaintiff’s property).) In each instance a municipality either took some distinct action or refused to act in a manner which had an identifiable, negative effect on the plaintiff’s right to use his property. In contrast, the action taken by St. Charles and Wayne had no effect on the Groenings’ existing rights to use their property. The present zoning and/or uses of the land remained exactly as they had been before the agreement. No new regulations or restrictions were imposed. No existing permissible uses were denied or limited. The zoning cases give little support to plaintiffs’ position.

The only effect of the boundary agreement on the Groenings was that they lost one option, not for the use of their land, but as to which community they wished to join, along with the corresponding effect on the value of their land. Even that option was never more than an expectation since St. Charles could have decided not to annex the property even without the boundary agreement. The deprivation suffered by plaintiffs was highly speculative at best. Even if we assume that St. Charles would have annexed them absent the agreement with Wayne, the only benefit lost as a result of the agreement was the increased value they allegedly would have enjoyed. While economic effect may be a factor in zoning cases (see DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357, 363), as we have pointed out, those cases affect land use. This case presents something even less than a land use issue. Deprivation of mere hoped-for economic gain is, in our opinion, a minimal incursion, if it is an incursion at all, into plaintiffs’ property rights. As such, it is not a deprivation in the constitutional' sense and does not raise due process concerns. See Coniston Corp. v. Village of Hoffman Estates (7th Cir. 1988), 844 E2d 461, 466.

Plaintiffs’ next contention, an equal protection claim, is based on allegations that, but for the boundary agreement, St. Charles would consider their annexation petition, or, alternatively, their request for municipal utility services, in the same manner it considers such requests from other petitioners. Plaintiffs urge that they are being treated differently from similarly situated landowners in the unincorporated area between Wayne and St. Charles since some of those owners are receiving services from St. Charles. We believe we have already addressed plaintiffs’ contention regarding their petition for annexation. Plaintiffs did petition, and St. Charles did consider the petition. The complaint makes no factual allegations showing how the consideration given their petition differed from that given to other petitions.

As to the Groenings’ contentions regarding provision of services, the complaint alleges that as a result of the boundary line agreement St. Charles will not provide sewer, water, fire protection, police protection, road maintenance, or other municipal services to the plaintiffs’ property. St. Charles points out, and review of the complaint confirms, that plaintiffs did not allege that they ever applied for such services. Plaintiffs’ only response is that St. Charles' summary denial of their annexation request supports the allegation. We have carefully examined St. Charles’ “Resolution Denying a Petition for Annexation (Groenings),” as it is found in the record, and observe that it is limited to discussion of the petition for annexation. There is nothing in the resolution to indicate that St. Charles was either asked to or refused to extend services to the Groenings’ land. In their reply brief plaintiffs propose that it would have been a useless act for them formally to request services, but again do not explain why. We think the allegation that St. Charles will not provide services is an unsupported conclusion of fact which we need not take as admitted (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273). Standing alone, plaintiffs’ insistence that St. Charles will not service their property is not enough to trigger constitutional equal protection.

Even if we accepted plaintiffs’ allegations regarding St. Charles’ refusal to annex their property, we still could not find that their complaint stated a cause of action for violation of their equal protection rights. A legislative enactment challenged on equal protection grounds is presumptively valid unless it impinges on a fundamental right or a suspect classification (In re Estate of Karas (1975), 61 Ill. 2d 40, 47) and will be upheld if it is rationally related to a legitimate governmental purpose (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 226). Plaintiffs do not allege that they are members of a suspect class. Nor do they appear to argue that their interest amounts to a protectable, fundamental right. In fact, while plaintiffs’ initial brief cites numerous cases, it neither explains how the principles of those cases are applicable to this case nor makes any argument based on the cited cases. In their reply brief, regarding this issue, plaintiffs do nothing more than attempt to distinguish defendants’ authorities. Nevertheless, we look beyond plaintiffs’ brief to the substance of their argument.

In an equal protection challenge the burden of rebutting the presumptive validity of the legislative classification is upon the party bringing the challenge. (Karas, 61 Ill. 2d at 47-48.) Plaintiffs’ complaint does not reflect an ability to carry the necessary burden. The resolution denying the Groenings’ annexation petition is attached as an exhibit to the complaint. In the resolution, the St. Charles city council found that the annexation of the Groenings’ property would not promote the sound planning and development of the city. This finding was supported by a number of persuasive reasons. Plaintiffs’ allegations pertaining to equal protection do not address these reasons or attempt to show in any way that they are not rationally related to a legitimate governmental purpose. Thus, we conclude that the claims in the complaint are conclusional where they state, with nothing more, that St. Charles’ refusal to deal with plaintiffs is “arbitrary and unreasonable” and “bears no substantial relationship to the public health, safety or welfare” of St. Charles. Such legal conclusions are insufficient to rebut the presumption that St. Charles’ conduct in denying the Groenings’ petition for annexation was valid. All in all, plaintiffs’ complaint does not state a cause of action for violation of equal protection rights.

The Groenings’ last constitutional contention is that defendants have taken their property without paying for it. Count III alleges that St. Charles’ conduct, along with the boundary agreement, “effectively deprived the plaintiffs of the reasonable use of their property” in violation of the fifth and fourteenth amendments to the United States Constitution. Plaintiffs’ appellate brief, however, does not discuss whether the complaint states a cause of action for taking and, in fact, fails even to set forth the elements of a taking claim. Instead, plaintiffs make a series of conclusionary, and sometimes accusatory, statements, with no citation to the record or supporting authority. The balance of plaintiffs’ appellate argument focuses exclusively on the question of damages. Consequently, we are given little in the way of substance regarding plaintiffs’ taking challenge. However, we note that the complaint itself focuses heavily on the allegation that plaintiffs are deprived of the reasonable use of their property. As we have already discussed, this is simply not so since the boundary agreement affected only the way plaintiffs hoped to incorporate their land, not its present possible uses. More significantly, plaintiffs make no factual allegations that they cannot reasonably develop their property in Wayne or in the county. Thus, we are not persuaded that count III states a taking cause of action.

In summary, we find that no set of facts could be proved under counts I, II, or III of the complaint which would entitle plaintiffs to relief. Accordingly, the trial court did not abuse its discretion in dismissing those counts. Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.

Plaintiffs appeal also from the trial court’s denial of their motion for leave to amend the complaint. The record indicates that, before he denied the motion, the trial judge reviewed the differences between the original and the proposed amended complaint. The court subsequently directed that plaintiffs’ proposed complaint be included in the record for appellate review. Plaintiffs insist that they should have been allowed to file their amended complaint. It appears to us that, for all practical purposes, they were allowed to file. The trial court reviewed the amended complaint, and it is now before us for review. Obviously, the trial court found that plaintiffs’ complaint still did not state a cause of action.

We have studied the proposed amended complaint. While it requests additional relief, it does not add any new or different causes of action or any decisive new facts. Defendants acknowledge that plaintiffs added a factual allegation that the boundary line agreement should be declared invalid because the defendants failed to give adequate consideration to the natural flow of storm water drainage. Municipalities are required to give such consideration when arriving at an agreement for a jurisdictional boundary line pursuant to section 11 — 12—9. However, defendants also note that the agreement itself, which was attached by plaintiffs as an exhibit to their proposed amended complaint, states:

“WHEREAS, the corporate authorities of St. Charles and Wayne have given consideration to the natural flow of storm water drainage, ***.”

Where there is a conflict or discrepancy between the pleaded facts and facts set forth in attached exhibits, the exhibits are controlling and a motion to dismiss does not admit allegations in conflict with facts disclosed by an exhibit. (Sangamon County Fair & Agricultural Association v. Stanard (1956), 9 Ill. 2d 267, 276; Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 1060; Hardy v. Montgomery Ward & Co. (1971), 131 Ill. App. 2d 1038, 1043-44.) Here there is a direct conflict between plaintiffs’ allegation and the statement made in the agreement. Accordingly, it was not enough for plaintiffs merely to assert a contradictory conclusion. They needed to set forth facts to show in what manner defendants’ consideration of storm water drainage was inadequate.

We conclude that the proposed amended complaint was no more effective than the original complaint in showing that a set of facts could be proved which would entitle plaintiffs to relief. Thus, the trial court did not abuse its discretion when it terminated the litigation.

As a final. matter, we consider certain motions which were ordered to be taken with the case. The Groenings moved to strike part of each defendant’s brief. Specifically, they ask that we strike the appendix and a footnote of St. Charles’ brief. Both the appendix and footnote refer to a judgment order in another case involving the Groenings’ property. Plaintiffs posit that the references are outside the record of this case and constitute an improper attempt to prejudice their rights. In an objection to the motion St. Charles states that the Groenings’ request is untimely and an attempt to supplement their reply brief. Defendants urge that the matters raised in the motion, which was filed more than a month after plaintiffs’ reply brief, could have been, but were not, raised in the reply brief.

We perceive no persuasive reason to grant plaintiffs’ motion. The material plaintiffs find objectionable in St. Charles’ brief is obvious and apparent. Defendant made no attempt to disguise its use of the prior judgment order. Nor did defendant claim or try to show that the order was relevant to disposition of the issues in this case. While we do not approve of defendant’s use of what appears to be an essentially extraneous judgment order, plaintiffs did not mention the matter in their reply brief and do not now explain why they delayed in bringing it up. Their motion does not delineate, and we cannot discern, how they are prejudiced by defendant’s reference to the prior judgment. (See South v. Franzen (1980), 90 Ill. App. 3d 595, 599-600.) Under these circumstances we think plaintiffs have waived their objection to St. Charles’ brief. The motion is denied.

Plaintiffs also request that a statement in Wayne’s brief, asserting that the plaintiffs have not made any rezoning requests to St. Charles, be stricken on the ground that there is no support in the record for the statement. Alternatively, plaintiffs ask leave to supplement the record with an affidavit and exhibits showing that they did, in fact, ask St. Charles for rezoning. Like St. Charles, Wayne objects to the untimely filing of the motion. Wayne also contends that the challenged statement is not inconsistent with the record and urges that it is a belated attempt to amend plaintiffs’ complaint. We need not address the questions raised by these claims because we agree with Wayne that the matter of a zoning request by plaintiffs is irrelevant to the issues before us, and the statement by Wayne, even if it is erroneous, is innocuous and causes no prejudice to plaintiff. Plaintiffs’ tardy effort to eliminate that statement does not warrant the relief requested. The motion to strike is denied.

Based on the reasoning set forth above, the orders of the circuit court of Kane County which terminated this litigation are affirmed.

Affirmed.

GEIGER and WOODWARD, JJ., concur.