author: JUSTICE LEWIS

text:
    JERRY CLARK EQUIPMENT, INC., Plaintiff-Appellee, v. ROGER HIBBITS, d/b/a A A A Bookkeeping Service, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0640
    Opinion filed April 12, 1993.
    Rehearing denied May 17, 1993.

      Roger M. Hibbits, of Clayton, Missouri, appellant pro se.

    David L. Antognoli, of Bernard & Davidson, of Granite City, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This case is on appeal from a judgment entered on a jury verdict finding the defendant, Roger Hibbits, doing business as A A A Bookkeeping Service, negligent in performing accounting and tax services for the plaintiff, Jerry Clark Equipment, Inc. Defendant raises several issues on appeal. For the reasons more fully explained hereinafter, we affirm the trial court.

We first summarize the procedural history of the case. Plaintiff filed a motion for preliminary injunction on August 15, 1988, alleging that defendant had performed accounting and tax services for plaintiff through his A A A Bookkeeping Service (AAA), that plaintiff had terminated defendant’s services as of April 1988, and that despite repeated demands for plaintiff’s corporate books and records, defendant had failed and refused to turn over the requested records. Defendant then filed an answer and counterclaim. On September 1, 1988, the trial court conducted an evidentiary hearing, at which time defendant turned over a portion of plaintiff’s records. The court denied plaintiff’s motion for preliminary injunction and instructed the parties that their future remedies were through legal rather than equitable actions, and that plaintiff could raise any issues regarding additional records needed through discovery proceedings.

On December 14, 1988, plaintiff filed its amended complaint, which alleged that defendant negligently failed to perform accounting services and negligently failed to prepare corporate income tax returns for three years and requested compensatory and punitive damages. On May 12, 1989, defendant filed its answer to the amended complaint, an amended counterclaim, and a third-party petition against Boris Elieff (Elieff), the former owner of AAA. On February 8, 1991, the court entered an order which found defendant’s third-party complaint to be “abandoned.”

Finally, on June 19, 1991, the jury trial began on plaintiff’s amended complaint and defendant's counterclaim. For purposes of this opinion, we will summarize the evidence submitted to the jury in this three-day trial. As particular evidence relates to the issues involved, we will detail that evidence specifically as it applies to the issues.

From 1966 until November 1, 1985, Elieff had owned and operated AAA, which did accounting and tax work for its clients. From 1980 until the business was sold to defendant, Elieff had performed all of the personal and corporate accounting and tax work for plaintiff. Elieff sent out monthly statements for $75 to plaintiff for all work done by AAA for each month. Plaintiff paid the $75 fee promptly each month after receipt of the bill. Plaintiff was a sole proprietorship until April of 1984, when it was incorporated. Elieff set up the corporation and prepared the initial corporate income tax return for filing.

Both before and after the sale to defendant, Diane Timmons (Timmons), plaintiff’s secretary and an officer of the corporation, stopped by AAA each month to drop off papers or sign documents. Timmons would customarily pick up any tax returns that needed to be filed, and she would mail them herself. She testified that she did not read the tax returns or other tax papers before signing them, because she trusted the accountants, both Elieff and defendant, to take care of all tax matters.

When defendant purchased AAA on November 1, 1985, he and Elieff entered into a written purchase agreement. Under the agreement, Elieff agreed to continue to work for defendant for six months, to smooth the transition to the new owner, to introduce defendant to AAA’s clients, and to finish up some of his work. Elieff decided to retire because he was going blind. After the sale to defendant, while he was still working at AAA, Elieff's eyesight was “very, very poor.” Both Timmons and Elieff testified that at or near the time defendant bought AAA, Elieff introduced Timmons to defendant. Timmons testified that defendant was introduced as a certified public accountant (CPA) and a tax attorney. She agreed to allow defendant to continue plaintiff’s accounting work after the sale. Defendant disputed that he had met Timmons before the sale and that he was introduced to her as a CPA and tax attorney.

Prior to February 15, 1987, the due date for plaintiff’s 1986 fiscal-year corporate income tax return, defendant asked Timmons to try to find her copy of the corporate return for the prior year. Timmons testified that defendant did not tell her that he could not find his copy of the 1985 return but only that he needed more information in order to prepare the 1986 corporate return. She told defendant that she did not keep copies of tax returns, because she thought AAA kept copies of everything. She looked for a copy but did not find one. Defendant did not remember if he had talked to Timmons about the missing return. Defendant testified that he went to plaintiff’s place of business and asked Jerry Clark (Clark), the owner, about the return. Clark denied that defendant ever spoke to him about the missing return.

At the end of 1986, or the beginning of 1987, defendant also asked Timmons to provide him with additional information for the 1986 fiscal year. Defendant did not give Timmons a list of information to return to defendant. She prepared a master list of expenditures for the period and gave it to defendant. Defendant acknowledged that Timmons gave him the requested information but stated that the information provided raised new questions that required even more information to answer. The testimony regarding whether or not defendant asked for the additional information he needed was disputed. However, the evidence was undisputed that defendant never told Timmons or Clark that he could not prepare the 1986 return without the additional information, and it was undisputed that he did not tell them that the 1986 return was not prepared.

During defendant’s ownership of AAA, Timmons had four to six conversations with him. When she talked to defendant, she always asked him if she needed to do anything else. She told him that if he needed anything else done, to let her know, and she would get it done. She testified that defendant responded each time that everything was taken care of, and if anything else was needed, he would let her know.

Defendant billed plaintiff three times, always for the same fee Elieff had charged, $75 per month. The last statement was mailed to plaintiff in September of 1986 and covered defendant’s services for the months of June, July, and August of 1986, which plaintiff promptly paid. Defendant testified that the $75 fee covered all of plaintiff’s accounting work, including corporate income tax returns.

Defendant testified that he never prepared the 1985, 1986, or 1987 corporate income tax returns for plaintiff, even though he did prepare Clark’s personal returns for each of those years. Defendant testified that in July of 1987, he “assumed” that he was fired after he received a note from his daughter, who was an employee of AAA. That note, which was admitted into evidence, stated that Timmons had come into the office, that she was upset over a mistake defendant made in some of plaintiff’s tax forms, and that she was looking for a new CPA. Defendant testified that after he received the note, he felt that he was fired. However, he admitted that he was never told by either Timmons or Clark that he was fired, that he never directly or indirectly informed Timmons or Clark that he was terminating any accounting services on their behalf, and that he continued to do all of the rest of the accounting and tax work for those years, with the singular exception of not preparing the annual corporate income tax returns.

In April of 1988, Timmons became concerned over the manner in which defendant prepared Clark’s 1987 personal income tax return. In May of 1988, she mailed defendant a letter terminating AAA’s accounting services, requesting a bill from defendant for all prior services, and asking defendant to return all of the corporation’s records. A couple of weeks passed, and Timmons had received neither a bill nor the records from defendant, so she began to call AAA. Timmons was not successful in retrieving the records. She finally hired an attorney, but the attorney’s letters to defendant also failed to secure the records. Plaintiff filed its motion for preliminary injunction on August 15,1988.

Gary Eichom, the accountant plaintiff hired after firing defendant, testified as an expert witness, over defendant’s objections. He testified that he prepared plaintiff’s State and Federal corporate income tax returns for fiscal years 1985, 1986, and 1987. Each of the returns was filed on February 17, 1989. The penalties and interest assessed for all of the returns and not abated totalled $8,033.60. His accounting fees totalled $7,940.50. Additionally, because defendant did not give plaintiff certain minimal tax advice, plaintiff incurred unnecessary tax liability amounting to $2,285. The total of plaintiff’s actual damages was $18,324.82.

Eichorn also testified that, in his opinion, defendant had not maintained plaintiff’s accounting records and books in a manner consistent with that required of an accountant possessing ordinary competence for plaintiff’s geographical area. His opinion was based entirely upon his own review of the books and records maintained by defendant during the period of November 1, 1985, through April of 1988. He testified that the customary scope of an accountant’s duties for a closely held corporation, such as plaintiff, would include all regular accounting work, including tax planning and the timely preparation of all corporate income tax returns.

Eichorn testified that if an accountant desired to limit the scope of his duties, he should write a letter stating this to the client, specifically stating which accounting activities were to be terminated. He testified that an accountant should not terminate services based only upon the note defendant received from his daughter in July of 1987. If an accountant needs additional information before preparing a tax return, an ordinarily competent accountant would make a specific request in writing to the client specifying exactly what is needed and when. If the return cannot be prepared without the information, the accountant should inform the client in writing that the return cannot be prepared until all of the information is provided.

The jury returned a verdict in favor of plaintiff, awarding actual damages to plaintiff in the amount of $18,324.82 and punitive damages in the amount of $18,000. The jury also returned a verdict in favor of defendant on his counterclaim for unpaid accounting fees, awarding him $1,000 of the $1,500 requested. Defendant appeals the judgments on the jury verdicts in favor of plaintiff. Plaintiff does not appeal the $1,000 judgment in favor of defendant.

Although defendant does not clearly articulate the issues in his brief, he apparently raises the following issues on appeal: (1) whether plaintiff can recover purely economic damages in a negligence case; (2) if plaintiff cannot recover purely economic damages, whether plaintiff has sufficiently proved a claim for breach of contract against defendant; (3) whether Elieff was liable for preparing the 1985 return instead of defendant; (4) whether plaintiff was contributorily negligent; (5) whether the trial court erred by allowing Eichorn to testify; (6) whether the actual damages awarded were excessive; and (7) whether the award of punitive damages was proper.

Defendant’s first argument is based upon what is now called the “Moorman doctrine.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.) The general rule established by Moorman is that purely economic losses are not recoverable in a negligence action. Therefore, defendant argues, the losses suffered by plaintiff, which are undeniably and solely economic losses, cannot be recovered via plaintiff’s negligence complaint. However, Moorman recognizes that there are exceptions to the general rule. For example, economic loss is recoverable where “one who is in the business of supplying information for the guidance of others in their business transactions makes negligent misrepresentations.” Moor-man, 91 Ill. 2d at 89, 435 N.E.2d at 452.

Plaintiff argues, and we agree, that this lawsuit is covered by the exception to the Moorman doctrine rather than the general rule. The exception to Moorman, as applied to an accountant in a negligence case, is dealt with in Congregation of the Passion, Holy Cross Province v. Touche Ross & Co. (1991), 224 Ill. App. 3d 559, 586 N.E.2d 600, appeal allowed (1992), 144 Ill. 2d 632, 591 N.E.2d 20. In the Congregation case, the accounting firm was sued for malpractice under a tort theory of negligence. The jury verdict against the accounting firm was contested on appeal as in violation of the Moorman doctrine. The court specifically held that the general rule of Moorman does not apply to accountants charged with negligent misrepresentation, where the accountant is in the business of giving information to clients to be used in the client’s business transactions. (Congregation of the Passion, Holy Cross Province v. Touche Ross & Co. (1991), 224 Ill. App. 3d 559, 586 N.E.2d 600.) The court in the Congregation case recognized that all malpractice by an accountant rests in some degree upon a violation of the parties’ contracts, and as a result, it is proper to plead the case in either tort or contract or both. (Congregation of the Passion, Holy Cross Province v. Touche Ross & Co. (1991), 224 Ill. App. 3d 559, 586 N.E.2d 600.) The same rule applies to attorney malpractice, which can also sound in tort or contract. Collins v. Reynard (1992), 154 Ill. 2d 48, 50.

Thus, based upon the reasoning of both the Congregation and the Collins cases, we hold that the jury verdict finding defendant negligent in providing accounting services to plaintiff is not barred by the Moorman doctrine. In holding that plaintiff was not required to bring this action under a contract theory, we do not have to reach defendant’s second argument, that plaintiff did not properly plead or prove breach of contract.

Defendant next argues that the trial court should not have announced to the jury that Elieff was an employee of defendant, and because of the error, the verdict should be reversed. Although defendant’s argument on this issue is not at all coherent, we assume that he apparently seeks to avoid his own liability by arguing that Elieff was an independent contractor, and that, therefore, Elieff alone was responsible for preparation of plaintiff’s 1985 corporate return. However, defendant does not state any reason to absolve him of responsibility for failure to file corporate returns for three years, when, at most, Elieff was working for or contracted with defendant for six months of those three years. Plaintiff, on the other hand, asserts that Elieff was clearly an employee, not an independent contractor, and therefore, the instructions to the jury on this issue were proper. We find that, under the facts of this case, it does not matter whether Elieff was hired as an employee or contracted as an independent contractor with defendant.

Defendant makes an argument in which he confuses the concept of an independent contractor with what should be a subcontractor. There is no evidence that plaintiff in any manner, shape, or form contracted with Elieff or controlled and oversaw the work of Elieff. Therefore, Elieff could not and was not an independent contractor as to the plaintiff. Elieff possibly could have been an independent contractor as to defendant, depending on the construction of the contract between defendant and Elieff. At best, Elieff would only be a subcontractor in relation to the plaintiff. There simply is no privity of contract between plaintiff and Elieff or facts that indicate that Elieff owed a duty to plaintiff to do plaintiffs tax work after Elieff sold his business to defendant. The defendant’s argument on this point is without merit because he cannot escape liability even if we were to find Elieff negligent, which we cannot and will not do within this appeal. “[0]ne guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury, even though the injury would not have occurred but for the negligence of the other person.” Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 889, 443 N.E.2d 214, 219.

Therefore, the only issue before this court is whether the defendant was negligent. On review, when the jury verdict of negligence is challenged, the issue is whether the verdict is against the manifest weight of the evidence, when the evidence is viewed in the light most favorable to the plaintiff. (Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 568 N.E.2d 463.) We cannot find that the verdict in this case was against the manifest weight of the evidence on the issue of defendant’s negligence.

The standard of care for an accountant, such as defendant, is a “very high level of professional responsibility,” similar to that required of other professionals, such as attorneys and doctors. (Margolies v. Landy & Rothbaum (1985), 136 Ill. App. 3d 635, 638, 483 N.E.2d 626, 629.) We cannot say that defendant’s work for plaintiff shows a very high level of professional responsibility, regardless of whom he employed or in what capacity. On the contrary, the evidence clearly demonstrates that defendant’s failure to prepare the corporate returns for 1985 through 1987 was professionally irresponsible and negligent.

Defendant next argues that there was clearly contributory negligence on the part of plaintiff because neither Timmons nor Clark made any effort to assure that the corporation’s returns had been filed. However, defendant does not cite a single case or any other authority to support his contention. Therefore, we could find that defendant has waived this argument on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) Nevertheless, we will briefly discuss this issue.

Plaintiff correctly points out that a defendant claiming contributory negligence on appeal has the burden to demonstrate that the evidence, when viewed most favorably to the plaintiff, overwhelmingly requires a finding of contributory negligence on the part of the plaintiff. (Rainey v. City of Salem (1991), 209 Ill. App. 3d 898, 568 N.E.2d 463.) Because we have already fully summarized the evidence, we need not detail the evidence again. Suffice it to say that the jury’s determination that plaintiff was not contributorily negligent was not against the manifest weight of the evidence. Accordingly, we find defendant’s claim of contributory negligence to be without merit and unsupported by the evidence presented by either side at trial.

Defendant next argues that the trial court erred by allowing the expert witness to testify. However, once again, defendant does not present a single authority to support his contention. Under the rule of Britt, defendant has waived this issue on appeal, for failure to cite relevant authority to support his argument. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) Nevertheless, we do wish to make it clear that, from our review, Eichorn was properly qualified to testify as an expert in this case, given the fact that he had been an accountant for 29 years and worked for a CPA firm at the time of trial.

The fact that Eichorn is not a CPA himself, but only worked for a CPA firm, is not dispositive of the issue of whether he was qualified to testify as an expert on accounting standards. Eichorn’s qualification as an expert was a matter of the trial court’s sound discretion, and that decision should not be overturned absent a gross abuse of that discretion. (National Surety Corp. v. Fast Motor Service, Inc. (1991), 213 Ill. App. 3d 500, 572 N.E.2d 1083.) To qualify as an expert, one must possess specialized knowledge beyond that of an average person on a matter of fact related to the litigation. (National Surety Corp. v. Fast Motor Service, Inc. (1991), 213 Ill. App. 3d 500, 572 N.E.2d 1083.) The trial judge was presented with sufficient information regarding Eichorn’s knowledge, training, skill, experience, and education to qualify Eichorn as an expert on the issue of what standard of conduct applies to accounting firms and CPA’s, such as defendant.

The next part of defendant’s argument is that the expert should not have testified regarding the standard of care applying to CPA’s, since AAA is merely a bookkeeping service. Even though defendant has technically waived this issue, we will briefly discuss why this argument fails. The facts clearly show that defendant, the owner of AAA, was a CPA and an attorney, practicing since 1961, with a master’s degree in taxation. After defendant purchased AAA, plaintiff hired defendant to continue its accounting work, at least in part based upon defendant’s qualifications. Timmons testified that she made the decision to stay with AAA because she thought defendant would do an even better job of taking care of the corporation’s taxes, since he was both a CPA and attorney and Elieff was neither.

As a CPA and tax attorney, defendant cannot magically insulate himself against his own negligence by calling the business that he purchased a bookkeeping service. It does not matter what he calls his business. What matters is the nature of the obligation he undertakes for the client. (Margolies v. Landy & Rothbaum (1985), 136 Ill. App. 3d 635, 483 N.E .2d 626.) The obligation defendant undertook for plaintiff was the same as the obligation Elieff undertook when Elieff owned the business, which included, at a minimum, preparation of corporate tax returns and giving tax advice to the plaintiff. Defendant did neither and, therefore, failed to perform his duty to plaintiff. Furthermore, defendant either held himself out to plaintiff as a CPA or did nothing to dispel that belief by action or word. Therefore, the expert testimony regarding the standards and practices expected of a reasonably competent CPA were relevant to the jury’s determination of defendant’s negligence. Allowing Eichorn’s testimony on these matters was not error, because he was qualified, the subject matter was highly relevant to the jury’s determination of the ultimate issue of defendant’s negligence, and the standard of care to which an accountant or an accounting firm should be held is a proper subject of expert testimony. Margolies v. Landy & Rothbaum (1985), 136 Ill. App. 3d 635, 483 N.E.2d 626.

Defendant’s next argument is that the actual damages assessed by the jury were improper. Again,' defendant does not cite a single authority to support his proposition. We invoke the rule of Britt again to find that defendant has waived this argument on appeal for failure to cite relevant authority to support his claim. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) The jury verdict assessing actual damages was based entirely upon matters of record and was for damages actually sustained by plaintiff as a result of defendant’s negligence, and as such, the actual damages awarded to plaintiff were proper.

Defendant’s final argument is that the jury should not have been allowed to consider the issue of punitive damages because there was no evidence from which the court could instruct on punitive damages, and that the verdict finding punitive damages should be reversed as against the manifest weight of the evidence. Defendant does cite authority on this issue, at least regarding the general rule that punitive damages are not favored and, because of their penal nature, the courts should be cautious to insure that they are not improperly or unwisely awarded. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) However, as plaintiff points out, it is equally well established that liability for punitive damages is supported where the wrong involves some violation of duty springing from a relation of trust or confidence, or where the fraud is gross, or the case presents other extraordinary or exceptional circumstances clearly showing malice and wilfulness. Central Bank v. Ziaee (1989), 188 Ill. App. 3d 936, 947, 544 N.E.2d 1121,1127.

The evidence presented to the jury amply demonstrated that defendant, contrary to the trust and confidence plaintiff placed in him as an accountant, was guilty of acting with such gross negligence toward plaintiff as to indicate a wanton disregard of plaintiff’s interest in not violating the Federal and State tax laws and in not running afoul of the Internal Revenue Service. Our former discussion of the evidence is replete with examples of defendant’s utter disregard of his duty to plaintiff as an accountant and tax preparer, not the least of which is defendant’s failure to inform plaintiff that he could not and did not prepare the 1986 return after not being able to locate a copy of the 1985 return. Under the circumstances, for defendant to continue to perform all other accounting duties but to indirectly conceal the fact that he had not prepared a 1986 return would be sufficient alone to submit the case to the jury on the question of punitive damages. The facts, however, demonstrate numerous other examples of defendant’s wilful and wanton disregard in his duty to plaintiff, including refusal to turn over plaintiff’s records to plaintiff, necessitating a lawsuit. Therefore, we hold that the award of punitive damages was proper and not excessive so as to send a message to defendant and all accountants throughout the State not to undertake preparation of tax returns for a client and then conceal the fact that the tax returns were not prepared or filed. National Bank v. Doss (1986), 141 Ill. App. 3d 1065,1073-74, 491 N.E.2d 106, Ill.

For the reasons stated above, we affirm the jury verdicts and judgments against defendant.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    BARRINGTON COMMUNITY UNIT SCHOOL DISTRICT No. 220, Plaintiff-Appellant, v. SPECIAL EDUCATION DISTRICT OF LAKE COUNTY et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0716
    Opinion filed May 6, 1993.

      James C. Bakk, of Law Offices of James C. Bakk, of Waukegan, for appellant.
    Anthony G. Scariano, Anthony Ficarelli, and Sarah R. Carlin, all of Scariano, Kula, Ellch & Himes, Chartered, of Chicago, for appellee Special Education District of Lake County.
    Mildred F. Haggerty, of Haggerty, Koenig & Hill, Chartered, of Chicago, for appellee SEDOL Teachers Union.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Barrington Community Unit School District No. 220, appeals the dismissal of count II of its complaint. That count sought declaratory relief in a contractual dispute between itself and defendant Special Education District of Lake County (SEDOL). Defendant SEDOL Teachers Union (Union) moved to dismiss the complaint for lack of subject-matter jurisdiction, and the court granted the motion. The sole issue for review is whether the trial court erred in finding that it lacked subject-matter jurisdiction to consider a declaratory judgment action involving the rights of two school districts under an existing contract.

On May 1, 1992, plaintiff filed a two-count complaint. Count I sought an injunction to stay arbitration proceedings. Plaintiff alleged that it was a member of SEDOL, a cooperative school district which provided special education services. The member district relationship was governed by an article of joint agreement of SEDOL and by certain provisions in a supplement to an agreement between SEDOL and the Union (Supplement). Plaintiff further alleged that it had been notified that certain of its acts in the “take back” of programs were the subject of a grievance filed by the Union. Plaintiff did not have a collective bargaining agreement with SEDOL. SEDOL’s attorney advised plaintiff that if it failed to participate in the arbitration, plaintiff may be collaterally estopped from asserting its position, and any rights it possessed to “take back” programs may be forfeited, if the arbitration result is favorable to the Union. Plaintiff believed that the arbitration related to the contractual relationship between itself and SEDOL, specifically, the program “take backs.” Plaintiff alleged that its contractual relationship with SEDOL was a nondelegable, nonarbitrable discretionary responsibility of plaintiff. It reasoned that since it is not a party to an arbitration agreement, and the subject-matter of the arbitration was the intergovernmental contractual relationship between plaintiff and SEDOL, the arbitration should be enjoined or stayed.

In count II, directed solely against SEDOL, plaintiff alleged that on January 13, 1992, it advised SEDOL that it was taking back certain programs. As part of the “take back,” plaintiff determined that there would be no employment vacancies. Plaintiff alleged that its acts of notifying SEDOL of the “take backs” were in compliance with the Supplement. Plaintiff requested a declaration of its rights and SEDOL’s rights under the Supplement relating to program “take backs,” and a declaration that plaintiff properly exercised its rights and discharged its responsibilities.

Plaintiff attached to its complaint the articles of joint agreement of SEDOL. This document set forth the provisions for a governing board for SEDOL, an executive board and its duties, and the obligations of the member districts. Those obligations were limited to providing classrooms, sharing in administrative costs, sending, representatives to meetings, and paying a tax for SEDOL. The joint agreement further delineated terms regarding SEDOL operating as a district. The SEDOL teachers were to be considered faculty members of the member district to which they were assigned, with the member district and SEDOL sharing supervisory responsibilities. The SEDOL teachers had their own salary schedule determined by the executive board of SEDOL. The chief administrator of SEDOL had the responsibility for the certification and special education approval of the SEDOL teachers assigned to the member districts. Member districts could charge SEDOL a room rental. The agreement further provided for the involuntary removal of a member district and for withdrawal from SEDOL. Finally, SEDOL was authorized to employ teaching staff and to discipline and discharge employees.

Plaintiff also appended a copy of the Supplement to the Agreement between SEDOL and the Union. By its own terms, the Supplement was made part of the collective bargaining agreement. SEDOL entered into the Supplement “on behalf of itself and its member boards.” The Supplement set forth conditions for the return of special education programs to the local level and the filling of vacancies in the member districts for special education teachers. The Supplement assumed the return of programs would result in vacancies. The Supplement provided that when a member board chooses to take back a program, it must first notify SEDOL, and that “action constitutes acknowledgment of the member board’s duty to abide by the terms and conditions of this Supplement to the Agreement.” The Supplement set forth SEDOL employees’ rights when programs are returned and the procedures for filling vacancies created in the member districts. A member board is required to notify SEDOL of its intent to take back programs and to specify the employment positions involved. SEDOL is required to advertise such vacancies to SEDOL tenured teachers. If no SEDOL teacher is placed in the vacant position, the member board “shall hold the position vacant until such time as the SEDOL layoff procedure is complete.” SEDOL had the duty to notify affected SEDOL teachers of SEDOL’s intent to lay them off. Only after tenured SEDOL teachers subject to layoff have been offered the vacant position in the member district can the member district fill the remaining vacancies with other SEDOL teachers or advertise and fill the vacancies with other teachers.

Plaintiff also attached a copy of correspondence concerning the taking back of programs. One is a letter from SEDOL’s attorney, dated September 29, 1989, which interpreted the Supplement as allowing the member districts to determine whether any vacancies result from the return of special education programs to the member district. In a letter dated January 13, 1992, plaintiff’s director of special services notified SEDOL of plaintiff’s intent to take back three classrooms. The letter dated February 27, 1992, is SEDOL’s response to the grievance filed by the Union concerning plaintiff’s and another district’s failure to notify SEDOL of vacancies, which the Union believed was a violation of the Supplement. SEDOL’s superintendent stated that because it posted vacancies reported in the member districts, it complied with its contractual obligation. The last letter, dated April 16, 1992, was from SEDOL to plaintiff, stating SEDOL’s strategy in the arbitration and encouraging plaintiff to participate. SEDOL warned that if plaintiff failed to participate in the arbitration, plaintiff would waive any defenses and would be estopped from asserting any defenses in subsequent proceedings. In addition, SEDOL stated its intent “to assert that if the arbitrator finds a violation of the Agreement, a remedy may be had only as against Barrington School District 220, and not against SEDOL.”

Plaintiff filed a motion seeking a stay of the arbitration between SEDOL and the Union to preserve the status quo or, in the alternative, an entry of an order providing that no relief from the arbitration may be had against plaintiff. SEDOL filed a response to the motion, which denied that plaintiff did not have an arbitration agreement with the Union and denied the allegation that plaintiff’s relationship with SEDOL was nondelegable and nonarbitrable. Plaintiff then filed an amended motion to stay arbitration between itself and SEDOL, but it agreed that the arbitration between SEDOL and the Union should proceed. SEDOL filed an answer to the complaint, denying that plaintiff complied with the terms of the contracts.

SEDOL also filed a response to the amended motion for the stay of arbitration. SEDOL asserted that plaintiff and SEDOL were educational employers and the Union was the exclusive representative of the teachers employed by SEDOL, within the meaning of the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/1 et seq. (West 1992)). SEDOL reasoned that the arbitration was therefore solely a dispute between an educational employer (SEDOL) and the Union over whether the employer violated a provision of the collective bargaining agreement between those two parties. Under Board of Education of Warren Township High School District 121 v. Warren Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, the circuit court does not have the power to enjoin the arbitration of public educational labor relations disputes; the exclusive jurisdiction is vested with the Illinois Educational Labor Relations Board (IELRB). SEDOL further argued that the arbitration dispute at issue was governed by the Act. In addition, SEDOL maintained that the arbitration involved an interpretation of a provision of the collective bargaining agreement, which provided that the Supplement was made by SEDOL “ ‘on behalf of itself and its member boards’ ” and provided for procedures for the employment of teachers in the event SEDOL programs are returned to the member districts. SEDOL concluded that plaintiff’s rights and obligations under the agreement were covered by the collective bargaining agreement and were therefore subject to review by the IELRB. Finally, SEDOL argued that whether there was an agreement by plaintiff to arbitrate and the question of delegability are issues of substantive arbitrability reserved to the IELRB. SEDOL requested the court to deny the motion to stay and to dismiss the complaint for lack of subject-matter jurisdiction.

The Union filed a motion to dismiss the entire complaint for lack of subject-matter jurisdiction. The Union adopted the arguments presented in SEDOL’s motion. The Union further alleged that the issues raised by plaintiff in the complaint for declaratory judgment present questions of contract interpretation or arbitrability which are not within the jurisdiction of the circuit court and that no actual controversy existed between plaintiff and either defendant. The court dismissed both counts of the complaint pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(1) (West 1992)).

Plaintiff filed a motion to reconsider the dismissal as to count II of the complaint. Plaintiff argued that the court should reinstate count II because the Union was not a party to that count. Plaintiff further argued that there was a justiciable controversy because the contract at issue was between two school districts and was not subject to the terms of the Act. The court denied the motion to reconsider, and plaintiff timely appealed the dismissal of count II of the complaint.

Plaintiff contends that the court erred in dismissing count II for lack of subject-matter jurisdiction.

“Subject matter jurisdiction, which is conferred on courts by the constitution or by statute [citation], refers to the power of courts to hear and decide the type of case presented [citation]. When a statute confers on a court special jurisdiction not arising out of the common law, that jurisdiction is limited to the language of the act conferring it. [Citation.] The court has no powers from any other source to hear the case, and if the mode of procedure prescribed by statute is not followed, no jurisdiction is conferred on the circuit court.” (Ardt v. Illinois Department of Professional Regulation (1992), 154 Ill. 2d 138,145-46.)

We reject plaintiff’s argument that the dismissal of the count was improper because the Union was not a party to that count. Subject-matter jurisdiction can be raised sua sponte by the trial court, since the lack of subject-matter jurisdiction deprives the trial court of all power except to dismiss the action. (Swope v. Northern Illinois Gas Co. (1991), 221 Ill. App. 3d 241, 243.) There is no dispute that the Union could have attacked count I on the basis of subject-matter jurisdiction, and, since the same infirmity was alleged as to both counts and the trial court could have dismissed count II sua sponte, we conclude that it was immaterial that the Union was not a party to count II.

The trial court dismissed the complaint pursuant to the supreme court’s opinions in Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, and Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (128 Ill. 2d 155). In Compton, the court held that the Act divests the circuit court of jurisdiction to vacate or enforce arbitration awards in educational labor disputes, and Warren Township held that the Act divests the circuit court of power to enjoin such arbitration.

Plaintiff first argues that the subject of count II is a joint agreement for special education and, therefore, the School Code (105 ILCS 5/1 — 1 et seq. (West 1992)), rather than the Act, applies to its cause of action. The School Code provides that a school board has the power to enter into joint agreements with other school boards to provide special education services. (105 ILCS 5/10 — 22.31(a) (West 1992).) The purpose of the Act is “to regulate labor relations between educational employers and educational employees, including the designation of educational employee representatives, negotiation of wages, hours and other conditions of employment and resolution of disputes arising under collective bargaining agreements.” (115 ILCS 5/1 (West 1992).) According to plaintiff, count II sought a declaration of rights under the joint agreement and was not addressed to any collective bargaining agreement.

SEDOL and the Union respond that the circuit court does not have subject-matter jurisdiction because the rights at issue are those of plaintiff and SEDOL vis-a-vis the Union. However, when reviewing the dismissal of a complaint pursuant to section 2 — 619, we must consider whether there is a defect in the pleading, and we must take as true all well-pleaded facts. (See Michel v. Gard (1989), 181 Ill. App. 3d 630, 635.) Count II seeks a declaration of rights between plaintiff and SEDOL, not between plaintiff and the Union. We decline the request of SEDOL and the Union to redraft the pleading.

SEDOL asserts that it was plaintiff’s agent and SEDOL bound plaintiff to the collective bargaining agreement. However, SEDOL’s argument supports plaintiff’s position: the issue before the court was the relationship between SEDOL and plaintiff, which could include the question whether SEDOL is plaintiff’s agent. That determination depends on an interpretation of the joint agreement and the Supplement.

The Union argues that plaintiff is an “Educational employer” under the Act. The Act defines an “Educational employer” as “the governing body of a public school district, [or] combination of public school districts, including the governing body of joint agreements of any type formed by 2 or more school districts.” (Emphasis added.) (115 ILCS 5/2(a) (West 1992).) According to the statute, the educational employer in this situation is the governing body of the joint agreement, but it is not clear whether the individual member boards would be considered joint employers. Thus, whether plaintiff is to be considered an educational employer depends on the interpretation of the statute. This could constitute an attack on the jurisdiction of the IELRB which is an exception to the exhaustion of remedies doctrine. (Office of the Lake County State’s Attorney v. Illinois Human Rights Comm’n (1990), 200 Ill. App. 3d 151, 156-57.) However, plaintiff did not make this argument in the trial court or on appeal, and, therefore, we cannot consider it as a basis to reverse the judgment. See 134 Ill. 2d R. 341(e)(7).

Plaintiff’s contention is similar to the situation in County of Kane v. Randall (1990), 194 Ill. App. 3d 1029, an appeal of the dismissal for lack of subject-matter jurisdiction of two declaratory judgment claims. The appellate court considered whether the trial court had jurisdiction to declare the respective bargaining rights and responsibilities of Kane County and the Kane County sheriff, the joint employers of personnel represented by a union. The trial court had dismissed the county’s claim and the sheriff’s counterclaim because it believed the dispute involved labor negotiations governed by the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 1992)). The appellate court concluded that the dispute between the two employers did not fall within the scope of the Illinois Public Labor Relations Act because that act did not address disputes between co-employers. (County of Kane, 194 Ill. App. 3d at 1034.) The labor board and the union argued that the trial court did not have jurisdiction “because the dispute ‘involves the collective bargaining process.’ ” (County of Kane, 194 Ill. App. 3d at 1034.) The court rejected this argument because “[a]n adequate avenue of resolution must exist for a dispute between governmental bodies and officials,” although recognizing that the suit would “in all probability affect the bargaining process.” 194 Ill. App. 3d at 1034.

Like the Union here, the union in County of Kane relied on Board of Education v. Compton. The court, however, distinguished Compton:

“Compton involved a dispute between an employee and an employer, a dispute clearly covered by the act there involved. Again, the case before us involves a dispute between joint employers. This dispute is not subject to the strictures of the Act. While the legislature may find it necessary and salutary to limit the review of decisions arising under the labor relations acts, it has not so limited the parties’ actions in this case. We find no intention on the part of the legislature to tie the hands of disputatious governmental bodies or officials and require them to violate the law in order to have their legitimate dispute resolved.” (Emphasis in original.) County of Kane, 194 Ill. App. 3d at 1035.

Just as in County of Kane, the declaratory judgment claim here seeks a determination of the rights of two governmental entities and does not seek a determination of the rights as between an employer and an employee.

Moreover, the Union filed its grievance against SEDOL, and, according to the letter from SEDOL’s attorney, the Union alleged violations of the Supplement regarding a reduction in force and failure to post vacancies. From the pleadings and attachments, it appears that the reduction in force was a reduction of the SEDOL force, not of plaintiff’s regular teaching force. Under the Supplement, only SEDOL had the obligation to post vacancies. Plaintiff alleged that it is not involved in the labor dispute, but that it had a dispute with SEDOL.

We note, parenthetically, that section 24 — 11 of the School Code provides for the tenure rights of special education teachers in special education joint agreements. (105 ILCS 5/24 — 11 (West 1992).) Under section 24 — 11, in the event of a reduction in the number of programs in a joint agreement, a special education teacher “on contractual continued service shall be eligible for employment in the joint agreement programs” based on seniority, “unless an alternative method of determining the sequence of dismissal is established in a collective bargaining agreement.” (105 ILCS 5/24 — 11 (West 1992).) The governing board of the joint agreement may assume the responsibility for employment and termination actions. Finally, section 24 — 11 provides that “in the event of the termination of the program[, a tenured contract special education teacher] shall be eligible for any vacant position in any of such districts for which such teacher is qualified.” (105 ILCS 5/24 — 11 (West 1992).) It appears that the Supplement was designed to provide an alternate method for determining seniority and did not impose any duties on plaintiff regarding vacancies beyond those imposed by the statute. Without knowing what were the terms of the collective bargaining agreement, we cannot determine whether, under that contract, the Union would have any grievance against plaintiff.

We conclude that count II did not seek a determination of arbitrability of labor issues so as to implicate the Act as it did not ask the court to rule on a labor dispute between an employer and an employee.

Plaintiff asserts that the court had jurisdiction over the declaratory judgment claim because count II alleged an actual controversy regarding plaintiff’s and SEDOL’s rights under a contract. In general, the circuit court has original jurisdiction over declaratory judgment proceedings. Lake County State’s Attorney v. Illinois Human Rights Comm’n, 200 Ill. App. 3d at 155.

According to plaintiff, count II alleged a justiciable issue. As plaintiff properly notes, the construction of a contract and the declaration of rights are proper subjects for a declaratory judgment action. (See 735 ILCS 5/2 — 701(a) (West 1992).) Plaintiff asserts that an actual controversy exists because SEDOL denied the allegation that plaintiff fully complied “with its rights and responsibilities under the Supplement to the Agreement *** and explicitly followed the intention of the parties. ’ ’

The Union responds that count II failed to allege a justiciable controversy because the only controversy pending was the arbitration dispute between SEDOL and plaintiff against the Union. The Union argues that the letter from SEDOL’s attorney to plaintiff notifying plaintiff of the arbitration did not constitute a justiciable controversy between the two districts.

The declaratory judgment procedure permits a court to address a controversy after a dispute has arisen but before either party has taken any action which could give rise to a claim for damages or other relief. (Bank of Chicago-Garfield Ridge v. Park National Bank (1992), 237 Ill. App. 3d 1085, 1096.) A declaratory judgment action must be based on an “actual controversy.” (735 ILCS 5/2 — 701(a) (West 1992).) An actual controversy is a dispute capable of a definite and immediate determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. (Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 306.) This requirement is designed to prevent the court from passing on hypothetical questions of law or rendering advisory opinions, such as when the case is moot or premature. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450-51.) A claim is justiciable where the challenge to the plaintiff’s legal interests casts doubt, insecurity, or uncertainty on the plaintiff’s rights or interests. (Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 214.) The court should construe the declaratory judgment statute broadly so as not to restrict the remedy by unduly technical interpretations. Illinois Gamefowl Breeders Association, 75 Ill. 2d at 452.

According to the letter attached to the complaint, if the result of the arbitration is unfavorable to SEDOL, it intends to have the Union seek a remedy from plaintiff instead of SEDOL and that if plaintiff failed to participate in the arbitration, it would be estopped to present any defenses. Plaintiff’s complaint sought a declaration that it complied with its obligations under the supplemental agreement and did not breach any duties vis-a-vis SEDOL. Plaintiff fails to argue how the declaratory relief will have any effect on its rights or interests as against SEDOL. In addition, plaintiff’s interests will be affected only if the arbitration result is unfavorable to SEDOL. “[I]f the plaintiff’s interests would be adversely affected only in the event some future possibility occurs or does not occur[,] the action for a declaratory judgment should be dismissed.” (Township High School District 203 v. Village of Northfield (1989), 184 Ill. App. 3d 367, 373.) We conclude that count II fails to allege a justiciable issue for declaratory relief. Thus, the trial court properly dismissed count II of the complaint.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and COLWELL, JJ., concur.


author: JUSTICE GEIGER

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. H P/MEACHUM LAND LIMITED PARTNERSHIP et al., Defendants-Appellants.
    Second District
    No. 2 — 92—0901
    Opinion filed May 14, 1993.

      William E. Ryan and Timothy J. Ryan, both of Burke & Ryan, of Chicago, for appellants.
    Daniel J. McCormick, of Griffin & Griffin, of Chicago, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, the Department of Transportation (the State), filed this condemnation action against a portion of a 40.282-acre parcel of vacant property owned by H P/Meachum Land Limited Partnership (the owner). Hamilton Partners, Inc., and unknown owners were also named as defendants. The State initially sought fee simple title to one 6.899-acre portion of the parcel and access rights to a portion of the remainder, both in connection with construction of the Elgin-O’Hare Freeway.

This appeal is taken under Supreme Court Rule 308 (134 Ill. 2d R. 308), pursuant to the trial court’s certification of two questions for interlocutory appeal. Those questions address proper valuation in this case and the proper valuation date where the State filed a third amended complaint approximately eight months after the original complaint and thereby added an additional .13-acre portion to the property to be taken. The full parcel in question comprises approximately 16.45 acres of wetland. The portion to be taken includes approximately 0.5 acre of wetland.

After the State filed initial and first amended complaints, in July 1990 the owner filed a counterclaim seeking damages to the remainder of the parcel, and the court entered a quick-take order fixing preliminary compensation due on the taking (735 ILCS 5/7 — 103 (West 1992)). In September 1990, the State was allowed to file its second amended complaint, adding another party defendant.

In February 1991, the State was allowed to file its third amended complaint, thereby adding an additional .13 of an acre to the property for which it sought fee title. In lieu of holding quick-take proceedings on the additional parcel (cf. 735 ILCS 5/7 — 104 (West 1992)), the parties agreed on additional preliminary compensation of $10,400 for the fee title of that parcel.

In the just compensation proceedings that followed, the owner brought the two motions in limine that are central to this appeal. In the first motion, the owner referred to the wetland and nonwetland subsections of the full parcel in question. It also referred to the differences in use potential and, thus, value for those two different types of property included in the full tract. It requested the court to allow appraisers to testify to different highest and best uses for different areas of the full tract, rather than being bound to offer only one “highest and best use” value for the entire 40.282-acre parcel. In the second motion, with reference to the State’s addition of property to that which its initial complaints sought to take, the owner asked the court to deem the State’s third complaint amendment to be tantamount to a new filing that required a new valuation date for the property.

The court denied both motions, but certified related questions for appeal. (See 134 Ill. 2d R. 308(a).) The questions certified were as follows:

“Whether an expert appraisal witness in a partial-take eminent domain action is required to determine a unit value (price per acre or price per square foot) for the whole property, and then required to apply that same unit value to the part taken, regardless of the highest and best uses of various portions of the property and the condition of various portions of the property, including but not limited to the part to be taken.”

And:

“Whether the Defendant-Owner in an eminent domain action is entitled to a new valuation date when the Plaintiff files an amended complaint eight (8) months after the original complaint and after a quick-take hearing has occurred, which amendment adds different or additional property, not included in the original complaint, to be acquired by the Plaintiff.”

We granted the owner’s application for leave to appeal from the interlocutory orders.

On appeal we first address the court’s ruling on the proper method of valuation in this case. The owner points to the undisputed facts that the full parcel in question consists both of nonwetland and wetland and that the portion subject to taking is primarily non-wetland, although it includes a portion of wetland. The owner argues that in an eminent domain action all parts of a tract need not be given equal value. According to the owner’s argument, the court’s order denying its first motion improperly prevents it from explaining to the jury the difference between the two land-type categories and will cause it to receive compensation based on an average value of its consolidated wetland and nonwetland property, rather than the fair cash market value of the specific property taken. Implicit in the argument is a calculation that the property to be taken by the State is comprised of a larger percentage of nonwetland than is the full tract.

The fifth amendment to the United States Constitution provides that private property shall not be “taken for public use, without just compensation.” (U.S. Const., amend. V.) Similarly, our State constitution provides that “[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law.” (Ill. Const. 1970, art. I, §15.) “Just compensation” is determined by the fair cash market value of the property at its highest and best use. City of Chicago v. Anthony (1990), 136 Ill. 2d 169,174.

The owner refers us to the additional authority of Department of Public Works & Buildings v. Oberlaender (1968), 92 Ill. App. 2d 174, aff’d (1969), 42 Ill. 2d 410. In Oberlaender, the court stated that when valuing land in a partial taking situation, “the nature of the relationship of the part [taken] to the whole *** determines the value of the part since all parts are not necessarily equally related.” (Oberlaender, 92 Ill. App. 2d at 185.) Oberlaender followed the reasoning of the supreme court in Department of Public Works & Buildings v. Foreman State Trust & Savings Bank (1936), 363 Ill. 13, 22, that one part of vacant land does not necessarily have the same value as every other part.

The State responds that the appraiser must determine the value of the whole property and apply that value to the part taken as part of the whole. As authority for its position, the State first cites to Illinois Pattern Jury Instructions, Civil, No. 300.44 (3d ed. 1990) (hereinafter IPI Civil 3d No. 300.44), which states:

“In arriving at the fair cash market value of the property taken, you should determine its value considered as a part of the whole tract before the taking and not its value as a piece of property separate and disconnected from the rest of the tract.” IPI Civil 3d No. 300.44.

We find that the State’s reliance on this instruction is misplaced. The owner does not seek to value the part of the whole tract taken separately from the remainder of the tract. Rather, it seeks to have the recognizably distinct wetland portions of the tract valued separately from the nonwetland portions, and the property to be taken, which includes both types of land, valued with reference to its specific share of the value of the whole tract. We find that that end is consistent with instruction No. 300.44.

Similarly, we are not persuaded by the other cases cited by the State. (See Department of Transportation v. Quincy Coach House, Inc. (1976), 64 Ill. 2d 350; Department of Public Works & Buildings v. Lotta (1963), 27 Ill. 2d 455; Department of Transportation v. First Bank (1992), 260 Ill. App. 3d 490; Department of Transportation ex rel. People v. Central Stone Co. (1990), 200 Ill. App. 3d 841.) In all these cases, the appraisers valued the land separately from the improvements thereon and did not appraise the value of the land as land. Here, by contrast, the valuation at issue is the value of the land as land. Forest Preserve District v. Wing (1922), 305 Ill. 194, also cited by the State is also distinguishable. Unlike this one, the Wing case did not address a partial taking.

When the highest and best use of the property is not uniform throughout the tract in question, an appraiser may testify to the highest and best use for the different portions of the full tract involved. (Department of Public Works & Buildings v. First National Bank (1973), 9 Ill. App. 3d 633, 636; see also Department of Transportation v. Mullen (1983), 120 Ill. App. 3d 268, 281; Department of Public Works & Buildings v. Hufeld (1966), 68 Ill. App. 2d 120, 128.) This rule makes sense in light of the purpose of the “just compensation” provision in the constitutions that “ ‘[t]he owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.’ ” (Almota Farmers Elevator & Warehouse Co. v. United States (1973), 409 U.S. 470, 473-74, 35 L. Ed. 2d 1, 7, 93 S. Ct. 791, 794, quoting United States v. Reynolds (1970), 397 U.S. 14, 16, 25 L. Ed. 2d 12, 15, 90 S. Ct. 803, 805; City of Chicago v. Farwell (1918), 286 Ill. 415, 421.) In addition, this rule does not conflict with the principle of valuing the portion taken as part of the whole and not as a separate parcel. The valuation of the part taken as part of the whole is designed to provide just compensation to the landowner where the land sought to be taken is of greater value when considered as part of the whole than if considered as a parcel by itself. Tri State Park District v. First National Bank (1975), 33 Ill. App. 3d 348, 351; see also Forest Preserve District v. Draper (1944), 387 Ill. 149,157-58 (and cases cited therein).

Here, the State seeks to take a portion of the full tract that includes a larger percentage of buildable, nonwetland property than does the tract as a whole. Consequently, the application here of the State’s proposed rule, that an appraiser must offer only one valuation considering the total value of the entire parcel, would misrepresent the value of the specific land portion to be taken. We find that that rule does not follow the law of this State and, thus, that the court’s denial of the owner’s first motion was in error.

We next address the owner’s second motion, on the appropriate date of valuation of the property in question. As we have noted above, the State filed its initial condemnation complaint in this case in June 1990. Approximately eight months thereafter, the court allowed the State to amend the complaint and thereby add acreage to the parcel subject to taking. The owner then moved for a new valuation date, arguing that the filing of the amended complaint should change the valuation date.

Section 7 — 121 of the Code of Civil Procedure provides that the compensation to be paid for condemned property is to be determined “as of the date of filing the complaint to condemn.” (735 ILCS 5/7— 121 (West 1992).) The question of the effect of the filing of an amended complaint was first addressed by our supreme court in Lieberman v. Chicago & South Side Rapid Transit R.R. Co. (1892), 141 Ill. 140. There, the condemning authority amended its petition to condemn to provide a more complete description of the property. The court found that, “so long as there is no attempt to substitute other property for that originally described,” an amendment was not tantamount to the filing of a new petition, which would change the valuation date. Lieberman, 141 Ill. at 150-51.

In Department of Public Works & Buildings v. Lanter (1958), 15 Ill. 2d 33, the court found that an amended petition for condemnation was, in effect, a new petition. The amendment abandoned the taking of certain access rights and added a request to take five acres. The court concluded that the amendment should be treated as a new petition because it presented different legal questions and required different evidence than did the original petition. Lanter, 15 Ill. 2d at 38-39.

In Department of Transportation v. La Salle National Bank (1981), 102 Ill. App. 3d 1093, the amended petition merely deleted the taking of access rights, but retained the request for the identical 21 acres sought by the original petition. The court held that the amended petition was not tantamount to a new petition and did not require a new valuation date. La Salle National Bank, 102 Ill. App. 3d at 1097-99.

Consistent with these authorities, we find that the State’s adding of additional property by its amended complaint was tantamount to the filing of a new complaint. This was no mere deletion of rights or property, and it required different evidence than that which was sufficient for the original petition. Since the amendment here added .13 of an acre, the owner is entitled to have the valuation determined as of its filing on February 22, 1991. Consequently, the court erroneously denied the owner’s second motion.

Based on the foregoing, we vacate the orders of the circuit court of Du Page County, denying the owner’s motions concerning expert valuation and a new valuation date. We remand the cause for further proceedings consistent with this decision.

Orders vacated; cause remanded.

INGLIS, P.J., and DOYLE, J., concur.