author: Mr. JUSTICE STAMOS

text:
    Robert Van Skike, a Minor, by his Mother and Next Friend, Sharon Pilarczyk, Plaintiff-Appellant, v. Jack Zussman et al., Defendants-Appellees.
    (No. 58036;
    First District (2nd Division)
    October 1, 1974.

      Rehearing denied October 25, 1974.

      Baskin, Server, Berke & Rosenbloom, of Chicago (Joseph B. Lederleitner, of counsel), for appellant.
    Clausen, Hirsh, Miller & Gorman and Schwartz and Ginsberg, both of Chicago (James T. Ferrini and Charles B. Bernstein, of counsel), for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Robert Van Skike, a 6-year-old minor, brought this action by his mother to recover damages for injuries caused by fire while he endeavored to fill a toy cigarette lighter with lighter fluid. The defendants were Jack Zussman, doing business as J. B. Specialties, who owned and operated a gumball machine which dispensed the miniature toy lighter, and Steven Rivera, doing business as Rivera Food & Liquors, who owned the premises on which the gumball machine was placed and who had sold the lighter fluid to the minor plaintiff. Plaintiff appeals from an order of the trial court dismissing the complaint for failure to state a cause of action.

The one count complaint alleged that on September 3, 1971, the plaintiff was a 6-year-old child and an invitee on the premises of defendant Rivera’s food and liquor store wherein co-defendant Zussman owned and operated a gumball machine filled with gumballs and prizes, including a miniature cigarette lighter. The complaint further alleged that the minor plaintiff obtained the miniature cigarette lighter as a prize from said gumball machine and then immediately purchased lighter fluid from defendant Rivera and “set himself on fire when he attempted to fill the lighter with the lighter fluid.” The complaint charged defendants with negligence in giving cigarette lighters as prizes in gumball machines and in selling fighter fluid to the minor plaintiff when the defendants knew or should have known that the fighter and fighter fluid were dangerous to children of tender years. It was further alleged that the defendants negligently failed to warn of the danger involved; failed to remove the cigarette fighters from the gumball machine; and improperly maintained, operated, and inspected the premises and gumball machine therein, permitting a child of tender years to use it to his inqury. Defendant Rivera filed an answer to the complaint.

Upon motion of defendant Zussman, the trial court ordered that the complaint be stricken for failure to state a cause of action and that plaintiff be given 42 days within which to file an amended complaint. Plaintiff failed to plead over, and, upon expiration of the 42 days, the case was dismissed on the motion of defendant Rivera.

On appeal, plaintiff urges that the complaint alleged facts sufficient to state a cause of action against both defendants as concurrent tortfeasors.

A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Mieher v. Brown, 54 Ill.2d 539, 301 N.E.2d 307.) The existence of a duty is a question of law to be determined by the court. Barnes v. Washington, 56 Ill.2d 22, 305 N.E.2d 535.

As to defendant Zussman, plaintiff alleges that he knew or should have known that he had placed his cigarette lighter dispensing machines in a store that sold flammable fluids. It is conceded by plaintiff that the lighter was a toy rather than a functional lighter; but, plaintiff argues, the fact that the miniature lighter was nonfunctional is of no consequence, for a toy lighter, as in the present case, can cause injury in the same way that a functional lighter nrght. The argument runs that it is not the name or label of the object which is determinative, but rather the use which the object itself suggests be made of it. The minor plaintiff thought the toy was functional, and defendant Zussman is negligent for failure to foresee a young boy’s lack of judgment.

Although foreseeability is generally accepted as the test to be applied by a jury in determining if a duty has been violated, in defining the scope of the duty there are many factors other than foreseeability that may condition a judge’s imposing or not imposing a duty in the particular case. (Mieher v. Brown, supra.) Not only will he court consider the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden upon defendant (Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231), but considerations of public policy are important as well. (Mieher v. Brown, supra.) In addition, in determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, as the plaintiff contends; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Cunis v. Brennan, 56 Ill.2d 372, 308 N.E.2d 617.

Tested by these general principles, we conclude that the complaint failed to state a cause of action against defendant Zussman. We initially note that the lighter which defendant dispensed in his gumball machines was merely a nonfunctional toy; it did not produce the spark or emit the flame which, in the words of the complaint, “caused plaintiff to set himself on fire.” Plaintiff’s theory must therefore be that it is reasonably foreseeable that a child who purchases a toy similitude will (1) perceive the object to be an actual fire producing mechanism; (2) and purchase a flammable liquid with which to operate the mechanism; and yet (3) will obtain some external source of fire which ignites the flammable liquid.

Plaintiff provides no authority in support of his theory and we are of the opinion that the events upon which plaintiff seeks to state a cause of action against defendant Zussman do not, in contemplation of law, establish a duty. Viewing the concept of duty from a foreseeability perspective alone, we cannot say the dispensing of miniature toy lighters in an establishment which sells lighter fluid creates a reasonably foreseeable risk of harm.

We turn next to the contention that the complaint stated a cause of action against defendant Rivera. Although not clearly delineated, plaintiff apparently alleges the following alternative theories of recovery; (1) that lighter fluid is an inherently dangerous substance and therefore within the doctrine that one who places a dangerous implement in the hands of a person incompetent to use it is chargeable with knowledge of the consequences; (2) the sale of lighter fluid to a minor is actionable on general principles of negligence; and (3) the sale of lighter fluid to a minor on the same premises on which miniature toy lighters are dispensed is sufficient to impose liability.

At common law the legal principle is established that if one sells a dangerous article or instrumentality such as firearms or explosives to a child whom he knows or ought to know to be, by reason of youth and inexperience, unfit to be trusted with it, and might innocently and ignorantly play with it to his injury, and injury does result, he may be found guilty of negligence and consequently liable in damages. Annot, 20 A.L.R.2d 119, 124 (1951).

In Mondt v. Ehrenwerth, 251 Ill.App. 226, defendant had sold 10 cents worth of benzine to a boy of 13 who subsequently, while demonstrating to a 5-year-old child how the substance would burn, ignited the benzine, causing the can to explode and resulting in the infant’s death. The court held that the benzme, in the small quantity so sold, could not be considered an imminently dangerous article. Directly on point is Traynor v. United Cigar-Whelan Stores Corp., 274 App. Div. 880, 79 N.Y.S.2d 329, where a closed bottle of cigarette lighter fluid sold by the defendant to an 11-year-old child who uncorked the bottle, applied a match thereto, and was burned by the ensuing flame, was held not to be a dangerous instrumentality within the doctrine that one who puts a dangerous implement in the hands of a person incompetent to use it is chargeable with knowledge of the consequences.

Upon the bas's of the foregoing authority, we conclude that lighter fluid is not inherently dangerous, with the result that the selling of it to minors does not impute to the vendor a knowledge of the consequences. The possibility always exists that a child purchasing lighter fluid, paint, glue, hairspray, or like products, will improperly ignite the product of his injury; however, the creation of a legal duty requires more than the mere possibility of occurrence. (Cunis v. Brennan, supra.) In this regard, we note the language of the Traynor decision in holding that a complaint, alleging the sale of lighter fluid to an 11-year-old minor who sustained injuries when he subsequently ignited the substance, failed to state a cause of action:

“The fluid was an article in common use, not inherently dangerous, and the occurrence was not of such a character that reasonable prudence and foresight would forecast its happening.” 79 N.Y.S.2d 329, 330.

The mere possibility that a minor purchasing lighter fluid might place a match or some other external source of fire thereto, resulting in uncontrolled ignition, does not justify the imposition of a prohibition against the sale of such products to minors. Apart from the likelihood of injury, the court must also consider the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant. (Lance v. Senior, supra.) The burden of liability for self-inflicted injuries sustained by minors who purchase household flammables, absent something which would give notice of the likelihood of such misuse in a given case, would render retail trade extremely hazardous. (See Mondt v. Ehrenwerth, supra.) Accordingly, we hold that the sale of lighter fluid to a 6-year-old child, in and of itself, does not state a cause of action against the vendor when the minor sustains injuries resulting from the ignition of the substance by an external source of fire. Traynor v. United Cigar-Whelan Stores Corp., supra.

Although not actionable in itself, the sale of lighter fluid to a minor may be actionable if coupled with circumstances from which injuries may be reasonably anticipated. (See Driscoll v. Rasmussen Corp., 35 Ill.2d 74, 219 N.E.2d 483; compare Clark v. Ticehurst, 176 Kan. 544, 271 P.2d 295, with Tharp v. Momsees (Mo.), 327 S.W.2d 889.) The remaining question is whether the allegations of the complaint sufficiently establish that defendant was placed on notice that an improper use of the lighter fluid was contemplated. In this respect plaintiff bears the burden of pleading the facts necessary to his cause of action, and failure to do so cannot be remedied by liberal construction or argument. (Donehue v. Duvall, 41 Ill.2d 377, 243 N.E.2d 222.) Plaintiff had ample time in which to file an amended complaint, yet he failed to avail himself of the opportunity. The present complaint alleges that the minor plaintiff obtained the miniature cigarette lighter from a gumball machine on the same premises on which he immediately thereafter purchased lighter fluid,

and that subsequently “the minor plaintiff attempted to fill said lighter with fluid and was caused to set himself on fire.” As earlier stated, the miniature toy lighter was nonfunctional, and therefore, was not the source of the spark or flame which ignited the lighter fluid. For the reasons that the complaint against defendant Zussman failed to state a cause of action, a complaint against defendant Rivera for selling lighter fluid to a minor is not augmented by an allegation that miniature toy lighters were also periodically dispensed in a gumball machine located on the premises. The mere presence of miniature toy lighters on the premises, as to the sale of lighter fluid, was not reasonably foreseable as a causative factor in the harm alleged. The judgment of the trial court is affirmed.

Judgment affirmed.

HAYES, P. J., and DOWNING, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    Howard L. Kaufman, Plaintiff-Appellant, v. Sandra J. Kaufman, Defendant-Appellee.
    (No. 57948;
    First District (2nd Division)
    September 27, 1974.

      Henry A. Kalcheim and Bernard Hammer, of Chicago, for appellant.
    Arnstein, Gluck, Weitzenfeld & Minow, of Chicago (Paul L. Leeds, of counsel), for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is to review two orders entered in a divorce case. The first directed the plaintiff, Howard L. Kaufman, to pay $3200 in additional temporary attorney fees to the lawyers for his wife, the defendant Sandra J. Kaufman. The second denied his motion to vacate the allowance of those fees.

On May 15, 1968, plaintiff filed a divorce suit in which he alleged that his wife Sandra was guilty of three acts of cruelty she allegedly committed in October and December 1962. Defendant, instead of answering the complaint, moved to dismiss it on the ground that on August 5, 1965, in a separate maintenance suit she had filed against the plaintiff, the trial court entered a decree in which it found that, without fault on her part, her husband (the plaintiff in this suit and the defendant in that one), had deserted her. Therefore, she contended that the separate maintenance decree was res judicata of the issues which plaintiff sought to raise because the acts of cruelty he alleged occurred before the decree was entered in her favor. On order of the court, the legal issues were briefed and argued by the parties. Thereafter, the trial court sustained defendant’s motion, dismissed the complaint, and gave plaintiff leave to file an amended one within 60 days. At the same time, defendant’s counsel was awarded $500 in temporary attorney fees.

Plaintiff did not file an amended complaint within the time set by the court. Therefore, defendant moved to dismiss his suit and assess additional temporary attorney fees. However, after hearing the motion, the trial court gave plaintiff an additional 30 days to file his amended pleading, and did not act on the request for fees. Within this allotted time, plaintiff filed an amended complaint; and for the first time he claimed that during their marriage defendant was guilty of extreme and repeated mental cruelty; that she continuously subjected him to repeated humiliation and indignity, causing him serious emotional distress.

Defendant moved to dismiss the amended complaint on the ground, among others, that it, too, was based on alleged facts which occurred prior to entry of the decree for separate maintenance. While this motion was pending, the trial court, on August 12, 1969, dismissed the pending complaint because plaintiff’s counsel failed to appear in court. Then, on the 30th day after the dismissal, the case was reinstated and the court directed the parties to file memoranda of law discussing the issues raised by defendant’s motion to dismiss. After considering their submissions, the trial court entered an order overruling defendant’s motion and directing her to answer the amended complaint.

A short time after this order, defendant filed interrogatories which she requested the plaintiff to answer within the time required by the rules. He did not do so. Thereupon, on defendant’s motion, the trial court ordered the amended complaint stricken. Despite this development, within the 30 days that followed, the parties stipulated that the plaintiff could answer the interrogatories instanter, that dismissal of the amended complaint could be vacated, and the cause be placed on the regular trial calendar of the court. Less than a month later, when the case was called for trial, it was dismissed for want of prosecution. Within 30 days of that dismissal, it was again reinstated. Then, plaintiff secured new counsel and the case was placed on the court’s dormant calendar.

Shortly thereafter, defendant moved to strike plaintiff’s answers to her interrogatories on the ground that they were vague, indefinite, unresponsive and evasive. The motion was sustained. Two weeks later, the parties agreed to the entry of an order that permitted defendant to withdraw her interrogatories, vacated the striking of plaintiff’s answers to the interrogatories and allowed him to file a third complaint for divorce. This complaint was filed; but defendant moved to dismiss it. Later, the motion was argued; and on October 7, 1970, it was overruled by an order that granted defendant leave to file an amended petition for additional temporary attorney fees. The petition was filed on October 21, 1971, supported by an affidavit of the attorney who had represented her throughout the proceedings. A week later, defendant answered the plaintiff’s third complaint. After denying all the allegations, she affirmatively alleged she had “* * * limited means with which to support herself and to pay attorneys fees and costs ncessary to defend this action » » No reply was filed to these allegations. The complaint and answer are still on file; plaintiff’s claims for divorce have not been resolved. Then on December 10, 1971, the petition for fees came before the court.

When the case was called, defendant’s counsel reviewed its history, referred to his affidavit and told the trial judge that since November 19, 1968, when his firm was awarded $500 in temporary attorney fees, he had devoted 6472 hours to the various motions and court appearances. He requested an award of additional temporary attorney fees in the sum of $3200. Plaintiff’s counsel responded by telling the trial judge that in a discovery proceeding, he had learned that defendant had on deposit, in banks and other institutions, the sum of $13,000. In addition, from a request that defendant admit the authenticity of certain documents, he learned that on October 9, 1971, with a $1500 down payment, defendant purchased a new Oldsmobile Cutlass four-door sedan.

During these proceedings, plaintiff’s 1970 tax returns were in court and available to the trial judge. These showed plaintiff’s income that year was between $31,000 and $32,000. Further, the returns disclosed that the plaintiff had an additional income of $3500 in interest earned on $100,000 that had been withdrawn from the business in which he was a partner. Moreover, from questions he asked counsel, the trial judge learned that plaintiff had paid his attorneys $5,150 in fees during the same period of litigation for which defendant’s lawyer was seeking compensation. At the conclusion of the hearing, the court overruled all objections to the petition, found that defendant’s attorneys had spent 64% hours representing her in the case and ordered plaintiff to pay $3200 in additional temporary attorney fees.

On January 6, 1972, within 30 days, plaintiff filed a motion to vacate the order. For years, Rule 2.3 of the circuit court of Cook County has provided that “[t]he burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.” Plaintiff did not call his motion for hearing within 90 days of the date it was filed. In fact, it remained on file, without action, from January 6 to May 8, 1972, when defendant’s counsel served on plaintiff a notice of motion, to be heard on May 22, 1972, requesting the trial court to deny the motion to vacate because of plaintiff’s failure to comply with the court rule. On receipt of this notice, plaintiff’s attorney, in turn, served notice of a motion asking the court to rule on the motion to vacate. On the scheduled date, the parties appeared and in a colloquy between court and counsel, plaintiff’s attorney told the trial judge that he had been ill for a month and a half between the time the motion was filed and the date it was being bear'd. After hearing the parties, the trial court denied plaintiff’s motion to vacate.

Three issues are presented for our review. 1. Whether the trial court erred in ordering plaintiff to pay defendant’s lawyers $3200 in temporary additional attorney fees when discovery proceedings revealed that she had cash and liquid assets amounting to $13,000. 2. Whether the trial court erred in determining the amount of additional temporary attorneys fees in reliance on the statement of defendant’s attorney concerning the number of hours he spent in defending the case, although that attorney refused and interfered with prior proceedings which sought discovery of his time records. 3. Whether the trial court abused its discretion when as one of the grounds for denying plaintiff’s motion to vacate, it relied on his failure to comply with Cook County circuit court Rule 2.3.

I.

It appears that when defendant’s motion for additional temporary attorney fees was allowed, the trial judge knew, and defendant conceded, that she had $13,000 consisting of treasury notes, a certificate of deposit, a savings account and some stocks. Because of this fact, plaintiff argued that from these assets defendant could pay the fees of her attorney, particularly in view of the fact that she had purchased a new automobile that had required a $1500 down payment. The trial court rejected this argument, saying of plaintiff’s lawyer that “[h]e knows the law doesn’t require her to spend her $13,000 if this man is in a position financially to pay [sic].” In this appeal, plaintiff points to this statement and argues that the trial judge allowed defendant’s motion for fees without finding that she was financially unable to pay them. Plaintiff insists that this comment reveals a mistaken belief by the trial judge that the law discriminates in favor of a wife when she engages in divorce litigation with her husband.

This argument, in our judgment, over-emphasizes one reason the trial judge gave for rejecting plaintiff’s objection to the motion for fees. It is well known that the reasons a trial judge gives for his ruling are not of importance; the question on review is whether his decision was correct. (See Balfour v. Balfour, 20 Ill.App.2d 590, 156 N.E.2d 629.) It is the judgment we review, not the proffered reasons which may underlie it. (Carnes v. Carnes, 333 Ill.App. 316, 77 N.E.2d 341; Haney v. Haney, 37 Ill.App.2d 216, 185 N.E.2d 409.) Therefore, the question we must decide is whether the trial court erred when, without expressly finding that defendant was financially unable to pay her own expenses, it awarded her additional temporary attorneys fees, despite her possession of $13,000 in treasury notes, certificates of deposit, a savings account balance and some stocks.

It is a settled rule that to justify allowance of attorneys fees in a divorce suit, the party seeking this relief must show financial inability to pay and the ability of the other spouse to do so. (Woodshank v. Woodshank, 13 Ill.App.3d 692, 693, 300 N.E.2d 494; Berg v. Berg, 85 Ill.App.2d 98, 229 N.E.2d 282; Cimino v. Cimino, 93 Ill.App.2d 412, 236 N.E.2d 299.) However, in this context, financial inability does not mean destitution. In divorce cases, when questions arise concerning suit money, the income and assets of both spouses must be considered; and if the wife’s funds, though she has some, are insufficient, those of the husband can be reached so that the wife, without exhausting her own estate, can protect her rights in the marital litigation. See Moore v. Moore, 25 Ill.App.2d 255, 166 N.E.2d 629 (abstract opinion).

Recently, in Moreau v. Moreau, 9 Ill.App.3d 1008, 293 N.E.2d 680, we held that the fact a wife was earning more than her husband was not conclusive of the question whether she was able to pay all her attorneys fees. And in analogous domestic relations, it is generally recognized that financial inability exists where to enforce disbursement of available funds would strip the person of the means of his support and undermine his economic stability. Compare Tebo v. Robinson (1885), 100 N.Y. 27, 2 N.E. 383; Commonwealth v. Goldman (1956), 180 Pa. Super. 337, 119 A.2d 631; Binzel v. Viehmann (1940), 111 Mont. 6, 106 P.2d 187.

In this case, although defendant had $13,000 from which she purchased a new automobile, the pleadings contained a decree finding that, without her fault, she was living apart from the plaintiff with custody of a growing boy on a monthly temporary alimony of $650. She had alleged, and plaintiff did not reply, that she was unable to pay for defense of the suit. This fact can be inferred from the record. Under tírese circumstances, it was implicit in the trial court’s ruLng, that defendant was not able to pay her own attorneys. Therefore, it was equitable and proper for the trial judge to consider plaintff’s greater financial ability and allow defendant’s motion for add.tional temporary attorneys fees. Compare Eide v. Ede (1969), 1 Wash. App. 449, 462 P.2d 562; see 24 Am.Jur.2d Divorce and Separation § 595 (1966); 27A C.J.S. Divorce § 222 (1959).

II.

As to the amount allowed, the trial court had before it an affidavit of the lawyer who had represented defendant since the suit was filed. In response to the claim of plaintiff’s attorney that discovery had been resisted, defendant’s lawyer produced for inspection photostatic copies of his time records. In add.tion, the trial judge was familiar with the case, its procedural history and the details of the litigation. He knew, for example, that the complaint on file was plaintiff’s third; and that there had been a considerable number of court appearances on numerous contested motions. After the court was told the number of hours being claimed, the trial judge asked plaintiff’s counsel if he wanted to cross-examine defendant’s lawyer concerning the matter. The invitation was declined; no request for a hearing was made by the plaintiff. Consequently, no evidence was heard.

A trial judge can award attorneys fees in a divorce case without hearing evidence as to reasonableness of the fee. (See Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42.) This is particularly true where, in a case like this one, the question is considered by an experienced trial judge, who had personal knowledge of the case including its procedural history and the time that had been required of the lawyers. Of course, a party resist ng an application for attorney fees in a divorce suit can request a hearing and is entitled to an opportumty to present evidence. However, where a husband does not request a hearing on his ability, or his wife’s inability, to pay attorneys fees, it is not error for the trial judge to rely on the pleadings, affidavits on file and on his own experience when he awards attorneys fees in a divorce case. See McCowan v. McCowan, 313 Ill.App. 654, 49 N.E.2d 536; Moore v. Moore, 25 Ill.App 2d 255, 166 N.E.2d 629; Needler v. Needler, 131 Ill.App.2d 11, 268 N.E.2d 517; Annot, 10 A.L.R.3d 280, 299 (1966).

In this case, the issue was a simple one; the amount of time defendant’s lawyer represented he devoted to the case d d not appear unreasonable; the compensation sought was with'n reasonable limits. Plaint'ff, in open court, was shown copies of the time records involved. And despite his lawyer’s contention to the contrary, there was no showing that discovery proceedings would have revealed anything that would have helped him defend the motion for fees. Therefore, despite the dispute concerning discovery, the trial court did not err in determining the amount of additional temporary attorneys fees by relying on the statement of defendant's attorney concerning the hours he said had been spent in defending the suit filed by the plaintiff.

III.

The record shows that plaintiff filed a motion to vacate which he, through his counsel, allowed to remain inactive for five and a half months, in violation of a purpose implicit in Cook County circuit comt Rule 2.3. When it was called, mainly at defendant’s behest, the trial court denied the motion, giving as grounds the findings he made when he allowed the fees, and plaintiff's failure to call the motion for hearing within 90 days as required by the court rule. In our judgment, this ruling was correct.

Rules of procedure are not ends in themselves; they are designed to secure orderly and fair methods of disposing of litigated matters. (People ex rel. Pickerill v. New York Central R.R. Co., 391 Ill. 377, 383, 63 N.E.2d 405.) The court rule involved was binding on the parties; it should have been obeyed by plaintiffs counsel after the motion to vacate was filed. Although the illness of a lawyer is always a persuasive excuse for his failure to comply with a court requirement, the reason given the trial judge (that counsel was ill for a month and a half) did not really explain why action was not taken on the matter for 5V2 months. The decision whether to vacate an order is always within the sound discretion of the trial court; and only where there is an abuse of that discretion will we interfere. (Stritar v. Stritar, 48 Ill.App.2d 332, 199 N.E.2d 274.) We find no abuse of discretion in the trial court’s denial of plaintiff s motion to vacate. Therefore, the orders allowing additional temporary attorneys fees and denying the motion to vacate are affirmed.

Affirmed.

HAYES, P. J., and DOWNING, J., concur.

       “[EJxtreme and repeated * * * mental cruelty 9 9 9” became a ground for divorce in Illinois in 1967. Ill. Rev. Stat. 1967, ch. 40, par. 1.


author: Mr. JUSTICE DIE RINGER

text:
    Board of Trustees of Junior College Dist. No. 508, County of Cook, Plaintiff-Appellee, v. Cook County College Teachers Union, Local 1600, Defendant-Appellant.
    (No. 59052;
    First District (4th Division)
    September 25, 1974.
    J. Dale Berry, of Kleiman, Cornfield & Feldman, of Chicago, for appellant.
    Roger J. Kiley, Jr., of Chicago, for appellee.
   Mr. JUSTICE DIE RINGER

delivered the opinion of the court:

This is an interlocutory appeal from an order entered on April 2, 1973, in the Circuit Court of Cook County. The order granted to the plaintiff, the Board of Trustees of Junior College District No. 508, its motion to preliminarily enjoin the defendant, Cook County College Teachers Union, Local 1600, from proceeding in certain designated arbitration cases between the parties.

The issues presented for review are whether the Uniform Arbitration Act provides the exclusive remedy for restraining arbitration, and whether it was error for the court to hear the case under the assignment number of a previous case.

The parties were engaged in a collective-bargain'ng relationship since 1967. In May of 1970, the union presented to the board five grievances on behalf of various faculty members, alleging that they had been denied promotions in rank in violation of “past practices” of the Board allegedly covered by the collective-bargaining agreement. As remedies the union demanded promotions for each of the grievants to the faculty rank immediately above the rank they occupied at that time.

The grievances were denied by the board, the union filed demands for arbitration with the American Arbitration Association, and the cases were docketed by the Association.

On October 20, 1970, the union, with the board’s consent, requested these cases be held in abeyance because of pending negotiations between the parties concerning the subject matter of the grievances.

In September of 1972, the union advised the American Arbitration Association of its desire to reinstate the grievances on its calendar for hearing.

On March 29, 1973, the board filed a petition for an injunction and an accompanying motion for a preliminary injunction, alleging that the matter of promotions is not subject to arbitration under the prior or present collective-bargaining agreements, and remains a matter within the discretion of the Board which cannot be lawfully delegated to an arbitrator or limited by a collective-bargaining agreement.

The union filed a motion to dismiss plaintiff’s petition for injunction and to deny its motion for the prelim "nary injunction. On April 2, 1973, the court entered an order granting the board leave to file its petition and motion, denying the union’s motion to dismiss, and temporarily enjoining the arbitration of the union’s grievances.

This case was consolidated for hearing in the appellate court with Case Number 58326 because this dispute arose out of the continuing litigation between the same parties and because the issue in each case is whether the parties were required to proceed under the Uniform Arbitration Act rather than seeking relief in the circuit court.

The Union first contends the circuit court may only enter an order enjoining an arbitration upon a showing that there is no agreement to arbitrate the issue which is the subject of the arbitration. Section 2(b) of the Un form Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, § 102(b)) reads as follows:

“On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.”

The mvon also relies on the case of School District No. 46 v. Del Bianco (1966), 68 Ill.App.2d 145, for the proposition that section 2(b) provides the exclusive remedy for staying arbitration. The court stated:

“The foregoing provisions of the Act militate against the contention that a party to an arbitration agreement may choose between the judicial or arbitration forum. The sole issue under the Act on the preliminary hearings to compel or stay arbitration, is whether there is an agreement to arbitrate. If so, the court should order arbitration; if not, arbitration should be refused. Upon this simple formula, the preliminary hearings on such issue should be determined.” 68 Ill. App. at 156.

However, in the case of Stephenson County v. Bradley & Bradley, Inc. (1971), 2 Ill.App 3d 421, the court held that an application to stay arbitration proceedings need not be governed exclusively by the Act:

“Although Stephenson County filed a declaratory judgment action rather than an application to stay arbitration under the Act, the existence of an agreement to arbitrate was squarely raised and ruled upon. No authority has been cited to us, and we have found none, holding that an application to compel or stay arbitration is the exclusive route to a judicial determination of this threshold question. The remedies do not appear incompatible, and in somewhat different circumstances a suit for declaratory judgment was filed and maintained after a demand for arbitration had been made by the opposing party.” 2 III.App.3d at 425.

In the instant case the determinative question is whether the issue sought to be arbitrated is one which may be properly decided by an arbitrator, not whether there was an agreement to arbitrate or whether the matter was within the scope of arbitration. In companion Case Number 58326, filed this day, we held the question of whether the board’s statutory power could be delegated in a collective bargaining agreement was for the court and not the arbitrator. Board of Education v. Rockford Education Association (1972), 3 Ill.App.3d 1090; Board of Education v. Johnson, (1974), 21 Ill.App.3d 482.

In the instant case the board alleged in its petition that the matter of promotions is not subject to arbitration under the prior or present collective bargaining agreements and remains a matter within the discretion of the board which cannot lawfully be delegated to an arbitrator or Hmited by a collective bargaining agreement.

Therefore, we hold the Uniform Arbitration Act does not provide the exclusive remedy for restraining arbitration, and an arbitrator must defer to the courts when there is a question concerning the delegation of authority to enter into a collective bargaining agreement.

The union also contends the court erred by accepting the boards petition for injunction and motion for prehminary injunction as part of the ongoing litigation between the parties rather than awaiting the opening of a new case. The union states the issue in the present case arose out of a different bargaining agreement than that of the principal case and suggests the board “arrogated to itself the assignment responsibilities of the presiding judge.” Therefore, the board should have presented its petition to the circuit court as a new action.

Even assuming the boards petition was not properly includable within the principal case over which the court had retained jurisdiction, there has been no aUegation of bad faith on the part of the board or prejudice to the union.

It is important to note the union appeared, filed responsive pleadings, and participated in all hearings. The union’s contention does not go to the court’s jurisdiction to hear the case, and absent a showing of prejudice, any error which might have occurred is clearly harmless error which is not sufficient for setting aside the order of the trial court.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    The Board of Trustees of Junior College District No. 508, County of Cook, Plaintiff-Appellee, v. Cook County College Teachers Union, Local 1600, et al., Defendants-Appellants.
    (No. 59497;
    First District (4th Division)
    September 25, 1974.
    Kleiman, Cornfield & Feldman, of Chicago (Gilbert Feldman, of counsel), for appellants.
    Roger J. Kiley, Jr., of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendants, Cook County College Teachers Union, Local 1600, and Norman G. Swenson, President, et al., appeal from an order entered June 25, 1973, by the Circuit Court of Cook County granting declaratory judgment for the plaintiff, Board of Trustees of Junior College District No. 508.

The issues presented for review are whether the appeal should be dismissed for mootness; whether a judiciable case or controversy was presented which warranted the granting of declaratory relief; and whether the power of the Board to transfer teachers administratively can be delegated through collective bargaining.

The parties have been involved in a collective bargaining relationship since 1967, During 1970, contract negotiations were conducted under the auspices of the Circuit Court of Cook County, and a collective bargaining agreement was incorporated into an agreed decree on July 27, 1971. By the terms of the decree, the court retained jurisdiction over the parties for the purpose of “applying legal and equitable principles of contract law.”

Among the provisions in the new agreement was a statement of teacher transfer policy contained in article VIII:

“A faculty member being permanently transferred from one campus of the College to another campus at the request of the administration shall retain his college-wide seniority for all purposes at his new campus; and he shall have the right to choose the campus to which he is being transferred. The reviewing department shall be notified at least ten (10) days before the Chancellor’s recommendation for such transfer is presented to the Board.”

In February of 1973, the Board filed a petition for declaratory relief in the Circuit Court of Cook County, alleging that an irreconcilable difference of opinion existed between the Board and the union concerning the limits, if any, of the Board’s power to involuntarily transfer its faculty members.

It is the Board’s position that it has the unfettered discretion to transfer its faculty members when it believed it is in the colleges’ best interest, and that the faculty member’s choice of colleges is exercisable only to the extent it is consistent with the Board’s purpose for the transfer and to the extent the provision is interpreted to the contrary is an unlawful limitation upon the Board’s statutory powers. The Board relies on article II G. of the agreed decree, which states:

"G. Board Authority. The Union recognizes that the Board retains full authority to carry out the powers and duties granted to it by the Public Junior College Act and other applicable laws.”

The union contended that the Board’s power to transfer faculty arose from the bargaining agreement, and that this power was substantially limited by the contractual language set forth in article VIII.

On June 25, 1973, the court held that the contractual language in question did not prevent the Board from making good faith involuntary transfers of faculty. Pursuant to this authority, the Board made three involuntary transfers on July 3, 1973.

Subsequent to these transfers and during the pendency of this appeal, the Board and the union negotiated a new collective bargaining' agreement effective through June 30, 1975. This new agreement provides in part:

“Unless mutually agreed to otherwise, there shall be a freeze op all faculty transfers during the period of this agreement.”

Also, as part of the negotiations of the new agreement, the Board rescinded the transfers of July 3, 1973.

Reviewing courts are not bound to determine questions which have become moot and the resolution of which will serve no beneficial purpose to the litigants. (First National Bank v. Road District No. 8 (1945), 389 Ill. 156; Harvey v. Cahill (1965), 57 Ill.App.2d 1.) As stated in People v. Redlich (1949), 402 Ill. 270, 278-279:

“A question is said to be moot when it presents or involves no actual controversy, interests, or rights of the parties, or where the issues have ceased to exist. (Chicago City Bank & Trust Co. v. Board of Education, 386 Ill. 508, 54 N.E.2d 498.) The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error.”

While reviewing courts have decided issues moot as to the litigants where the issues were of substantial public interest and likely to reoccur (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618), we believe no issues remain in view of the rescinding of all involuntary transfers subsequent to the court’s June 25, 1973, order and the moratorium on any transfers until June 30, 1975. Whether any transfers will be made after that date is speculative and a decision at this time would serve no purpose.

Therefore, the appeal is dismissed.

Appeal dismissed.

ADESKO, P. J., and BURMAN, J., concur.


text:
    The Board of Trustees of Junior College District No. 508, County of Cook, Plaintiff-Appellee, v. Cook County College Teachers Union, Local 1600, et al., Defendants-Appellants.
    (No. 58326;
    First District (4th Division)
    September 25, 1974.
    Kleiman, Cornfield & Feldman, of Chicago (Gilbert A. Cornfield, of counsel), for appellants.
    Roger J. Kiley, Jr., of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The plaintiff, Board of Trustees of Junior College District No. 508, brought this action for declaratory judgment in the Circuit Court of Cook County against the defendants, Cook County Teachers Union, Local 1600; and Norman G. Swenson, President; William Prince, Vice President; Mary Jane Rudolph, Secretary; George Trent, Treasurer; Michael C. Kaufman, Richard Lemer, Charles Simon, as individuals, as officers, as collective bargaining representatives, and as members and representatives of the class of members of the union.

The issues on appeal are whether the circuit comt had jurisdiction to heai- and determine the issues presented below; whether the court correctly ruled that arbitrators are without authority to award positions of public employment as remedies for alleged violations of a collective bargaining agreement; and whether the lower court ruling denies the faculty members their constitutional rights.

The Board is a body politic and corporate created by Act. (Ill. Rev. Stat. 1971, ch. 122, § 101 — 1 et seq.) It operates seven junior colleges within the City of Chicago serving approximately 36,000 students and employing approximately 1200 full-time teachers.

The union is a membership association affiliated with the American Federation of Teachers. Since May of 1967, and up to December 31, 1970, the Board and union had signed successive collective bargaining agreements in which the union was recognized as the exclusive bargaining representative for all of the Board’s full-time teachers.

The Board and the union began negotiations for a new collective bargaining agreement some months prior to the December 31, 1970, expiration date of their existing agreement, but negotiations did not conclude before the agreement expired.

On January 5, 1971, the teachers began a union-sponsored strike, which resulted in the Board filing an action for an injunction. After much conflict between the parties, the Board and the union began open-court public negotiations in an attempt to settle the dispute. These negotiations were completed on July 20, 1971, and the agreements were incorporated in an agreed decree entered on July 27, 1971. That decree provided in part:

“The Board and the Union, agreed on July 20, 1971, that this collective bargaining agreement between them is to be made part of this Decree so as to continue the Court’s jurisdiction during the term of this agreement (to expire June 30, 1973) for purposes of applying the legal and equitable principles of contract law.”

Subsequent to the entry of the agreed decree, both the Board and the Union invoked the jurisdiction of the court to resolve matters of interpretation of the agreed decree.

In the instant matter the president of one of the colleges operated by the Board recommended that the Board not rehire eight nontenured teachers after the expiration of their 1-year contracts. The union filed grievances on behalf of the teachers seeking a review of the president’s judgment and asking the arbitrator to grant employment contracts to the teachers. The case was docketed by the American Arbitration Association and set for hearing.

On July 18, 1972, the Board filed a petition for declaratory relief, requesting the court, pursuant to the agreed decree, to declare that the arbitrator could not legally grant employment contracts to teachers because that power was vested solely in the Board by statute and could not lawfully delegate it to another. The union moved to dismiss the Board’s petition on the grounds the court had no jurisdiction to hear and determine the issues.

On July 20, 1972, the court entered its order denying the union’s motion and directing it to answer the Board’s petition. After the evidence and arguments were heard, the court published a memorandum opinion in which it granted the Board’s petition, declaring the Board, by statute, was the only one that could legally hire teaching personnel for the colleges, and that tire arbitrator had jurisdiction only to determine whether any of the agreed evaluation procedures incorporated in each faculty member’s employment contract had been complied with. In the event he determined a faculty member had been deprived of procedures agreed to, he could only order the Board to comply with the procedure; he could not grant an employment contract as a remedy.

Tire court formalized this op'nion by incorporating it in a decree entered on September 15, 1972, in which it ordered the Board and the union to proceed to arbitration in accordance with his published opinion. Subsequently, as part of an order entered on October 23, 1972, the court made its memorandum opinion equally applicable to two other arbitration cases in which arbitration awards had been issued subsequent to and inconsistent with his memorandum opinion. His October 23, 1972, order vacated the awards of the arbitrators in these two cases insofar as they purported to grant employment contracts to teachers.

This appeal is taken from both the September 15, 1972, decree and the October 23,1972, order.

The union first states the court was without jurisdiction or- authority to restrain or restrict the scope of arbitration before the arbitration was held, and argues that a court cannot assert jurisdiction over parties, either of its own initiative or by the agreement of the parties, and the issue upon which the court ruled, staying and then limiting the scope of arbitration, had not been the subject of any complaint, petition, or counterclaim previously pend.ng or ruled upon by the court.

The court relied upon the case of Board of Education v. Rockford Educational Association, Inc. (1972), 3 Ill.App.3d 1090, but the union states it disagrees with the result and also states the case does not stand as authority for the prior restraint of an arbitration proceeding.

We find the jurisdiction of the trial court was supported by the previous decree wh’ch expressly retamed jurisdiction, and also under case law. In the Rockford case the appellate court upheld a court’s order entered in a declaratory judgment action preventing further arbitration proceedings notwithstanding a finding of arbitrability which had already been made by the arbitrator. There, as well as in the instant case, the Board of Education brought before the court, by way of petition for a declaratory judgment, the issues as to whether or not the collective bargaining agreement’s arbitration provisions would constitute an illegal delegation of public authority.

It can also be seen from the Rockford decision that a prior award of the arbitrator is not a precondition to jurisdiction. In that case the arbitration had not been completed when application was made to the court as the arbitrator had yet to render a decision on the merits. Also, see Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1960), 109 Ill App.2d 224, and County of Stephenson v. Bradley & Bradley, Inc. (1971), 2 Ill.App.3d 421. No purpose is served by waiting for the arbitrator to rule upon jurisdiction, which is a purely legal question. In the recent case of Board of Education v. Johnson (1974), 21 Ill.App.3d 482, 494, the court stated:

“We also held that only those items not in contravention of the Code would be subject to arbitration but, because we have held that the determination of qualifications rests with the school administration and is not arbitrable, and since the Johnson grievance involves the question of her qualification, it would serve no useful purpose here to remand this case for a determination of its arbitrability.”

The un;on also suggests the Un'form Arbitration Act supports its position that the court was without jurisdiction to hear the petition for declaratory relief. However, the express provisions of the Act make it inapplicable to the vacation, modification or correction of arbitrations arising out of collective bargaining agreements. Section 12(e) of the Act (Ill. Rev. Stat. 1971, ch. 10, § 112(e)) provides:

“Nothing in this Section or any other Section of this Act shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.”

Even if the Uniform Arbitration Act were applicable, section 12(a) expressly provides that upon application of a party, the court shall vacate an award where “the arbitrators exceed their powers.”

There is no question that under the common law a court can stop an arbitrator from exceeding his powers. Board of Education v. Champaign Education Association (1973), 15 Ill.App.3d 335; Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1960), 109 Ill.App.2d 224.

There is also no question that an arbitrator is without authority to award positions of employment in the junior colleges of the State of Illinois. Under section 3 — 26 of the Public Junior College Act (Ill. Rev. Stat. 1971, ch. 122, § 103 — 26) the Board has the power to make appointments of all teachers, providing only that it “may make no discrimination on account of sex, race, creed, color or national origin.” The collective bargaining agreement which formed a part of the previously entered agreed decree contained two provisions limiting the scope of arbitration with respect ,to Board authority. Article II, section G, of the collective bargaining agreement reads as follows:

“Board Authority. The Union recognizes that the Board retains full authority to cany out the power and duties granted to it by the Public Junior College Act and other applicable laws.”

Article X, entitled “Grievance procedure,” provides as follows:

“The arbitrator shall limit his decision strictly to the application and interpretation of the provisions of this agreement and he shall be without power or authority to make any decision:
* # #
(2) Limiting or interfering in any way with the powers, duties and responsibilities of the Board under applicable law.”

The union argues the circuit court’s ruling renders certain contract rights of the teachers unenforceable, and that violations by the Board of the evaluation procedures for contract renewal and tenure are therefore not remediable. However, it has been shown the collective bargaining agreement left intact the discretion of the Board to determine who would be offered contracts of employment, a discretion vested in the Board alone by the legislature. The agreement does not delegate that authority to an arbitrator, but provides only for evaluation of the faculty member by his department under procedures established by the department. Those procedures are only advisory in nature and are not binding on the Board.

Under the position taken by the union, that an arbitrator may award contracts to cure a defect in procedure, the Board is denied the opportunity to cure the defect in the recommendation procedure and reevaluate the faculty member after a defect-free procedure. Under such a rule, defects in the system would be the best thing that could happen to a faculty member.

Finally, the union argues that by eliminating the possibility of effective remedy the court has abridged each faculty members constitutional rights of due process. However, in the case of Board of Regents v. Roth (1972), 408 U.S. 564, the United States Supreme Court held that the Constitution does not require an opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract unless he can show that the decision not to rehire him somehow deprived him of an interest in “liberty” or that he had a “property” interest in continued employment despite the lack of tenure or formal contract. The union acknowledges the case but suggests the companion case of Perry v. Sindermann (1972), 408 U.S. 593, is more applicable. In that case the public school teacher alleged the existence of de facto tenure and that he was denied due process guarantees when he was fired. The court held that the teacher had a right to develop his case with respect to establishing his right to tenure based on the established policies of the school. The facts in that case are not the same as those in the case at bar where tenure is clearly defined and there is no question that the teachers are not entitled to it.

In Anderson v. Board of Education (1945), 390 Ill. 412, the court said of the same authority conferred on the common schools by the school code:

“Under the prior decisions of this court, no person has a right to demand that he or she shall be employed as a teacher. The school board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever. It is no infringement upon the constitutional rights of any future board to decline to employ a teacher in the schools. It is free to contract with whomsoever it chooses. Neither the constitution nor the statute places any restriction on this right and no one has any grievance which the court shall recognize simply because the board of education refuses to contract with him or her.”

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


text:
    The Board of Trustees of Junior College District No. 508, County of Cook, Plaintiff-Appellee, v. The Cook County College Teachers Union, Local 1600, et al., Defendants-Appellants.
    (No. 59727;
    First District (4th Division)
    September 25, 1974.
    J. Dale Berry, of Kleiman, Cornfield & Feldman, of Chicago, for appellants.
    Roger J. Kiley, Jr., Ltd., of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendants, the Cook County College Teachers Union, Local 1600, et al., appeal from an order entered on August 6, 1973, in the Circuit Court- of Cook County, granting summary judgment for the plaintiff, Board of Trustees of Junior College District No. 508. The order modified a prior award in favor of the Union in an arbitration proceeding between the parties.

The issues presented for review are whether the court had authority to modify the arbitration award based on a ground that the arbitrator exceeded his authority, and whether the arbitrators award of back pay to certa "n members of the Union for which no services were required to be performed was an illegal expenditure because it constituted a gift of public funds.

The parties have been involved in a collective bargaining relationship since 1967. The Union’s grievance, filed on June 11, 1971, alleged the Board had violated the provisions of Article VIII of the collective bargaining agreement, which established a procedure for equalizing the distribution of extra work assignments among the faculty. It provided for teachers to work on a rotational basis so that every teacher received an equal opportunity to perform extra work. In the summer of 1971, certain teachers were passed over in favor of other teachers who were behind them on the rotational scale. These teachers, who were passed over, filed a grievance which was ultimately arbitrated before the American Arbitration Association as provided by the agreement.

The arbitrator expressly found the teachers could be made whole only by receiving retroactive compensation for the income lost to them during the 1971 summer session as a result of the Board’s failure to comply with its contractual obligations.

On June 23, 1973, the Board made application to the Circuit Court of Cook County for declaratory relief and modification of the arbitrator’s award, and on August 6, 1973, the court granted summary judgment in favor of the Board and modified the arbitrator’s award by directing the teachers be required to perform extra work in the future instead of receiving back pay with no obligation to perform extra work.

The defendants first contend the lower court was without authority to modify the arbitration award because there was no showing the arbitrator decided questions that were not submitted to him, or that the award was obtained by fraud or misconduct. By implication they are contending that an arbitration award pursuant to a collective bargaining agreement cannot be modified because the arbitrator exceeded his power.

The conditions for vacating or modifying an arbitration award are set forth in section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1971, ch. 10, § 112) which provides in part:

“(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
# ft # »

However, subsection (e) provides that these grounds for modification do not apply to collective bargaining agreements, and that one must look to prior law to ascertain the grounds:

“(e) Nothing in this Section or any other Section of this Act shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.”

The defendants contend the grounds which existed prior to the enactment of the Uniform Arbitration Act are to be found in the prior Act of 1917, rather than in the common law. Section 11 of that Act provides:

“If any legal defects shall appear in the award or other proceedings, or if it shall appear that the award is not sustainable under the opinions of the court upon questions of law under section 6 of this Act, the court may set aside such award * * * to the reconsideration of the said arbitrators; or, if it shall appear, on oath or affirmation that said award was obtained by fraud, corruption or other undue means, or that such arbitrators misbehaved, said court may set aside such award.” Laws of Illinois 1917, pp. 203-204.

Because section 11 does not provide for the vacation of the arbitrator’s judgment by reason of his exceeding his power, the defendants contend it was error for the cotut to modify the award.

However, in the case of Board of Education v. Champaign Education Association (1973), 15 Ill.App.3d 335, 340, the court stated that section' 11 could not be relied upon:

“We find the Association’s reliance upon the grounds for vacating arbitration awards contained in the 1971 Act, which was explicitly repealed by the enaction of the Uniform Arbitration Act in 1961, without merit. Not only was that Act repealed, none of its terms were expressly re-enacted or extended and even if they were, its general language of legal defects’ would clearly seem to permit vacating awards entered by an arbitrator acting without authority as is the case under both common law and the Uniform Arbitration Act. Where an arbitrator exceeds the power granted to him by the agreement between the parties, his decision is void and unenforcible [sic] to the extent such powers were exceeded.”

Therefore, it is the common law which governs the trial court’s authority and not section 11 of the 1917 Act, and it is clear the common law provides that an arbitration award can be reviewed by the courts where an arbitrator exceeded his authority. County Mutual Insurance Co. v. National Bank of Decatur (1969), 109 Ill.App.2d 133; Board of Education v. District 228, Joint Faculty Association (1972), 4 Ill.App.3d 143.

The defendants assert the award of back pay did not constitute a gift of public funds for which the arbitrator could be deemed to have exceeded his authority. In Steelworkers v. Enterprise Wheel (1960), 363 U.S. 593, The Supreme Court held that arbitrators could award back pay, and Illinois courts have held that public employees who have been wrongfully deprived of work are entitled to the remedy of back pay. People ex rel. Bourne v. Johnson (1965), 32 Ill.2d 324; Kelly v. Chicago Park District (1951), 409 Ill. 91.

The defendants also cite the case of Antonopoulou v. Beame (1973) 32 N.Y.2d 126, 343 N.Y.S. 2d 346, for the proposition that awarding back pay without requiring extra work is not a gift of public funds. In that case a full-time college lecturer was awarded back pay when it was held that she was illegally prevented from returning from a maternity leave. The court specifically rejected the argument that back pay without rendering service was a gift. The court reasoned that a legal obligation to pay could not be considered a gift of public funds.

However, in that case the circumstances were such the teacher could be made whole only by receiving back pay because she was deprived of doing what she had a contract to do. In the instant case the arbitrator’s award made the defendants more than whole because there was no contractual right to teach during that summer. The defendant’s contract only provided for the opportunity to do extra work as it became available, it did not provide for teaching during a specified period of time. This is not a wrongful denial of full-time non-reoccurring employment.

Therefore, to be made whole, the defendants were entitled to no more than the opportunity to teach extra courses whenever they became available. Because the defendants would have preferred to do their extra teaching during that particular summer is of no legal consequence because the contract did not provide for it.

Article 8, § 1, of the Illinois Constitution of 1970 provides:

“(a) Public funds, property or credit shall be used only for public purposes.
(b) The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance.”

In this case, the order to pay money out of tax revenues to teachers for no work performed where the work could be performed without financial prejudice to the grievants is tantamount to a gift of public monies within the prohibition of the constitutional provisions.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE BURMAN

text:
    Carl Klehm, d/b/a Charles Klehm and Son Nursery, PlaintiffAppellee, v. M. Suson & Associates, Inc., et al., Defendants-Appellants.
    (No. 59240;
    First District (4th Division)
    September 25, 1974.

      Rehearing denied October 24, 1974.

      Gordon, Reicin, West and Rosenblum, of Chicago (David M. Mattenson, of counsel), for appellants.
    Chatz, Sugarman & Abrams, of Chicago (Joel A. Haber and Michael H. Berman, of counsel), for appellee.
   Mr. JUSTICE BURMAN

delivered the op'nion of the court.

This is an appeal by the defendants from an order of the circuit court grant'ng plaintiff’s petition to reinstate his lawsuit after it had been dismissed for want of prosecution.

The plaintiff filed an action in the law division of the circuit court on August 30, 1967. In his complaint he alleged that there was due from M. Suson & Associates, Inc., for labor, materials and services furnished, the amount of $14,131.76. Morrie Suson answered on October 13, 1967, stating that because of plaintiff’s failure to perform and because of defective materials sh’pped to him by plaintiff he sustained damages exceeding the amount of the plaintiff s claim.

Various pre-trial procedures were thereafter conducted while the suit was pending in the law division. On November 24, 1967, a notice was served by the plaintiff for the purpose of taking the deposition of Morrie Suson. On March 19, 1968, a motion was made by the plaintiff reciting that Suson had failed to appear on several dates for deposition and requesting that the defendant’s- answer be stricken and that a default judgment be entered against the defendant for that reason. An order was entered the same day requiring Suson to appear for deposition on April 18, 1968. On August 7, 1968, in response to the plaintiff’s motion that the defendant file a bill of particulars to clarify its answer, the court ordered that the plaintiff file an amended complaint and the defendant an amended answer. An order was entered June 10, 1970, granting leave to the plaintiff to add Morrie Suson as a party defendant. A summons was issued for Suson on June 12, 1970. The amended complaint was filed by the plaintiff on July 16, 1970, and the defendants’ answer to the amended complaint followed on July 20, 1970.

On August 31, 1970, the chief judge of the circuit court of Cook County ordered that all cases presently pending in the law division of the circuit court having an ad damnum of $15,000 or less be transferred to the municipal division of the court. The cause was thereafter dismissed for want of prosecution on December 10, 1970. On April 2, 1973, 2 years and 4 months later, the plaintiff served notice that he would appear on April 10, 1973, to present a petition to vacate the order of dismissal pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72). The motion to vacate alleged that the plaintiff received no notice of the transfer of the case by the chief judge from the law division to the municipal division. It further alleged that a partner in the law firm handling the case for the plaintiff and who was charged with the responsibility of following the status of the case had withdrawn from the firm, and that the petitioner was unaware that the case had been dismissed until April 1, 1973. Pursuant to plaintiff’s petition, the order of dismissal was vacated and the cause was reinstated and set for hearing on April 16, 1973.

On the above date, an order was entered granting the law firm of Gordon, Reicin, West & Rosenblum leave to file its appearance as associate counsel for the defendants. A petition was then filed by that firm on May 3, 1973, to vacate the order of April 10 reinstating the cause for trial. The petition alleged that the plaintiff’s petition of April 10 relied on section 72 of the Civil Practice Act, and that the petition was not argued on its merits, and that if it were it could not be sustained because the plaintiff failed to provide affidavits or to otherwise show due diligence in prosecuting his claim as required by section 72. It further alleged that the plaintiff was not entitled as a matter of law to have the case reinstated because the April 10 petition was filed more than two years after the entry of the order of December 10, 1970, dismissing the cause, in contravention of section 72(3) which sets 2 year's as the maximum time period for section 72 relief. On May 3, 1973, Judge Charles P. Horan, the same judge who had entered the original order-dismissing the case for want of prosecution, and who had later reinstated it on April 10, 1973, denied the defendants’ petition seeking to vacate the order reinstating the cause for trial.

The defendants reassert on appeal that the April 10, 1973 order reinstating the cause for trial is void as a matter of law since the plaintiff applied for relief under section 72 after the statutory period for such relief had expired. Subsection (3) of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72(3)) recites:

“The petition must be filed not later than 2 years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.”

It is further reasserted that section 72 relief should have been denied because the plaintiff failed to allege and affirmatively show due diligence in prosecuting and following his claim.

We first note that a petition under section 72 to vacate a dismissal of a cause is always addressed to the equitable powers of the court and only where there is an abuse of discretion will the reviewing court interfere. (Stackler v. Village of Skokie, 53 Ill.App.2d 417, 203 N.E.2d 183.) In Ellman v. De Ruiter, 412 Ill. 285, 106 N.E.2d 350, the supreme court announced the broad rule applicable to section 72 petitions as follows:

“[I]t is our belief that the motion may, under our present practice, be addressed to the equitable powers of the court, when the exercise of such power is necessary to prevent injustice.” 412 Ill. at 292, 106 N.E.2d at 353-54.

And although we agree with the defendants that the two year statute of limitations on section 72 petitions has been considered mandatory by the Illinois courts (Mathews v. Atlas Liquors, Inc., 132 Ill.App.2d 608, 270 N.E.2d 453), this time limitation does not apply to void orders. (Weiner v. Checker Taxi Co., 124 Ill.App.2d 401, 260 N.E.2d 439. Section 72 itself provides, in subsection (7):

“Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.”

The trial judge’s apparent decision was that due to the confusion generated by the transfer of the case without actual notice to the parties or to then- attorneys deprived the court of jurisdiction to dismiss the case, and that therefore relief was not precluded by the time limitation contained in section 72(3). Judge Horan, in denying the defendants’ petition to vacate the order reinstating the cause for trial, stated:

“[T]his is a case originally filed in the Law Division and it was pending there from 1967, to August 31, 1970, and * * * on that date the case with some other 8500 cases was transferred to the Munic;pal Division, and the record is clear that no notice was sent to the lawyers or the parties in th:s lawsuit; 6 * ° such transfer was made by the Court, while its true that a general notice of the transfer of this and other cases appeared in the Law Bulletin, yet, it is this Court’s feeling that the general notice and announcement was not sufficient to put the lawyers on notice in this particular case * *

Under the peculiar circumstances presented here, we affirm the trial judge’s decision.

The record clearly establishes that without actual notice to the plaintiff or his attorneys an order was entered on August 31, 1970, ordering all cases hav'ng an ad damnum of $15.000 or less than pending in the law division transferred to the municipal division of the circuit court. When the matter, now on the munic:pal division docket, was called for trial on December 10, 1970, neither the plaintiff nor the defendants appeared, and the case was dismissed for want of prosecution. It is undisputed that the only notice of the transfer was a general notice by publication in the Chicago Daily Law Bulletin, and it seems clear that neither party had any actual knowledge of the transfer since both failed to appear in the municipal division on the day the case was called for trial. A glance at the file of the case on the dismissal date would clearly have indicated that this was a contested matter and that the parties fa’lure to appear was due to the fact that they were waiting for a trial date to be set by the court in the law division and not in the municipal division.

In Storm v. Ben-Lee Motor Service Co., 11 Ill.App.3d 516, 298 N.E. 2d 315, similar confusion resulted in an ex parte judgment, which the defendant succeeded in having vacated pursuant to a petition under section 72. Although there the petition was filed within 2 years, the appellate court, in finding no abuse of discretion in the trial judge’s decision to vacate the judgment, commented, as we do here, that the courtesy of a phone call could have prevented the needless occurrence of one party losing its right to litigate under the circumstances. We further note that in the case at bar the defendants did not appear in court when the case was called for trial and, had the plaintiff’s counsel appeared, there may have been an ex parte judgment entered against the defendants. The shoe would then uncomfortably have been on the other foot.

As we have stated, the same judge who entered all of the aforementioned orders held that no notice of the transfer of the case had been sent to the lawyers or the parties to the suit and that the general notice appearing in the Law Bulletin was not sufficient to put the lawyers on notice of the change. We uphold his decision to reinstate the cause since the confusion generated by the transfer without actual not ce to the parties or to their attorneys deprived the court of jurisdiction to dismiss it. Lapse of time does not affect the right to make a motion to expunge a judgment when the court, as in the peculiar circumstances of the case at bar, did not acquire jurisdiction to enter it. (Sherman & Ellis, Inc. v. Journal of Commerce & Commercial Bulletin, 259 Ill.App. 453.) In view of our decision, the issue raised by the defendants of plaintiffs failure to demonstrate due diligence is not determinative (Oak Park National Bank v. Peoples Gas Light & Coke Co., 46 Ill.App.2d 385, 197 N.E.2d 73), and considering what occurred, we reject that argument in any event. The plaintiff filed his notice to vacate the order of dismissal promptly upon discovering that such an order was issued.

In sum, we hold that the trial judge was justified in denying the defendants’ motion to vacate the reinstatement of the case and in allowing the plaintiff the opportunity to vindicate his substantive rights. See Ill. Rev. Stat. 1971, ch. 110, par. 4.

Affirmed.

ADESKO, P. J., and DIERINGER, J„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Montgomery, Defendant-Appellant.
    (No. 59437;
    First District (3rd Division)
    September 19, 1974.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.