author: JUSTICE LINDBERG

text:
    RAYMOND P. FISCHER et al., Successor Trustees, et al., Petitioners-Appellees, v. SUSAN M. LaFAVE et al., Respondents-Appellees (Scott G. Schuttler, Respondent-Appellant).
    Second District
    No. 2 — 88—0679
    Opinion filed August 30, 1989.
    Rehearing denied October 13, 1989.
    Roger A. Ritzman, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton, for appellant.
    Harold F. Tuber, of Laff & Tuber, Ltd., Marvin S. Berz, Nathan N. Kessler, and Ralph E. Jacobson, all of Chicago, for appellees.
    W. Thomas Powell and Kevin William Bloese, both of Vescelus, Powell & Stock, of Wheaton, guardian ad litem.

   JUSTICE LINDBERG

delivered the opinion of the court:

Petitioners are successor cotrustees of four trusts created by the late Peter Schuttler (Peter) and his wife, the late Martha Braun Schuttler (Martha), who were each the settlor of separate testamentary and inter vivos trusts. Respondents-appellees are all beneficiaries or potential beneficiaries of the trusts. Petitioners brought this action seeking instructions regarding whether respondent-appellant Scott G. Schuttler (Scott) is entitled to participate in the distribution of the income and the principal of the trusts.

The trial court entered an uncontested order that Scott is entitled to participate in the distribution of the income and the principal of Martha’s testamentary trust. As of the date of the filing of the notice , of appeal, it does not appear that the court had disposed of the ques- I tion with regard to Martha’s inter vivos trust, so that claim may still be pending in the circuit court. I

The trial court entered the three-page order which is the subject of this appeal on June 20, 1988. The court ordered that Scott and anyone claiming through him “be excluded from participation in the distribution of income and the principal arising out of” Peter’s testamentary and inter vivos trusts. On that date the trial court also ordered:

“(1) said three page order entered this date is a final order;
(2) there is no just reason for delaying enforcement or appeal.”

The case at bar is Scott’s appeal from the final judgment regarding Peter’s trusts. 107 Ill. 2d R. 304(a).

Peter executed a will dated December 21, 1939, and a codicil dated January 28, 1941. The provisions of the will establishing the testamentary trust included:

“(d) Said trustees shall divide the trust estate into three equal shares or portions ***. Said portions of the trust estate shall be dealt with and disposed of as follows:
* * *
(2) Said trustees shall expend and disburse the net income from the second portion of my trust estate *** for the benefit of my son, Peter Schuttler, Jr., for and during the term of his natural life. ***
From and after the death of my said son *** the net income from the second portion of my trust estate shall be paid to my said grand-children, PETER SCHUTTLER V., i JOAN SCHUTTLER, and BALLARD SCHUTTLER, and to 1 their lawful issue them surviving ***. j
(3) *** From and after the time when the youngest of my said grand-children living shall have attained the age of twenty-five years, the net income from the third portion of my trust estate shall be paid to my said grand-children PETER SCHUTTLER V., JOAN SCHUTTLER and BALLARD SCHUTTLER, and to their lawful issue them surviving ***.
(f) The trust hereby created shall terminate twenty (20) years after the death of the survivor of my wife, Martha Braun Schuttler, my son, Peter Schuttler, Jr., and my grand-children Peter Schuttler V., Joan Schuttler, and Ballard Schuttler; and the trustees shall thereupon transfer, pay over, deliver and convey said trust estate together with all accumulations and undistributed income to the lawful issue of my grand-children, Peter Schuttler V., Joan Schuttler and Ballard Schuttler ***.”

Peter executed a trust Indenture creating an inter vivos trust on December 26, 1940. Among the terms of this inter vivos trust were:

“3. (a) From and after the death of the said son of Settlor the net income from said first share of said trust estate shall be paid to the said grandchildren of the Settlor, Peter Schuttler V, Joan Schuttler and Ballard Schuttler, and to their lawful issue them surviving ***.
(b) *** From and after the time when the youngest of said grandchildren living shall have attained the age of twenty-five years the net income from the said second share of said trust estate shall be paid to said grandchildren, Peter Schuttler V, Joan Schuttler and Ballard Schuttler, and to their lawful issue them surviving ***.
* * *
5. The trust hereby created shall terminate twenty years after the death of the survivor of said Martha B. Schuttler, said Peter Schuttler, Jr. and said Peter Schuttler V, Joan Schuttler and Ballard Schuttler, and the Trustees shall thereupon transfer, pay over, deliver and convey said trust estate, together with all accumulations and undistributed income, to the lawful issue of said grandchildren of the Settlor, Peter Schuttler V, Joan Schuttler and Ballard Schuttler *** and in default of such issue to the heirs-at-law of the Settlor, except the Settlor, as determined by the law of Illinois in effect at the date of such distribution.”

Peter died on May 12, 1941, and Martha died on April 25, 1963. In 1976, when Scott G. Schuttler was 18 years old, Ballard Schuttler (Ballard) adopted him. Ballard died on August 20,1986.

The question in the trial court was, and now in this court is, whether Scott as the adopted son of Ballard is the “lawful issue” of Ballard, as that phrase is used in Peter’s trusts. If so, Scott is entitled to participate in the distribution of the income and the principal of those trusts along with the other beneficiaries. Otherwise, he is not entitled to participate in the distribution of the income and the principal of those trusts. The trial court found that Scott was not the “lawful issue” of Ballard, as that phrase is used in Peter’s trusts, and therefore is “excluded from participation in the distribution of income and the principal arising out of” Peter’s trusts. We affirm.

Resolution of the issue in this case requires the construction of provisions of a testamentary trust created by Peter’s will and an inter vivos trust created by Peter’s trust indenture. The same rules of construction apply to both the will and the trust indenture. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3-4, 513 N.E.2d 833, 834.) The object in construing a will or trust is to ascertain the intent of the testator or settlor and, so long as that intention is not contrary to public policy, to give effect to it. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3, 513 N.E.2d 833, 834; Ford v. Newman (1979), 77 Ill. 2d 335, 338, 396 N.E.2d 539, 540; In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 913, 446 N.E.2d 887, 889-90.) That intent must be determined, insofar as it is possible, from the terms of the instrument, and where the terms are clear a court may not consider surrounding circumstances to vary the intention expressed. (In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 913, 446 N.E.2d 887, 890.) A testator or settlor is presumed to have known the law in force at the time the instrument was drafted and to have drafted it in conformity with that law, so the state of the law when the instrument was drafted is one of the circumstances that can be considered in determining the testator’s or settlor’s intent. (In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 913, 446 N.E.2d 887, 890.) With respect to the testamentary trust, a will and all codicils must be read together as one instrument of the date of execution of the last codicil. Knight v. Bardwell (1965), 32 Ill. 2d 172, 175, 205 N.E.2d 249, 251.

The trust indenture was executed on December 26, 1940, and the codicil to Peter’s will was executed on January 28, 1941. Those then are the dates on which Peter’s intent with respect to the phrase “lawful issue” must be ascertained.

We find that our supreme court’s opinion in Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539, is controlling. In that case the question was whether a settlor intended to include adopted children in the term “lawful issue” used in an irrevocable inter vivos trust executed on December 31, 1941. (Ford v. Newman (1979), 77 Ill. 2d 335, 337-38, 396 N.E.2d 539, 540.) The court stated:

“In the case at bar, the settlor did not expressly refer to adoptees in the instrument. She did, however, with the aid of counsel, utilize the term ‘lawful issue,’ to refer to the issue of her two sons. We must examine how, on the date of execution, the law defined ‘lawful issue’ as the settlor employed that term.” (Ford v. Newman (1979), 77 Ill. 2d 335, 339, 396 N.E.2d 539, 540.)

As relevant to the case at bar, the supreme court resolved this question as follows:

“[In 1941], the following statute was in effect in Illinois:
‘A child lawfully adopted is deemed a descendant of the adopting parent for purposes of inheritance, except that the adopted child shall not take property from the lineal or collateral kindred of the adopting parent per stirpes or property expressly limited to the body of the adopting parent.’ (Ill. Rev. Stat. 1941, ch. 3, par. 165.)

See Miller v. Wick (1924), 311 Ill. 269[, 142 N.E. 490].

Under the law of [Illinois], adopted children were deemed not to be included as ‘lawful issue’ of the settlor’s sons within the trust provision in this case. Thus, the legal meaning attributed to the language used served to exclude adoptees, absent other evidence of a contrary intention.” (Ford v. Newman (1979), 77 Ill. 2d 335, 340, 396 N.E.2d 539, 541.)

As in Ford, there is no evidence for a contrary intention on Peter’s part, Scott having been adopted by Ballard more than 35 years after the instruments were drafted and there being no suggestion in the record that any of Peter’s grandchildren had, prior to December 26, 1940, and January 28, 1941, adopted any children. See Ford v. Newman (1979), 77 Ill. 2d 335, 340-41, 396 N.E.2d 539, 541.

Scott does not make any argument that would distinguish the instant case from Ford. He does not suggest any manner in which the law might have changed between December 26, 1940, and December 31, 1941, that would mandate a different result in the case at bar. He does note that the appellate court case in Ford (Ford v. Newman (1978), 64 Ill. App. 3d 528, 381 N.E.2d 392) and several other cases opposed to his position were decided after Peter’s death and argues that “[Respondents’ reliance on such cases overlooks the fact that those opinions were not in existence when the Trusts were executed.” This argument is premised upon a fundamental misinterpretation of the cases which has also been made in at least one appellate court opinion, Chicago Title & Trust Co. v. Vance (1988), 175 Ill. App. 3d 600, 606, 529 N.E.2d 1134, 1137.

Scott’s mistake is in treating the definitions of the terms “issue,” “lawful issue,” and the like in the cases as statements by the courts of the law on the date of the cases’ decisions. This ignores the issues before those courts, which involved the legal meaning of the terms construed at the time instruments were executed on some date in the past. Thus, the cases Scott seeks to distinguish as not applying to the 1940 inter vivos trust and the 1941 will at bar decided the meaning of “lawful issue” in 1941 (Ford v. Newman (1978), 64 Ill. App. 3d 528, 533, 381 N.E.2d 392, 397, aff’d (1979), 77 Ill. 2d 335, 396 N.E.2d 539); the meaning of, inter alia, “issue” in 1932 (In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 912-14, 446 N.E.2d 887, 889-90); the meaning of “lawful issue” in 1928 (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 128, 163 N.E.2d 523, 526); the meaning of, inter alia, “issue” in 1914 (Stewart v. Lafferty (1957), 12 Ill. 2d 224, 227-28, 145 N.E.2d 640, 642-43); and the effect of a 1955 amendment to the Probate Act on the interpretation of instruments executed both before and after September 1, 1955, that used the terms, inter alia, “issue,” “lawful issue,” and “issue of their body” (Wielert v. Larson (1980), 84 Ill. App. 3d 151, 153-56, 404 N.E.2d 1111, 1113-15). To simply note that these cases were all decided after the execution of the codicil and trust, as Scott does, is insufficient to distinguish them given the precise issues they were deciding.

Scott cites Chicago Title & Trust Co. v. Vance (1988), 175 Ill. App. 3d 600, 529 N.E.2d 1134, in support of his argument on this point. In Vance the court stated:

“It is not necessary for us to decide the merits of the competing arguments relating to these cases because they were decided by our supreme court after Morris S. Rosenwald executed his will [in 1921] and codicil [on January 23 1924]. Our review is limited to the law at the time the will and codicil were executed.” (Chicago Title & Trust Co. v. Vance (1988), 175 Ill. App. 3d 600, 606, 529 N.E.2d 1134, 1137.)

This treatment of the cases the Vance court was distinguishing was inadequate as, like the cases cited by Scott, the relevant portions of those cases were determining the legal meaning of words on a date other than that of the decision. Three of the opinions are quite explicit on this point, deciding the meaning of “issue” on May 26, 1873 (Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 155, 163-64, 183 N.E.2d 505, 507, 512); of “lawful issue” in 1941 (Ford v. Newman (1979), 77 Ill. 2d 335, 339-40, 396 N.E.2d 539, 540-41); and of “lawful issue” in 1928 (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 128, 163 N.E.2d 523, 526). The fourth case distinguished in this way, although not explicit on the date for which it was defining the terms, determined the intent of a testator who died in October of 1910 in part by construing the term “lawful issue” contained in a testamentary trust created by the testator’s will. (Miller v. Wick (1924), 311 Ill. 269, 273-77, 142 N.E. 490, 490-93.) It therefore determined what a testator meant by the term “law- . ful issue” in a will drafted before October of 1910, and so was not adequately distinguished when the Vance court merely noted that the date of the decision was after that of the execution of the codicil. See Chicago Title & Trust Co. v. Vance (1988), 175 Ill. App. 3d 600, 606, 529 N.E.2d 1134, 1137.

We granted a motion to cite additional authority filed by Scott. The additional authority is In re Estate of Dawson (1988), 168 Ill. App. 3d 391, 522 N.E.2d 770. Dawson interpreted the terms “child” and “heir-at-law,” rather than “issue” or “lawful issue,” in a trust executed in 1928. In light of the far greater similarity of the facts in our supreme court’s case of Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539, on which we have relied, Dawson is of little value as authority in the case at bar.

We also note that the Dawson court made an error in case interpretation similar to those made by Scott and the Vance court. In Dawson the court states:

“We do not believe that Belfield v. Findlay (1945), 389 Ill. 526, 60 N.E.2d 403, controls here, because a testator is presumed to make his trust in view of the law in existence at the time the instrument was created. [Citations.] Since Belfield was decided many years after the trust was created and even after Walter had died, we cannot presume that Walter had Belfield in mind when he prepared his trust.” (In re Estate of Dawson (1988), 168 Ill. App. 3d 391, 396, 522 N.E.2d 770, 773.)

However, Belfield construed language in a will in accordance with the adoption statute in effect in 1916 when the will was executed (Belfield v. Findlay (1945), 389 Ill. 526, 532, 60 N.E.2d 403, 406), which appears to have been the same as the relevant statute in effect in 1928 when the trust in Dawson was executed. (Compare In re Estate of Dawson (1988), 168 Ill. App. 3d 391, 396, 522 N.E.2d 770, 773, with Belfield v. Findlay (1945), 389 Ill. 526, 532-33, 60 N.E.2d 403, 406. See also Ill. Ann. Stat., ch. 110½, Appendix, ch. 3, par. 14, Historical Note, at 321 (Smith-Hurd 1978).) It was thus not sufficient to note Belfield’s date of decision to distinguish it from the facts of Dawson.

Scott argues that Peter intended that the term “lawful issue” be construed under the law at the time of distribution rather than that in effect when the instruments were executed. With respect to the testamentary trust he contends that Butterfield v. Sawyer (1900), 187 Ill. 598, 58 N.E. 602, mandates this result. That case construed the term “heir” as used in a deed, and so is very different from the case at bar. Scott, moreover, has not explained how, if his interpretation of Butterfield v. Sawyer is correct, it could be reconciled with all of the more recent Illinois Supreme Court and appellate court cases interpreting a will or a trust in accordance with the intent of its testator or its settlor at the time of its execution. (See, e.g., Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539; In re Estate of Hughlett (1983), 113 Ill. App. 3d 910, 446 N.E.2d 887.) Given our supreme court’s case of Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539, which is indistinguishable from the case at bar, we will not adopt the position Scott urges on the basis of Butterfield v. Sawyer.

With respect to the inter vivos trust, Scott finds evidence that Peter intended that the term “lawful issue” be construed in conformity with the law at the time of distribution in the trust’s provision that, on termination of the trust, the trust estate be distributed to:

“[T]he lawful issue of said grandchildren of the Settlor *** and in default of such issue to the heirs-at-law of the Settlor, except the Settlor, as determined by the law in Illinois in effect at the date of such distribution.”

In fact, this provision weakens Scott’s position. From this provision it can be inferred that Peter both knew that the law could change and knew how to express the intention that the law in effect at the time of distribution determine membership in a class of beneficiaries. He did so with respect to the class of contingent beneficiaries, his heirs-at-law, who are to take in default of lawful issue of his grandchildren on termination of the inter vivos trust. That he did not specify that the term “lawful issue” be interpreted in accordance with the law in effect at the time of distribution of income and principal is, under these circumstances, indicative of an intent not to have the law at the time of distribution be applied in construing that term.

Scott also seems to suggest that Peter may not have had any intention with respect to adopted children of his grandchildren when he used the term “lawful issue” in his testamentary and inter vivos trusts. If so, Scott argues that “public policy dictates that” Scott “be included in the class ‘lawful issue.’ ” We need not address this argument because we have resolved this case based on a determination of Peter’s actual intent. Ford v. Newman (1979), 77 Ill. 2d 335, 338, 396 N.E.2d 539, 540.

The judgment of the circuit court is affirmed.

Affirmed.

REINHARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY JUSTICE McNAMARA,

license: Public Domain

text:
    P.T.O. SERVICES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Jerald Menozzi, Appellee).
    Third District (Industrial Commission Division)
    No. 3 — 88—0110WC
    Opinion filed September 1, 1989.
    McNAMARA, J., dissenting.
    McCULLOUGH, j., concurs in dissent.
    Raymond M. Simard, of Chicago, for appellant.
    Michael D. Block and Greg A. Menozzi, both of Block, Krockey, Cernugel & Cowgill, P.C., of Joliet, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

On March 3, 1978, the petitioner, Jerald Menozzi, was a truck driver/delivery man for the respondent, P.T.O. Services, Inc. On that date, in the course of his employment, the petitioner, while straightening out the back of his truck, slipped on some broken skids. He fell from the back of the truck, landing on his right arm and wrist. During the course of the fall, he hit his back on a piece of angle iron in the truck. He felt something pop in his right shoulder and experienced pain in the right shoulder and back. He received injuries to his back, right shoulder and ribs.

The arbitrator made an award under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), finding that the petitioner had a permanent partial disability to the extent of 50%. The arbitrator awarded the petitioner 84s/7 weeks of temporary total disability. On review, the Industrial Commission reduced the temporary total disability award to 56 weeks and the award of permanent partial disability from 50% loss of a man as a whole to 8% loss of a man as a whole and 15% loss of the use of the right arm.

Following a hearing, which was ordered by the Illinois Supreme Court in Menozzi v. Industrial Comm’n (1983), 96 Ill. 2d 468, 451 N.E.2d 853, on Mr. Menozzi’s petition under section 19(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(f)), the Industrial Commission reiterated its initial reduced award.

The petitioner appealed to the circuit court of Will County, which reversed the Industrial Commission’s award, finding the Commission’s decision to be against the manifest weight of the evidence. The court ordered the arbitrator’s award reinstated.

The respondent, RT.O. Services, Inc., brought this appeal, contending that the circuit court erred in finding that the decision of the Industrial Commission, following remand from the Supreme Court, is against the manifest weight of the evidence.

Following his injury, the petitioner was taken to the emergency room at St. Joseph’s Hospital in Joliet. He was examined by emergency room personnel and by his family physician, Dr. Rousenelous, who had been called to the hospital. Dr. Rousenelous viewed the X rays and prescribed two rib braces for the petitioner to wear. His right arm was placed in a sling. He returned to Dr. Rousenelous about a week later. The petitioner continued to experience pain in his back and right shoulder. He also had difficulty getting out of bed and getting up from a sitting position. Dr. Rousenelous prescribed pain pills.

The petitioner was referred to Dr. Howard Sather, an orthopedic surgeon who examined him on or about May 8, 1978. Dr. Sather examined the X rays and administered two shots of cortisone in the right shoulder and one shot of cortisone in the back.

Between this initial visit and the arbitrator’s hearing on November 26, 1979, the petitioner continued to be treated by Dr. Sather at two-to five-week intervals. The petitioner was given exercises to do and continued to receive periodic cortisone shots. In the summer of 1978, on Dr. Sather’s instructions, the petitioner received 21k to 3 weeks of physical therapy consisting of three or four sessions per week.

On November 8, 1978, at Dr. Sather’s request, the petitioner was examined by Dr. Michael A. Simon, an assistant professor of orthopedics with the University of Chicago Department of Surgery. Dr. Simon found tenderness in the anterior portion of the right shoulder. The results of the neurological examination and the range of motion tests of the back and shoulder were normal. Dr. Simon concluded that the petitioner would continue to get symptomatic relief over time. He recommended continued conservative treatment of the condition and hoped that the majority of symptoms would continue to resolve themselves. At the time of examination, he did not favor allowing the petitioner to do the type of heavy lifting his duties as a delivery truck driver required. In Dr. Simon’s opinion, if the petitioner opted to return to work, he could either do limited duties or wait three months until he returned to full activity.

At the respondent’s request, the petitioner was examined on April 11, 1979, by Dr. Churl-Soo Suk, an orthopedic surgeon. Dr. Suk found that the range of motion in the petitioner’s right arm was normal, except in extreme rotation which caused the petitioner some discomfort. The examination of the back revealed that the posture was straight and that the petitioner was able to bend forward and backward, but complained of pain when doing so. All other tests were within normal limits. The examination of the petitioner’s back in the prone position showed mild tenderness at the lumbosacral junction. Based on his examination, Dr. Suk could not determine why the petitioner was experiencing such severe pain.

Dr. Suk’s report on this examination says nothing about the petitioner’s ability to return to work or do heavy lifting. It says only that the examination failed to show any significant objective findings.

On October 30, 1979, Dr. Sather examined the petitioner for the last time prior to the arbitrator’s hearing. The examination revealed chronic tendonitis of the right shoulder with limited abduction and pain, and chronic lumbosacral strain without radiculitis. Dr. Sather concluded that the petitioner was obviously not able to carry out the extremes of heavy work, and that in the future, excessive lifting, climbing or stooping would need to be eliminated from his work activity.

A report, dated November 15, 1979, relates the findings of Dr. Spurgeon Green’s examination just prior to the arbitrator’s hearing. He notes tenderness in the petitioner’s right shoulder and in the lumbosacral spine with spasms present in the paravertebral muscle. He also observed that the petitioner had difficulty flexing the spine to retrieve an object from the floor, and in moving from the supine to the prone position. Dr. Green concluded that the petitioner suffered, inter alia, a dislocation of the right shoulder with limited range of motion, a lumbosacral strain and a lumbosacral contusion.

Based on this medical evidence, and his own observation of the petitioner and the petitioner’s testimony, the arbitrator made his decision regarding the award.

Prior to the Industrial Commission’s hearing on review, the petitioner was again examined by Dr. Green and Dr. Suk. The reports of the doctors’ findings were submitted to the Commission.

Dr. Suk’s March 5, 1980, examination again failed to yield any significant objective findings of problems in the petitioner’s condition. Dr. Suk believed it would benefit the petitioner to undergo physical therapy for the lower back and right shoulder. He also felt the petitioner could return to light duty and could probably be reemployed in his regular duties as a truck driver in about three or four weeks.

Dr. Green’s reexamination on May 5, 1980, showed no improvement in the petitioner’s condition since the previous November examination.

It is the function of the Illinois Industrial Commission to determine the extent of the petitioner’s injuries (McKay Plating Co. v. Industrial Comm’n (1982), 91 Ill. 2d 198, 437 N.E.2d 617), and to resolve conflicting medical opinions. (Inland Steel Coal Co. v. Industrial Comm’n (1980), 81 Ill. 2d 61, 405 N.E.2d 781.) It is the function of a court on review to determine whether the findings and conclusions of the Industrial Commission are against the manifest weight of the evidence. Quick v. Industrial Comm’n (1972), 53 Ill. 2d 46, 289 N.E.2d 617.

The question presented in this case is whether the decision of the Commission was against the manifest weight of the evidence justifying the circuit court’s order reversing the Commission’s decision and reinstating the arbitrator’s award. We think that it was.

Following the hearing on November 26, 1979, the arbitrator awarded the petitioner temporary total disability benefits from March 3, 1978, through October 25, 1979, a period of 84% weeks. On review, the Industrial Commission reduced the award to 56 weeks, which terminated such benefits as of April 7, 1979. This reduction coincided with the amount previously paid to the petitioner. As aforesaid, the Commission also reduced the arbitrator’s award for permanent partial disability from 50% loss of a man as a whole to 8% loss of a man as a whole and 15% loss of the use of the right arm.

The petitioner’s job required a great deal of heavy lifting and carrying. In uncontradicted testimony by the petitioner, he related that he had been told he could not return to work until he was able to carry out his former duties. This was because there was no light duty work available for him at P.T.O. Services. The petitioner has no other special skills or training, nor any higher education. He has driven a truck all his adult working life.

None of the medical opinions offered finds that the petitioner's condition had resolved itself to the point that he could return to his previous job without restrictions. The respondent’s physician, Dr. Suk, could not find any objective reasons why the petitioner was suffering from such severe pain. However, following Dr. Suk’s second examination, in March of 1980, he concluded that the petitioner could return only to light duty and could probably return to full work activity in three or four weeks. All the other medical evidence finds that at the time of examination, the petitioner could not perform the heavy lifting required in his job. Further, the opinion of Dr. Sather that the petitioner’s future work activity would have to exclude excessive lifting, climbing or stooping is in effect uncontradicted. While all medical evidence points to a probability or hope that the petitioner’s condition would resolve itself, there were no follow-up examinations to prove the accuracy of these predictions. The evidence shows a significant permanent disability.

We find that the circuit court was correct in reversing the decision of the Industrial Commission as contrary to the manifest weight of the evidence. Additionally, the record supports its reinstatement of the arbitrator’s award. As the Illinois Supreme Court has noted, while an arbitrator’s findings are not binding on the Commission, the arbitrator’s decision is not without legal effect. A reviewing court setting aside the Commission’s decision may rely on an arbitrator’s findings and reinstate the arbitrator’s award. See Quick v. Industrial Comm’n (1972), 53 Ill. 2d 46, 289 N.E.2d 617; Burrell v. Industrial Comm’n (1988), 171 Ill. App. 3d 723, 525 N.E.2d 935.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Affirmed.

WOODWARD and LEWIS, JJ., concur.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent. I believe that there was ample evidence to support the Commission’s award to the petitioner of permanent partial disability of 8% for a man as a whole and of 15% loss of use of his right arm. I would reverse the judgment of the circuit court reinstating the arbitrator’s award.

The employee must show not only that he did not work, but also that he was unable to work. (Lukasik v. Industrial Comm’n (1984), 124 Ill. App. 3d 609, 614, 465 N.E.2d 528.) The Commission must resolve conflicting medical opinions, and that resolution cannot be disturbed by a reviewing court unless it is against the manifest weight of the evidence. (Childress v. Industrial Comm’n (1982), 93 Ill. 2d 144, 442 N.E.2d 841.) The skill and experience of medical experts and compensation experts demand that we defer to such opinions. (See Lukasik v. Industrial Comm’n (1984), 124 Ill. App. 3d 609, 465 N.E.2d 528, citing Makris v. Industrial Comm’n (1980), 82 Ill. 2d 502, 509, 413 N.E.2d 385.) The record here shows conflicting medical opinions as to whether petitioner was able to return to work without restrictions at any given time.

Dr. Simon opined in November 1978 that petitioner was then able to return to work, but that he should not lift weights of 200 to 300 pounds, the amount which petitioner reported he was required to life at work. Moreover, Dr. Simon went on to say that even the heavy work could be performed by petitioner in three months, i.e., in early 1979. Dr. Suk opined in both April 1979 and March 1980 that examinations and X rays of petitioner revealed no significant objective findings. In recognition of the fact that petitioner had not “performed any type of work for over a year,” Dr. Suk suggested petitioner might “be benefit-ted, if he can take physical therapy *** and may start out for light duty for about 3 to 4 weeks, and probably can then be reemployed in his regular duty as a truck driver.”

The Commission was entitled to rely on the opinions of these two orthopedic surgeons that examinations in 1978, 1979 and 1980 showed petitioner was ready to ease back into his regular job duties.

The majority incorrectly states that “[n]one of the medical opinions offered finds that the petitioner’s condition had resolved itself to the point that he could return to his previous job without restrictions.” (188 Ill. App. 3d at 28.) The fact that Dr. Suk acknowledged in 1980 that, against his earlier opinion petitioner had still performed no type of work, and thus would need three or four weeks to ease into his regular duties, does not weaken his underlying medical opinion that petitioner was fit to work. Similarly, Dr. Simon merely restricted petitioner for an additional three months from lifting weights of 200 to 300 pounds, hardly a restriction of such significance that it would require reversal of the Commission’s decision.

The Commission was entitled to accord less weight to the opinion of Dr. Green, who was not an orthopedic surgeon and instead practiced family and internal medicine, that there were some positive findings, e.g., in straight leg raising and reduction of movement in the right shoulder. Dr. Green offered no opinion at all regarding claimant’s ability to perform any physical activities or work duties.

Similarly, Dr. Sather, who referred petitioner to Dr. Simon, merely stated in 1979 that petitioner avoid “extreme heavy work” such as “excessive lifting, climbing, stooping.” Neither of those statements, when offered in conjunction with those of Drs. Suk and Simon, requires the Commission to find petitioner has a greater disability than 8% of the man as a whole and 15% loss of the use of his right arm.

The majority rests its analysis on the reasoning that the medical evidence merely pointed to “a probability or hope that the petitioner’s condition would resolve itself,” but fatally lacked any “follow-up examinations to prove the accuracy of these predictions.” (188 Ill. App. 3d at 28.) I find Drs. Suk and Simon offer much more than “a probability or hope.” Moreover, despite the fact that follow-up examinations might always be interesting or satisfy any lingering curiosity, they have never been required by this court to affirm an otherwise well-supported decision as to the extent of a disability. Furthermore, it would seem contradictory to point to the absence of additional follow-up examinations, and then turn around and reinstate a decision of an arbitrator who did not have the benefit of the two follow-up examinations which were actually performed.

I find the decision of the Industrial Commission to be amply supported by the medical evidence. I would reverse the judgment of the circuit court of Will County reversing that decision.

McCullough, j., concurs.


author: JUSTICE LEWIS

text:
    THADDEUS E. MOORE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (International Harvester Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3 — 88—0809WC
    Opinion filed August 30, 1989.

      Harrison H. Kavensky, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellant.
    Linda E. Frischmeyer, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Thaddeus Moore, was awarded compensation for a work-related injury he received while employed by the respondent, International Harvester Company. At the hearing before the arbitrator, it was determined that claimant was entitled to 20 weeks of temporary total disability (TTD), $34 in medical bills, and 85V4 weeks of permanent partial disability (PPD) for 55% loss of the use of his right foot. The arbitrator also determined that the respondent was entitled to a credit of $4,139.20, an amount previously paid to the claimant, and which was approximately equal to the amount of TTD owed to the claimant.

Respondent appealed the arbitrator’s decision to the Industrial Commission (Commission) and, at the hearing on review before the Commission, the respondent attempted for the first time to obtain an additional credit for another previous payment of $4,811.82 made to the claimant on or around March 26, 1980, for the injury which was the basis of the claimant’s compensation award. Because the respondent knew of this credit at the time of the hearing before the arbitrator and failed to request credit for this payment at that hearing, the Commission, in a separate summary decision, rejected the respondent’s claim for the credit. In another summary decision, the Commission affirmed the arbitrator's decision, and since neither the claimant nor the respondent appealed the Industrial Commission’s decision, that decision became final.

Subsequently, the respondent partially paid the claimant the PPD compensation awarded by the Commission, but withheld from its payment $4,811.82, the amount of the compensation the respondent had attempted to claim as a credit before the Commission on review and which was specifically rejected at that time. Because of the underpayment, the claimant filed a petition with the Commission for an assessment of penalties pursuant to section 19(k) and for attorney fees pursuant to section 16 of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(k), 138.16).

After the hearing on the claimant’s petition for penalties and attorney fees, the Commission found that the respondent’s intentional underpayment of the $4,811.82 was unreasonable and granted the claimant’s petition. The Commission awarded claimant a penalty award of $8,820.09, 50% of the entire original PPD compensation award, and attorney fees in the amount of $1,764.00, 20% of the penalty awarded. Respondent appealed this decision to the circuit court. The circuit court did not disagree with the Commission’s determination that a penalty award was appropriate, but the court did conclude that the Commission’s determination of the amount of the penalty and, correspondingly, the amount of the attorney fees, was erroneous as a matter of law. Accordingly, the circuit court reduced the penalty awarded to the claimant by the Commission to $2,405.91, 50% of the amount of the PPD compensation which remained unpaid by the respondent, and reduced the amount of the attorney fees granted to $481.18, 20% of the reduced penalty. The claimant appeals.

On appeal, the respondent does not controvert its liability regarding the amount of TTD and the amount of PPD originally awarded to the claimant, or the Commission’s determination that its failure to pay the entire award was unreasonable. The only concern presented is the amount of the penalty to be awarded pursuant to section 19(k) of the Workers’ Compensation Act for the underpayment of the PPD award. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).) Thus, the only issue before this court is the statutory construction of section 19(k).

Section 19(k) states as follows:

“In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50 % of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).

The entire controversy raised in this case centers upon the meaning of the phrase “amount payable at the time of such award” used in section 19(k), i.e., does this phrase mean the amount of the original PPD compensation award which remains unpaid at the time the penalty is awarded, as the respondent contends and as the circuit court held, or does it mean the entire amount of the original PPD compensation award, as the claimant contends. Since this controversy involves a question of law, this court is not bound by the decision of the Industrial Commission or the circuit court. Butler Manufacturing Co. v. Industrial Comm’n (1981), 85 Ill. 2d 213, 422 N.E.2d 625.

Our research reveals that this specific issue has not been determined in previous Illinois cases; therefore, we must first consider the rules of statutory construction. Generally, the rule is that, to determine the construction of a statute, a court must ascertain and give effect to the legislature’s intent. To determine this intent, the courts “may properly consider not only the language used in a statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved.” (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.) Where the statutory language is clear, there is no need to resort to other aids for its interpretation. (Board, of Trustees v. Shaw (1985), 136 Ill. App. 3d 671, 483 N.E.2d 976.) When construing the statute, it is assumed that the legislature did not intend an absurd result. (Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 504 N.E.2d 84.) When the language of the statute is susceptible of more than one interpretation, consideration of extrinsic factors to determine legislative intent is proper. In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.

According to Sutherland, “worker’s compensation statutes are in derogation of the common law, nevertheless these acts are highly responsive to social and economic needs that have long been recognized. In order to realize the fullest possible potential of the humane and beneficial purposes of worker’s compensation statutes, they have been accorded a generally liberal interpretation. *** In keeping with the policy of worker’s compensation statutes the courts are generally willing to give them an extended interpretation according to their intent, spirit and reason.” (3A N. Singer, Sutherland on Statutory Construction §73.02, at 606 (Sands 4th ed. 1986).) Illinois case law is in accord with Sutherland. In Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026, the supreme court stated:

“The Workers’ Compensation Act was intended to provide financial protection for injured workers regardless of a showing of negligence or contributory negligence, while precluding the employee from common law tort remedies. [Citation.] To that end, it has been consistently held that the Act should be liberally construed to accomplish its purpose and objects. [Citation.]” (Peoria County Belwood Nursing Home, 115 Ill. 2d at 529, 505 N.E.2d at 1028.)

We thus determine that our interpretation of section 19(k) should be a liberal one.

It has been held that the intent of the penalty sections herein involved is “ ‘to implement the Act’s purpose to expedite the compensation of industrially injured workers and penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due an employee.’ ” (Howlett’s Tree Service v. Industrial Comm’n (1987), 160 Ill. App. 3d 190, 196, 513 N.E.2d 82, 86, quoting Avon Products, Inc. v. Industrial Comm’n (1980), 82 Ill. 2d 297, 301, 412 N.E.2d 468, 470; County of Cook v. Industrial Comm’n (1987), 160 Ill. App. 3d 825, 513 N.E.2d 870; Continental Distributing Co. v. Industrial Comm’n (1983), 98 Ill. 2d 407, 456 N.E.2d 847.) Therefore, any interpretation of section 19(k) must coincide with this legislative intent.

Additionally, in our consideration as to what the term “amount payable” refers, it is helpful to consider Larson’s treatise on workmen’s compensation. That learned authority states as follows:

“Once the right to a penalty is established, there remains the question in some instances of how to calculate the amount. It might be thought that the percentage penalty figure should be applied only to the portion of the award as to which improper nonpayment or delay has been found, and some cases so hold. But in California, the 10 % statutory penalty is applied to all benefits of the same type as those for which payment has been unreasonably withheld. This means that late payments of only legal fees or medical bills will not subject the employer to a penalty on the entire award. Likewise, if the delayed payments are for temporary disability, the penalty will not be calculated on the amount of permanent disability benefits. But once a penalty is imposed for failure to pay a type of benefit, the penalty is calculated on the entire amount of that type of benefits, including amounts which had been paid before the occurrence of the unreasonable delay.” 3 A. Larson, Workmen’s Compensation §83.41(d) (1989).

As we noted previously, there does not appear to be any cases on the precise issue presented here; however, an inference as to the meaning of section 19(k) can be obtained from the language used by the supreme court in Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 448 N.E.2d 866. In Robertson, the supreme court stated: “[s]ection 19(k) of the Act provides for the payment of penalties of 50 % of the amount of compensation payable,” and that “the legislature has amplified the remedy available to victims of wrongful delay, so that it may include not only a penalty of 50% of the compensation award.” (Robertson, 95 Ill. 2d at 447, 450-51, 448 N.E.2d at 869, 871.) This language implies that the supreme court considered the language “amount payable” used in section 19(k) to mean that the penalty is to be 50% of the entire type of benefit awarded, in this case, 50% of the entire PPD award, as was determined by the Industrial Commission.

After considering the case law and the previously cited authorities, we determine that the phrase, “amount payable,” referred to in section 19(k) means the entire amount of the type of benefit originally awarded. This interpretation best implements the legislative intent to expedite payment to the injured worker and to penalize the employer for the unreasonable withholding of benefits duly owed to a claimant.

We also note that if we were to hold in accordance with the circuit court and with the literal interpretation of section 19(k), an absurd result could follow. For example, an employer intentionally underpays a benefit award and forces a claimant to seek penalties from the Commission, but, prior to the hearing on a claimant’s petition for penalties, the employer pays the remainder of the compensation award. If the penalty is to be determined as a percentage of the portion of the remaining unpaid balance at the time of the penalty hearing, the claimant would be awarded nothing. We cannot conclude that this was the result that the legislature intended and we decline to so hold.

For the foregoing reasons, we reverse the circuit court’s determination as to the amount of the penalty and attorney fees awarded to the claimant and reinstate the Industrial Commission’s determination that the claimant be awarded a penalty in the amount of $8,820.09 and attorney fees in the amount of $1,764.00.

Reversed.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE ex rel. JIM EDGAR, Secretary of State, Plaintiff-Appellant, v. WILLIAM J. CURLEY, Defendant-Appellee.
    Third District
    No. 3 — 88—0216
    Opinion filed August 31, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Diane Curry-Grapsas, Assistant Attorney General, of counsel), for appellant.
    Charles R. Thomas, EG., of Pekin, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The appellant, the Secretary of State (the Secretary), appeals from an order issued by the trial court directing the Secretary to issue a judicial driving permit (JDP) (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1) to the defendant, William J. Curley. We reverse.

The record shows that on January 3, 1988, the defendant was arrested for driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501). The record also shows that the defendant had previously been arrested for DUI on December 23, 1982. In that case, the defendant was granted supervision on April 28, 1983. In the instant case, the trial court, on February 18, 1988, ordered the issuance of a judicial driving permit to the defendant. The Secretary returned the order, indicating that the Secretary believed that the defendant was ineligible for a JDP because he was not a first offender as defined by section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11-500). The Secretary then brought the instant appeal.

On appeal, the Secretary contends that the trial court erred in granting the defendant a JDP, because he was not a first offender as defined by section 11 — 500 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 500). The defendant argues in response that the statute is ambiguous and that the trial court was correct in interpreting the statutory time period contained in section 11 — 500 as running from the date of the first offense to the date of the second offense.

Initially, we note that the defendant • appears to question the standing of the Secretary to challenge the court’s order for the issuance of a JDP. The Illinois Supreme Court in People v. Pine (1989), 129 Ill. 2d 88, recently held that the Secretary has standing to challenge such orders.

Section 11 — 500 states in pertinent part that a first offender is “any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501, *** within the last 5 years.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 500.) It is fundamental that a court, when interpreting a statutory enactment, is to ascertain and give effect to the intent of the legislature, which is accomplished by according the language of the statute its plain and ordinary meaning. (People v. Anderson (1988), 167 Ill. App. 3d 308, 521 N.E.2d 148.) Where the facts are basically uncontroverted and the real issue is the trial court’s application of the law to such facts, a question of law is presented and the rule that a court of review may not set aside the trial court’s finding unless contrary to the manifest weight of the evidence is inapplicable. (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 519 N.E.2d 1005.) Instead, we may determine the correctness of the ruling on the question of law independently of the trial court’s judgment. Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 458 N.E.2d 998.

In the instant case, the record showed that the defendant had received court-assigned supervision on April 28, 1983. He was later arrested for DUI on January 3, 1988. On February 18, 1988, the trial court ordered the issuance of a JDR These latter events occurred within five years of the defendant’s receiving court-assigned supervision for the earlier DUI arrest. The defendant was not a first offender within the plain meaning of section 11 — 500 and was therefore not eligible for a judicial driving permit.

The judgment of the circuit court of Tazewell County, insofar as it granted the defendant a judicial driving permit, is reversed; the remainder of the judgment is affirmed.

Reversed in part; affirmed in part.

HEIPLE and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY B. ODUMUYIWA, Defendant-Appellant.
    Second District
    No. 2 — 87—0506
    Opinion filed August 31, 1989.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of WTieaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Following a bench trial, defendant, Bobby B. Odumuyiwa, was convicted of unlawful use of a driver’s license (Ill. Rev. Stat. 1985, ch. 95½, par. 6 — 301) and driving while his driver’s license was suspended (Ill. Rev. Stat. 1985, ch. 95½, par. 6 — 303). On April 16, 1987, the trial court sentenced defendant to two concurrent terms of 28 days in the county jail. Defendant raises three questions for appellate review: (1) whether the prosecution failed to prove the defendant guilty beyond a reasonable doubt of the offense of driving while his driver’s license was suspended where the stipulated, uncontested evidence adduced below was that defendant’s driver’s license had been cancelled prior to being suspended by the Secretary of State; (2) whether the trial court erred in finding defendant guilty of two offenses (unlawful use of license and- driving while driver’s license was suspended) where both offenses were carved from the same physical act; and (3) whether the mittimus for the unlawful use of license conviction should be corrected to reflect that the offense is a Class C misdemeanor.

We affirm both convictions and sentences; however, we remand the cause with instructions that the sentencing order and mittimus in case No. 86 — TR—121929 be corrected to reflect that the unlawful use of a driver’s license is a Class C misdemeanor.

The facts of this case must be gleaned principally from the bystander’s report certified by the trial court. The report states the following:

“On March 12, 1987, a hearing was held on Defendant-Appellant’s Motion to Dismiss the instant charges of Driving While License Suspended and Unlawful Use of License on October 16, 1986. Defendant was represented by counsel. The Motion to Dismiss was predicated on the uncontested fact that the certified record of the Secretary of State showed: (1) that in early April, 1986, that office had cancelled Defendant’s driving license; and (2) that approximately two weeks later Defendant’s driving license was suspended. In light of that fact, counsel maintained: (a) that the purported suspension must be regarded as a null act, the license having already been cancelled; and (b) that, accordingly, the report of the Secretary of State that Defendant’s driving license remained suspended as of the subsequent arrest date must, as a matter of law, be held to be erroneous. There being no evidence of a change in status between April and October (e.g., a reinstatement and a resuspension), counsel asked that the charges be dismissed. Neither counsel for Defendant nor the Assistant State’s Attorney cited authority in case law in support or in opposition.
The court denied the motion to dismiss and entered a finding of guilty on each charge. It is to be noted that it is uncertain whether the findings of guilty were entered on pleas of guilty or rather pursuant to stipulated evidence and the contested motion. The relevant notations on the reverse of both court files and on both sentencing orders show, inter alia, pleas of guilty. Yet it may be that the pleas of guilty were treated as if withdrawn. In either event, the findings of guilty were entered only subsequent to the agreed admission into evidence, at hearing, of the Secretary of State’s abstract of record concerning Defendant. Nothing was contested other than the legal effect of a cancellation effective prior to a purported suspension.”

Defendant first argues that he could not be found guilty beyond a reasonable doubt of driving while his license was suspended because the Secretary of State (Secretary) cannot suspend a previously can-celled driver’s license. Defendant reasons that suspending a previously cancelled license is a nullity, since the prior license is no longer in force. Defendant also points out that a suspension is qualitatively different from a cancellation. Based on particular facts of this case, defendant raises an issue which appears to be a matter of first impression in this court.

The State responds that the Secretary may suspend a driver’s current driving privilege even after a driver’s license has been previously cancelled, noting that there is no case law or statutory authority preventing him from doing so. We agree with defendant that a suspension is qualitatively different from a cancellation; however, we see no reason why the Secretary, in addition to cancelling a license, may not also suspend a person’s driving privilege thereby preventing a driver from applying for or reinstating a license during a specific period of time. An examination of the two distinct courses of action available to the Secretary reveals that each has its own purpose and effect.

Pursuant to section 6 — 201 et seq. of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 201 et seq.), the Secretary is authorized to cancel or suspend a person’s driving privilege or driver’s license. The cancellation of a driver’s license is defined as:

“The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.” (Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 110.)

“Cancel” also means “to nullify, declare null and void; to set at naught the provisions of the instrument canceled and to declare them null and void.” Friedman v. City of Chicago (1940), 374 Ill. 545, 550, 30 N.E.2d 36.

Generally, the basis of a cancellation is a defect or error in the licensing procedure itself, such as the failure of the applicant to provide the correct information, the failure to pay required fees or taxes, or the ineligibility of the applicant for a license. (See Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 102.) It is important to note that the cancellation of a license is without prejudice, and application for a new license may be made at any time after such cancellation. (Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 110.) Thus, by correcting the error or defect by means of an essentially ministerial act, the defendant would have the right to regain his license at any time after the cancellation.

By contrast, a “suspension” is defined as:

“The temporary withdrawal by formal action of the Secretary of a person’s license or privilege to operate a motor vehicle on the public highways, for a period specifically designated by the Secretary.” Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 204.

When a driver’s license or privilege is suspended, the driver cannot automatically reinstate the license or privilege to drive by the performance of a ministerial act until a specified period of time has elapsed. (See People v. Suddoth (1964), 52 Ill. App. 2d 355, 359, 202 N.E.2d 120.) A suspension generally applies to situations where the driver has committed a relatively serious offense warranting the suspension of his privilege to drive. (See, e.g., Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.) The suspension may last up to one year or more in duration. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 208.) It is evident that a suspension is a regulatory sanction having more serious consequences than does a cancellation. We observe that the term “license to drive” encompasses two distinct meanings: (1) the physical document itself, and (2) the abstract or intangible privilege of driving. A “license to drive” is defined as:

“Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.”
Ill. Rev. Stat. 1987, ch. 95½, par. 1 — 138.

There is nothing in the record showing why the defendant’s driver’s license was cancelled or declared void, or why his privilege to drive was later suspended thereby barring him from applying for or reinstating his driver’s license for a period of time specified by the Secretary. It is quite possible that each course of action by the Secretary stemmed from entirely independent causes not apparent in the record. Based on the facts of this case, we see no reason why these two actions by the Secretary should be considered mutually exclusive or logically inconsistent. Because of the qualitative differences between cancellation and suspension, we do not find persuasive defendant’s argument that the suspension was a nullity. Defendant argues only that there was no suspension in effect at the time of the incident in question. In view of our discussion, we find that there was a valid suspension in effect at the time of the offense based on the facts of this case.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt; here, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bartlett (1988), 175 Ill. App. 3d 686, 691, 530 N.E.2d 90.) Despite the limited record before us, we cannot say that the evidence of the suspension is insufficient to sustain the conviction or that the evidence is so unsatisfactory that it creates a reasonable doubt of defendant’s guilt.

Defendant next argues that the trial court erred in finding defendant guilty of two offenses, the unlawful use of license and driving while his license was suspended, because both offenses were carved from the same act. Defendant concedes that the record provides no illuminating facts regarding the incident save that the complaints allege that both offenses occurred on the same date, time and location. There is no -witness testimony concerning the actions of defendant which may have provided a separate basis for each offense charged. The bystander’s report states that nothing was contested other than the legal effect of the cancellation prior to the suspension of defendant’s license to drive. The appellant has the burden of providing a sufficiently complete record on appeal so that the reviewing court is fully informed regarding the issues to be resolved; in the absence of a complete record on appeal, it is presumed that the trial court’s judgment conforms to the law and has a sufficient factual basis. (Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 585, 498 N.E.2d 246; People v. Majer (1985), 131 Ill. App. 3d 80, 83, 475 N.E.2d 269.) Any doubt arising from the incompleteness of the record will be resolved against the appellant. Majer, 131 Ill. App. 3d at 84, 475 N.E.2d 269.

Defendant has failed to affirmatively demonstrate the existence of error in the sparse record provided; therefore, we affirm the convictions of the two offenses.

Finally, the State agrees with the defendant that the sentencing order and mittimus in case No. 86 — TR—121929 should be corrected to reflect that the unlawful use of a license is a Class C misdemeanor rather than Class A misdemeanor. (See Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 301.) We concur, and we instruct the trial court to make the necessary corrections.

For the foregoing reasons, we affirm both convictions and sentences and remand the cause with instructions to correct the sentencing order and mittimus in case No. 86 — TR—121929.

Affirmed and remanded with instructions.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE KNECHT

text:
    KRAFT, INC., f/k/a Dart & Kraft, Inc., Plaintiff-Appellee, v. JIM EDGAR, as Secretary of State, et al., Defendants-Appellants.
    Fourth District
    No. 4 — 88—0744
    Opinion fled August 31, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel and Jan E. Hughes, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Don S. Harnack, David J. Duez, and Richard A. Hanson, all of McDermott, Will & Emery, of Chicago, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

This case comes to us on appeal from an administrative review in the circuit court of Sangamon County. The plaintiff Kraft, Inc. (Kraft), sought review of the Secretary of State’s (Secretary’s) determination of tax liability. The circuit court reversed the Secretary’s refusal to grant the plaintiff an adjustment based on the circuit court’s reading of section 1.17 of the Business Corporation Act of 1983 (1983 BCA) and the plaintiff’s due process claims. (Ill. Rev. Stat. 1985, ch. 32, par. 1.17.) We find the circuit court was in error on both grounds and reverse its decision.

The plaintiff Kraft, Inc., formerly known as Dart & Kraft, Inc., was incorporated in Delaware in 1980. On August 29, 1980, the plaintiff filed an application with the defendant Secretary for a certificate of authority to transact business in this State. Kraft’s employee, who completed the application for the certificate, stated the present value of the property owned in Illinois and elsewhere, together with the business activity which had been transacted in Illinois and elsewhere, as of the date of filing. This was done in spite of the fact the application form required the plaintiff to estimate these values for the first year of operation in Illinois. As a result, the application listed $1,000 as the value of plaintiff’s property in Illinois and $4,000 as the total of all of its property located everywhere. The estimate of business to be transacted in the first year was stated as zero.

Section 136 of the 1933 BCA governs the computation of the basis for license fees of foreign corporations. It provides in part:

“For the purpose of determining the amount represented in this State of the sum of the stated capital and paid-in surplus of a foreign corporation, the amount represented in this State shall be that proportion of the sum of its stated capital and paid-in surplus which the sum of (1) the value of its property located in this State and (2) the gross amount of business transacted by it at or from places of business in this State bears to the sum of (1) the value of all of its property, wherever located, and (2) the gross amount of its business, wherever transacted.” (Ill. Rev. Stat. 1981, ch. 32, par. 157.136.)

Section 139 of the 1933 BCA provides for the computation of the basis for franchise taxes in the same manner. (Ill. Rev. Stat. 1981, ch. 32, par. 157.139. See also Ill. Rev. Stat. 1985, ch. 32, pars. 15.55, 15.70.) This ratio of total capital, surplus and business to that located in Illinois is called the allocation factor. The basis on which the fees and taxes on the corporation is calculated is determined by multiplying the allocation factor by the total amount of paid-in surplus and capital. (Ill. Rev. Stat. 1981, ch. 32, pars. 157.136, 157.139.) Because the plaintiff stated the actual value instead of the estimated value of the corporation and its projected business, the allocation factor here as determined by the Secretary, a ratio of 1 to 4, a 25% allocation factor, was higher than had Kraft chosen to supply estimated values of business to be transacted on its application for a certificate.

The formation of Dart and Kraft, Inc., was the result of a planned merger between Kraft, Inc., and Dart Industries, Inc. To this end they formed a jointly owned subsidiary, Dart and Kraft, Inc. (DKI), the predecessor corporation of the plaintiff here. DKI then formed two subsidiaries, K Sub. and D Sub. Kraft then merged with K Sub., Dart with D Sub. Stockholders of both corporations received stock in the new parent DKI in return for their stock in Dart or Kraft. As a result, DKI experienced an enormous increase in its capital and paid-in surplus. On September 25, 1980, this stood at $2,657,186,647. Both Dart and Kraft continued to operate separately but as subsidiaries of their new parent DKI. In December of 1980, the plaintiff issued additional shares and increased its capital and paid-in surplus by $509,022. Although required by section 117 of the Business Corporation Act (1933 BCA) (Ill. Rev. Stat. 1981, ch. 32, par. 157.117) to report these increases within 60 days of their occurrence, the plaintiff did not report them until almost five years later on August 15, 1985.

Following the 1985 report, on September 12, 1985, the Secretary issued a notice of assessment of tax liability for the year 1980, utilizing the 25% allocation factor. This resulted in an assessment of franchise tax, license fees, and penalties of $1,331,119.84. On November 5, 1985, the plaintiff submitted a petition for review and refund challenging the allocation factor and, the following day, submitted a statement of corrections. On January 16, 1986, the Secretary denied the petition for adjustment on the grounds the statute of limitations had run. The Secretary also refused to accept the statement of corrections, indicating the statements on the application were estimates and could not be factually incorrect under section 1.15 of the 1983 BCA. (Ill. Rev. Stat. 1985, ch. 32, par. 1.15.) Subsequently the plaintiff also filed a report following merger on June 16,1986.

Kraft sought review of the Secretary’s refusal to consider the petition for refund and review and a statement of correction. The hearing officer found the plaintiff’s petition for refund and review was timely filed and plaintiff was entitled to file a statement of corrections. The Secretary accepted the hearing officer’s recommendation regarding the statement of corrections but rejected the recommendation plaintiff was entitled to file a petition for review and refund. The Secretary also found the merger provisions of the 1983 BOA did not apply to the plaintiff. The Secretary entered a final order allowing the plaintiff to file its statement of corrections but denying the petition for refund and review.

The plaintiff then filed its complaint for administrative review in the circuit court of Sangamon County on February 10, 1988. The circuit court determined the Secretary had erred in finding the plaintiff’s petition for review was untimely and found the due process rights of the plaintiff were violated by that finding. The circuit court entered judgment ordering the Secretary to reduce the assessment of taxes and fees for 1980 from $1,331,119.84 to $166.66.

The Secretary of State appeals on the grounds that (1) the circuit court erred in interpreting section 1.17(a)(2) of the 1983 BCA as allowing the plaintiff to file a petition for review; and (2) the enactment of the 1983 BCA did not reduce the limitations period such that Kraft’s due process rights were diminished. Ill. Rev. Stat. 1985, ch. 32, par. 1.17(a)(2).

The 1983 BCA sets out the following scheme for the reporting of any increase of capital or paid-in surplus. Section 1.60 provides the 1983 BCA does not affect rights and liabilities established prior to the 1983 BCA effective date of July 1, 1984, but that all computations and adjustments must take place on the basis prescribed by the 1983 BCA. In this case, Kraft’s original liability arose under the 1933 BCA but its filing and petition for adjustment will come under the terms of the 1983 BCA and subsequent amendments, the law in effect at the time of the filing of Kraft’s petition. Ill. Rev. Stat. 1985, ch. 32, par. 1.60.

Section 14.20 requires corporations to report increases of capital and issuance of shares within 60 days. The Secretary of State must collect the additional license fees (section 15.50) and an additional franchise tax (section 15.65). The basis for the license fees and franchise tax increases with the increase in the paid-in capital disclosed in any report related to the issuance of shares, exchange, or reclassification of shares, or increase of paid-in capital (sections 15.55 and 15.70). Section 15.55 also provides the proportion of paid-in capital attributable to this State is the amount stated in the last annual report on file or, if no annual report is on file on the date of increase, from the information contained in the application for a certificate of authority to transact business in this State. Ill. Rev. Stat. 1985, ch. 32, pars. 14.20, 15.50, 15.65, 15.55, 15.70.

Briefly stated, plaintiff filed an application for a certificate of authority on August 29, 1980. It estimated the total of its property at $4,000, $1,000 of which was in Illinois. No estimated business transactions were reported. Under the statutory scheme discussed above, the plaintiff’s allocation factor was .25, i.e., it was taxed on .25 of its total property and gross business, because .25 of its property and gross business were located in Illinois. On September 25, 1980, plaintiff engaged in a transaction which increased its capital and paid-in surplus to over $2.5 billion dollars. In December 1980, this was increased by another $500,000. Plaintiff did not report the increase to the Secretary but the increases were reflected in the annual reports filed starting in 1980. Because the plaintiff had not yet filed an annual report at the time of the increase in capital, the allocation factor employed in determining the additional fees and taxes was determined based on the figures supplied in the application on file. This was .25, instead of the .0000049, which plaintiff contends is the appropriate allocation factor. This led to an assessment of taxes, fees, and penalties in excess of $1,300,000, instead of the $166.66, which the plaintiff argues is the appropriate assessment.

The Secretary argues the plaintiff had no right to petition for adjustment of the assessment. In support of its position, the Secretary quotes the language of section 1.17(a)(2) of the 1983 BCA in effect at the time of Kraft’s filing of documents in 1985:

“No adjustment of an assessment shall be made unless a petition for such shall have been made within three years after the amount to be adjusted should have been paid.” (Emphasis added.) Ill. Rev. Stat., 1984 Supp., ch. 32, par. 1.17(a)(2).

Plaintiff argues the three-year period began to run on December 12, 1985, when the Secretary rendered its assessment for the additional taxes and fees. The Secretary counters that a straightforward reading of the statutory language requires this court to hold the three-year period began to run some time after the 60-day reporting period for the increases in capital and surplus made in September and December of 1980 ended. Though the Secretary does not state a precise date for the commencement of the three-year limitation period, it implies the period would begin when the 60-day reporting period had expired. However, the Secretary clearly contends the statutory limitation period of three years had run when the Secretary rendered its assessment in December of 1985, and Kraft has no right to petition for an adjustment. Both parties agree the tax liability arose when the increase in capital and surplus was made in 1980 and the plaintiff should have reported this to the Secretary.

We conclude the Secretary’s interpretation of section 1.17 is correct. As it existed in 1985, section 1.17 of the 1983 BCA expressly limited the time available for an adjustment to three years after the assessment should have been paid. In this case, because Kraft did not report the increase in capital and surplus, the assessment was not made until five years after the influx of capital took place. The three-year limitation period for petitioning for adjustments had passed. Had Kraft complied with the statute and filed within 60 days (section 14.20, formerly section 97 (Ill. Rev. Stat. 1981, ch. 32, par. 157.97)) the current dilemma would not have arisen.

Kraft vigorously argues the Secretary’s action has denied it due process of law and the circuit court accepted this argument. Kraft argues the Secretary’s assessment came after the statutory period for adjustment had run and left it with no proper redress for the taking of its property. The Secretary counters that Kraft has waived any due process considerations by its failure to file the required reports and its election to be taxed at the allocation rate it selected on its initial application.

Kraft has cited the leading Illinois cases considering due process arguments in the context of foreign corporation taxation but claims they have been superseded by the enactment of the 1983 BCA, which provides a procedure for review of the Secretary’s assessment, or are distinguishable. (Allstate Enterprises Stock Fund, Inc. v. Lewis (1976), 36 Ill. App. 3d 154, 343 N.E.2d 198; United States Borax & Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 111, 150 N.E.2d 818; Phillips 66 Co. v. Edgar (1987), 164 Ill. App. 3d 63, 517 N.E.2d 345.) Kraft has failed to appreciate the due process considerations which underlie those opinions and their applicability to this situation.

In United States Borax, the Illinois Supreme Court was called upon to consider a situation similar to the one here. There, the corporation had the option of paying the franchise tax on its entire stated capital and paid-in surplus or paying proportionately. The corporation elected to pay on the entire capital and surplus and then infused a substantial amount of new capital into the company without amending its annual report to choose a different method of assessment within the statutory limitation period. As a result, the corporation became liable for taxes on the whole of its capital. The court held the corporation had several choices to avoid paying the additional tax. It could have elected to choose the proportional method from the start, or filed an amended annual report. By failing to take advantage of either of these options, it had selected how it would be taxed. In regard to the corporation’s due process arguments, the court held they had been waived where the corporation was being taxed at its own election on the whole of its property.

This court in Allstate Enterprises followed the supreme court’s decision in United States Borax and stated:

“Clearly plaintiff was aware of its alternatives, since plaintiff, in its original application stated that it elected to pay its franchise tax upon the entire stated capital and paid-in surplus and omitted the information which would have been necessary to make a proportional assessment. We find this is a clear and voluntary waiver, binding on plaintiff.” Allstate Enterprises, 36 Ill. App. 3d at 159, 343 N.E.2d at 202.

This court again considered this issue in Phillips 66. There, the corporation elected to pay its tax based on its total capital at a time when this was minimal and realized too late the liability which accrued when a large influx of capital took place. In that case, this court rejected the corporation’s argument of mistake. This court held the 1933 BCA permitted correction of clerical errors but not retraction of statements which were made intentionally but had unforeseen consequences.

In this case, Kraft’s employee responsible for filing the statement testified it was a mistake to file the statement as it was, but the figures stated accurately reflected the state of the company at that time. This is clearly not the type of “clerical error” discussed in Phillips 66. There the court declined to consider any due process claim where the additional liability arose out of the election of the corporation. The corporation there could easily have elected to pay on a proportional basis but had not chosen to do so.

This case is not one which involved a choice between a tax on all or merely a proportion of the assets of the company. DKI was taxed proportionally. The issue which underlies the due process argument here is what that proportion is to be. Kraft and Dart created DKI for the express purpose of acting as a holding company for a proposed merger. The enormous influx of capital was not only foreseeable but the very reason for the existence of DKI. By supplying only the figures which it did, DKI diminished its initial taxable basis to $1,000 rather than the substantially higher figure which would have represented a realistic estimate of capital, surplus, and business attributable to Illinois. The record clearly shows the application required DKI to estimate its property and business transactions in its first year. The failure of the corporation to supply this information meant the allocation factor was incorrect. This error was compounded when Kraft failed to file an amended report when its capital structure changed dramatically.

While not on all fours factually with the cases discussed above, we find the reasoning therein relevant to the fact situation here. Kraft had the option of being taxed under the lower allocation I factor which it now seeks. Its election was not shown to be the result of a clerical error or mistake, but a conscious if unwise choice. A corporation is presumed to know the law applicable to it. (People ex rel. Bernardi v. Bethune Plaza, Inc. (1984), 124 Ill. App. 3d 791, 464 N.E.2d 1116.) We need not reach the due process or commerce clause claims of Kraft because the corporation has waived its claim by electing to be taxed as it has.

Kraft has also raised a number of other arguments in support of the circuit court’s ruling. It argues the three-year limitation for appeals of assessment was introduced in the 1983 EGA and application of this limitation to it here is a violation of its due process rights because the limitations period in the 1983 EGA has reduced its right to appeal. Kraft has not shown its rights were adversely affected when the new statute came into effect. The 1933 EGA statute merely permitted but did not require the Secretary to provide an opportunity for corporations to appeal their assessment. (Ill. Rev. Stat. 1983, ch. 32, par. 157.143.) It did not provide any limitation period. In the 1983 EGA, however, corporations were given a right to appeal within the three-year limitation period. (Ill. Rev. Stat. 1985, ch. 32, par. 1.17.) Kraft has failed to show how its rights have been diminished in a transition from a purely discretionary review by the Secretary to the present review as of right within the statutory limitation. Even assuming the limitation period was shortened, the legislature may validly shorten the time in which a suit may be brought so long as a rea- i sonable time exists for the presentation of an existing claim. (Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 288 N.E.2d 423.) The 1983 EGA became effective on July 1, 1984. (Ill. Rev. Stat. 1985, ch. 32, par. 1.01 et seq.) Kraft waited over a year until August 15, 1985, to submit its report on the additional capital and statement of corree- | tion and until November 5, 1985, to petition the Secretary for review. Given Kraft's delay, it is in a poor position to argue it has been denied due process.

Kraft also contends the particular posture of this case denies it due process where the Secretary has levied an assessment five years after the liability arose and after the running of the limitation period. The corporation’s argument on this point is not well-taken for the reason the tardiness of the Secretary’s assessment was due entirely to the failure of the plaintiff to file the required reports concerning the additional capital and surplus. Once again plaintiff’s acts have waived any due process or commerce clause claims which it might have had.

Finally, Kraft argues it is entitled to file a report of merger under section 14.25 of the 1983 BCA. (Ill. Rev. Stat. 1985, ch. 32, par. 14.25.) This section also contains a 60-day reporting period where the merger is not reported in any other filing required by the 1983 BCA. In this respect it is identical to its predecessor section 119 of the 1933 BCA. (Ill. Rev. Stat. 1983, ch. 32, par. 157.119.) In its petition for refund, Kraft represented its transaction did not comply with the statutory definition of merger in Delaware, the home State of all three corporations. Nevertheless, it argued it should be considered a merger under the terms of Illinois’ 1933 BCA. Section 113 of the 1933 BCA required that a merger qualify as a statutory merger in the State of incorporation before it may file a report of merger with the Secretary. Since DKI reported it did not qualify for a statutory merger in Delaware, it was not entitled to file a report in Illinois. Ill. Rev. Stat. 1983, ch. 32, par. 157.113; see also Ill. Rev. Stat. 1985, ch. 32, par. 13.35.

Here again, Kraft did not meet the required time limitations. It failed to file within the 60-day requirement for filing a report of merger and has not argued any other filing with the Secretary relieved it of the obligation to do so. It only attempted to file five years after the fact when the three-year review period of section 1.17 had expired. Section 1.17 is applicable to all requests for refunds and adjustments and Kraft, by failing to file its petition in a timely fashion, has waived any right to an adjustment based on such a filing.

For the reasons stated above Kraft was not entitled to an adjustment of the Secretary’s assessment nor do we find any merit in Kraft’s due process claims. While we recognize the result of our decision may appear harsh, Kraft has brought itself to this predicament through its own actions and must now bear the consequences of those actions.

The decision of the circuit court is reversed, and the decision of the Secretary is reinstated.

Reversed; Secretary of State’s order affirmed and reinstated.

McCULLOUGH, P.J., and LUND, J., concur.


author: JUSTICE LUND

text:
    DENNIS V. SPACE, Plaintiff-Appellant, v. E.F. HUTTON COMPANY, INC., Defendant-Appellee.
    Fourth District
    No. 4 — 89—0012
    Opinion filed August 31, 1989.

      Darrell A. Woolums, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellant.
    Thomas M. Knepper and Therese M. Obringer, both of Neal, Gerber, Eisenberg & Lurie, of Chicago, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On November 21, 1986, plaintiff Dennis Space filed a complaint against defendant E.F. Hutton, seeking to recover $28,000 he lost on a number of transactions in securities, alleging defendant’s agent violated the Illinois Securities Law of 1953 (Securities Law) (Ill. Rev. Stat. 1987, ch. 121½, par. 137.1 et seq.). Pursuant to agreement, the case was submitted to the circuit court of Macon County with plaintiff’s discovery deposition and written arguments. On December 6, 1988, the court found for defendant. Plaintiff now appeals.

This action is brought pursuant to the Securities Law, also known as the Blue Sky Law. Section 8 requires every investment advisor and dealer be registered with the Secretary of State. (Ill. Rev. Stat. 1987, ch. 121½, par. 137.8.) Plaintiff began dealing with defendant when plaintiff lived in New Jersey. At the time, defendant’s agent, Leonard Bogdan, with whom plaintiff dealt, worked out of the Louisville, Kentucky, office, and was registered in New Jersey. Plaintiff subsequently moved to Illinois and continued dealing with Bogdan, who, as it turns out, was not registered in Illinois. Accordingly, plaintiff is attempting to secure recovery under section 13 of the Securities Law (Ill. Rev. Stat. 1987, ch. 121½, par. 137.13(A)) for all the transactions in which he lost money. Section 13 allows a purchaser of securities, at his election, to void all transactions executed in violation of the law.

The evidence establishes that the majority of questioned transactions involved options transactions on the Standard and Poor’s 100 (S&P 100) Index. This is a weighted index of the top 100 stocks on the S&P Index and is traded on the Chicago Board Options Exchange. There were also several stock transactions.

Defendant raised two defenses involved in this appeal. The first was, with regard to the options transactions, that plaintiff was the seller of securities and was not, therefore, entitled to relief. The second was, with regard to the stock transactions, that the Securities Law requires the purchaser to tender the stock in question and, since plaintiff no longer had this stock, he could not complete this requirement. The court agreed with defendant on both counts.

Plaintiff first asserts defendant should be foreclosed from asserting these defenses because these are affirmative defenses which defendant did not plead.

Initially, we note plaintiff did not make this argument to the trial court with respect to the allegation of his failure to tender the stock. It is well settled that normally issues raised for the first time on appeal may not be considered by the appellate court or argued on appeal. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577; J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 639, 443 N.E.2d 597, 603.) Thus, this allegation, with respect to defendant’s tender argument, is waived.

Section 2 — 613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d)) provides that facts constituting an affirmative defense, which would likely take the opposite party by surprise, must be plainly set forth in the answer. The failure to do so waives the asserted defense. (Spagat v. Schak (1985), 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 992; Swansea Concrete Products, Inc. v. Distler (1984), 126 Ill. App. 3d 927, 929, 467 N.E.2d 388, 390; Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 998, 466 N.E.2d 958, 977.) It cannot be considered even if the evidence suggests the existence of such a defense. Spagat, 130 Ill. App. 3d at 134, 473 N.E.2d at 992; Dayan, 125 Ill. App. 3d at 998, 466 N.E.2d at 977.

The test of whether a defense is an affirmative defense and must be pleaded is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. (Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635.) The admission of the apparent right is inferable from the affirmative defense. Worner, 121 Ill. App. 3d at 222, 459 N.E.2d at 635; Warren Barr Supply Co. v. Haber Corp. (1973), 12 Ill. App. 3d 147, 148-49, 298 N.E.2d 301, 303.

In Worner, the court addressed whether the failure of consideration and the want of consideration are affirmative defenses. The court explained:

“Under this test the defense of failure of consideration would be an affirmative defense, because the defense impliedly admits the sufficiency of the underlying contract but offers an excuse for the defendant’s failure to perform. In contrast, the defense of want of consideration would not constitute an affirmative defense. It does not give color to the plaintiff’s claim, but rather attacks the sufficiency of that claim.” Worner, 121 Ill. App. 3d at 222-23, 459 N.E.2d at 635-36.

Applying this analysis to the present case makes it clear the assertion that plaintiff is a seller of securities is not an affirmative defense. By its very nature, this assertion attacks one of the required elements of plaintiff’s recovery, which is that he is a purchaser of securities. (See Ill. Rev. Stat. 1987, ch. 121½, par. 137.13(A).) Since this defense gave no color to plaintiff’s claim, defendant is not required to specifically plead it.

Plaintiff next contends the court’s decisions on the merits were erroneous. Plaintiff sought recovery under the civil remedy provisions contained in section 13, which provide, in part, that every sale of a security made in violation of this law shall be voidable at the election of the purchaser. At trial, defendant argued, concerning plaintiff’s options investing, that plaintiff was a seller of securities and, accordingly, was not afforded protection by this law. The trial court agreed.

Plaintiff made numerous transactions as a writer of calls on the S&P 100 Index. A call is an option to purchase the underlying security at a set price, known as the strike price, at a set date in the future. A writer of a call receives a premium from the buyer upon entering into the agreement. The strike price on the call is always higher than the current price. Thus, the buyer is speculating the measuring securities will increase in price beyond the strike price. If it does, the buyer will purchase these securities at the strike price and sell them at the market price. Conversely, the writer is speculating that the market price will not exceed the strike price by the date the option is to expire. In that case, the buyer will not exercise his option, and the writer keeps the premium as his profit.

In the present case, the speculation is on the rise and fall of the S&P 100 Index. If the price rises, the writer can cover by buying a comparable option and, thereby, cancel his position, or he can let the buyer of the call exercise his option and pay the cash difference. In most of the transactions, plaintiff purchased calls at a loss to cover the ones he sold.

It is evident by the very wording of section 13(A) that the remedies under the Illinois Blue Sky Law are available only to purchasers of securities. (Guy v. Duff & Phelps, Inc. (N.D. Ill. 1985), 628 F. Supp. 252, 263.) Thus, unless plaintiff is a purchaser of securities, as they are defined in section 2.1 (Ill. Rev. Stat. 1987, ch. 121½, par. 137.2 — 1), it is equally evident he is not entitled to recovery. This section includes calls and options as securities. Thus, it is apparent, after reviewing the role of a writer of calls on the option market, that plaintiff is a seller of securities, and not a purchaser, a position with which other courts dealing with comparable statutes have agreed. See Gutter v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (6th Cir. 1981), 644 F.2d 1194; Prudential-Bache Securities, Inc. v. Cullather (E.D. Va. 1987), 678 F. Supp. 601.

Plaintiff, observing the Securities Law is paternalistic in nature and should be liberally construed in order to accomplish its intent (see Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 162, 499 N.E.2d 1309, 1315), believes this is too narrow an interpretation. He believes he should be considered a purchaser, and Bogdan considered a seller since Bogdan received a commission on each transaction. Plaintiff is correct. He is a purchaser. However, he is not a purchaser of securities. Rather, he is a purchaser of advice and services, which are not covered by the Securities Law.

Lastly, plaintiff contends the court erred in denying him recovery for failing to comply with the tender requirements of the Securities Law. Since moving to Illinois, plaintiff made five purchases of stock through defendant. Four of these stocks he sold prior to 1986. The last he sold in 1987 because he became tired of waiting for this matter to be resolved. Defendant argued, and the court found, that it is a requirement that plaintiff tender the stock back to defendant to preserve his remedy.

Section 13 of the Securities Law, which was in effect at the time of the purchases, provided a purchaser shall be entitled to his remedy “upon tender to the seller or into court of the securities sold or, where the securities were not received, of any contract made in respect of such sale.” (Ill. Rev. Stat. 1983, ch. 121½, par. 137.13(A).) It is well settled, pursuant to this section, that before a purchaser may rescind his purchase of stock sold in violation of the Blue Sky Law and recover his purchase price, he must tender the stock back to the seller. (Tobey v. Sundling (1974), 25 Ill. App. 3d 205, 210, 323 N.E.2d 30, 35.) The inability of the party to restore the stock will not relieve him from the necessity of doing so, and it is not sufficient to offer to set off the amount against what is claimed from the other party. (Glen v. Dodson (1932), 347 Ill. 473, 479, 180 N.E. 393, 395.) Once made, the tender offer must be held open to the time of judgment. (Tobey, 25 Ill. App. 3d at 211, 323 N.E.2d at 35.) Thus, based on this section and the applicable case law,- the court’s decision was correct.

However, section 13 had been amended by the time of trial. It now provides, effective January 1, 1986, that a purchaser must either tender the securities as before or, if the purchaser no longer owns the securities, he can recover as before less any amount received in disposition of the securities. (Ill. Rev. Stat. 1987, ch. 121½, par. 137.13(A).) It is evident then that if the most recent provision is applicable, plaintiff’s tender problems disappear.

Generally, a legislative amendment is construed as prospective, unless there is express language declaring it to be retrospective. (New York Life Insurance Co. v. Murphy (1944), 388 Ill. 316, 324, 58 N.E.2d 182, 186; Clouse v. Heights Finance Corp. (1987), 156 Ill. App. 3d 975, 977, 510 N.E.2d 1, 2.) However, when this legislative amendment affects only a remedy or procedure “all rights of actions will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether the suit has been instituted or not, unless there is a saving clause as to existing litigation.” Nelson v. Miller (1957), 11 Ill. 2d 378, 382, 143 N.E.2d 673, 676; see also Ogdon v. Gianakos (1953), 415 Ill. 591, 597, 114 N.E.2d 686, 690.

In Clouse and Winter & Hirsch, Inc. v. Passarelli (1970), 122 Ill. App. 2d 372, 259 N.E.2d 312, the courts dealt with amendments to the usury laws and what effect they had on pending litigation. In Passarelli, the amendment provided that a successful plaintiff could receive twice the interest charge rather than just relief from the usurious interest which the law previously allowed. In Clouse, just the opposite amendment took place, with the legislature reducing the amount of recovery from double the interest paid to relief from payment of the usurious interest. In each case, the court applied the new law finding it was remedial and not substantive. As the Passarelli court explained:

“It must be remembered that the section under review does not determine the substance of usury, nor were the elements of usury altered by the amendment; all that was altered was the remedy available in those cases where usurious interest has been charged.” Passarelli, 122 Ill. App. 2d at 385-86, 259 N.E.2d at 319.

Similarly, in the present controversy, the amendment does not affect the substance of the violation of the Securities Law. It merely affects the remedy available where there are such violations. The amended section 13 should have been applied, and the court erred in denying plaintiff’s claim on the stock transactions, based on his inability to tender the shares of stock back to defendant. Therefore, it is necessary to reverse this portion of the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

McCULLOUGH, P.J., and GREEN, J., concur.