text:
      In re ESTATE OF EDWARD J. BULGER, Deceased (Estate of Edward J. Bulger, Deceased, Appellee, v. Emmett Bulger, Jr., et al., Appellants).
    First District (3rd Division)
    No. 1—90—0991
    Opinion filed December 31, 1991.

      Thomas J. Georgis & Associates, Ltd., of Palos Hills, for appellants.
    John Roth, of McHenry, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

The executor, Anthony A. DiGrazia, filed a supplemental proceedings petition to construe testator Edward J. Bulger’s will. The trial court ordered that the estate vests in the surviving children of testator pursuant to the will. Plaintiffs Emmett Bulger, Jr., Susan Sea, Dolores Bauer, Christine Torres, and Michael Bulger, who are testator’s grandchildren, appeal that order.

Plaintiffs make the following allegations on appeal: (1) that where there is a testamentary disposition to a class composed of testator’s descendants, and one of testator’s children predeceases testator leaving descendants, the disposition is governed by section 4 — 11(b) of the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b)), unless it clearly appears from the will that testator provided for the contingency of a prior death of one of his children; (2) that the phrase “or to the survivor or survivors of them” in testator’s will is not a sufficiently clear indication that testator provided for the contingency of the prior death of one of his children necessary to avoid the aforementioned “anti-lapse” provision; and (3) that Schneller v. Schneller (1934), 356 Ill. 89, 190 N.E. 121, is applicable to the present case. Testator’s children maintain that the issue on appeal is whether the phrase “or to the survivor or survivors of them” in testator’s will, viewed within the four comers of the will, creates an ambiguity which requires judicial construction.

The following issues are before this court for review: (1) whether the phrase contained in testator’s will, “to share and share alike, or to the survivors of them in equal shares,” creates an ambiguity which requires construction of the will; and (2) if so, whether by this clause the grandchildren may take their father’s share pursuant to section 4 — 11(b) of the Act. We reverse.

Testator died a resident of Cook County, Illinois, on July 28, 1989. On August 16, 1989, his will, dated November 29, 1972, was admitted to probate in proceedings filed in the circuit court of Cook County. Paragraph 2 of said will makes the following provision:

“All the rest, residue, and remainder of my property, *** I give, devise and bequeath to my wife, ESTHER Z. BULGER, and in the event my wife, ESTHER Z. BULGER, shall predecease me *** all of my said property shall go and the same is hereby given, devised and bequeathed to my children, EDWARD G. BULGER, VERONICA STEDMAN, EMMETT BULGER and CHARLES BULGER, to share and share alike, or to the survivor or survivors of them, in equal shares.”

Emmett Bulger predeceased his father, testator, and was survived by plaintiffs.

At the time of testator’s death, section 4 — 11(b) of the Act was in effect. (Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b).) Section 4 — 11(b) makes the following relevant provision:

“Legacy to a deceased legatee: Unless the testator expressly provides otherwise in his will, *** (b) if a legacy of a present or future interest is to a class and any member of the class dies before or after the testator, the members of the class living when the legacy is to take effect in possession or enjoyment take the share or shares which the deceased member would have taken if he were then living, except that if the deceased member of the class is a decedent of the testator, the descendants of the deceased member then living shall take per stirpes the share or shares which the deceased member would have taken if he were then living ***.” Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b).

On or about September 20, 1989, testator’s grandchildren made a demand upon counsel for the executor of testator’s estate for their deceased father’s share of the estate. On or about November 22, 1989, during pending probate proceedings, the executor filed a petition for supplemental proceedings to construe the will.

On or about March 8, 1990, the court ordered that the estate was to be distributed to the surviving children of testator only, and not the grandchildren. Upon pronouncing its decision, the trial court stated, “There is no ambiguity here. The will very clearly says it goes to the children or the survivors of them, and I cannot interpret the will in any other way.” Plaintiffs appeal that order.

Testator’s children concede that section 4 — 11 states that it is applicable to all wills unless the testator “expressly provides otherwise in his will.” (Ill. Rev. Stat. 1989, ch. 110½, par. 4—11.) Testator’s children also acknowledge that the will states that testator’s four named children are to “share and share alike, or to the survivor or survivors of them in equal shares.” Testator’s children, however, in reliance upon Estate of Smith (1982), 107 Ill. App. 3d 1038, 438 N.E.2d 553, argue that the language “survivor or survivors of them” means “the last living person or persons of those named.” (Estate of Smith, 107 Ill. App. 3d at 1041, 438 N.E.2d at 557.) Testator’s children contend that section 4 — 11(b) of the Act is therefore inapplicable to the will in the present case because testator has expressly provided that only his children living at the time of his death may take under his will. We disagree.

At common law, when a testator made a devise or bequest by will to a class composed of his children, and a member of the class predeceased the testator leaving descendants, the share of the deceased member would not go to his descendants, but to the remaining members of the class. In order for a member of the class to take, he had to survive the testator. If a member of the class predeceased the testator, the gift lapsed because it never vested in the deceased class member and was thus not available to his descendants. See 4 W. Bowe & D. Parker, Page on the Law of Wills §35.15 at 539-40 (3d ed. 1961); Carter v. Lewis (1936), 364 Ill. 434, 438, 4 N.E.2d 853, 856.

In order to overcome the harsh result of common law, the General Assembly of the State of Illinois enacted legislation commonly referred to as the “anti-lapse” statute (Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b)). The Act provides that the descendants of the deceased member of a class would take under the same set of circumstances described above. Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b).

In addition, the Illinois Supreme Court has ruled that “where a gift to survivors is preceded by a life or other prior interest it takes effect in favor of those who survive the period of distribution, and those only, unless a special contrary intent is found in the will.” (Burlet v. Burlet (1910), 246 Ill. 563, 566, 92 N.E. 965, 966.) Later in Schneller v. Schneller (1934), 356 Ill. 89, 190 N.E. 121, our supreme court ruled that where a testator’s will provided, “I give, devise and bequeath to my three children, *** or to the survivors or survivor of them to be distributed equally share and share alike,” the words “survivors or survivor” did not by themselves indicate an intent on the part of the testator to bar application of the “anti-lapse” statute. (Schneller, 356 Ill. at 91-93, 190 N.E. at 122-23.) The court in Schneller further ruled that in order to avoid an “anti-lapse” statute, a will must clearly manifest an intention on the part of the testator to disinherit any grandchildren whose parents predeceased the testator. Schneller, 356 Ill. at 93, 190 N.E.2d at 123; see In re Estate of Wood (1973), 13 Ill. App. 3d 595, 300 N.E.2d 560.

We find that the above rule of construction is applicable to the case at bar. The trial court erred when it ruled that testator’s will clearly stated that testator’s grandchildren who were children of testator’s deceased son Emmett Bulger could not take under the will. The phrase “or to the survivor or survivors of them” in testator’s will is not a sufficiently clear indication that testator provided for the contingency of the prior death of his son necessary to avoid section 4— 11(b) of the Act. (See Schneller, 356 Ill. at 91-93, 190 N.E. at 122-23.) Therefore, the phrase in question contained in testator’s will requires construction of the will in accordance with section 4 — 11(b) of the Act.

Section 4 — 11(b) provides that living children of a deceased class member inherit per stirpes the share which the decedent would have taken had he survived. (See Ill. Rev. Stat. 1989, ch. 110½, par. 4—11(b).) Therefore, plaintiffs take their father’s share pursuant to section 4 — 11(b) of the Act.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

CERDA, P.J., and GREIMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    PETERSON-JORWIC GROUP, INC., Plaintiff-Appellant, v. FRANK PECORA, Defendant-Appellee.
    First District (3rd Division)
    No. 1—91—1655
    Opinion filed December 31, 1991.

      Michael K. Durkin, of Rosemont, for appellant.
    Wayne & LeVine, of Chicago (Alan S. Levin, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Peterson-Jorwic Group, Inc. (Peterson-Jorwic), brought an action seeking injunctive relief to enjoin defendant Frank Pécora from violating a noncompetition clause contained within an employment contract executed during the course of Pécora’s employment with Peterson-Jorwic. The trial court denied Peterson-Jorwic’s motion for a preliminary injunction on the basis that the parties’ employment contract lacked consideration and that Peterson-Jorwic did not have a protectable business interest which could be enforced. On appeal, Peterson argues that (1) the noncompetition clause contained in the parties’ employment contract should be enforced because the necessary elements and requirements which entitle it to injunctive relief have been satisfied; and (2) the noncom-petition agreement is supported by adequate consideration. We affirm.

Peterson-Jorwic has served as the exclusive manufacturing representative in Illinois for Royal Appliance Manufacturing Company (Royal) since 1984. On July 28, 1989, Peterson-Jorwic hired Pécora to serve as a manufacturer’s representative and to service several of its accounts, including Royal. On September 12, 1989, the parties executed an employment contract, which included the following non-competition clause:

“[EJmployee agrees that for a period of twenty-four (24) months following the termination of Employee’s employment with the Employer, he shall not directly or indirectly solicit, contact or approach any customer or client of the Employer for whom he performed services while employed by the Employer or which he solicited on behalf of the Employer or which employed the services of the Employer within twelve (12) months prior to the beginning of the Employee’s employment with the Employer.”

In October 1990, Royal notified Peterson-Jorwic that it would be terminating their business relationship. Consequently, on October 31, 1990, Peterson-Jorwic fired Pécora. On January 1, 1991, Pécora commenced employment with Royal as a manufacturer’s representative in violation of the noncompetition clause contained in the parties’ employment contract. On April 9, 1991, Peterson-Jorwic filed this action in the circuit court seeking an injunction to enjoin Pé-cora from continuing to act as a manufacturing representative on behalf of Royal. The trial court entered an order denying Peterson-Jorwic’s motion for a preliminary injunction. This appeal followed.

Peterson-Jorwic contends that the noncompetition clause contained in the parties’ employment contract should be enforced because the necessary elements and requirements which entitle it to injunctive relief have been satisfied. We disagree.

It is well established that private covenants restraining trade are disfavored in the law and will be carefully scrutinized to ensure that they are reasonable and not contrary to public policy. (Russell v. Jim Russell Supply, Inc. (1990), 200 Ill. App. 3d 855, 864-65, 558 N.E.2d 115, 122-23.) A restrictive covenant will be enforced only if the time and territorial limitations are reasonable and the restrictions imposed by the covenant are necessary to protect a legitimate business interest. (Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 491, 564 N.E.2d 1382, 1387.) A preliminary injunction to enjoin a violation of a restrictive covenant will be granted only where an extreme emergency exists and serious harm would result in the absence of the injunction. (Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 148, 573 N.E.2d 863, 865.) Our review of the record requires us to conclude that PetersonJorwic has failed to establish that it would incur serious harm if its motion for a preliminary injunction is denied.

Royal terminated its business relationship with PetersonJorwic in October 1990. Peterson-Jorwic has not demonstrated that it has resumed a business relationship with Royal, or how it would suffer injury, pecuniary or otherwise, as a consequence of Pecora’s continued solicitation or representation of Royal. Accordingly, because Peterson-Jorwic failed to present even a modicum of evidence indicating the type or extent of injury it would incur in the event that its motion for a preliminary injunction is denied, we must conclude that Peterson-Jorwic will not suffer irreparable injury if we fail to grant a preliminary injunction to enforce the noncompetition clause of the parties’ employment contract.

Peterson-Jorwic argues that irreparable injury is presumed to follow after it established that a protectable business interest exists. (See Tyler, 214 Ill. App. 3d at 150-51, 573 N.E.2d at 866.) Without ruling whether Peterson-Jorwic has established a protectable business interest, Pécora has overcome any presumption of irreparable injury by presenting sufficient evidence that PetersonJorwic will not suffer any harm in the event that the motion for a preliminary injunction is denied.

It is therefore unnecessary for us to address whether the non-competition clause was supported by adequate consideration.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    WILLIS C. MARCUS et al., Plaintiffs-Appellants, v. ART NISSEN AND SON, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—2828
    Opinion filed December 31, 1991.
    Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellants.

      Tressler, Soderstrom, Maloney & Priess, of Chicago (Robert W. Soder-strom, James R. Murray, and Susan M. Luther, of counsel), for appellees Art Nissen & Son, Inc., and Carroll Stanton.
    Redding & Hyde, of Chicago (Julius V. Padegimas and Kevin M. Lynch, of counsel), for appellees David Porzel and Cathleen Porzel.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises from a negligence action by the plaintiffs, Willis C. Marcus and his wife, Marjorie Marcus, against the defendants, Art Nissen and Son, Inc., Carroll Stanton, David Porzel and Cathleen Porzel. Willis Marcus was injured in a three-car accident with the defendants on September 11, 1986. He died of unrelated causes on January 30, 1988. Several months later, on September 12, 1988, a lawsuit was filed on behalf of Willis Marcus and Marjorie Marcus. The suit sought recovery of money damages for Willis Marcus’ personal injuries and for his wife’s loss of consortium. The complaint was titled “Willis C. Marcus and Marjorie Marcus, Plaintiffs.”

After the applicable statute of limitations had expired, the defendants moved to dismiss on the grounds that plaintiff Willis Marcus was dead on the date the complaint was filed and the lawsuit was therefore a nullity. The defendants also alleged that plaintiff Marjorie Marcus’ claim for loss of consortium must fail because her husband’s suit was not timely filed.

The plaintiffs responded by asking for leave to amend the complaint as to the claim of Willis Marcus by substituting Marjorie Marcus as administrator of her husband’s estate as the party plaintiff. The plaintiffs further asked that the amended complaint relate back to the date the original complaint was filed. The trial court denied the motion to amend and dismissed the complaint.

On appeal, the plaintiffs contend that the trial court should have allowed the filing of an amended complaint naming a proper party plaintiff to relate back to the date the original complaint was filed, pursuant to section 2 — 616(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(b)). Additionally, Marjorie Marcus contends that her loss of consortium claim was independent from her husband’s claim and was timely filed.

This cause involves the relationship between the amendment of pleadings and the running of a statute of limitations. The statute of limitations for personal injury actions is two years. Willis Marcus’ original complaint, brought in his name, was filed within that two-year period. However, the motion to amend the complaint to name the administrator of his estate as plaintiff was brought after the statute of limitations had run. Section 2 — 616(a) of the Code of Civil Procedure provides that prior to final judgment, an amendment may be allowed to introduce “any party who ought to have been joined as plaintiff or defendant.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a).) Section 2—616(b) also provides for the relation back of amendments as follows:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act *** which is a necessary condition precedent to the right of recovery *** if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2—616(b).

The legislative intent of the relation back provision in section 2 — 616 has been construed as the preservation of causes of action against loss by reason of technical rules of pleading. (Lopez v. Oyarzabal (1989), 180 Ill. App. 3d 132, 135, 535 N.E.2d 8.) Relation back has been allowed in several cases where a complaint was filed on behalf of a deceased plaintiff in the name of a person who had not yet been appointed administrator or in the name of an administrator whose appointment was in some way defective. (Lopez v. Oyarzabal (1989), 180 Ill. App. 3d 132, 535 N.E.2d 8; Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 447 N.E.2d 982; Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95.) We find the reasoning expressed in these cases instructive, even though none of them addressed the precise situation presented in the case at bar, where the complaint was actually filed in the name of the deceased plaintiff.

In Simmons v. Hendricks (1965), 32 Ill. 2d 489, 207 N.E.2d 440, the supreme court considered whether a relation back could occur where a man’s family brought suit for loss of support under the Dramshop Act. After the statute of limitations had expired, the plaintiffs attempted to amend the complaint to satisfy the requirement that such suits be brought in the name of the provider for the use and benefit of the family members. The supreme court allowed the amended complaint to relate back, stating that the amended complaint arose out of the same occurrence as the original complaint and that the defendants had suffered no prejudice. Quoting an earlier supreme court case, the Simmons court stated that the sole requirement of section 46 of the Civil Practice Act (the predecessor of section 2— 616) “is that the cause of action set up in the amendment grew out of the same transaction or occurrence set up in the original pleading.” (Simmons, 32 Ill. 2d at 495, 207 N.E.2d at 443, citing Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 229, 15 N.E.2d 838, 842.) The court explained that “insofar as a prescription or limitation of time is concerned, a defendant has not been prejudiced so long as his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.” (Simmons, 32 Ill. 2d at 495, 207 N.E.2d at 443.) The same reasoning was recently applied by this court in Lopez v. Oyarzabal (1989), 180 Ill. App. 3d 132, 535 N.E.2d 8, where we stated that “[t]he right to amend and the relation back of an amendment depend on whether the original complaint furnished to the defendant all the information necessary for him to prepare a defense to the claim subsequently asserted in the amended complaint.” Lopez, 180 Ill. App. 3d at 135, 535 N.E.2d at 10, citing Joyce v. Wilner (1987), 156 Ill. App. 3d 702, 706, 509 N.E.2d 769, 771.

In the case at bar, plaintiff Willis Marcus was injured in a car accident and subsequently died of causes unrelated to the accident. The negligence action was filed within the two-year limitations period, although it was improperly filed in Willis Marcus’ own name rather than in the name of his wife as administrator of the estate. The defendants therefore had notice within the time prescribed by the statute of limitations that a suit was being filed that they would have to defend. The amended complaint stated the same cause of action as the original complaint and would have done nothing more than substitute the administrator of the estate as the plaintiff in the lawsuit. Under the language of section 2 — 616(b) and the reasoning expressed in the cases discussed above, we believe that the trial court should have allowed the filing of an amended complaint which would then relate back to the date the original complaint was filed.

The defendants argue that the above-cited cases are distinguishable because the plaintiffs in those cases, although not proper parties for whatever reason, were at least alive at the time the suits were filed. The defendants assert the proposition that a complaint filed by or against a dead person does not invoke the jurisdiction of the court and is accordingly a nullity. Thus, the defendants maintain that because the original complaint was a nullity, there was nothing to which the amended complaint could relate back. The defendants cite several cases to support their argument. These cases are distinguishable from the case at bar in that they involve lawsuits where the defendant, not the plaintiff, was deceased at the time the suit was filed. Bricker v. Borah (1984), 127 Ill. App. 3d 722, 724, 469 N.E.2d 241, 242-43 (“[a] complaint filed against a dead person is void ab initio, a nullity, and does not invoke the jurisdiction of the circuit court”); Volkmar v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 149, 151, 432 N.E.2d 1149, 1151 (“proceedings instituted against an individual who is deceased at the time of the filing of suit are a nullity *** and do not invoke the jurisdiction of the trial court”); McCue v. Colantoni (1980), 80 Ill. App. 3d 731, 737, 400 N.E.2d 683, 687 (“[a] dead person cannot be party to a lawsuit, and an action filed against a dead person does not invoke the jurisdiction of the court”); Wells v. Lueber (1976), 43 Ill. App. 3d 973, 974, 358 N.E.2d 293, 294 (“[t]he law is clear that a dead person cannot be a party to a suit, and that a suit filed against a dead person does not invoke the jurisdiction of the trial court”).

All of the above-cited cases involve lawsuits filed against dead defendants. None contains a rationale for the stated proposition. The cases do, however, consistently cite Reed v. Long (1970), 122 Ill. App. 2d 295, 259 N.E.2d 411, and Bavel v. Cavaness (1973), 12 Ill. App. 3d 633, 299 N.E.2d 435, as authority for the idea that a suit filed by or against a dead person is a complete nullity and does not invoke the jurisdiction of the court. Neither Reed nor Bavel addresses the relation back doctrine contained in section 2 — 616 or its predecessors, and only Bavel comes close to stating a rationale for the proposition in question. The court in Bavel, citing to a volume of Illinois Law and Practice, states that “[i]t is axiomatic that in order to have a civil suit in tort there must be a plaintiff and a defendant and it is likewise clear that the prime requisite as to parties, whether plaintiffs or defendants, is that they be either a natural or artificial person and that the capacity to be sued exists only in persons in being and not those who are dead or have not yet been born.” Bavel, 12 Ill. App. 3d at 637, 299 N.E.2d at 438, citing 29 Ill. L. & Prac. Parties §21, at 164 (1957).

We have no quarrel with the proposition that a lawsuit must have a plaintiff and a defendant and that both must be in existence for the lawsuit to proceed. The sole question before us is whether the trial court should have allowed the filing and relation back of an amended complaint which would have substituted the administrator, a living person, as the party-plaintiff in this lawsuit. As previously discussed, nothing in the language of section 2 — 616 would prevent such a result. To the extent that the cases cited by the defendants contain language indicating that a complaint filed in the name of a deceased plaintiff is a nullity for purposes of applying the relation back doctrine, we disagree with those cases.

The Illinois Supreme Court recently had the opportunity to assess the validity of the proposition that a lawsuit filed by or against a deceased person is a nullity for purposes of the relation back doctrine. In Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885, cert. denied (1989), 492 U.S. 907, 106 L. Ed. 2d 568, 109 S. Ct. 3218, the plaintiffs filed a negligence complaint against the defendant, unaware of the fact that the defendant was deceased. After the statute of limitations had run, the plaintiff sought to amend the complaint to substitute the executors of the estate as the defendants and to have the amended complaint relate back to the date of the original complaint pursuant to section 2 — 616(d). (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(d).) The trial court denied leave to amend and the complaint was dismissed. The appellate court affirmed on the grounds that the original complaint was a nullity and could therefore not be amended. In discussing the relation back issue, the supreme court made the following statements:

“We must *** determine whether the second complaint relates back (for statute of limitations purposes) to the initial complaint which named as defendant a deceased individual. For us to simply label the initial suit a ‘nullity’ (see Wells v. Lueber (1976), 43 Ill. App. 3d 973[, 358 N.E.2d 293]; Reed v. Long (1970), 122 Ill. App. 2d 295[, 259 N.E.2d 411]) would be to answer this question in the negative without explanation. We must instead first examine certain Code provisions relied on by plaintiffs in the appellate court (provisions involving the relationship between the amendment of pleadings and the running of a statute of limitations) and determine whether any of those provisions apply.” (Vaughn, 126 Ill. 2d at 157, 533 N.E.2d at 888.)

The court then determined that “[rjegardless of whether an action against a decedent is under all circumstances a nullity,” relation back was not proper in the case before it because section 2 — 616(d) expressly required that the substituted defendant receive notice of the pending action prior to the running of the statute of limitations. (Vaughn, 126 Ill. 2d at 160, 533 N.E.2d at 889.) In Vaughn, no such notice was given.

We find it significant that the supreme court declined to base its holding in Vaughn on the proposition that a complaint filed against a dead person is a nullity for purposes of the relation back doctrine, even though that was the basis of the appellate court decision. Instead, the court examined the language of section 2 — 616 to determine whether relation back was permissible and held that it was not because the defendant sought to be substituted did not receive notice prior to the lapse of the limitations period as required by section 2— 616(d). The situation in the case at bar is somewhat different from that in Vaughn, in that it involves substitution of a party-plaintiff rather than a party-defendant and is therefore controlled by section 2 — 616(b). As previously discussed, the requirements of section 2— 616(b) were met because the defendants here were notified of the cause of action prior to the running of the statute of limitations when the original complaint, stating the same cause of action, was filed. Under these circumstances, we believe it was error for the trial court to grant the defendants’ motions for dismissal and summary judgment.

Our disposition of the cause on this basis makes it unnecessary for us to address the issue raised by plaintiff Marjorie Marcus concerning the timeliness of her action for loss of consortium.

Accordingly, the judgments of the trial court are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LINN and McMORROW, JJ., concur.

      Section 13 — 209 of the Code of Civil Procedure extends the limitations period where a person dies prior to the expiration of the time limited for the commencement of an action. In that case, the action may be brought by the decedent’s representative no later than one year after the death. (Ill. Rev. Stat. 1989, ch. 110, par. 13—209.) This extension is of no help to the plaintiffs here, however, because the motion for leave to amend was filed more than one year after Willis Marcus’ death.


author: JUSTICE JOHNSON

text:
    THOMAS F. ALTMAN, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—3186
    Opinion filed December 31, 1991.
    Richard J. Puchalski, of Puchalski, Keenan & Reimer, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Thomas Altman, appeals from an order of the circuit court of Cook County dismissing his complaint against defendants, the City of Chicago and the Chicago police department (Department), pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). The trial court held that plaintiff’s claim, which sought to enforce a right to a promotion, was insufficient as a matter of law. The only issue on appeal is whether the trial court erred in dismissing the complaint in which plaintiff claimed he had a contractual right to a higher performance rating and a promotion.

We affirm.

Plaintiff has been employed as a police officer for the Department since 1968. In March 1978, plaintiff was injured while on duty. He was hospitalized and placed on medical leave until June 6, 1978. In December 1988, plaintiff was denied a promotion. He brought an action seeking a declaration of his rights under the Department’s written promotional policies.

Plaintiff alleges that the Department’s written notices create a uniform system for rating police officers for purposes of promotion. He further alleges that the departmental notices create a contractual right for officers seeking a promotion to the rank of sergeant. Specifically, plaintiff contends that he received a lower performance rating because the Department improperly considered his 1978 illness in violation of its notices.

The record includes two departmental notices issued by the Department which address the responsibilities of command personnel in conducting performance ratings. The pertinent sections of the departmental notices state the following:

“HI. RESPONSIBILITIES OF COMMAND PERSONNEL

A. Command personnel are responsible for the administration of the Performance Rating System within units under their supervision. They will ensure that:

1. the system is administered fairly.

2. large numbers of members are not set back by a policy of assigning high performance marks to all members of a unit.

3. members deserving of a high grade are not given a low grade because a supervisor does not understand how the system operates.

* * *

VI. RESPONSIBILITIES OF THE RATER AND APPROVING RATERS

A. It is important that the rater judge each member under his command according to the same set of fair and impartial standards.

* * *

H. With reference to the trait ‘Attendance and Promptness’ the rater should be aware that a member taking sick leave is to be considered absent. Absences for medical reasons should be carefully evaluated before assigning a grade for the Attendance and Promptness trait. The reasons, the duration, and the number of medical incidents are factors to be reviewed before assigning a grade for this trait. A long-term absence due to injury or illness should not be viewed the same as multiple absences of short duration.

* * *

K. The use of sick leave should be considered before assigning a grade to the Attendance and Promptness trait. Long-term illnesses or injuries justify absences for medical reasons, and the member with a good work history should not be excessively penalized for such absences. *** Such absences should be investigated before a satisfactory grade is assigned.” (Emphasis added.)

After a hearing on defendants’ motion to dismiss, the trial court held that the Illinois Supreme Court’s decision in Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, does not provide public sector employees with enforceable contractual rights. The court further held that even if Duldulao was controlling plaintiff failed to meet the requirements necessary to establish a contractual relationship. The trial court found that plaintiff’s claim was insufficient at law and dismissed the action pursuant to section 2 — 615. (Ill. Rev. Stat. 1989, ch. 110, par. 2—615.) This appeal followed.

On appeal, plaintiff maintains that the departmental notices create a contractual right for city police officers seeking a promotion. He further alleges that the Department improperly considered his 1978 illness in conducting his performance rating. Plaintiff relies on Duldulao to support his contention that the Department’s policy on promotions created a contractual right. In Duldulao, our supreme court held:

“[A]n employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490.)

Plaintiff contends that the provisions contained in the departmental notices constituted a clear promise as to the procedures in promoting Chicago police officers. We disagree.

Addressing the merits of plaintiff’s claim, we do not believe that the Department’s written policies for rating police officers created a contractual right for officers seeking a promotion. Under the holding in Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, the departmental notice must contain a clear promise that an employee would reasonably construe as an offer in order to create an enforceable contract. (Duldulao, 115 Ill. 2d at 490.) As the trial court properly noted, the employee handbook in Duldulao contained specific language in the policy statements that expressly required the employer to do and refrain from doing certain things. The departmental notices in the case at bar set forth a general policy which gives command personnel discretion in rating police officers.

The section relating to plaintiff’s specific request is written in discretionary language. For example, the policy states that “[AJbsences for medical reasons should be carefully evaluated before assigning a grade ***.” (Emphasis added.) In addition, although the policy states that long-term illnesses may be taken into account in performing an evaluation, it does not state the degree to which sick leave will be taken into consideration. It merely states that long-term illnesses should not be excessively penalized. This language does not promise that an officer’s illness will not be considered when evaluating the officer’s performance. To the contrary, it gives the rater discretion to determine the degree to which a long-term illness may be considered.

This court has recognized that “general statements of company policy or procedures which are discretionary in nature [are] too indefinite to constitute a clear promise which could reasonably be interpreted as an offer.” (Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 522.) We believe the language contained in the Department’s notices gives command personnel wide discretion in weighing the degree to which a long-term illness may be taken into consideration. We therefore hold that the departmental notices are not “clear enough that an employee would reasonably believe that an offer has been made.” Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490.

“A complaint is properly dismissed where it appears that no set of facts can be proved which will entitle the plaintiff to relief.” (Torres v. Amoco Corp. (1989), 186 Ill. App. 3d 135, 138.) Here, we find that plaintiff has not sufficiently alleged facts to support his claim.

For the foregoing reasons, the decision of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE McMORROW

text:
      In re PETITION TO ADOPT T.I.S., a Minor.
    First District (4th Division)
    No. 1—90—3357
    Opinion filed December 31, 1991.

      Richard B. Kapnick and Mark B. Blocker, both of Sidley & Austin, of Chicago, for appellant.
    Thomas P. Hanrahan, of Chicago, for appellees.
    Steven Paul McSloy and William Y. Chan, both of Cravath, Swaine & Moore, of New York, New York, for amicus curiae.

   JUSTICE McMORROW

delivered the opinion of the court:

W.S., the biological mother of T.I.S., a minor, appeals from the trial court’s refusal to set aside her consent to the child’s adoption by R.W. and E.W. W.S. argued that her consent to the adoption was invalid, because she did not execute the consent form before a judge, as required under the Indian Child Welfare Act (hereinafter the ICWA) (25 U.S.C. §1901 et seq. (Supp. II 1978)). The trial court determined that the ICWA was not applicable to W.S.’s consent to adoption of the child, because the Indian tribe of which W.S. is a member is not an “Indian tribe” under the definition of that term as stated in the ICWA. See 25 U.S.C. §1903(8) (Supp. II1978).

On appeal, W.S. argues that the trial court’s refusal to apply the ICWA to the tribe of which she is a member violates the equal protection clause of the fourteenth amendment to the United States Constitution. (U.S. Const., amend. XIV.) In an amicus curiae brief, the Indian tribe of which W.S. is a member claims that it is an “Indian tribe” under the ICWA. We conclude that the exclusion of W.S.’s tribe from the requirements of the ICWA does not violate equal protection. We also conclude that the argument of amicus is waived on appeal. Accordingly, we affirm the trial court’s judgment in the instant cause.

The record reveals the following pertinent facts. W.S. gave birth to a baby boy, T.I.S., in November 1989 and agreed to place him for adoption in the home of R.W. and E.W. On January 29, 1990, W.S. signed a final consent to adoption form in the offices of the Department of Supportive Services of the circuit court of Cook County, and R.W. and E.W. filed a petition to adopt T.I.S. On the same day, the trial court entered an order that acknowledged W.S.’s final consent to the minor’s adoption, terminated W.S.’s parental rights in the child, made T.I.S. a ward of the court, and granted temporary custody of the child to the adoptive parents, R.W. and E.W.

In July 1990, W.S. filed a petition to vacate her consent to adoption of T.I.S. In this petition, W.S. alleged that she is a member of the Chippewa Indian tribe. W.S. claimed that as an American Indian, her consent to adoption had to be obtained before a judge in accordance with the ICWA. (25 U.S.C. §1913 (Supp. II 1978).) R.W. and E.W., the adoptive parents, filed a motion to dismiss W.S.’s petition to vacate, arguing that W.S. is a member of the West Bay Band (Chippewa) tribe, which is not an “Indian tribe” under the ICWA.

Following briefing and argument, the trial court granted the adoptive parents’ motion to dismiss W.S.’s petition to vacate. A day later, the trial court entered a final order of adoption. W.S. appeals.

W.S. challenges the constitutionality of the definition of “Indian tribe” under the ICWA as applied to the tribe of which she is a member. On appeal, W.S. acknowledges that she is a member of the West Bay Band Indian tribe, located in Canada.

The ICWA was enacted in order to redress the evils associated with Indian children being taken from their families and placed in non-Indian homes. (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 32, 104 L. Ed. 2d 29, 36, 109 S. Ct. 1597, 1600.) This separation deprived the children of their cultural heritage and interfered with the tribes’ function as autonomous communities. (Mississippi Band of Choctow Indians, 490 U.S. at 34-35, 104 L. Ed. 2d at 37-38, 109 S. Ct. at 1601.) The ICWA specifically incorporates these concerns into the expression of Congressional findings embodied therein. 25 U.S.C. §1901 (Supp. II 1978).

The ICWA sets forth particular procedures for the removal of an Indian child from his or her family, including the requirement that a biological mother’s voluntary consent to adoption be obtained before a judge. (25 U.S.C. §1913 (Supp. II 1978).) In order to apply the terms of the ICWA, the child whose placement is at issue must be an “Indian child.” (See In re Stiarwalt (1989), 190 Ill. App. 3d 547, 546 N.E.2d 44.) Under the ICWA, an Indian child is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. §1903(4) (Supp. II 1978).) In addition, an “Indian tribe” is defined as follows:

“[A]ny Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians, including any Alaska Native village ***.” 25 U.S.C. §1903(8) (Supp. II 1978).

W.S. asserts that this definition, as applied in the instant cause, creates an impermissible classification based upon national origin. According to W.S., although the ICWA ostensibly applies to all Indian citizens, section 1903(8) treats her differently simply because her tribe, the West Bay Band, is now located in Canada. W.S. claims that the circuit court’s failure to apply the Act to her tribe is particularly irrational given the fact that the tribe originated in the United States and relocated to Canada only after the United States government “forced” the tribe off United States land in 1836. W.S. also observes that to deny her the benefits of the ICWA illogically contradicts the Act’s stated purpose of preventing the destruction of Indian families and the separation of Indian children from their parents.

We are unable to conclude that the ICWA’s definition of “Indian tribe” constitutes an impermissible classification based upon national origin. The ICWA applies when the child is or may be enrolled as a member of an Indian tribe that is eligible for the services of the Department of the Interior. The classification based upon the Indian tribe’s eligibility for Department of Interior services reflects the unique relationship between the United States government and Indian tribes located within the boundaries of this country. The United States Supreme Court has repeatedly upheld classifications designed to preserve this relationship. (E.g., Washington v. Confederated Bands & Tribes of the Yakima Indian Nation (1979), 439 U.S. 463, 58 L. Ed. 2d 740, 99 S. Ct. 740; Delaware Tribal Business Committee v. Weeks (1977), 430 U.S. 73, 51 L. Ed. 2d 173, 97 S. Ct. 911; United States v. Antelope (1977), 430 U.S. 641, 51 L. Ed. 2d 701, 97 S. Ct. 1395; Fisher v. District Court (1976), 424 U.S. 382, 47 L. Ed. 2d 106, 96 S. Ct. 943.) As the Court stated in Morton v. Mancari (1974), 417 U.S. 535, 41 L. Ed. 2d 290, 94 S. Ct. 2474:

“Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the [Bureau of Indian Affairs], single out for special treatment a constituency of tribal Indians living on or near reservations [in the United States]. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 USC) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.” 417 U.S. at 552, 41 L. Ed. 2d at 302, 94 S. Ct. at 2483-84.

Based upon this reasoning, the Supreme Court in Morton concluded that “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” 417 U.S. at 555, 41 L. Ed. 2d at 303, 94 S. Ct. at 2485.

In the instant cause, the ICWA’s classification is reasonably connected to preserving the family unit of those having membership in American Indian tribes located in the United States, and in guarding against the removal of Indian children from their families within the United States in order to place those children in non-Indian families. (See 25 U.S.C. §1901(4) (Supp. II 1978) (Congressional finding that ICWA passed in order to respond to circumstance that “alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies).)” W.S. has acknowledged that the West Bay Band is not eligible for services of the Department of the Interior, and that the tribe is not located in the United States. Thus, the instant record does not reveal that W.S. is a member of an Indian tribe that shares the “unique relationship” with the United States government that prompted the enactment of the special protections embodied in the ICWA. We cannot say that the failure to apply the provision of the ICWA to the case at bar violates the equal protection clause of the United States Constitution. See In re Armell (1990), 194 Ill. App. 3d 31, 42-43, 550 N.E.2d 1061.

In an amicus curiae brief, the West Bay Band acknowledges that it is not presently eligible for services provided by the Department of Interior, and that it is not classified as eligible to receive such benefits from the Department. (See Fed. Register 52829-32 (Dec. 29, 1988) (listing of Indian tribes eligible for services of Department of Interior).) Amicus claims that the West Bay Band would be eligible for services provided by the United States Department of the Interior if it were to apply for such eligibility (see 25 C.F.R. §83 (1991) (procedures for establishing American Indian tribe’s eligibility for services from Department of Interior)), particularly in view of the treaties between the United States and Indian tribes to which the West Bay Band allegedly has a successor interest. (See, e.g., Treaty of Amity, Commerce and Navigation between the United States and Great Britain, 8 Stat. 116 (1794) (Jay Treaty); Explanatory Article to the Jay Treaty, 8 Stat. 130 (1796); Treaty of Peace and Amity between the United States and Great Britain, 8 Stat. 218 (1814); Articles of a Treaty between the United States and the Ottawa and Chippewa Nations, 7 Stat. 491 (1836).) On this basis, amicus contends that the West Bay Band falls within the definition of “Indian tribe” under the ICWA.

This argument was not made to the trial court, however, and is therefore waived on appeal. (See Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 508-09, 524 N.E.2d 561.) Moreover, whether an Indian tribe is recognized as eligible for services from the Department is a question of fact, and it is the biological parent’s burden to prove that the Indian tribe of which she is a member falls within the eligibility requirements of the Department. (In re Stiarwalt, 190 Ill. App. 3d at 552.) Because the biological mother in the instant cause has acknowledged the West Bay Band’s ineligibility for services from the Department of the Interior, we decline to address the argument of amicus upon review.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    HENRY SAJDAK, Plaintiff-Appellee, v. LORETTA SAJDAK, Defendant-Appellant (Arnold Landis, Petitioner for Fees-Appellee; Loretta Sajdak, Respondent-Appellant).
    First District (6th Division)
    Nos. 1—88—1727, 1—89—3035, 1—90—0725 cons.
    Opinion filed January 10, 1992.

      William J. Stevens, of Chicago, for appellant.
    Leonard J. Petrucelli, of Mt. Prospect, for appellee Henry Sajdak.
    Arnold Landis, of Chicago, appellee pro se.

   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Loretta Sajdak, appeals from an order entered in favor of the plaintiff, her brother, Henry Sajdak, in a suit brought by Henry Sajdak over property left to the parties by their mother, Bernice Sajdak; she appeals from an order granting the plaintiff $10,000 attorney fees as sanctions for untrue pleadings pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—611); and she also appeals from an award of attorney fees to her former attorney, Arnold Landis. Landis has filed a cross-appeal maintaining that the award of attorney fees was insufficient.

The complaint alleged that the plaintiff was the owner of a 40% beneficial interest in the property and the defendant was the owner of a 60% beneficial interest. The defendant occupied one of two apartments on the property, and she collected rents for the second apartment. He maintained in count I that he was entitled to an accounting from the defendant for all rents and profits received from the date of his mother’s death. In count II he alleged that approximately three years after his mother’s death he and the defendant entered into a land trust agreement which, he maintained, created a partnership between him and the defendant, the purpose of which was to carry on the business of renting apartments in the property. He asked that the partnership be dissolved and the property sold and that he receive 40% of the proceeds of the sale.

The defendant filed an answer in which she denied that the plaintiff was entitled to an accounting; she maintained affirmatively that the rental income she received had been used for payment of the real estate taxes; gas, electric and water bills; and the upkeep, maintenance and repairs of the property. In response to the complaint for a dissolution of a partnership she alleged that her mother, Bernice Saj-dak, was of unsound mind when she executed the amendment to the land trust which granted the plaintiff a 40% interest. She also denied the existence of a partnership. In his reply, the plaintiff denied that Bernice Sajdak was of unsound mind and that she lacked the legal capacity to execute the amendment to the land trust.

The defendant filed a counterclaim in which she alleged that under the terms of the land trust originally created by her mother, the defendant was the sole contingent beneficiary. She was to receive the entire beneficial interest in the land trust from her mother because the defendant had taken care of her mother for a period of years and had used her own resources to maintain and improve the property. She alleged that in reliance on the representations of her mother, she took care of her mother and paid all expenses on the property which exceeded approximately $50,000. She further alleged that the plaintiff “surreptitiously and without knowledge” of the defendant obtained the amendment to the land trust which granted the plaintiff 40% beneficial interest when at the time of the execution of the amendment, her mother was of unsound mind and memory. The counterclaim asked that the amendment be declared invalid and that the court impress a lien against the real estate on behalf of the defendant in the amount of approximately $50,000.

After a trial, the judge held that a partnership existed between the plaintiff and the defendant; he ordered that the partnership be dissolved and the partnership property, consisting of the beneficial interest in the land trust, be sold. The judge also approved an accounting prepared by the plaintiff, requiring the defendant to pay to the plaintiff 40% of the rents from the second-floor apartment, along with 40% of the reasonable rental value of the first-floor apartment which had been occupied by the defendant. He granted the defendant a 10% deduction from the award due the plaintiff. The deduction represented a credit given the defendant for management services. The judge denied the defendant’s counterclaim. A sale of the property was held, and the defendant purchased the property for $190,000; she paid the plaintiff $76,000, his 40% share of the sale price.

The plaintiff filed a motion pursuant to section 2 — 611 of the Code of Civil Procedure for attorney fees and sanctions. (Ill. Rev. Stat. 1983, ch. 110, par. 2—611.) He alleged that the defendant had falsely pleaded that the plaintiff was not the owner of a 40% share of the beneficial interest in the land trust and that the defendant had falsely denied the existence of a partnership between the plaintiff and herself. The procedure followed in the pursuit of the claim for sanctions is involved and confusing. For the sake of brevity, we will discuss the petition for sanctions in more detail later.

Arnold Landis, who had represented the defendant during a portion of the trial until she dismissed him, also filed a fee petition. The judge denied the defendant’s motion to dismiss the petition and ordered the defendant to pay Landis $5,213.15.

We turn now to the facts. In 1959, Bernice Sajdak purchased a lot located at 6146 North Meade in Chicago, and had a two-flat building constructed on the property. Bernice’s two children, the defendant and the plaintiff, lived with her in the first-floor unit of the building, and the second-floor apartment was rented. The defendant contributed almost $8,000 toward the purchase of the building; the plaintiff made no contribution to the purchase price.

In 1963, the plaintiff married and moved out of the building. In 1973, however, the plaintiff, a Chicago firefighter, had the utility bills for the building placed in his name to support his claim that he was a Chicago resident. He did not pay any of the utility bills for the building, nor did he contribute to the payment of real estate taxes or insurance on the property.

On February 10, 1975, Bernice executed a land trust agreement with Chicago Title & Trust Company, naming herself as sole beneficiary and naming the defendant as the sole contingent beneficiary upon Bernice’s death. On April 29, 1980, Bernice amended the land trust, naming both the plaintiff and the defendant as successor beneficiaries. The amendment to the trust agreement indicated that, upon Bernice’s death, the defendant would receive a 60% share of the beneficial interest in the land trust, and the plaintiff would receive a 40% share.

Bernice Sajdak died on February 13, 1982. That same day, the plaintiff and the defendant opened a joint savings account at Norwood Federal Savings & Loan Association; a deposit of $1,500 was made into the account. The record does not indicate whose money was used to make the deposit. The defendant’s attorney stated in oral argument that the original deposit was made by the defendant. Deposits and withdrawals were made from the account until the account was closed by the defendant on January 4, 1983, without notice to the plaintiff. During Bernice’s lifetime, the defendant contributed to the expenses of and improvements to the building. After Bernice’s death, the defendant managed the property and paid $11,139 in capital improvements and expenses for the property.

On March 11, 1982, the plaintiff and the defendant executed an acceptance of transfer of the beneficial interest in the land trust, which gave the defendant a 60% share and the plaintiff a 40% share. On June 19, 1982, the defendant executed under oath a State of Illinois inheritance tax return for the estate of Bernice Sajdak, stating that she was the owner of a 60% share and that the plaintiff was the owner of a 40% share. From 1982 through 1988 her individual income tax returns show the rental income of the property; she listed herself as a one-half owner of the property.

Dr. Stanley Milewski testified that he examined Bernice on numerous occasions between 1964 and 1981. In March 1980, Dr. Milewski suffered a heart attack. He took approximately 1 or lx/2 years off after his attack. However, he did see patients between March and September of 1980. He saw Bernice Sajdak on September 12, 1980, and determined that she had a slow pulse. He testified that a slow pulse rate could affect a person’s mental capacity. He later explained that he simply meant that a slow pulse could cause a person to pass out. He also indicated that Bernice’s pulse rate did not ever cause any diminution of her mental capacity. During his examinations of her from 1964 to 1981, he found Bernice to be a person who had full “capacity [sic] of her whereabouts”; she was able to communicate with people and conduct her own business. She never complained of a memory loss. He said she was in fantastic condition and her mental condition was very good.

Edward Andrews was a tenant in the second-floor apartment from May 1979 through April 1983. He paid rent of $400 a month to Bernice Sajdak. He met and talked with her quite often, at least three or four times a week. He took her shopping with his mother at least once a week or once every two weeks. Before Bernice was hospitalized he paid the rent to her and after that to the defendant. When the lease was up, the defendant raised his rent $125 and he had to move out. He visited Bernice in her apartment many times and never saw her lose her balance or fall. She never lost her memory; she knew his name and knew who he was. She was able to carry on a conversation with him.

The defendant testified that in early 1980 Bernice was “all mixed up.” Bernice burned pots and hid them in the basement; she threw her social security checks into the garbage. The defendant believed that Bernice was of unsound mind because Bernice did strange things, such as asking if she could sleep with the defendant because she thought there was a man in her bed, and taking all of the clothes out of her closet during the middle of the night. Bernice took Valium for seven or eight years.

Mary Lou Koemer, a friend of Bernice and the defendant, testified that Bernice was very forgetful in the spring of 1980 and that she could not keep her days straight. Bernice sometimes had trouble recognizing Koemer.

We will first address the defendant’s argument that the judge erred in finding that a partnership existed between her and the plaintiff. The issue of whether a partnership exists is a question of fact, and the factfinder’s determination of this question will not be disturbed unless it is against the manifest weight of the evidence. (Peterson v. Prince (1981), 102 Ill. App. 3d 220, 224, 430 N.E.2d 297.) In the absence of a written partnership agreement, however, this court must examine the intent of the parties when ascertaining whether a partnership was formed, and this court must also examine the facts and circumstances surrounding the alleged formation of the partnership. (McCorkle v. Tyler Reporting Co. (1987), 159 Ill. App. 3d 62, 68, 512 N.E.2d 25.) Moreover, the burden of proving the existence of a partnership rests upon the party asserting it. (Seidmon v. Harris (1988), 172 Ill. App. 3d 352, 357, 526 N.E.2d 543.) In Reed v. Engel (1908), 237 Ill. 628, 631, 86 N.E. 1110, 1111, the supreme court spoke as follows:

“A partnership is never created between parties by implication or operation of law, apart from an express or implied intention and agreement to constitute the relation. [Citation.] Even where the parties agree to enter into a joint enterprise and share in the profits, a partnership, as between themselves, does not necessarily result. The intention of the parties always controls. [Citations.]”

The issue, therefore, is whether the plaintiff has maintained his burden of proving that he and the defendant intended to form a partnership. In support of his claim the plaintiff emphasizes the following facts: (1) the defendant signed an acceptance of a 60% share of the beneficial interest in a land trust; and (2) the defendant and the plaintiff opened a joint savings account into which the defendant deposited the rental income from the second-floor unit of the building. The plaintiff places undue weight on those factors. When the plaintiff and the defendant accepted their respective shares of the beneficial interest in the property and opened a joint bank account, they became co-tenants in personalty. The Illinois Partnership Act expressly states that joint tenancy or tenancy in common does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property. Ill. Rev. Stat. 1983, ch. 106½, par. 7(2).

The language of the trust agreement is inconsistent with an intent to form a partnership. Section 25(2)(b) of the Illinois Partnership Act provides:

“A partner’s right in specific partnership property is not assignable except in connection with the assignment of the rights of all the partners in the same property.” (Ill. Rev. Stat. 1983, ch. 106½, par. 25(2)(b).)

Contrary to this statutory provision, the trust agreement provides that any beneficiary may unilaterally transfer his individual interest in the trust. The Illinois Partnership Act further provides that upon the death of a partner, his interest in the partnership property automatically vests in the other partners; a partner is not allowed to dispose of partnership property upon his death. (Ill. Rev. Stat. 1983, ch. 106½, par. 25(2)(d).) The trust agreement, however, provides that upon the death of a beneficiary, his interest will pass to the executor of his estate. Thus, the language of the trust agreement itself militates against a finding of partnership.

There was no agreement that the plaintiff and defendant operate the building together. The defendant managed and operated the building without the plaintiff. From 1982 through 1986 the defendant paid $11,139 in capital improvements and expenses. She provided for snow removal, grass cutting and other things necessary for the upkeep of the building. The plaintiff did not help the defendant during those five years. There is no evidence of joint management or joint control. (See Prassas v. Nicholas W. Prassas & Co. (1981), 94 Ill. App. 3d 311, 418 N.E.2d 904.) The plaintiff never contributed to the payment of expenses. The fact that the defendant kept all the rent proceeds is the strongest evidence that she did not consider that the partnership existed. We conclude, therefore, that the plaintiff presented no evidence of a meeting of the minds of the parties showing an intent to form a partnership. Consequently, we hold that the finding of the judge that a partnership existed is contrary to the manifest weight of the evidence.

We wish to make it clear that we are passing on the issue as it has been presented to us: Does the evidence establish the existence of a partnership? We have not been asked to fashion a remedy, equitable or otherwise, to resolve disputes between beneficiaries of a land trust. (Cf. Davis v. Kurtz (1988), 165 Ill. App. 3d 417, 518 N.E.2d 1297.) In Regas v. Danigeles (1964), 54 Ill. App. 2d 271, 203 N.E.2d 730, the trial judge expressly found that four co-owners of a beneficial interest in a land trust were not partners. The appellate court held that it need not decide whether a partnership existed. It concluded that in a case of a “deadlock” between beneficiaries of a land trust, a court could exercise its equitable discretion to declare the relationship at an end and order the co-owners to sell the beneficial interest. The plaintiff’s attorney told us in oral argument that the “deadlock” arose when the defendant closed the joint bank account without notice to the plaintiff and refused to give him an accounting. He persisted, however, in his view that resolution of the “deadlock” required the recognition of the existence of a partnership. We disagree that a “deadlock,” as that term was used in Regas v. Danigeles, existed in this case. Other adequate remedies exist to right any wrong committed by the defendant; we note that the original complaint asked only for an accounting. To hold that any dispute between co-beneficiaries establishes a “deadlock” which would entitle a party to a court-ordered sale of the beneficial interest would turn on its head the rule expressed by the supreme court barring the right of partition of realty to beneficiaries of a land trust. (See Breen v. Breen (1952), 411 Ill. 206, 103 N.E.2d 625; Aronson v. Olsen (1932), 348 Ill. 26, 180 N.E. 565.) We hold simply that a remedy does not lie by fictitiously creating a partnership where none exists. Therefore, we conclude that the judge erred in dissolving a nonexistent partnership and compelling the sale of the property. What remedy is now available to the plaintiff or the defendant after the property has been sold and the proceeds divided is also a question that is not before us.

The defendant also contends that the judge erred when he ordered that the defendant was to be charged rent for the apartment she occupied for the period beginning with the death of her mother. Neither party has cited a case deciding whether a beneficiary of a land trust, who occupies all or part of the trust property, is required to pay rent to the other beneficiaries. The two cases cited by the defendant, Davis v. Kurtz (1988), 165 Ill. App. 3d 417, 518 N.E.2d 1297, and Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 464 N.E.2d 751, are not in point because neither case involved any claim for rent. Our research has disclosed no case precisely in point.

The joint rights and obligations act (the Act) provides:

“When one or more joint tenants, tenants in common or co-partners in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his or their interest, such person or persons, his or their executors and administrators, shall account therefor to his or their co-tenants jointly or severally.” Ill. Rev. Stat. 1983, ch. 76, par. 5.

The statute which was the predecessor of the present Act has been construed to require a tenant in common in real estate to account to his co-tenants for the reasonable rental value of his use and occupancy of the property. (McParland v. Larkin (1895), 155 Ill. 84, 39 N.E. 609; see also Clarke v. Clarke (1932), 349 Ill. 642, 183 N.E. 13.) We recognize that those cases are distinguishable because the parties in this case are co-beneficiaries of a land trust, which is personalty, not realty. We believe, however, that general principles of equity dictate that the rule requiring a co-tenant of realty to account for the reasonable rental value of his use and occupancy of property should apply in this case also.

In People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 492-93, 389 N.E.2d 540, 545, the supreme court looked beyond the land trust fiction in applying a tax statute. The court stated:

“In reality the transfer to the trustee is a formality involving a shifting of legal documents. The land trust is, in fact, a fiction which has become entrenched in the law of this State and accepted as a useful instrument in the handling of real estate transactions. Outside of relationships based on legal title, the trustees’ title has little significance. [(Emphasis in original.)] Particularly in tax law, the realities of ownership are far more important than the technicalities of transfer. In other branches of law, where control is the best indicia of ownership, appellate courts have found the beneficiaries to be owners. See, e.g., Dunlop v. McAtee (1975), 31 Ill. App. 3d 56, 59 (mechanics lien); Robinson v. Walker (1965), 63 Ill. App. 2d 204 (dramshop); Brazowski v. Chicago Title & Trust Co. (1935), 280 Ill. App. 293 (tort liability).” (Emphasis added.)

The reasoning of People v. Chicago Title & Trust Co. and the cases cited therein is persuasive in this case. Since the beneficiaries control the property they should be treated as owners here. The Act is intended to determine the rights of use and occupancy of co-owners or co-tenants of real estate. The legal fiction of a land trust should not allow a trust beneficiary to use the property without accounting to his co-beneficiaries. We hold, therefore, that section 5 of the Act applies to beneficiaries of land trusts. For that reason, the order of the judge directing the defendant to account to the plaintiff for 40% of the reasonable rental value of the apartment which she occupied is affirmed.

The defendant next contends that the judge erred in imposing sanctions under Supreme Court Rule 137 (not section 2 — 611) and that the findings of the judge did not meet the requirements of the rule. (134 Ill. 2d R. 137.) The plaintiff maintains that the order was an agreed order and is, therefore, not appealable. As we indicated before, the record on this point is involved and confusing.

On June 8, 1987, the plaintiff filed a motion for leave to file a petition for sanctions pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) The motion was continued from time to time; and on November 6, 1989, the plaintiff filed an amended petition for sanctions under Supreme Court Rule 137, which was adopted on August 1, 1989, and which preempted section 2 — 611. (See ill. Ann. Stat., ch. 110A, par. 137, Committee Comments, at 68 (Smith-Hurd 1989).) The prayer of the Rule 137 petition, however, asked for relief pursuant to section 2 — 611. The petition was signed by the plaintiff but not by his attorney, contrary to Rule 137 (and section 2 — 611).

On December 27, 1989, the defendant filed a response to the petition for fees; it was signed by William Stevens, the new attorney for the defendant, but not by the defendant. That response made no reference to either Rule 137 or section 2 — 611. The response maintained that “[sjanctions are ordinarily limited to the attorney’s fees actually incurred in response to the alligation [sic] found to be untrue and not to all the work in the suit.” The response pointed out that the petition for fees failed to identify with specificity the relationship between the legal work performed and the allegations which were claimed to have been false.

On February 7, 1990, the parties appeared for a hearing to determine the amount due the plaintiff under the accounting claim and to determine whether the defendant was liable for attorney fees. Before passing on the petition for fees, the judge asked the attorneys to go into his chambers with him. After an unreported hearing in chambers, the judge and the parties returned to open court, and the judge said this: The judge continued the case until March 14, 1990. The order entered that day provided that the defendant was to pay the plaintiff the sum of $15,000 under the accounting claim. In addition the order provided that the defendant was to pay $10,000 attorney fees “pursuant to the section 2 — 611 petition for fees and affidavits submitted.” The order also expressly provided, pursuant to Supreme Court Rule 304(a), that there was “no just cause for delay of enforcement or appeal” of the order. We accept the representation of the parties that that language appears. That language is not legible to us in the copy of the order contained in the record.

“Now, for the record, counsel and I have talked about the existing petition under 2 — 611 for sanctions — for costs and attorney’s fees against the defendant, Loretta Sajdak. I have recommended that even though attorney’s fees will amount to over 20 some odd thousand dollars, 23,000 or so, I am knocking it down to $10,000. Provide for that in the order.”

On the following day, February 8, there was filed, apparently without notice, the defendant’s answer to the section 2 — 611 petition. (The record does not show any previous filing.) That answer was signed by the defendant on July 21, 1987, and had been prepared by the defendant’s then attorney, Thomas Poulakidas. That answer denied that her allegations of her counterclaim and denials in her answer had been made without reasonable cause.

On February 27, 1990, the plaintiff served the defendant with notice that he would file a motion to vacate the order of February 7 and seek a rehearing on the section 2 — 611 petition. It was later disclosed that the plaintiff's attorney prepared the motion after he learned that the defendant intended to appeal the February 7 order.

On March 9, 1990, the defendant filed a notice of appeal. On March 14, the parties appeared, and the plaintiff’s attorney filed his motion to vacate. Mr. Stevens, the defendant’s attorney, said that the judge lacked jurisdiction to hear the motion to vacate because the defendant had filed a notice of appeal on the 30th day after the entry of the February 7 order. The following occurred:

“MR. PETRUCELLI [PLAINTIFF’S ATTORNEY]: You [the judge] then conducted a pretrial conference and during that pretrial conference, certain discussions were had relevant to a settlement of the 2 — 611 in lieu of certain actions being taken by the defendant, Mr. [sic] Sajdak.

THE COURT: There were certain discussions and representations and conditions that resulted and were conditioned upon the fact that there would be no appeal. * * *

MR. STEVENS: I said that I understood that the court was prepared to entertain a motion to award the full amount of the attorney’s fees requested if I was unsuccessful persuading Miss Sajdak to drop her appeal, and I indeed was unsuccessful in persuading her to drop the appeal and in filing a notice of appeal.

THE COURT: Well, if necessary, I will vacate that order insofar as it affects the agreement and the conditions that you, Mr. Stevens, you, Mr. Petrucelli and I as a judge discussed and I will vacate that part.

MR. STEVENS: Your honor, I respectfully suggest that the vacation of that order should await the time when the matter is returned from the appellate court, that the filing of the notice of an appeal has shifted the jurisdiction of the court to the appellate court and while I fully expect that—

THE COURT: I will set up a statement right now that it was conditioned upon the fact that you were going to get — you said you thought you could get her to waive an appeal.

MR. STEVENS: I tried very hard to get her to do that, Your Honor. * * *

THE COURT: *** I relied upon your representation, Mr. Stevens.

MR. STEVENS: Judge, I did the best I could. I really tried.” (Emphasis added.)

The judge then vacated that part of the order of February 7 ordering the payment of $10,000 attorney fees and continued the case until May 2, 1990, for a hearing on a petition for fees. That hearing has still not been conducted.

We understand the trial judge’s justified sense of having been used, which would never have arisen if Mr. Stevens had taken the simple step of informing the judge of his client’s intention to appeal before the notice of appeal was filed. Nonetheless, we must reluctantly disagree with the plaintiff’s contention that the defendant waived the right to appeal the granting of sanctions trader section 2— 611. The record establishes that the judge and the attorney for the plaintiff may have believed that the order was an agreed order, but we cannot say with certainty that it was. The colloquy between the judge and Mr. Stevens shows that Mr. Stevens told the judge that he thought he could get the defendant to waive her appeal, and he expressed the hope that he would be able to convince his client not to appeal. Whether a party has agreed to an order and thus surrendered his right to appeal should be free from doubt. In this case, the burden is on the plaintiff to establish that the defendant agreed to the order. (Hempstead v. Broad (1918), 282 Ill. 574, 118 N.E. 994.) We judge that the plaintiff has failed to maintain his burden, and we hold that the order is appealable.

The defendant argues that the entire order imposing sanctions should be reversed because it did not comply with the requirements of Supreme Court Rule 137, which provides that where a sanction is imposed “the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” Although the defendant’s pleadings were filed before the adoption of the rule, we believe that the rule should be given retrospective application since it imposes no greater duty on the parties than did section 2 — 611. The only change relevant to the case before us is a procedural one — the requirement that the judge make specific findings in his order imposing sanctions. Compare Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835, 525 N.E.2d 995, 998 (amended section 2 — 611 to be applied prospectively because the amendment did not affect a “mere change in an existing procedure or remedy”).

The judgment order entered February 7, 1990, does not meet the requirements of Rule 137. Under the peculiar circumstances of this case, however, considering the manner in which the issue was presented to the judge by the pleadings, with the apparent acquiescence of the defendant’s attorney and with no claim at any time that the order did not comply with Rule 137, we conclude that the defendant may not now invoke the requirements of Rule 137. We reject the defendant’s claim that the order should be reversed because of the absence of specific findings in the order.

We do, however, judge that part of the order imposing sanctions should be reversed. The judge made his determination that sanctions were proper based on his apparent finding that the defendant’s claim that her mother was of unsound mind and the claim that no partnership existed were not made with reasonable cause. Since we have held that a partnership was not established, any finding by the judge that sanctions should be imposed because of the defendant’s allegations that a partnership did not exist is not justified and is therefore reversed.

The next question is whether the defendant’s claim that her mother lacked the mental capacity to amend the trust supported the imposition of sanctions. In order to assess fees against a party for pleading falsely two requirements must be met: (1) the pleading must be made without reasonable cause, and (2) it must be untrue. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) The defendant does not contend that the judge’s finding that Bernice did possess the required mental capacity was against the manifest weight of the evidence. Therefore, for the purposes of this review the defendant concedes that her assertion that her mother lacked the required mental capacity was not true. The issue is reduced to whether the judge properly determined that the defendant’s pleadings were made without reasonable cause.

Preliminarily, we should identify the proper standard on review. A number of cases have held that an abuse of discretion standard is applicable on review of the granting or denial of section 2 — 611 relief. (See, e.g., St. Paul Federal Savings & Loan Association v. Avant (1985), 135 Ill. App. 3d 568, 579, 481 N.E.2d 1050, 1058.) We agree in part with those cases. The burden is on the party seeking the imposition of sanctions to prove that a pleading was untrue and that it was made without reasonable cause. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 448 N.E.2d 905.) In determining whether the party seeking the imposition of sanctions has maintained that burden of proof, the trial judge must make findings of ultimate fact — whether the allegations are false and, if false, whether they were made without reasonable cause. Like any finding of fact, the standard on review is whether that finding of ultimate fact is against the manifest weight of the evidence. It is only after a finding that the party seeking the imposition of sanctions has maintained his burden of proof that the court’s discretion is invoked to determine whether any sanctions should be imposed or the amount of the sanction. Needless to say, if a judge’s exercise of discretion is based on a finding of fact which is contrary to the manifest weight of the evidence, discretion has been abused.

We believe there is substantial evidence to support the judge’s finding that the defendant pleaded a lack of mental capacity of her mother without reasonable cause. Not only was the testimony of two disinterested witnesses, Dr. Milewski and the tenant Edwards, favorable to the plaintiff, the judge had before him the evidence that the defendant had signed an acceptance of the amendment to the trust agreement, had opened a joint account with the plaintiff and had represented to the State and Federal governments over a period of years that she possessed either a one-half or 60% interest in the property. The evidence of her own conduct was the most damaging to her position.

In Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146, the plaintiff alleged and testified that the defendant’s car collided with the plaintiff while the plaintiff was crossing the street in a crosswalk. She had testified in an unrelated case that the defendant had not struck her. The jury rendered a verdict in favor of the defendant, who appealed the denial of an award under section 2 — 611. The appellate court reversed the order denying fees. We believe the facts of the case before us support the imposition of sanctions even more strongly than the facts of Chavez.

We conclude that the judge’s finding that the defendant had made her false representation without reasonable cause was not against the manifest weight of the evidence and the imposition of sanctions was not an abuse of discretion. For that reason, the order imposing sanctions for the defendant’s claim that her mother lacked the required mental capacity is affirmed.

We also believe that the judge was justified in making his determination that the defendant was liable for sanctions without any further hearing. (See Fried, v. Barad (1989), 187 Ill. App. 3d 1024, 543 N.E.2d 1018.) However, since we are reversing part of the judgment granting sanctions, we remand the cause to the circuit court with directions to conduct a hearing to determine the amount of fees incurred which may be attributed to the response to the defendant’s claim that her mother lacked the required mental capacity.

The defendant next maintains that the judge erred by refusing to admit evidence of expenditures she had made for the property during her mother’s lifetime and that the judge erred in denying her prayer for imposition of an equitable lien for those expenses. The total amount of her claim was $50,000. Her counterclaim alleged that she was to receive the entire beneficial interest in the land trust “by virtue of her taking care of her mother for a period of years and using her own resources to maintain and improve the property” and that “in reliance of [sic] the representations of decedent Bernice Sajdak *** the said defendant and counter-plaintiff fulfilled her obligations totally, taking care of her mother until the date of her death and paying all real estate taxes on the property, maintaining same and making substantial improvements on the property in excess of approximately $50,000.” The counterclaim further alleged that the plaintiff, to defeat the defendant’s right to receive the beneficial interest from her mother, “surreptitiously and without knowledge of defendant and counter-plaintiff, obtained an amendment to the land trust agreement” when he knew that “Bernice Sajdak was of unsound mind and memory and had no legal capacity to execute said amendment.”

Initially we note that the defendant’s brief does not, in the statement of facts or in argument, contain any facts that would support a finding that Bernice Sajdak represented to the defendant that the defendant was to remain the sole contingent beneficiary in consideration of the defendant’s caring for Bernice and using her own resources to maintain the property. We cannot accept the defendant’s argument for a number of reasons. First, the keystone of her counterclaim as pleaded is that her mother lacked the required mental capacity to amend the trust agreement, a claim which she now concedes was not improperly decided against her. Second, the judge apparently concluded that the defendant failed to prove that she made the expenditures in consideration of a well-founded belief that she would remain the sole beneficiary. Again, her acceptance of the amended trust agreement is strong evidence against her position. Last, the judge concluded that the defendant had failed to establish that she used her own resources to maintain and improve the property. We note that the defendant herself testified, contrary to the allegations of her counterclaim, that the real estate taxes were paid from a joint account held by her mother and her. The judge pointed out that, during the time the defendant lived with her mother, she did not pay rent. The judge also held that the evidence did not establish that Bernice lacked sufficient funds to support herself and to maintain the property. The defendant does not argue that the judge’s findings were against the manifest weight of the evidence. Even if she did, we would disagree.

The principal case relied upon by the defendant, Burkholder v. Burkholder (1956), 10 Ill. App. 2d 565, 135 N.E.2d 504 (abstract of opinion), does not assist her. In Burkholder, the plaintiff was a co-owner of the property, not merely a “person with a reasonable expectation” in the property. For these reasons, we conclude that the judge did not err in denying the counterclaim and in refusing to admit the defendant’s proffered evidence.

The defendant’s last claim in her appeal of the judgment in favor of the plaintiff is that the trial judge had prejudged the case; she refers to a statement the judge made after he held a settlement conference which occurred after the first day of trial. We have considered the remark by the trial judge to which the defendant refers and conclude that any claim that he had prejudged the case is completely without foundation.

We turn now to the defendant’s appeal against the attorney fees award to Arnold Landis. The threshold issue before us is not whether Mr. Landis is entitled to fees; that issue is whether he may pursue his claim for fees in the same action in which he appeared as the attorney for the party from whom he is seeking fees. Landis has submitted no authority to support the position that he need not file a separate action at law for breach of contract. The defendant cited two divorce cases in support of her argument that the judge lacked jurisdiction: In re Petition of Neiman (1972), 8 Ill. App. 3d 454, 289 N.E.2d 715 (Magill), and Pressney v. Pressney (1950), 339 Ill. App. 371, 90 N.E.2d 119. Both Magill and Pressney held that, in a divorce action, a court does not have jurisdiction to determine the fees to be paid to an attorney by a client. We believe that the holdings of Magill and Pressney have been overruled by the adoption of the 1970 Illinois Constitution and the enactment of section 508 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1985, ch. 40, par. 508).

In Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 331, 364 N.E.2d 327, 327-28, the defendant engaged an attorney to represent him in an appeal of a divorce action. The attorney successfully concluded the appeal, but the defendant refused to pay any attorney fees. The attorney did not file a separate action at law; he filed his petition for fees in the same case which had involved the divorce action. The appellate court upheld an award in favor of the attorney. It pointed out that divorce judges previously would not attempt to set fees between a lawyer and his own client because of the absence of any provision for such an action in the divorce act. The court concluded that under the Illinois Constitution of 1970, all differences between law and equity had been abolished and that a circuit judge might hear any justiciable matter.

After Seniuta was decided, the Dissolution Act was enacted and provides in part as follows:

“(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse ***. * * *
(c) The court may order that the award of attorney’s fees and costs hereunder shall be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the relevant party. Judgment may be entered and enforcement thereof had accordingly.” Ill. Rev. Stat. 1985, ch. 40, pars. 508(a), (c).

It was recognized that section 508 of the Dissolution Act codified the Seniuta decision in providing that the circuit court had authority to determine the liability of either spouse for his own, or the other spouse’s attorney’s fees and costs incurred in the dissolution proceeding. (In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 502 N.E.2d 459; Ill. Ann. Stat., ch. 40, par. 508, Historical & Practice Notes, at 637 (Smith-Hurd 1980).) The Act also authorized the attorney himself to bring the action.

In Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 530 N.E.2d 584, the appellate court held that an attorney was required to file his claim for fees in the circuit court of Kane County, where his client had filed an action for divorce, and upheld the dismissal of the attorney’s action at law for fees filed in McHenry County. The court emphasized that “in a domestic relations proceeding, the best indicator of the propriety of an attorney’s fees is the court in which the proceeding was heard.” (175 Ill. App. 3d at 809.) It added that to permit an action for fees to be brought in a jurisdiction other than the one in which the attorney represented his client “would substantially weaken the apparent purposes of section 508 of the Dissolution Act.” 175 Ill. App. 3d at 810.

It is our judgment that the holding of Gitlin may not be extended to any action for fees based upon common law contractual rights in the absence of a specific statutory authorization. The ramifications of Gitlin’s adoption here should be considered. If an attorney were discharged before the filing of a suit on behalf of his client, his only method of recovery would be in a separate action at law. But if a suit is filed and the attorney is then discharged, the mere filing of the suit grants him the right to maintain his own action in the same pending action. There is no justification for such a distinction. The question of the client’s right to a jury trial arises. There is no question but that the client would be entitled to a jury trial in the action at law. Whether he would be entitled to a jury trial in an action such as this case is questionable. When we raised the question about a jury trial in oral argument, Landis’ response was that the defendant did not ask for a jury trial. The defendant’s failure to ask for a jury trial after a denial of her motion to dismiss is not controlling. She may have believed she was not entitled to one.

We do not believe that fee cases decided under the Dissolution Act are persuasive. Our reading of In re Marriage of Baltzer and Gitlin leads to the conclusion that those cases did not mean to extend their holdings beyond divorce actions. That the Dissolution Act is unusual is evidenced by the fact that a judge may grant temporary attorney fees from time to time. If the petition for Landis were to be authorized in this case, the cause of action of a discharged attorney in every case in which a suit was filed would be required to be adjudicated in that forum in which the attorney appeared for his client. That is a pronouncement which must come from the legislature or the supreme court, not an intermediate court of review. Since the claim of Landis is based on his common law contractual right of quantum meruit without any statutory designation of a particular forum, we hold that the judge erred in denying the defendant’s motion to dismiss Landis’ petition. For that reason, the judgment in favor of Landis is reversed without prejudice to his right to pursue an action in an appropriate forum.

In summary, the judgment in favor of the plaintiff on count II is reversed; the judgment in favor of the plaintiff on count I is affirmed; the judgment on the plaintiff’s petition for fees is reversed in part and affirmed and remanded in part; the judgment in favor of the plaintiff on the counterclaim is affirmed; the judgment in favor of Landis is reversed.

Judgments reversed, reversed in part and affirmed in part and remanded.

RAKOWSKI and LaPORTA, JJ., concur.