author: JUSTICE CAMPBELL

text:
    ITASCA PUBLIC SCHOOL DISTRICT NO. 10, Plaintiff-Appellant, v. SALLY A. WARD, Director of Employment Security for the State of Illinois, Defendant-Appellee.
    First District (1st Division)
    No. 87—3752
    Opinion filed January 30, 1989.
    Rehearing denied March 27, 1989.
    Stuart D. Gordon, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Itasca Public School District No. 10 (the District), appeals from the decision of the trial court on administrative review which affirmed the imposition of a penalty by defendant, the Director of Illinois Department of Employment Security (the Director), on the District for its failure to timely file quarterly reports (UC-40 forms) with the Director as required by section 1800 of the Unemployment Insurance Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 630). For the following reasons, we reverse the judgment of the trial court and remand the cause for further administrative proceedings.

The underlying facts are undisputed. On January 18, 1978, the District filed a form entitled “Election by Local Governmental Entity to Reimburse Benefits in Lieu of Paying Contributions” with the Bureau of Employment Security, Division of Unemployment Insurance, which stated, in pertinent part:

“The undersigned Local Governmental Entity does hereby elect, pursuant to the provisions of Sections 1404 and 1405 of the Illinois Unemployment Insurance Act, to pay when due, in lieu of contributions, an amount equal to the amount of regular benefits and the amount of extended benefits paid to its workers or former workers for any weeks beginning on or after the effective date of this election, on the basis of wages for insured work paid to them by it during the period this election is in effect.
* * *
3. At the close of each calendar quarter, the undersigned local governmental entity will receive a Statement of the amount due from it for the benefits paid to its workers or former workers during the calendar quarter, and will pay the amount due to the Director within 30 days after the date of mailing of the Statement; in the event that it fails to make any payment when due, or fails to file, when due, any quarterly report of the wages paid to its workers, it shall be subject to the interest or penalty provisions of the law, as the case may be.”

Despite the above provisions as well as regulations promulgated by the Director requiring the quarterly filing of UC-40 forms, the District failed to file the reports. On November 7, 1984, more than six years after the District had elected to become a reimbursing employer, the Director notified the District of its determination that the District had failed to make payment in lieu of contribution in the amount of $.38 and that it had failed to file quarterly UC-40 forms since its election. As a result, the Director assessed the District $.38 for unpaid contributions and $4,235 in penalties for the period from March 1980 through April 1983.

On November 27, 1984, the District filed a protest and a petition for hearing on the penalty assessment. The District did not dispute the fact that it owed $.38 or that it had not filed quarterly reports. However, the District claimed that it was unaware of its obligation to file the reports until notified by the Director in November 1984. The District further emphasizes that as soon as it was notified of its obligation to file quarterly reports, it did so.

On appeal, the District contends that: (1) the Director lacks the statutory authority to require the filing of UC-40 forms and to impose penalties based upon the failure to file those forms; and (2) in the alternative, the imposition of penalties against the District was improper. During oral argument, the appellate court also raised the issue, sua sponte, of whether the Director has discretion to waive the penalty and interest imposed by section 1402 of the Act for good cause.

Initially, the District argues that because administrative agencies can be given only those powers necessary to execute the duties of that agency and the UC-40 forms serve no useful purpose other than to calculate penalties, the Director has no authority to require the filing of the UC-40 forms. This argument fails as a result of several faulty premises upon which the conclusion is based.

First, with respect to the Director’s statutory authority to require the filing of UC-40 forms, section 1700 of the Act provides that: “It shall be the duty of the Director to administer this Act[ ] *** [and to] determine all questions of general policy, promulgate rules and regulations and be responsible for the administration of this Act.” (Ill. Rev. Stat. 1985, ch. 48, par. 610.) Section 1701 further provides that: “Regulations may be adopted, amended, or rescinded by the Director and shall become effective ten days after filing with the Secretary of State, and such filing shall be public notice of such regulation, amendment thereto, or rescission thereof, as the case maybe.” Ill. Rev. Stat. 1985, ch. 48, par. 611.

With respect to the filing of quarterly UC-40 forms, regulation 12 of the State of Illinois Department of Labor, effective September 22,1977, states, in pertinent part:

“1. Every employer, including employers electing payments in lieu of contributions under the provisions of Section 1404 or Section 302 of the Act, shall file a report with respect to each calendar quarter, listing the name and Social Security Account Number of each worker, and providing the information with respect to each worker required by sub-paragraphs a or b, below, and such other information as the Director may require.”

Regulation 12 conforms with and enforces the statutory requirement set forth in section 1800 of the Act, which provides that each employing unit “shall keep such true and accurate records "with respect to services performed *** as may be required by the rules and regulations of the Director.” Ill. Rev. Stat. 1985, ch. 48, par. 630.

Second, contrary to the District’s position, the legislature has indicated that the Director’s authority to impose penalties is necessary to effectuate the Act’s purpose under certain circumstances. Section 1402 of the Act expressly authorizes the Director to impose penalties on any employer who fails to file a report of wages, with the caveat that: “[A]ll or part of any penalty may be waived by the Director for good cause shown.” (Ill. Rev. Stat. 1985, ch. 48, par. 552.) Regulation 2765.65(a) (56 Ill. Adm. Code 2765.65(a) (1985)) defines “good cause” as:

“[A]ny or all of the following:
(1) Where the delay was caused by the death or serious illness of the employer or a member of his immediate family, or by the death or serious illness of the person in the employer’s organization responsible for the preparation and filing of the report or for making the payment.
(2) Where the delay was caused by the destruction of the employer’s business records by fire or other casualty without fault.”

In 1987, the Director reassessed the above regulation and amended it by adding the following two instances where the Director is authorized to waive interest and penalty:

“(3) Where the Agency, in its written communication or through a specifically identified employee in oral communication directed to a specific employer account has affirmatively misled the employer as to its duties and obligations such that the charging of interest to the employer would violate the principle of equitable estoppel.
(4) For the purpose of waiver of interest only: Where the employer relied to its detriment on a certificate issued by the Director pursuant to Section 2600 of the Act and the Director agrees, at a later date, that the certificate was issued in error, such waiver shall be granted from the date the erroneous certificate was issued to a date 30 days after notice that the original certificate was issued in error.” 11 Ill. Reg. 12887 (eff. July 22, 1987).

More recently, as of July 5, 1988, the Director reassessed the regulation and added section 2765.68:

“(a) Notwithstanding any other provisions of this Part to the contrary, the Director shall waive the reporting penalty provided in Section 1402 of the Act for any reports of wages paid in calendar year 1987 and any calendar year thereafter, if the employer, within 30 working days of the date of mailing of the notice from the Agency that its report (UC-3/40) is delinquent, shows that:
(1) The total amount of contributions due for the calendar quarter of such report (UC-3/40) is less than $500; and
(2) This delinquent report (UC-3/40) is the employer’s first such late report during the last 20 calendar quarters, including such quarters during which the employer was not required to file reports (UC-3/40) under the Act.
(b) The employer’s application for this waiver shall be made in the form provided in Section 2765.75, except that it need not be sworn and instead of stating the ‘good cause applicable,’ the employer shall state that it met the requirements of subsections (a)(1) and (2). In support of its statement that it met the requirements of subsection (a)(1), the employer shall attach a copy of its Wage and Contribution Report (UC-3/40) for such calendar quarter.”

In the present case, the District contends that it was unaware of the requirement that it file UC-40 forms once it elected to be a reimbursing employee. Relying on section 1405 of the Act, which sets forth the procedure by which a governmental entity may elect to make payments in lieu of contributions, the District argues that there is no requirement that the electing employer file quarterly forms. In fact, the District claims that pursuant to section 1405(C) of the Act, it is the Director’s obligation to mail quarterly reports to the District, not vice versa, and the Director never mailed such quarterly reports to the District. Further, in a letter dated September 3, 1983, to the Unemployment Insurance division of the Department of Labor, the District states that after it had elected to be a reimbursing employee, it had asked the Department if there was any further information or data required from it. The Department allegedly responded that no further information was necessary because the District had elected to reimburse benefits. In reliance on the information, the District filed no reports until it was notified of the requirement to do so in the “Determination and Assessment and Demand for Payment,” dated November 7, 1984, which stated that the District owed $.38 for payment in lieu of contributions and $4,235 in penalties. Thus, for a period in excess of six years, the District operated as a reimbursing employee, remained current within $.38 on its payments to the Director, never filed a quarterly report and was never requested to do so. We note that the Director has claimed no prejudice to its fulfillment of the Act’s purpose, i.e., payment of unemployment benefits, as a result of the District’s failure to file quarterly reports and that the Director expressly admits that the assessed penalty has no relationship to the $.38 assessment.

In our view, the present situation is similar to that in Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 326 N.E.2d 406, a consolidated appeal, where Southern Illinois Asphalt Company, Inc., and Airtex Products, Inc., contended that the fines imposed by the Pollution Control Board were arbitrary and not authorized in light of mitigating circumstances. In Southern, the Environmental Protection Agency (EPA) filed a complaint against Southern, charging that the company had built its facility without first obtaining a permit pursuant to the rules and regulations of the governing Act and fined Southern $5,000. In light of the facts that Southern had not been charged with polluting the air and that evidence had indicated that Southern was an extremely clean plant, the supreme court found that Southern’s failure to obtain a permit was “pure inadvertence” and that a penalty was unjustified.

Consolidated with Southern was the appeal of Airtex Products, Inc., which had been charged by the local sanitary board with polluting the water with toxic chemicals. In response to the charges, Airtex engaged in extensive cooperative efforts with the city and local sanitary board to eliminate, or at least to diminish to acceptable standards, the discharge of contaminants. Approximately two years later, the EPA succeeded to the duties of the sanitary board and on May 14, 1971, the EPA sent a telegram to the mayor and city council informing them that Airtex’ discharge of toxic wastes into the city storm-sewer system must cease immediately. As a result, Airtex ceased its operations the following day. Approximately five months later, the Agency filed its complaint against Airtex and fined Airtex $11,000 for violations.

The supreme court held that the fine was arbitrary, purely punitive and “not required as an aid in the enforcement of the Act” (60 111. 2d at 216) in light of the facts that the violation had ceased immediately upon receipt of the telegram and Airtex had been diligently trying to conform its operation with the rules.

Although Southern construes the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111½, par. 1001 et seq.) which, unlike the Unemployment Insurance Act, contains an implicit grant of discretionary authority in the imposition of penalties, we find that the considerations given by the supreme court to the mitigating circumstances surrounding imposition of penalties persuasive in the present case. Although the Unemployment Insurance Act itself does not contain the same built-in safeguards against arbitrariness, the Director is given wide discretion in promulgating the rules and regulations for effectuating the Act’s mandates. Consequently, consideration of those mitigating circumstances which may warrant waiver of penalties for “good cause” is within the Director’s authority at the stage where the rules and regulations are promulgated. As discussed, cognizant of the need to broaden its definition of “good cause” so as to encompass additional mitigating circumstances, the Director has evidenced its discretion by adding several new circumstances which constitute grounds for waiving penalties and interest.

As a general rule, statutes will not be applied retroactively unless it is clearly apparent that the legislature intended retroactive application. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844.) However, this general rule is not applicable where the enactment relates to remedies and forms of procedure and does not affect substantive rights. As stated by the Hogan court:

“Where a statute giving a special remedy is amended without a savings clause in favor of pending actions, all actions affected must be decided in conformity to the law then existing, both in the trial and Appellate Courts, without regard to whether the actions accrued before or after such change, or whether action had been previously instituted.” (29 Ill. 2d at 184-85.)

In our view, this exception is equally applicable to rules and regulations promulgated by an administrative body pursuant to authority delegated by the legislature. In the present case, by broadening the definition of “good cause,” the Director has amended the remedial aspect of the regulation which governs penalties imposed for the failure to file quarterly reports by allowing penalties to be waived under a broader scope of mitigating circumstances. The amendments have not altered any substantive rights. (See Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034; County of La Salle v. Pollution Control Board (1986), 146 Ill. App. 3d 603, 497 N.E.2d 164.) Therefore, we conclude that the amendments to part 2765 of title 56 of the Illinois Administrative Code (56 Ill. Adm. Code 2765 (1985)), which expand the definition of “good cause” as it is used in section 1402 of the Act, should be given retroactive application in the present case, which was pending at the time the amendments became effective.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded for further administrative proceedings consistent with this opinion.

Reversed and remanded.

MANNING, RJ., and QUINLAN, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    BERNARD A. HEEREY, Plaintiff-Appellant, v. JOSEPH BERKE et al., Defendants-Appellees.
    First District (1st Division)
    No. 87—2624
    Opinion filed February 14, 1989.

      Nathaniel I. Grey, P.C., of Chicago (Kimberly Anderson Fortcamp, of counsel), for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Joanne Simboli Hodge, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Steven R. Dobrofsky, of Chicago, for appellees Barry L. Newdelman, Bank of Ravenswood, Louis Wolf, and Urban Construction, Ltd.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from a dismissal of a complaint under section 11—13—15 of the Illinois Municipal Code (the Adjacent Landowners Act) (Ill. Rev. Stat. 1985, ch. 24, par. 11—13—15) and the Lake Michigan and Chicago Lakefront Protection Ordinance (the Lakefront Protection Ordinance) (Chicago Municipal Code ch. 194B—1 et seq. (1988)). The issues raised on appeal are as follows: (1) whether the trial court erred in. dismissing plaintiff’s amended complaint; (2) whether the trial court erred in granting defendants’ motion for a protective order; and (3) whether the trial court erred in denying plaintiff’s petition for change of venue. We affirm.

Plaintiff Bernard Heerey is the owner of property at 1159 North State Street in Chicago. The adjacent property at 1163-67 North State is held by defendants Louis Wolf, Joseph and Benitta Berke and the Bank of Ravenswood as trustee (the private defendants). Benitta Berke was never served and is not a party to this appeal. Defendant Barry Newdelman is the architect for the private defendants’ property. Urban Construction, Ltd., was named by plaintiff as Newdelman’s alleged employer. The remaining defendants include the City of Chicago and various subcontractors. Both of the properties at issue here lie within the private use zone governed by the Lake Michigan and Chicago Lakefront Protection Ordinance (Chicago Municipal Code ch. 194B — 1 et seq. (1988)).

On August 26, 1985, Benitta Berke, who was the record title owner of the parcel immediately adjacent to plaintiff’s property, sent a letter to Heerey by certified return receipt mail advising him of anticipated construction on her property and requesting written permission to enter his property for the purpose of protecting his property from any damage that might be caused by excavation. In reply, Heerey acknowledged that the letter was sent pursuant to the provisions of the protection of adjacent landowners act (Ill. Rev. Stat. 1987, ch. 111½, par. 3301), but alleged that the letter was inadequate under the act. Berke then replied, stating that she had been denied the necessary license to enter upon Heerey’s property and informed him that it was his responsibility to protect his land and all the structures that were on it.

On September 16, 1985, Benitta Berke and Louis Wolf submitted an application to the Chicago Plan Commission for consideration under the Lakefront Protection Ordinance. Defendants sought permission to construct a three-story commercial building. That application was withdrawn without prejudice on November 25, 1985, and no formal order of the plan commission was ever entered.

On December 16, 1985, Berke and Wolf submitted a second application to the plan commission in which they sought permission to construct three separate, three-story commercial buildings at 1163-67 North State. On January 9, 1986, after a public hearing on the matter, the commission approved the application. The commission’s resolution stated that the commissioner of the department of planning, Elizabeth Hollander, had reviewed the application, received reports from various city agencies involved and concluded that the application was in substantial conformance with the Lakefront Protection Ordinance.

The private defendants then applied for a building permit for the center lot (1165 North State Street). The application contained an affidavit from defendant Newdelman that he would apply for permits for the other two lots (1163 and 1167 North State) no later than April 10, 1986. On the basis of this affidavit, Commissioner Hollander advised the department of zoning that the permit application had been approved as conforming to the Lakefront Protection Ordinance provided that the additional permit applications were filed for 1163 and 1167 North State. On April 11, 1986, the department of zoning approved defendants’ permit applications for 1163 and 1167 North State. On April 17, 1986, Commissioner Hollander approved the two additional permit applications as also conforming to the Lakefront Protection Ordinance.

On May 28, 1986, Berke and Wolf entered into a “Foundation Agreement” expressing their interest to lay a common foundation for the construction of the three buildings. When the construction began, plaintiff’s attorney contacted the city’s department of inspectional services complaining about the construction. Construction was ordered stopped at 1167 and 1163 North State on August 15, 1986. On August 21, the department ordered all work stopped at 1165 North State and the permit revoked as the work was not proceeding in accordance with the permits and drawings. A redesign of the foundation was submitted and approved and new permits for 1163 and 1167 were issued on September 26, 1986, for three three-story buildings. On December 3, 1986, plaintiff filed a complaint against the private defendants seeking injunctive relief, a declaration of the “real and actual owner” of the 1163-67 North State site, a halt to alleged “unlawful construction,” restoration of lateral and subjacent support to his property and a permanent injunction against further construction. In the complaint plaintiff also alleged that the City of Chicago had allowed unlawful construction due to the city’s failure to enforce the conditions and requirements in its own municipal permits, and that as a result of the city’s acquiescence in the unlawful construction, the lateral and subjacent support of plaintiff’s property was damaged. Plaintiff sought preliminary and permanent injunctions to stop the city from issuing permits until defendants complied with the various permits. Plaintiff further alleged that the private defendants as well as the city had intentionally and maliciously constructed the buildings in violation of court orders, statutes and permits and sought $50,000 actual damages, $500,000 in punitive damages and attorney fees and costs.

The court granted defendants’ motions to strike and dismiss and gave plaintiff 30 days to file an amended complaint. Plaintiff filed an amended complaint in which he alleged that defendants had violated the Lakefront Protection Ordinance and sections 43—4, 43—10, and 43—11 of the Municipal Code of Chicago. The plaintiff also alleged that he was entitled to relief under section 11—13—15 (Ill. Rev. Stat. 1985, ch. 24, par. 11—13-15), relating to adjacent landowners.

On February 18, 1987, plaintiff filed a petition for change of venue. Following a hearing on February 26, 1987, the petition was denied on the basis that the petition was untimely, coming after rulings on substantial issues and lacked a showing of prejudice. At the same time, the court sustained defendant Newdelman’s motion for a protective order as to discovery. Both the private defendants and the city again filed motions to dismiss. Those motions were granted and plaintiff now brings this appeal.

We first address the plaintiff’s claim that the trial court erred in dismissing his claims against the city brought under the Adjacent Landowners Act (Ill. Rev. Stat. 1987, ch. 24, par. 11—13—15) and under the Lake Michigan and Chicago Lakefront Protection Ordinance. Chicago Municipal Code ch. 194B, arts. I through IX (1988).

The plaintiff claims that his original and amended complaints stated a cause of action against the city for injunctive relief and damages pursuant to the Adjacent Landowners Act (Act) (Ill. Rev. Stat. 1987, ch. 24, par. 11—13—15) and that he was entitled to the entry of a temporary restraining order under the Act. He contends that he satisfied the requirements of the Act in that he alleged that the private defendants’ construction violated the January 9, 1986, order of the Chicago Plan Commission and also that he alleged both damage to the lateral and subjacent support to the foundation and building on his property and the threat of future damage arising from defendants’ excavation on their property.

The Adjacent Landowners Act (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—15) falls within division 13 of the Municipal Code, regulating zoning. The particular provision of division 13 upon which plaintiff relies states:

“In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. When any such action is instituted by an owner or tenant, notice of such action shall be served upon the municipality at the time suit is begun, by serving a copy of the complaint on the chief executive officer of the municipality, no such action may be maintained until such notice has been given.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 13—15.)

The purpose of section 11—13—15 is to prevent zoning violations (see Bull v. American National Bank & Trust Co. (1969), 112 Ill. App. 2d 32, 36, 250 N.E.2d 839), and both section 11—13—15 and its predecessor (Ill. Rev. Stat. 1941, ch. 24, par. 73—9) have empowered the city to file complaints against private landowners for municipal code violations. (See, e.g., City of Chicago v. Exchange National Bank (1972), 51 Ill. 2d 543, 283 N.E.2d 878; City of Chicago v. Southgate Corp. (1980), 86 Ill. App. 3d 56, 58, 407 N.E.2d 881.) Section 11-13-15 also gives the adjacent landowner a private right of action against the alleged private violator. (Parsons v. Guild Grain Co. (1970), 125 Ill. App. 2d 59, 62-63, 259 N.E.2d 806.) Although the terms of the statute provide that either the city or an adjacent landowner may institute proceedings against private landowners who violate zoning ordinances, the language of the statute does not provide a cause of action against the city by a landowner. Plaintiff’s argument that section 11—13—15 permits a cause of action against the city since it does not preclude it is contrary both to the language of the statute and to the rules of statutory construction, which provide that the plain and obvious meaning of a statute may not be enlarged by the court. Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758.

Similarly, there is no merit to plaintiff’s argument, unsupported by any authority, that the city has a duty to enforce this ordinance and, as it failed to do so, public policy mandates that the affected adjoining landowner has a cause of action against the city. By its plain and obvious terms, section 11—13—15 states that a municipality “may institute any appropriate action or proceeding.” In the same manner an adjacent landowner “may institute any appropriate action or proceeding” to prevent unlawful construction. The term “may” in the statute is clearly discretionary and not mandatory; thus, we conclude that although both the city and the plaintiff arguably could have instituted an action to abate an alleged violation on the part of the private defendants, the city’s failure to do so does not create an alternative and essentially retaliatory cause of action against the city by the plaintiff.

Plaintiff also sought injunctive relief and damages against the city based upon section 1 (Ill. Rev. Stat. 1987, ch. HV-k, par. 3301). Section 1 is part of a legislative scheme for public health and safety, which empowers municipalities to regulate the duties and responsibilities of adjacent landowners. Section 1 provides in part as follows:

“Each adjacent owner is entitled to the continuous lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvements, under the following conditions.” Ill. Rev. Stat. 1987, ch. 111½, par. 3301.

Section 1(1) then sets out the requirements that any owner intending to permit excavation must give notice in writing to the adjacent owner and give the adjacent owner license to enter onto the land where the excavation is to take place for the purpose of protecting his own land. Failure to comply with the notice requirement or to allow the adjoining landowner to take measures to protect his land and its support opens the owner or possessor of land where the excavation is being made to liability for any damage to the adjacent land. (Ill. Rev. Stat. 1987, ch. 111½, pars. 3301(1), (5).) This statute, on its face, provides a cause of action only against an adjoining landowner and not against a municipality; therefore, the trial court properly dismissed plaintiff’s suit against the city to the extent that it was based upon this statutory provision.

Plaintiff also contends that the trial court erred in dismissing his action against the city under the Lakefront Protection Ordinance. The main thrust of his argument is that the city has a duty to enforce its own ordinances, among them the Lakefront Protection Ordinance, and that the city breached its duty to do so by failing to follow the procedures the city set out for itself in Commissioner Hollander’s letter of April 7, 1986. Plaintiff points out that Commissioner Hollander, in that letter, approved the permit application for 1165 North State Street only upon the condition that Berke and Wolf submit applications for the 1163 and 1167 North State properties by April 10, 1986. Plaintiff claims that as the applications and plans for those properties were not submitted by that date, the permit issued for the 1165 North State property was improvidently granted and therefore construction at that site commenced without a legally granted permit. Plaintiff also claims that the city breached its duties under the Lakefront Protection Ordinance by rescinding a stop work order without requiring the private defendants to correct problems related to the foundation and the separation of the buildings and by permitting the inclusion of a basement in the structure at 1163 North State Street which was not included in the plan initially submitted to the Chicago Plan Commission.

We reject plaintiff’s argument as we find he does not possess a private right of action under the Lakefront Protection Ordinance. (See Alschuler v. Department of Housing & Urban Development (7th Cir. 1982), 686 F.2d 472; Clement v. O’Malley (1981), 95 Ill. App. 3d 824, 420 N.E.2d 533, aff'd (1983), 96 Ill. 2d 26.) In Alschuler v. Department of Housing & Urban Development (7th Cir. 1982), 686 F.2d 472, adjacent landowners brought suit against the Department of Housing and Urban Development and various private defendants alleging that developers of a challenged low-income housing project had violated the Lakefront Protection Ordinance by failing to obtain prior approval for the project from the Chicago Plan Commission. The plaintiffs in Alschuler attempted to bring a private claim for violation of the Lakefront Protection Ordinance premised upon the right to bring private actions under the Adjacent Landowners Act (Ill. Rev. Stat. 1981, ch. 24, par. 11—13—15). The court in Alschuler noted that by its terms, section 11—13—15 provides for private enforcement only for violations of ordinances adopted under divisions 13, 31 or 31.1 of the Illinois Municipal Code. (Alschuler, 686 F.2d at 487.) The court then rejected the private plaintiff’s claims on the basis that the Lakefront Protection Ordinance is not the type of zoning ordinance contemplated by section 11—13—15; rather, “[i]t is more appropriately characterized as an ordinance under Division 48.2 of the Illinois Municipal Code, entitled ‘Preservation of Historical and Other Special Areas’ (Ill. Rev. Stat. ch. 24, §§11 — 48.2—1 et seq.).” (Alschuler, 686 F.2d at 488; see also Clement v. O’Malley (1981), 95 Ill. App. 3d 824, 420 N.E.2d 533, aff'd (1983), 96 Ill. 2d 26.) The court noted that division 48.2 “grants broad powers to designate by ordinance areas having, among other things, ‘special historical, community, or aesthetic interest or value,’ and ‘to provide special conditions, to impose regulations governing construction, alteration, demolition and use’ *** of the area *** [and that] [t]he declaration of intent to the Lakefront Protection Ordinance closely tracks the language of the Division 48.2 declaration of policy and grant of power.” (Alschuler, 686 F.2d at 488-89.) The court pointed out that unlike division 13 zoning ordinances, which envision detailed standards and minimal discretion, division 48.2 ordinances permit the delegations of power guided only by broad general statements of policy. We agree with the Alschuler court’s reasoning in reaching the determination that the Lakefront Protection Ordinance is not a division 13 zoning ordinance. We therefore affirm the trial court’s dismissal of plaintiff’s claim against the defendant city under the Lakefront Protection Ordinance. As we have determined that plaintiff has no cause of action against the city, we need not address his arguments as to procedural errors or damages as they apply to defendant city.

With respect to defendants Barry L. Newdelman, Louis Wolf, the Bank of Ravenswood and Urban Construction, Ltd., plaintiff contends that the trial court erred in failing to grant a declaratory judgment as to the real and actual owner of the subject property. Heerey also sought a declaratory judgment to determine that the owners of the three parcels owed an absolute duty to cause no damage to the party wall foundation and to the subjacent and lateral support.

The essential requirements of a declaratory judgment action are: “(1) A plaintiff with a legal tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy between the parties concerning such interests, though there need not be any act in violation of such interests.” (Griffin v. County of Cook (1938), 369 Ill. 380, 398, 16 N.E.2d 906.) Mere speculation as to future events does not satisfy the requirement that an actual controversy must exist. (Spalding v. City of Granite City (1953), 415 Ill. 274, 283, 113 N.E.2d 567.) The granting or denying of a request for declaratory relief is a matter for the sound discretion of the trial court, and absent a showing of abuse of that discretion, its determination will not be disturbed on appeal. (Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 377 N.E.2d 296.) Furthermore, dismissal of the complaint is an appropriate method of declining to grant declaratory relief. Coles-Moultrie Electric Cooperative v. City of Charleston (1972), 8 Ill. App. 3d 441, 444, 289 N.E.2d 491.

Initially we note that defendants Newdelman and Urban Construction, Ltd., are not proper parties to this suit as they have no interest opposing that of plaintiff nor is there an actual controversy between Heerey and Newdelman or Urban Construction. Newdelman was served in the name of Urban Construction, Ltd., his alleged employer, but affidavits submitted to the trial court established that Newdelman had never been employed by Urban Construction, was neither an equitable nor legal owner of the adjacent property, and was not in charge of any of the construction being carried on at 1163-1167 North State Street.

In his complaint, the plaintiff acknowledged that at the time relevant to this litigation, record title to the parcel adjacent to the Heerey property at 1159 North State Street was in the name of Benitta Berke. Prior to beginning excavation on that property at 1163 North State, Berke notified Heerey in writing of the anticipated excavation on her parcel and sought permission to go onto Heerey’s land for purposes of protecting his property from damage. In response, Heerey acknowledged that the letter was sent pursuant to the protection of adjacent landowners act and in essence denied her request. The record also reflects that defendants the Bank of Ravenswood, as the trustee under trust No. 25 — 5879, and Louis Wolf were the respective legal and equitable owners of the middle parcel of the three which was not adjacent to plaintiff’s property. Insofar as the middle parcel is not adjacent to plaintiff’s land, there can be no actual controversy as to the ownership of that parcel. The plaintiff cannot now seriously contend that a declaratory judgment as to the ownership of the 1163-1167 North State Street properties was requisite to protecting his own property under the Adjacent Landowners Act.

Similarly, we find no abuse of discretion in failing to grant a declaratory judgment as to the type of structure that could be built on the 1163-1167 North State Street properties or as to the private defendants’ duty not to cause damage to the subjacent and lateral support to plaintiff’s building. The private defendants were proceeding according to building permits issued by the department of inspectional services. Although there were apparently some procedural irregularities in the permit granting procedure, plaintiff has failed to show that he suffered any injury as a result of these irregularities. Nor does he state any actual damage to the party wall foundation or to the lateral support to the building located on his property. Section 1(3) (Ill. Rev. Stat. 1987, ch. 111½, par. 3301(3)) provides:

“In making any excavation, reasonable care and precautions shall be taken to sustain the adjoining land as such, without regard to any building or other structure which may be thereon, and there is no liability for damage done to any building or other structure by reason of the excavation except as herein provided or otherwise provided or allowed by law.” (Emphasis added.)

Subsection 5 of the statute provides in pertinent part:

“If the excavation is intended to be or is deeper than the standard depth of foundations as herein defined, then the owner of the land on which the excavation is being made, if given the necessary license to enter on adjoining land, and not otherwise, shall protect the said adjoining land and any building or other structure thereon ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. III½, par. 3301(5).)

Plaintiff’s contention that the notice of intent to excavate given by Benitta Berke was insufficient under the statute as it failed to state the precise depth of excavation and therefore a controversy exists as to who has a duty to protect the Heerey property from damage is not well founded. Plaintiff was given notice that defendant Berke intended to excavate, she sought permission to enter Heerey’s land to protect his property and he unequivocally denied her permission to do so in writing. This was a sufficient basis for the trial court to determine that there was no actual controversy as to who had a duty to protect plaintiff’s property from damage.

Plaintiff has also failed to state a cause of action for temporary or permanent injunctive relief as to the private defendants. In order to establish that he had a right to a temporary restraining order or a preliminary injunction, plaintiff had the burden of demonstrating that (1) he had a protectible right; (2) he would suffer irreparable injury if injunctive relief was not granted; (3) his recovery at law was inadequate; and (4) there was a likelihood that he would succeed on the merits. (See Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 291-92, 445 N.E.2d 402.) A complaint for injunctive relief must contain on its face a clear right to relief and state facts which establish the right to such relief in a positive, certain and precise manner. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 406, 357 N.E.2d 211.) Conclusion, opinion or allegations on information and belief are not sufficient to support a claim for injunctive relief. (Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 104, 192 N.E.2d 572.) Examining plaintiff’s amended complaint in light of these principles, we find that the trial court did not err in denying plaintiff’s petition for injunctive relief.

Plaintiff sought injunctive relief based upon section 11—13—15 (Ill. Rev. Stat. 1985, ch. 24, par. 11—13—15), which provides that an aggrieved property owner may sue for injunctive relief based upon illegal construction carried on by a neighboring landowner. The main thrust of plaintiff’s argument is that architect Barry Newdelman made certain statements regarding the planned construction before the Chicago Plan Commission, that the plan commission approved the project based on Newdelman’s statements and that the plan commission’s recommendations under the Lakefront Protection Ordinance are binding. The charges of illegality stem from the fact that subsequent to the plan commission’s approval of the project, certain changes were made in the design of the building. Despite the later issuance of permits and affidavits by the city chief construction inspector verifying that the permits were being complied with, the plaintiff argues that the permits were void and an injunction should have issued. We disagree.

For the reasons stated previously with regard to defendant City of Chicago, we find that defendant has no private right of action under the Lakefront Protection Ordinance. We note, however, that plaintiff has mischaracterized the role of the plan commission in administering that ordinance. The duties of the plan commission are set forth in the Municipal Code of Chicago, chapter 194B — 6.1. One of the commission’s duties is to review and approve any planned construction that falls within the Lakefront Protection District. The focus of the commission is to insure that property is developed consistent with certain aesthetic, environmental and public health goals. While determinations of the plan commission are final and binding insofar as they determine that a proposed project either is or is not consistent with the overall purposes of the ordinance, proceedings before the commission are not conclusive with respect to the issuance of building permits regulating the manner of construction. Chapter 194B — 3(j) provides that with respect to the land in issue, the Chicago Zoning Ordinance, chapter 194A of the Chicago Municipal Code, shall govern except where such provisions are in substantial conflict with the purposes of the Lakefront Protection Ordinance.

Plaintiff here has not alleged that the construction violates the zoning ordinance or other provisions of the building code. Plaintiff has instead attacked certain representations made before the plan commission, but as the plan commission only determines whether the Lakefront Protection Ordinance is being violated and lacks the authority to impose conditions upon a building permit, the challenged proceedings before the plan commission do not provide a basis for injunctive relief.

Plaintiff’s claim against the private defendants for injunctive relief under the protection of adjacent landowners act (Ill. Rev. Stat. 1987, ch. III½, par. 3301 et seq.) was also properly dismissed. The purpose of section 1 is to provide adjacent landowners with a cause of action where the continuous lateral and subjacent support of their land is damaged by an adjoining landowner’s excavations. The statute requires that an owner or possessor of land who intends to excavate on his land must give due and reasonable notice in writing to adjoining landowners.

Depending on the depth of the planned excavation, either subsection 1 or subsection 5 of the act will apply. (Ill. Rev. Stat. 1987, ch. 111½, pars. 3301(1), (5).) If the anticipated depth is not more than the standard 8-foot depth of foundations, subsection 1 of the act applies, and the adjoining landowner, if given notice, will have no less than 30 days to shore up his own property. If the excavation is intended to be deeper than the standard depth, subsection 5 applies and an excavating landowner, if given necessary license, shall enter the adjoining landowner’s property and take the necessary precautions to protect the adjoining landowner’s property. The reason for the notice as to depth is that unless the notice specifies the depth of the excavations, an adjoining landowner is unable to determine whether he or the excavating landowner has the duty to shore up the property since the depth of the excavation is determinative. Smith v. Roberts (1977), 54 Ill. App. 3d 910, 914, 370 N.E.2d 271.

As previously noted, notice of intent to excavate was given by defendant Benitta Berke in 1985 and excavation commenced some time in 1986. Although the notice failed to specify the exact depth of the anticipated excavation, the letter requested permission to enter onto Heerey’s land for the purpose of protecting his property as required by section 1(5) (111. Rev. Stat. 1987, ch. HV-k, par. 3301(5)), where excavations are intended to be deeper than the standard depth of excavation. Benitta Berke substantially complied with the requirement of section 1(5) by providing Heerey with due and reasonable notice of the anticipated excavation and requesting permission to enter Heerey’s property for the purpose of protecting his land.

As a threshold matter, plaintiff did not establish that he would be irreparably harmed if an injunction did not issue. The purpose of injunctive relief is to either relieve the plaintiff of severe and irreparable injury or to preserve the status quo so that a meaningful decision can be rendered at a later time. Injunctive relief is warranted only where the threatened injury is actual and imminent. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 499-500, 422 N.E.2d 1166.) Moreover, monetary damages must be incapable of redressing any injury caused by the alleged wrongdoing. Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 510-11, 508 N.E.2d 1053.

Plaintiff’s conclusory allegation that he would be irreparably harmed if the injunction does not issue is unconvincing. While plaintiff is seeking injunctive relief as well as money damages, we believe that if any damage does occur, plaintiff has an adequate remedy at law for damages against the private defendants under the protection of adjacent landowners act (Ill. Rev. Stat. 1987, ch. 111½, par. 3301).

We also reject plaintiff’s contention that the trial court erred in granting defendant Newdelman’s motion for a protective order barring discovery by plaintiff until all defendants had been served and all defendants’ motions to strike and dismiss plaintiff’s amended complaint had been disposed of.

Illinois Supreme Court Rule 201(d) (107 Ill. 2d R. 201(d)), provides as follows:

“(d) Time Discovery May be Initiated. Prior to the time all defendants have appeared or are required to appear, no deposition or other discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown.”

Pursuant to Supreme Court Rule 201(c) (107 Ill. 2d R. 201(c)), the court may “make a protective order *** regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” The trial court had been advised that the owner of the adjacent parcel, Benitta Berke, had not been served. Summons was apparently sent to an address in Florida despite the fact that all of the applications before the plan commission and other relevant documents established that she was in Chicago. Under the circumstances here, we believe the trial court did not abuse its discretion in barring discovery by Heerey until all defendants had been served and the pending motions to strike and dismiss had been disposed of.

In re Estate of Watson (1984), 127 Ill. App. 3d 186, 468 N.E.2d 836, relied on by plaintiff, does not require us to hold otherwise. Watson involved a will contest in which the appellate court held that the trial court had abused its discretion by denying the petitioner’s right to commence discovery prior to hearing a motion to dismiss but after all the necessary parties had been served and had appeared. The petitioner was seeking information relating to the physical and mental condition of the decedent at the time the will was executed. Here, the record holder of the adjacent parcel of land had not been served and plaintiff had shown no good cause why discovery should have been allowed prior to doing so.

We next address plaintiff’s claim that it was prejudicial error for the court to deny his motion for a change of venue. Plaintiff contends that a change of venue should have been granted as a matter of right as the trial court had not yet ruled on any substantial issue. In the alternative, he argues that the trial court had prejudiced his right to a full and fair hearing by ignoring or cutting off the arguments of his counsel, by refusing to allow his counsel to respond to the issues of damages and timeliness raised by the court and by defendants’ motions and by denying his motion for a temporary restraining order without permitting his counsel to respond.

The venue act (Ill. Rev. Stat. 1987, ch. 110, par. 2—101 et seq.) provides for one automatic change of venue prior to any substantive ruling in the case provided the statutory requirements are satisfied. (United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 111-12, 441 N.E.2d 1163.) The act is intended to be applied liberally to promote, rather than defeat, a change of venue. (Stambaugh v. International Harvester Co. (1984), 102 Ill. 2d 250, 261, 464 N.E.2d 1011.) A petition for change of venue in a nonjury case will normally be granted where it is based upon a belief that the trial judge is prejudiced against a party or his attorney. (L.W. Paul Supply Co. v. Meyer (1975), 27 Ill. App. 3d 526, 327 N.E.2d 101.) However, it is not the purpose of the venue act to grant a plaintiff the power to pick and choose among judges. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 253, 311 N.E.2d 673.

Here, after lengthy hearings, the trial court had dismissed plaintiff’s petition for a temporary restraining order, stating that there was no emergency and no irreparable harm, and ruled on defendants’ motions to strike and dismiss. These were clearly rulings on substantial issues, and, therefore, in order to secure a change of venue, plaintiff had the burden of proving actual prejudice by the trial court. (See American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 128, 371 N.E.2d 232.) Contrary to plaintiff’s assertions, a review of the record shows that plaintiff has mischaracterized certain statements of the trial court by misquoting the transcript and that the trial court gave plaintiff adequate opportunity to present his case to the court. Plaintiff has failed to demonstrate any prejudice of the trial court that would have warranted a change of venue following ruling on motions to dismiss, and accordingly, we find that the trial court did not err in denying plaintiff’s motion for a change of venue.

Plaintiff’s motion to strike certain matters in the brief of the private defendants has no merit. All of the matters to which plaintiff now objects were before the trial court and are part of the record on appeal. Accordingly, that motion is denied.

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

Judgment affirmed.

BUCKLEY and QUINLAN, JJ., concur.


text:
      In re MARRIAGE OF NANCY H. BYRNE, Petitioner-Appellant, and PETER J. BYRNE, Respondent-Appellee.
    First District (1st Division)
    No. 88—0422
    Opinion filed February 14, 1989.

      James T. Friedman and James L. Rubens, both of Davis, Friedman, Zavett, Kane & McRae, of Chicago, for appellant.
    Arnold B. Stein, of Schiller, Du Canto & Fleck, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In an action for dissolution of marriage between Nancy and Peter Byrne, a declaratory judgment was entered finding that an antenuptial agreement, entered into by the parties, was valid, applied in the event of divorce, and excluded from marital property all properties and assets of Nancy and Peter, whether acquired before or after the marriage. Nancy appeals. For the reasons below, we affirm.

Peter Byrne was an executive with Emery Air Freight, and Nancy Brennen, an interior designer. In December 1976, Nancy, age 50, became engaged to marry Peter, age 53. The couple set a wedding date of August 29, 1977. Nancy’s principal assets were her apartment at 2430 Lakeview, Chicago, and her share of family trust assets, in litigation at the time of her engagement. Nancy wished to protect her apartment and trust estate for the benefit of her children from a previous marriage and therefore suggested an antenuptial agreement to Peter, who agreed.

Nancy contacted Charles Kelly, the attorney handling the trust estate litigation, to draft the antenuptial agreement. Mr. Kelly assigned the task of preparing the agreement to an associate in his firm. On August 10, 1977, a draft of the agreement was sent to Peter’s attorney, Roger Eklund. Mr. Eklund made minor revisions that were not resubmitted to Mr. Kelly. Schedules listing each party’s assets were later affixed to the agreement. After her first request for the agreement, Nancy had no other contact with her attorney concerning the agreement. On August 24, 1977, Peter and Nancy signed the agreement in Mr. Eklund’s office, with Mr. Eklund and two other witnesses present.

Before the wedding, Peter transferred $50,000 of Emery stock to Nancy for her to buy out her ex-husband’s interest in the Lakeview apartment, where Peter and Nancy lived after they were married. Nancy later paid for the stock. During the marriage, Peter made no contributions to assessments on the apartment or property taxes, nor did he contribute, with the exception of vacation expenses, to household expenses. The couple kept their property separate, held the earnings from their property in separate accounts, and acquired no jointly held property.

On October 24, 1985, Nancy filed a petition for dissolution of marriage. On March 26, 1986, Peter filed a counterpetition for dissolution and a motion for declaratory judgment concerning the validity and scope of the antenuptial agreement. A hearing on the declaratory judgment established that both parties were educated and sophisticated, that Nancy originally suggested the antenuptial agreement and had her attorney draft the agreement, and that Nancy freely and voluntarily signed the agreement. It was further established that the parties owned no jointly held property.

In an order dated March 6, 1987, the trial court found that the antenuptial agreement was valid and applicable to divorce. The trial court denied Nancy’s affirmative defenses to the agreement and ruled that by the terms of the antenuptial agreement, which had been followed by the parties, there was no marital property to distribute. Finding that Nancy had ample means to support herself, the trial court denied her petition for maintenance.

On June 1, 1988, Nancy filed an amended petition for dissolution of marriage, which contained a count seeking rescission of the agreement based on Peter’s failure to contribute family support during the marriage. Nancy sought damages or reimbursement for unpaid maintenance during the time of their marriage in the amount of $766,746.00. The trial court granted Peter’s motion to dismiss. Nancy did not raise the issue of the dismissal in her notice of appeal, but appeals the ruling that the agreement bars equitable distribution of marital property.

Nancy first argues that the unambiguous language of the antenuptial agreement preserved the premarital estates of the parties without affecting rights in property acquired during the marriage, and that the extrinsic evidence showed that the parties did not intend to waive their rights to equitable distribution of marital property. Nancy’s first argument misapprehends the purpose of the extrinsic evidence and treats the case as one of contract construction. The trial court relied on extrinsic evidence to determine the agreement’s validity and the language of the agreement to determine its applicability and scope. The evidence and the language of the agreement amply support the trial court’s conclusions. Nancy’s second argument, that Peter’s failure to provide family support during the marriage was a material breach of the antenuptial agreement, was not properly preserved and therefore waived. Review of the trial court’s analysis answers Nancy’s arguments and shows that the rulings were correct.

Marital property is defined as all property acquired by either spouse subsequent to the marriage. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a).) Property acquired during marriage is presumed to be marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b).) The presumption may be defeated, however, where property is excluded from the marital estate by a valid agreement between the parties. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(4).) One such agreement is an antenuptial, which is valid if entered into with full knowledge and without fraud, duress, or coercion. (See In re Marriage of Burgess (1984), 123 Ill. App. 3d 487, 462 N.E.2d 203; Volid v. Volid (1972), 6 Ill. App. 3d 386, 286 N.E.2d 42.) The trial court heard evidence not, as Nancy argues, to determine the intent of the parties, but to determine the validity of the agreement.

The evidence established that Nancy was well-educated and operated her own business. Nancy originally suggested the antenuptial agreement, and her attorney drafted the agreement. Although Nancy did not consult her attorney after the initial request to draft the agreement, she was represented by an attorney to the extent that she sought representation and was not prevented from seeking the advice of counsel. Each party attached a schedule of assets to the agreement. Thus, Nancy had the opportunity to know the extent of Peter’s wealth before she signed the agreement. Because Nancy suggested the ante-nuptial agreement, freely entered into it with knowledge and comprehension of the nature of the agreement, was represented by counsel, and there was neither misrepresentation of Peter’s assets, nor a gross disparity in the relative wealth of the parties, there appears to have been no fraud, coercion, or unconscionability. The contract was properly executed and defenses to the contract were defeated. The trial court correctly ruled that the antenuptial agreement was valid.

The trial court also properly determined that the agreement was applicable in the event of either divorce or the death of a party. The second recital clause of the agreement states in part:

“WHEREAS, each party owns and is possessed of property *** and the parties desire to enter into an Agreement with respect to their respective properties, *** and with respect to the rights of the survivor of the parties in and to the property, *** and with regard to their respective rights *** in the event of the dissolution of their marriage by divorce ***.”

The fourth recital clause states that each party consulted their respective attorneys, and they were advised of their legal rights, and specifically, that:

“[ajmong other matters, each party has been advised that under the law of Illinois and many other jurisdictions, a spouse who has not made an agreement such as this one, or one of similar effect, is, upon the death of the other spouse, entitled to receive as the surviving spouse’s own property, regardless of the provisions of the deceased spouse’s Will [sic], at least one-third of all property owned by the deceased spouse at the time of death, and each understands that by this agreement each of them is relinquishing this right and all rights of every sort to participate in the estate of the deceased spouse, except to the extent provided for herein.”

Finally, the trial court properly ruled that all property was excluded from distribution as marital property. The operative section of the agreement, paragraph 2, states:

“2. Each party hereby forever releases, relinquishes, waives, quitclaims and grants to the other party, his or her heirs, executors, administrators and assigns, all rights of dower or curtesy, homestead, family allowance, inheritance, descent, distribution, election, spouse’s award, renunciation, survivorship, community property, community interest and all other now or hereafter existing, vested, contingent, or inchoate rights, titles, claims, interest and estates which he or she now has or may hereafter have under any present or future law of any state or jurisdiction, as husband or wife, widow or widower, or otherwise, by reason of and resulting from his or her marriage to the party or the other party’s death. Each party agrees that all property presently owned by the other party, including all interests, rents and profits which may accrue therefrom, shall be considered the separate property of such other party in his or her name alone, including the earnings of such other property which shall likewise be considered the separate property of such other party. Each party shall have at all times the full right and authority, and in all respects the same as each would have if not married, to use enjoy, manage, convey, encumber and by gift or Will [sic] dispose of such separate property. All property acquired or held by the parties shall jointly be so acquired or held as tenants in common unless some other form of joint ownership is specifically and clearly stated in the title documents. The parties intend that no property shall at any time be acquired or held by them as their community property. Neither party shall ever at any time hereafter sue the other party, his or her heirs, executors, administrators or assigns, for the purpose of enforcing any of the rights provided to be waived or relinquished under and pursuant to this agreement. Each party shall, after such marriage, execute, acknowledge and deliver to the other party such instruments of confirmation or other or further assurances as may be reasonably required to effect the waiving and relinquishment of the rights which such party waives and relinquishes under and pursuant to the provisions of this agreement, and, upon the request of the other party, agrees from time to time after such marriage to join with the other party in the execution, acknowledgment and delivery of any deeds or other instruments of sale, assignment, transfer, conveyance or other disposition with respect to any other party’s property, whether now or hereafter owned, in order to evidence such party’s waiver of any right to dower or curtesy, homestead, family allowance, community property, or any other rights in, to or in connection with such property." (Emphasis added.)

In summary, the recital clauses state that each party has certain property, interests, and assets, to which the agreement is meant to apply in the event that the marriage is terminated by death or divorce. Paragraph 2 contains the operative portion of the agreement, providing that each party relinquishes all rights in the other’s property and assets resulting from the spousal relationship. The paragraph further provides that both premarital property and earnings from that property shall be kept separate and that property acquired during the marriage shall be kept separate. Other provisions in the paragraph facilitate the separation of property and assets. Based on the language quoted above, the trial court properly found that the agreement was applicable in the event of death or divorce and properly excluded all property from consideration as marital property.

Nancy also alleged, in her amended petition for dissolution, that Peter materially breached the antenuptial agreement by failing to contribute to family expenses during the marriage. Nancy sought rescission of the agreement, or alternatively, damages in the form of an equitable share of the household expenses during the marriage, or a lump sum maintenance. The trial court dismissed the count on Peter’s motion. The notice of appeal does not preserve the issue of whether dismissal of the count was proper; therefore, the issue cannot be urged as a ground for reversal on review. People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.

Nancy did, however, preserve the issue of whether the trial court properly denied Nancy’s request for maintenance, which was part of the declaratory judgment order. The trial court found that Nancy was self-employed, with income from both her business, and tax-free income from a trust in the amount of $80,000. Nancy owned the co-op that she lived in, valued at over $400,000. Thus Nancy’s petition for maintenance was properly denied. Nancy’s breach of contract argument might possibly be considered with respect to whether maintenance was properly denied, but the argument, even if considered, is without merit.

The trial court found no basis for alleging breach of the antenuptial agreement. The agreement states in paragraph 3 that it does not affect or impair the obligation of each party for expenses of the family. But while the agreement does not eliminate the legal duty of the parties to support the family, it neither requires the parties to contribute a specific amount, nor that each party pay a specific percentage of the household or family expenses. During the marriage, which lasted from 1977 to 1985, Peter paid only vacation expenses. Nancy knew the extent of Peter’s contributions to the household, and because the parties continued through eight years of marriage with such a division of expenses, it is reasonable to assume that the arrangement was satisfactory to both. Had Nancy felt that Peter was not contributing sufficiently, she had sufficient resources, both personal and financial, to effect a change. However, the time for her to have acted was, as the trial court asserted, during the marriage, not after. The court will not rewrite a contract after the fact. Ortman v. Kane (1945), 389 Ill. 613, 623, 60 N.E.2d 93; Wil-Shore Motor Sales, Inc. v. Continental Illinois National Bank & Trust (1985), 130 Ill. App. 3d 167, 172, 477 N.E.2d 376, appeal denied (1985), 106 Ill. 2d 560.

Because the allegation of breach of agreement was dismissed and the issue not preserved on appeal, the issue was waived. Considering the argument to determine whether the denial of maintenance was proper reveals no basis for the allegations. Thus, the trial court properly dismissed the breach of contract claim, and the denial of maintenance was proper.

In summary, the evidence showed that the antenuptial agreement was valid, that Nancy and Peter conducted their financial affairs in accordance with the agreement, and that both parties were financially sound. The trial court properly interpreted the agreement to apply in the event of divorce. The agreement by its terms excludes all property from marital property, and provides that the parties maintain their property and their earnings separately. The court correctly ruled that there was no marital property to distribute and properly denied Nancy’s petition for maintenance. For these reasons, the declaratory judgment order is affirmed.

Affirmed.

BUCKLEY and QUINLAN, JJ., concur.


author: JUSTICE McNAMARA

text:
    WILLIAM P. HAPANIEWSKI, Plaintiff-Appellant, v. JOHN RUSTIN, a/k/a John Ruston, a/k/a John Rustames, Defendant-Appellee.
    First District (3rd Division)
    No. 88—1233
    Opinion filed February 15, 1989.

      William P. Hapaniewski, of Merrillville, Indiana, appellant pro se.

    Albert Brooks Friedman, Ltd., of Chicago (David M. Goldman, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, William P. Hapaniewski, appeals from an order of the trial court denying his motion for summary judgment and granting defendant John Rustin’s motion for summary judgment. Hapaniewski contends the trial court erred in concluding that he was not entitled to recover attorney fees under a contract theory and in quantum meruit, and in holding that Rustin was entitled to summary judgment on those issues.

The undisputed facts are as follows. Hapaniewski represented Rustin in an action captioned as Jupiter Petroleum Corp., Delphi American Corp., and John Rustin v. Alvin C. Johnson, Jr., individually, and Alvin C. Johnson, Jr., Inc., court docket No. 82 — C—3544, in the United States District Court for the Northern District of Illinois (“Federal court case”). As compensation for his services in that case, Hapaniewski was to receive one-third of all amounts collected in the event the matter was settled before any depositions were taken, 40% after depositions were taken, and 50% if the matter was taken to a pretrial stage of trial. Rustin additionally agreed to pay all expenses that were incurred.

The Federal court case proceeded to the pretrial stage. Prior to trial, however, the parties entered into a settlement agreement pursuant to which Johnson was to pay Rustin the sum of $12,000. The agreement additionally provided that upon payment of the $12,000 to Rustin, the case was to be dismissed with prejudice and all claims against Johnson were to be released.

On December 11, 1984, Johnson tendered to his counsel, Douglas C. Tibbie of McDermott, Will & Emery, an uncertified check in the sum of $12,000, payable to Tibbie, representing payment pursuant to the settlement agreement. Tibbie agreed to issue a certified check to Rustin upon confirmation that Johnson’s check had cleared the issuing bank. The check was returned for insufficient funds. On December 21, 1984, Hapaniewski moved to reinstate the action in the Federal court.

On December 26, 1984, Johnson tendered a certified check to Tibbie in the sum of $12,000, representing the funds due Rustin. On December 28, 1984, Tibbie received a writ of attachment issued by the circuit court of Cook County in the case captioned as Konstantine Hatzopoulos v. Alvin C. Johnson, Jr. and John Rustin, individually, and Delphi American Corp., Successor to Jupiter Petroleum Corp., case No. 84 — L—24475. The writ directed Tibbie or his firm to hold and deliver to the sheriff of Cook County any funds in their possession belonging to Delphi and John Rustin. Hatzopoulos had agreed to dismiss the action against Rustin upon the attachment and disbursement of the $12,000 check.

On January 18, 1985, the Federal court entered a judgment order against Johnson for $12,000. On January 28, 1985, Johnson requested that this order be vacated and that a satisfaction of judgment be issued upon the tender of the settlement check held by Tibbie to the sheriff of Cook County. At this time, Hapaniewski served Tibbie with notice of his attorney’s lien for fees in the Federal court case.

On March 15, 1985, the circuit court of Cook County ordered Tibbie to deposit the funds with the court. Tibbie did not tender the funds, but held them pending instructions regarding how the deposit was to be handled. Hapaniewski subsequently attempted to enforce his attorney’s lien in the circuit court of Cook County. The court denied his request and dismissed the motion without prejudice.

Subsequently, Tibbie received a court order directing that the $12,000 settlement check be disbursed as follows: $2,000 to Enrico Mirabelli, attorney for Rustin, and $10,000 to Konstantine Hatzopoulos and his attorney, Robert E. McAuliffe. Tibbie tendered the check to the sheriff as directed.

Thereafter, Hapaniewski filed a motion for temporary restraining order and preliminary injunction against Johnson and Tibbie in the Federal court. Hapaniewski sought to prevent the transfer of the $12,000 settlement check to Mirabelli and Hatzopoulos. The Federal court denied his motion and denied his request for attorney fees. The court found that Hapaniewski had failed to perfect his attorney’s lien prior to the issuance of the State court writ of attachment. The court determined that Hapaniewski’s rights under the lien were junior to the rights accruing under the writ of attachment. At that same time, the court granted Johnson’s motion for satisfaction of judgment.

Hapaniewski then filed this lawsuit, seeking recovery of his attorney fees for services rendered in the Federal court action. Both sides sought summary judgment. On April 4, 1988, the trial court granted Rustin’s motion for summary judgment and denied that of Hapaniewski.

Hapaniewski maintains on appeal that he is entitled to summary judgment based in contract and in quantum meruit. Summary judgment is proper when the pleadings, depositions, admissions and affidavits on file present no genuine issues of material fact and the movant is entitled to judgment as a matter of law. In re Estate of Whittington (1985), 107 Ill. 2d 169, 483 N.E.2d 210, cert, denied sub nom. Lyons v. Bute (1986), 475 U.S. 1016, 89 L. Ed. 2d 313, 106 S. Ct. 1199.

The trial court here was not presented with a single disputed fact or conflicting inference. Both Hapaniewski and Rustin agree that Hapaniewski represented Rustin in the Federal action; that Hapaniewski was to be paid 50% of the amounts collected in that action; that the Federal action was settled for $12,000; and that the $12,000 was attached and was disbursed pursuant to a circuit court order prior to the perfection of Hapaniewski’s attorney’s lien. The only issue before the trial court, whether the $12,000 settlement funds were “collected” so as to afford Hapaniewski the right to attorney fees, is a legal determination and not a factual one. Thus, the trial court properly resolved this matter in a summary judgment proceeding. Nonetheless, we believe that summary judgment should have been granted to Hapaniewski and not to Rustin.

Initially we agree that Hapaniewski was not entitled to summary judgment based on a quantum meruit theory. In Illinois, when a client and his attorney enter into an express contract, that express contract will control the compensation due the attorney, and quantum meruit principles are not involved. (Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 379 N.E.2d 773; Slater v. Jacobs (1977), 56 Ill. App. 3d 636, 371 N.E.2d 1054.) In such situations as here, quantum meruit principles are not necessary because the attorney and client already have agreed on the value of the services. Laff v. Chapman Performance Products, Inc., 63 Ill. App. 3d 297, 379 N.E.2d 773.

Thus, the sole issue before this court is whether any amounts were “collected” within the meaning of the contingent fee agreement thereby entitling Hapaniewski to attorney fees pursuant to that agreement.

It is Rustin’s position that no amounts were collected because he never received the funds in hand. Rather, pursuant to court order, the $12,000 settlement check went directly from Johnson’s attorney to Hatzopoulos and Mirabelli. Rustin concludes, therefore, that he never recovered the money and is not now obliged to pay Hapaniewski’s fees for services rendered in the Federal case.

• 4-6 We believe that Rustin’s position is incorrect. Although Rustin never physically received the settlement funds, he did receive a direct benefit from the court-ordered disbursement of those funds. Specifically, a lawsuit against Rustin was dismissed, and Rustin’s attorney in that terminated lawsuit received compensation. The fact that Rustin never received the money in hand is irrelevant. The funds were used for his benefit, and he cannot now assert that he did not collect the funds.

Moreover, it is the law that a judgment is a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. (International Harvester Credit Corp. v. Helland (1985), 130 Ill. App. 3d 836, 474 N.E.2d 882.) Thus, there can be no question that when the Federal court entered its judgment order, Rustin had a right to demand and to receive this money from Johnson, and if not paid, he could maintain an action for it. It was his money by adjudication of the court. Additionally, there can be no question that Rustin “collected” the money when the Federal court honored the State court writ of attachment directing the attachment of the funds for the benefit of Rustin’s creditor, and issued a satisfaction of judgment in its own action. The fact that the money was attached by an independent proceeding prior to Rustin’s receiving it in hand does not alter the fact that he received it for purposes of the Federal litigation. Thus, pursuant to the contingent fee agreement, Hapaniewski is entitled to the agreed-upon compensation.

Accordingly, we find that Hapaniewski is entitled to summary judgment on the issue of attorney fees due under the contingent fee agreement between Hapaniewski and Rustin. Thus, we believe the trial court improperly granted Rustin’s motion for summary judgment on this same issue.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed insofar as it denied summary judgment to Hapaniewski, and granted summary judgment to Rustin, based on a contract theory. The matter is remanded to the trial court with directions to enter summary judgment in favor of Hapaniewski.

Judgment reversed and remanded with directions.

RIZZI and WHITE, JJ., concur.


text:
    FIRST BANK OF OAK PARK, Plaintiff-Respondent, v. GEORGE REZEK et al., Defendants and Petitioners-Appellants (American National Bank, Trustee, Intervenor and Respondent-Appellee).
    First District (3rd Division)
    No. 88—1634
    Opinion filed February 15, 1989.

      Heldrich, Gutman & Associates, of Chicago, for appellant.
    Diane M. Romaniuk, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, George Rezek, appeals from an order of the trial court denying his motion to reconsider its denial of his motion to vacate the judgment of foreclosure and sale, and its approval of the petition for a writ of assistance, filed by intervenor, American National Bank, trustee under trust Nos. 104525 — 06 and 104541 — 06. Defendant contends the judgment should be vacated because it improperly was corrected and amended by a nunc pro tunc order. Defendant maintains that the trial court lacked jurisdiction to enter the nunc pro tunc order.

The facts are as follows. On August 7, 1986, plaintiff, the First Bank of Oak Park, filed an action to foreclose a trust deed upon five parcels of real estate. Defendant was the beneficial owner of one of the parcels of real estate. Defendant filed an appearance, but failed to file an answer to the complaint. On April 22, 1987, the court entered an order of default as to defendant and entered a judgment of foreclosure and sale as to the real estate.

On May 27, 1987, plaintiff served defendant by mail with notice of a June 5, 1987, hearing to correct clerical errors in the record and to amend nunc pro tune the judgment of foreclosure and sale. At the hearing, plaintiff sought to delete parcels one and three from the judgment of foreclosure because it previously had nonsuited its action on those parcels. Plaintiff further sought to correct typographical errors in a document number and in two of the legal descriptions. The court ordered that the record be corrected and that the judgment of foreclosure and sale be amended nunc pro tunc, as requested by plaintiff.

The sheriff of Cook County subsequently held a sheriff’s sale upon the amended judgment. Plaintiff’s bid was accepted, as approved and confirmed by subsequent order. Plaintiff assigned its rights in the certificate of sale to intervenor. No redemption was made from the sheriff’s sale, and on January 29, 1988, a sheriff’s deed was issued to intervenor.

On February 5, 1988, defendant filed a motion to vacate the judgment of foreclosure and sale. Defendant alleged that the court lacked jurisdiction to enter its June 5, 1987, nunc pro tunc order. Defendant noted that the judgment of foreclosure was final and that the motion to amend was filed more than 30 days after its entry. Defendant contended that under those circumstances, plaintiff was required to bring his motion to amend pursuant to section 2—1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401). Defendant further contended that according to Supreme Court Rule 106 (107 Ill. 2d R. 106), plaintiff was required to give notice of the section 2—1401 motion by methods prescribed in Supreme Court Rule 105 (107 Ill. 2d R. 105). It is agreed that while plaintiff did give defendant notice of the motion, it did not do so by one of the methods found in Rule 105.

On February 8, 1988, intervenor filed a petition for a writ of assistance, requesting that defendant be ordered to surrender possession of the property and that defendant and all other tenants be required to pay rentals to intervenor. On April 18, 1988, the court denied defendant’s motion to vacate and granted intervenor’s petition for a writ of assistance. Defendant filed a motion to reconsider the April 18, 1988, orders, and on May 24, 1988, the court denied this motion.

On appeal, defendant contends that the denial of the motion to reconsider was improper. He maintains that the trial court lacked jurisdiction to correct clerical errors in the record and to amend the judgment of foreclosure. He alleges that the post-judgment relief pursuant to the nunc pro tunc order was improper because post-30-day relief should have been sought under section 2 — 1401 of the Code of Civil Procedure and in compliance with Supreme Court Rules 105 and 106. Defendant concludes that absent proceedings pursuant to section 2— 1401 and the applicable supreme court rules, the trial court could not have jurisdiction in a post-30-day relief situation.

Initially we note that relief from final orders and judgments after 30 days from entry thereof may be provided in ways other than that provided by section 2 — 1401. Post-30-day relief properly may be granted as follows: by application of the revestment doctrine; by a finding that the final order or judgment is void; by agreement of the parties; or by a nunc pro tunc order. (King v. King (1985), 130 Ill. App. 3d 642, 474 N.E.2d 834.) Thus, we disagree with defendant’s contention that the trial court only could have granted post-30-day relief through a section 2—1401 petition.

Moreover, we do not believe that a section 2 — 1401 petition would have been appropriate here. Rather, we find that the trial court properly used its authority to issue a nunc pro tunc order to ensure that the final judgment conformed to the judgment actually rendered.

The purpose of a section 2—1401 petition is to bring facts not of record to the attention of the trial court which, if known by the trial court at the time judgment was entered, would have prevented its rendition. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 449 N.E.2d 560.) Section 2—1401 is not merely a continuation of the original proceeding, but commences an entirely new proceeding. (Manning v. Meier, 114 Ill. App. 3d 835, 449 N.E.2d 560.) Because the section 2 — 1401 hearing is a new proceeding, notice of the hearing must be given by specific means. Supreme Court Rule 106 provides that notice of the filing of a petition under section 2—1401 must be given by the methods provided in Supreme Court Rule 105. That rule provides the notice requirements for post-judgment actions seeking new or additional relief against parties in default and mandates that in such actions, service be made by summons, by certified or registered mail, or by publication. 107 Ill. 2d R. 105.

In contrast, the purpose of a nunc pro tunc order is to correct the record of the judgment, not to alter the actual judgment of the court. (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708.) The court’s authority to enter a nunc pro tunc order is based upon its right and duty to do entire justice and upon control of its own records and its authority to make them speak the truth. (Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E.2d 1182.) A court has authority to enter a nunc pro tunc order at any time to amend a written record of judgment to conform with the judgment in fact rendered by the court. (In re Estate of Young (1953), 414 Ill. 525, 112 N.E.2d 113; Gagliano v. 714 Sheridan Venture, 144 Ill. App. 3d 854, 494 N.E.2d 1182.) This authority is limited to entering into the record something which actually was done; the error must be clerical and not judicial. The distinction between a clerical error and a judicial one does not depend upon the source of the error, but rather, upon whether it was the deliberate result of judicial reasoning and determination. In re Marriage of Hirsch (1985), 135 Ill. App. 3d 945, 482 N.E.2d 625.

A nunc pro tunc order relates back to the date of the judgment (In re Marriage of Hirsch, 135 Ill. App. 3d 945, 482 N.E.2d 625; In re Marriage of Shelton (1984), 127 Ill. App. 3d 775, 469 N.E.2d 618), and may be entered at any time with notice to the parties. (In re Marriage of Hirsch, 135 Ill. App. 3d 945, 482 N.E.2d 625; Dauderman v. Dauderman, 130 Ill. App. 2d 807, 263 N.E.2d 708.) An action for nunc pro tunc relief is not the same as an action for section 2—1401 relief, nor is it a proceeding for new or additional relief. An action for nunc pro tunc relief is merely a continuation of the original proceeding. Accordingly, compliance with the special notice provisions of Supreme Court Rule 105 is not required.

We believe that the trial court properly entered a nunc pro tunc order correcting the record and amending the judgment of foreclosure. The June 5, 1987, order did not involve the consideration of any facts not of record nor did it involve correction of a judicial error. Rather, the order merely amended the written judgment to conform with the judgment in fact rendered by the court. Amendments of this nature properly are accomplished by nunc pro tunc order, and notice of the nunc pro tunc proceeding need not comply with the mandates of Supreme Court Rule 105.

The trial court properly determined that defendant’s request to vacate the judgment of foreclosure because of lack of jurisdiction to amend the judgment nunc pro tunc was without merit. Consequently, the trial court’s order granting intervenor’s petition for a writ of assistance was properly entered, and defendant’s motion to reconsider was correctly denied.

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

Judgment affirmed.

RIZZI and WHITE, JJ., concur.