text:
      In re CHARLES CUTSINGER (The People of the State of Illinois, Petitioner-Appellee, v. Charles Cutsinger, Respondent-Appellant).
    Second District
    No. 2—88—1262
    Opinion filed July 19, 1989.

      James B. Klein, of Guardianship & Advocacy Commission, of Chicago, and Guardianship & Advocacy Commission, of Elgin (William E. Coffin, of counsel), for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Charles Cutsinger, appeals from an order of the circuit court of Winnebago County finding respondent to be a person subject to involuntary admission (Ill. Rev. Stat. 1987, ch. 91V2, pars. 1 — 119, 3 — 809) and hospitalizing him in the Department of Mental Health and Developmental Disabilities (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 700 et seq.). Respondent contends on appeal that the trial court erred in finding him to be a person subject to involuntary admission. We agree and reverse.

The Mental Health and Developmental Disabilities Code (the Code) provides:

“ ‘Person subject to involuntary admission’ or ‘subject to involuntary admission’ means:
(1) A person who is mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future; or
(2) A person who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.” (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119.)

On October 18, 1988, Irene Hulick filed a petition for the involuntary admission of respondent. She alleged that respondent was mentally ill and because of his illness was both “reasonably expected to inflict serious physical harm upon himself *** or another in the near future” and “unable to provide for his *** basic physical needs so as to guard himself *** from serious harm.” Certificates from clinical social worker Karl W. Noltemeier and psychiatrist Grace M. Thundiyil were also filed on October 18, 1988. The certificates indicated that both were of the opinion that respondent was mentally ill and that because of his illness he was “reasonably expected to inflict serious physical harm upon himself *** or another in the near future” but did not indicate that either was of the opinion that because of his illness respondent was “unable to provide for his *** basic physical needs so as to guard himself *** from serious harm.”

On October 20, 1988, the court appointed psychiatrist Warren C. Lewis to examine respondent. Dr. Lewis’ certificate, filed October 24, 1988, indicated Dr. Lewis was of the opinion that respondent was mentally ill and that because of his illness he was “reasonably expected to inflict serious physical harm upon himself or another in the near future” but did not indicate that Dr. Lewis was of the opinion that because of respondent’s illness he was “unable to provide for his *** basic physical needs so as to guard himself *** from serious harm.”

A hearing on the petition was held on October 24, 1988. Five witnesses testified: Jacelyn Baney and Lynn Lawrence, who are two of respondent’s children; Gloria Sarver, who was a technician at Singer Mental Health Center (Singer); Irene Hulick, who was a mental health specialist at Singer; and Dr. Warren C. Lewis, who was a psychiatrist.

At the conclusion of this hearing, the court found:

“I am persuaded by Dr. Lewis’ testimony as to the fact that Mr. Cutsinger is a person who is mentally ill.
I place emphasis and a great deal of weight on these three specific instances of threatening and insultive behavior and also the several references to other episodes of threatening behavior.
I am also very troubled and worried about Mr. Cutsinger’s suicide attempt, which would have been successful if it hadn’t been for the arrival of his daughter.
I think all these things accumulate to show by clear and convincing evidence that Mr. Cutsinger is a person who, because of his illness, is reasonably expected to inflict serious physical harm upon himself or another in the near future, and I will find that he is subject to involuntary admission.”

The court entered a written order finding respondent subject to involuntary admission and ordering him hospitalized. It is from this order that respondent has appealed.

The issue raised by respondent is that the evidence was insufficient to support the court’s finding that respondent was subject to involuntary admission. This will, of course, necessitate a review of the relevant evidence. That review, however, may be limited by a recognition of two questions that are not issues on appeal and of the rules governing a sufficiency of the evidence claim on appeal of an order finding a person subject to involuntary admission.

The first question that is not an issue is whether respondent was mentally ill. (See Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119.) It was undisputed in the trial court and is undisputed on appeal that respondent was mentally ill, having bipolar disorder.

The second question that is not an issue is whether respondent “because of his illness [was] unable to provide for his physical needs so as to guard himself from serious harm.” (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(2).) This was alleged in Hulick’s petition and was testified to by Dr. Lewis at the hearing.

However, neither the certificates filed with the petition nor Dr. Lewis’s certificate filed the day of the hearing indicated that Noltemeier, Thundiyil, or Lewis was of the opinion that respondent “because of his *** illness [was] unable to provide for his *** basic physical needs so as to guard himself *** from serious harm.” (See Ill. Rev. Stat. 1987, ch. 91½, pars. 3 — 702, 3 — 703 (regarding examination of a respondent separately by a psychiatrist, and a physician or clinical psychologist or qualified examiner and regarding the filing of certificates by such persons in support of a petition for involuntary admission).) Moreover, the trial court did not find respondent was “unable to provide for his basic physical needs so as to guard himself from serious harm” (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(2)), but rather premised its finding that respondent was subject to involuntary admission upon his being a person “who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future” (see Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(1)).

We note that, on this record, the State does not argue that respondent was subject to involuntary admission because it was proven that respondent was unable to care for his basic physical needs but instead argues that the evidence established that respondent was reasonably expected to inflict serious physical harm upon himself or another in the near future. (See In re Cochran (1985), 139 Ill. App. 3d 198, 199-200, 487 N.E.2d 389, 390; Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119.) Thus, the propriety of the trial court’s finding that respondent was subject to involuntary admission depends upon whether the evidence was sufficient to establish that either (1) because of respondent’s illness, he was reasonably expected to inflict serious physical harm upon himself in the near fixture, or (2) because of respondent’s illness, he was reasonably expected to inflict serious physical harm upon another in the near future. (See Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(1).) Our review of the evidence then is properly limited to these subjects.

Our review of respondent’s claim that the evidence was insufficient to prove he was subject to involuntary admission is also conditioned by certain legal principles applicable to involuntary admissions. The Code provides:

“No respondent may be found subject to involuntary admission unless that finding has been established by clear and convincing evidence.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 808.)

As the appellate court recently said:

“In a proceeding on a petition for involuntary admission, the State is required to prove the necessary allegations of the petition by clear and convincing evidence. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) A factual basis for the medical opinion upon which the decision to commit is based must be judged by a similar standard. (People v. Sansone (1974), 18 Ill. App. 3d 315, 309 N.E.2d 733.) To meet its burden of proof the State must submit ‘explicit medical testimony’ that the respondent can be expected to be a serious danger to himself or someone else because of his mental illness. (In re Cochran (1985), 139 Ill. App. 3d 198, 200, 487 N.E.2d 389, 391.) Mental illness alone will not justify commitment. People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105.
The trial court’s decision following an involuntary admission hearing is given great deference and will not be set aside at the appellate level, even if the reviewing court, after applying the clear and convincing standard, would have ruled differently. (In re Mazzara (1985), 133 Ill. App. 3d 146, 478 N.E.2d 567.) The trial court is in the best position to determine the credibility of the testifying witnesses and weigh the evidence. Its determination should not be reversed unless it is manifestly erroneous. People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.” (In re Orr (1988), 176 Ill. App. 3d 498, 504-05, 531 N.E.2d 64, 69.)

So, the propriety of the trial court’s finding that respondent was subject to involuntary admission depends upon whether there was explicit medical testimony and clear and convincing evidence of the factual basis for the medical opinion either that, because of his illness, respondent was reasonably expected to inflict serious physical harm upon himself in the near future or that, because of his illness, respondent was reasonably expected to inflict serious physical harm upon another in the near future.

The only medical testimony in the case at bar was that of Dr. Lewis. With respect to his opinions and their factual bases regarding whether respondent would be reasonably expected to inflict serious physical harm upon himself or another in the near future because of his illness, Dr. Lewis testified:

“Q. [Assistant State’s Attorney] Is it a further opinion that because of his mental illness, he is reasonably expected to inflict serious physical harm upon himself or another in the near future?
A. [Dr. Lewis] I have such an opinion.
Q. What is your opinion[?]
A. That he is a danger to others by his threatening behavior.
Q. Okay. Do you have a further opinion that because of his illness, he is able or unable to provide for his basic needs so as to guard himself from serious harm?
A. I have such an opinion.
Q. What do you base that opinion on[?]
A. Since he has been in a situation recently where his needs were provided for, I am of the opinion that he is unable to handle himself independently. We have some evidence on that.”

Dr. Lewis thus did not explicitly testify that respondent, because of his illn.ess, was reasonably expected to inflict serious physical harm upon himself in the near future. (See Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(1).) The trial court’s finding that, because of his mental illness, respondent was reasonably expected to inflict serious physical harm upon himself in the near future was manifestly erroneous and the finding that respondent was subject to involuntary admission cannot be upheld on that basis.

Dr. Lewis did explicitly testify that he was of the opinion that, because of his illness, respondent was reasonably expected to inflict serious physical harm upon another in the near future. According to Dr. Lewis, defendant was “a danger to others by his threatening behavior.” Earlier in his testimony and on his certificate, Dr. Lewis noted the threatening behavior on which he based his opinion:

“He is alleged to have become violent and threatening toward the staff here.
On the 9th [of October 1988] he was swinging his fists at the staff.
On the 17th he was threatening to beat up residents, was disruptive on the ward.
He appeared to me to be suspicious and unpredictable.”

It is necessary to examine the evidence to determine whether it was manifestly erroneous to find by clear and convincing evidence that respondent had engaged in threatening behavior sufficient to support an opinion that respondent was “reasonably expected to inflict serious physical harm upon *** another in the near future.” Ill. Rev. Stat. 1987, ch. 91½, par. 1-119(1).

Respondent’s daughters’ testimony related primarily to other issues and did not in any way concern the incidents upon which Dr. Lewis based his opinion. Jacelyn Baney did testify that respondent, since his arrival at Singer, had made frequent annoying telephone calls to her. He threatened to sue her and other people and “he just gets outrageous on the phone.” Baney’s 14-year-old son, apparently based on these telephone calls, was afraid respondent would come to their home and hurt him. Baney further testified that respondent had never harmed her. Lynn Lawrence’s testimony did not touch on threatening behavior at all.

Two of the witnesses did testify about the facts upon which Dr. Lewis based his opinion. These witnesses were Gloria Sarver and Irene Hulick, both on staff at Singer.

Sarver, a technician, testified that at about 10 a.m. on October 23, 1988, respondent was threatening patients in the day room at Singer. She did not “remember exact words, but he tells ’em to do this and shut up and don’t smoke that or else.” The morning of October 17, 1988, respondent came up to the desk where Sarver was, and he was mad because they could not answer a request at that time. Sarver described this incident as follows:

“Q. [Assistant State’s Attorney] Okay. And what did he say[?]
A. [Sarver] ‘Cause I said, just a minute, and that makes him mad.
Q. Okay. And what did he say then[?]
A. Just a minute. Just a minute. You always say just a minute. I’m going to get ahold of [Congresswoman] Lynn Martin and sue you and get you off your lazy asses and — .”

Sarver did not recall any other incidents specifically: “[s]ome days he’s good, and then other days he’s in this threatening mood.” Sarver further testified that respondent had never harmed her or threatened her or anybody physically. He was verbally threatening and would sometimes physically go near other patients “to further intimidate 'em,” but he did not touch them “or threaten them with his hands or anything.”

Hulick, a mental health specialist, testified about an incident that occurred the morning of Monday, October 17, 1988. The preceding Friday, while respondent’s regular caseworker was gone and the supervisor was ill, Hulick had given respondent some money from his trust fund. On October 17 respondent came into the team office to ask that money be withdrawn from his trust fund. Respondent went on and on, saying that Hulick did not give him any money on Friday and he had to go without money all weekend. At first he was talking to the supervisor and Hulick was not saying anything. Then, all of a sudden, he got into the money and turned on Hulick, becoming very abusive and threatening. He threatened Hulick by yelling that she was “absolutely *** inadequate and basically an ass and a bitch” and that she did not give him any money on Friday. Hulick said that she had given him money on Friday and the more she tried to explain the louder he got “and it was kind of like I’ll sue you and I’m calling Lynn Martin and, you know, you’re going to be out of here, and on and on.” Hulick felt angry and finally dropped it because she was getting nowhere with the conversation. The supervisor got up and asked respondent to leave the office, telling him that he could not come in the office and be that abusive and threatening to people.

During this incident Hulick felt she was in danger of being hurt by respondent because “he turned on me and was very, very angry.” Also, there had been several other incidents the week before involving just Hulick and the money: “that’s been kind of an ongoing, continual harassment from him about his money.”

There was no evidence that respondent had become violent toward the staff at Singer, that he was swinging his fists at the staff on October 9, or that he was threatening to beat up residents on October 17, which were the most serious of the “facts” on which Dr. Lewis based his conclusion that respondent had engaged in threatening behavior which made him dangerous to others. In fact, the evidence tended to show that respondent never harmed anyone, did not physically touch others during his arguments with them, and did not physically threaten anyone or make threatening gestures with his hands. What he did was become very angry, become very loud, use abusive language, threaten to sue, threaten to call Lynn Martin, and in some instances advance toward the person with whom he was arguing.

Thus, certain important facts in the factual basis for Dr. Lewis's opinion that respondent was dangerous to others were not proven by clear and convincing evidence. The facts which were proven established that respondent was a very disagreeable and verbally abusive older gentleman who got into a lot of loud arguments, but were not sufficient to provide a factual basis for an opinion that respondent was “reasonably expected to inflict serious physical harm upon *** another in the near future” (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 119(1)). The trial court’s finding that, because of his mental illness, respondent was reasonably expected to inflict serious physical harm upon another in the near future was manifestly erroneous, and the finding that respondent was subject to involuntary admission cannot be upheld on that basis.

Accordingly, the trial court’s finding that respondent was subject to involuntary admission was manifestly erroneous, and the judgment of the circuit court is reversed.

Reversed.

WOODWARD and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    BLOOMINGDALE STATE BANK, Plaintiff and Counterdefendant-Appellee, v. WOODLAND SALES COMPANY, Defendant and Counterplaintiff-Appellant.
    Second District
    No. 2—88—1124
    Opinion filed July 20, 1989.

      Terence M. Heuel, of Esposito & Heuel, of Chicago, for appellant.
    Craig C. Westfall, of Nigro & Westfall, of Glendale Heights, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Woodland Sales Company (Woodland), appeals the order of the circuit court dismissing both counts of its amended counterclaim against plaintiff, Bloomingdale State Bank (Bank). The Bank originally brought an action against Woodland to recover on a loan secured by an automobile. Woodland counterclaimed alleging that the Bank improperly permitted Woodland’s former president to withdraw all the funds in Woodland’s corporate account at the Bank. At issue is whether the trial court properly granted the Bank’s motion for involuntary dismissal of the counterclaim after concluding that the Bank was following the directions of a party listed on the signature card when it transferred the funds. We affirm.

In 1984, when the note underlying the Bank’s action against Woodland was made, Roy E. Dahlin was the president and sole shareholder of Woodland. In August 1985, Dahlin signed a contract to sell all of Woodland’s corporate shares to the Gandalf Fund, Inc., an unrelated third party which was managed by Michael J. Kelly of Colorado. Gandalf Fund, Inc., became the sole shareholder of Woodland stock. Dahlin was retained as president and managed the day-to-day affairs of the business, including banking. The transaction and Dahlin’s continuing relationship with Woodland were subsequently communicated to the Bank’s president, Albert E. Radcliffe, during a chance meeting between Dahlin and Radcliffe in the Bank’s lobby in late 1985. During that meeting, Dahlin told Radcliffe that he was selling Woodland over a period of time but that he was remaining as its president and that nothing would change.

On September 25, 1985, a new signature card for the corporate checking account was established. The signature card provided, in pertinent part:

'T/We (Depositor) hereby establish with you the above account, and agree that this account shall be subject to the terms and conditions printed on both sides of this card and on the applicable by-laws, rules and regulations of BLOOMINGDALE STATE BANK, Bloomingdale, Illinois. Below is/are the duly authorized signatures which you will recognize in payment of funds or the transaction of the business on this account.
1. [/s/] Roy E. Dahlin Title President
2. [/s/] Michael Troutman Title Secretary
3. [Is/] Michael J. Kelly Title Treasurer”

The signature card provided that only one authorized signature was required and further contained the corporate secretary’s certification that:

“[0]n September 25, 1985, at a meeting of the Directors of the Corporation, a resolution was adopted authorizing those persons whose signatures appear hereon to transact business relating to the account and any other business with BLOOMINGDALE STATE BANK on behalf of the Corporation.”

On December 23, 1985, Dahlin attempted to rescind the stock sale agreement and to recover total control of Woodland. Dahlin went to the Bank and effectuated a transfer of all funds in the Woodland account to a new account entitled “Roy E. Dahlin for the benefit of Woodland.” Subsequently, Gandalf Fund, Inc., terminated Dahlin’s employment and brought a separate proceeding against him to recover the transferred funds. Woodland alleged that it suffered loss of business as a consequence of the transfer and incurred attorney fees to recover the transferred funds. These claims for lost business and attorney fees were brought against the Bank in Woodland’s counterclaim to the Bank’s suit to recover on its note. The initial counterclaim was based on a conspiracy theory, alleging that Dahlin and the Bank conspired to transfer the money. That counterclaim was dismissed, and Woodland filed an amended counterclaim in two counts. Count I alleged the Bank was negligent in allowing Dahlin to withdraw the funds. Count II alleged the Bank breached its fiduciary duty in doing so.

The Bank filed a motion to dismiss. The Bank’s motion was brought pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) as to count I, and pursuant to section 2 — 615 of the- Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) as to count II. The Bank supported its motion with Radcliffe’s discovery deposition. Radcliffe’s deposition revealed that he had known Dahlin in a lending relationship for 10 years. In late 1985, Dahlin informally met Radcliffe in the Bank’s lobby and advised him that Woodland was being sold over a period of time, but that Dahlin was to stay on as president and that nothing would change. The deposition also established that, on December 23, 1985, Dahlin came to the Bank without an appointment and saw Radcliffe. Dahlin told Radcliffe that the sale of Woodland had either fallen through or been rescinded and that he wanted to open another account. The conversation lasted 5 to 10 minutes. Radcliffe directed other Bank personnel to help Dahlin, and a new account was opened by “Dahlin for benefit of Woodland.” Exactly how the transfer of funds was made from the Woodland corporate account to the “Dahlin for benefit of Woodland” account is not clear from the record. It was not described, and no exhibits were offered. However, the Bank represented to the trial court that the transfer was done on Dahlin’s signature. Radcliffe’s deposition indicates that the Bank reviewed the corporate signature card and allowed the withdrawal of all the funds. The Bank did not call the other parties listed on the signature card, nor did it freeze the funds before opening the new account. Radcliffe had never met or talked with either of the other parties listed on the card. The account was thereafter monitored while outstanding corporate checks were presented for payment. Dahlin was the only signatory on the new account.

At the hearing on the Bank’s motion to dismiss, numerous references were made to Radcliffe’s deposition. The court continued the cause for a ruling and invited the parties to submit additional documentary evidence and case law. After the hearing resumed and prior to a ruling on the Bank’s motion, Woodland represented that it had retained an expert in banking who would testify that the Bank breached its fiduciary duty to Woodland. The court characterized the anticipated testimony as a legal conclusion. The court subsequently ruled that, based on the pleadings, deposition, and case law, the Bank’s motion was well taken. The court concluded that the Bank had a duty to first honor the direction of the parties to the signature card; therefore, Woodland’s assertion that the Bank’s actions constituted negligence and breach of a fiduciary duty must fail. The court invited Woodland to submit any new material in a motion for reconsideration and entered a written order granting the Bank’s motion dismissing both counts pursuant to section 2 — 619. Woodland did not object to the form of the order.

Woodland subsequently filed a motion for reconsideration and an affidavit prepared by its expert. The affidavit introduced was that of Dr. Owen K. Gregory, a professor of economics and management. Gregory reviewed Radcliffe’s deposition and other materials and made the following conclusions:

“4. A bank owes its customers duties beyond those specified in the bank’s signature card including a duty to exercise care in the handling of depository funds in its possession. In my opinion, under the circumstances of this cause, the failure of the bank to confer with Woodland Sales Co. prior to permitting Roy E. Dahlin to close Woodland’s account and transfer all the corporate funds into a new account under only his own personal control constituted not only a breach of that duty but also gave rise to liability on the part of the bank to Woodland for damage suffered by Woodland as a result of loss of control of those funds.
5. Furthermore, as a general matter, the deposit of funds into a banking institution by a customer results in the creation not only of a debtor-creditor relationship but of a fiduciary relationship as well.”

The court denied Woodland’s motion for reconsideration, noting that the affidavit presented no new facts and merely asserted a legal conclusion. Woodland now appeals from the dismissal of its amended counterclaim against the bank.

Initially, we note that Woodland has pleaded its action as a cause under negligence rather than under the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.). While the statutory provisions provide some guidance in cases of this nature, we need not look to those principles to reach a disposition in this cause since the issue raised relates solely to the court’s authority when ruling on a motion to dismiss. Similarly, we note that, while not raising the issue below, Woodland argues on appeal that the Bank is liable under section 9 of “An Act concerning liability for participation in breaches of fiduciary obligations” (Ill. Rev. Stat. 1987, ch. 17, par. 2009). The effect of this statute is to replace a negligence standard with a determination of whether the Bank had actual knowledge of a breach of fiduciary duty or knowledge of such facts that its action of receiving the deposit amounts to bad faith. (Ill. Rev. Stat. 1987, ch. 17, par. 2009.) Since Woodland did not plead this statute in the court below, we consider it waived on appeal. See IMM Acceptance Corp. v. First National Bank & Trust Co. (1986), 148 Ill. App. 3d 949, 956; Printpack, Inc. v. Container Technologies, Inc. (1984), 124 Ill. App. 3d 568, 575.

Woodland contends that the trial court erred in dismissing its amended counterclaim since Woodland pleaded a prima facie case in negligence and the Bank’s motion to dismiss admitted all well-pleaded facts as true. Neither party has adequately briefed the proper scope of review on a motion to dismiss at either the trial or appellate level. Woodland merely asserts that the court exceeded its authority in making findings of fact and the cause should not have been dismissed under section 2 — 619 because it pleaded a prima facie case. We disagree.

The purpose of section 2 — 619 is to provide a means to dispose of issues of law or of easily proved issues of fact, with a reservation of a jury trial as to disputed questions of fact. (Inland Real Estate Corp. v. Lyons Savings & Loan (1987), 153 Ill. App. 3d 848, 853-54; see Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703.) In ruling on a motion to dismiss brought pursuant to section 2 — 619, the trial court may consider the pleadings, affidavits, and deposition evidence. (See Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill. App. 3d 97, 104; Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 914-15.) A motion to dismiss should not be allowed if material facts are controverted and where the court must weigh the evidence. See Marvel Engineering Co. v. Matson, Driscoll & D’Amico (1986), 150 Ill. App. 3d 787, 796.

Section 2 — 619 provides, in pertinent part:

“(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds.
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.
(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion.” (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 619(a)(9), (c).)

The term “affirmative matter” as used in section 2 — 619(a)(9) has been defined as a type of defense that either negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. Consumer Electric Co., 149 Ill. App. 3d at 703.

In the instant action, the Bank did not seek dismissal on the ground that it was not negligent. Rather, in filing its motion under section 2 — 619, the Bank alleged that the signature card provisions barred a claim of negligence. In ruling on the motion, the trial court characterized the motion to dismiss under section 2 — 619 as similar to a motion for summary judgment. Ordinarily, it is not permissible to transform a motion to dismiss into a motion for summary judgment. (See Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 642.) However, in this case it appears that the court made a summary determination of a bar to the negligence claim and did not make a summary determination of the negligence claim itself. Stated otherwise, section 2 — 619 requires a defendant to prove with sworn documents an affirmative matter which bars a claim. (See Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(9).) The court must then make factual determinations as to that matter based on those documents. The record shows that the trial court dismissed the counterclaim of negligence after reviewing the pleadings and Radcliffe’s deposition and concluding that the Bank complied with the contract and therefore could not be held negligent for something Woodland had authorized it to do. Thus, the court was not entering summary judgment, but finding that the Bank sustained its burden of establishing a bar to the claim of negligence. The same analysis would apply to the claim of breach of fiduciary duty.

Woodland nonetheless argues that the circuit court gave no weight to the affidavit of its expert witness and there was a dispute as to material fact. That affidavit did not introduce any new evidence or facts, but only purported to state that the Bank breached the standard of care of the industry based on the other facts which were presented before the court. The court determined that the affidavit contained legal conclusions only and did not weigh it as evidence. Nothing in this record compels us to conclude that the court exceeded its authority in making that determination.

For these reasons, the order of the circuit court is affirmed.

Affirmed.

LINDBERG and DUNN, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re PATERNITY OF ERIC HUBBARD (Linda Thompson, Petitioner-Appellant, v. Melvin Yancey, Respondent-Appellee).
    Second District
    No. 2—88—1081
    Opinion filed July 20, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (Miriam C. Goldsmith, Assistant State’s Attorney, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, Linda Thompson, appeals from an order of the trial court denying her petition for retroactive child support brought against respondent, Melvin Yancey. On appeal, petitioner contends that the trial court’s denial of her petition for retroactive child support from the date upon which she filed a paternity action was contrary to prior case law, the legislative intent underlying the Paternity Act of 1957 (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.), and public policy.

Before setting forth the facts relevant to the disposition of this appeal, we note that respondent has not filed a brief in this case. Nevertheless, we elect to review the issues raised in this appeal pursuant to the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33.

Eric Hubbard, petitioner’s son, was born on August 28, 1978. On July 31, 1986, petitioner filed a paternity suit against respondent which sought, among other things, current child support and support for a period prior to the commencement of the lawsuit. On November 21, 1986, respondent filed a motion to dismiss claiming that petitioner’s action was barred by the statute of limitations and laches. On January 6, 1987, respondent filed a supplemental motion to dismiss asserting that petitioner’s cause should be dismissed because she failed to vacate a court order dismissing her cause for want of prosecution. Respondent further claimed that petitioner’s cause of action was barred by the five-year limitation period of section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205). Respondent’s motions to dismiss were denied.

After respondent submitted to a court-ordered blood test, the cause was set for trial. On September 22, 1987, the trial court found that respondent was the natural father of Eric. On September 20, 1988, the trial court conducted a hearing to determine the issues of current and retroactive child support. The report of proceedings from that hearing have not been made part of the record on appeal. At the conclusion of that hearing, the trial court ordered respondent to pay child support in the amount of $75 per week beginning on September 30, 1988. The trial court determined that retroactive support was improper based on People ex rel. Causley v. Jackson (1988), 171 Ill. App. 3d 464. From the denial of her request for retroactive child support, petitioner has timely filed the instant appeal.

Initially, we note that the statutory rights and remedies available to petitioner are those which were in effect at the time of Eric’s birth. (See DePhillips v. DePhillips (1966), 35 Ill. 2d 154, 156-57; Causley, 171 Ill. App. 3d at 467.) Because Eric was born in 1978, the applicable statute is the Paternity Act of 1957 (1957 Act) (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.). Hence, the sole issue raised in this appeal is whether the 1957 Act provides for an award of retroactive child support.

To resolve the issue raised in this appeal, we turn to section 15 of the Illinois Parentage Act of 1984 (1984 Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2515). In the relevant part, section 15 states:

“If existence of the parent and child relationship is declared, or paternity or duty of support has been established under this Act or under prior law or under the law of any other jurisdiction, the judgment rendered thereunder may be enforced in the same or other proceedings by any party or any person or agency that has furnished or may furnish financial assistance or services to the child. Sections lh, 16 and 20 of this Act shall also be applicable with respect to entry, modification and enforcement of any support judgment entered under provisions of the ‘Paternity Act,’ approved July 5, 1957, as amended, repealed July 1, 1985.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 2515.)

Section 14(b) of the 1984 Act states:

“The Court may order any child support payments to be made for a period prior to the commencement of the action, including payments to reimburse any public agency for assistance granted on behalf of the child.” Ill. Rev. Stat. 1987, ch. 40, par. 2514(b).

When these sections are read together, it is clear that the legislature intended to make section 14(b) of the 1984 Act applicable to any support judgment entered pursuant to the 1957 Act. Section 15 of the 1984 Act does not exclude children, like petitioner’s son, who were born prior to the passage of the 1984 Act from obtaining retroactive support under the 1957 Act. Where the statutory language is clear and unambiguous, our only function is to enforce the law as enacted by the legislature. (Krall v. Secretary of State (1988), 168 Ill. App. 3d 478, 483.) The record indicates that, although petitioner filed her paternity suit after the enactment of the 1984 Act, the trial court denied her right to seek retroactive support under the 1957 Act. Because petitioner was entitled to seek retroactive support under the 1957 Act, the trial court’s denial of her request was erroneous.

In reaching our conclusion here, we note that in People ex rel. Causley v. Jackson (1988), 171 Ill. App. 3d 464, the Appellate Court for the Fourth District reached an opposite result. In Causley, the plaintiff’s son was bom on July 19, 1982, and she filed a paternity suit against the defendant on July 1, 1986. After a trial had been conducted to adjudicate paternity, the trial court entered an order granting the plaintiff retroactive support effective August 19, 1982. The trial court found that both the 1984 Act and the 1957 Act authorized an award for retroactive support. Causley, 171 Ill. App. 3d at 465-66.

In reversing the trial court’s decision, the Causley court determined that under Di Bella v. Cuccio (1959), 15 Ill. 2d 580, the Act to be applied was the one in effect at the time of the child’s birth, not the one (if different) in effect at the time the action was filed. The court there found that the 1957 Act contained no express provision for the awarding of retroactive support and, therefore, reversed the court’s award of retroactive support.

Although the opinion in Causley discussed and relied on the savings clause of the 1984 Act (Ill. Rev. Stat. 1985, ch. 40, par. 2525) as further evidence that rights and liabilities which have occurred under the 1957 Act are to be governed by that act, the opinion does not discuss or even refer to sections 15 or 14(b), which we read to permit a party to seek retroactive support even though the party’s action is governed by the 1957 Act.

Deciding this case as we do, we need not determine whether the 1957 Act provided, either expressly or impliedly, a right to retroactive support. No Illinois case has decided whether retroactive support was an available remedy under the 1957 Act. (Causley merely stated that the 1957 Act contained no express provision for retroactive support.) We note, however, that in at least one case retroactive support was upheld under the 1957 Act without the court discussing whether such support was proper. See People ex rel. Perz v. Schneemilch (1967), 82 Ill. App. 2d 371.

We find therefore that the trial court erred in denying the petitioner’s request for retroactive support and remand the cause for further proceedings.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and LINDBERG, JJ., concur.


author: JUSTICE REINHARD

text:
    McHENRY SAVINGS BANK, Plaintiff-Appellant, v. PIONEER NATIONAL TITLE INSURANCE COMPANY, Defendant-Appellee (St. Paul Fire and Marine Insurance, Defendant).
    Second District
    No. 2—88—0406
    Opinion filed March 31, 1989.
    Rehearing denied April 27, 1989.

      Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, and Frederick C. Cappetta, of Cappetta & Shadle, of Oakbrook Terrace, for appellant.
    Nancy G. Lischer, D. Kendall Griffith, and William J. Holloway, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, McHenry Savings Bank, filed a two-count complaint in the circuit court of McHenry County against Pioneer National Title Insurance Company (defendant) and St. Paul Fire and Marine Insurance Company (St. Paul) seeking money damages under a mortgage title insurance policy issued by defendant and pursuant to a bond issued by St. Paul. Plaintiff’s action against St. Paul was subsequently dismissed with prejudice upon settlement, and St. Paul is not a party to this appeal. The circuit court granted defendant’s motion for summary judgment.

Plaintiff raises two issues on appeal: (1) whether there is a material issue of fact as to whether plaintiff suffered a loss as defined in the policy, thereby precluding summary judgment; and (2) whether the trial court misconstrued the provisions of the title insurance policy.

The following facts are derived from the pleadings and documents attached thereto. Defendant issued a title insurance policy to plaintiff as mortgagee of a mortgage executed by Seymour and Tillie Keer (the Keers). The mortgage secured the sum of $56,000. The mortgage was later deemed to be fraudulent because the Keers did not sign it or receive title to the property, and the owner of the property received the loan proceeds as the purchase price of the property but still held title and possession of the property.

As a result of the defective title, defendant filed suit on plaintiff’s behalf seeking to foreclose on the mortgage allegedly executed by the Keers or, alternatively, to declare an equitable lien on the property in favor of plaintiff. An equitable lien was established in favor of plaintiff in the amount of $58,796.73 plus costs. Although the record is incomplete regarding this separate litigation, it does contain a “Judgment of Foreclosure and Sale” which indicates that an equitable mortgage was recognized on behalf of plaintiff and further determined that plaintiff had an equitable lien in the amount of $59,019.97, which equalled the unpaid principal balance of $58,796.73 plus costs. This order further gives plaintiff the right to recover from the proceeds of a foreclosure sale an amount equal to its equitable lien. We note at this point that while it appears that the trial court in its judgment of foreclosure and sale and plaintiff in its appellate brief both use the terms “equitable lien” and “equitable mortgage” somewhat interchangeably, they are distinct concepts (see Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 930, 464 N.E.2d 1226), and, as the parties do not dispute this point, we will use the term “equitable mortgage.” Apparently, as a result of this separate litigation, plaintiff received fee simple title to the property. Plaintiff then filed this suit against defendant and St. Paul.

Suing under the title insurance policy, plaintiff seeks $100,000 in damages against defendant and alleges that defendant refused to honor its claim under the policy. Plaintiff’s alleged loss includes interest on the mortgage, court costs, attorney fees, and costs incurred for maintenance of the property.

Defendant filed a motion for summary judgment, contending that plaintiff had not sustained any actual loss within the meaning of paragraph 6 of defendant’s title insurance policy, that plaintiff’s claim was barred by paragraph 7 of the policy, and that plaintiff’s coverage was limited by paragraph 11 of the policy, which provides that any recovery is limited to the restrictions of the policy.

In its reply to the motion for summary judgment, plaintiff argued that there was a genuine issue of material fact over the meaning of the insurance agreement and the amount of damages plaintiff had incurred. Plaintiff also contended that the loss it suffered was covered under the policy because the fraud in the mortgage documents caused a defect in the title. This defect resulted in plaintiff having only an equitable lien, thereby losing its right to collect interest on the mortgage. Plaintiff argued that merely limiting it to the amounts recovered in the foreclosure action did not make it whole. The court granted defendant’s motion for summary judgment, finding in a written order that defendant had fulfilled its contractual obligations by curing the defects in the title and securing plaintiff's equitable lien on the property.

Plaintiff first contends that summary judgment was improperly granted because there exists a disputed question of material fact. Specifically, plaintiff argues that it alleged a “loss” in its complaint which defendant denied in its answer and, therefore, there is a question of material fact regarding whether plaintiff suffered an actual loss in this case thereby precluding summary judgment. Alternatively, plaintiff maintains that the trial court misconstrued the provision of the policy to the extent that it found that defendant fulfilled its obligation by securing an equitable lien on behalf of plaintiff. In this regard, plaintiff argues that defendant insured not simply the title to the property, but rather, insured against defects in the mortgage lien and plaintiff’s ability to secure the underlying debt. Thus, it asserts that it should be able to recover under the policy for the lost opportunity to collect interest under its original mortgage because it was ultimately forced to foreclose on the equitable lien.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188.) A motion for summary judgment can be an aid in the expeditious disposition of a lawsuit, but it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Furthermore, the interpretation or construction of an insurance policy is one of law which is uniquely within the province of the court rather than the fact finder. (United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 342-43, 427 N.E.2d 127.) Where the facts are clear and undisputed, it is the responsibility of the court to rule on the legal effect of these facts and determine whether these facts fall within the provisions of the insurance policy. United Farm Bureau Mutual Insurance Co., 86 Ill. 2d at 342-43, 427 N.E.2d at 129.

We find plaintiff’s first contention on the basis advanced to be without merit. Although plaintiff alleged a loss which defendant denied, such a loss necessarily would have to be a loss as covered by the policy in order for plaintiff to recover. The question of whether plaintiff has suffered a loss as defined in the policy is not a question of fact, but rather, a matter of interpretation of the policy. (United Farm Bureau Mutual Insurance Co., 86 Ill. 2d at 342-43, 427 N.E.2d at 129.) Defendant’s denial of the allegation does create a question of fact. Although as later discussed there is a factual dispute as to the extent of the loss, whether plaintiff has suffered a loss covered by the policy is a question of law. Thus, summary judgment is not precluded on that basis, and the remaining question is whether defendant was entitled to judgment as a matter of law.

We address next whether plaintiff was barred from recovering under the policy because of a limitation of liability clause in the policy. Paragraph 7 of the “Conditions and Stipulations” portion of the policy states, in pertinent part:

“7. Limitation of Liability
No claim shall arise or be maintainable under this policy
(a) if the Company, after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, or the lien of the insured mortgage, as insured, within a reasonable time after receipt of such notice ***.” (Emphasis added.)

To properly apply the language of subparagraph 7(a), it is necessary to first determine the nature of the interest insured by defendant in this case. Plaintiff contends that it was insured for defects in the lien created by the mortgage. Defendant maintains that it insured only the title. The language of the policy is instructive on this point.

The policy states that, subject to certain exclusions, exceptions, conditions and stipulations, defendant insures against loss sustained by the insured by reason of the following:

“1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein;

2. Any defect in or lien or encumbrance on such title;

3. Lack of a right of access to and from the land;

4. Unmarketability of such title;

. 5. The invalidity or unenforceability of the lien of the insured mortgage upon said estate or interest except to the extent that such invalidity or unenforceability, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon

a. usury, or

b. any consumer credit protection or truth in lending law * * * n

In this case, although defendant argues otherwise, it is clear that defendant insured, inter alia, against the invalidity or unenforceability of the lien of the insured mortgage as set forth in paragraph 5 above. Notwithstanding that the policy under paragraph 1 insured where the title was vested otherwise than as stated in schedule A (the Keers), the policy also covered loss or damage resulting from the invalidity or unenforceability of the mortgage lien. See generally Citicorp Savings v. Stewart Title Guaranty Co. (7th Cir. 1988), 840 F.2d 526, 529-30; Blackhawk Production Credit Association v. Chicago Title Insurance Co. (1988), 144 Wis. 2d 68, 78, 423 N.W.2d 521, 525; Bank of Miami Beach v. Lawyers’ Title Guaranty Fund (Fla. App. 1968), 214 So. 2d 95, 97.

Subparagraph 7(a) of the “Conditions and Stipulations” states, however, that defendant "will not be liable under the policy if it cures any defects in the title, establishes the title, or establishes the lien of the insured mortgage, as insured. As a result of the separate litigation, defendant established an equitable mortgage in favor of plaintiff which entitled it to recover the amount of funds disbursed to the Keers plus costs. The equitable mortgage as established in the judgment below did not, however, provide plaintiff with any interest due it on its loan to the Keers. Had plaintiff’s mortgage been valid and had it foreclosed on such mortgage, it would have been entitled to interest due it on the loan. Defendant’s establishment of an equitable mortgage in favor of plaintiff did not give plaintiff a valid and enforceable lien as was insured by paragraph 5 of the policy, and, therefore, defendant did not effectively limit its liability pursuant to subparagraph 7(a). (Cf. Citicorp Savings v. Stewart Title Guaranty Co. (7th Cir. 1988), 840 F.2d 526 (tendering of deed by insurer did not establish lien of the insured mortgage within meaning of same limitation clause).) To interpret subparagraph 7(a) otherwise would be to render the language as to the mortgage lien superfluous. Moreover, such an interpretation would allow defendant to escape liability under its policy even though it expressly insured against the invalidity and unenforceability of the mortgage lien.

Defendant alternatively argues that plaintiff is not entitled to recover under the policy for its lost interest because, although the policy insured the interest secured by the mortgage, it only provided insurance up to the value of the mortgaged property. Thus, defendant contends, because plaintiff received the value of the mortgaged property pursuant to the foreclosure, it is not entitled to recover under the policy.

The policy limit set forth in schedule A and applicable to plaintiff is $56,000. Paragraph 6 of the “Conditions and Stipulations” portion of the policy states in pertinent part:

“6. Determination and Payment of Loss
(a) The liability of the Company under this policy shall in no case exceed the least of:
(i) the actual loss of the insured claimant; or
(ii) the amount of insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in paragraph 2 (a) hereof, or
(iii) the amount of the indebtedness secured by the insured mortgage as determined under paragraph 8 hereof, at the time the loss or damage insured against hereunder occurs, together with interest thereon.”

Pursuant to paragraph 6 immediately above, plaintiff is potentially entitled to recover the least amount of either its actual loss, or the amount of insurance stated in schedule A, or the amount of indebtedness secured by the insured mortgage as determined under paragraph 8 plus any interest due thereon. Based on this record, however, it is impossible to determine the extent of plaintiff’s actual loss. While plaintiff has a foreclosure judgment for $59,019.97, plaintiff has received only fee simple title to the mortgaged property. The record does not indicate whether the property has been sold or what the present value of the property is. Without such factual determinations it is impossible to ascertain what actual loss, if any, plaintiff has suffered as a result of the invalid mortgage lien, and, therefore it cannot be determined what the extent of defendant’s liability is under paragraph 6. Thus, as a question of material fact exists it would be improper to grant summary judgment in favor of defendant based on the language in paragraph 6.

The judgment of the circuit court is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
      In re BARBARA FRANKLIN, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appelee, v. Barbara Franklin, Respondent-Appellant).
    Fourth District
    No. 4—88—0698
    Opinion filed June 28, 1989.

      William D. Reid, of Elmore & Reid, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office', of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent Barbara Franklin appeals an order of the circuit court finding her to be a person subject to involuntary admission and ordering her hospitalized in the Department of Mental Health and Developmental Disabilities (Department). Respondent contends the requirements set forth in the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 100 et seq.) were not met and the evidence was not clear and convincing that respondent is dangerous to herself or others and unable to provide for her own needs. We agree the requirements of the Code have not been met and reverse.

Respondent, 35 years old, was initially hospitalized at Andrew McFarland Mental Health Center (McFarland) in Springfield under a court order issued on June 17, 1988, pursuant to article VII of chapter 3 of the Code. (Ill. Rev. Stat. 1987, ch. 91½, pars. 3 — 700 through 3 — 706.) Respondent did not appeal from the June 17 order. On August 8, 1988, a second petition, signed by Chuck Eldridge, mental health specialist, was filed as required by section 3 — 813 of the Code (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 813) to continue respondent’s hospitalization and was accompanied by a certificate of a psychiatrist (Ill. Rev. Stat. 1987, ch. 91½, pars. 3 — 702, 3 — 703), which stated respondent is mentally ill and is reasonably expected to inflict serious physical harm upon herself or upon another person. The record includes a second certificate, an examination completed August 11, 1988, pursuant to section 3 — 703, though it is unclear the date on which the certificate was filed in the court.

The second petition was served on respondent by leaving a copy with Chuck Eldridge, mental health specialist at McFarland, on August 5, 1988. Although not important to a determination of this appeal, it is noted by both the respondent and this court that the certificate of service is notarized July 25, 1988, some 10 days before service.

A hearing on the second petition was set for August 12, 1988. The order setting the hearing also appointed counsel for the respondent and directed that notice of the hearing be sent to the respondent at McFarland. The hearing was continued, without objection by respondent, to August 19, 1988.

Following a hearing on August 19, the court found respondent to be a person subject to involuntary admission and ordered respondent’s further hospitalization with the Department.

Respondent argues that the record does not establish that she received a copy of the second petition. Specifically, respondent points to the proof of service which reflects a notary date approximately two weeks before the petition was filed. Respondent directs us to section 3 — 611 of the Code, which governs emergency admissions by certification. The State urges this issue is waived because respondent did not raise the issue at trial.

Section 3 — 813 of the Code provides the initial order for hospitalization should not exceed 60 days. (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 813.) It also directs that prior to the expiration of the initial order, a new petition and two new certificates may be filed to extend the period for an additional period of 60 days and thereafter, for additional periods of 180 days after compliance with the procedure set forth in the Code. (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 813.) Section 3 — 813(b) specifically states:

. “The provisions of this chapter which apply whenever an initial order is sought shall apply whenever an additional period of treatment is sought.” Ill. Rev. Stat. 1987, ch. 91½, par. 3— 813(b).

The respondent was initially admitted to McFarland by court order. Article VII, not article VI, of chapter 3 of the Code governs this cause. The provisions pertinent to issues before this court are set forth in sections 3 — 702, 3 — 704, 3 — 705, and 3 — 706. Section 3 — 702(b) states in part:

“Upon receipt of the petition either with or without a certificate, if the court finds the documents are in order, it may make such orders pursuant to Section 3 — 703 as are necessary to provide for examination of the respondent. If the petition is not accompanied by 2 certificates executed pursuant to Section 3— 703, the court may order the respondent to present himself for examination at a time and place designated by the court.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 702(b).)

Section 3 — 704(a) states in part:

“No person may be detained for examination under this Section for more than 24 hours.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 704(a).)

Section 3 — 705 states:

“At least 36 hours before the time of the examination fixed by the court, a copy of the petition, the order for examination, and a statement of rights as provided in Section 3 — 205 shall be personally delivered to the person.” (Ill. Rev. Stat. 1987, ch. 91½, par. 3-705.)

Section 3 — 706 states:

“The court shall direct that notice of the time and place of the hearing be served upon the respondent.” Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 706.

We first address the State’s waiver argument. The State points out that the respondent appeared at the August 19 hearing and yet did not object to the defects in the petition. This court has previously considered and rejected this argument in a similar context. (In re King (1986), 148 Ill. App. 3d 741, 745, 499 N.E.2d 1032, 1035.) In that case, we recognized that the failure to follow statutory procedures, clearly evident on the face of the record, is reviewable in this court under a doctrine similar to the plain error doctrine. Thus, we will address the merits of the respondent’s claim.

In mental health cases, strict compliance with statutory provisions is compelling, as liberty interests are involved. (In re Satterlee (1986), 148 Ill. App. 3d 84, 499 N.E.2d 101.) This court has previously held that noncompliance with statutory provisions of the Code render a judgment entered in such a cause erroneous and of no effect. (In re Price (1987), 152 Ill. App. 3d 960, 505 N.E.2d 37; In re Whittenberg (1986), 143 Ill. App. 3d 836, 493 N.E.2d 662.) While not argued by the respondent, there is no court order pursuant to section 3 — 702 for an examination of the respondent after the second petition and one physician’s certificate were filed on August 8. While the second examination of the respondent was conducted on August 11 at McFarland, it occurred three days after the second petition was filed. Section 3— 704, requiring an examination for a person who is detained to be completed within 24 hours, was not complied with; section 3 — 705, requiring at least 36 hours’ notice before the time of the examination fixed by the court, was not complied with; and a copy of the petition, the order for examination, and statement of rights was not personally delivered to the respondent. Equally important is the record, which shows the petition signed by Chuck Eldridge, mental health specialist, and the return showing abode service upon respondent by leaving a copy at her place of inpatient residence — with Chuck Eldridge. This record hardly supports a primary purpose of the Code, to protect the rights of persons such as Barbara Franklin. Not only was there substitute service, but service was made on the petition signer. Additionally, section 3 — 705 does not authorize substitute service.

Based on our conclusion that the circuit court’s order must be reversed on procedural grounds, we need not address respondent’s issues as to the lack of evidence to support the order.

For the foregoing reasons, the order of the circuit court involuntarily admitting the respondent is reversed.

Reversed.

LUND and SPITZ, JJ., concur.


author: JUSTICE GREEN

text:
    OSCAR DAVIS et al., Plaintiffs-Appellees, v. MARVIN N. SPRAGUE, Defendant-Appellant (Theodis Lewis, Contemnor-Appellant).
    Fourth District
    No. 4—88—0809
    Opinion filed July 13, 1989.
    Rehearing denied August 18, 1989.

      Theodis Lewis, of Springfield, for appellants.
    Richard F. Scholz, of Quincy, and Donald M. Craven, of Springfield, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Both defendant Marvin N. Sprague and his attorney Theodis Lewis appeal from an order of the circuit court of Adams County entered September 30, 1988, in which the court in part (1) ordered defendant to pay plaintiffs’ attorney fees and court costs in the total amount of $5,598.75 and (2) held Lewis in contempt for his failure to appear at a prior court hearing. They contend the court erred in making each of those decisions. We disagree and, therefore, affirm.

This case has a long and detailed history. It initially began on May 14, 1984, when plaintiffs Oscar and Catherine Davis petitioned the court to obtain custody of their daughter’s minor child. They subsequently sought a finding from the court that defendant was the father of that child and an order requiring him to pay child support. The court awarded plaintiffs custody of the child and entered judgment on a jury verdict finding defendant to be the child’s father.

The court granted plaintiffs temporary relief on March 27, 1986, when it ordered defendant to pay temporary child support pending a final disposition of the matter. In the interim, the court held defendant in contempt because he was in arrearage in paying that child support. The court entered its final order on October 26, 1987, in which it ordered defendant to pay child support and arrearages, other expenses, and plaintiffs’ attorney fees in the amount of $7,000.

Soon thereafter, the court found defendant in contempt for his failure to appear at a previously scheduled court hearing and to remain current in the child support payments previously ordered by the court. It again found him in contempt on March 23, 1988, for his failure to appear at another hearing.

On May 1, 1988, attorney for plaintiffs filed a petition asking the court to order defendant to pay the additional attorney fees incurred since October 26, 1987. In his petition the attorney stated he had “performed regular and continued service for [plaintiffs] *** in an attempt to keep child support *** current, collect the extraordinary expenses allowed by the Court ***, to collect the arrearage and collect attorney fees; in the course thereof, *** the Defendant herein ha[d] done everything possible to evade payment, delay payment and obfuscate the entire proceedings. *** [T]he conduct of the Defendant reflected] an attitude of avoidance of any obligation of support, avoidance of the orders of the Court and efforts to escape the obligations imposed by the Court.” (Emphasis added.)

As explained in more detail later, both defendant and his attorney failed to appear at a hearing set to review all pending matters. Plaintiffs moved for the imposition of sanctions, including an “award of attorney fees for the total and complete inconvenience and delay caused” to plaintiffs. At a subsequent hearing held July 19, 1988, attorney for defendant presented the court with an objection to the petition for attorney fees. In the pleading, he alleged the rates charged by the attorney were unreasonable, the attorney had already received a large award of fees, and defendant was unable to pay.

In its order of September 30, 1988, from which defendant has appealed, the court concluded defendant’s objections were not timely filed, and it took the statements contained in the petition as true. The court decided the charges set forth in the petition were reasonable and ordered defendant to pay the fees and costs in the total amount of $5,598.75.

On appeal, defendant contends this award was improper because there was no showing of plaintiffs’ inability, and defendant’s ability, to pay it nor was any evidence presented with regard to the reasonableness of the requested fees.

Section 17 of the Illinois Parentage Act of 1984 (Act) states that “the court may order reasonable fees of counsel *** and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times determined by the court.” Ill. Rev. Stat. 1987, ch. 40, par. 2517.

Once a finding of paternity has been made under the Act, its provisions allow a court to enter judgment establishing a duty of support and to enforce any judgment rendered. (Ill. Rev. Stat. 1987, ch. 40, par. 2514.) The Act further provides that any “[fjailure to comply with any order of the court shall be punishable as contempt as in other cases of failure to comply under the ‘Illinois Marriage and Dissolution of Marriage Act.’ ” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 2515(b).

Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act provides as follows:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 508(b).)

Under this provision, a court need not determine the ability or inability of a party to pay the requested fees. Rather, a court shall award reasonable attorney fees incurred by the custodial parents during child support enforcement proceedings if the court finds the noncustodial parent’s failure to pay was without cause or justification. (In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 507 N.E.2d 912.) The Illinois Parentage Act of 1984 contains no express provision linking the award of attorney fees incurred in enforcing support orders to similar provisions of the Illinois Marriage and Dissolution of Marriage Act as is the case with contempt proceedings to enforce support orders. However, because of the close relationship between the two acts, we deem it appropriate to hold that the attorney fees awarded under section 17 of the Act are to be awarded under the same standard as those awarded under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act.

We recognize the court in the instant case treated the petition for attorney fees as defaulted due to defendant’s failure to file a timely objection to it. However, the record is replete with inordinate delays and orders finding defendant in contempt for his failure to remain current in his child support payments and would clearly support an implicit finding by the court that defendant’s repeated failures to comply with the court’s order were “without cause or justification.” Furthermore, plaintiffs’ petition for attorney fees sets forth the fees requested in some detail, and the court determined they were reasonable. For these reasons, we cannot conclude the court erred in ordering defendant to pay plaintiffs’ attorney fees.

Defendant’s attorney, Theodis Lewis, also appeals the court’s decision to hold him in contempt for his failure to appear at a court hearing scheduled for July 7, 1988. Initially we note a question arises as to whether Lewis has filed a proper notice of appeal from that order of contempt because the notice indicates he appeals only in his capacity as counsel for defendant. However, we will treat the notice as in proper form since he is appealing from the same order as defendant and his name appears on the notice of appeal.

Both parties agree, and the record reflects, that, on May 18, 1988, the cause was continued to a hearing scheduled for May 30, 1988. At that time, the judge was unable to appear because of a schedule conflict. The court entered an order on May 31, 1988, which stated that “[b]y agreement of counsel, [the] cause [is] continued to June 21, 1988 at 9:30 A.M.” Lewis claims he did not take part in this agreement, so he sent a letter to the judge indicating the dates he was available for a hearing. He states he informed the judge he was unavailable in July except for the latter part of the month.

On June 30, 1988, the court entered another order setting the hearing for July 7, 1988. Notice was sent to both attorney for plaintiffs and Lewis. Lewis claims he did not receive the notice until late on July 5,. 1988, and immediately sent a document entitled “Statement of Unavailability” to the court. The document was filed with the court on the same date as the scheduled hearing, and the court apparently was unaware of its existence until it examined the file during the course of the hearing when neither defendant nor his attorney appeared. Attorney for plaintiffs maintain they did not receive .the document until after the hearing had concluded. Neither the court nor opposing counsel received a telephone call from Lewis, nor did Lewis phone his own client concerning the hearing.

On the same date as the hearing, the court entered a rule against Lewis and defendant to show-cause why they should not be held in contempt for their failure to appear at the scheduled hearing. As noted previously, plaintiffs also filed a motion for sanctions against defendant. Attorney for defendant responded by reciting the chain of events above-mentioned. The transcript of the hearing held July 19, 1988, shows no evidence presented by Lewis to substantiate his claims. The court subsequently found Lewis in contempt and assessed a $50 fine against him.

Lewis now contends the court erred in holding him in contempt because the facts do not support a finding that his conduct was wilful or that it was calculated to embarrass, hinder, or obstruct the court in its administration of justice, derogate from its authority or dignity, or bring administration of law into disrepute. However, facts which indicate an attorney failed to appear in court to represent his client without filing an affidavit for a continuance or informing the court or his client of his intention to be absent is sufficient to justify a conviction for contempt of court.

In People v. Adam (1973), 15 Ill. App. 3d 669, 304 N.E.2d 711, an attorney failed to appear in court on behalf of his client. The cause had been continued by him numerous times in the past, and he had not notified the court that he would be absent prior to the start of trial. The court issued a rule to show cause why he should not be held in contempt of court, and Adams responded he had been “ ‘otherwise engaged’ ” on the date in question. There, like here, the contemnor failed to present any evidence to defend the contempt charges against him. The court then held him in contempt and imposed a fine. In upholding the contempt conviction, the appellate court noted it had examined the record and had found “no excuse or reasonable explanation for his conduct.” Adam, 15 Ill. App. 3d at 671, 304 N.E.2d at 712.

We similarly can find no excuse for Lewis’ conduct with regard to the proceedings involved here. He had more than a full day to notify opposing counsel and the court by telephone that he would not be able to attend the July 7, 1988, hearing, or to attempt to vacate the setting, but he did not do so. Instead, he chose to mail a document to the court which was not uncovered by it until after the scheduled hearing had already begun. We conclude that, under these circumstances, the contempt conviction was sufficiently supported by the evidence.

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

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.