author: JUSTICE INGLIS JUSTICE NASH,

text:
    MICHAEL S. CARDWELL, Plaintiff-Appellant, v. ROCKFORD MEMORIAL HOSPITAL ASSOCIATION et al., Defendants-Appellees.
    Second District
    No. 2—88—0870
    Opinion filed June 7, 1989.
    NASH, J., dissenting.
    William T. Cacciatore, of Bruscato & Cacciatore, of Rockford, for appellant.

      Richard R. Haldeman and Stephen E. Balogh, both of Williams & McCarthy, P.C., of Rockford, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Dr. Michael S. Cardwell, appeals from an order of the circuit court of Winnebago County dismissing his complaint against defendants, Rockford Memorial Hospital Association (Hospital), and Terry A. White, individually and as assistant administrator of the Hospital. The trial court granted defendants’ motion to dismiss pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)) on the basis that statutes and Hospital bylaws provided defendants with immunity for the conduct alleged in plaintiff’s complaint. The sole issue on appeal is whether the trial court erred in granting defendants’ motion to dismiss. We affirm.

In 1985, plaintiff was a perinatalogist (specialist in the care and treatment of high risk fetuses) employed by the Hospital under written contract as medical director of the department of perinatalogy. In May or June of that year, Gary Longanecker, administrator of the employee assistance program for the Hospital, began to suspect that plaintiff had a drinking problem. Longanecker’s suspicion was fostered after smelling alcohol on plaintiff’s breath during working hours on several different occasions. In August 1985, plaintiff’s secretary, Alyce Lashock, approached Longanecker and advised him that she detected alcohol on plaintiff’s breath while he was performing certain medical procedures. Lashock further stated that plaintiff was exhibiting “bizarre behavioral mood swings” and lapses of memory. Longanecker conveyed this information to Dr. William Rouse, chairman of the Hospital credentials committee, and defendant Terry White, assistant administrator of the Hospital and plaintiff’s immediate supervisor.

White subsequently approached Lashock to discuss plaintiff’s behavior. Lashock told White that she had witnessed abrupt changes in plaintiff’s behavior during a three- to four-month period prior to August 1985. According to Lashock, plaintiff became volatile, secretive, hyperactive, and frantic. Lashock further related that plaintiff would disappear for periods of time and return “wired.” Lashock advised White that plaintiff was also exhibiting poor judgment in the handling of his patients.

Following his interview with Lashock, White contacted Dr. Richard Banta, a chemical dependency specialist, and requested his assistance as a consultant in plaintiff’s case. Banta subsequently conducted interviews with members of the Hospital staff who had contact with plaintiff. Among those interviewed were White, Lashock, and several nurses who worked closely with plaintiff. According to these witnesses, plaintiff was subject to mood swings, frequently reversed his position in business discussions, had a selective memory, did not accept responsibility for his own actions, became abrupt and tactless with patients, and became self-centered. Banta was also told that plaintiff was obsessed with talk of drinking and often boasted about becoming intoxicated. In addition, plaintiff would occasionally leave work and return “wired.” Plaintiff was described as bizarre, paranoid, and mood-elevated. The witnesses also noted that plaintiffs appetite became sporadic and that he had developed an unusual rapport with drug company representatives. In conducting the interviews, Banta noted that while the witnesses believed that something was ■wrong with plaintiff, they were reluctant to speak because of a fondness and respect for him. Banta advised White that, in Banta’s opinion, plaintiff had a substance abuse problem that required rapid intervention.

Acting on Banta’s advice, Dr. John McHugh, vice-president of medical affairs for the Hospital, formed a committee consisting of himself, White, Rouse, and Dr. Richard Novak, first vice-president of the medical staff. On August 29, 1985, this committee met for the purpose of confronting plaintiff on his behavior and suggesting the possibility that he had an alcohol, drug, or emotional problem which required intervention. The committee requested plaintiff to submit to an evaluation by Dr. Donald Sellers, a physician experienced in treating impaired physicians. Plaintiff initially refused but relented when he was advised that his refusal to undergo the evaluation would result in the immediate revocation of his staff privileges at the Hospital. The evaluation was conducted later that day at Lutheran General Hospital in Park Ridge, Illinois. The record is silent with respect to the results of the evaluation except to indicate that hospitalization was not required. Plaintiff resigned from the Hospital in the early part of 1986.

On August 26, 1986, plaintiff filed the instant action. Plaintiff’s initial complaint was dismissed, and, on December 11, 1987, plaintiff filed a four-count amended complaint against the Hospital and White. Plaintiff’s amended complaint sought recovery under theories of slander, “coercion,” intentional infliction of emotional distress, and intentional interference with an employment contract. The amended complaint alleged that defendants accused plaintiff of alcohol or drug addiction or emotional instability and knew those accusations to be groundless. The amended complaint further alleged that plaintiff was coerced into undergoing a psychiatric examination and that the substance of the accusations and psychiatric evaluation were communicated to persons who did not have a legitimate interest in that knowledge.

On January 26, 1988, defendants moved to dismiss plaintiff’s amended complaint pursuant to sections 2 — 615 and 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). Defendants’ motion was supported by a copy of the employment contract between plaintiff and the Hospital, the deposition transcript of Dr. Banta, and the affidavits of Dr. McHugh, White, and Longanecker. The trial court granted defendants’ motion pursuant to section 2 — 619(a)(9) after concluding that defendants presented affirmative matter which defeated plaintiff’s claims. Specifically, the court found that defendants’ conduct fell within the provisions of certain statutes and the Hospital bylaws entitling them to immunity. The trial court subsequently denied plaintiff’s motion to reconsider, and plaintiff brought this timely appeal.

Initially, we note that defendants’ motion to dismiss was brought pursuant to both sections 2 — 615 and 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). It is improper for a defendant to combine separate motions under each of these sections for joint analysis and determination. (Schlenz v. Castle (1985), 132 Ill. App. 3d 993, 1002-03, aff'd (1986), 115 Ill. 2d 135; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 508.) However, while this improper motion practice is error and should not be condoned, it does not command reversal unless prejudice results to the nonmovant. (Schlenz, 132 Ill. App. 3d at 1003; Davis, 108 Ill. App. 3d at 508.) The record in the instant action indicates that plaintiff knew prior to the hearing that defendants sought dismissal under either section of the Code. In addition, the court continued the hearing on the motion at which time plaintiff’s counsel indicated that he was prepared to address defendants’ motion pursuant to section 2 — 619. Accordingly, we conclude that plaintiff was not prejudiced by the procedure utilized and we may proceed to the merits of the case.

Plaintiff contends that the trial court erred in granting defendants’ motion to dismiss. Plaintiff argues that defendants failed to state “affirmative matter” sufficient for dismissal pursuant to section 2 — 619(a)(9) of the Code. We disagree.

Section 2 — 619(a)(9) of the Code provides that a defendant may, within the time for pleading, file a motion to dismiss on the basis that “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) “Affirmative matter” sufficient to defeat a claim is something in the nature of a defense which negates the alleged cause of action completely or refutes crucial conclusions of law or conclusions of fact unsupported by allegations of specific fact contained in or inferred from the complaint. (Andrews v. Mid-America Bank & Trust Co. (1987), 152 Ill. App. 3d 139, 141.) It is something more than mere evidence offered to refute well-pleaded facts in the complaint which are necessarily admitted as true for purposes of the motion to dismiss. Andrews, 152 Ill. App. 3d at 141; Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 710; see Venezky v. Central Illinois Light Co. (1988), 168 Ill. App. 3d 612, 613-14.

In the instant action, the “affirmative matter” presented in support of defendants’ motion to dismiss consisted of the Hospital bylaws and two Illinois statutes which purported to give defendants immunity for the actions taken by a hospital peer review committee. Although the trial court concluded that the immunity conferred by the statutes was conditional and did not protect defendants from any willful and wanton acts committed in the process, it nonetheless found that the affidavits submitted by defendants indicated that their conduct was reasonable under the circumstances and fell within the immunity provisions. Plaintiff now argues that the trial court’s conclusion was error since plaintiff properly pleaded willful and wanton misconduct and defendants’ affidavits only challenged those well-pleaded facts. However, in our opinion, section 10.2 of the Hospital Licensing Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2), relied on by both defendants and the trial court, provides defendants with absolute immunity for the conduct alleged and supports the judgment of dismissal.

In ruling that defendants were entitled to immunity for their alleged wrongful conduct, the trial court relied on section 5 of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 5) and section 10.2 of the Hospital Licensing Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2). Section 5 of the Medical Practice Act of 1987 provides, in pertinent part:

“While serving upon any committee whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care or physician services within a hospital duly licensed under the Hospital Licensing Act, or within a professional association of persons licensed under this Act, or the improving or benefiting of patient care and treatment whether within a hospital or not, or for the purpose of professional discipline, any person serving on such committee, and any person providing service to such committees, shall not be liable for civil damages as a result of their acts, omissions, decisions, or any other conduct in connection with their duties on such committees, except those involving wilful or wanton misconduct.” Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 5.

Section 10.2 of the Hospital Licensing Act similarly provides immunity from civil damages for actions taken by a hospital peer review committee. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.) That statute provides:

“Because the candid and conscientious evaluation of clinical practices is essential to the provision of adequate hospital care, it is the policy of this State to encourage peer review by health care providers. Therefore, no hospital and no individual who is a member, agent, or employee of a hospital, hospital medical staff, hospital administrative staff, or hospital governing board shall be liable for civil damages as a result of the acts, omissions, decisions, or any other conduct of a medical utilization committee, medical review committee, patient care audit committee, medical care evaluation committee, quality review committee, credential committee, peer review committee, or any other committee whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care within a hospital, or the improving or benefiting of patient care and treatment, whether within a hospital or not, or for the purpose of professional discipline. Nothing in this Section shall relieve any individual or hospital from liability arising from treatment of a patient.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.

Our supreme court has recently set forth these statutory provisions and noted that they “operate to grant immunity to physicians, hospitals and their staffs from civil liability for service upon peer review or other credential committees.” (Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 58; see also Gates v. Holy Cross Hospital (1988), 175 Ill. App. 3d 439, 446 (“in accordance with the Hospital Licensing Act, hospitals and their staff are immune from civil liability for services rendered while serving in the capacity of a medical care evaluation committee or peer review committee”); Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 470 (section 10.2 of the Hospital Licensing Act precludes recovery of civil damages as a remedy in cases arising out of acts and decisions of hospitals and individuals in internal review sitúations).) The Barrows court went on to conclude that the statutes indicated “a general legislative intention that hospitals and medical staffs be free to exercise their professional judgment in the selection and retention of medical staff members.” Barrows, 123 Ill. 2d at 58; see also Rodriguez-Erdman, 163 Ill. App. 3d at 469-70 (legislative objective in providing hospital with immunity for civil damages based on peer review activities is to foster effective self-policing by medical profession and promote legitimate State interest in improving quality of health care in Illinois).

Although the trial court in the instant action dismissed the complaint on the basis of the immunity conferred by these statutes, it nonetheless found that they conferred only conditional immunity. However, as noted above, we believe that section 10.2 of the Hospital Licensing Act grants defendants absolute immunity and controls the disposition of this appeal.

Unlike section 5 of the Medical Practice Act of 1987, which protects “any person” serving on a peer review committee (see Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 5), section 10.2 of the Hospital Licensing Act is specifically directed at protecting hospitals and agents and employees of hospitals for the conduct of such committees. (See Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.) Defendants in the instant action are a hospital and a member of its administrative staff. Thus, while both statutes grant immunity for the activities of a peer review committee, section 10.2 of the Hospital Licensing Act more directly applies to these particular defendants.

In addition, unlike section 5 of the Medical Practice Act of 1987, section 10.2 of the Hospital Licensing Act does not except willful and wanton misconduct from its protection. '(See Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.) The plain and unambiguous language of section 10.2 of the Hospital Licensing Act admits of no exception to the immunity protection conferred by that statute, and we will not read into it any exception for willful and wanton misconduct. (See Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1025.) In Knapp, the court similarly discussed the interplay between section 5 of the Medical Practice Act of 1987, at that time codified as section 2b of the Medical Practice Act (see Ill. Rev. Stat. 1985, ch. 111, par. 4406), and sections 8 — 2101 and 8 — 2102 of the Code (Ill. Rev. Stat. 1983, ch. 110, pars. 8-2101, 8-2102). (Knapp, 176 Ill. App. 3d at 1022-25.) The court noted that the Code provisions bestowed an absolute privilege upon individuals insofar as concerned their statements before bodies involved in the peer review process. (176 Ill. App. 3d at 1022.) The court further noted the immunity exception for willful and wanton misconduct contained in section 2b of the Medical Practice Act and, concluding that the statutory provisions were in conflict, ruled that the Code provisions were more specific and therefore controlled the disposition. (176 Ill. App. 3d at 1025.) In holding that a willful and wanton misconduct exception could not be read into the Code provisions, the court stated that its “conclusion [was] reinforced by the similarly absolute and unccnditional language of section 10.2 of the Hospital Licensing Act.” (Emphasis added.) 176 Ill. App. 3d at 1025.

Because we conclude that section 10.2 of the Hospital Licensing Act completely negates plaintiff’s claims, we find that the trial court did not err in granting defendants’ motion to dismiss.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE NASH,

dissenting:

I do not agree with the conclusion of my colleagues that section 10.2 of the Hospital Licensing Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2) provides absolute immunity for all of the conduct claimed by plaintiff and would remand for further proceedings of those well-pleaded counts of the complaint which alleged willful and wanton misconduct on the part of defendants.

In his amended complaint, plaintiff alleged that defendants made false and malicious accusations of alcohol addiction, drug addiction, and mental instability of plaintiff, knowing them to be false, groundless, and spurious, and that defendants forced plaintiff to undergo a psychiatric evaluation under threat of immediate suspension of his hospital privileges. In thus extending an absolute immunity for civil liability to those acting in a peer review capacity to include any of their willful and wanton conduct while doing so, the majority has gone substantially beyond the limitations placed upon such immunity by the Illinois legislature and has extended a recent ruling by our supreme court.

Section 10.2 of the Hospital Licensing Act and section 5 of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400— 5) both extend in generally similar language immunity from civil liability to physicians, hospitals and their staffs for service upon peer review or other credential committees. It has been held that “these statutes do indicate a general legislative intention that hospitals and medical staffs be free to exercise their professional judgment in the selection and retention of medical staff members.” (Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 58.) The immunity offered by each of these statutes, however, is qualified and is far from the absolute immunity here declared by the majority opinion.

Section 5 of the Medical Practice Act grants immunity for conduct while serving upon a peer review committee, “except those involving willful or wanton misconduct” (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 5). So too does section 10.2 of the Hospital Licensing Act provide that “[njothing in this section shall relieve any individual or hospital from liability arising from treatment of a patient.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.) The court in Barrows v. Northwestern Memorial Hospital considered both statutes and found, generally, that they operate to grant immunity from liability for service upon peer review or other credential committees (Barrows, 123 Ill. 2d at 58). The court declined to repudiate the doctrine that denial of hospital staff privileges is generally not subject to judicial review and that the decision of the hospital authorities in such matters is final, and affirmed the judgment of the circuit court which had dismissed that complaint on public policy ground. However, our supreme court remanded the case to the appellate court for consideration of whether the allegations in other counts of the complaint relating to interference with plaintiff’s business relations, restrain of trade, and fraud were also precluded by the public policy against judicial review and the statutory enactments or were sufficient to support recovery under those counts of plaintiff’s complaint. 123 Ill. 2d at 59-60.

In my view, this court should give attention to those limitations upon the peer review immunity put in place by the legislature, and the caution exercised by the court in Barrows. We have no authority to repeal the legislative exception to immunity for willful and wanton peer review conduct and do no service to the medical community by doing so. Under the opinion here, any baseless or malicious accusation against a physician or hospital can be made in a supposed peer review setting with impunity. The broad scope of the conduct in which immunity may attach under section 10.2 of the Hospital Licensing Act and this opinion will be far beyond that intended by the legislature.

I would affirm the judgment below dismissing the complaint, except as to those counts which were premised upon the alleged willful and wanton conduct of defendants and, as to them, would reverse and remand for further proceedings.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    KENNETH VINCENT, Plaintiff-Appellant, v. EUGENE DOEBERT et al., Defendants-Appellees (La Salle National Bank of Chicago, as Trustee, et al., Intervenors-Appellees).
    Second District
    No. 2—88—0947
    Opinion filed June 1, 1989.
    Rehearing denied June 30, 1989.

      Robert J. Weber, Ltd., of Chicago (Robert J. Weber, of counsel), for appellant.
    Thomas J. Streit, of Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora (William J. Foote, of counsel), for appellees Eugene Doebert, Dolores J. Doebert, Tommy Cole, and Marilyn Cole.
    Goldsmith, Thelin, Schiller & Dickson, of Aurora (Richard D. Schiller, of counsel), for appellees La Salle National Bank of Chicago and Joseph J. Freed.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Kenneth Vincent, appeals from a summary judgment entered in this declaratory judgment action in favor of intervenor-appellees, Joseph J. Freed and La Salle National Bank of Chicago, as trustee. Defendants Eugene Doebert, Dolores J. Doebert, Tommy Cole, and Marilyn Jean Cole have also filed a brief as appellees, in which they are described as stakeholders and urge affirmance of the judgment below.

The controversy in this case evolves around the question of whether plaintiff, Vincent, or intervenor, Freed, has the right to purchase a commercial corner at the intersection of Route 31 and New Indian Trail Road in the City of Aurora. Defendants, the Doeberts and Coles, are owner-lessors of the property which is held by plaintiff, Vincent, under a long-term lease, and who conducts a used car business on the premises. Intervenor Joseph Freed owns or is purchasing the area surrounding the subject property for development of a shopping center and wishes to acquire it for that purpose. The lease under which Vincent holds possession has a term to 1998, and contains three five-year options to extend it. The lease also contains a right of first refusal given therein by the lessors to the lessee to meet any bona fide offer from a third party to purchase the property during the term of the lease. Intervenor Freed, through his land trustee bank, entered into an agreement with the owner-lessors to purchase the property, after being unable to acquire Vincent’s interest in it. The issue to be resolved on this appeal is whether Vincent did or did not correctly exercise his right of first refusal so as to be entitled to purchase the property on the material terms and conditions of Freed’s third-party offer to its owners.

The lease was originally entered into in December 1978, between the Doeberts and Coles, as lessors, and Judico, Inc., as lessee. Plaintiff, with the consent of lessors, acquired the Judico interest in the lease in 1983 and occupies the premises. The provision of the lease relevant to this appeal states as follows:

“26. Right of First Refusal. Lessors do hereby grant to Lessee a right of first refusal with reference to the possible future sale of the premises, including that portion covered by the separate option provided for in Paragraph 27. In the event that Lessors receive a bona fide offer from a third party to purchase the premises during the original term of the lease or during any option term thereof, the Lessee shall have the right to purchase the premises on the same terms and conditions as being offered by the third party. Upon receipt of the third party offer, Lessors shall notify the Lessee in writing of the material terms of the offer. The Lessee shall have thirty (30) days form [sic] the date of the notice to advise the Lessors in writing of Lessee’s intention to purchase the property on the same terms and conditions as offered by the third party.” (Emphasis added.)

On May 15, 1986, the owners caused a notice to be sent to Vincent, signed by their attorney, advising Vincent, pursuant to the right of first refusal provision of the lease, that they had received an offer to purchase the premises from a third party. The terms of the offer were stated in the notice to include a purchase price of $330,000, with a down payment of $75,000 and the $255,000 balance to be paid in monthly installments of $2,695.37 over a 119-month period and the balance to be due on the 120th month. Interest was to be paid at the rate of 9% per annum and there could be no prepayment without the consent of the lessors. Closing of the transaction was scheduled for on or about July 1,1986. The notice further stated:

“To secure the payment of the purchase price, the Purchaser shall grant to the Lessors a first mortgage on the premises along with a personal guarantee of an individual whose financial net worth is to be not less than $10,000,000. The Purchaser shall have the right to obtain a release of the first mortgage if the Purchaser supplies the Lessors with substitute security in the form of a letter of credit or other acceptable security in an amount not less than the amount of the purchase price then due the Lessors.” (Emphasis added.)

The notice stated that, as provided in the lease, the lessee shall have 30 days from its date to advise lessors in writing of his intent to purchase the premises on the same terms and conditions set forth in the notice, as offered by the third party.

The record of this case also discloses that on May 22, 1986, the owner-lessors, as sellers, and the La Salle National Bank, as trustee, and as purchaser, entered into a real estate sales contract which acknowledged Vincent’s interest in the property as a lessee with a right of first refusal of a third-party offer to purchase it. The terms of the sales contract between the owners and the Freed trustee are substantially as stated in the earlier notice sent to Vincent, except that it makes no reference to a requirement or offer by Freed that the payment of the purchase price shall be further secured by the “personal guarantee of an individual whose financial net worth is to be not less than $10,000,000,” as is represented in the notice of the offer given to Vincent by the lessors’ attorney. The sales contract did provide, however, that the promissory note for the $255,000 balance would be secured by a first mortgage on the premises, “and the personal guarantee of Joseph J. Freed.”

A letter dated June 10, 1986, by Vincent’s attorney directed to the lessors’ attorney, stated in response to the notice that Vincent intended to exercise his right to purchase the property under the right of first refusal terms of the lease. The letter stated that the terms of the offer set forth in the notice would be met, except for the paragraph requiring the personal guarantee of an individual whose net worth was not less than $10 million. Vincent considered that requirement to be arbitrary and to not conform with normally accepted standards in this type of. transaction, noting that the $330,000 price would be secured by the property and the $75,000 down payment. Vincent offered to pay the $330,000 purchase price in full if the owners were interested in an outright sale and, if not, to proceed as referred to in the owner’s notice, except as to the condition relating to the purchaser’s net worth.

The owners responded, by letter from their counsel to Vincent’s attorney, that they did not want to proceed with an outright sale and also that the owners required an ironclad personal guarantee and would not rely solely on the security of a first mortgage for the $255,000 balance. The owners’ attorney stated in the letter that he considered that any exercise by Vincent of his right of first refusal which does not include the requirement of “a personal guarantee by a person or persons who have substantial financial net worth” does not meet the terms of the Freed offer already received. Vincent was further advised that the July 1, 1986, closing date was a material term of the Freed contract.

There apparently was further conversation between the attorneys for Vincent and the owners relating to the sale of the property and, on June 27, 1986, the latter wrote a letter to Vincent’s attorney purporting to memorialize the status of the matter. In it the owners’ attorney acknowledged being advised that Vincent intended to exercise his right of first refusal and would sign the same note and mortgage negotiated with the third party, Freed, who had offered to purchase the property, an offer Vincent intended to meet. Further, Vincent would personally guarantee the' note and his personal guarantee would be secured by a $255,000 irrevocable letter of credit from the Northern Trust Company in favor of the sellers. The owners’ attorney advised that the closing (with Vincent) had to be no later than the morning of July 1, 1986, as the third party’s (Freed’s) contract was scheduled to close on the afternoon of that day. Counsel enclosed in his letter a copy of the note, mortgage and personal guarantee that the third party had agreed to sign if he purchased the property.

As the letter of credit could not be secured by Vincent by July 1, this action was commenced to protect his interests, and the Freed closing on July 1 was delayed. Vincent received a written commitment from Northern Trust on July 31, 1986, that it would issue a 10-year letter of credit for $255,000 upon its approval of the sellers’ terms and conditions. Subsequently, the trial court required both Vincent and the Freed interests to deposit in court sums of money corresponding to those required under the sales contract and both thereafter to make the required monthly payments. The owners have received from the clerk of court one such deposit of $75,000 representing the down payment, and they also receive each month one of the installments deposited by the parties.

The defendants and the Freed interests answered Vincent’s complaint and Vincent’s subsequent motion for summary judgment was denied by the trial court and the motion by the intervenor, Freed, was granted. The trial court found, as a matter of law, that the intervenors were entitled to judgment as they had made a bona fide offer to purchase the property which was communicated to Vincent, who had failed to timely or properly exercise his right of first refusal. The court specifically found that the description in the intervenor’s offer of the person who would guarantee the transaction as being one whose net worth was not less than $10 million was accurate and proper.

Vincent contends that to require as a condition of the exercise of his right of first refusal that he match the economic status of a person making an offer on the property violated the lease and destroyed the right of first refusal in it. As other issues improperly mixed into his first contention, Vincent also argues that the requirement that lessee produce a guarantor worth $10 million was not a term of the third-party Freed offer and, if it was, that it was unreasonable. Vincent also contends that, as there are controverted issues of fact as to the terms of the lease and the sales agreement, summary judgment was improperly granted to the intervenors.

The intervenors respond that the owners did not seek to modify the terms of the lease and that Vincent had the right to purchase the property only if he met the exact terms of the third-party offer; that Freed’s net worth was a material term of the offer as it relates to the quality of the security for the balance of the purchase price; that the requirement of a personal guarantee by a “$10,000,000 person” is a material and reasonable term of the offer and is enforceable; and that summary judgment was proper as no material disputed issues of fact remain.

The defendant-owners do not offer any case authority from Illinois or other jurisdiction but argue that the summary judgment in favor of the intervenors was proper and should be affirmed. They did not address in their brief whether they consider that a $10 million net worth status was required to purchase the property or was a proper and necessary condition which must have been met by Vincent to exercise his right of first refusal, nor do defendants disclose whether or not they considered that the letter of credit offered by Vincent met the security conditions of the Freed offer. These appellees simply say that Vincent did not provide a letter of credit by July 1, 1986, and they had no option but to close with Freed.

During oral arguments, the owners’ counsel conceded that the intervenors’ offer to purchase did not include a requirement of a $10 million guarantee, and counsel argued that Vincent knew that this requirement was not to be interpreted literally as it was not part of intervenors’ offer and that the owners were only seeking an ironclad guarantee. Counsel also conceded that the owners’ notice to Vincent of a bona fide offer on May 15, 1986, did not start the 30-day period in which Vincent was required, under the terms of the lease, to notify the owners of his intent to exercise his right of first refusal. Counsel for intervenors argued that the $10 million guarantor requirement was not a material issue of intervenors’ motion for summary judgment and that what was required to meet the offer was some security over and above a mortgage on the property being purchased. Counsel, however, also argued that the $10 million guarantor requirement was a material term of intervenors’ offer that plaintiff was required to meet. When pressed during oral arguments to reconcile his incongruous arguments, it is our understanding that counsel stated that intervenors’ offer included a $10 million guarantor requirement for purposes of reviewing the trial court’s order granting intervenors’ motion for summary judgment and, if this court reviews the trial court’s denial of Vincent’s motion for summary judgment, that the owners only required Vincent to provide reasonable security to meet the Freed offer.

The defendant-owners request that if the trial court is reversed and the cause remanded, this court include “appropriate” instructions to protect the rights of the owners, whether the purchaser be Freed or Vincent. We are not advised as to the form or subject matter of any instructions to which the owners refer.

Initially, we note that a reviewing court is entitled to have issues clearly defined with pertinent authority cited and cohesive legal arguments presented (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132), and issues not sufficiently presented can be waived (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 826, 441 N.E.2d 360). Vincent’s first contention sets forth multiple issues and other issues not stated there are contained in his argument. He integrates discussion of some issues with other issues; for example, Vincent contends, citing cases from other jurisdictions, that the terms offered to the holder of a right of first refusal must be exactly the same as those offered by a prospective purchaser. Plaintiff then posits that “[tjhese cases exemplify that the general rules for construction of a contract are to be applied to a lease which contains a right of first refusal or an option. The unilateral modification of the lease by insertion of a requirement not expressly contained therein constitutes a breach, and can be ignored by the tenant.” Vincent erroneously suggests that the issue whether the lease permits the owners to require him to provide a guarantee of $10 million is somehow related to the issue of whether the intervenors’ offer to purchase the property actually included a guarantee of $10 million. While Vincent’s argument is made in a disarranged and confusing manner, we have attempted to distill the key issues sought to be presented.

Vincent contends that because the lease giving him a right of first refusal did not contain a provision requiring him to meet the economic stature of a prospective purchaser of the property, the owners’ notice of the third-party offer, as it related to net worth of the purchaser, constituted an unenforceable, unilateral modification of the lease agreement as a matter of law. Vincent relies on Braeside Realty Trust v. Cimino (1985), 133 Ill. App. 3d 1009, 479 N.E.2d 1031, which we find does not support his argument; nevertheless, an analogous argument was made in Hayes v. O'Brien (1894), 149 Ill. 403, 37 N.E. 73. There, the lease provided that the lessee had the right to purchase the leased premises upon the terms and at the same price as that offered by a prospective purchaser. The lessor argued that this provision in the lease was void because of lack of certainty in that no price was stated in the agreement. (Hayes, 149 Ill. at 413-14.) The court held that the right-of-first-refusal provision was unambiguous and that only one construction of the provision was possible; the lessee had the right to purchase the property upon the same terms and price as that offered by a prospective purchaser. (Hayes, 149 Ill. at 415.) So, too, in the present case, Vincent had the right to purchase the property on the same terms and conditions as that offered by a prospective purchaser. (See, e.g., Morris v. Goldthorp (1945), 390 Ill. 186, 195, 60 N.E.2d 857; Department of Public Works & Buildings v. Halls (1966), 35 Ill. 2d 283, 285, 220 N.E.2d 167; Turner v. Shirk (1977), 49 Ill. App. 3d 764, 766, 364 N.E.2d 622; Cohen v. Meola (1980), 37 Conn. Supp. 27, 429 A.2d 152; C. Wayne Motors, Inc. v. Somers (1981), 81 A.D.2d 964, 439 N.Y.S.2d 746.) The parties really do not disagree as to that proposition in the present case.

Vincent also argues that the offer to purchase made by Freed to the defendant-owners does not refer to the requirement inserted in the owners’ notice to Vincent that the balance of the purchase price be guaranteed by a person whose net worth is not less than $10 million. Vincent is correct in this assertion as the offer made by Freed simply provided that payment of the balance would have “the personal guarantee of Joseph J. Freed.” In the summary judgment proceedings, the factual gap was sought to be closed by intervenor Freed’s attorney, who filed his personal affidavit that Freed had given the owners evidence of his net worth, which was $10 million, and that the owners relied upon it in agreeing to the financial arrangements in Freed’s offer. Vincent did not challenge the affidavit, which may have infirmities under Rule 191 (107 Ill. 2d R. 191), or file counteraffidavits. It seems unlikely that the disputed question of fact, whether the financial status of the third-party offeror was a material or an actual part of his offer to purchase, could be resolved by this means. It also seems doubtful that such status, as a necessary element of the offer to be met by Vincent in order to exercise his right of first refusal, could be established even by affidavits to that effect by the owners, or by their testimony, as the owner-intervenor land contract did not so provide.

It is clear that to meet the “security” aspect of Freed’s offer, as actually made by him, Vincent would have to also guarantee the balance of the purchase price. The Freed offer required that Freed do so but does not refer to any net worth requirement. Vincent also offered to personally guarantee the note and also to further secure it by letter of credit. As the owners correctly agreed in oral argument of this case, Vincent thereby did offer to meet the material terms and conditions of Freed’s offer and was entitled to exercise his right of first refusal.

Any other conclusion here would have unsettling consequences. Under the intervenor’s theory, a party having the contractual right of first refusal would ordinarily be unable to exercise it where a Trump or Rockefeller was the third-party offeror. Would a time-payment offer, as in this case, which has been made by a 50-year-old person be met by the same offer made by a 70-year-old, who might not survive the period? If, as in this case, a lessor who has given his lessee the right of first refusal expects to require that the lessee personally match the net worth of a future offeror, that should be made a condition of the lease. We have not seen a case in Illinois, or any other jurisdiction, which has considered a similar assertion. Defendants apparently look for us to state a rule of law that financial status is an implied element of such an offer, and we decline to do so.

We also consider that the defendant-owners realized shortly before the suggested closing date that their position was untenable. Their attorney then noted that the requirement was for a personal guarantee by a person of “substantial” net worth, and the $10 million guarantor was not mentioned. The owners appeared to have accepted, at that point, the offer of Vincent’s guarantee and the letter of credit. Certainly that was more security for the $255,000 balance than would be Freed’s net worth on that day, as it may well change over the 10-year payment period.

Vincent also contends that Freed’s personal guarantee was not a material term of the intervenors’ offer, that this guarantee was a fiction and a sham, and that the guarantee was unreasonable and arbitrary, amounting to bad faith. He argues that a separate purchase agreement between the owners and Freed for the adjacent car-wash property evidences bad faith in that it permitted the intervenor the option of providing a letter of credit for the purchase price or the personal guarantees of Joseph and Joyce Freed. Vincent does not cite any authority to support the proposition that the circumstances surrounding the execution of an unrelated contract can be considered, and we do not address this argument.

Vincent argues that the requirement by the owners of a $10 million guarantor for a $255,000 note, which was also to be secured by a first mortgage on the property, is further evidence of their bad faith. A covenant of good faith and fair dealing is implied in every contract as a matter of law, absent an express disavowal. (Prudential Insurance Co. of America v. Van Matre (1987), 158 Ill. App. 3d 298, 308, 511 N.E.2d 740.) Good faith between contracting parties requires one vested with contractual discretion to exercise it reasonably and not arbitrarily of capriciously (Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30, 421 N.E.2d 1375), and parties to a contract impliedly promise not to do anything which will destroy or injure the other party’s right to receive the fruits of the contract (Prudential Insurance Co. of America, 158 Ill. App. 3d at 308).

It is apparent here that the owners did not act in good faith when they notified Vincent that he had to provide a $10 million guarantor to exercise his right of first refusal as it is clear that this term was not part of the intervenors’ offer to purchase. As stated earlier, intervenors’ offer only included Freed’s personal guarantee of the note and not a requirement of a $10 million guarantee. Subsequent to the owners’ notice to Vincent of the intervenors’ offer, the owners agreed that a guarantee by a person with a substantial net worth was sufficient, and, ultimately, defendants were satisfied with a $255,000 irrevocable letter of credit. Even more telling are the concessions made by both counsel for intervenors and the owners during oral arguments. The owners’ counsel stated that Vincent knew that the $10 million guarantor requirement was not to be interpreted literally and that the owners were merely seeking an ironclad guarantee. Surely, Vincent could not have known this when he received the notice of intervenors’ offer, as revised by the owners, as the notice clearly stated that a $10 million guarantor was required. Counsel for the intervenors stated during oral arguments that the $10 million guarantee requirement was not a material issue to their motion for summary judgment and that only a reasonable security was required by Vincent to meet Freed’s offer.

From our review of the record and arguments of counsel, Vincent was not notified of the true terms of an offer the owners were willing to accept until June 27, 1986, when they notified him that an irrevocable letter of credit would suffice as security in lieu of a $10 million guarantor. Under the terms of the lease agreement, Vincent then had 30 days in which to notify the owners of his intent to exercise the right of first refusal, and he did so. In these circumstances, defendants could not reasonably insist that plaintiff close the purchase by July 1, 1986. See In re Estate of Halas (1988), 175 Ill. App. 3d 180, 183, 529 N.E.2d 768.

Accordingly, the summary judgment entered in favor of the interveners is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEEWEY W. FOSTER, Defendant-Appellant.
    Second District
    No. 2—87—0916
    Opinion filed June 15, 1989.
    Rehearing denied July 11, 1989.

      G. Joseph Weller and Francine Harrison, both of State Appellate Defender’s Office, of Elgin, for appellant.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Dewey Foster, was charged by information, in the circuit court of Du Page County, with the offense of possession of a stolen or converted vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4— 103(a)(1)). Following a bench trial, defendant was found guilty and sentenced to 30 days in jail and a four-year term of probation.

On appeal, defendant raises three issues as grounds for reversal: (1) whether the classification of the offense of possession of a stolen or converted vehicle as a Class 2 felony when the more serious offense of theft over $300 is only a Class 3 felony violates the Illinois Constitution’s assurances of due process and proportionate penalties; (2) whether classification of defendant’s conduct, failure to return a rented vehicle where there was no written rental contract or written demand for return, as a Class 2 felony when similar conduct, failure to return rented property where there is a written rental contract and a written demand for return, is classified only as a Class 4 felony violates the Illinois Constitution’s assurance of equal protection; and (3) whether defendant was proved guilty beyond a reasonable doubt where the State failed to establish the vehicle was stolen or converted.

At trial, Ronald Barton, owner of Ugly Duckling Rental Car in Naperville, Illinois, testified that defendant rented a 1979 Thunderbird from the agency on March 25, 1987. Defendant told Barton that he needed the car for three days. Defendant signed a rental agreement. The written agreement did not include a provision setting out the date or place for return of the vehicle. When defendant did not return the vehicle within three days, Barton tried unsuccessfully to contact him by telephone. Approximately one week later, defendant contacted Barton and told him that he still needed the car. He also said that he was waiting for a check to arrive and when it did he could pay for the rental. Barton told defendant to return the car; defendant failed to do so. Over the next two months, Barton made approximately 25 telephone calls to defendant and to members of defendant’s family asking that defendant return the car. During this period, defendant telephoned Barton five or six times. Defendant told Barton each time that he would return the car and that he was expecting a check to arrive. He also indicated that he might want to buy the car from Barton. Defendant never paid any of the rental fee and never returned the vehicle to the rental agency.

On May 27, 1987, Barton contacted the Naperville police department and reported the car stolen. That same day police recovered the vehicle. When Barton viewed the car the next day, he observed that the bumper and the exhaust system were damaged.

Officer Truemper of the Naperville police department was the officer who received Barton’s stolen car report on May 27. Later that same day, he observed the car stalled in an intersection in Naperville. Defendant, who had been pushing the car out of the intersection, told the officer that he had rented the car from Ugly Duckling. The officer advised defendant that the car had been reported stolen and placed defendant under arrest. Defendant told the officer that he had not returned the vehicle because he was waiting for a check to arrive by mail.

Defendant testified that when he rented the car from Barton he told him he would need it for three days. He said that he called Barton back a week later and told him that he needed the car awhile longer; Barton agreed. The last time defendant spoke with Barton was three days before the car was reported stolen. At that time, defendant told Barton that he was expecting a check at any time, and he would be in to pay for the vehicle. He also said he wanted to work out a deal to buy the car. Defendant said he never , planned to keep the car, he never refused to pay for the car, and Barton never told him to bring the car back until their last conversation approximately three days before defendant was arrested. Defendant stated that when he got the car the bumper was rusted and was hanging down. He further stated that he was on his way to return the car when he was stopped by the police.

Defendant was convicted of possession of a stolen or converted vehicle, and he now appeals that conviction.

Defendant first contends that section 4 — 103(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(b)) violates the constitutional assurance of due process because it classifies a first offense for possession of a stolen or converted motor vehicle as a Class 2. felony and as such is not reasonably designed to achieve the intended goal of eliminating organized auto theft and chop shops. Defendant also alleges that the statute violates the constitutional assurance of proportional penalties by punishing the lesser offense of possession more harshly than theft.

Initially we note that defendant failed to raise the issue of the constitutionality of section 4 — 103 at trial. We decline to apply the waiver rule, however, because defendant has raised a substantial question of constitutionality which, if sustained, would make void the statute under which he was charged and then convicted. (See People v. Treece (1987), 159 Ill. App. 3d 397, 415.) A constitutional challenge to a statute can be raised at any time. People v. Zeisler (1988), 125 Ill. 2d 42, 46.

Defendant was convicted under section 4 — 103(a)(1). This section states in relevant part:

“(a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted ***.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1).)

Violation of this section is a Class 2 felony. Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(b).

Recently, in the case of People v. Bryant (1989), 128 Ill. 2d 448, our supreme court decided that section 4 — 103(b) of the Vehicle Code is constitutional. The defendant in that case, like the defendant in the case at hand, had contended that the present classification violates the due process and proportionate penalties clauses of the Illinois Constitution because it makes possession of a stolen motor vehicle a Class 2 felony (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(b)) punishable by three to seven years’ imprisonment, while the greater offense of theft, as defined in section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1), is a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(e)(3)), punishable by two to five years’ imprisonment.

The supreme court pointed out that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle and its related activities. The supreme court held that section 4— 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen vehicle and its related activities, and as such, it does not violate the Illinois Constitution.

Defendant also contends that he has been denied constitutional assurances of equal protection because he has been punished more harshly than persons who are similarly situated who are convicted of theft by failure to return rented property, a Class 4 felony (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 3(b), (c)).

Section 16 — 3(b) of the Criminal Code of 1961 reads:

“(b) A person commits theft when after renting *** a motor vehicle, *** or renting or leasing any other type of personal property exceeding $500 in value, under an agreement in writing which provides for the return of the vehicle or other personal property to a particular place at a particular time, he without good cause willfully fails to return the vehicle or other personal property to that place within the time specified, and is thereafter served or sent a written demand mailed to the last known address, made by certified mail return receipt requested, to return such vehicle or other personal property within 3 days from the mailing of the written demand, and who without good cause willfully fails to return the vehicle or any other personal property *** within such period.” Ill. Rev. Stat. 1987, ch. 38, par. 16 — 3(b).

Defendant contends that his conduct is similar to that described in section 16 — 3(b) in that he failed to return a rented vehicle within the time agreed. The only facts that bring defendant outside the scope of section 16 — 3(b) are the lack of a written contractual provision for the date and place of return of the vehicle and the lack of a written demand for return. Defendant suggests that he is similarly situated to anyone who violates section 16 — 3(b), a Class 4 felony, yet he was convicted under section 4 — 103, a Class 2 felony, simply because all of the terms of his contract were not written and there was no written demand for return of the property. As a result, defendant was treated more harshly than others who committed inherently the same offense.

Although a person can be charged under section 16 — 3(b) if he wilfully fails to return rented property, and his rental contract and the demand for return are written, that same person can be charged under section 4 — 103 if the property involved is a vehicle and the circumstances surrounding the offense amount to vehicle theft or conversion. There is no reason to believe that when a written contract and demand are involved an accused can only be charged with a Class 4 felony. If a party with a written contract obtains or exerts unauthorized control over a vehicle with the intent permanently to deprive the owner of the vehicle or wrongfully assumes the right to possession or ownership of a vehicle so as to deprive the owner of his ownership rights, that person can be charged under section 4 — 103. The existence of a written contract does not protect a thief or converter by limiting his penalty. In such a case, the accused could properly be charged under section 4 — 103.

We might agree with defendant if the facts of his case were somewhat different, that is, if his unauthorized possession of the car was of a short duration. However, the facts surrounding the offense determine what charge will be made. In this case, defendant kept the vehicle two months when he had agreed to keep it only three days; the owner made repeated demands for the return of the vehicle; and the vehicle was damaged. Defendant’s conduct was sufficient to support a charge under section 4 — 103.

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt because the State failed to prove that the vehicle was stolen or converted. We disagree.

Defendant contends that he remained willing at all times to return the vehicle and, thus, did not possess the intent permanently to deprive the owner of the vehicle; therefore, the vehicle was not stolen. Defendant also denies that the vehicle was converted.

As defendant correctly states, “converted” is not defined in the Vehicle Code. Defendant points out, however, that section 16 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 3(b)) has elements similar to those of civil conversion and suggests that perhaps the legislature intended to define conversion in the terms used in section 16 — 3(b). As noted above, section 16 — 3(b) requires a written rental contract and a written demand for return. Defendant concludes, therefore, that because there was no written demand in this case there was no conversion.

Although the word “converted” is not defined in the statutes, the concept of conversion is well known in law. As we stated in People v. Sergey (1985), 137 Ill. App. 3d 971, 975, “Illinois case law generally defines civil conversion of a chattel as an unauthorized and wrongful assumption of the right to possession or ownership in the property which deprives the owner of his rights as owner.”

Defendant has provided no authority or reasoned argument for his suggestion that the legislature intended to define conversion for section 4 — 103 purposes by use of the elements of section 16 — 3(b). Section 16 — 3(b) is a theft statute; it is not a definition of conversion. We see no reason to assume that section 4 — 103 conversion requires a written demand as does section 16 — 3(b) theft.

Ronald Barton and defendant testified that defendant agreed to rent the vehicle for three days; defendant kept the vehicle for two months. The vehicle was eventually returned to Barton in a damaged condition and only after the police became involved. Barton testified that he made repeated demands for the return of the vehicle. The trial court found, and we agree, that defendant “knowingly possessed unauthorized control of the car at a point in time when he knew the owner wanted it back and that there was *** assertion of possessory rights contrary to the rights of the owner.” These findings of fact support defendant’s conviction of possession of a converted vehicle.

For the foregoing reasons the judgment of the circuit court of Du Page county is affirmed.

Affirmed.

REINHARD and LINDBERG, JJ., concur.


author: JUSTICE DUNN JUSTICE NASH,

text:
    CHRISTOPHER DiNARDO et al., Plaintiffs-Appellants, v. DELORES LAMELA, Defendant-Appellee.
    Second District
    No. 2—88—0243
    Opinion filed June 6, 1989.

      NASH, J., dissenting.
    Daniel G. Lauer, of Loss & Pavone, of Oakbrook Terrace, for appellants.

      No brief filed for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, State Farm Mutual Automobile Insurance, as subrogee of Christopher DiNardo, appeals from the trial court’s order vacating a default judgment against defendant, Delores Lamela. Plaintiff contends the trial court was without jurisdiction to vacate the default judgment because defendant failed to comply with the statutory requirements of section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Defendant has not filed a brief in this matter; however, we choose to decide the merits under the guidelines in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

Plaintiff filed a complaint in negligence against defendant alleging that she negligently drove her car causing an accident. A summons was returned not served. The reason stated was defendant moved. Notice was served to the Secretary of State under the substituted service provision set out in section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 10 — 301). That section provides for substituted service of process by serving the Illinois Secretary of State in cases where the claim arises from the use of a motor vehicle within Illinois and the defendant is a nonresident or subsequently becomes a nonresident. (Ill. Rev. Stat. 1987, ch. 951/2, par. 10 — 301.) As required by section 10 — 301(b) of the Illinois Vehicle Code, plaintiff filed an affidavit of compliance with the statute which stated that defendant did not reside in Illinois; however, no facts were alleged to support this assertion. On November 26, 1986, defendant did not appear, and a default judgment was entered for $2,823.75.

On January 5, 1988, defendant filed pro se a motion entitled “Notice to Vacate.” Defendant also filed pro se a notice of motion entitled “Reinstate.” The motion stated in its entirety: “I moved to default defendant $2,823.75 [sic].” At the hearing on the motion January 26, 1988, the trial court sua sponte treated defendant’s motion as a section 2 — 1401 motion under the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). The court heard defendant explain that she was not notified of any proceedings and did not become aware of the complaint or the default judgment against her until she learned that her driver’s license was suspended. Defendant stated she was not at fault in the car accident, and she was not ticketed for the accident. Upon this representation, the court vacated the judgment, granting defendant 28 days to respond to the complaint. Plaintiff objected to the court’s sua sponte treatment of the motion as a section 2 — 1401 petition. The objection was denied. On February 24, 1988, plaintiff filed a motion to reconsider which was denied. On March 14, 1988, plaintiff filed this appeal.

Plaintiff contends the court was without jurisdiction to decide a section 2 — 1401 motion because a section 2 — 1401 petition was not filed, and even assuming arguendo that a section 2 — 1401 petition had been filed, there was improper notice under section 2 — 1401. Before the merits of this issue can be addressed, we must first determine if we have jurisdiction to decide this issue. If neither party has questioned this court’s jurisdiction, we have an obligation to raise it sua sponte and to dismiss the appeal if jurisdiction is lacking. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539.) For the reasons below, we find we have jurisdiction.

In order to resolve the question of our jurisdiction, it is necessary to first determine the nature of defendant’s motion to the trial court. Defendant filed a pro se motion which stated in its entirety: “I moved to default defendant $2,823.75 [sic].” At the hearing defendant stated that she never received notice of the complaint against her. The trial court stated it was construing defendant’s motion as a section 2— 1401 motion and vacated the judgment. While the trial court gave no reason for vacating the judgment, we believe it is clear that it did so based on defendant’s assertion that she was not served notice. We are aware defendant at the hearing also asserted that she was not at fault, but we do not find that this assertion altered defendant’s main contention that she was not served notice. See Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 583-84.

In order to obtain jurisdiction over the person of defendant, proper service of summons is required. (Allied American Insurance Co. v. Mickiewicz (1984), 124 Ill. App. 3d 705, 707.) Where a court does not have personal jurisdiction over the defendant, any order it enters against her is void ab initio and subject to direct or collateral attack at any time. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309; People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71.) Moreover, the restrictions of section 2 — 1401 do not apply to or affect the right to relief from a void order; void judgments may be set aside by motion even after 30 days from rendition. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309; McGraw, 136 Ill. App. 3d at 72.) One method of attacking the personal jurisdiction of the court is to file a special appearance with a motion to quash service of summons. (R.W. Sawant & Co., 111 Ill. 2d at 310.) Since defendant’s motion attacked the service of process, we find that the more accurate label for defendant’s motion is a motion to quash service of process, and we will construe it as such.

In construing defendant’s motion as a motion to quash service of process, we find we have jurisdiction of this appeal, though we recognize that the case law dealing with circumstances similar to this case is not in complete agreement. A review of the case law reveals one line of cases that holds an order quashing service is appealable (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569; Lombardi v. Lombardi (1961), 31 Ill. App. 2d 184; Connaughton v. Burke (1977), 46 Ill. App. 3d 602; In re Marriage of Kelso (1988), 173 Ill. App. 3d 746); however, another line of cases holds that where a judgment has been vacated because of improper service, it is not an appealable final judgment (Mabion v. Olds (1967), 84 Ill. App. 2d 291; Alexander v. Burke (1972), 6 Ill. App. 3d 919, 920; Stankowicz v. Gonzalez (1981), 103 Ill. App. 3d 828, 831).

In our opinion, the latter line of cases are in error. These cases held that an order vacating a judgment because of improper service was not appealable because it merely left the litigation pending. In these cases, the trial court vacated the judgment because of improper service and then granted defendants leave to answer. (Mabion, 84 Ill. App. 2d at 294; Alexander, 6 Ill. App. 3d at 920; Stankowicz, 103 Ill. App. 3d at 830.) We first point out that the lower court resolutions in these cases, as well as in the instant case, are awkward and procedurally incorrect. In vacating the judgments because of improper service, the lower courts either expressly or in effect quashed the service of process. (Mabion, 84 Ill. App. 2d at 294; Alexander, 6 Ill. App. 3d at 920; Stankowicz, 103 Ill. App. 3d at 830.) In so doing, the courts should not have required defendants to answer since there was no effective service requiring an answer. The appellate courts did not recognize this inconsistency. It is our belief that the appellate courts should not have dismissed the appeals for want of appellate jurisdiction since the lower courts were granting relief by quashing the service of process and the Illinois Supreme Court has held that an order granting a motion to quash service of process is an appealable judgment. (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 577-78.) In Brauer, the court stated:

“It is true, the order, in form, was. only an order quashing the service of summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was' a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.
If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a review of an order of the trial court quashing the service of process.” (Brauer, 383 Ill. at 577-78.)

In light of the reasoning in Brauer, we hold in cases where the judgment is vacated due to improper service that the effect of that order is to quash the service of process and an appeal may be had from this order.

Turning to the issue raised by plaintiff’s appeal, we find no merit to plaintiff’s contention that the trial court was without jurisdiction to vacate the default judgment because defendant failed to comply with section 2 — 1401 requirements (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). As already stated, a motion attacking a judgment as void for want of jurisdiction is not bound by section 2 — 1401 constraints. (R.W. Sawant & Co., 111 Ill. 2d at 309; McGraw, 136 Ill. App. 3d at 72.) In our opinion it is evident defendant’s oral motion asserted an attack against the jurisdiction of the trial court. Furthermore, the record supports the trial court’s order to vacate the default judgment.

The record shows defendant was not personally served with a summons; it was returned by the sheriff indicating that defendant moved. The record also includes an alias summons served on the Secretary of State. Section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 10 — 301) provides for substituted service of process by serving the Illinois Secretary of State in cases where the claim arises from the use of a motor vehicle within this State and the defendant is a nonresident or subsequently becomes a nonresident (Ill. Rev. Stat. 1987, ch. 951/2, par. 10 — 301(a)). In addition to serving the Secretary of State, the plaintiff is required to send a copy of the summons by certified mail to defendant’s last known address, and plaintiff must file an affidavit of compliance with the statute. (Ill. Rev. Stat. 1987, ch. 951/2, par. 10 — 301(b).) A party claiming substituted service under this statute must demonstrate strict compliance with every requirement of the statute. (Allied American Insurance Co. v. Mickiewicz (1984), 124 Ill. App. 3d 705, 708.) Substituted service will confer no jurisdiction over a person who is an Hlinois resident. Allied American Insurance Co., 124 Ill. App. 3d at 708.

Plaintiff filed an affidavit of compliance stating that defendant does not reside in Illinois. No facts were alleged to support this belief. We find this affidavit insufficient to establish that defendant was a nonresident of Illinois. In a similar case, the court in Allied American Insurance Co. held that the affiant must have some information from others upon which he or she may reasonably conclude that defendant is a nonresident of Illinois. Allied American Insurance Co., 124 Ill. App. 3d at 709.

In this case, nothing in the record indicates that the affiant had any information to reasonably conclude that defendant was a nonresident. The only evidence in the record comes from the sheriff’s return, which merely states that defendant moved. There is no mention that defendant moved out of State. In Allied American Insurance Co., the court found the statements made on the sheriff’s return, including: “not found,” “wrong address,” “moved and left no forwarding address,” insufficient to support the affiant’s assertion that defendant was a nonresident. The court stated:

“We do not believe this constitutes the type of information upon which one may leap to the conclusion that defendant is a nonresident of Illinois.” (Allied American Insurance Co., 124 Ill. App. 3d at 709.)

As in Allied American Insurance Co., we find the affidavit in this case fails to reasonably establish that defendant was a nonresident.

We recognize that defendant here did not file a special and limited appearance, as was the case in Brauer (383 Ill. 569) and R. W. Sawant & Co. (111 Ill. 2d 304), but such an appearance is not required when a party attempts to set aside a void judgment subsequent to the entry of the judgment. Sullivan v. Bach (1981), 100 Ill. App. 3d 1135,1142.

In summary, we conclude that there is no merit to plaintiff’s issue on appeal that the court was without jurisdiction to vacate the default judgment since the record establishes that the court properly vacated a void judgment due to want of jurisdiction.

Affirmed.

REINHARD, J., concurs.

JUSTICE NASH,

dissenting:

The appeal in this case is not from a final order, and it should be dismissed.

In addition to the facts noted in the opinion, other matters not there mentioned are necessary to the correct resolution of this appeal. On January 26, 1988, at the hearing of defendant’s motion to vacate the default judgment entered against her, the trial court did vacate it for lack of proper service on defendant. The court also stated, however, that it treated defendant’s general appearance at that hearing as voluntary and gave her 21 days to respond to plaintiff’s complaint. At a subsequent hearing on March 7, 1988, of plaintiff’s motion for reconsideration and to determine the status of the case, the court denied plaintiff’s motion, then noted defendant had not yet responded to the complaint. Plaintiff’s counsel stated he had no objection to giving defendant an additional 28 days to answer the complaint, and the court extended that time to April 6, 1988, and continued the case to 10 a.m. on that day.

On March 14, 1988, plaintiff filed its notice of appeal, and on March 25, 1988, defendant filed her answer to plaintiff’s complaint. Plaintiff’s counsel did not appear at the April 6 setting of the case; defendant did appear and advised the court that her answer had been filed. The record further discloses that on April 6, 1988, the case was dismissed by the trial court for want of prosecution.

In my view, defendant made a general appearance in the case on January 27, 1988, when she sought, and secured, the vacation of the void default judgment against her. The trial court found that to be evident and, after correctly vacating the judgment, gave defendant time to respond to the complaint. At the March 7 status hearing, plaintiff’s counsel tacitly acknowledged that too was his understanding when he agreed defendant should have additional time to file her answer. Defendant made no objection to the jurisdiction of the court over her in any of these proceedings and did file her responsive answer to the complaint within the additional time allowed. Plaintiff’s notice of appeal in these circumstances would not give jurisdiction to this court to review, at this time, plaintiff’s claims of error.

The majority rely upon Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, as authority for this court to hold that “in cases where the judgment is vacated due to improper service that the effect of that order is to quash the service of process and an appeal may be had from this order.” (183 Ill. App. 3d at 1103.) Brauer, however, must be distinguished from the present case, as there the defendant made a special and limited appearance to contest the jurisdiction of the court when the judgment was entered and did not otherwise submit to its jurisdiction. The majority recognizes here that defendant did not make a special appearance, but finds such is not required when a party seeks to set aside a void judgment which has been entered, citing Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1142. I do not agree with the majority’s understanding of the holding in Sullivan v. Bach, which only stands for the long-established proposition that a general appearance made after judgment to challenge the jurisdiction of the court to enter it will not act to retroactively validate a judgment void when entered. (100 Ill. App. 3d at 1141.) This court in Sullivan v. Bach also noted “[t]here is no need to file a special and limited appearance in challenging past jurisdiction unless one wishes to contest the court’s prospective jurisdiction as well.” 100 Ill. App. 3d at 1141-42; see Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 597.

There can be no question in the present case that the general appearance by defendant did not validate the prior void judgment against her, which was then correctly vacated, and, in my view, there is also no doubt that she submitted personal jurisdiction to the trial court for prospective proceedings in the case. Both of the parties, and the trial court, appear to acknowledge that status of the defendant in the case, and it apparently pends on plaintiff’s complaint and defendant’s answer in the trial court and may not now be appealed for lack of a final order. The issue here may also be moot, as after plaintiff filed its premature notice of appeal, plaintiff’s complaint was dismissed in the trial court for want of prosecution and no appeal has been taken from that judgment.

On the record presented, I would dismiss plaintiff’s appeal.