author: JUSTICE BUCKLEY

text:
    MICHAEL P. McKINNON, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—91—1361
    Opinion filed March 8, 1993.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford and Robert P. Sheridan, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Joan Flynn, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Paul Chisholm, Jr. (decedent), died in a cross-over collision on the Kennedy Expressway. Plaintiff Michael McKinnon, the executor of decedent’s estate, filed a wrongful death action and a survival action against the driver of the vehicle which collided with decedent’s vehicle and the defendant City of Chicago. The circuit court granted defendant’s motion to dismiss plaintiff’s cause of action with prejudice on the ground that defendant had no duty to install median barriers, and denied plaintiff’s subsequent motion to vacate the above dismissal. The circuit court also denied plaintiff’s motion for leave to file a second-amended complaint, ruling that the proposed amendment did not cure the defects of the previous complaint, and entered an order pursuant to Supreme Court Rule 304(a) making that order final and appealable. 134 Ill. 2d R. 304(a).

On August 25, 1988, decedent was driving northwest on the Kennedy Expressway. with his children, John and Ann, as passengers. Anthony Dunn was driving on the Kennedy Expressway in the opposite direction, lost control of his car and crossed over into decedent’s lane of traffic through an opening in the median barrier system. Decedent was killed and his children were seriously injured.

On August 25, 1989, plaintiff filed suit along with the decedent’s children’s guardian against defendant, Dunn and two Chicago police officers who allegedly observed Dunn driving erratically and failed to stop him. Defendant moved to dismiss the complaint. The circuit court struck the two counts against defendant, plaintiff voluntarily dismissed the two counts against the police officers, and plaintiff was given leave to replead.

On May 18, 1990, plaintiff filed his first-amended complaint. That complaint alleged that defendant designed, maintained and controlled the Kennedy Expressway and failed to exercise due care by: (1) installing a barrier and/or guardrail too low in height, too narrow in width, and of insufficient strength to prevent traffic from crossing into oncoming lanes; (2) failing to properly maintain the roadway by failing to erect a sturdier barrier or otherwise failing to prevent traffic from coming into oncoming lanes, and by failing to repair the barriers and/or guardrails when defendant knew or should have known that failure to do so would fail to prevent traffic from crossing into oncoming lanes; and (3) designing, constructing and maintaining the barrier and/or guardrails in an unsafe condition, including but not limited to that of being insufficiently strong to prevent traffic from crossing into oncoming lanes, thereby proximately causing decedent’s death.

Defendant filed a motion to dismiss the first-amended complaint pursuant to section 2 — 619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) Defendant argued that in 1959 it had designed the pertinent area of the Kennedy Expressway to be an emergency turnout with no guardrails, and that it could not have subsequently altered that design because the State of Illinois assumed sole responsibility for the repair, maintenance and operation of the Kennedy Expressway upon the opening of it to public use. Defendant further argued that it was immune under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) from any liability stemming from its design of the expressway. Ill. Rev. Stat. 1987, ch. 85, par. 3 — 103(a).

On October 26, 1990, plaintiff represented to the circuit court that he would not be opposing the motion to dismiss, but instead would request time to file a second-amended complaint. Relying on Charpentier v. City of Chicago (1986), 150 Ill. App. 3d 988, 502 N.E.2d 385, which found that the City of Chicago could not be held liable for failing to install median barriers, the circuit court granted defendant’s motion to dismiss. Additionally, the circuit court stated that plaintiff would have to seek leave to file a second-amended complaint, because the court did not intend to permit plaintiff to file a complaint that “merely restate[s] that which is obviously the subject of Charpentier,” or that otherwise fails to state a cause of action. Lastly, the circuit court instructed defendant not to seek a Rule 304(a) finding for 30 days, but stated that it would grant such a motion thereafter if plaintiff had not yet produced a second-amended complaint.

On November 20, 1990, defendant filed a notice of motion to amend the court’s dismissal order to include Rule 304(a) language. On November 21, 1990, plaintiff filed a motion to vacate the court’s October 26, 1990, dismissal order or in the alternative grant him leave to file a second-amended complaint. On December 10, 1990, plaintiff filed an exhibit, its proposed second-amended complaint, to his previous motion to vacate. Defendant responded by arguing that the proposed second-amended complaint did not cure the problems which plagued the first-amended complaint.

On January 8, 1991, the circuit court denied plaintiff’s motion to vacate its dismissal order of October 26 and set defendant’s motion for a Rule 304(a) finding on the call for March 12, 1991. On March 6, 1991, plaintiff filed a motion for leave to file his second-amended complaint. The proposed second-amended complaint alleged that at the time of the design of the Kennedy Expressway, defendant foresaw the occurrence of vehicles crossing over into oncoming traffic and therefore undertook the creation of an improvement in the form of a barricade and/or guardrail, or a system of barricades and/or guardrails. The proposed second-amended complaint further alleged the following wrongful acts or omissions on the part of defendant: (1) designed and constructed a guardrail and/or guardrail system that was unreasonably dangerous and defective and inadequate in that the guardrail and/or guardrail system and the emergency turnout allowed, facilitated, and failed to prevent the crossover of southbound vehicles into northbound traffic; and (2) willfully and wantonly designed and constructed the emergency turnout without making any effort or provision to impede or prevent the access of southbound vehicles into northbound traffic.

On March 21, 1991, the circuit court denied plaintiff’s motion for leave to file the second-amended complaint on the grounds that: (1) the allegations that the turnout allowed and failed to impede crossovers did not cure the defects in the first-amended complaint; (2) the allegations that the turnouts facilitated crossovers were unsupported by any facts and therefore conclusory; and (3) the willful and wanton allegations did not state a cause of action and would not do so even if pleaded separately. The circuit court, then, also granted defendant’s motion for Rule 304(a) language and entered findings that there was no just cause for delaying enforcement of its dismissal order of October 26,1990. Plaintiff appeals.

Initially, plaintiff argues that the circuit court improperly dismissed his first-amended complaint. The inquiry on appeal from an order granting a motion to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure is limited to accepting as true all well-pled facts and reasonable inferences that can be drawn therefrom and to examining whether a cause of action was stated. (Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) Conclusions of law, however, are not admitted. Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210.

Defendant’s motion to dismiss plaintiff’s first-amended complaint was founded on the contention that it had no duty to construct public improvements, but rather, its only duty is to maintain the property in a reasonably safe manner, citing Charpentier and Hull v. City of Chicago (1992), 236 Ill. App. 3d 405, 602 N.E.2d 1300. Plaintiff’s first-amended complaint alleged, inter alia, that defendant had the duty to exercise due care in the design of the barriers and/or guardrails of the expressway.. Plaintiff did, in fact, admit that the place where Dunn crossed over into the path of decedent’s vehicle was an emergency turnout, which is a lack of presence of a barrier or guardrail. Defendant argued and we agree that since there was no barrier or guardrail, there could not be a defect in an absent object. Furthermore, under Charpentier, defendant is not liable for failing to undertake public improvements on roadways. Rather, defendant is only responsible for undertakings it chooses to carry out. Thus, defendant has no common law or statutory duty to install median barriers or to extend the existing barrier. (Charpentier, 150 Ill. App. 3d at 995-96, 502 N.E.2d at 390; Hull, 236 Ill. App. 3d at 406, 602 N.E.2d at 130-31.) We, therefore, find that the circuit court properly dismissed plaintiff’s first-amended complaint.

Next, plaintiff argues that the circuit court erred in denying his motion to vacate the order dismissing his first-amended complaint. Because we found that the circuit court did not err in dismissing plaintiff’s first-amended complaint, we likewise find that the circuit court did not err in denying plaintiff’s motion to vacate that dismissal.

Plaintiff’s final argument is that the circuit court improperly denied it leave to file a second-amended complaint. Defendant argues that the plaintiff’s claim is barred by the construction-design management and supervision statute (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214) and the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a)) and also that the second-amended complaint merely reiterates the allegations of the first-amended complaint.

Under the construction-design management and supervision statute, a plaintiff is allowed a maximum of 14 years from the complained-of act or omission to bring an action based upon the design or construction of an improvement to real property. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214.) This statute applies to actions against governmental as well as private entities. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214; see also Lombard Co. v. Chicago Housing Authority (1991), 221 Ill. App. 3d 730, 587 N.E.2d 485.) Although it is correct that this court may affirm the circuit court’s decision on any basis properly presented in the proceedings below (Smith v. Board of Education of East St. Louis School District No. 189 (1977), 52 Ill. App. 3d 647, 367 N.E.2d 296), the record is devoid of any reference to this statutory argument. Moreover, this argument is a limitations defense which was first asserted in this appeal. It is the duty of the party wishing to assert a limitations defense to raise it at the earliest possible time. (Sabath v. Morris Handler Co. (1968), 102 Ill. App. 2d 218, 243 N.E.2d 723.) Recently, the appellate court held that the City of Chicago’s effort to raise a statute of limitations defense for the first time on appeal specifically constituted waiver. (Boonstra v. City of Chicago (1991), 214 Ill. App. 3d 379, 574 N.E.2d 689.) Therefore, since the record is devoid of the construction-design statutory argument, we cannot affirm the circuit court’s decision on this basis and, furthermore, since it is a limitations defense raised for the first time on appeal, defendant has also waived it.

Defendant also argues that the Tort Immunity Act bars plaintiff’s action. (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a).) Defendant, however, concedes that under the Tort Immunity Act it is liable if the design has created an unsafe condition. (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a).) Plaintiff’s proposed second-amended complaint alleges, inter alia, that defendant “[djesigned and constructed the guardrail and/or guardrail system so as to render the roadway in question in a dangerous condition for public use.” Accordingly, we find that defendant’s argument that the Tort Immunity Act bars plaintiff’s action is meritless because the second-amended complaint does allege that the design created an unsafe condition.

Defendant finally contends that plaintiff’s second-amended complaint merely reiterates the conclusory allegations contained in the first-amended complaint, which was properly dismissed. We disagree. In the second-amended complaint, plaintiff alleges that the guardrail system, not the guardrails themselves, provides allegedly unsafe emergency turnouts thereby creating a defective design. Therefore, Charpentier would not apply because in the instant case the issue is not whether or not a guardrail or barrier should have been constructed and designed differently, but rather, whether the design of the guardrail system was defective. It is well established that the opportunity to amend should be granted unless it is clear that no cause of action can be stated even after amendment. (Halper v. Vayo (1991), 210 Ill. App. 3d 81, 90, 568 N.E.2d 914.) A circuit court abuses its discretion if it refuses to allow a plaintiff to amend his complaint when a cause of action can be stated if the complaint is amended. (Jessen v. Sverdrup & Parcell & Associates,. Inc. (1991), 218 Ill. App. 3d 901, 579 N.E.2d 14.) We hold that the circuit court abused its discretion by denying plaintiff’s request for leave to amend. We reverse the circuit court’s order denying plaintiff leave to file an amended complaint and remand this cause with instructions that plaintiff be granted leave to file a second-amended complaint.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and this cause is remanded with instructions to allow plaintiff to file a second-amended complaint.

Affirmed in part; reversed in part and remanded with instructions.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GIANNIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DIGGS, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—90—3620, 1—91—1271 cons.
    Opinion filed March 12, 1993.

      Rita A. Fry, Public Defender, of Chicago (Greg Koster, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Lisa M. Travis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GIANNIS

delivered the opinion of the court:

The relevant facts of this appeal, a consolidation of two criminal jury trials from the circuit court, can be briefly summarized. Defendant, Robert Diggs, seeks to overturn his convictions for the 1989 sexual assault of two women, and the robbery and residential burglary of a third woman on Chicago’s north side. Defendant is a black man, the complainants are white women. While the trial court did allow defendant to question the jury regarding possible racial prejudice, defendant claims that the trial court’s denial of his attorney’s request to sequester and individually voir dire the jury violated his due process rights. Because defendant does not challenge the sufficiency of the evidence presented at trial, the only issue which need be addressed is whether the trial court committed error by denying defendant individual and sequestered voir dire.

In Mu’Min v. Virginia (1991), 500 U.S. 415, 424, 114 L. Ed. 2d 493, 505, 111 S. Ct. 1899, 1904, the Supreme Court explored the constitutional requirements of the voir dire process when a defendant is charged with committing violent acts against victims of another race. It stated:

“We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But, two parallel themes emerge from both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire.” (500 U.S. at 424,114 L. Ed. 2d at 505, Ill S. Ct. at 1904.)

For purposes of our review, Mu’Min stands for two propositions: first, a defendant who is denied the opportunity to inquire into the possible racial prejudices of the jury in racially sensitive cases such as this one is denied due process; second, however, a trial court’s decision with regard to the extent and scope of that questioning need be reviewed on appeal only under an “abuse of discretion” standard.

Prior to both of the defendant’s trials, the trial judge, who presided in both cases, questioned over 50 prospective jurors. He first questioned them in groups of 14, then asked questions of each venire member individually. Apparently, however, the entire venire panel was present for the questioning of each prospective juror. A review of the record indicates that the trial court was aware of the racially sensitive nature of the voir dire procedure. The record reflects that the following statement was made to prospective jurors as a group preceding defendant’s first trial:

“THE COURT: Let me ask you a question, but I will put it first this way: This case involves a — Mr. Diggs is a black man, an African-American. Some of the witnesses in this case are white females.

Would there be anybody here that merely because of that racial difference would not be able to be fair and impartial to Mr. Diggs, fair to the People of the State of Illinois?”

None of the prospective jurors responded. Additionally, the trial court explicitly allowed the defense attorneys opportunity to question the venire from both trials regarding the factual backgrounds of the prospective jurors. In neither case, however, did defendant’s counsel ask questions directly relating to racial bias.

Illinois Supreme Court Rule 234 sets out the general rule governing voir dire:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.” (134 Ill. 2d R. 234.)

In considering Rule 234, the Illinois Supreme Court has specifically stated, “the trial judge may, at his or her discretion, conduct individual voir dire out of the presence of other jurors but is not required to do so.” (People v. Neal (1985), 111 Ill. 2d 180, 197-98, citing People v. Newbury (1972), 53 Ill. 2d 228, 241.) A corollary to this proposition is that due process, under both State and Federal constitutional analysis, does not mandate individual voir dire. “The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice.” (Kingston v. Turner (1987), 115 Ill. 2d 445, 464; People v. Jackson (1977), 69 Ill. 2d 252, 260.) However, no precise technical test or formula exists for determining whether a prospective juror is impartial. (People v. Washington (1982), 104 Ill. App. 3d 386, 390.) The standard for evaluating a court’s exercise of discretion during the voir dire is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present. People v. DeSavieu (1983), 120 Ill. App. 3d 420, 427.

Based upon a review of the record, and recognizing the wide discretion given the trial court in such matters, we conclude that the trial court did not abuse its discretion in the way in which it conducted voir dire. In defendant’s first trial the trial court clearly made inquiry into the racial prejudices of the venire panel and allowed defendant’s attorneys to pursue this line of questioning should they have so desired. While it is true that the trial court did not make inquiry into the racial prejudices of prospective jurors in the second trial, it must be noted that defendant’s counsel did not propose such an inquiry or pursue this line of questioning when given the opportunity to do so, nor do the cases cited by defendant require the trial court to raise the possibility of racial bias sua sponte with the jury.

Because the refusal of the trial court to allow individual and sequestered voir dire was not an abuse of discretion, defendant’s due process rights were not violated and his conviction is affirmed.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE SLATER McCUSKEY, P.J., JUSTICE BARRY,

text:
      In re MARRIAGE OF LORI ELLEN MOSHER, a/k/a Lori Mosher Vera, Petitioner-Appellant, and ALPHONSO VERA, Respondent-Appellee.
    Third District
    No. 3-92-0212
    Opinion filed March 5, 1993.
    Rehearing denied April 16, 1993.
    BARRY, J., dissenting.
    Arthur J. Inman, of Peoria, for appellant.
    Hartzell, Glidden, Tucker & Hartzell, of Carthage (Stanley L. Tucker, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Lori Mosher, a/k/a Lori Vera, filed a petition for dissolution of marriage against Alphonso Vera in the circuit court of McDonough County. She alleged that the parties had established a common law marriage under the laws of Iowa during a five-month period of residency in Iowa during 1986. The matter proceeded to trial on the sole question of whether the parties were married. The trial court found that Lori had failed to establish an agreement of the parties to be married and that there was no marriage. On appeal, the issue before us is whether the finding of the trial court that the parties were not legally married is contrary to the manifest weight of the evidence.

Findings of the trial court will not be reversed on review unless they are clearly contrary to the manifest weight of the evidence. (Fisher v. City of Aledo (1974), 23 Ill. App. 3d 190, 318 N.E.2d 305.) For a judgment to be against the manifest weight of the evidence, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 431 N.E.2d 738.) The trial court’s findings will be sustained unless wholly unsupported by the evidence. (Armstrong v. United Insurance Co. (1981), 98 Ill. App. 3d 1132, 424 N.E.2d 1216.) If there is evidence to support the fact conclusion, the reviewing court should not reverse, even if it disagrees with the trial court. La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1052, 436 N.E.2d 645.

Illinois has abolished common law marriages. (Ill. Rev. Stat. 1991, ch. 40, par. 214.) However, where the parties reside in another State at the time of contracting a common law marriage that was valid in that State, such marriage will be considered valid here upon their removal to Illinois. (Peirce v. Peirce (1942), 379 Ill. 185, 39 N.E.2d 990.) Throughout the circuit court proceedings, the parties agreed that the law of Iowa controlled the determination of whether a valid common law marriage existed. The burden of proof lies on the party asserting the common law marriage, and such a claim will be regarded with suspicion, there being no public policy in Iowa favoring common law marriage. In re Marriage of Reed (Iowa 1975), 226 N.W. 2d 795, 796.

The supreme court of Iowa, in In re Marriage of Winegard (Iowa 1979), 278 N.W.2d 505, 510, set forth the requirements for a common law marriage, as follows:

“There are three elements requisite to a common law marriage: (1) intent and agreement in praesenti to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. [Citation.] The burden of proof lies on the party asserting its existence, and such a claim of marriage will be regarded with suspicion, there being no public policy in Iowa favoring common law marriage.”

The Iowa court also stated that intent may be shown by circumstantial evidence in the common law marriage context.

According to the evidence, the parties began cohabitating in October of 1982 in Danbury, Connecticut. At that time, Lori was separated from her first husband whom she ultimately divorced in the fall of 1984. Two children, Natalia and Veronica, were born to the parties in 1984 and 1985, respectively. Alphonso has acknowledged paternity of both children.

When Alphonso completed his medical training and residency programs in July of 1985, the parties moved to Chicago with their children. In July of 1986, they moved to the Quad City area where Alphonso had obtained employment at Quad City Dermatology in Moline, Illinois. By arrangement of his employer, they lived in an apartment in Bettendorf, Iowa, until they found a home to purchase in Moline. In November of 1986 they moved to Moline, Illinois, where they resided until July of 1987. They then moved to Macomb, Illinois, where Alphonso opened his own practice as a dermatologist. After residing together for six years, they separated in August of 1988. In August of 1989 Lori filed this action.

According to Lori, Alphonso regularly introduced her socially as “my wife.” Her testimony was corroborated by the wife of one of Alphonso’s colleagues at Quad City Dermatology who claimed on one occasion to have been introduced to Lori by Alphonso in such manner. Alphonso denied introducing Lori as his wife and testified that he generally introduced her as “Lori,” or “the mother of my children,” or “my woman.”

Income tax returns for the years 1986, 1987, 1988 and 1989 indicated that the parties were husband and wife. Alphonso’s curriculum vitae stated that he was married to Lori Mosher. A second mortgage on the Moline real estate listing Alphonso and Lori as “husband and wife” was signed by both of them under oath on October 21, 1986, while they were residing in Bettendorf, Iowa. Insurance documents listed Lori as “wife” for auto and medical dependent coverage. A credit application sent to Von Maur department store showing Alphonso as the spouse of Lori Mosher-Vera, was signed by both parties. Local newspaper stories dated September 2, 1987, announced the opening of Dr. Vera’s dermatology practice in Macomb and reported that he and his wife, Lori, will reside in Macomb. A similar article appeared in the McDonough District Hospital newsletter.

Lori described discussions she had with Alphonso on March 1 and 2, 1986, while they lived in Chicago. She said she told him that she wanted a legal marriage and that she did not feel comfortable living with a man without being married. He did not want anything that was legal or binding. However, according to Lori, he did agree to take a verbal oath of marriage with her before God. After she prepared the oath of marriage in the traditional form, the two of them said the words to each other on March 2. Alphonso admitted that Lori had asked him to exchange vows with her, but denied that he had done so. From that time on, Lori testified that she regularly used the name “Vera.” That was disputed by Alphonso.

The trial court concluded that Lori had established two of the elements of common law marriage required by Iowa law: continuous cohabitation and public declaration that the parties were husband and wife. As to the third requirement, that the parties have a present intent and agreement to be married, the trial court found that there was no evidence that Alphonso ever intended to be legally married to Lori. In making its finding on this issue, the trial court stated:

“These are two highly educated people. She wanted to get married, and he didn’t, and I think that there’s no question in the evidence that there was no agreement by these people to marry within the meaning of the law.”

Here, there was clearly conflicting evidence on the issue of the intent of the parties. For us to reverse, it is necessary to establish the intent of the parties during the five months they resided in Iowa. Most of the evidence centered on public declarations during times they lived in Illinois. Other than public declarations and cohabitation in Iowa, none of their actions in Iowa show intent to be married.

The trial court observed the witnesses and their demeanor and made specific findings of fact which are amply supported by the evidence in the record. The trial court is in a superior position to observe the conduct of witnesses while testifying, to determine their credibility, to weigh the evidence, and to determine the preponderance thereof, especially where the evidence is contradictory. (Scruggs v. Scruggs (1974), 23 Ill. App. 3d 1004, 1009, 320 N.E.2d 406, 411; Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.) Based on the record before us, an opposite conclusion is not clearly evident. The trial court’s findings are not unreasonable or arbitrary.

In Newton v. Lehman (1969), 105 Ill. App. 2d 442, 244 N.E.2d 830, an action for declaratory judgment was filed requesting that the court find the parties were not legally married. The parties had lived together in Iowa for a number of years, filed income tax returns as husband and wife, the plaintiff filed for bankruptcy listing the defendant as his wife, monies had been borrowed and the parties obligated themselves as husband and wife, and the plaintiff had previously filed an action for divorce in the State of Iowa. Despite these facts, the trial court found that no common law marriage existed under Iowa law. At the time the parties began living together, nothing had been said about a present intention of marriage. There was no common understanding of the parties to be husband and wife. On review, this appellate court found that the court’s determination that a common law marriage was not established was not against the manifest weight of the evidence. The facts in the case before us today are surprisingly similar. Cohabitation and public declaration have been established, but present intent and agreement are lacking.

We conclude, under Iowa law, the conduct of the parties does not establish a mutual present intention and agreement to enter into a marital relationship.

The judgment of the circuit court of McDonough County is affirmed.

Affirmed.

McCUSKEY, P.J.,

concurs.

JUSTICE BARRY,

dissenting:

The majority have failed to consider the impact of this decision upon the children of the parties and have misconstrued the law of Iowa; therefore, I dissent.

It should be noted that both parties agree that they have cohabited and lived together as a family since 1982. The evidence is also undisputed that Alphonso and Lori were regarded as married by everyone they had dealings with in Iowa and thereafter, and that neither party ever denied a marriage relationship. According to the wife of a colleague of Alphonso, he introduced Lori as his wife at a party in the Vera apartment in Iowa. Lori corroborated that testimony. Lori also testified that Alphonso never corrected anyone who assumed they were married, and that his mother, who lived with them, always referred to her as his wife. Their children used the last name “Vera.”

Iowa courts have refused to accept a husband’s statements at trial that he did not intend to enter into a marital relationship as determinative of whether a common law marriage existed and instead the courts examine the circumstantial evidence to determine whether the parties intended to sustain a relationship of husband and wife by mutual consent. (E.g., In re Marriage of Winegard (Iowa 1979), 278 N.W.2d 505; Gammelgaard v. Gammelgaard (1956), 247 Iowa 979, 77 N.W.2d 479; In re Marriage of Gebhardt (Iowa App. 1988), 426 N.W.2d 651.) In those cases, the courts considered significant the use of the man’s surname by the woman with his repeated acquiescence, the man’s payment of family expenses, joint vacations, newspaper publications describing the couple as husband and wife, insurance contracts listing the woman as wife, and the opinions of other persons in the community that the parties were married.

In the Gebhardt case, Iowa law was summarized as follows:

“A person may be entitled to marital rights if his or her intention is to be married, even though the other person’s intention is not the same, provided they cohabit and provided the conduct of one person justifies the other to believe he or she intended to be married. In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977) (citing McFarland v. McFarland, 51 Iowa 565, 570, 2 N.W. 269, 273-74 (1879)). Continuous cohabitation and the declaration of holding out to the public that the parties are husband and wife constitutes circumstantial evidence which tends to create a fair presumption that a common-law marital relationship exists. Id. at 617. Introduction of one party by the other as a wife or husband is in and of itself acknowledgment of marital relation. In re Fisher’s Estate, 176 N.W.2d 801, 807 (Iowa 1970).” 426 N.W.2d at 652.

Although the evidence in the case before us is disputed as to whether Alphonso introduced Lori as his wife, it is not disputed that he published newspaper announcements relating to his practice in which Lori was described as his wife. Furthermore, he admitted that he never corrected anyone who assumed that they were married.

According to the Gebhardt analysis, the issue is not whether Alphonso ever intended to formalize a marriage agreement, but rather whether the circumstantial evidence established the existence of a common law marital relationship. Assuming, as we must, that Alphonso was correct when he testified that he refused to recite marriage vows in 1986, nonetheless Alphonso’s admitted conduct in holding out Lori as his wife for social, professional, and financial purposes overwhelmingly established a valid common law marriage under Iowa law. In my view, Iowa law compels a finding that Alphonso’s conduct during the time the parties lived together in Iowa and elsewhere conclusively established the parties’ mutual intention to enter into a husband and wife relationship, regardless of any formal agreement or ceremony.

Furthermore, we cannot overlook the fact that these parties have two children born to them. By recognizing a common law marriage here, the children are legitimized. (See Jambrone v. David (1959), 16 Ill. 2d 32, 156 N.E.2d 569.) Conferring legitimacy upon these children is in harmony with the public policy of Illinois. Peirce v. Peirce (1942), 379 Ill. 185, 39 N.E.2d 990.

The majority rely upon Newton v. Lehman (1969), 105 Ill. App. 2d 442, 244 N.E.2d 830, in which the court declined to recognize a common law marriage. I find the facts of that case quite different than the facts before us here. First and foremost is the fact that the parties had no children, and second, Newton had married another woman after ceasing to cohabit with Lehman. Thus, recognition of a common law marriage would likely have resulted in bigamy charges. Also, there was no evidence that the parties ever introduced themselves as husband and wife or that they were so regarded by persons in the community where they had resided. Other than certain business transactions, the evidence did not disclose conduct by either party that would constitute a holding out to the public that they were husband and wife. The circumstances in the instant case differ greatly so that Newton v. Lehman should be distinguished, not followed.

As I have indicated, I am persuaded that the law of Iowa compels recognition of a common law marriage here, and the public policy of Illinois favoring legitimacy of children would be better served by a reversal of the judgment of the trial court.


author: JUSTICE DOYLE

text:
    HARRIS BANK OF ROSELLE, as Trustee, et al., Plaintiffs-Appellees, v. THE VILLAGE OF METTAWA, Defendant-Appellant.
    Second District
    No. 2 — 92—0624
    Opinion filed March 22, 1993.

      Julius Abler, of Lake Forest, and Arthur M. Holtzman and James K. Stucko, both of Pedersen & Houpt, P.C., of Chicago, for appellant.
    Margaret M. Borcia, of Morrison & Morrison, P.C., of Waukegan, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, Harris Bank of Roselle, as trustee under trust agreement 12672, dated August 10, 1987, and Newton Korhumel, filed a complaint in the circuit court of Lake County, pursuant to section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701), seeking a declaration that the Village of Mettawa Ordinances Nos. 192 and 198 were void with respect to a particular parcel of plaintiffs’ property. Defendant, the Village of Mettawa, timely appeals from orders denying defendant’s motions to dismiss both counts of plaintiffs’ complaint (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(9)) and granting plaintiffs’ motion for summary judgment.

Defendant raises the following issues on appeal: (1) whether the trial court erred in concluding plaintiffs had standing to bring the underlying action; (2) whether the trial court erred in concluding that plaintiffs had sustained their burden of proof in overcoming the presumptive validity of Ordinances Nos. 192 and 198; (3) whether village Ordinance No. 192 was within the statutory authority of the village; (4) whether the trial court erred in concluding that village Ordinance No. 192, which had extraterritorial effect, was unenforceable as to plaintiffs’ property because it was beyond the home rule powers of the village; and (5) whether the trial court erred in concluding that village Ordinance No. 198, which had extraterritorial effect, was unenforceable as to plaintiffs’ property because it amounted to zoning and not road control and because the ordinance violated plaintiffs’ due process rights.

Plaintiff Harris Bank of Roselle, as trustee for the benefit of plaintiff Newton Korhumel and his family, holds legal title to the subject property in this action, an 84-acre parcel of unincorporated, vacant land located in Lake County bordered by Interstate 94 to the east, Illinois Route 60 to the south and Bradley Road to the west. This parcel is located outside, but adjacent to, the corporate limits of the Village of Mettawa. The subject property is not served by a sanitary sewer, and North Shore Sanitation has refused to extend service to the property.

Defendant is a home rule municipal corporation located in Lake County. Portions of Bradley Road are within the municipal boundaries of the village. The municipal boundary of the village, containing a portion of Bradley Road, abuts plaintiffs’ property. Bradley Road is a public, two-lane road running from Illinois Route 60 north to Illinois Route 176. The portion of Bradley Road located south of 1-94 is accessed by properties currently zoned for single-family residences, including plaintiffs’ property. The portion of Bradley Road located north of 1-94 is accessed by properties zoned for a number of uses, including office and research, industrial and residential. Bradley Road provides the sole means of access to plaintiffs’ property. A parcel of land, known as the Bennett property, is located within the corporate boundaries of the village and is zoned residential. On October 16, 1990, by Ordinance No. 3 — 90, the village approved a proposal for construction of a residential housing project on the Bennett property, finding that approval for such a plan was in the best interests of the Village of Mettawa. The Bennett development will implement a wastewater treatment system.

On January 22, 1991, defendant passed Ordinance No. 192, which provides in part:

“ARTICLE II. SANITARY SEWAGE.
SECTION 8.201. Treatment By Irrigation Prohibited. Within the corporate limits of the Village of Mettawa and the territory adjoining it between Bradley Road and the Illinois Toll Road (Interstate 94) ***:
A. It shall be unlawful for any person, firm, or corporation to permit and/or cause to be permitted the treatment of sanitary sewerage and/or sanitary wastewater by irrigation; and
B. No person, firm, or corporation shall undertake to treat sanitary sewerage and/or sanitary wastewater by means of irrigation of any type, including but not limited to spray irrigation.
SECTION 8.202. Definitions.
* * *
B ***
1. ‘Irrigation’ including ‘Spray Irrigation’, shall mean the moistening of the surface of land with treated or untreated sanitary sewerage and including any land treatment type sanitary sewerage facility whether or not such facility has received the approvals required by the Northeastern Illinois Planning Commission, the Illinois Environmental Protection Agency, or any other governmental entity, but excluding sanitary sewerage septic systems.
2. ‘Sanitary Sewerage’ and/or ‘Sanitary Wastewater’, shall mean a combination of the water-carried wastes from residences, business buildings, institutions, and other establishments.
SECTION 8.203. Penalties. Any person, firm or corporation who violates or aids and abets in the violation of any of the provisions of this Article is guilty of a misdemeanor ***.”

Plaintiffs’ property is wholly contained within the extraterritorial areas Ordinance No. 192 specifically purports to regulate.

On September 3, 1991, plaintiffs filed a petition for rezoning of the subject property, from “E” zoning to “U” zoning, to permit its development as an office campus. The petition further requested that the Lake County board grant the subject property a conditional use permit for a wastewater land treatment facility. Section 3.05 of the Wastewater Land Treatment Site Regulation Act (Ill. Rev. Stat. 1991, ch. lll1^, par. 583.05) further required plaintiffs to obtain a permit from the Illinois Environmental Protection Agency prior to establishing, operating, managing or maintaining the wastewater land treatment system which they proposed to utilize for the development.

On November 13, 1991, defendant approved resolution No. 91— 8 protesting and objecting to the proposed rezoning and the issuance of a conditional use permit with respect to plaintiffs’ property. A copy of this ordinance was submitted by defendants to the Lake County zoning board of appeals during hearings on plaintiffs’ rezoning petition.

On November 20, 1991, defendant approved Ordinance No. 198, which provides, in part:

“ACCESS TO ROADS *** 1. The Village roads named above [Little St. Mary’s Road, Old School Road and Bradley Road] may be accessed only from single family residential properties and from areas platted and containing single family residences.”

On November 20, 1991, defendant also prepared a memorandum of law directed to the Lake County zoning board of appeals regarding plaintiffs’ rezoning petition, entitled “Mettawa’s Memorandum of Law on Access to its Roads,” indicating the position that the village can deny access to its road, or limit it to single-family dwellings. A copy of Ordinance No. 198 was attached, and both items were filed with the zoning board of appeals on the following day. A copy of Ordinance No. 192 was also filed with the zoning board of appeals during proceedings pertaining to the plaintiffs’ petition for rezoning. On December 18, 1991, plaintiffs initiated an action for declaratory judgment which underlies this appeal.

On March 6, 1992, the Lake County zoning board of appeals voted to recommend that the Lake County board deny the petition for rezoning and request for conditional use permit with respect to the subject property. The zoning board of appeals stated that it had received reports, recommendations and correspondence from a number of sources, including the Village of Mettawa, and that it had considered the testimony at the public hearings and the recommendations from interested official bodies in making its recommendation. On April 14, 1992, the Lake County board voted to deny the petition for rezoning and request for conditional use permit for plaintiffs’ property. Plaintiffs filed suit challenging the decision on July 7, 1992.

On April 24, 1992, the circuit court granted plaintiffs’ motion for summary judgment, concluding: (1) that Ordinance No. 192 was unconstitutional as applied to plaintiffs’ property in that defendant lacked specific statutory authority to enact an ordinance of its nature which regulates matters outside the municipality; (2) that Ordinance No. 198 was unconstitutional as applied to plaintiffs’ property because its application to the property was not in the nature of road control, but rather zoning, and defendant lacks statutory authority to regulate such matters beyond municipal boundaries; and (3) that Ordinance No. 198 was unconstitutional as applied to plaintiffs’ property because its application to the property caused a substantial deprivation of access to the property without due process of law.

Defendant first contends that plaintiffs lacked standing to bring the underlying action for declaratory judgment. Defendant filed three separate section 2 — 619 motions to dismiss. The first, filed prior to its answer, challenged standing on the theory that neither ordinance applied to plaintiffs’ residentially zoned property. The second and third motions were filed subsequent to the zoning board of appeals’ decision to recommend against rezoning of the property, and the county board’s denial of the rezoning request, respectively. Both motions challenged standing while claiming, in the alternative, that subsequent events had rendered any actual controversy moot. All three motions were denied by the trial court.

When reviewing a section 2 — 619 motion to dismiss, the trial court must take all properly pleaded facts as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505; People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 860.) Thus, the appellate court is concerned only with questions of law presented by the pleadings. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554; Hartigan, 216 Ill. App. 3d at 860.

For standing to exist in a declaratory judgment action concerning the construction of a municipal ordinance, two requirements must be satisfied: (1) there must be an “actual controversy,” and (2) the party seeking declaration of rights must be “interested in the controversy.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701; Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375-76; Metroweb Corp. v. County of Lake (1985), 130 Ill. App. 3d 934, 936.

“Interested parties” are not merely those who have a curiosity about or a concern for the outcome of the controversy, but rather those parties possessing a personal claim, status, or right which is capable of being affected. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450-51, citing Underground Contractors, 66 Ill. 2d at 375-76.) Therefore, a plaintiff seeking to challenge the constitutionality of a municipal ordinance must demonstrate inclusion within the class as to whom it is allegedly unconstitutional (Gamefowl Breeders, 75 Ill. 2d at 451) by having sustained, or being in immediate danger of sustaining, direct injury as a result of enforcement of the challenged statute (Gamefowl Breeders, 75 Ill. 2d at 451; Metroweb, 130 Ill. App. 3d at 936).

We conclude that plaintiffs are “interested parties,” as required by section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701). Ordinance No. 192 expressly prohibits private treatment of wastewater and sewerage by irrigation within the municipal boundaries of the Village of Mettawa and on certain lands adjoining the village. It is undisputed that plaintiffs’ property is located within those specified areas. With respect to Ordinance No. 198, it is undisputed that the sole point of access for the subject property is provided by a portion of Bradley Road and further that Ordinance No. 198 purports to limit access to that portion of Bradley Road solely to residential properties. Plaintiffs’ property, therefore, is within the description of property allegedly affected by these ordinances, and plaintiffs, as the owners of that property, are “interested parties.”

Defendant mistakenly relies on the Metroweb case for its position that plaintiffs lacked standing to maintain the underlying action because they lack “real interest.” In Metroweb this court concluded that a party holding a lease contingent upon rezoning of certain property lacked a possessory interest sufficient to challenge the denial of rezoning. (Metroweb, 130 Ill. App. 3d at 937-39; see also Illinois Municipal League v. Illinois State Labor Relations Board (1986), 140 Ill. App. 3d 592, 606.) This is unlike the present case in which plaintiffs’ possessory interest in the property is undisputed.

Defendant argues that no actual controversy exists with respect to the two village ordinances because the planned development is prohibited under the current zoning of the subject property. “Actual controversy” does not require that a wrong be committed and injury inflicted; it requires a showing that issues and disputes underlying the action are neither moot nor premature. This requirement is intended to prevent the courts from granting declarations of rights involving only abstract propositions of law. (Gamefowl Breeders, 75 Ill. 2d at 450-51, citing Underground Contractors, 66 Ill. 2d at 375.) The remedy of declaratory judgment is designed to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right. (Gamefowl Breeders, 75 Ill. 2d at 452; City of Chicago v. Department of Human Rights (1986), 141 Ill. App. 3d 165, 170.) The “actual controversy” requirement is not intended to prevent resolution of concrete disputes admitting of a definitive and immediate determination of the rights of the parties. The declaratory judgment remedy should be liberally applied and not restricted by unduly technical interpretations. Gamefowl Breeders, 75 Ill. 2d at 452.

Ordinance No. 192 clearly purports to prohibit the use of waste-water land treatment systems on plaintiffs’ property. This prohibition is independent of zoning restrictions. Plaintiffs have taken substantial steps towards development of the subject property as an office campus, including attempting to rezone their property to permit office and research use and obtain permits necessary to operate a wastewater land treatment facility to service the planned office campus development. Defendant argues that until rezoning has occurred and a conditional use permit issued, Ordinance No. 192 is inapplicable to the subject property and no actual controversy exists. This argument is based upon a logical fallacy. Like the Lake County zoning regulations, and the need for IEPA and county use permits, Ordinance No. 192 acts as a barrier to the proposed development of the subject property. As with a door secured by several locks, each individually acts as a barrier, regardless of whether the others remain intact. Because Ordinance No. 192 operates to prohibit the planned development’s wastewater land treatment system, an actual controversy exists concerning the application of Ordinance No. 192 to the subject property.

With respect to Ordinance No. 198, it is undisputed that this ordinance was passed subsequent to the filing of plaintiffs’ petitions for rezoning. Defendant filed this ordinance with the Lake County zoning board of appeals along with a memorandum of law concerning the village’s authority to limit or deny access to its road. Defendant has asserted that it will deny plaintiffs the sole means of access to the subject property if it is not developed for single-family residences. Plaintiffs argue that Ordinance No. 198 is tantamount to zoning of their property by the village. Plaintiffs have standing to challenge Ordinance No. 198 to the extent that it acts as a “zoning” ordinance, just as they would have standing to challenge any zoning ordinance prohibiting the intended use of their property. (Cf Urann v. Village of Hinsdale (1964), 30 Ill. 2d 170.) Furthermore, standing could be based on the factors similar to those we have discussed concerning plaintiffs’ standing to challenge Ordinance No. 192. Regardless of the village’s true motivation in enacting this ordinance, an “actual controversy” exists between the parties.

As to defendant’s contention that rezoning must first be obtained as a condition precedent to challenging the ordinances, we further note that requiring plaintiffs to expend the resources necessary to secure rezoning and use permits for the proposed development, only to find their efforts are for naught because of the enforceability of these ordinances, would defeat the legislative purpose behind permitting declaratory relief, particularly where the issues and facts are as refined and clear as they are in this matter.

Although defendant has not raised the issue of mootness on appeal, we note that it is an issue of jurisdiction which must be addressed. (In re B.D. (1991), 212 Ill. App. 3d 251, 253-54.) The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, or when the substantial questions involved in the trial court no longer exist, it will dismiss the appeal. (People ex rel. Foreman v. Village of North Barrington (1989), 191 Ill. App. 3d 544, 555.) The crux of defendant’s argument to the trial court with respect to mootness was that because plaintiffs failed to obtain rezoning, the planned development could not proceed, and any issues with respect to Ordinances Nos. 192 and 198 were rendered moot because the planned development was barred. This argument begs the question. Under this same logic, plaintiffs’ declaratory action challenging the denial of their rezoning petition could also be determined moot because the village ordinances prohibit the proposed development which underlies the need for rezoning. The decisions of the Lake County zoning board of appeals and Lake County board are independent of questions regarding the enforceability of the village’s ordinances, and they do not render the controversy in this action moot.

The remaining arguments raised by defendant question the trial court’s grant of plaintiffs’ motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005). The summary judgment issues on appeal may be summarized as follows: (1) whether the trial court erred in concluding, as a matter of law, that Ordinance No. 192 was unconstitutional as it pertained to the subject property because the extraterritorial aspect of that regulation was beyond the authority of the village’s home rule powers; (2) whether the trial court erred in concluding as a matter of law that Ordinance No. 198 was unconstitutional as to the property because its extraterritorial effeet was tantamount to a zoning regulation which was beyond the authority of the village’s home-rule powers; and (3) whether the trial court erred in concluding, as a matter of law, that Ordinance No. 198 was unconstitutional as to the property because its enforcement caused substantial deprivation of access to the property without due process of law.

Summary judgment is a drastic remedy, and it must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment should be granted by the trial court only when it is satisfied that the pleadings, affidavits and other evidence present no genuine issue of material fact. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21; In re Estate of Marks (1991), 211 Ill. App. 3d 53, 61.) A reviewing court’s task is to determine (1) whether the trial court correctly concluded that there were no genuine issues of material fact, and, if so, (2) whether judgment for the moving party was correct as a matter of law. Estate of Marks, 211 Ill. App. 3d at 61; International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

Both parties agree that there were no issues of material fact based upon the record before the trial court. Also, the construction of a statute, ordinance, or constitutional provision is a question of law which is independently determined by the reviewing court. (Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993.) Thus, summary judgment was the proper vehicle for resolving this action, and we must review, de novo, whether plaintiffs were entitled to summary judgment. See Outboard Marine Corp. v. Liberty Mutual Insurance (1992), 154 Ill. 2d 90, 102.

The general powers of home rule units are set out under section 6 of article VII of the Illinois Constitution:

“§6. Powers of Home Rule Units.
(a) *** Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare ***

* * *

(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, §6.

Defendant contends that enacting Ordinance No. 192 is within the scope of these home rule powers and that section 7 of the Statute on Statutes (Ill. Rev. Stat. 1991, ch. 1, par. 1106) provides that home rule powers under paragraph (i) of section 6 of article VII of the Illinois Constitution may not be limited or denied by legislation enacted after January 12, 1977, except through specific language. Defendant discusses the village’s authorization to regulate sewerage treatment under the powers of home rule units, how those powers are exercised concurrently with any State regulation of the same subject matter, and how home-rule powers cannot be limited or denied except through specific legislative language. These arguments are immaterial because this action concerns solely the extraterritorial nature of Ordinance No. 192. Section 6 of article VII of the Illinois Constitution, which delineates the powers of home rule units, does not authorize home rule units to enact extraterritorial regulations such as those involved in the present action. “Absent an express grant of statutory authority, a municipality may not exercise extraterritorial governmental power.” (Emphasis added.) Village of Lisle v. Action Outdoor Advertising Co. (1989), 188 Ill. App. 3d 751, 760; see also Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 77-78; City of Galena v. Dunn (1991), 222 Ill. App. 3d 112, 121.

Defendant asserts that the extraterritorial scope of Ordinance No. 192 is specifically authorized by section 7 — 4 — 1 of the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 7 — 4 — 1), which provides:

“§7 — 4—1. The corporate authorities in all municipalities have jurisdiction in and over all places within one-half mile of the corporate limits for the purpose of enforcing health and quarantine ordinances and regulations.”

“[Section 7 — 4—1] grants extraterritorial powers to all municipalities, not just home rule municipalities” (emphasis in original) (People ex rel. Kempiners v. Draper (1986), 113 Ill. 2d 318, 321), and there is no reasonable basis for distinguishing between the home rule units and other municipalities as to the extraterritorial enforcement of ordinances enacted under that grant of regulatory authority (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 485-86).

Any municipal attempt to exercise extraterritorial power is always subject to the requirements that the ordinance (1) be passed pursuant to legislative authority, (2) constitute a valid exercise of the police power, and (3) bear a reasonable relation to the public health, safety and welfare. (Galena, 222 Ill. App. 3d at 121.) Further, where there is a State law relating to the subject, an exercise of police power by a municipality must be in harmony with such law. Village of Oakwood Hills v. Diamond (1984), 125 Ill. App. 3d 58, 61.

With respect to the latter, it is undisputed that, prior to implementing the proposed wastewater land treatment system on the subject property, plaintiffs must satisfy the requirements of the Wastewater Land Treatment Site Regulation Act. (See Ill. Rev. Stat. 1991, ch. HV-tz, pars. 581 through 590.) Ordinance No. 192 creates a blanket prohibition barring the operation of wastewater land treatment systems on the subject property. In our opinion, such absolute prohibition, without provision for exception or review based on such circumstances as the type of system proposed or the site involved, must be distinguished from a legitimate attempt to contempora'neously regulate such systems, for example by requiring village-issued use permits to be obtained in addition to those required by the State and county. While the latter example could arguably be characterized as regulation which is concurrent or harmonious with the Wastewater Land Treatment Site Regulation Act, the former, employed in Ordinance No. 192, is not a regulation which supplements the State’s regulatory authority. Instead, it usurps such authority by attempting to render the village’s regulation of the subject matter exclusive and final. In this regard, Ordinance No. 192 is invalid as applied to the subject property.

Furthermore, it is our opinion that the extraterritorial operation of Ordinance No. 192 is not a “health or quarantine ordinance or regulation” within the meaning of section 7 — 4—1 of the Illinois Municipal Code. (See Ill. Rev. Stat. 1991, ch. 24, par. 7 — 4 — 1.) Defendant asserts that prohibiting the treatment of sanitary sewerage and/or sanitary wastewater by means of irrigation relates to matters of public health and thereby qualifies as a “health and quarantine” regulation. One of the fundamental tenets of statutory construction is that a court must, whenever possible, attribute some reasonable meaning to every word, clause or section of a statute; each provision and word should be given reasonable meaning; and a statute will not be presumed to contain surplusage within its provisions. (Jensen Disposal Co. v. Town of Warren (1991), 218 Ill. App. 3d 483, 490.) “Public health” is a term of art in municipal law in that it defines one of the basic limitations on general municipal authority. All municipal regulations, whether territorial or extraterritorial, are subject to the requirement that they (1) are passed pursuant to legislative authority, (2) constitute a valid exercise of municipal police powers, and (3) bear a reasonable and substantial relation to the public health, safety or general welfare. (Galena, 222 Ill. App. 3d at 121-22, citing Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 244.) If this court were to adopt defendant’s interpretation that the term “health,” as used in section 7 — 4—1, equates to “public health,” as generally defined in municipal law, we would render the term redundant. Further, we find it inexplicable that the legislature would specifically use the word “health” if it intended to refer to the broad, general term of “public health” while omitting reference to “safety” or “welfare.” It is apparent that “health,” as the term is used in section 7 — 4—1, is intended to have some more specific meaning.

The term “health” is not defined in section 7 — 4—1, nor has its meaning been judicially interpreted. Thus, we are guided by both the plain meaning of the statute’s language and legislative intent. (See In re Application of County Collector (1989), 181 Ill. App. 3d 345, 348.) To determine legislative intent, statutory language is examined as a whole, and each part is considered in connection with every other part. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 484.) Section 7 — 4—1 uses the terms “health” and “quarantine” in a-related manner. In this context, “health” has a common and plain meaning: “of, relating to, or engaged in welfare work directed to the cure and prevention of disease.” (Webster’s Third New International Dictionary 1043 (1986).) This interpretation is supported by the limited case law arising from section 7 — 4—1, which was previously codified as section I of article 8 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1947, ch. 24, par. 8 — 1). The majority of those cases deal with municipalities attempting to license and regulate the production and pasteurization of dairy products distributed and sold in their jurisdiction. See, e.g., Dean Milk Co. v. City of Elgin (1950), 405 Ill. 204; Higgins v. City of Galesburg (1948), 401 Ill. 87; see also Kempiners, 113 Ill. 2d at 322 (“[ejxtraterritorial power to enforce health regulation is usually granted to eliminate ‘nuisances existing outside corporate limits but causing annoyance to residents within the municipality.’ [Citations.] When municipal residents are threatened by a health hazard existing outside municipal borders, the municipality clearly has an incentive to act”).

While sewerage treatment may be generally related to matters of “public health,” we do not believe that section 7 — 4—1 authority to enact health and quarantine ordinances authorizes municipalities to regulate extraterritorial sanitation management in the method employed by Ordinance No. 192. Although defendant has cited authority, relative to the relationship sanitary management has to the “public health, safety and welfare,” which bears on the ordinance’s reasonableness, we need not address that concern because Ordinance No. 192 is invalid for the reasons we have discussed above. Defendant has cited no authority which supports characterizing Ordinance No. 192 as a “health and quarantine” regulation, and we decline to broaden those terms beyond their common usage to include the enactment in question. If a municipality wishes to enact and enforce extraterritorial regulations, it must act under the color of a specific, express grant of statutory authority. (Commercial National Bank, 89 Ill. 2d at 77-78.) Such authorization is lacking with respect to the application of Ordinance No. 192 to the subject property. The trial court correctly granted summary judgment with respect to count I of the complaint.

Defendant next argues that Ordinance No. 198 was enacted pursuant to the village’s home rule powers under section 6 of article VII of the Illinois Constitution and further that such exercise is consistent with the provisions of the Illinois Highway Code (Ill. Rev. Stat. 1991, ch. 121, par. 1 — 101 et seq.) and the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 1 — 1—1 et seq.). A preliminary review of the ordinance would suggest that it regulates property solely within the municipality’s territorial limits, but upon careful examination it is clear that the ordinance has direct, extraterritorial impact because it purports to deny access to Bradley Road for certain extraterritorial lands, including the subject property, if such properties are not single-family residential properties or properties platted and containing single-family residences.

Defendants have admitted that Ordinance No. 198 has extraterritorial effect, even to the point of preparing a memorandum of law regarding Ordinance No. 198 and its enforceability with respect to the subject property on the very day the ordinance was enacted. As previously noted, the municipal exercise of extraterritorial governmental power must be supported by an express grant of statutory authority. (Commercial National Bank, 89 Ill. 2d at 77-78.) Defendant has cited no authority to support the extraterritorial scope of Ordinance No. 198.

As noted by the trial court, denying the plaintiffs access to their property unless it is developed as single-family residéntial property is tantamount to zoning of the subject property by the village. “Zoning restrictions are of two categories: (1) the nature of the use which may be made of the property, i.e., residential, industrial or commercial, and (2) restrictions on height, bulk and area. The two are frequently considered together.” (Galena, 222 Ill. App. 3d at 120.) The Village of Mettawa, despite its status as a home rule municipality, has no authority to zone property which lies outside its territorial limits. County of Will v. City of Naperville (1992), 226 Ill. App. 3d 662, 665.

In response to plaintiffs’ position that Ordinance No. 198, with respect to the subject property, is effectively a zoning ordinance, defendants argue that Ordinance No. 198 is not titled a zoning ordinance and that its language does not indicate a zoning purpose behind this ordinance. We are not persuaded by either argument. Defendant contends that the purpose behind Ordinance No. 198 is to eliminate problems arising from congested traffic. This has been recognized as an important purpose behind, zoning regulations (see Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 383); however, issues of the overall constitutionality and general enforceability of Ordinance No. 198 are not before this court. Rather, we are concerned with the extraterritorial scope of this regulation solely as it applies to the subject property.

It is undisputed that the property’s sole access is through Bradley Road, that Ordinance No. 198 purports to regulate the subject properties’ access to Bradley Road, and that if Ordinance No. 198 is given effect with respect to the property, the plaintiffs’ use of it will be restricted solely to single-family residences. Therefore, as applied to the subject property, Ordinance No. 198 effectively operates to zone for use solely as to single-family residences. This ordinance was enacted after the initiation of the plaintiffs’ rezoning attempts. The memorandum of law prepared on the same day of this ordinance’s enactment clearly demonstrates that the village was aware of the effect it would have on the property despite the title of the ordinance, its stated purpose, and the motivations behind its enactment. We conclude that Ordinance No. 198 is invalid with respect to the subject property because its extraterritorial scope was beyond the village’s authority.

Moreover, we agree with the trial court’s conclusion that Ordinance No. 198 as applied to plaintiffs’ property is invalid because it denies the plaintiffs due process of law. In particular, Ordinance No. 198 denies the subject property the possibility of industrial, commercial, or multifamily residential use by denying access to the property for those uses. This amounts to a substantial deprivation which is not balanced in any way, for example, by providing for the possibility of rezoning, or by compensation. We conclude that the trial court correctly granted summary judgment with respect to count II of the complaint.

Finally, in reaching this result we have considered defendant’s motion to strike portions of plaintiffs’ brief. Concerning point one of the motion, we note that the disputed comments are merely legal argument. We are able to ascertain the legitimacy of such conclusions and find it unnecessary to strike them. With respect to point two of the motion, we will consider the issues raised by plaintiffs and sustain the trial court’s judgment based thereupon despite the lack of a cross-appeal because the entirety of the judgment entered was in the plaintiffs’ favor. (See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386-87.) Defendant’s motion to strike is therefore denied.

Based on the foregoing, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE GOLDENHERSH WELCH, J., JUSTICE RARICK,

text:
    THE DEPARTMENT OF PUBLIC AID ex rel. CAROLYN McNICHOLS, Petitioner-Appellee, v. RAYMOND J. McNICHOLS, Respondent-Appellant.
    Fifth District
    Nos. 5—91—0454, 5—91—0496 cons.
    Opinion filed April 6, 1993.

      RARICK, J., dissenting.
    Howard B. Eisenberg, of Little Rock, Arkansas, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Carolyn McNichols and respondent, Raymond J. McNichols, were divorced on November 8, 1983. The circuit court of Massac County awarded custody of their minor son, Mark McNichols, to Carolyn and ordered respondent to pay child support in the amount of $50 per week. Respondent ceased making the support payments in 1984 when he was incarcerated. Respondent was released from prison in February 1987. In October 1987, he reached the age of 62 and began receiving social security retirement benefits. From the time of his release from prison until 1990, respondent was unemployed. Respondent worked sporadically during 1990 and until March 1991, but since then his only income has been his social security benefits of $617 per month and some veteran’s benefits.

On December 12, 1990, petitioner, the Department of Public Aid ex rel. Carolyn McNichols, filed a petition in the circuit court of Massac County under the Uniform Reciprocal Enforcement of Support Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1201 et seq.), seeking to collect $17,780 in child support arrearage. After petitioner filed the petition, respondent applied for social security benefits on behalf of his son, for which the child had been eligible when respondent turned 62. In January 1991, the Social Security Administration paid Mark a lump sum of $14,213 in benefits that had accrued since October 1987. In January 1991, Mark began receiving monthly payments of $401 from the Social Security Administration.

On February 5, 1991, respondent filed a motion to dismiss petition and modify support obligation. In that motion, respondent requested that the lump-sum payment from the Social Security Administration be applied as an offset toward his arrearage of $17,780, and that the remaining arrearage be forgiven because he lacked the financial resources to pay. Respondent further requested that the court modify its earlier child support order so that respondent’s current support obligation would be satisfied by the $401 in social security benefits paid to the child.

On February 27, 1991, the circuit court entered an order modifying respondent’s current obligation as respondent requested, but the court reserved the question of the arrearage. In a letter dated May 8, 1991, the circuit court ruled that respondent’s support arrearage could not be offset by the $14,213 social security payment. Relying on In re Estate of Nakaerts (1982), 106 Ill. App. 3d 166, 435 N.E.2d 791, the circuit court stated:

“I do not read the Nakaerts case as giving the trial court the discretion to offset child support arrearages with Social Security benefits. *** While I have sympathy for Mr. McNichols’ predicament, I am bound to follow the law. Until it is changed, the law on this point in Illinois is Nakaerts. As the Appellate Court pointed out in that case, to have allowed a setoff (for Social Security benefits) would have amounted to a retroactive modification of vested support rights.”

The court entered judgment against respondent on May 28, 1991, denying respondent credit for the social security benefits paid to the child.

Respondent then filed a motion for stay of enforcement. The circuit court heard the matter on June 24, 1991, and entered an order denying the motion. The court ordered respondent to pay $50 per month on the child support arrearages. This appeal followed.

Respondent contends on appeal that the trial court does have discretion to offset a child support arrearage by social security benefits paid on behalf of the child, and it is reversible error for the trial court to hold otherwise. As stated earlier, the trial court relied solely on Nakaerts to determine that it had no discretion to offset child support arrearages with social security benefits. In Nakaerts, Patricia Nakaerts filed a petition against her deceased husband’s estate, requesting a surviving child’s award on behalf of her minor son and asking for unpaid alimony and child support pursuant to a temporary order entered in a marriage dissolution proceeding prior to her husband’s death. The trial court awarded her one sum for unpaid alimony and support and another sum as a child’s award. The estate appealed that order, claiming that the trial court should have allowed credit for social security benefits the child received while decedent was totally disabled before his death. In affirming the issue, the Nakaerts court reasoned:

“In Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, the Illinois Supreme Court ruled that a father could not make a unilateral reduction in child support payments when one child reached his majority. In its decision, the court said it is the function of the court to determine whether equitable considerations require a pro rata reduction or whether other factors require a different result. ‘The responsible parent should petition the court for a judicial determination of the amount the support payments should be reduced due to changed circumstances.’ [Citation.] Consistent with this approach is that of the State of Washington, where the courts have held that a father was not entitled to credit against his child support payments for social security disability benefits paid to his child, in the absence of a modification of the original support order, and that the father’s disability and the resulting entitlement to benefits are changes in the condition of the parties to be considered by the court but that a modification requires affirmative action by the court. Chase v. Chase (1968), 74 Wash. 2d 253, 444 P.2d 145; Hepton v. Hepton (1980), 25 Wash. App. 229, 605 P.2d 1288.
We, therefore, conclude that the trial court did not err in refusing to allow a setoff. To have done so would have amounted to a retroactive modification of vested support rights.” 106 Ill. App. 3d at 170, 435 N.E.2d at 794-95.

We do not find the analysis used in Nakaerts applicable to the case at bar. In the case before us, the retroactive modification of vested support rights is not at issue. What is at issue is the discharge of vested support payments. In Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, our supreme court held that dissolution proceedings are governed by the rules of chancery. (81 Ill. 2d at 332, 410 N.E.2d at 19.) The court stated:

“[T]he allowance of interest on past-due periodic support payments is not mandatory *** but lies within the sound discretion of the trial judge, whose determination will not be set aside absent an abuse of that discretion.” (81 Ill. 2d at 332, 410 N.E.2d at 19.)

Based on Finley, this court concluded that a trial judge has discretion in matters of discharging vested support payments. (In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 548 N.E.2d 139.) In reaching that conclusion, we reasoned:

“As the allowance of interest lies within the sound discretion of the trial judge, so, too, does the discharge procedure of vested support payments. The setting of this procedure, as in the awarding of interest, is governed by equitable considerations of chancery. There is no indication in the record that the circuit court intended to alter or reduce the arrearage in question. The circuit court’s concern was with the manner of discharging voluminous obligations, not the vacation of any vested right. We therefore conclude that the setting of a procedure for discharging vested support and maintenance payments which are in arrears lies within the sound discretion of the trial judge. We wiU not set aside his discharge procedure absent an abuse of that discretion.” Hardy, 191 Ill. App. 3d at 691-92, 548 N.E.2d at 143.

In the case at bar, there is no indication that the circuit court intended to alter or reduce the arrearage in question. The request before the trial court was to allow a setoff for social security benefits against the arrearage in child support. Such a request goes to the discharge procedure of vested support payments and not to modification of vested support rights. The decision to grant or deny respondent’s request therefore lies within the sound discretion of the trial judge.

As stated earlier, the trial judge in this case believed that he had no discretion to offset respondent’s vested support obligations by the social security benefits. We hold that the trial judge did have discretion to decide that issue. Error is committed when a trial court refuses to exercise discretion due to the incorrect belief that it has no discretion as to the question presented. (People v. Queen (1974), 56 Ill. 2d 560, 310 N.E.2d 166, citing People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 195 N.E.2d 634.) On occasion, this error may be of such significance that the cause must be remanded for a new trial. (Queen, 56 Ill. 2d at 565-66, 310 N.E.2d at 169.) We find this to be one of those occasions, and we remand the cause before us for a new hearing on respondent’s motion.

For the foregoing reasons, the order of the circuit court of Massac County is reversed, and the cause is remanded for further proceedings, specifically for the trial court to exercise its discretion concerning those matters raised in respondent’s motion.

Reversed and remanded with directions.

WELCH, J.,

concurs.

JUSTICE RARICK,

dissenting:

Contrary to the majority, I believe the reasoning of In re Estate of Nakaerts (1982), 106 Ill. App. 3d 166, 435 N.E.2d 791, is applicable to the situation here. Past-due child support payments are a vested right, and the trial court has no right to modify them. (In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 690, 548 N.E.2d 139, 142.) The application of social security benefits to reduce arrearages in child support constitutes a retroactive modification of vested support rights which I do not believe the trial court had the discretionary authority to do. (See Nakaerts, 106 Ill. App. 3d at 170, 435 N.E.2d at 794-95.) Consequently, I must dissent with respect to the majority’s holding as to respondent’s past-due obligations. I recognize other States are divided on this issue (see McDaniel, Annotation, Right to Credit on Child Support Payments for Social Security or Other Government Dependency Payments Made for Benefit of Child, 77 A.L.R.3d 1315 (1977)), but I believe more is at stake here than merely a method of discharging vested support payments.


author: JUSTICE CAMPBELL

text:
    ROY LESCHINSKI, Plaintiff-Appellant, v. FOREST CITY STEEL ERECTORS, Defendant-Appellee and Third-Party Plaintiff-Appellee (Missner-Lirtzman Company, Third-Party Defendant-Appellee).
    First District (1st Division)
    No. 1 — 90—2486
    Opinion filed February 8, 1993.

      Williams & Marcus, Ltd., of Chicago (John F. Dziedziak, of counsel), for appellant.
    Kralovee, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold, Sara T. Wiggs, and Daniel J. Donnelly, of counsel), for appellee Forest City Steel Erectors.
    Bollinger, Ruberry & Garvey, of Chicago (John M. Stalmack and Deborah L. Nico, of counsel), for appellee Missner-Lirtzman Company.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Roy Leschinski, brought this two-count suit for injuries he sustained while working at a construction site. Defendant Forest City Steel Erectors (Forest City) was a subcontractor on the site responsible for installing metal decking, steel beams and columns for the warehouse under construction at the site. Plaintiff was an employee of the third-party defendant, the Missner-Lirtzman Company (Missner-Lirtzman), which was the general contractor for the construction project. Count I of plaintiff's complaint alleged a violation of the Structural Work Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60), and count II sounded in negligence. Forest City and Missner-Lirtzman sought summary judgment as to count I. The trial court granted both motions and plaintiff appeals. The sole issue for review is whether plaintiff’s injury occurred as a result of a violation of the Structural Work Act.

Plaintiff’s allegation of a violation of the Structural Work Act is based on the following facts, which appear in the record on appeal. On May 31, 1985, plaintiff was employed as a job superintendent, responsible for coordinating the various tradesmen involved in the construction of a warehouse in Northbrook. The weather on that day was sunny and windy. At about 10 a.m., plaintiff received a complaint from the foreman of a precast contractor working at the site. The foreman told plaintiff that there were sheets of metal decking blowing around on the roof and some decking blowing off the roof of the warehouse.

These sheets were 16 to 20 feet long, between 30 inches and 6 feet wide and about one-eighth of an inch thick. The metal is corrugated, with a lV2-inch dip every four inches. Generally, such sheets are welded to bar joists, then covered with insulation, roofing paper and tar.

The foreman told plaintiff that unless the loose decking sheets were tied down, the employees of the precast contractor would be sent home. Plaintiff, accompanied by a laborer, climbed a ladder to the roof in order to investigate the matter. Plaintiff could see stacks of metal decking on the roof; sheets of decking were blowing around. At this point in the construction, about three-quarters of the roof area had welded metal decking. Plaintiff saw a sheet of decking close to the edge of the welded area. Plaintiff crossed over a fire wall and walked 30 to 40 feet to grab this sheet. As plaintiff reached for this sheet, he was struck from behind by another sheet. Plaintiff was twisted around; his left ankle got caught in one of the ridges in the welded metal decking. Plaintiff fell down and the laborer helped plaintiff pull himself away from the edge of the welded area. Plaintiff was ultimately rescued from the roof by the fire department. Plaintiff suffered a broken left leg and injured his left ankle and wrist.

On May 21, 1987, plaintiff filed his complaint against Forest City. On June 1, 1989, Forest City filed its third-party complaint against Missner-Lirtzman. On October 10, 1989, Forest City filed a motion for partial summary judgment regarding the Structural Work Act claim. Forest City argued in the motion that the roof at issue was not a “support” within the meaning of the Act and that plaintiff’s injury did not arise out of the hazardous nature of the devices named in the Act. Missner-Lirtzman moved to join in Forest City’s motion on January 23, 1990. Following a hearing, the trial court granted the motion in favor of Forest City and Missner-Lirtzman on August 17, 1990. Plaintiff timely filed a notice of appeal to this court, pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21.) In order to withstand a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of material fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Absent an abuse of discretion by the trial court, summary judgment will not be reversed. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.

The issues raised on appeal relate solely to plaintiff’s Structural Work Act claim. Section 1 of the Act provides as follows:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1985, eh. 48, par. 60.

The Act was enacted to protect workers engaged in extra-hazardous occupations of working in and about construction. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 7-8, 552 N.E.2d 719, 721; Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 423, 512 N.E.2d 1223, 1225.) “While the Act is to be liberally construed to effectuate this purpose, the Act was not intended to cover any and all construction activities and the hazards attendant thereto.” (Meyer, 135 Ill. 2d at 8, 552 N.E.2d at 721.) The Act does not provide a remedy where other reasonable and satisfactory remedies are available. See American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 24.

On appeal, the parties primarily discuss whether the roof deck falls within the scope of the Act. Whether a certain device falls within the Act is a matter of statutory construction and, thus, a question of law. (Stead v. Valentine (1991), 218 Ill. App. 3d 1002, 1005, 578 N.E.2d 1227, 1229; see Heino v. Mellon Stuart Co. (1991), 222 Ill. App. 3d 147, 150, 583 N.E.2d 697, 699.) In determining whether a certain device falls within the Act, courts examine: (1) the device’s intended use at the time of the injury; (2) whether the injury had some connection with the hazardous nature of the device; and (3) whether this was the danger that the legislature attempted to alleviate. (Stead, 218 Ill. App. 3d at 1005, 578 N.E.2d at 1230.) Here, the parties have raised issues involving the first two factors; we therefore address each in turn.

Initially, the parties contest whether the roof of the warehouse functioned as a “support” at the time plaintiff was injured. A roof temporarily used as a scaffold is a device covered by the Structural Work Act. (St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740.) Similarly, a roof may be a “support” within the ambit of the Act, given the proper set of circumstances. (See Heino v. Mellon Stuart Co. (1991), 222 Ill. App. 3d 147, 151, 583 N.E.2d 697, 700.) Nevertheless, a permanent structure, such as a roof, is not considered a scaffold “ ‘when it is being used merely as a walkway.’ ” (Stead, 218 Ill. App. 3d at 1006, 578 N.E.2d at 1230, quoting Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1093, 428 N.E.2d 1051, 1057.) That a roof may incidentally function to elevate a worker does not mandate the conclusion the roof is being used as., a platform to perform the types of work specified in the Act. (Bolsmo v. Mark V Roofing Co. (1989), 190 Ill. App. 3d 334, 336-37, 546 N.E.2d 634, 636.) Finally, we note that the Act applies to devices used to support materials as well as devices used to support workers. See Meyer, 135 Ill. 2d at 13, 552 N.E.2d at 724.

The previous decision of this court in Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 487 N.E.2d 1124, in which the plaintiff was similarly struck by a metal sheet caught by the wind while plaintiff was working in and around a roof deck, is not determinative of this issue. In that case, we held that “plaintiff was using the roof *** as a support for himself at the time of the injury.” (Quinlin, 139 Ill. App. 3d at 538, 487 N.E.2d at 1126.) In contrast, the record here indicates that plaintiff went onto the welded portion of the roof to retrieve and secure loose sheets of decking. Moreover, plaintiff stated in his deposition that he used the roof as a walkway. Given this record, plaintiff has failed to show that the roof deck was serving as a support for a worker within the meaning of the Act when plaintiff was injured.

Nevertheless, the record here indicates that the welded portion of the roof was being used to store stacks of decking sheets that had yet to be welded to the bar joists. Thus, at the time plaintiff was injured, it appears that the roof deck was being used as a device for the support of construction materials used in the erection of the warehouse. Consequently, we conclude that plaintiff has shown that the roof was a “support” for materials within the scope of the Act, given the facts and circumstances presented in this case. Meyer, 135 Ill. 2d at 12, 552 N.E.2d at 724,

Plaintiff contends that his injury is connected to the hazardous nature of the device. On this point, plaintiff notes that in Quinlin, this court affirmed the summary judgment granted to the defendants, stating:

“Plaintiff has not *** identified any defect in the support provided or indicated any failure on the part of defendants to provide an adequate support. There is no evidence in the record that the roof did not adequately perform as a temporary support. It supported both the plaintiff and the metal sheets. Plaintiff’s injury did not arise out of the hazardous nature of those devices specified in the Act. Rather, the hazard which caused plaintiff’s injury was a gust of wind.” (Quinlin, 139 Ill. App. 3d at 538, 487 N.E.2d at 1126.)

Plaintiff contends that this case is distinguishable from Quinlin by arguing that the corrugation of the roof deck rendered it unsafe as a support and a contributing cause of his injuries. The parties also vigorously debate whether plaintiff’s deposition testimony that there was no defect in the roof causing his fall, given subject to plaintiff’s attorney’s objection, may be used as a judicial admission on this point.

We need not delve into these arguments to resolve the larger issue. In order to recover under the Act, both the damage and the alleged defect must relate to the function of the device as a support. (Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 631, 522 N.E.2d 881, 885.) We have already noted that plaintiff has failed to show that the roof deck in this case functioned as a support for a worker (within the meaning of the Act) at the time of plaintiff’s injury. Thus, unlike Quinlin, the question of whether the roof deck was an adequate support for a worker at the moment of injury need not be addressed here. We need only address whether the roof deck adequately supported the materials.

Plaintiff argues that the roof was an inadequate support for materials because Forest City left unsecured metal sheets on the roof, where they were exposed to high winds. The argument is misplaced, for it addresses the alleged acts or omissions of Forest City in regard to the unsecured sheets and does not indicate that there was something about the roof itself which rendered it unsafe as a support for the metal sheets. The fact that the roof is elevated proves nothing, for almost any device within the scope of the Act will be elevated. That the metal sheets were exposed to high winds similarly says nothing about the roof as a support for those sheets. We also note that our supreme court, in determining that the Act applies to devices that support materials, reasoned that the Act refers to persons “passing under or by” such devices who may be injured. (Meyer, 135 Ill. 2d at 12, 552 N.E.2d at 723-24.) This appeal does not involve such an injury.

Plaintiff asserts that he was engaged in extrahazardous activity at the time he was injured. It does not necessarily follow, however, that such activity falls within the scope of the Act. Even if a device is among those listed in the Act,

“the device must be erected or constructed ‘for the use in the erection, repairing, alteration, removal or painting’ of any of the enumerated structures. By its terms, the Act speaks only to the peculiar hazards presented by certain support devices engaged in the enumerated structural work activities.” (Meyer, 135 Ill. 2d at 13, 552 N.E.2d at 724, citing Vuletich, 117 Ill. 2d at 423-24, 512 N.E.2d at 1224; Long v. City of New Boston (1982), 91 Ill. 2d 456, 467-68, 440 N.E.2d 625, 630.)

Thus, in Meyer, our supreme court concluded that the unbanding or unbundling of storage racks prior to their incorporation into a structure is not structural work activity. (Meyer, 135 Ill. 2d at 13, 552 N.E.2d at 724.) In addition, the Meyer court stated that the use of a crane or forklift to support the racks during the unhanding or unbundling process would not have brought the case within the scope of the Act. Meyer, 135 Ill. 2d at 14, 552 N.E.2d at 724-25.

The record in this case indicates that plaintiff was attempting to secure the loose sheets of metal, prior to their incorporation into a structure, just as the plaintiff in Meyer was unbanding or unbundling storage racks. The record indicates that the roof deck whs serving as a support for the metal sheets, just as a crane or forklift could have supported the racks in Meyer. Consequently, plaintiff has failed to present a question of material fact as to whether his activities here were within the scope of the Act.

Viewed from a different perspective, the question of whether the device is within the scope of the Act is but one of the elements needed to state a claim or survive summary judgment in a Structural Work Act case. In order to recover under the Act, plaintiff must also be able to show that he was engaged in or was passing by structural work activity at the time of his injury. (See, e.g., Long, 91 Ill. 2d at 467-68, 440 N.E.2d at 630.) Plaintiff has failed to establish a question of material fact as to whether he was engaged in or passing by structural work activity when he was injured. Nor has plaintiff presented a question of material fact as to whether his activity was integral to the erection of the structure, given the record on appeal. (See Meyer, 135 Ill. 2d at 10-11, 552 N.E.2d at 723 (discussing McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573).) We therefore conclude that the trial court did not abuse its discretion in granting summary judgment on plaintiff’s claim under the Act.

For the aforementioned reasons, we affirm the judgment of the circuit court of Cook County and remand for further proceedings.

Affirmed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

      No issues are presented regarding the negligence count of plaintiff’s complaint.