author: JUSTICE STEIGMANN

text:
    WALLACE F. LANGE, a Disabled Person, by Betty Lange, his Guardian, Plaintiff-Appellee, v. PAUL M. MISCH, Defendant-Appellant (John T. Henry et al., Defendants).
    Fourth District
    No. 4—91—0803
    Opinion filed August 13, 1992.
    Richard L. Fenton and Gerald E. Fradin, both of Sonnenschein, Nath & Rosenthal, of Chicago, and Gregory L. Barnes, of Gregory L. Barnes, Ltd., of Decatur, for appellant.
    Daniel G. Deneen, of Deneen & Deneen, of Bloomington, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Wallace F. Lange, through his guardian, sued several defendants for various claims, including a contract action based on several notes issued to Lange by the defendants. Three of the defendants, Paul M. Misch, United States Capital Corporation of Delaware (USCC-Delaware), and United States Capital Corporation of Arkansas (USCC-Arkansas), failed to answer Lange’s complaint. A default judgment was entered against the defendants for $249,545.39. USCC-Delaware and Misch filed a motion to vacate the default judgment, which the trial court granted. The default judgment against USCC-Arkansas remained in effect. At a supplemental hearing on a citation to discover assets of USCC-Arkansas (at which Misch did not appear), the trial court pierced the corporate veil of that entity and entered a judgment against Misch. Misch thereafter filed a motion to vacate that judgment, which the trial court denied. Misch appeals, arguing that the trial court erred in piercing the corporate veil and entering a judgment against him personally. We reverse and remand for further proceedings.

I. Facts

This lawsuit arose out of transactions between Misch and Lange beginning in 1985. In June 1989, Lange filed this action against several defendants, including Misch individually, USCC-Delaware, and USCC-Arkansas, alleging claims on certain promissory notes. In March 1990, the complaint was dismissed with leave to amend on the ground that Lange, who had been declared an incompetent, could not maintain the action in his own right. In August 1990, Lange, through his guardian, filed a first-amended complaint.

According to the first-amended complaint, Misch, an attorney licensed to practice law in Illinois, operated law offices in McLean and Cook Counties in Illinois, on an individual basis and through USCC-Delaware. At all times during Lange’s relationship with Misch, Lange suffered from Alzheimer’s disease, which affected his capacity to make rational business decisions. Misch allegedly was aware of Lange’s condition during their entire business relationship.

According to count II of the first-amended complaint, Misch controlled and dominated USCC-Delaware and USCC-Arkansas. He allegedly (1) failed to keep proper corporate records and to maintain the separate legal and financial integrity of the corporation, and (2) commingled corporate funds with his own. Misch purportedly made and delivered to Lange three promissory notes for $160,000, all having since come due. No portion of these notes has ever been paid.

Count III of the first-amended complaint alleged the following. Misch and “Misch and Associates” handled various legal matters for Lange and an attorney-client relationship developed between Misch and Lange. In 1985, Misch represented to Lange that good investments were available to Lange and that he should loan money to certain entities which would eventually repay their debt obligations. Based on Misch’s representations that these entities were viable and good investments, Lange loaned various sums of money to the entities and also provided them collateral to secure loans ob-tamed from other investors. As the entities failed to make their loan payments, Lange’s collateral was sold. No part of his loans was ever repaid. At all times, these entities were owned, operated, and controlled by Misch, and he used them to defraud Lange and other investors through misrepresentations. Lange lost more than $400,000 by investing in these fictional legal entities.

In October 1990, the trial court ordered “United States Capital” to plead on or before October 31, 1990. On December 21, 1990, the court heard Lange’s motion for default judgment, ordered Misch and USCC-Delaware to plead on or before December 31, 1990, and continued the motion for default judgment to January 2, 1991. The defendants failed to appear, and the court entered default judgment on January 4, 1991, against USCC-Delaware, USCC-Arkansas, and Misch for failing to answer Lange’s complaint. The default judgment found defendants jointly and severally liable for $249,545.39 on count II of Lange’s first-amended complaint regarding specific promissory notes.

On January 17, 1991, the trial court entered an order finding that there was no just reason to delay an enforcement or appeal of the default judgments. At the same time, the court issued citations to discover assets (such as tax returns and bank records) against Misch and USCC-Delaware, both as judgment debtors and as third-party respondents on the judgment against USCC-Arkansas, directing them to appear and produce documents.

On February 27, 1991, the parties appeared through their counsel, but Misch did not produce the documents called for in the citations to discover assets. On motions of Misch and USCC-Delaware, the trial court vacated the default judgments against them. No one appeared for USCC-Arkansas and the default judgment against it remained in effect. (On April 3, 1991, Lange filed a second-amended complaint upon which further proceedings were held. This second-amended complaint, however, is not a part of this appeal.)

On June 27, 1991, pursuing the judgment entered against USCC-Arkansas, Lange filed a petition for rule to show cause, alleging that (1) Misch had failed to appear in court on February 27, 1991, pursuant to the January 21, 1991, citation to discover assets, and (2) failed to produce documents called for by those citations. The trial court that day ordered the rule, returnable August 23, 1991, directing Misch to produce certain documents called for by the citations by August 1, 1991, and to appear before the court on August 23, 1991, to show cause why he should not be adjudged guilty of and punished for contempt of court.

Neither Misch nor his counsel appeared at the August 23, 1991, hearing, nor did they produce the documents called for in the citation. At the hearing, plaintiff filed a motion (1) stating that judgment against USCC-Arkansas should be enforced against Misch personally due to his failure to verify the existence of USCC-Arkansas, and (2) asserting that USCC-Arkansas is the alter ego' of Misch. However, plaintiff did not serve this motion upon Misch or his counsel. The court proceeded to hear the motion and Lange presented his case. The trial court found that “there is no evidence that such a corporation [USCC-Arkansas] has ever been formed or that such a corporation is presently existing under the laws of the State of Arkansas and that said corporation is a sham and constitutes nothing more than the defendant, Paul M. Misch, doing business under a purported corporate name.” Accordingly, the court “pierced the corporate veil” and entered judgment against Misch for $265,651.61, plus attorney fees of $1,133.50. The court also held Misch in civil contempt of court at the supplementary hearing and sentenced him in absentia to six months’ incarceration in the McLean County jail with leave to purge himself of the contempt by producing the documents described in the citations and paying Lange’s attorney fees.

The trial court issued a bench warrant for Misch, and on September 24, 1991, he was arrested on that warrant in Philadelphia, Pennsylvania. On October 1, 1991, Misch surrendered to the sheriff of McLean County, Illinois, and was released on bond after waiving extradition and assigning the $10,000 bail on deposit in Philadelphia to the circuit court of McLean County.

On September 25, 1991, Misch moved to vacate the August 1991 judgment, filing in support thereof the articles of incorporation of USCC-Arkansas. The trial court denied Misch’s motion to vacate the default judgment and this appeal followed.

II. Analysis

Misch argues that the trial court did not have the authority at a supplementary hearing to pierce the corporate veil and hold him personally liable for the default judgment against USCC-Arkansas. Although we in no way condone Misch’s failure to obey court orders, we agree that a supplementary proceeding is not an appropriate vehicle to impose a judgment against a third party who does not possess assets of the judgment debtor.

At trial, the court apparently relied upon sections 2— 1402(b)(3), (b)(4), (b)(5), and (b)(6) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1402 (bX3) through (bX6)), for the authority to enter judgment against Misch. These sections do not authorize such action, although section 2 — 1402(b)(4) of the Code comes closest to supporting the trial court’s decision. That section provides that where assets or income of a judgment debtor are “discovered,” a court has the authority to enter any judgment against a third party that could be entered in any garnishment proceeding. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1402(bX4).) However, before a court may do so, the record must contain some evidence that the third party possesses assets of the judgment debtor. Here, there was none.

This record contains no evidence that Misch, individually, possessed Lange’s assets so as to authorize the trial court to expand Lange’s default judgment against USCC-Arkansas to include Misch. Insofar as the record shows, Misch was a third person unrelated to USCC-Arkansas’ assets. Lange should instead have filed— and on remand may yet do so — a separate petition to pierce the corporate veil, thereby providing Misch with appropriate notice of the claim, the remedy sought, and an appropriate pleading on which separate proceedings could have been held. Instead, the corporate veil was pierced at the supplementary proceeding, even though nothing in the Code authorizes the entry of a judgment at a supplementary proceeding against a third party who does not possess assets of the judgment debtor.

Lange relies on Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 455 N.E.2d 876, for his argument that Misch’s conduct should not be tolerated. In Amoco Oil, this court upheld the entry of a judgment against a party whose conduct — in refusing to comply with discovery rules — amounted to contumacious flouting of judicial authority. (Amoco Oil, 118 Ill. App. 3d at 1013, 455 N.E.2d at 883.) However, the present case involves a supplementary hearing, not a hearing regarding discovery procedures. Accordingly, nothing in Amoco Oil supports Lange’s position in this case.

Lange also relies on O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 493 N.E.2d 1175, to support his contention that the trial court properly pierced the corporate veil and found Misch personally liable. In O’Connell, this court affirmed a trial court’s judgment at a supplementary proceeding that held an officer of a corporate judgment debtor personally liable for the corporation’s debt even though he was not formally made a defendant before judgment was entered against him. (O’Connell, 143 Ill. App. 3d at 1069, 493 N.E.2d at 1180.) O’Connell does establish that a trial court may enter judgment against a third party at a supplementary proceeding. However, in O’Connell, the evidence showed that the third party had control of $580,000 of the judgment debtor’s assets. By contrast, insofar as the record before this court shows, no evidence showed that Misch controls any assets of USCC-Arkansas.

Our holding in no way condones Misch’s conduct. The only issue before us is whether the trial court properly pierced the corporate veil at the supplementary proceeding in which it held Misch personally liable for Lange’s $265,651.61 judgment against USCC-Arkan-sas. We hold that it was improper for the court to do so, and we reject Lange’s implication that we need to twist the plain meaning of section 2 — 1402 of the Code in order to empower trial courts to deal with miscreants like Misch. In our judgment, the court’s contempt powers, if fully and appropriate utilized, suffice to deal with litigants who violate court orders; trial courts need not — and should not be permitted to — misuse settled principles of law to punish such litigants.

Using the present case as an example, after Misch appeared in court on October 1, 1991, having been arrested in Philadelphia on the court’s warrant due to his failure to appear in court as directed on August 23, 1991, there is no reason why the court could not have raised his bail bond from $10,000 in order to ensure Misch’s compliance with all court orders, as well as his subsequent appearances in court as directed. Misch, an obvious man of means, posted the $10,000 bond, probably without much difficulty. Had the trial court set Misch’s bail bond at $200,000 at the October 1 hearing, the court might have gained his attention.

For the reasons stated, we reverse the judgment of the trial court and remand for further proceedings.

Reversed and remanded.

GREEN P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM JONES, Defendant-Appellant.
    Fourth District
    No. 4—91—0848
    Opinion filed August 13, 1992.
    Daniel D. Yuhas and Charles L. Jones, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Following a jury trial in Macon County circuit court case No. 91— CF — 459, defendant, Malcolm Jones, was convicted of unlawful delivery of a controlled substance, a Class X felony (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(aX2)), and was sentenced to eight years of imprisonment. Defendant appeals, contending the prosecutor improperly commented on his failure to testify and the trial court abused its discretion by imposing consecutive sentences. We affirm the conviction and remand for resentencing.

In a previous case, Macon County case No. 91 — CF—8, defendant was found guilty of possession of a controlled substance with intent to deliver (see Ill. Rev. Stat. 1989, ch. 56V2, par. 1401), and sentenced to probation. After defendant violated his probation by committing a battery (see Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3), his probation was revoked, and he was sentenced to three years of imprisonment. The trial court ordered the eight-year sentence here for unlawful delivery of a controlled substance to be served consecutive to the three-year sentence defendant was serving in case No. 91 — CF—8.

On August 30, 1990, between 5:30 and 6 p.m., Willie Gartrell, an undercover narcotics investigator with the Illinois State Police, arranged to buy cocaine later that evening from Lorine Gaddy at the Walgreen’s Drug Store at Wood and Jasper Streets in Decatur. At 7 p.m. Gartrell met with Gaddy and defendant. After seeing a uniformed police officer inside of Walgreen’s, they left the store and walked outside to a corner of the building. According to Gartrell, defendant stated he would handle the transaction, and he agreed to sell an ounce of cocaine to Gartrell for $1,400. Gartrell gave defendant $1,400 and defendant told Gartrell to walk across the street to get the cocaine from an unidentified man. Gartrell walked across the street and received the cocaine. The unidentified man then picked up Gaddy and defendant in a large maroon car, and the three of them drove away. Gartrell met with the surveillance vehicle and turned the package in for identification. The substance was tested and contained 20.3 grams of cocaine.

During August 1990 defendant was living in Decatur with one of his sisters, Michelle Jones, and Michelle’s three children. Kathy Jones, another of defendant’s sisters, testified that during August 1990 she routinely took her two children to Michelle’s residence and paid defendant to babysit them while she was at work in Springfield. Kathy testified that on August 30 she left her kids at Michelle’s residence at 1:30 p.m. and picked them up at midnight. Kathy indicated she could not specifically remember August 30, but she normally left her kids with defendant at Michelle’s house. Michelle remembered that defendant babysat Kathy’s children on August 30, and that defendant did not leave the house that evening. Michelle testified that it was solely defendant’s responsibility to watch Kathy’s children, because he was the one that was being paid by Kathy. During this time period defendant’s only job was babysitting Kathy’s children. Defendant did not pay rent to Michelle, but he did help her with some household expenses.

Defendant’s first contention is that he is entitled to a reversal of his conviction and a new trial because of improper remarks made by the prosecutor during closing and rebuttal argument. During closing argument, the prosecutor stated:

“Well, clearly, she [(Kathy)] indicated she doesn’t specifically remember the 30th, and also, she indicated that that is just a routine, she wasn’t in town. She has nothing that really adds to whether or not the Defendant is present at the scene. So there, there’s only one witness who says he wasn’t there. Michelle Jones says that her brother was with her.”

During rebuttal argument the prosecutor stated:

“Mr. Mattingly [(Defense counsel)] says that there’s no corroboration for Agent Gartrell. Well, there’s not a heck of a lot of corroboration for Michelle Jones, either.”

Defendant did not object to either statement. The closing argument remark referred to the fact that only one witness called by defendant said defendant was not at the scene of the crime, i.e., Michelle. Since defendant did not take the stand to testify, this remark is alleged to be a reference to defendant’s failure to testify. The remark in rebuttal argument was in response to the argument of defense counsel that there was no corroboration of the testimony of the State’s witness who identified defendant as the perpetrator of the offense. The prosecutor simply referred to the fact that there was likewise no corroboration of the defense’s witness who testified defendant was elsewhere at the time of the offense. It is alleged that this remark of the prosecutor also referred to defendant’s failure to testify.

The State argues this issue is waived. A defendant must make a timely objection at trial and must renew the ground for objection in a written post-trial motion to preserve an error for review. (People v. Herrett (1990), 137 Ill. 2d 195, 209, 561 N.E.2d 1, 7.) The failure to make a timely objection at trial operates as a waiver of the right to raise the issue as a ground for reversal on review. (Herrett, 137 Ill. 2d at 209, 561 N.E.2d at 7.) Supreme Court Rule 615(a), however, provides a limited exception to waiver; plain errors affecting substantial rights may be noticed on appeal, though not objected to at trial. (134 Ill. 2d R. 615(a).) Under Rule 615(a) there is no waiver where the evidence in a criminal case is closely balanced or where the error is so fundamental and of such magnitude that the accused was denied a fair trial. Herrett, 137 Ill. 2d at 209-10, 561 N.E.2d at 7-8.

The first prong of the plain error rule is not met because the evidence here cannot reasonably be regarded as closely balanced. The record indicates defendant was positively identified by Gartrell, the undercover narcotics agent. Gartrell’s identification was in the line of duty and was based on a face-to-face conversation in the light of day. On the other hand, Michelle testified that defendant was at her house when the cocaine was sold to Gartrell. The jury did not find Michelle’s testimony credible, undoubtedly because Michelle is defendant’s sister, and she relied on defendant for money to help meet her household expenses. Given the fact that defendant was positively identified at the crime scene by an individual with no personal relationship to him, the evidence is not so closely balanced as to overcome waiver.

As to the second prong of the plain error rule, neither can we say that the alleged error was so fundamental as to deny the accused a fair trial. Accordingly we reject defendant’s argument on the merits. An accused has a constitutional right not to testify as a witness in his own behalf (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Herrett, 137 Ill. 2d at 210, 561 N.E.2d at 8), and the prosecutor is forbidden to make direct or indirect comment on the exercise of that right. (Griffin, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Herrett, 137 Ill. 2d at 210-11, 561 N.E.2d at 8; see also Ill. Rev. Stat. 1989, ch. 38, par. 155 — 1 (prohibiting comment on criminal defendant’s failure to testify).) The prosecution may, however, describe the State’s evidence as uncontradicted even if defendant is the only one who could have contradicted it, if the comments are not intended or calculated to direct the jury’s attention to defendant’s failure to testify. (Herrett, 137 Ill. 2d at 211, 561 N.E.2d at 8.) A reviewing court must examine the prosecutor’s remarks in the context of the entire proceeding, to determine whether the challenged remarks were improper comments on the accused’s failure to testify. (Herrett, 137 Ill. 2d at 211, 561 N.E.2d at 8.) Here, the prosecutor’s comments only referred to the lack of corroboration for Michelle’s claim that defendant was with her at the time Gartrell purchased the cocaine. The prosecutor is not restricted from commenting on the lack of corroboration for defendant’s witnesses, especially where evidence may have been available from witnesses other than defendant. (Herrett, 137 Ill. 2d at 211, 561 N.E.2d at 8.) The prosecutor’s comments did not necessarily direct the jury’s attention to defendant’s failure to testify and, hence, were not improper. The prosecutor’s statements were not improper so as to constitute reversible error and do not come under any exception to the Rule 615(a) waiver rule.

Defendant also contends that the trial court abused its discretion by imposing a consecutive sentence. He contends the trial court did not explain why it was imposing consecutive sentences and the record does not show it was necessary to protect the public. In specific types of cases, the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1001 — 1—1 et seq.) mandates that trial courts impose consecutive sentences (People v. Carter (1992), 232 Ill. App. 3d 905, 905); in other cases consecutive sentences are permissive (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)). Where the trial court is authorized but not mandated to impose consecutive sentences, the court has the discretion to impose a consecutive sentence if:

“having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(b).)

In sentencing defendant, the trial judge stated:

“I am not going to sentence you to the minimum sentence in this particular case, because this is similar to the offense of which you were convicted of in the early part of 1990. I am going to sentence you to the Department of Corrections for a period of eight (8) years, and this shall be consecutive to the sentence which was imposed in [case No.] 90 — CF—8.”

When a defendant does not request a specific finding, or does not otherwise complain that a basis for the required finding was not articulated, the issue may be deemed waived. (People v. Hicks (1984), 101 Ill. 2d 366, 374-75, 462 N.E.2d 473, 476.) Even though a court need not articulate a precise sentencing rationale in the words of section 5 — 8—4(b) of the Code, it must at least appear from the record that the court believed consecutive sentences were necessary to protect the public. (Hicks, 101 Ill. 2d at 375, 462 N.E.2d at 477; People v. Dorosz (1991), 217 Ill. App. 3d 1016, 1022, 578 N.E.2d 67, 70; People v. Lowry (1992), 231 Ill. App. 3d 788, 796.) The mere fact that a trial court imposed consecutive sentences does not in and of itself warrant a conclusion that the court believed consecutive sentences were necessary to protect the public. (Hicks, 101 Ill. 2d at 374-75, 462 N.E.2d at 477; Dorosz, 217 Ill. App. 3d at 1022, 578 N.E.2d at 70.) Here, the record does not support a conclusion the court believed consecutive sentences were necessary to protect the public, and — because we cannot say the sentencing court believed consecutive sentences were necessary to protect the public — we remand for resentencing. Nothing we say would prevent a consecutive sentence on remand. A different situation was presented in People v. Anderson (1991), 211 Ill. App. 3d 140, 142-43, 569 N.E.2d 1178, 1181. In Anderson a different subsection (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(i)) mandated, or at least “specifically authorize[d],” consecutive sentences. Anderson, 211 Ill. App. 3d at 143, 569 N.E.2d at 1181.

For the reasons stated, we uphold defendant’s conviction in the circuit court of Macon County and remand the case for resentencing.

Conviction affirmed and remanded for resentencing.

McCULLOUGH and LUND, JJ., concur.


text:
    ERNEST FEILER, Plaintiff-Appellant, v. COVENANT MEDICAL CENTER OF CHAMPAIGN-URBANA, Indiv. and d/b/a Burnham Hospital, et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0843
    Opinion filed August 13, 1992.

      Fred I. Benjamin and Gary G. Katz, both of Benjamin & Shapiro, Ltd., of Chicago, for appellant.

      David E. Krchak, of Thomas, Mamer & Haughey, of Champaign, for ap-pellees.
   JUSTICE COOK

delivered the opinion of the court:

The trial court dismissed plaintiff’s negligence action because it was barred by the statute of limitations. Plaintiff appeals, arguing (1) the sale of Burnham City Hospital (Burnham) from the City of Champaign (City) to a non-public entity, Covenant Medical Center of Champaign-Urbana (Covenant), waived defendants’ right to rely on the one-year statute of limitations, and (2) defendants should be estopped from relying on the one-year statute because Burnham held itself out as a private hospital. We affirm.

On November 30, 1990, plaintiff filed a complaint against Covenant, a not-for-profit corporation, individually and doing business as Burnham Hospital, and Burnham Hospital. Plaintiff alleged that on December 3, 1988, he was an independent contractor working as a physician at Burnham, and due to the defendant’s negligence, he was infected with chronic hepatitis when an intoxicated emergency-room patient (who had chronic hepatitis) lunged toward him causing him to cut his thumb with a scalpel contaminated by the patient’s blood, thereby infecting him with the disease.

On March 12, 1991, defendants filed a motion to dismiss, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(5)), alleging that plaintiff’s complaint was barred because it was filed more than one year after the alleged occurrence. Defendants asserted that at the time of the alleged occurrence Burnham was a “publicly owned facility, a municipal hospital owned by the City of Champaign, a local public entity” as defined by section 1 — 206 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 — 206). Since Burnham was a local public entity, defendants maintained that actions against it must be “commenced within one year from the date that the injury was received or the cause of action accrued” (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101). Plaintiff’s claim therefore was barred because it was commenced on November 30, 1990, more than one year from the date of the incident (December 3, 1988). On May 2, 1991, the circuit court granted defendants’ motion to dismiss.

On May 29, 1991, plaintiff filed a document denominated as a motion to vacate summary judgment but which in fact challenged the section 2 — 619 dismissal, and on September 16, 1991, filed a response to defendants’ motion to dismiss. The court took the two pleadings as a motion to reconsider its order to dismiss. On October 16, 1991, the circuit court affirmed its order of dismissal. This appeal followed.

Burnham operated as a publicly owned hospital until September 22, 1989, when ownership of the hospital was transferred to Covenant. On September 5, 1989, the city council of Champaign passed a resolution authorizing a consolidation agreement between the City and Servantcor, a not-for-profit corporation which operated Mercy Hospital, to consolidate Burnham and Mercy Hospitals. To effectuate the consolidation the City transferred the operations of Burnham to a locally controlled not-for-profit corporation, Covenant, which would operate both Burnham and Mercy Hospitals. Under the transfer agreement, Covenant was to be liable for all liabilities of Burnham including “all liabilities for personal injury arising from acts or omissions of CITY doing business as Burnham.”

Section 8 — 101 of the Act provides:

“No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101.)

Plaintiff argues the sale of the hospital to a private entity before the one-year limitations period expired waived defendants’ right to assert the limitations period as a defense. Plaintiff concedes that if Burnham had remained a municipal entity Burnham would have been entitled to assert the limitations period. Since Burnham ceased to exist as a public entity before expiration of the limitations period, however, its right to the one-year statute of limitations was waived. Plaintiff contends the language of section 8 — 101 refers only to suits brought against local entities, and since the present action was brought against a private entity, Covenant, the one-year limitations period in the Act does not apply.

We hold the status of the entity as it existed on the date of the injury controls what statute of limitations applies. At the time of the injury here, Burnham was a public entity and therefore subject to the one-year statute of limitations. (Ill. Rev. Stat. 1991, ch. 85, par. 8 — 101.) Dismissal was appropriate since Burnham was not sued within the one-year statute of limitations. The limitations defense was not waived by the sale of the public hospital within the one-year period as the status of the entity on the date of the injury is determinative. Covenant’s liability for personal injuries arising out of the actions of Burnham is based on the terms of the transfer agreement and Covenant did not agree to accept liability greater than that of the City. Since Burnham cannot be liable, because the suit was not filed within the statute of limitations, neither can Covenant.

Plaintiff argues, alternatively, that if the statute of limitations was not waived, defendants should be estopped from asserting the one-year limitations period because Burnham concealed its status as a public entity.

The 1924 ordinance provided there was “hereby established and shall hereinafter be maintained a Public Hospital in the City of Champaign, to be officially known and designated as The Burnham City Hospital.” (Emphasis added.) (Champaign, Ill., Ordinance 223 (Nov. 10, 1924) (“An Ordinance for the Establishment and Maintenance of a Public Hospital”)-) In spite of this designation plaintiff contends the hospital held itself out as “Burnham Hospital.” Plaintiff attached to his response to the motion to dismiss a surgical pathology report which contained in its upper left-hand corner the hospital’s insignia and the hospital’s identification as “Burnham Hospital” and a document entitled “BURNHAM HOSPITAL Nursing Services Emergency Services Policy — PROTOCOL FOR DRUG ABUSE AND/OR PATIENTS UNDER THE INFLUENCE OF DRUGS OR ALCOHOL.” Also attached to plaintiff’s response was an affidavit by plaintiff stating that at all times in which he dealt with the hospital it identified itself as “Burnham Hospital”; that correspondence from Burnham always used the name “Burnham Hospital”; forms, such as doctor’s reports, discharge summaries, nurses notes, et cetera, all used the name “Burnham Hospital”; signs on the hospital identified it as “Burnham Hospital”; and Burnham was listed in the telephone book as “Burnham Hospital.”

In response, defendants submitted an affidavit from the medical staff coordinator of Covenant, who is responsible for maintaining records regarding physicians appointed to Covenant and appointed to the medical staffs of Mercy and Burnham prior to the merger. The affidavit attested that the attached application for appointment to the medical staff of Burnham, tendered by plaintiff, was a true and accurate copy of his application. That application was addressed to “Burnham City Hospital.” No counteraffidavit was filed by plaintiff.

The doctrine of equitable estoppel is invoked to prevent fraud and injustice. (Carey v. City of Rockford (1985), 134 Ill. App. 3d 217, 218, 480 N.E.2d 164, 165.) While it is well established that the doctrine of equitable estoppel can be asserted against a municipality (Kenny Construction Co. v. Metropolitan Sanitary District (1971), 52 Ill. 2d 187, 197, 288 N.E.2d 1, 7; Central Transport, Inc. v. Village of Hillside (1991), 210 Ill. App. 3d 499, 515, 568 N.E.2d 1359, 1369), courts do not favor a finding of estoppel against a public body. (Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 938, 521 N.E.2d 1177, 1185.) Whether the doctrine of estoppel may be applied against a municipal corporation depends upon the consideration of all the circumstances of the case. (City of Chicago v. Sievert Electric Co. (1985), 134 Ill. App. 3d 552, 556, 481 N.E.2d 1, 4; Joslin, 166 Ill. App. 3d at 938-39, 521 N.E.2d at 1185.) Estoppel against a public body should not be invoked except “under compelling circumstances,” such as where not invoking estoppel would defeat the operation of public policy. People ex rel. Brown v. Illinois State Troopers Lodge No. 41 (1972), 7 Ill. App. 3d 98, 105, 286 N.E.2d 524, 528.

Equitable estoppel has been applied to prevent a litigant, whose conduct has caused a plaintiff to delay filing suit until after the period of limitations has run, from asserting the statute of limitations as a bar to the action. (Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 749, 544 N.E.2d 846, 851-52.) To prevail on this theory, plaintiff must establish that he reasonably relied on defendant’s conduct or presentations in forbearing suit. (Neaterour, 188 Ill. App. 3d at 749, 544 N.E.2d at 852.) Additionally, it is incumbent upon the proponent to prove that he relied upon some acts or representation of the defendant “ ‘and had no knowledge or convenient means of knowing the true facts.’ (Emphasis added.)” Neaterour, 188 Ill. App. 3d at 750, 544 N.E.2d at 852, quoting Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 371, 335 N.E.2d 491, 495.

The party who asserts the applicability of equitable estoppel has the burden of proving its requisite elements by “ ‘clear, precise and unequivocal’ ” evidence. (Central Transport, 210 Ill. App. 3d at 515, 568 N.E.2d at 1369, quoting In re Estate of Muhammad (1984), 123 Ill. App. 3d 756, 763, 463 N.E.2d 732, 738.) Whether a party has met its burden of proof with respect to estoppel is a question of fact for the trial court to determine. (Central Transport, 210 Ill. App. 3d at 515, 568 N.E.2d at 1369.) “[A] court of review will not reverse [a] trial court’s decision [with respect to estoppel] unless it is against the manifest weight of the evidence.” Lawrence v. Board of Education of School District 189 (1987), 152 Ill. App. 3d 187, 201, 503 N.E.2d 1201, 1210.

In response to this section 2 — 619 motion, plaintiff has failed to raise an issue of fact to support his estoppel claim. Plaintiff contends that Burnham concealed its status and created confusion which prevented him from becoming aware of defendant’s true nature. Plaintiff, however, offered no facts to show that Burnham prevented him from obtaining information regarding its true identity as a public hospital. Moreover, he failed to allege or offer any evidence that he had no knowledge of Burnham’s actual status as a public entity. To the contrary, the evidence established that plaintiff knew defendant Burnham was a city hospital when he addressed his 1981 application to “Burnham City Hospital.” Evidence that Burnham sometimes referred to itself as “Burnham Hospital” did not contradict the evidence that plaintiff knew that, at least at times, Burnham referred to itself as “Burnham City Hospital.” Plaintiff failed to file a counteraffidavit and is not now in a position to argue that more evidence might be available or that a question of fact exists as to his knowledge. Defendants are not estopped from interposing as a defense the bar of the statute of limitations.

Plaintiff relies on Kievman v. Edward Hospital (1985), 135 Ill. App. 3d 442, 481 N.E.2d 909, to support his estoppel argument. In determining the hospital there was estopped from relying on plaintiff’s failure to give notice under the Act, the Kievman court relied on the facts that there was public confusion as to the hospital’s status, that defendant was aware its identification policy had previously caused confusion on the part of parties seeking to bring actions against it, and there was a policy on the part of defendant to avoid recognition as a municipal body to its advantage. (Kievman, 135 Ill. App. 3d at 446-47, 481 N.E.2d at 912-13.) These factors are lacking in the case at bar and render Kievman inapposite.

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

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE LUND

text:
    LESLIE MATHERS et al., Plaintiffs-Appellants, v. THE COUNTY OF MASON et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0963
    Opinion filed August 13, 1992.

      Charles L. McNeil, of McNeil & McNeil, of Mason City, for appellants.
    Karen L. Kendall, Bradley S. McMillan, Timothy L. Bertschy, and James M. Voelker, all of Heyl, Royster, Voelker & Allen, of Peoria, for ap-pellees.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by plaintiffs from an order of the circuit court of Mason County, dismissing counts I and II of a four-count complaint. Count IV was previously dismissed and summary judgment, as we later explain, was previously entered in plaintiffs’ behalf.

This cause of action relates to what plaintiffs consider to be an unjustified increase in 1985 of the assessed value of their farmland in Mason County (County). Two specific objections are made: (1) the Mason County supervisor of assessments (Supervisor of Assessments) deleted the statement on the assessment notices advising of the right to seek review of the assessment before the Mason County board of review (Board of Review); and (2) the proper soil productivity indexes were not used in determining assessed valuation.

The three counts remaining, after various motions to dismiss all counts, contained the same first 24 paragraphs. The first 13 paragraphs alleged: plaintiffs’ ownership of farmland in Mason County; defendant Robert M. Pietrazak’s position of Supervisor of Assessments and his duties to equalize assessments; the 10% limitation on changing farmland assessment during one year; the 1985 assessment increases; the required use of productivity indexes; the mailing of two informational statements, along with the notices of increased assessments; the absence of notice of rights to review of the assessments; the marking out of the review rights; and the causing of the real estate taxes to be entered on the increased assessed valuation.

Paragraph Nos. 14 and 15 allege plaintiffs either paid the taxes based on the increased valuation outright or under protest, and that they have demanded Pietrazak reassess their farmland.

Paragraph Nos. 16 and 17 allege the State-ordered equalizing factor was erroneously applied to all of the land, and that plaintiffs have been required to pay an excessive amount of property tax.

Paragraph No. 18 asks for reassessment.

Paragraph Nos. 19, 20, and 21 provide as follows:

“19. Defendant, Robert M. Pietrazak, as the Mason County, Illinois, Supervisor of Assessments, repeatedly stated to various taxpayers and Plaintiffs that no relief or review or any other remedy from the said increased assessment was available to any taxpayer.
20. Due to the representations of the Defendant, Robert M. Pietrazak, and further due to the complexities of administrative review, confusing statutory language of Ill. Rev. Stat. 1983, Ch. 120, Plaintiffs should be excused from any requirement of exhaustion of administrative remedies or otherwise pursing [sic] any other remedy.
21. Plaintiffs’ [sic] caused to be filed a Complaint within a short time after said assessments were made and before Plaintiffs’ [sic] received any tax bill based on said assessment and therefore they should not be required to have taken any other action to contest or object to said assessment or tax.”

Paragraph Nos. 22 and 23 allege necessity of notices, insurance coverage by the County, lack of immunity, duties of the Supervisor of Assessments, and the County’s duty to supervise appointed officials, employees, and agents.

Paragraph No. 24 incorporates, by attachment, a schedule of land soil classes used by the County in assessing farm real estate.

The balance of count I basically alleges that there was improper assignment of productivity index numbers to soil types, resulting in excessive assessments. Damages were requested.

Count II, after paragraph Nos. 1 through 24, basically alleges improper use of productivity indexes, failure to use proper soil classifications, failure to consider irrigated lands, failure to follow Department of Revenue guidelines, and no advisement of the right to file a complaint with the Board of Review.

Count III, after paragraph Nos. 1 through 24, rehashed the allegation of improper assessment and the obliteration of printed review rights that are required to be on assessment notices.

Interestingly, there is no specific allegation in the three counts that any plaintiff failed to pursue the review rights before the Board of Review because of the obliteration of notice.

Trial Court’s Summary Judgment

On April 27, 1989, the trial judge (who subsequently retired) granted summary judgment to plaintiffs, based upon the allegations of count III relating to “deleting the portion of the form which advised taxpayers of their right to file a complaint with the Board of Review.” Summary judgment was denied as to counts I and II. The court ordered as follows:

“It is therefore] adjudged that The Supervisor of Assessments of Mason County issue to plaintiffs a proper notice of assessment change for 1985 with a proper notice of administrative remedies all in accordance with the appropriate Statute. Further it is adjudged that the County of Mason convene a Board of Review to pass upon any complaints filed by Plaintiffs in accordance with the appropriate statute. Further it is adjudged that Plaintiffs may pursue their statutory remedies based upon the new notice ordered herein and Plaintiffs’ [sic] shall recover costs of suit from defendant County of Mason in so far [sic] as Plaintiffs have incurred costs concerning Count III of the Second Amended Complaint.”

There was compliance with the court’s order, new notices given, Board of Review consideration, and review before the State Property Tax Appeal Board (PTAB). The 1985 assessment changes were upheld. Administrative review of the decision of the PTAB is now in process in another case.

On August 5, 1991, the defendants moved to dismiss with prejudice, arguing failure to use administrative remedies and citing Schlenz v. Castle (1986), 115 Ill. 2d 135, 142, 503 N.E.2d 241, 244. On October 7, 1991, the new trial judge granted the motion to dismiss with prejudice, stating that there had been no appeal from the summary judgment as to count III, and plaintiffs were effectively afforded their administrative review. A subsequent motion for reconsideration was denied, and this appeal resulted.

Assessment Corrections

There are two procedures for correction of improper assessments of real estate. Both initially require the filing of a complaint with the supervisor of assessments, requesting a correction by the board of review. If relief is not granted by the time tax payments are due, the real estate taxes resulting from the contested valuation are to be paid under protest. See section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 675).

For practical purposes, withholding of the payment of taxes cannot be allowed, because necessary funds could be withheld from education, fire protection, police protection, and other necessary governmental functions.

There are two methods of review from unfavorable actions of the board of review. One requires an appeal to the PTAB. (Ill. Rev. Stat. 1985, ch. 120, pars. 592.1 through 592.6.) A review of the decision of the PTAB comes under the Administrative Review Law (see Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.). Ill. Rev. Stat. 1985, ch. 120, par. 592.4.

The other method of review begins with a complaint before the board of review, followed by taxes paid under protest, and an objection must be filed in the circuit court in the proceedings involving the next application for judgment. (Ill. Rev. Stat. 1985, ch. 120, par. 675.) The trial court, having considered the objection, enters judgment on the objection, creating a final and appealable order.

If the PTAB procedure is used, appellate review follows the circuit court’s administrative review. If the objection at the time of the application for judgment procedure is used, then the appellate review is available following the final judgment of the circuit court.

Courts have no jurisdiction in any direct proceeding to review, supervise, or correct assessments duly made by local assessors. (People v. Illinois Women’s Athletic Club (1935), 360 Ill. 577, 579, 196 N.E. 881, 882; La Grange Bank #1713 v. DuPage County Board of Review (1979), 79 Ill. App. 3d 474, 484, 398 N.E.2d 992, 1000-01; 31 Ill. L. & Prac. Revenue §197 (1957).) The circuit court can only proceed with the objection if the complaining taxpayers have pursued their statutory remedies before a board of review. Women’s Athletic Club, 360 Ill. at 579, 196 N.E. at 882.

The following statement is included in People ex rel. Joseph v. Schoenborn (1968), 41 Ill. 2d 302, 304-05, 242 N.E.2d 147, 149, quoting People ex rel. Frantz v. M.D.B.K.W., Inc. (1966), 36 Ill. 2d 209, 211: A mere difference in opinion as to real estate value cannot invalidate an assessment. The courts are powerless to rectify a mere error of judgment. Only fraud, constructive or actual, is justified for court relief of assessed valuations. Schoenborn, 41 Ill. 2d at 305, 242 N.E.2d at 149.

“ ‘It is only where the property has been grossly overvalued, the assessed valuation being reached under circumstances showing either lack of knowledge of known values or a deliberate fixing of values contrary to the known value, that fraud in law will be inferred. Before the conduct of the taxing authorities will be considered constructive fraud, the evidence must clearly establish that the assessment was made in ignorance of the value of the property, or on a judgment not based upon readily ascertainable facts, or on a designedly excessive basis. People ex rel. Nordlund v. Lans, 31 Ill. 2d 477; People ex rel. Callahan v. Gulf, Mobile and Ohio Railroad Co., 8 Ill. 2d 66; People ex rel. Rhodes v. Turk, 391 Ill. 424.’ ”

The two mutually exclusive procedures we have discussed were described and approved in Schlenz (115 Ill. 2d at 142, 503 N.E.2d at 244). The recovery for wrongful assessment is the amount that the objecting taxpayer would not have paid had the property been correctly assessed (Schlenz, 115 Ill. 2d at 142, 503 N.E.2d at 244), not the entire tax (as plaintiffs appear to claim).

The trial court’s order of October 7, 1991, dismissing counts I and II was based on the reasoning that relief from improper assessments is limited to the methods described in this opinion and, once that type of review was provided by the ruling on count III, plaintiffs no longer had a cause of action in the instant case.

Absent the allegations of the obliteration of the notice of rights to obtain review of an assessment, we find that this cause of action would have been dismissed because of lack of jurisdiction. This cause involves an attack on an assessment, not a tax rate, and, as we have said, the only recourse, as set forth in Schlenz, is one of the two methods previously described. Assuming the obliteration of notice deprived plaintiffs of knowledge of review rights, once the remedy was provided under count III, we concur with the trial court’s order dismissing counts I and II. No further rights existed. The wrong, if any, was rectified.

However, we also suggest that the entire complaint might well have been dismissed earlier, because it did not specifically allege that plaintiffs failed to file a complaint before the Board of Review because of the action of Pietrazak. If plaintiffs knew their rights and failed to act thereon, regardless of Pietrazak’s conduct, no reason existed for their not using the administrative remedies. In such a case, no jurisdiction would exist in this cause of action.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARDELL MONTGOMERY, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0167
    Opinion filed August 13, 1992.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Wardell Montgomery appeals from an order of the circuit court of Livingston County dismissing his petition for post-conviction relief because it was not timely filed. The post-conviction petition was notarized December 31,1991, but not postmarked until January 4,1992.

Effective January 1, 1992, section 122 — 1 of the Code of Criminal Procedure of 1963 was amended to provide as follows:

“No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.” Ill. Rev. Stat. 1991, ch. 38, par. 122 — 1, amended by Pub. Act 87 — 580, §1, eff. Jan. 1, 1992 (1991 Ill. Laws 2855, 2856).

Prior to January 1, 1992, defendant would have had 10 years after the final judgment to file the post-conviction petition.

Defendant contends the petition should be allowed to be filed because of its notarization on December 31, 1991, and, in the alternative, argues that he should at least be allowed to amend the petition to allege facts tending to excuse the delay.

Defendant was sentenced on April 4, 1988, and his conviction was affirmed by our court’s decision in People v. Montgomery (1988), 176 Ill. App. 3d 367, 377, 531 N.E.2d 177, 184.

We have held that the timely deposit of a pleading in the prison mail system is adequate to comply with filing deadlines. (People v. Pagel (1990), 197 Ill. App. 3d 305, 307-08, 553 N.E.2d 1110, 1111; People v. Easley (1990), 199 Ill. App. 3d 179, 182, 556 N.E.2d 802, 804.) We have just so held with respect to another petition for post-conviction relief. (People v. Johnson (1992), 232 Ill. App. 3d 882.) We will not extend that ruling to give the same status to the date of notarization.

In this appeal, there is a suggestion that the petition was placed in the prison mail on December 31, 1991, but facts so stating were not alleged in the petition, for purposes of showing that the delay was not due to defendant’s culpable negligence. The State contends this failure to allege should now prohibit setting forth justification for delay. We disagree.

If the petition was placed in the mail on December 31, 1991, and processed immediately, there would be reasonable expectation of arrival of the petition at the clerk’s office on January 2, 1992, the first court day of 1992, in which case no excuse would need to be set forth. We will not charge defendant with assuming poor mail service.

However, as we have said, the December 31, 1991, mailing is only suggested. We find it necessary to remand, to allow the defendant an opportunity to amend the petition solely to allege facts showing that the delay was not due to his culpable negligence.

Reversed and remanded with directions.

GREEN, P.J., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES VANDERMAIDEN, Defendant-Appellant.
    Fourth District
    No. 4—90—0077
    Opinion filed August 13, 1992.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.

      Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following the entry of a negotiated plea in the circuit court of Adams County, defendant Charles Vandermaiden was convicted of aggravated criminal sexual abuse under section 12—16 of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12—16) and sentenced to a term of four years’ imprisonment. Pursuant to section 5—5—3(g) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(g)), the court additionally ordered defendant to undergo medical testing for sexually transmittable diseases, including a test for infection with human immunodeficiency virus (HIV), or any other identified causative agent of acquired immunodeficiency syndrome (AIDS). Defendant appeals, challenging the constitutionality of section 5—5—3(g) of the Corrections Code.

The decision of the Illinois Supreme Court in People v. Adams (1992), 149 Ill. 2d 331, held constitutional section 5—5—3(g) of the Corrections Code, as it applied to a violation of section 11—14 of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 11—14). The reasoning of the court in Adams applies equally to a violation of section 12—16 of the Criminal Code. The order of the trial court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    VERA E. HILLERS, on Behalf of Herself and All Other Persons Similarly Situated, Plaintiff-Appellant, v. JAMES E. BOYLAN, County Collector and County Treasurer of McLean County, et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0935
    Opinion filed August 13, 1992.
    Rehearing denied September 16, 1992.
    G. Edward Orr and D. Michael Rickgauer, both of Reardon, Orr & Dvorak, of East Peoria, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Brian Hug, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff, Vera Hillers, filed a class action suit against James Boy-lan, county treasurer and county collector for McLean County, and against McLean County, seeking an accounting and damages. The complaint alleged the county collector was without authority to impose interest on late installments of real estate taxes for the portion of the month remaining after the taxes were paid. The trial court granted defendants’ motion to dismiss. We affirm.

At some time prior to June 1, 1988, plaintiff received a tax bill from McLean County for general real estate tax due on parcel No. 14—36—35—009. The total tax liability for the first installment was $1,651.13 payable on or before June 3, 1988. Plaintiff paid the first installment on June 22, 1988, plus a penalty of $24.77 assessed by the county collector. The penalty equalled one month’s interest at V-!z%, even though plaintiff’s payment was not delinquent for the entire month.

On February 22, 1990, plaintiff filed a two-count class action complaint. Named as defendants were James E. Boylan, county collector and treasurer of McLean County, and the County of McLean. Count I sought a preliminary and permanent injunction against defendants, prohibiting and enjoining them from the assessment and collection of unlawful penalties on delinquent tax payments. Plaintiff voluntarily nonsuited count I, which is not involved in this appeal. Count II sought an accounting and damages equal to the sum plaintiff claims was illegally collected.

In response to the complaint, defendants filed a section 2— 619 motion to dismiss (see Ill. Rev. Stat. 1989, ch. 110, par. 2—619) on April 30, 1990. The motion to dismiss was based on three grounds relevant to this appeal: (1) a court sitting in equity had no jurisdiction over plaintiff’s complaint; (2) defendants were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.)\ and (3) the voluntary-payment doctrine barred recovery by plaintiff. On October 23, 1990, the court granted defendants’ motion to dismiss and allowed plaintiff 21 days to file an amended complaint. On November 15, 1990, plaintiff filed a motion to reconsider and intent to stand on pleadings. Defendants filed a response to the motion to reconsider on December 17, 1990. Plaintiff subsequently waived oral arguments on the motion to reconsider, and on October 25, 1991, the trial court denied the motion to reconsider. Plaintiff, on November 25, 1991, filed a motion for entry of a final order, which order was entered on December 5, 1991. Plaintiff appeals from the trial court’s order dismissing count II with prejudice.

Plaintiff’s first claim is that defendants’ motion to dismiss was improperly granted, because the trial court had jurisdiction. An action concerning the collection of taxes may arise in equity where the tax is unauthorized by law, where the tax is levied upon exempt property, or where there exists no adequate remedy at law. (Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201-02, 380 N.E.2d 775, 776-77; Santiago v. Kusper (1990), 133 Ill. 2d 318, 324, 549 N.E.2d 1251, 1254.) We find none of these situations exist in this case, and the trial court lacked jurisdiction to grant equitable relief.

Plaintiff paid her taxes and penalty on June 22, 1988, without protest. Defendants claim there is no equity jurisdiction here, because plaintiff is asking for relief which was available by statute. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299; Ames v. Schlaeger (1944), 386 Ill. 160, 166, 53 N.E.2d 937, 939.) The Hlinois legislature has established an extensive and specific statutory method for the calculation, payment, and protest of real estate taxes. Section 224 of the Revenue Act of 1939 (Act) provides that the first installment of real estate tax is due before the first day of June. (Ill. Rev. Stat. 1989, ch. 120, par. 705.) To encourage the prompt payment of the tax, any unpaid installment is subject to interest of lxk% per month. (Ill. Rev. Stat. 1989, ch. 120, par. 705.) By the terms of the Act this penalty interest is a part of the tax. (Ill. Rev. Stat. 1989, ch. 120, par. 482(11).) In order to object to all or any part of the real property tax, a person shall pay all the tax due and include with each payment a writing indicating that the payment is made under protest. (Ill. Rev. Stat. 1989, ch. 120, par. 675.) The court shall then enter a judgment, and if the party protesting the tax is owed money, a refund shall be paid. (Ill. Rev. Stat. 1989, ch. 120, pars. 675, 716.) We hold the trial court did not have equity jurisdiction, because plaintiff had an adequate remedy at law. This result is consistent with the analysis of equity jurisdiction in Santiago and Kousins v. Anderson (1992), 229 Ill. App. 3d 486, 593 N.E.2d 1095 (Kousins III).

Plaintiff also claims the after-payment portion of the interest penalty was unauthorized by law, and therefore the trial court had jurisdiction. The cases most on point are Kousins v. Anderson (1989), 180 Ill. App. 3d 827, 536 N.E.2d 487 (Kousins I), Kousins v. Anderson (1989), 189 Ill. App. 3d 771, 545 N.E.2d 779 (Kousins II), appeal denied (1990), 129 Ill. 2d 564, 550 N.E.2d 557, and Kousins III (229 Ill. App. 3d 486, 593 N.E.2d 1095). The facts, as they were reviewed in Kousins III, were as follows. The taxpayers’ first installment of their 1984 real estate tax was due on June 2, 1985, but was not paid until July 12, 1985. The county assessed a penalty against the taxpayers at the rate of lxk% per month for the entire months of June and July, notwithstanding the first installment was paid during July. The taxpayers alleged any penalty covering the period after the delinquent tax payment was unauthorized by law. The trial court granted the county’s motion to dismiss, holding the taxpayers failed to establish the complained-of penalty was unauthorized by law. Therefore, the court was without equity jurisdiction. Kousins, 229 Ill. App. 3d at 489, 593 N.E.2d at 1097.

Consistent with the supreme court’s decision in Santiago, we have relied on the language of the statute, the long-standing interpretation of the statute, and the legislature’s subsequent amendment of the statute after a contrary judicial construction (which we discuss below), and we find the tax questioned in the case at bar was not unauthorized.

Section 224 of the Act, as it read when the tax in question was assessed, authorized assessment of a monthly interest penalty: “such unpaid first installment shall bear, interest after the first day of June annually at the rate of lx/2% per month for all real property other than farmland.” (Ill. Rev. Stat. 1987, ch. 120, par. 705.) Based on this language we must determine whether this section authorized an interest penalty for the entire month or on a per diem basis through the day the payment was made. The statutory language is somewhat ambiguous, especially considering the portion of the statute relied on by plaintiff providing that interest penalties are to be assessed only “un-' til paid or forfeited.” Ill. Rev. Stat. 1987, ch. 120, par. 705.

We will generally defer to a long-standing interpretation of an ambiguous statute by those who are responsible for its enforcement. (Santiago, 133 Ill. 2d at 328, 549 N.E.2d at 1256; Kousins, 229 Ill. App. 3d at 494, 593 N.E.2d at 1100.) McLean County and other counties throughout the State have consistently interpreted section 224 of the Act to authorize collection of the interest penalty for the entire month if real estate taxes were delinquent for any portion of the month. See Kousins, 229 Ill. App. 3d at 494, 593 N.E.2d at 1100-01.

Even more persuasive is the legislature’s action in amending section 224 between Kousins I (Second District Appellate Court’s dismissal of taxpayers’ appeal for want of appellate jurisdiction) and Kousins II (Second District Appellate Court’s holding that taxpayers’ complaint survived the county’s motion to dismiss for lack of equity jurisdiction). The language “or any portion thereof” was added to section 224 of the Act by Public Act 86—234. (See Pub. Act 86—234, eff. Jan. 1, 1990 (1989 Ill. Laws 1725, 1725-26).) By the language of the amendment, section 224 provides that interest penalties on delinquent real estate taxes are “lx/2% per month or any portion thereof.” (See Ill. Rev. Stat. 1989, ch. 120, par. 705.) This added language clearly did not require per diem assessment of the interest penalty. (Kousins, 229 Ill. App. 3d at 495, 593 N.E.2d at 1101 (“an interpretation of ‘per month or any portion thereof that authorizes per diem interest would render such language absurd and without meaning”).) Although an amendment is usually presumed to change the law, if an amendment to an ambiguous statute is enacted soon after controversies as to the interpretation of the statute it amends, the amendment may be viewed as a legislative interpretation of the original statute. (Santiago, 133 Ill. 2d at 329, 549 N.E.2d at 1256; Kousins, 229 Ill. App. 3d at 494-95, 593 N.E.2d at 1101.) The monthly versus per diem interest issue was raised by the complaint for injunctive and declaratory relief dismissed with prejudice and appealed in Kousins I (180 Ill. App. 3d 827, 536 N.E.2d 487), in which the appellate opinion was filed April 12, 1989. On August 15, 1989, the legislature approved Public Act 86—234, which amended section 224, during the pendency of Kousins II. Amendment during these controversies was legislative clarification, rather than a change in the law. The addition of the language “or any portion thereof” (see Ill. Rev. Stat. 1989, ch. 120, par. 705) to the original “per month” language of the statute (see Ill. Rev. Stat. 1987, ch. 120, par. 705) clarified that the legislature’s intent, in the former version of the statute, was that the interest penalty on delinquent real estate taxes be assessed for the entire month when such taxes remained unpaid for any portion of the month. Kousins, 229 Ill. App. 3d at 495, 593 N.E.2d at 1101.

Moreover, we note that the legislature further amended section 224 of the Act between Kousins II and Kousins III by modifying the phrase “V-k% per month or any portion thereof’ (emphasis added) (Ill. Rev. Stat. 1989, ch. 120, par. 705) to read “V-k% per month for the entire month without apportionment or proration” (emphasis added) (see Pub. Act 87—145, §5, eff. Aug. 19, 1991 (1991 Ill. Laws 1084, 1092). This amendment was yet another attempt by the legislature to clarify section 224.

Plaintiff has failed to show the tax penalty was unauthorized by law, the tax was levied on exempt property, or that she has no adequate remedy at law. We find a lack of equity jurisdiction and uphold the trial court’s dismissal of plaintiff’s complaint. With this holding we need not address the issues of the Tort Immunity Act and the voluntary-payment doctrine raised in defendants’ motion to dismiss.

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINCOLN STAPLE, Defendant-Appellant.
    Fourth District
    No. 4—92—0023
    Opinion filed August 13, 1992.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Lincoln Staple appeals the denial of his motion to withdraw a plea of guilty to a charge of armed robbery under section 18—2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 18—2(a)). We affirm.

The armed robbery charges alleged that defendant and two others robbed William Impens of $100 and, in the process, stabbed him in the throat and back with a knife. Defendant waited in the car while his codefendants completed the robbery and, afterward, drove the getaway car. He received $30 as proceeds of the robbery. Defendant claims he did not know his accomplices were armed or that the victim would be stabbed. Prior to entering his guilty plea, defendant was fully admonished according to Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)). Both he and his counsel were asked whether accountability theory had been discussed and whether it was understood. Pursuant to a plea agreement, charges of aggravated assault were dropped, along with a number of unrelated traffic offenses, and defendant was sentenced to the minimum term of six years’ imprisonment. Subsequently, one of his codefendants went to trial and was convicted only of simple robbery, as opposed to armed robbery. This codefendant was responsible for actually taking the money from the victim and was standing next to him when he was stabbed by the third defendant. Despite this greater involvement in the crime, he received a sentence of only six months’ incarceration in the county jail, combined with four years’ probation.

Defendant claims that he entered his plea under a misapprehension that he had no defense to the armed robbery charge. At the hearing on defendant’s motion to withdraw, defense counsel stated that he was the same counsel representing defendant at the time his plea was entered. He argued that he had endorsed defendant’s misapprehension of the law by telling him that it was “unlikely under the law that one could obtain an instruction on the lesser offense of robbery.” Since the other defendant was actually standing at the scene where the knife was used and actually took the cash from the victim, counsel argued the motion should be allowed on the basis of fairness and equity.

The law governing motions for leave to withdraw pleas of guilty is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless the decision is an abuse of that discretion. (People v. Davis (1991), 145 Ill. 2d 240, 244, 582 N.E.2d 714, 716.) It is a judicial discretion “ ‘which should always be exercised in favor of innocence and liberty and in the light of the preference that is shown by law for a trial upon the merits by a jury.’ ” (People v. McKirdie (1970), 45 Ill. 2d 300, 302, 259 N.E.2d 16, 18, quoting People v. Morreale (1952), 412 Ill. 528, 531-32, 107 N.E.2d 721, 723.) When it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel, where the accused had a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty. (Davis, 145 Ill. 2d at 244, 582 N.E.2d at 716.) In applying this rule, our supreme court has held that “ ‘the least influence or surprise causing a defendant to plead guilty, when he has any defense at all, should be sufficient cause to permit a change of the plea from guilty to not guilty.’ ” McKirdie, 45 Ill. 2d at 303, 259 N.E.2d at 18, quoting Morreale, 412 Ill. at 532, 107 N.E.2d at 723.

This court followed the Morreale rule in People v. Davis (1990), 204 Ill. App. 3d 836, 562 N.E.2d 389, where defendant entered a plea of guilty after being advised by Treatment Alternatives for Special Clients (TASC) that he was eligible for acceptance to their program. After the plea was entered, TASC advised him that his extensive prior record made him ineligible for the program. Defendant’s motion to withdraw the plea was denied. On appeal, the court cited People v. Hale (1980), 82 Ill. 2d 172, 411 N.E.2d 867, for the rule that the defendant has the burden of establishing “that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impression.” (Davis, 204 Ill. App. 3d at 839, 562 N.E.2d at 390.) We found that defendant’s reliance on TASC’s determination of eligibility established a misapprehension of fact and granted defendant’s motion to withdraw his plea.

The State argues, and we agree, that this defendant has failed to satisfy the requirement of objective proof that the misapprehension was reasonably justified. Defense counsel’s testimony proves that defendant was aware of the possibility of a “simple robbery” instruction or verdict, but viewed this possibility as unlikely. As such, defendant simply made a mistake in judgment which is no grounds for withdrawal of a plea. Furthermore, the belief that he could be found guilty of armed robbery under accountability theory, even though he had no knowledge that a weapon would be used, is supported by case law. (See People v. Bartlett (1980), 91 Ill. App. 3d 138, 414 N.E.2d 253.) Defendant’s understanding of accountability was not flawed, being based on sound legal reasoning. Defense counsel argued that the mere fact that a different result was obtained in another courtroom is a clear indication “that somebody must have been wrong about it.” We disagree with this assertion and find that it falls short of the objective proof of a misapprehension of law needed to overturn the trial court’s decision.

Defendant cites another fourth district decision, People v. Cosby (1985), 137 Ill. App. 3d 854, 484 N.E.2d 1165, where the defendant pleaded guilty to aggravated criminal sexual abuse. Defendant claimed that he was unaware that his belief that the victim was 16 years or older was a possible defense to the charge. The public defender assigned to the case testified that while he could not recall the specifics of his conversations with defendant, he had thoroughly discussed the case with defendant, including the defense of a reasonable belief as to the alleged victim’s age. Even though this defense was discussed, defense counsel claimed that defendant may not have understood it. On these facts, our court held that at the time he entered his plea, defendant misapprehended the law and his motion to withdraw his plea should be granted. Cosby differs from the case at hand because Cosby was able to prove that he was actually ignorant of a possible defense. In the instant case, Staple clearly knew of the defense, but simply misjudged the likelihood of its success.

Next, defendant argues that his privately retained counsel, Michael McClellan, should have withdrawn, as he was forced to argue his own ineffectiveness in advising defendant to enter a plea of guilty to armed robbery. Neither defendant nor his retained counsel requested that different counsel be appointed at his hearing to withdraw the guilty plea. Our supreme court has held that a trial court’s decision not to appoint separate counsel on an ineffective-assistance-of-counsel claim will not be erroneous if the underlying claim is deemed to be without merit or related to a matter trial tactics. (People v. Crane (1991), 145 Ill. 2d 520, 533, 585 N.E.2d 99, 105.) As stated above, we find defense counsel’s advice to be based on sound legal reasoning. Therefore, the trial court was under no obligation to appoint different counsel.

Defendant cites a fourth district case, People v. Ball (1977), 50 Ill. App. 3d 36, 365 N.E.2d 243, for the proposition that an unacceptable conflict of interest arises when counsel is allowed to argue his own incompetency at a hearing to withdraw a guilty plea. In Ball, appointed counsel had represented to the court that defendant was competent to enter a plea of guilty. At a hearing to withdraw that plea, the same appointed counsel was forced to contradict himself and argue that defendant was incompetent at the time his plea was entered. The present case differs, in that counsel is not forced to contradict himself. The advice given to defendant at the time of his plea was competent advice. Subsequent events have shown that a different result was possible, but by no means certain. Unlike Ball, counsel in the case at hand has not argued, nor is he capable of arguing, that his advice at the time the plea was entered was incorrect.

Defendant also cites People v. Willis (1985), 134 Ill. App. 3d 123, 479 N.E.2d 1184, where defendant’s appointed counsel used a different person’s “rap sheet” in forming an appraisal of defendant’s probable sentence if he went to trial. The same counsel continued to represent defendant at a hearing to withdraw his plea of guilty. Again, the court found in Willis precisely what we fail to see in the case at hand—factual allegations supporting a charge of ineffective counsel. Nowhere is it alleged that defense counsel in the present case gave advice to his client that was less than competent.

The decision of the trial court is affirmed.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLOYD HOLFORD, Defendant-Appellant.
    Fourth District
    No. 4—92—0050
    Opinion filed August 13, 1992.

      Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On August 7, 1991, defendant Floyd Holford was indicted by a grand jury in Woodford County on a charge of driving while his license was revoked (DWR) (Ill. Rev. Stat. 1989, ch. 95½, par. 6—303). It was alleged in the indictment that on August 3, 1991, defendant had driven a vehicle on a highway in Illinois while his license was revoked. It was also alleged that defendant’s license had been revoked for driving while under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501), and that he had been previously convicted of DWR. These factors made defendant’s offense a Class 4 felony. See Ill. Rev. Stat. 1989, ch. 95½, par. 6-303(d).

At the time he was arrested on this charge, defendant was awaiting sentencing in case No. 91—CF—48 in Woodford County, wherein he had been convicted of DWR. He was represented by attorney Joe Gibson in that case. Defendant was sentenced on September 10, 1991, to 13 months in the Department of Corrections.

Defendant was represented in the instant case by the public defender. He entered a plea of guilty to the charge on September 6, 1991. At the hearing on entry of his guilty plea, defendant was admonished by the trial court that because he had committed a felony while out on bond after his conviction of a felony in case No. 91—CF—48, any sentence he received in the instant case would be consecutive to the sentence in the prior case, pursuant to the provisions of section 5—8—4(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(i)).

The sentencing hearing began on September 24, 1991. Sometime prior to this date, defendant had retained attorney Gibson to represent him at the sentencing hearing. The court heard evidence in aggravation and mitigation and arguments of counsel. Defendant declined to exercise his right of allocution. The hearing was then continued to September 27, 1991. On that date, the court delayed sentencing until defendant completed the period of incarceration for his conviction in case No. 91—CF—48. On December 10, 1991, the hearing reconvened. Defendant testified that he had been released from prison early. He believed this was because of a heart condition and the fact he had been injured in an attack by another inmate. The court sentenced defendant to 32 months’ imprisonment in the instant case.

Defendant filed a motion to withdraw his guilty plea and a motion for reduction of his sentence. His private attorney filed a motion to withdraw as defense counsel, and that motion was allowed. The public defender was again appointed to represent defendant with respect to his motions.

A hearing was held on both motions on January 9, 1992. At the beginning of the hearing, defense counsel advised the court that he had just learned the previous day that he was to again represent defendant. He indicated he had read the court file only that morning. Defendant testified there had been an offer from the State for a sentence of 32 months for both DWR cases, but that attorney Gibson had advised him against it, saying that defendant would get little or no prison time in the instant case after he served his 13-month term in the prior case. He testified that he was relying on Gibson’s recommendations in deciding to plead guilty in this case. At the conclusion of the hearing, the trial court denied both motions. Defendant now appeals.

Defendant’s sole contention on appeal is that the case must be remanded for a new hearing on the motion to withdraw his guilty plea, because the record on appeal does not contain a certificate of compliance with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). Rule 604(d), in relevant part, places the following duties on a defendant’s attorney:

“Appeal by Defendant From a Judgment Entered Upon a Plea of Guilty. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 134 Ill. 2d R. 604(d).

Defendant’s initial brief was filed in this court on April 10, 1992. At that time, no such certificate was a part of the appeal record. Defense counsel did, however, file a certificate with this court on May 27, 1992. That certificate states defense counsel consulted with defendant in person, examined the trial court file and the report of the proceedings of the plea of guilty, and made any necessary amendments to defendant’s motion. The State’s brief (filed seven days prior to the filing of the certificate) argues there has now been compliance with Rule 604(d) and that defendant is not entitled to a new hearing. We disagree.

Under the mandate of People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, there must be strict compliance with Rule 604(d). We are compelled to disagree with the State’s analysis for two reasons. First, Rule 604(d) requires the certificate be filed in the trial court, not in the appellate court. If there is to be strict compliance with Rule 604(d), belated filings in the appellate court cannot be allowed. The State cites this court’s opinion in People v. Hummel (1977), 48 Ill. App. 3d 1002, 365 N.E.2d 122, in support of its argument that filing of the certificate in the appellate court satisfies Rule 604(d). In that case, defense counsel failed to file the certificate in the trial court but did file in the appellate court on appeal. It was held that the certificate was a condition precedent to the trial court’s ruling on a motion to withdraw a guilty plea. However, it was also held that where the certificate was not filed in the trial court, the appellate court would still review the case on its merits, where the certificate was filed in this court, the record was sufficient to permit a review of the defendant’s claims of error, and the purposes of the certificate have been fulfilled. The court went on to state that in such cases the failure to file the certificate in the trial court would be viewed as harmless error. Hummel, 48 Ill. App. 3d at 1007, 365 N.E.2d at 127.

However, the harmless error analysis used in Hummel may no longer be utilized, in the aftermath of the Wilk decision. The many cases excusing noncompliance with Rule 604(d) prompted the supreme court’s statement in Wilk that its rules concerning guilty pleas were not merely suggestions but rules to be strictly adhered to. Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221.

The second reason we must remand this case to the trial court is that it appears from our review of the record, contrary to the statement contained in the certificate, that defense counsel could not possibly have reviewed the report of the proceedings of defendant’s guilty plea. Defendant entered his guilty plea on September 6, 1991. His sentencing hearing began on September 24, 1991, was continued to September 27, 1991, and finally concluded on December 10, 1991. The common-law record contains a docket entry dated December 9, 1991, noting a request for a transcript of the September 27, 1991, hearing. A copy of that transcript was filed in the common-law record on December 10, 1991. However, both the common-law record and the court reporter’s certificate indicate the complete report of proceedings, including defendant’s September 6, 1991, guilty plea hearing, was not prepared or filed until January 14, 1992, five days after the hearing on defendant’s motions to withdraw his guilty plea and reduce sentence. Thus, this case presents a situation similar to that in People v. Hancock (1991), 208 Ill. App. 3d 1092, 567 N.E.2d 633, People v. Johnson (1990), 207 Ill. App. 3d 122, 565 N.E.2d 284, and People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, wherein the transcript of the guilty plea proceedings in each case was not available for defense counsel to review prior to the hearing on the motion to withdraw the guilty plea, requiring remandment for a new hearing.

Finally, we take a dim view of defense counsel’s filing of the certificate in this case, when it is clear from the record that he could not possibly have reviewed the transcript of defendant’s guilty plea hearing prior to the hearing on the motion to withdraw that plea. We assume that in the future counsel will take steps to ensure that his certificate represents an accurate statement of his compliance with Rule 604(d).

For the aforementioned reasons, the order of the circuit court denying defendant’s motion to withdraw his guilty plea and his motion for reduction of sentence is vacated, and the matter is remanded for further proceedings.

Vacated and remanded.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE RAKOWSKI

text:
    HUGH SELLECK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pre-Fab Transit Company, Inc., Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—91—0607WC
    Opinion filed August 14, 1992.
    Robert W. McCarthy, of Decatur, for appellant.
    Charles C. Hughes, of Kehart, Shafter, Hughes & Webber, P.C., of Decatur, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court;

The employee, Hugh Selleck (claimant), appeals from an order of the circuit court confirming an Industrial Commission (Commission) decision which awarded the claimant benefits pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) (Act), but also found that Pre-Fab Transit Company, Inc. (employer), was entitled to a credit against the award of benefits pursuant to section 5(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b)). The basis of the credit was claimant’s prior recovery of a money judgment against a third-party tortfeasor for the same injuries which were the basis of the claimant’s action against the employer. The issues on appeal are: (1) whether the Commission had jurisdiction to adjudicate benefits provided in section 5(b) of the Act; and (2) whether the employer is entitled to a credit against benefits owed to the claimant based on claimant’s recovery of a money judgment against a third-party tortfeasor.

The claimant was injured on November 16, 1979, when the truck he was driving for employer was hit by another vehicle in Golden, Colorado. The claimant filed a personal injury action in Colorado against the other parties to the collision, and following a trial, a jury verdict in his favor in the amount of $480,390 was entered. Of this amount, $23,104.47 was paid to employer as reimbursement for payments it had already made to the claimant for medical expenses and temporary disability. The claimant and his attorney were paid the remaining $457,285.53. When employer received its reimbursement it paid claimant $6,575.40 as its pro rata share of litigation costs and attorney fees pertaining to the reimbursement already paid to the employer.

Approximately six months after satisfaction of the judgment, claimant filed an “Application For Adjustment of Claim” pursuant to the Act. On June 24, 1987, the arbitrator found that: (1) claimant sustained an accidental injury arising out of and in the course of employment; (2) his condition of ill-being was causally connected to the injury and present condition; (3) the medical expenses claimed were reasonable and necessary; (4) claimant was entitled to compensation for temporary total disability; and (5) as of the date of the hearing, claimant’s condition had not been restored as far as the permanent character of the injury permitted. In the determination of the temporary total disability award, the arbitrator found that the employer was entitled to a credit by virtue of the personal injury award received by the claimant in the Colorado litigation. Except for a correction in the calculation of disability payments, the Commission affirmed the arbitrator’s findings, and on administrative review, the decision of the Commission was confirmed. The Commission’s decisions regarding medical expenses and the amount of the disability award are not raised as issues in this appeal.

The claimant first contends that the Commission did not have jurisdiction to determine the employer’s entitlement to a credit pursuant to section 5(b) because the Illinois courts have exclusive jurisdiction to determine the employer’s rights under this section. As a basis for this contention, the claimant primarily relies on Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, 484 N.E.2d 1076. In that case, the employee initially obtained an award from the Commission and then filed a personal injury action against the manufacturer of the sewer solvent which had caused the employee’s injuries. The employer intervened pursuant to section 5(b) of the Act in order to protect its claim on any award received by the plaintiff. The action subsequently settled, and the employer moved to enforce its lien on the proceeds of the settlement. The employer sought a credit with the suspension of disability payments until the amount of the lien was satisfied. The employee did not dispute the employer’s claim but contended that the circuit court did not have authority to modify the Commission’s order regarding the employee’s compensation award. The employee further claimed that the Commission was the proper forum to request suspension or modification of future payments. (Freer, 108 Ill. 2d at 423, 484 N.E.2d at 1078.) On these facts, the Freer court held that the circuit court rather than the Commission was the proper body to protect the employer’s right to reimbursement. Freer, 108 Ill. 2d at 426, 484 N.E.2d at 1079.

However, there are significant differences in what occurred procedurally in the Freer case and the case sub judice. In this case, the claimant first filed a claim against the third-party tortfeasor in Colorado, the site of the accident, and after obtaining a judgment, he filed his workers’ compensation claim in Illinois. Consequently, at the time of the personal injury action, there was no determination by the Commission that the claimant was entitled to compensation, the extent of his disability or the amount of payment to which he was entitled. Thus, any assertion by the employer of its claim during the Colorado proceeding would have been without basis and premature.

In support of his position, the claimant relies heavily upon the statement in Freer that “[t]he statute does not envisage any role for the Industrial Commission in the protection of the employer’s right of reimbursement.” (Freer, 108 Ill. 2d at 426, 484 N.E.2d at 1079.) In so holding, the Freer court pointed out that the language of section 5(b) refers to “orders of the court.” While such language does appear in section 5(b), it is in the context of circumstances, like those in Freer, where workers’ compensation benefits had already been paid and the employer is seeking reimbursement in the same court in which the personal injury or wrongful death action is pending. Furthermore, we view the above-quoted language from Freer as dicta in that the actual issue was not which forum had jurisdiction but whether the circuit court could modify a Commission award in order to protect the employer’s claim. Under the circumstances sub judice, we see no reason to compel the employer to file an entirely separate action to protect its section 5(b) rights. Thus we hold that the Commission was a proper forum for such a determination.

The claimant next contends that the employer is not entitled to a credit against future compensation payments based on the claimant’s third-party recovery. However, section 5(b) of the Act expressly states that the employer has a right to reimbursement or credit against past or future compensation payments where the claimant has received a money judgment or settlement for the same injury. The relevant statute provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative tiñere shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative ***.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).)

In its discussion of the employer’s rights under section 5(b), the Freer court recognized “the employer’s right to be reimbursed for the ‘amount of compensation paid or to be paid by him to such employee ***.’ ” (Emphasis added.) (Freer, 108 Ill. 2d at 426, at 1079, quoting Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b).) Further, in its concluding statements, the Freer court referred to the circuit court’s jurisdiction to enforce a lien in favor of the village in the form of proper credits against the payments required to be made to the plaintiff. Freer, 108 Ill. 2d at 428, 484 N.E.2d at 1080.

The only case the claimant cites in support of his position is McCormick v. McDougal-Hartmann Co. (1970), 47 Ill. 2d 340, 265 N.E.2d 610. In McCormick, the employee was permanently injured while working on a road project and received compensation from the employer from 1959 until 1965. During this time period the employee filed a claim against the State for the same injuries. He subsequently received a judgment in his favor but refused to pay any amount to the employer. The employer stopped paying compensation, and the employee filed a claim with the Commission. The arbitrator awarded compensation, and the award was confirmed by the Commission on review. When the employer still failed to pay compensation, the employee filed a claim in the circuit court. The employer argued that the cessation of payments was proper because it was entitled to a credit against the Commission’s award based on the employee’s recovery of $25,000 from the State of Illinois. The circuit court rejected the employer’s argument and entered a judgment in favor of the employee. On appeal to the appellate and supreme court, the employer argued that its entitlement to a credit for future compensation payments was approved by the Commission as evidenced by the provision in its order which granted the employer a “ ‘credit for all sums of money, if any, heretofore paid petitioner on account of accidental injuries.’ ” (McCormick, 47 Ill. 2d at 342, 265 N.E.2d at 611.) What the supreme court held was that the language relied on by the employer was customary language in an award to authorize the deduction of payments made by an employer prior to the hearing or prior to the entry of the award and not an approval of a credit on future compensation payments. (McCormick, 47 Ill. 2d at 343, 265 N.E.2d at 611-12.) The court then stated that it was unable to consider the employer’s contention that it was entitled to a credit pursuant to section 5(b) because the employer had failed to seek review of the award against it. The employer could not now have review of the award by means of an answer filed in an action brought by the employee under section 19(g) of the Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(g)) to enforce such award in his favor. McCormick, 47 Ill. 2d at 343, 265 N.E.2d at 612.

Because the McCormick court never reached the merits of the employer’s section 5(b) claim, it provides no support for the claimant’s position. Therefore, pursuant to section 5(b) of the Act, we conclude that the employer is entitled to a credit against future compensation to the claimant based on the claimant’s recovery against the third-party tortfeasor.

For the aforementioned reasons, the judgment of the circuit court and decision of the Industrial Commission are affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and H. LEWIS, JJ., concur.