author: JUSTICE WELCH PRESIDING JUSTICE CHAPMAN,

text:
      In re ESTATE OF LYLE KING, Deceased (Erma D. Corder et al., Plaintiffs-Appellants and Cross-Appellees, v. Leona Emagene Clark, as Ex’x of the Estate of Lyle King, Deceased, Defendant-Appellee and Cross-Appellant (Donna P. Powell et al., Defendants)).
    Fifth District
    No. 5 — 91—0612
    Opinion filed June 10, 1993.

      CHAPMAN, P.J., dissenting.
    Ray Fehrenbacher, of Fehrenbacher Law Offices, of Olney, for appellants.
    Morris Lane Harvey, of Law Offices of Morris Lane Harvey, of Fair-field, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, Erma D. Corder, Ethel M. Walker, Joy Lyle Walter, Jettie Ola Howard, and William A. Walker, appeal from the July 12, 1991, judgment of the circuit court of Wayne County granting summary judgment on plaintiffs’ second amended petition to contest will, in favor of defendant, Leona Emagene Clark, as executrix of the estate of Lyle King, deceased, and other named defendants who were legatees and devisees under the last will and testament of Lyle King. The executrix cross-appeals from the July 24, 1991, order of the circuit court of Wayne County denying her motion for attorney fees pursuant to the provisions of Supreme Court Rule 137 (134 Ill. 2d R. 137). For reasons stated as follows, we affirm.

The decedent, Lyle King, and his wife, Beatrice L. King, executed a “Joint and Mutual Last Will and Testament” on March 6, 1986. The joint and mutual will provided that upon the death of each of the joint testators, his or her debts, expenses of administration, and funeral expenses were to be paid and that each of the joint testators devised and bequeathed all of his or her estate to the survivor. The joint and mutual will provided in article III that upon the death of the last joint testator, all of the rest, residue, and remainder of the joint testators’ estates would be divided in equal shares and devised to 17 named individuals. The record indicates that the 17 individuals were the then-prospective heirs of Mr. and Mrs. King, six of those individuals being nieces and nephews of Lyle King and the remaining 11 individuals being nieces and nephews of Beatrice L. King. Article III further provided that if any of the above-named individuals should predecease the last of the surviving joint testators, then his or her share should go to that individual’s descendants, per stirpes. Finally, the joint and mutual will named Leona Emagene Clark, from Mrs. King’s side of the family, and Melvin Donal Walker, from Mr. King’s side of the family, as coexecutors of the estate and provided that if either person could not serve as a coexecutor then there should be a successor named from that respective side of the family.

Beatrice L. King predeceased her husband, Lyle King, who died on September 4, 1989. A petition for probate of Mr. and Mrs. King’s joint and mutual will was filed by Leona Emagene Clark on October 19, 1989. Melvin Donal Walker, one of the six named individuals from Mr. King’s side of the family and named coexecutor, also predeceased Mr. King. The record indicates that plaintiffs, the remaining five named individuals from Mr. King’s side of the family, refused to serve as successor coexecutor and refused to consent to the probate of the joint and mutual will. The will was admitted to probate, and Leona Emagene Clark was appointed sole representative of the estate on November 17,1989.

The record indicates that the aggregate value of the estate was approximately $300,000. Plaintiffs, as the heirs of Lyle King and named legatees under the joint and mutual will, and the remaining legatees under the joint and mutual will received notices from the executrix on November 20, 1989, of the admission of the will to probate and of their right under section 8 — 1 of the Probate Act (111. Rev. Stat. 1989, ch. llO1^, par. 8 — 1) to contest the validity of the will.

On February 6, 1990, the attorney for the executrix sent letters to the legatees under the will stating that the executrix had to make arrangements for the disposition of the tangible personal property of the estate and thought that there were some items which the legatees would want to retain in the family rather than to have to dispose of them at a sale. The letter itemized sentimental memorabilia or heirlooms such as Bibles, funeral books, photographs, an afghan, a dinner bell, a marriage license, and other records. The executrix recommended that certain items having a connection to Mrs. King be turned over to her to be divided among the legatees on Mrs. King’s side of the family and that the remaining items having a connection to Mr. King be turned over to Ethel M. Walker to be divided among the legatees on Mr. King’s side of the family. The letter stated that all legatees would have to approve of the distribution as recommended and each legatee would further have to agree that he or she was deemed to have received, for purposes of distribution of the assets of the estate, a share equal in value to the share received by each other legatee. Finally, the letter reiterated that unless all legatees agreed to distribution as outlined in the letter, the executrix would have to sell or otherwise dispose of the named articles. “Entry of Appearance and Consent” forms were enclosed with the letters to the legatees. The record indicates that each of the five plaintiffs signed a consent to the executrix making distribution of the tangible personal property of the estate as recommended by the executrix in the February 6, 1990, letter from her attorney.

Plaintiffs filed their petition to contest the joint and mutual will on May 17, 1990. Following dismissal of this petition and the first amended petition to contest will, plaintiffs filed their second amended petition to contest will on February 4, 1991. The three-count second amended complaint alleged that the joint and mutual will was invalid based on lack of testamentary capacity of Beatrice King and/or Lyle King and on undue influence of the joint testators on the part of Leona Emagene Clark.

The record indicates that plaintiffs’ attorney received a letter dated September 24, 1990, from an attorney representing one of the defendants in the case urging that, under the doctrine of election, the will contest could not be maintained because plaintiffs had received a benefit under the will. The letter cited as authority Kyker v. Kyker (1983), 117 Ill. App. 3d 547, 453 N.E.2d 108, and In re Estate of Joffe (1986), 143 Ill. App. 3d 438, 493 N.E.2d 70. Under the doctrine of election, one cannot simultaneously accept benefits conferred by a will while setting up claims contrary to the terms of the document itself. (Joffe, 143 Ill. App. 3d at 440, 493 N.E.2d at 72.) Neither the first nor the second amended petition made any allegations referring to facts constituting any exception to the doctrine of election. Plaintiffs made no tender of the property received from the estate to the executrix with the filing of either the first or second amended petition to contest will.

The executrix filed a motion for summary judgment on the second amended petition to contest will on March 13, 1991. She attached to the motion the affidavits of herself and her attorney, copies of the February 6, 1990, letter from her attorney, and the consents signed by plaintiffs. Based on these affidavits, the executrix contended there was no material issue of fact that she had proposed a partial distribution of personal property under the estate to each legatee including the plaintiffs. In addition, the executrix urged there was no material issue of fact that plaintiffs had consented to this partial distribution when they filed their written consents with the court. The executrix further urged that the consents received from all of the legatees, including plaintiffs, established that the partial distribution she suggested in the February 6, 1990, letter was carried out and that each of the plaintiffs had acknowledged receiving a partial distribution of equal value to each of the other legatees. Based on these uncontested facts, the executrix contended that she was entitled to judgment as a matter of law because, by consenting to the partial distribution, plaintiffs had acknowledged that each had received a benefit equal to the benefit received by each of the other legatees under the will, had voluntarily accepted a beneficial interest under the will, and as a matter of law were held to have ratified and confirmed the entirety of the will which conferred the benefit accepted by them, citing Kyker and Joffe. The executrix further contended that a beneficiary who accepts a bequest under the will is estopped from asserting any claim inconsistent with the validity of the will and that the acceptance of benefits under the will operates as an election as a matter of law on the part of plaintiffs to ratify the will and may not be rescinded where, as here, the plaintiffs have continued to retain the benefits obtained pursuant to the will, citing Kyker and Joffe. Because plaintiffs have at no time offered to return any of the proceeds from the partial distribution, the executrix contended, their election must be deemed final.

Plaintiffs filed an objection and response to the executrix’s motion for summary judgment. Plaintiffs stated in this pleading that plaintiffs had refused to act as a coexecutor by virtue of their position with respect to the will. Plaintiffs also argued that the personal property items distributed were not the subject of any specific bequest but merely personal possessions of Lyle King which plaintiffs did not want the executrix to sell. Plaintiffs further argued that the personal property items received by them would have been distributed to them in the event their will contest was successful and insisted that they would never have had any interest in the items distributed to the next of kin of Beatrice L. King. Plaintiffs maintained that the attorney for the executrix was aware that plaintiffs were not consenting to the probate of the will and that they refused to sign consents to probate the will and to serve as coexecutor, but said attorney failed to inform plaintiffs of the executrix’s position with respect to distribution of the personal effects, if, in fact, it was her intention to “outsmart” the plaintiffs with respect to their position on the will. Plaintiffs also argued that distribution of the personal effects caused no harm or prejudice to the defendants in the sense that they have not changed their position or taken action on the basis of the distribution which should work any equitable estoppel against the plaintiffs. Plaintiffs stated that if the court ruled that the distribution of the personal effects was somehow an “acceptance of a specific bequest under the will,” plaintiffs offered to immediately tender and return the personal effects. No counteraffidavits were filed by plaintiffs in connection with their objection and response to the motion for summary judgment.

We have not been provided with a transcript of the hearing on the motion for summary judgment which was held on April 29, 1991. The trial court ruled by docket entry dated April 30, 1991, however, that the executrix’s motion for summary judgment was granted. The court noted that plaintiffs had filed no affidavits raising any issue that their acceptance of benefits under the will was not made with full knowledge of the relevant facts and circumstances, including the contents of the will and circumstances surrounding execution of the will, or that their acceptance was procured or induced by fraud or mistake. Accordingly, the court found that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law on the second amended petition to contest will. The court ruled that defendants should have judgment against plaintiffs and directed preparation of a judgment order by counsel for the executrix. The court entered the judgment order on July 22, 1991.

The executrix also filed a motion for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), on. March 13, 1991, which the court heard on July 22, 1991. The court noted at that hearing that section 2 — 611 had been superseded by Supreme Court Rule 137 (134 Ill. 2d R. 137 (effective August 1, 1989)). The court therefore ruled on the executrix’s motion under the provisions of Rule 137.

The executrix claimed in her motion that the attorney’s letter dated September 24, 1990, to plaintiffs’ attorney specifically advised of case law which, as a matter of law, would preclude plaintiffs from proceeding with their will contest. Notwithstanding such notice, the executrix claimed, plaintiffs proceeded to file both a first and second amended petition to contest will, both of which had been executed by counsel pursuant to the provisions of section 2 — 611 (Rule 137). The executrix concluded that these facts indicated that the first and second amended petitions to contest will were executed in violation of the provisions of section 2 — 611 (Rule 137), and pursuant to said rule the court should impose sanctions including, but not limited to, “the warning cost,” expenses, and attorney fees incurred by the estate in the defense of this action.

Plaintiffs filed no response to the motion for attorney fees and did not appear at the hearing on the executrix’s motion. However, the court stated that it would take judicial notice of the court file, including, but not limited to, arguments presented and evidence presented at any previous court hearing.

The executrix presented at the hearing the testimony of the attorney for the executrix who was retained to represent the executrix in the probate proceedings. The attorney testified that, in the course of handling matters for the estate, there was a partial distribution of some personal property and that the plaintiffs in the will contest had accepted their part of the partial distribution. The attorney stated that he had received a copy of the letter dated September 24, 1990, which was sent by an attorney for one of the will contest defendants to the attorney for the plaintiffs. A copy of this letter was admitted into evidence. The executrix also offered the affidavit of her attorney in the will contest proceedings regarding the attorney fees which had been expended by the estate in the defense of the proceedings, which was also admitted into evidence. The executrix reiterated in closing argument that the attorney’s letter served as notice to plaintiffs’ attorney that plaintiffs could not, as a matter of law, contest the will after having accepted benefits thereunder, but that the plaintiffs persisted in the will contest and made no attempt to tender return of the benefits. Moreover, without addressing the rationale outlined in the attorney’s letter or making a reasonable inquiry into the legal basis for their pleadings, plaintiffs’ attorney signed two successive amended petitions. The court ruled by docket entry dated July 24, 1991, that the executrix’s motion for attorney fees would be denied because the court found a “bona fide issue as to existing law applicable to facts.”

In their appeal, plaintiffs contend that they were not precluded from maintaining the will contest by their acceptance of the distribution of some “sentimental” items from the estate, as proposed by the executrix, because such items were clearly not a benefit or bequest bestowed by the will. Plaintiffs argue that the distribution was by family and not by individual and there can be no viable argument that their acceptance of the executrix’s proposal constituted a knowing and informed “election” under the will. Plaintiffs further state that they offered to return the sentimental items in the event the court deemed under the facts and circumstances of this case that continued possession constituted an “election” under the will. Plaintiffs cite In re Estate of MacLeish (1977), 46 Ill. App. 3d 957, 361 N.E.2d 618, for the proposition that where the facts and circumstances do not clearly indicate whether an informed election has taken place, the court may order the return of the items within a certain period of time or the recipient will be deemed to have made an election.

The cases cited by the executrix, as legal authority for a finding by the court under the doctrine of election that plaintiffs had ratified and confirmed the entirety of the will by the voluntary acceptance of a beneficial interest thereunder, were Kyker v. Kyker (1983), 117 Ill. App. 3d 547, 453 N.E.2d 108, and In re Estate of Joffe (1986), 143 Ill. App. 3d 438, 493 N.E.2d 70. Though not specifically cited by the court in its docket entry memorandum of decision or in the July 12, 1991, judgment order, we will presume that the trial court based its decision on the executrix’s motion for summary judgment on the authority of Kyker and Joffe. Plaintiffs argue on appeal that these two cases are not applicable because, unlike the instant case, the wills in the Kyker and Joffe cases provided for specific cash bequests which were accepted by the devisees while attempting to maintain a will contest. Plaintiffs note that the trial court recognized the ambiguity of the law on the doctrine of election when applied to the facts and circumstances of this particular case in ruling as it did on the executrix’s motion for attorney fees pursuant to Rule 137. Plaintiffs argue that by stating in its docket entry memorandum of decision that a “bona fide issue as to existing law applicable to facts” was found, the court in effect found a genuine issue of material fact which should have precluded the entry of summary judgment in the executrix’s favor.

Summary judgment shall be rendered if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (111. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).) The purpose of summary judgment proceedings is not to try an issue of fact, but to determine whether one exists. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 101, 479 N.E.2d 1211, 1212.) As noted above, the executrix supported her motion for summary judgment by affidavits from herself and the attorney for the probate estate, but plaintiffs filed no counter affidavits. If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his complaint or answer alone to raise genuine issues of material fact. (Golden, 134 Ill. App. 3d at 101-02, 479 N.E.2d at 1212.) A plaintiff has an affirmative duty, on defendant’s motion for summary judgment, to bring forth all facts and evidence that would satisfy his burden of proving the existence of a cognizable cause of action. (Golden, 134 Ill. App. 3d at 102, 479 N.E.2d at 1212.) The affidavits offered by the executrix concerned the requisite factual proof of the affirmative defense pled by the executrix to plaintiffs’ second amended complaint. Proof of such defense would negate plaintiffs’ right of recovery under their complaint. The executrix argues that plaintiffs failed to meet their burden of showing, at a minimum, that a genuine issue of material fact existed, by their failure to produce any counteraffidavits to the motion for summary judgment.

As we discern plaintiffs’ argument on appeal, however, they dispute whether acceptance of decedent’s personal effects from the residuary estate, as opposed to a specific bequest, constitutes acceptance as a matter of law of a benefit under the will. Resolution of that issue requires analysis of the courts’ decisions in Kyker and Joffe and other relevant case law.

Under the provisions of the will in Kyker, the testator devised $500 to the petitioner, who was one of her grandchildren, as well as other specific monetary bequests to one of the testator’s sons and to other grandchildren. The residuary estate was devised to another of the testator’s sons, who was also named executor. The executor issued a check to petitioner in the amount of $500 in satisfaction of her bequest under the will, and the check was endorsed and cashed by the petitioner approximately four months after petitioner instituted a will contest proceeding against the estate. The executor filed a motion to dismiss the will contest petition, asserting that petitioner was estopped from maintaining the action because she had accepted benefits of the will. The appellate court affirmed the trial court's dismissal of the will contest petition under the general rule of estoppel to attack the validity of a will under which a beneficiary has accepted a bequest.

In Estate of Joffe, the testator’s will provided for $2,500 legacies for each of her five grandchildren, for a $2,000 legacy to the testator’s friend, and for the remainder of the estate to be devised to the testator’s sole surviving daughter. Each of the specific legatees was sent a check in full satisfaction of his or her legacy. All of the legatees, including the two grandchildren who later filed a petition to contest the will, cashed their checks. The trial court granted the executor’s motion to dismiss the will contest petition, finding that the petitioners had ratified the will by their acceptance of the bequests, and the appellate court affirmed.

It is true that the petitioners in Kyker and Joffe received specific monetary bequests under the will while the individual plaintiffs in the instant case were equal beneficiaries under the will of one-seventeenth of the decedent’s residuary estate. There can be no doubt, however, that the items distributed by the executrix made up a portion of that residuary estate, and so plaintiffs cannot deny that the items received by way of the partial distribution were received “under the will.” Moreover, plaintiffs raised no material issue of fact with respect to whether the executrix had suggested a partial distribution of this personal property, that plaintiffs had consented to this partial distribution, that said partial distribution had been carried out, and that each plaintiff had acknowledged receiving a partial distribution of equal value to each of the other legatees. We do not believe that the Kyker and Joffe cases are inapplicable merely because the bequests were specific rather than general, nor does our reading of those cases lead to a conclusion that the courts intended that their holdings be so limited.

Plaintiffs’ argument appears to turn upon the value of the legacy or bequest: that because the distributed items of personal property were of “sentimental” value alone, they could not hold any actual value as property of the residuary estate and, accordingly, plaintiffs did not take a “benefit” under the will. We note that while no Illinois decision has addressed the precise issue raised by plaintiffs in this appeal, other jurisdictions have, with differing conclusions. In Dickerson v. Murfield (1944), 173 Or. 662, 147 P.2d 194, the court held that receipt by one of the legatees of a few used sheets and pillow cases and a few antiquated articles of furniture upon which her initials had been placed by the testator did not rise to the dignity of a waiver of the legatee’s right to contest the will, notwithstanding that the will gave those articles to her, because waiver is defined as the intentional relinquishment of a known right. In contrast, courts have held that the value of the property is irrelevant to the question of “benefit” under the will. (See Cennamo v. American Security & Trust Co. (D.D.C. 1970), 318 F. Supp. 366, rev’d on other grounds sub nom. In re Estate of Bur-rough (D.C. Cir. 1973), 475 F.2d 370.) In Cennamo, the district court, applying District of Columbia law, ruled that there was no indication in the estoppel-to-contest-will cases that the amount of the benefits received was controlling.

In Kyker and Joffe there is no doubt that the petitioners, who received cash from the respective estates, received a benefit under the will and thus made an election under the will. However, as the court noted in Joffe, the doctrine of elections, which is based upon equitable principles of estoppel, is designed to address the taking of inconsistent positions under the will and to preempt such activity. We believe that plaintiffs exhibited such an inconsistent position by accepting equal portions of this personal property of the estate and then filing the will contest petition. Moreover, the Kyker and Joffe cases are based upon principles of estoppel as in Cennamo rather than waiver as in Dickerson, and so we find under Illinois law that it is the taking of inconsistent positions under the will rather than the value of the property taken under the will which should be controlling.

Plaintiffs have also argued that acceptance of the executrix’s proposal for distribution of this property did not constitute a knowing and informed election under the will and so the doctrine of election should not apply in this case. Moreover, plaintiffs insist that they offered to return these items received under the partial distribution if the court deemed their continued possession to be an election under the will.

The petitioner in the Kyker case had contended that the general rule of estoppel should be subject to an exception where a legatee tenders back a bequest and no one is prejudiced, such that preclusion or estoppel no longer applies without regard to whether or not the tender is made in a timely manner or the election to accept was made with full knowledge. The appellate court noted in Kyker two well-recognized exceptions or qualifications to the estoppel rule: (1) acceptance of a bequest under a provision of the will must have been made with full knowledge of the relevant facts and circumstances, including the contents of the will and the circumstances surrounding execution of the will; (2) even though a person accepts a benefit under the will, he or she is not precluded from questioning the validity of any provisions that are contrary to the law or public policy. The appellate court also noted that some jurisdictions recognize a third possible exception to the general rule of estoppel if temporary acceptance of the bequest under the will does not prejudice other parties interested in the estate. The court opined that the better view is to permit a contest of the will only where the return of, or offer to repay, a legacy is made prior to instituting the contest proceeding.

The court also noted in Kyker that some jurisdictions have held that the repayment of the benefits received under a will that is later challenged as invalid is not required where the contestant’s share as heir in the event of intestacy would equal or exceed the amount of the legacy under the challenged will. The court determined, however, that this lack of prejudice argument was made and rejected by the court in In re Estate of MacLeisch (1977), 46 Ill. App. 3d 957, 361 N.E.2d 618. The court in Kyker agreed with the rationale of the court in MacLeisch that acceptance of such a position would require the court to speculate as to what share of the estate the contestant would be entitled to under another will or by intestacy in the event that the challenged will was held to be invalid. The Kyker court ruled that lack of prejudice alone is insufficient to permit the rescission of an election to accept benefits under a will made by one with full knowledge of the circumstances. While a beneficiary should be granted a reasonable time after receipt of a bequest in which to make an election to accept or reject it, the court held in Kyker that where the beneficiary has made an election to accept the benefits of the will with full knowledge of the relevant facts and circumstances and without that election being induced by fraud or mistake, the beneficiary is bound by that election and cannot change her mind and be permitted to contest the will by tendering back those benefits.

We note that plaintiffs made many of the same arguments as the petitioner did in Kyker in their objection and response to the motion for summary judgment, i.e., that the personal property items would have been distributed to them in the event the will contest was successful and that distribution of the personal effects caused no harm or prejudice to the defendants because they had not changed their position or taken any action on the basis of the distribution which would result in an equitable estoppel against plaintiffs. The reviewing court in Kyker rejected those arguments, and we believe the trial court properly rejected those arguments in the instant case. Additionally, under the reasoning of the court in Kyker, petitioners should have returned the items received by way of the partial distribution at the time the will contest was filed or within a reasonable time thereafter. We therefore find that plaintiffs’ offer to return the items if the trial court found the doctrine of election applicable was woefully tardy.

With regard to the issue of whether plaintiffs’ acceptance of the bequests were made with full knowledge, the appellate court found in Jojfe that because the petitioners alleged lack of testamentary capacity on the part of the testator and undue influence on the part of the executor at the time the will contest petition was filed, they knew at that point in time all the material facts. The Joffe court held that because the petitioners neither returned the bequests nor even offered to return them, they must be deemed to have made an election at the time the petition was. filed. Under the reasoning of the Joffe case, resolution of whether acceptance of the bequest was made with full knowledge focuses on whether or not the beneficiary knows or is prevented from learning the circumstances concerning execution of the will, not the effect of his or her acceptance of the bequest on the legal ability to maintain the will contest action. Under Jojfe plaintiffs are deemed to know all relevant facts concerning execution of the will at the time the will contest petition was filed. Under Joffe, plaintiffs'must also be deemed to have made an election at the time they filed their will contest petition.

Plaintiffs maintain, however, that the facts of the instant case indicate that they did not make an informed election under the will and so, under authority of the MacLeish case, the doctrine of election is not controlling. In MacLeish the testator’s son was given the use of a house rent free for his lifetime under the will. The beneficiary had resided in the house for 28 years prior to the testator’s death and had paid $200-per-month rental under the terms of the written lease in effect prior to the testator’s death. The beneficiary filed a will contest petition approximately six months after the estate was opened but paid no rent for the property after his father’s death. The final lease also contained a provision that would make a holdover tenant a tenant by sufferance at a specified rental per day. The per-day rental was left blank on the lease, however, and no requests were made by the executor for payment of holdover rent. The trial court found that the fair rental value of the property was $875 per month and held that the beneficiary had to either pay the 12 months of back rent at $875 per month or he would be deemed to have made an election under the will. When the beneficiary failed to pay the executor the $10,500 in back rent, the trial court dismissed the will contest petition.

The reviewing court reversed, holding that dismissal of the petition was improper because the beneficiary’s “consent” to probate of the will under the ambiguous circumstances presented did not indicate a knowing acceptance of the benefits under the will. The court noted that the first time the beneficiary was afforded an election was when the trial court ordered him to pay the back rent or vacate the premises, or be deemed to have made an election under the will, and this was not a real election because the son was impecunious and unable to pay the large amount of money. The court also noted that there was a dispute with the executor as to whether the beneficiary had vacated the premises; the beneficiary had turned over his keys to the executor but had left certain personal property on the premises.

We see no similar ambiguity involved with the plaintiffs’ acceptance of the distribution of property in the instant case. Although plaintiffs argue that their acceptance of the executrix’s proposed distribution was by family and could therefore not constitute a knowing and informed election under the will, they failed to dispute the language of their consents by which they affirmed that the distribution they received would be deemed “equal in value to the shares received by the other legatees.” Indeed, the consents signed by plaintiffs are clear that plaintiffs agreed with the distribution of tangible personal property of the estate as recommended by the executrix. The affidavits of the attorney and the executrix further establish no genuine issue of fact that the plaintiffs acknowledged by the execution of the consent to distribution that each plaintiff was receiving a partial distribution of equal value to each of the other legatees. We thus find the MacLeish case to be distinguishable on its facts.

Plaintiffs appear to be arguing that the executrix should have been required to let them know that if they accepted the proposed distribution they would be deemed to have made an election under the will and would be foreclosed from thereafter contesting the will in order to accept the bequest with full knowledge of the relevant facts and circumstances. We do not find that the MacLeish case establishes such a duty, nor was the executor required to so inform the legatees in the Kyker or Joffe cases in order for there to be full knowledge of the relevant facts and circumstances. We therefore hold that the trial court properly granted summary judgment for the executrix.

In her cross-appeal, the executrix argues that the trial court erred in refusing to grant attorney fees pursuant to the provisions of Supreme Court Rule 137 (134 Ill. 2d R. 137). Rule 137 provides in pertinent part:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. *** The signature of an attorney or party constitutes a certifícate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney fee.” (Emphasis added.) (134 Ill. 2d R. 137.)

Rule 137, which superseded amended section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), is intended to prevent counsel from making assertions of fact or law without support, whether the assertions be written or oral. (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 364.) Unlike former section 2 — 611 of the Code of Civil Procedure, Rule 137 allows" but does not require the imposition of sanctions. (Ill. Ann. Stat., ch. 110A, par. 137, Committee Comments, at 101 (Smith-Hurd Supp. 1992).) Trial court decisions on whether to impose sanctions are entitled to considerable deference upon review and will not be reversed on appeal absent an abuse of discretion. (In re Marriage of Irvine (1991), 215 Ill. App. 3d 629, 637, 577 N.E.2d 462, 467.) A trial court exceeds its discretion only where no reasonable person would take the view adopted by the trial court; if reasonable persons could differ as to the propriety of the trial court’s actions, then a reviewing court cannot say that the trial court exceeded its discretion. Lewy, 211 Ill. App. 3d at 334-35, 570 N.E.2d at 365.

Under Rule 137 the test is what was reasonable under the circumstances; in evaluating the conduct of an attorney or party who signs a pleading or other paper filed with the court certifying that he has made a reasonable inquiry into the basis of the pleading or other paper, the court must determine what was reasonable to believe at the time the document was presented to the trial court, rather than engage in hindsight. (Lewy, 211 Ill. App. 3d at 334, 570 N.E.2d at 364-65.) Executrix contends that measured against the standard of objective reasonableness established by Rule 137, it is apparent that the conduct of plaintiffs and their counsel in repeatedly filing the petition and amended petitions to contest the will after having accepted benefits under the will falls well below the standard. Moreover, executrix contends that after being informed in September 1990 of case law which was dispositive of whether their claim was barred, plaintiffs made no argument to the court that such case law was not controlling or distinguishable on its facts, nor did plaintiffs make an argument to the court for any extension of the law which would allow plaintiffs to maintain their action. As the executrix notes, the only document before the court in which plaintiffs indicated to the court the bases upon which they deemed themselves entitled to maintain the action was the “Objection and Response to the Motion for Summary Judgment.” These bases included arguments that the estate was not prejudiced and that the executrix’s attorney attempted to deceive plaintiffs into accepting such a benefit.

The executrix maintains that the recent decision in Edwards v. Estate of Harrison (1992), 235 Ill. App. 3d 213, 601 N.E.2d 862, is dispositive of our decision on this issue. In Edwards the plaintiff filed an amended complaint seeking to quiet title to certain real property which was part of the estate, of which she claimed ownership by reason of a 1987 quitclaim deed given to her by decedent on the day he died. Before plaintiff’s attorney filed the second amended complaint, however, defendant notified the attorney that there was a strong likelihood that decedent’s signature on the deed was a forgery, showing the attorney a report from Steven C. MeKasson, a professional document examiner, who opined in the report that decedent’s purported signature on the 1987 quitclaim deed was not genuine.

Defendant moved for summary judgment on the second amended complaint claiming, inter alia, that decedent’s signature on the 1987 quitclaim deed was a forgery and so the deed upon which plaintiff claimed ownership of the property was void. McKasson testified on behalf of defendant at an evidentiary hearing that decedent’s signature on the 1987 deed was a forgery, but plaintiff produced no witnesses to attest to the authenticity of decedent’s signature on the deed. The court granted summary judgment in favor of defendant, dismissing plaintiff’s complaint with prejudice, and defendant filed a motion for sanctions pursuant to section 2— 611 of the Code of Civil Procedure. Defendant alleged in the motion for sanctions that plaintiff and her attorney had filed a series of false and fraudulent complaints which were not grounded in fact, particularly noting that plaintiff’s attorney should have discovered that the signature on the 1987 quitclaim deed was a forgery.

In response to the motion for sanctions, plaintiff stated that prior to the evidentiary hearing her attorney had hired a private investigator to locate the notary public who notarized the deed but had been unable to locate him. The attorney did not provide the name of the investigator or an affidavit describing the steps taken by the investigator to locate the notary public. Plaintiff also claimed that she was financially unable to hire her own handwriting expert. The trial court granted defendant’s motion for sanctions, finding that the pleading would not be well grounded in fact if it contained untrue statements of fact with reference to the validity of the quitclaim deed which the attorney knew or reasonably should have known were untrue and that if the attorney had conducted a reasonable inquiry into the facts before filing the complaint he would have discovered that the signature was suspect to a layperson’s eye, would have attempted to corroborate the testimony of the single witness who claimed to know decedent’s signature, would have produced those corroborating witnesses at the hearing, and if finances so warranted it, would have produced a handwriting expert. The court ordered plaintiff and her attorney jointly and severally liable for defendant’s attorney fees, and this judgment was affirmed on appeal.

Similarly, the reviewing court found in In re Marriage of Irvine that because the plaintiff had failed to make an inquiry of any kind prior to filing a complaint to recover a debt from the defendant, sanctions were warranted against plaintiff under Rule 137. The record indicated that prior to filing his complaint for the payment of a $5,500 debt, the plaintiff had first made demand on the defendant at a prior hearing between the parties and had been informed at the hearing that the debt had long since been satisfied. The reviewing court noted that plaintiff was put on notice that his claim would be contested and any reasonable inquiry would have revealed the falsity of the claim, because defendant could have supplied him with copies of checks forwarded to defendant from which plaintiff had deducted the $5,500 which was owed to plaintiff. The reviewing court found that the trial court abused its discretion in determining that plaintiff’s error was unintentional and that the pleading was not filed for an improper purpose, because the record was clear that plaintiff had failed to make a reasonable inquiry into the factual basis for his claim.

In the instant case, the executrix contends that after receiving notice in September 1990 from the attorney for one of the will contest defendants that the Kyker and Joffe cases provided the legal authority for the barring of their claim, plaintiffs failed to make any reasonable inquiry or proffer any legal authority to legitimize their claim and thereafter filed their first and second amended petitions. Thus, under the reasoning of the Edwards case, executrix maintains, the trial court abused its discretion in refusing to award Rule 137 sanctions against plaintiffs.

We note that just as in the instant case, the plaintiffs’ cases in Edwards and Irvine were dismissed with prejudice based on summary judgment on the defendants’ affirmative defenses. We also note that in both Edwards and Irvine, the reasonable inquiry which the courts maintained should have been undertaken after the plaintiffs had received notice that their claims were unsupportable involved an inquiry into the factual rather than the legal basis for their claims. The reasonable inquiry the executrix urges was not conducted by plaintiffs in the instant case, however, was an inquiry into the legal basis for their claim in light of the executrix’s contention that the will contest petition was barred by the doctrine of election. In other words, plaintiffs were not notified of a problem which they would have in factually meeting their burden of proof; they were advised that the executrix would challenge the legal basis for the petition based on the Kyker and Joffe cases. Plaintiffs’ response to the motion for summary judgment indicates their position that the two cases relied on by the executrix were inapplicable and that the doctrine of election was inapplicable based upon the Mac Leish case. That the trial court disagreed with plaintiffs on this legal position does not give cause for a conclusion that plaintiffs failed to make the reasonable inquiry into the legal basis for their claim which is required by Rule 137. As noted above, in ruling on a motion for sanctions under Rule 137, the trial court must determine what was reasonable to believe at the time the pleading was presented to the court, rather than engage in hindsight. (Lewy, 211 Ill. App. 3d at 334, 570 N.E.2d at 364-65.) We hold that the trial court did not abuse its discretion in denying the executrix’s motion for Rule 137 sanctions.

For the foregoing reasons, the July 12, 1991, judgment and the July 24, 1991, order of the circuit court of Wayne County are affirmed.

Affirmed.

RARICK, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

“[Tjhere’s always words on the board, words and words and more words in their dusty slanted lines of white and yellow, erasers filled with words gone old or bad or both ***.” J. McCorkle, Words Gone Bad, in Crash Diet, at 183 (1992).

Election and equitable estoppel — the “E” words.

The plaintiffs accepted some family Bibles, photographs, funeral books, personal records, an afghan, and a dinner bell. The majority holds that, by accepting these items, the plaintiffs made an irrevocable commitment to the validity of the will to an estate with a value of over $300,000.1 dissent.

The majority discusses both election and estoppel in reaching its conclusion. As I understand it, the majority is saying that the doctrine of election of remedies will not allow plaintiffs to both accept under and to challenge the will. If I were to ask why, I believe the majority would say, “Because those positions are inconsistent.” If I were to point out that inconsistent pleadings are specifically permitted by common law (see Fitchie v. Yurko (1991), 212 Ill. App. 3d 216, 570 N.E.2d 892) and the Civil Practice Law (735 ILCS 5/2— 604, 5/2 — 613 (West 1992)) and ask, “Why should the rule be different in this case?” the majority might properly state (as it does at 245 Ill. App. 3d at 1098) that “the doctrine of elections *** is based upon equitable principles of estoppel.”

Assuming that was the answer of the majority, I would still have to persist with my series of whys. The majority might prefer the Bud Dry slogan, “Why ask why?” but if we are not here to ask why, then why are we here? So continuing, I must ask, “Why is estoppel invoked to prevent the presentation of inconsistent positions?” The answer must be, and is, to prevent prejudice to the opponent who has relied upon the earlier inconsistent position.

For example, a plaintiff files a complaint based upon alternative, inconsistent theories. These inconsistent pleadings are not condemned, the plaintiff is not castigated, the complaint is not dismissed; the case proceeds to trial with all parties fully informed, and a resolution is reached. But, if the plaintiff had filed only one count and proceeded on that count until the last day of her case and then sought leave to amend to plead the inconsistent theory, the defendant might well successfully resist the amendment on estoppel grounds.

There may be other reasons for invoking estoppel, such as judicial efficiency (see National Commercial Banking Corp. of Australia, Ltd. v. Harris (1988), 125 Ill. 2d 448, 532 N.E.2d 812) or to prevent fraud and injustice (see Byron Community Unit School District No. 226 v. Dunham-Bush, Inc. (1991), 215 Ill. App. 3d 343, 574 N.E.2d 1383), but none is presented in this case.

Even if some vague notion of the prevention of unfairness based on inconsistency were the reason relied upon by the majority, I see no unfairness in this case. This case does not involve that English favorite, the peppercorn.

“Peppercorn. A dried berry of the black pepper. In English law, the reservation of a merely nominal rent, on a lease, was sometimes expressed by a stipulation for the payments of a peppercorn.” (Black’s Law Dictionary 1022 (5th ed. 1979).)

The peppercorn has legal meaning beyond its value. While the items accepted by the plaintiffs certainly had symbolic significance, their significance was personal, not legal. When the plaintiffs accepted the objects they were not saying, “We get the dinner bell, you get everything else”; nor could their gesture be reasonably understood as such a statement.

I close with my final question, “Why invoke the doctrine of estoppel if no reason is presented for its invocation?” My answer, of course, is that I would not, and therefore, I dissent.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    LEE A. PLASTERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Old Ben Coal Company et al., Appellees).
    Fifth District (Industrial Commission Division)
    No. 5 — 92—0177WC
    Opinion filed April 15, 1993.
    Rehearing denied July 27, 1993.

      Harold B. Culley, Jr., of Raleigh, for appellant.

      L. Robert Mueller, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

On November 20, 1985, Lee Plasters (claimant) filed an application for adjustment of claim pursuant to the Workers’ Occupational Diseases Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.). Claimant alleged that his heart and lungs were impaired due to the inhalation of coal and rock dust which occurred while he was employed with Old Ben Coal Company (employer). The arbitrator found that the claimant was permanently and totally disabled, and the employer appealed the award to the Industrial Commission (Commission). The Commission affirmed the finding of disability but modified the amount of the award, finding that the claimant was entitled to permanent disability to the extent of 20%. The circuit court reversed the decision of the Commission, ruling that the claim was barred by the time period set forth in section 1(f) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36(f)). The issues on appeal are: (1) whether the circuit court erred in applying section 1(f) of the Act to a claim based on coal miners’ pneumoconiosis; (2) whether the circuit court’s reversal of the Commission’s determination that the claimant proved disablement pursuant to section 1(f) of the Act was error; and (3) whether the Commission’s determination that the claimant was not totally disabled was against the manifest weight of the evidence. We affirm in part and reverse in part.

The claimant began working as a coal miner in 1939. He worked below ground as a trip rider for 10 years but left mining and joined the Navy. After serving in the Navy for about two years, he returned to mining and worked for the employer as a coal driller for 171/2 years. The claimant testified that the dust was so bad at that time that he was unable to see a co-worker’s light which was eight feet away. The claimant left the employer and went to work at another mine loading coal. Five and one-half years later the claimant returned to the employer, where he remained until his termination. When the claimant first returned to the employer, he worked as a miner-operator but “bid” off the job to do repairs because he could no longer perform the work.

The claimant stated that his breathing problems began four or five years before he left the employer. His symptoms progressed to the point that he had to stop and catch his breath while working, and he frequently required help from his co-workers.

After the mine shut down for one year, the claimant was called back to work as a laborer, tearing out old belts and replacing them. He also worked as a belt-walker and cleaner which involved his walking more than three miles a day and using a shovel. After the mine shut down a second time in December of 1982, the claimant did not return to mining because his breathing problems had progressed to the point that he could no longer perform his job. The claimant stated that he was continuously exposed to coal dust throughout his employment in the mines.

After the claimant left mining, his breathing problems continued to become progressively worse. At the time of his testimony before the arbitrator in August 1989, the claimant stated that he could not walk more than about a block before becoming short of breath and that he was no longer able to hunt or fish because of this limitation. He coughed a great deal and sometimes had to get up in the middle of the night and sit in a chair. The claimant further testified that he had received treatment for his breathing difficulty from his family doctor since retirement and that the doctor had prescribed medications and the use of an inhaler. At the time of the hearing, the claimant was seen by the doctor once a month unless his symptoms became worse and he had to arrange for an earlier visit.

Dr. Parviz B. Sanjabi was an internist specializing in pulmonary disease and a provider for the Department of Labor Black Lung Program. Under a grant from the Federal government, he developed a treatment program for people with chronic obstructive lung disease and pneumoconiosis. He also provided treatment for many coal miners in his private practice. Dr. Sanjabi first saw the claimant on February 20, 1986, to determine if he had coal miners’ pneumoconiosis. His chief complaint was shortness of breath while climbing a flight of stairs, walking, or carrying a 25-pound weight and spasmodic coughing. The physical examination revealed that the claimant had prolonged expiratory time which is consistent with obstructed airways seen in some pneumoconiosis cases. Dr. Sanjabi reviewed the X rays from 1985, which indicated the presence of small opacities in all areas of the lung. Both the results of the X ray and the pulmonary-function studies were consistent with coal miners’ pneumoconiosis. Dr. Sanjabi stated that because pneumoconiosis was a chronic disease which usually progresses slowly, the claimant had the disease when he stopped mining in December 1982. He further stated that additional exposure to coal dust at that time would have further damaged his lungs. Dr. Sanjabi described the claimant’s disease in 1986 as simple pneumoconiosis.

In 1988 Dr. Sanjabi performed a bronchoscopy on the claimant when an X ray showed an abnormality not related to the pneumoconiosis. A biopsy showed no malignancy, and Dr. Sanjabi concluded that what was seen on X ray was probably scar tissue.

On September 7, 1988, the claimant was examined by Dr. Saeed A. Khan. Dr. Khan practiced internal medicine and received additional training in cardiology and pulmonary disease. He saw many patients with pulmonary problems, particularly those associated with mining. On examination, he noted that the claimant was dyspneic and cyanotic with clubbing of the fingernails. He also identified a right ventricle heave which indicated that the ventricle was enlarged. Other symptoms noted were decreased breath sounds in both lungs, dry crepitations (bubbling noise due to damaged lung tissue), and a narrowing of the bronchial tube which caused a whistling sound known as rhonchi. Pulmonary-function tests and blood-gas studies were performed which indicated impairment to the claimant’s lungs suggestive of emphysema and coal miners’ pneumoconiosis. The chest X rays showed marked interstitial fibrosis in both lung fields, hypertransluceney, and progressive massive fibrosis in. both upper lobes. The board-certified radiologist concluded that the claimant had advanced pneumoconiosis. It was Dr. Khan’s opinion that the impairment to the claimant’s lungs and the resulting pneumoconiosis were caused by his years of exposure to coal dust and that if he continued to work in the mines his health would continue to deteriorate. Dr. Khan added that pneumoconiosis was an irreversible and chronic illness. Because of his pulmonary impairment, the claimant was also unable to do any suitable comparable work.

The arbitrator found that the claimant had pneumoconiosis which arose out of his coal-mining employment and that he was permanently and totally disabled. The Commission confirmed the finding of disability but concluded that the claimant was not obviously unemployable and had failed to prove that work was unavailable. Based on this determination, the Commission reduced the disability award to permanent disability to the extent of 20%. Both parties appealed the Commission’s determination, and the separate appeals were consolidated. The circuit court reversed the decision of the Commission, finding that the claimant failed to prove disablement within two years of his last exposure pursuant to section 1(f) of the Act.

The claimant first contends that it was error for the circuit court to apply section 1(f) of the Act to his claim based on pneumoconiosis. The claimant argues that section 1(f) of the Act conflicts with section 6(c) and frustrates the effect of the presumption in section 1(d).

Section 1(d) of the Act provides in relevant part:

“If a miner who is suffering or suffered from pneumoconiosis was employed for 10 years or more in one or more coal mines there shall, effective July 1, 1973 be a rebuttable presumption that his or her pneumoconiosis arose out of such employment.” Ill. Rev. Stat. 1981, ch. 48, par. 172.36(d).

Section 1(f) of the Act provides:

“No compensation shall be payable for [or on] account of any occupational disease unless disablement, as herein defined, occurs within two years after the last day of the last exposure to the hazards of the disease, except in cases of occupational disease caused by berylliosis or by the inhalation of silica dust or asbestos dust and, in such cases, within 3 years of the last day of the last exposure to the hazards of such disease and except in the case of occupational disease caused by exposure to radiological materials or equipment, and in such case, within 25 years after the last day of last exposure to the hazards of such disease.” Ill. Rev. Stat. 1981, ch. 48, ch. 172.36(f).

Section 6(c) provides in relevant part:

“Effective July 1, 1973 in cases of disability caused by coal miners pneumoconiosis unless application for compensation is filed with the Commission within 5 years after the employee was last exposed where no compensation has been paid, or within 5 years after the last payment of compensation where any has been paid, the right to file such application shall be barred.” Ill. Rev. Stat. 1981, ch. 48, par. 172.41(c).

In Goodson v. Industrial Comm’n (1989), 190 Ill. App. 3d 16, 545 N.E.2d 975, the court addressed the applicability of sections 1(f) and 6(c) to a claim for death benefits under the Act by a surviving spouse. The court noted that where the language of a statute was subject to differing interpretations, it was necessary to determine the legislative intent by looking beyond the express language of the statute to the purpose it was to serve. “Different sections of the same statute should be considered as in pari materia and should be construed so as to avoid an illogical result.” (Goodson, 190 Ill. App. 3d at 18.) The Goodson court described the legislative purpose of the Act as follows:

“The Workers’ Occupational Diseases Act reflects the legislative balance between the rights of employees and employers. [Citation.] The purpose of the limitation provisions in question is to protect the employer against claims too old to be adequately investigated and defended. [Citation.] Accordingly, sections 1(f) and 6(c) should be read together to effectuate the legislative intent. Section 1(f) clearly states that no compensation shall be payable for or on account of any occupational diseases unless the employee becomes disabled within three years of his last exposure to the hazard. That section evinces a legislative intent to reasonably limit an employer’s period of potential liability for both disability benefits payable to an employee and death benefits payable to a survivor.” (Emphasis added.) (190 Ill. App. 3d at 18-19.)

Although the surviving spouse argued that she only had to file her claim within the limitation period provided in section 6(c), the Good-son court held that disablement of the decedent within three years of his last exposure to asbestos was a condition precedent to recovery by the surviving spouse and that her claim was barred by section 1(f) of the Act. (Goodson, 190 Ill. App. 3d at 20.) The courts in Whitney v. Industrial Comm’n (1992), 229 Ill. App. 3d 1076, 594 N.E.2d 749, and Dickerson v. Industrial Comm’n (1991), 224 Ill. App. 3d 838, 587 N.E.2d 1045, citing Goodson, also held that compliance with section 1(f) was a condition precedent to recovery. Although Goodson and the two cases relying on it involved a claim by a surviving spouse rather than the employee, this factor does not distinguish it from the case sub judice. In ruling that a surviving spouse had to comply with section 1(f), the court held the employee’s survivor to the same requirement to which the employee himself had been held. (See Goodson, 190 Ill. App. 3d at 19.) The claimant’s argument regarding an alleged conflict between section 1(f) and section 1(d) is even less convincing. Section 1(d) involves no time requirement, only a rebuttable presumption of a causal relationship.

Claimant’s remaining arguments regarding this issue are also without merit. Although he argues that section 6(c) should take precedence over section 1(f) because section 6(c) specifically refers to pneumoconiosis while section 1(f) includes it under the general phrase “occupational disease,” the subject matter of each provision is different. Section 1(f) requires that disablement due to an occupational disease must occur within a specific time period after the last exposure, while section 6(c) is a statute of limitations which requires that a claim be filed within a time period after last exposure. Furthermore, the fact that a claimant must become disabled from an occupational disease within two years after his last exposure but has three more years to file a claim allows the claimant time to prepare for any administrative or legal action he may decide to take. Finally, in response to claimant’s argument that the failure to amend section 1(f) was an oversight on the part of the legislature or that somehow coal miners’ pneumoconiosis is exempt from compliance with section 1(f), the court in Whitney stated:

“Notwithstanding petitioner’s argument is the plain fact that the legislature did not amend section 1(f) of the Act ***, and this court cannot presume that its failure to act was the result of oversight. This court’s function is to interpret the law as enacted by the legislature. Our function is not to annex new provisions or substitute different ones or read into a statute exceptions, limitations or conditions which depart from its plain meaning. [Citation.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” Whitney, 229 Ill. App. 3d at 1078.

For these reasons, we conclude that section 1(f) is applicable to a claim based upon coal miners’ pneumoconiosis.

The claimant next contends that the circuit court’s reversal of the Commission’s decision that he proved disablement within the statutory time period was error. Pursuant to section 1(e) of the Act, “disablement” is defined as:

“[A]n impairment or partial impairment, temporary or permanent, in the function of the body or any of the members of the body, or the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he or she claims compensation, or equal wages in other suitable employment ***.” Ill. Rev. Stat. 1981, ch. 48, par. 172.36(e).

Whether a claimant has provided sufficient evidence of disablement is a question of fact for the Commission to determine, and its decision will only be reversed if it is against the manifest weight of the evidence. (Zimmerly Construction Co. v. Industrial Comm’n (1972), 50 Ill. 2d 342, 278 N.E.2d 789; Gay v. Industrial Comm’n (1989), 178 Ill. App. 3d 129, 532 N.E.2d 1149.) Where the evidence is conflicting or where different inferences may be drawn, a court will not disregard permissible inferences by the Commission merely because it may have drawn other inferences from the facts. As the court in Dexheimer v. Industrial Comm’n (1990), 202 Ill. App. 3d 437, 442-43, 559 N.E.2d 1034, stated:

“It is the province of the Commission to weigh and resolve conflicts in testimony, including medical testimony, and to choose among conflicting inferences therefrom. [Citations.] It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside.”

(See also O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 253, 403 N.E.2d 221.)

“A reviewing court cannot reject or disregard permissible inferences drawn by the Commission because different or conflicting inferences may also be drawn from the same facts nor can it substitute its judgment for that of the Commission unless the Commission’s findings are against the manifest weight of the evidence.” (Martin v. Industrial Comm’n (1992), 227 Ill. App. 3d 217, 219, 591 N.E.2d 108.)

It has been observed that “[t]he manifest weight of the evidence is that which is ‘the clearly evident, plain and indisputable weight of the evidence.’ [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent.” (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54, 426 N.E.2d 1276.) Finally, “[i]f the undisputed facts permit an inference either way *** then the Commission alone is empowered to draw the inference and its decision as to the weight of the evidence will not be disturbed on review.” Morgan Cab Co. v. Industrial Comm’n (1975), 60 Ill. 2d 92, 97, 324 N.E.2d 425.

In the case sub judice the Commission determined that the claimant proved disablement pursuant to sections 1(e) and (f) of the Act based on his own testimony before the arbitrator and that of Drs. Sanjabi and Khan. The Commission also considered the deposition testimony of the employer’s physician, Dr. Selby. The claimant testified that he worked as a coal miner for 44 years and retired in December 1982. Four to five years prior to his retirement the claimant began to have breathing problems where he became short of breath while working and required help from his co-workers to perform his job. The claimant stated that after retirement his breathing problems became progressively worse, and he could barely walk a block without having difficulty breathing. He was seeing his family doctor approximately once a month and taking medication for his breathing problems since his retirement.

Dr. Sanjabi examined the claimant 14 months after the statutory time period ended. His evaluation of the claimant’s condition consisted of a history, physical examination, X ray and pulmonary-function test which indicated that the claimant had prolonged expirations, as well as a mild obstruction and opacities in his lungs. Dr. Sanjabi concluded that the claimant suffered from pneumoconiosis which resulted from his work in the mines. Dr. Sanjabi testified that further exposure to coal dust would worsen the claimant’s lung condition. He concluded that because of the degree of impairment to the claimant’s respiratory system and the fact that the disease was a chronic, slowly progressing illness, the claimant had pneumoconiosis when he retired from mining in December 1982.

Dr. Khan examined the claimant in September 1988. In addition to the history, physical examination, chest X ray, and pulmonary-function test, Dr. Khan ordered an arterial blood-gas study. He confirmed the finding that the claimant suffered from pneumoconiosis and emphysema due to his years of exposure to coal dust. The chest X ray showed that the claimant had massive fibrosis consistent with complicated pneumoconiosis. On examination, he found that the claimant was short of breath and cyanotic due to decreased oxygen saturation in the blood, which was indicative of chronic lung disease. Other symptoms found on examination were a right ventricle enlargement, decreased breath sounds in both lungs, a bubbling noise due to damaged lung tissue, and a whistling sound caused by the narrowing of the bronchial tube. Dr. Khan also stated that pneumoconiosis was a chronic and irreversible disease. It was his opinion that the claimant was unable to perform any suitable comparable job because of his pulmonary impairment.

Dr. Jeffrey Selby examined the claimant at respondent’s request in June 1988 and reviewed medical reports which were subsequently offered into evidence at the arbitration hearing. The arbitrator refused to allow the deposition or the attached exhibits into evidence, but on review before the Commission, the deposition without the exhibits was considered with the other evidence. Dr. Selby testified that he was certified in internal medicine, pulmonology, and critical care. He testified that the claimant’s pulmonary-function test, blood-gas studies, and chest X ray were negative for pneumoconiosis. He concluded instead that the claimant had asthma and apical lesions due to inactive tuberculosis and that the claimant could return to mining.

Based on this evidence, the Commission determined that the claimant was suffering from pneumoconiosis which arose out of his employment in the coal mines, and that he proved that he was disabled within two years of his last date of exposure which was December 31, 1982. However, while the Commission found that the claimant could no longer work as a coal miner or in other comparable work earning equal wages, his disability was not so extensive that he was obviously unemployable. Therefore, the Commission modified the decision of the arbitrator finding that claimant was permanently disabled to the extent of 20% pursuant to section 8(d)(2) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(2)).

The circuit court found that the decision of the Commission was against the manifest weight of the evidence because the claimant had not presented any evidence of disablement due to pneumoconiosis within the two years following his retirement in 1982. Despite the extensive medical testimony from Drs. Sanjabi and Khan, the court reasoned that because neither doctor examined the claimant by December 1984, their testimony was not evidence that the claimant had pneumoconiosis or was disabled within the statutory time period.

However, we conclude that there was sufficient evidence to support the Commission’s determination, based on the claimant’s testimony regarding his symptoms as well as Dr. Sanjabi’s unequivocal statement that, based on the degree of impairment to the claimant’s respiratory system, the claimant had pneumoconiosis when he retired from mining in 1982. Furthermore, where Dr. Sanjabi and Dr. Khan testified as to the slow progression of pneumoconiosis, their testimony was evidence of disablement within the statutory time period even though it was based on examination of the claimant after the time had expired.

In Monterey Coal Co. v. Industrial Comm’n (1992), 241 Ill. App. 3d 386, 392, the appellate court held that the Commission had permissibly inferred that the claimant’s disablement occurred -within the statutory time period based on the claimant’s testimony, as well as the testimony of his examining physicians. Both physicians who had substantial experience dealing with coal workers’ pneumoconiosis described it as a slowly progressing chronic disease which manifested itself in a debilitating manner over a number of years. For this reason, the appellate court rejected the employer’s argument that because the claimant’s physicians examined him after the statutory period expired their opinions should not have been considered. (See also Zeigler Coal Co. v. Industrial Comm’n (1992), 237 Ill. App. 3d 213, 604 N.E.2d 481.) In the case sub judice, we also reject a similar argument by the employer, and we, therefore, conclude that the Commission’s determination that the claimant’s disablement occurred -within the statutory time period was not against the manifest weight of the evidence.

The claimant also raised the argument that the employer waived this issue by failing to raise it before the arbitrator. Because of the decision we have reached on this issue, we need not address the claimant’s waiver argument.

The claimant’s final contention is that the Commission’s determination that he was not totally disabled was error. The determination of the extent or permanence of a claimant’s disability is a question of fact for the Commission to determine, and its decision will not be set aside unless it is against the manifest weight of the evidence. (Hutson v. Industrial Comm’n (1992), 223 Ill. App. 3d 706, 714, 585 N.E.2d 1208.) The claimant has the burden of proving the extent and permanence of his injury by a preponderance of evidence. (Esposito v. Industrial Comm’n (1989), 186 Ill. App. 3d 728, 737, 542 N.E.2d 843.) Once the claimant has met this burden, the burden shifts to the employer to show that some kind of competitive market exists and that work is regularly and continuously available to the claimant. (Hutson, 223 Ill. App. 3d at 714, citing Esposito, 186 Ill. App. 3d 728.) The extent of disability is dependent upon the extent to which the illness or injury has impaired the claimant’s earning capacity or ability to work. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 361, 376 N.E.2d 206.) In determining whether the employee is capable of performing any useful services, the Commission must consider the age, training, education, and skills of the claimant as well as the extent of his illness or injury and the nature of employment. (Caradco Window & Door v. Industrial Comm’n (1981), 86 Ill. 2d 92, 100, 427 N.E.2d 81.) As the court in Valley Mould & Iron Co. v. Industrial Comm’n stated:

“[I]f the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market [citation]), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant.” (Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 546-47, 419 N.E.2d 1159.)

Where the claimant is required to show the unavailability of work, he can meet this burden by showing that reasonable efforts were made to secure employment that could be performed by a person in a similar condition. A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 490, 397 N.E.2d 804.

In the case sub judice the Commission found that the claimant was not entitled to a total disability award because his disability was limited and he was not obviously unemployable. The Commission also noted that there was no evidence in the record that the claimant made a reasonable effort to secure employment that could be performed by someone in his circumstances. The claimant argues that it was error for the Commission to find that he was required to show evidence of an effort to obtain employment because, based on his disability, age at retirement, and lack of education, experience, or training, he was unable to perform any services except those for which no stable labor market existed. See E.R. Moore Co., 71 Ill. 2d 353, 376 N.E.2d 206.

The evidence before the Commission was the fact that the claimant was 64 years of age at the time of his termination from his coal-mining position. He had an eighth-grade education, and all of his work experience had been in the coal mines, although he had performed a variety of jobs in mining. According to the claimant’s testimony, he worked as trip rider, a driller, a loader, a miner-operator, and finally a repairman. Although there was medical testimony that the claimant’s respiratory system was impaired, neither Dr. Sanjabi or Dr. Khan testified that the claimant was totally disabled. Based upon the foregoing, we cannot say that claimant’s opposite conclusions are clearly evident.

Accordingly, the judgment of the circuit court confirming the decision of the Commission that section 1(f) applies to this claim is affirmed, and its judgment reversing the decision of the Commission regarding the claimant’s proof of disablement within the statutory time period is reversed.

Affirmed in part and reversed in part.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RARICK, JJ., concur.


text:
    TOM MAYBELL, Local Liquor Control Commissioner, City of Sparta, Appellee, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Appellants.
    Fifth District
    No. 5 — 91—0815
    Opinion filed June 14, 1993.
    CHAPMAN, P.J., dissenting.
    Neubauer & Fiss, of Fairview Heights, for appellants.

      Alan R. Farris, of Conn, Clendenin, Norton & Farris, of Sparta, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The Illinois Liquor Control Commission (hereinafter Commission) and William Schauerte, Joyce Schauerte, and Schauerte, Inc. (hereinafter defendants) appeal from the October 21, 1991, order of the circuit court of Randolph County, which reversed the November 21, 1989, order of the Illinois Liquor Control Commission. Defendants maintain on appeal that the order of the trial court must be vacated because plaintiff, Tom Maybell, the local liquor control commissioner for the City of Sparta, Illinois, was without standing to appeal the Commission’s order to the circuit court under provisions of the Illinois Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). In the alternative, defendants argue that the trial court erred in finding that the Commission’s order contained a conclusion of law which was against the manifest weight of the evidence. Plaintiff maintains on appeal, however, that it had standing to appeal the Commission’s order, that the trial court correctly reversed the Commission’s order, and in any event, the issues before this court, which concern a liquor license for which defendants applied for the period ending June 1990, are now moot.

Defendants first filed an application for a Class D liquor license with the City of Sparta, Illinois, on August 8, 1988; requesting a license pursuant to chapter 3, section 3 — 23, of the Sparta Code of Ordinances (Code), with an expiration date of June 30, 1989. Section 3 — 23 of the Code authorizes the retail sale of alcoholic liquor for consumption not on the premises, and defendant corporation is an Amoco gasoline and convenience store in Sparta, Illinois. Defendants’ application was denied by letter dated August 11, 1988. At this time, each of the three Class D liquor licenses authorized by section 3 — 24 of the Code had been issued by the City of Sparta. On October 28, 1988, defendants resubmitted an application for a Class D liquor license for the period ending June 30, 1989, which was denied by letter dated November 8, 1988. At this time, however, one of the three authorized Class D liquor licenses was available. Both the August 11, 1988, and the November 8, 1988, letters recited that the reason for the denial was that defendants planned to operate a convenience store where package liquor was to be sold and that city policy did not permit Class D liquor licenses to be given to convenience stores or fast-food establishments that sold gasoline. It is conceded by plaintiff on appeal that it was improper to base denial of the license on such policy.

The City of Sparta, Illinois, amended section 3 — 24 of the Code on December 15, 1988, to reduce the number of Class D liquor licenses available from three to two. On February 7, 1989, defendants filed a third application seeking a Class D liquor license for the period ending June 30, 1989. The application was backdated to October 28, 1988. Defendants’ application was denied by letter dated February 16, 1989, which recited that the application was deficient in certain respects but that, in any event, there were no Class D liquor licenses available at the present time. Defendants appealed the denial of this application to the Commission but the appeal was later voluntarily dismissed.

Defendants filed a fourth application for a Class D liquor license for the period ending June 30, 1989, backdated to October 28, 1988, in May 1989. This application was denied by letter dated June 5, 1989. The letter noted various deficiencies in the form of the application, i.e., that the application was stale and should be corrected to the date when the application was actually submitted, that the corporation was not properly named as the applicant, that the corporate signatures were not properly notarized, and that the commercial lease attached to the application did not comply with the requirements of subparagraph (m) of section 3 — 20 of the Code. This letter also advised defendants that there were no Class D liquor licenses available at that time.

A fifth application was filed by defendants on August 14, 1989, for the period ending June 30, 1989. The record indicates that this was a “typo” and that plaintiff was treating this application and the May 1989 application as being for the period ending June 30, 1990. Plaintiff denied this fifth application on September 9, 1989, noting some deficiencies in the form of the application which yet existed but again stating that all existing Class D liquor licenses had been issued.

Defendants filed their appeal with the Commission on October 3, 1989. Plaintiff filed a motion to dismiss the appeal on October 26, 1989, stating that at the time the application for liquor license was received by plaintiff the two Class D licenses had been issued and were in force and no Class D licenses were available at that time. The Commission took the motion to dismiss under advisement. Following trial de novo, the Commission found on November 21, 1989, that defendant corporation had applied for a liquor license in 1988 when one was available for issuance in the City of Sparta and that plaintiff entered an order on September 9, 1989, refusing to grant a liquor license to defendants. The Commission reversed plaintiffs denial of defendants’ application, ruling as a matter of law that it had jurisdiction over the parties and the subject matter and had proceeded in a proper and lawful manner, that defendant corporation was qualified to obtain a liquor license, and that the City of Sparta must issue one to defendant corporation. Plaintiff’s petition for rehearing was denied by the Commission on December 28, 1989.

Plaintiff filed a complaint for administrative review with the circuit court of Randolph County, and the parties stipulated to all relevant documents and the testimony previously presented before the Commission and submitted briefs and argument in support of their respective positions on administrative review. By order dated October 2, 1991, the trial court stated that appeals of rulings denying the issuance of a liquor license by the local liquor control commissioner to the Illinois Liquor Control Commission may only be filed within 20 days of the denial thereof, citing section 7 — 9 of the Liquor Control Act of 1934 (Liquor Control Act) (Ill. Rev. Stat. 1989, ch. 43, par. 153). The trial court found that, while the reason stated in the letters denying the first two applications may be invalid, the only application properly before the Commission was the fifth one and, in relating back to the first and second application to reach its decision, the Commission erred. The court noted that there was no reason advanced by defendants for the proposition that plaintiff was without authority to reduce the number of available Class D liquor licenses in December 1988 and by the time the fifth application was before plaintiff nine months had passed since plaintiff had reduced the number of available licenses. The trial court ruled that the Commission’s order of November 21, 1989, contained a conclusion of law (that defendant corporation was qualified to obtain a liquor license) which was against the manifest weight of the evidence and erroneous. Accordingly, the court found plaintiff was correct in denying the application submitted by defendants in August 1989.

We will first address defendants’ challenge to the standing of plaintiff to seek administrative review of the Commission’s orders before the circuit court. The right to seek review under the Administrative Review Law of an administrative decision is limited to parties of record whose rights, privileges, or duties are affected by the decision. (Greer v. Illinois Liquor Control Comm’n (1989), 185 Ill. App. 3d 219, 221, 541 N.E.2d 216, 217.) The court pointed out in Greer that the local liquor control commission by statute exercises quasi-judicial powers and has the authority to conduct hearings on complaints, and thus the local commissioner is not a party aggrieved by reversal of its own administrative decision by the State Commission. (Greer, 185 Ill. App. 3d at 223, 541 N.E.2d at 219.) We have also recently held that a local liquor control commission is not a party aggrieved by reversal of its own administrative decision because it is a quasi-judicial body and has not been given a statutory grant of authority to seek administrative review. (Carbondale Liquor Control Comm’n v. Illinois Liquor Control Comm’n (1992), 227 Ill. App. 3d 71, 75-76, 590 N.E.2d 1044, 1047.) Defendants assert that we must not address the mootness argument because plaintiff, as head of the local liquor control commission, did not have standing to file his complaint for administrative review with the trial court, citing the Greer and Carbondale decisions.

We find that the standing issue in the instant case is statutorily controlled by revised section 7 — 11 of the Liquor Control Act, effective January 1, 1991, which was rewritten by Public Act 86 — 1279 to specifically provide that judicial review may be requested by any party in interest, including but not limited to the local liquor control commissioner. (Ill. Rev. Stat. 1991, ch. 43, par. 154a.) The Greer and Carbondale cases examined the Liquor Control Act and section 3 — 101 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101) in determining that, because the local liquor control commission had by statute only been given a quasi-judicial status, it was not a party aggrieved by reversal of its own ad- • ministrative decisions and therefore had no authority to seek administrative review. These decisions, however, ruled on appeals concerning petitions for judicial review filed by local liquor control commissioners prior to the effective date of Public Act 86 — 1279. Because the trial court dismissed the complaint for judicial review filed by the local liquor control commissioner in the Carbondale case for lack of standing prior to the effective date of Public Act 86 — 1279, we did not consider the revised language to this section of the Act in reaching our decision affirming the judgment of the trial court.

The floor debate on House Bill 3509, the bill which introduced the amendment of the Liquor Control Act passed by the General Assembly in Public Act 86 — 1279, indicates the purpose of the amendment to section 7 — 11 of that act:

“Rep. Wojcik: The Amendment would return judicial standing to mayors acting as the Liquor Control Commissioners in cases in which he [sic] wished to appeal an adverse decision from the Illinois Liquor Control Commission. Previous to the court case of Greer versus Illinois Liquor Control Commission the Local commissioner had the opportunity to appeal in this matter.” (86th Ill. Gen. Assem., House Proceedings, May 18, 1990, at 225 (statements of Representative Wojcik).)

These words of Representative Wojcik express the original intent of the legislature that the local commissioners have standing to appeal from decisions of the Liquor Control Commission, an intent which was misconstrued in Greer and Carbondale. The complaint for judicial review was filed in the instant case by plaintiff after the January 1, 1991, effective date of the revision to section 7 — 11 of the Liquor Control Act. We find that section 7 — 11 of the Liquor Control Act specifically grants plaintiff, as local liquor control commissioner, the standing to file a complaint for judicial review.

We next will address plaintiff’s contention that the issues before this court are moot. An issue is “moot” when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy. (Black’s Law Dictionary 909 (5th ed. 1979).) The existence of a real controversy is essential to appellate jurisdiction, and thus where a reviewing court has notice of facts which show only moot questions are involved, the court will dismiss the appeal. Stallings v. Fajardo (1987), 157 Ill. App. 3d 913, 513 N.E.2d 404.

Plaintiff contends that the issues involved in the instant case are moot because the license for which defendants applied would have expired on June 30, 1990, nearly three years ago. Moreover, plaintiff notes, no liquor license application is now pending before the City of Sparta on defendants’ behalf. In addition, as the trial court noted above, defendants never contested the action on the part of the Sparta city council in December 1988 in amending its ordinances to reduce the number of available Class D licenses from three to two. Plaintiff also argues that the mootness doctrine has been applied by the courts in liquor-license cases for nearly 40 years and cites People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 116 N.E.2d 880, for the proposition that where the liquor-license period in question has expired, the matter of whether mandamus should issue against the Illinois Liquor Control Commission to force issuance of such license has become moot and the appeal should be dismissed.

In Cairo Turf Club, the applicant had received a local license for the year ending December 31, 1952, from the State Liquor Control Commission but was denied a license for the year ending December 31, 1953. The applicant sought a writ of mandamus from the trial court to compel issuance of the license by the State Commission. The decision of the trial court denying the writ of mandamus was reversed on review by the appellate court, and the State Commission appealed to the supreme court. One of the issues addressed by the supreme court on review was whether the matter was moot by reason of the fact that the license period in question had expired. The court rejected the argument made by the appellant Commission that the question on appeal was not moot because it was one of “public moment,” finding that the question of the issuance of a State liquor license expiring June 30, 1953, was not of such public urgency to require an authoritative determination, nor would an identical situation occur with such frequency as to compel the need for a positive rule for the future guidance of public officials. Accordingly, the court held that the matter was moot and dismissed the applicant’s appeal. Cairo Turf Club, 2 Ill. 2d at 164, 116 N.E.2d at 882.

In response, defendants assert that plaintiff is a public official and his authority to issue or deny license applications on the basis of public policy (as defendants allege was done in the instant case) should be determined by this court, as future applicants will be affected by our opinion and such matters could recur in the future. Defendants also urge that if this court determines that the facts of this case render the matter moot, the State Commission would in effect be powerless to overturn a ruling by the local commissioner who seeks administrative review, knowing that the passage of time would allow the period of the applicant’s license to expire. Finally, defendants argue that the scope and authority of a local liquor commissioner is a matter of public interest and thus the matter should not be deemed moot.

An exception to the mootness doctrine exists for certain cases involving the public interest, and in such cases the court should also consider whether it is desirable to make an authoritative determination of the question for the guidance of public officials and whether the question is likely to recur. (Hightower v. Duffy (1989), 192 Ill. App. 3d 65, 83, 548 N.E.2d 495, 507.) As defendants point out, a finding of mootness by this court will render the State Commission powerless to reverse a local commissioner, who, because of the revision to section 7 — 11 of the Liquor Control Act, now has the unassailable right to appeal to the circuit court from adverse determinations by the Commission. We find the situation in the Cairo Turf Club distinguishable from the instant case because at the time the aforementioned case was determined there was no local commissioner, only the State Commission, which was responsible for the issuance of local licenses. Accordingly, the supreme court was not dealing with the anomaly created by revised section 7 — 11 of the Liquor Control Act, which insures the right of a local commissioner to judicial review of an adverse decision by the State Commission. Due to the duration of the appellate process, in situations where, as here, an applicant appeals from the adverse ruling of the trial court, such appeal will necessarily postdate the expiration date of the license for which the applicant was denied. Moreover, even if the applicant is successful in an appeal to this court, the local commissioner will be able to argue that the mandate of the appellate court cannot be enforced because the issue is moot. (See Carbon-dale Liquor Control Comm’n v. State Liquor Control Comm’n (1993), 245 Ill. App. 3d 973.) The local commissioner will thus be in the enviable position of being able to raise the mootness argument on every appeal, whether as the appellant or the appellee, and if such argument is upheld, the administrative review process will be thwarted. Accordingly, this case involves an event of short duration which is capable of repetition, yet evading review, thus necessitating a definitive resolution. In re A Minor (1989), 127 Ill. 2d 247, 258, 537 N.E.2d 292, 296.

We find that the supreme court’s decision in the Cairo Turf Club is distinguishable on its facts from the instant case because of the differences in administrative procedural law. We also find that the present administrative procedure for liquor-control cases mandates, in the public interest, a determination by courts on review of the issues presented by such cases. We therefore hold that an exception to the mootness doctrine applies, and we reject plaintiff’s argument that the issues before this court are moot and that the appeal must be dismissed.

On the merits, defendants argue that the October 21, 1991, order of the circuit court must be reversed because it was based on an erroneous ruling. As noted above, the Commission ruled as a matter of law that it had jurisdiction over the parties and subject matter and had proceeded in a proper and lawful manner, that the defendant corporation was qualified to obtain a liquor license, and that the City of Sparta must issue such license to the defendant corporation. The trial court ruled that the conclusion of law that the defendant corporation was qualified to obtain a liquor license was erroneous and against the manifest weight of the evidence.

The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110) and will not be disturbed on judicial review unless they are contrary to the manifest weight of the evidence. (Scott v. Illinois State Police Merit Board (1991), 222 Ill. App. 3d 496, 584 N.E.2d 199.) A reviewing court is not bound to give the same deference to- an agency’s conclusions of law as it must give to findings of fact, however, and will reverse a decision based on an erroneous interpretation or application of the law. Nichols v. Department of Employment Security (1991), 218 Ill. App. 3d 803, 578 N.E.2d 1121.

The trial court noted that under section 7 — 9 of the Liquor Control Act, appeals of rulings denying the issuance of a liquor license by the local liquor control commissioner to the State Commission may only be filed within 20 days of the denial thereof. The trial court found therefore that the only application properly before the Commission was the fifth one and that the Commission erred in relating the date of the fifth application back to the first or second application filed by the defendant or his corporation. Any factual finding to the contrary is against the manifest weight of the evidence and contrary to the unambiguous language of section 7 — 9 of the Liquor Control Act. We thus find no legal support for the Commission’s finding that it had jurisdiction over the parties and subject matter under section 7 — 9 of the Liquor Control Act.

Moreover, we agree with the trial court’s conclusion that the Commission’s finding that the defendant corporation was qualified to obtain a liquor license was erroneous as a matter of law. As the trial court noted, there was no challenge by the individual defendants or the defendant corporation to plaintiff’s reduction of the number of Class D liquor licenses in December 1988, and nine months had passed between that date and the filing of the fifth application. These factual findings are supportable by the evidence. Thus, the factual bases for the Commission’s finding that the corporation was qualified to obtain a liquor license were against the manifest weight of the evidence. In the instant case the Commission was clearly without jurisdiction to review denial of the defendant’s fifth application because there was no license available at that time and no authority appears of record for the proposition that the date of the fifth application could be related back to October 1988.

We hold that the trial court did not err in determining that the Commission’s order contained a conclusion of law (that the defendant corporation was qualified to obtain a liquor license) which was against the manifest weight of the evidence and erroneous. For the above-stated reasons, the October 21, 1991, order of the circuit court of Randolph County is affirmed.

Affirmed.

RARICK, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

I dissent because, in my opinion, People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 116 N.E.2d 880, requires this appeal to be dismissed as moot.