author: JUSTICE CHAPMAN

text:
    THE VILLAGE OF SAUGET, d/b/a American Bottoms Regional Wastewater Treatment Facility, Plaintiff-Appellee, v. ARNOLD COHN, Defendant-Appellant.
    Fifth District
    No. 5—91—0589
    Opinion filed January 29,1993.
    Rehearing denied March 2,1993.

      Thompson & Mitchell, of Belleville (Donald E. Weihl, of counsel), for appellant.
    Daniel J. Hayes, of Baker & Hayes, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant Arnold Cohn appeals from the trial court’s judgment in favor of the Village of Sauget, for $247,279.33 in overdue sewer charges, $15,600 in attorney fees, and costs. We reverse.

The Village of Sauget (Sauget), a home-rule municipal corporation, owns and operates a regional sewage-treatment facility, American Bottoms Regional Wastewater Treatment Facility (American Bottoms). In September 1987, Sauget filed a complaint against defendant seeking users’ charges due on property owned by defendant. Sauget’s second amended complaint, filed November 29, 1990, contained 466 counts.

Counts I through 233 allege that as the record title holder of the 233 parcels of property which received sewer services from American Bottoms, defendant is personally liable for the user fees assessed against these properties and for Sauget’s attorney fees in this case. Sauget’s claim is based on its ordinances, enacted pursuant to its home-rule power, and on its regional agreement with the communities which contain defendant’s property. The relevant Village of Sauget ordinances state:

Sauget, Illinois, Ordinance 536:
“Section 2. Purpose. The purpose hereof is to impose a charge for the use of, and the service to be provided by the AMERICAN BOTTOMS REGIONAL WASTEWATER TREATMENT FACILITY, which shall jointly and severally be paid by, and collected from, the Owner of, the Occupant of, and the Water User at, each Parcel of Real Estate ***.
* * *
Section 7. Liability for Charge, (i) The owner of any Parcel of Real Estate in the Region, (ii) the Occupant, if any, of the Parcel of Real Estate and (iii) the Water User at that Parcel of Real Estate are, and shall be jointly and severally liable for all Treatment User Charges imposed hereunder.
Owner shall be defined to be the person who owns the record title to a given Parcel of Real Estate.”
Sauget, Illinois, Ordinance 582:
“Section 1. Said Ordinance No. 536 be, and it is hereby, further amended by adding Section 20 hereto, said added Section to read as follows, to-wit:
Section 20. In the event the VILLAGE files suit to collect any unpaid charge, interest and late penalty fees, due under the provisions of this Ordinance as amended from time to time, the VILLAGE shall also be entitled to collect from the responsible party or parties and to have included in any such judgment, a reasonable fee for its attorney to be fixed by the court, incurred in preparing and filing any such suit, in prosecuting any such suit and in collecting any judgment rendered in the Village’s favor in any such suit.
Section 3. This Ordinance shall be deemed to have become effective on the effective date of Ordinance No. 536; that is to say, to have been in full force and effect at all times from and after June 27,1985.”

Counts 234 through 466 allege alternatively that, as the owner of these 233 parcels of property, defendant was the user of the real estate and as such he is personally liable for the user fees assessed against these parcels and for Sauget’s attorney fees. Sauget premises the alternative counts on division 141 of article 11 of the Illinois Municipal Code (Code), as amended in 1985. (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 141—1 et seq.) Section 11 — 141—7 allows the “occupant or user of that real estate” to be sued for sewerage service fees and a reasonable attorney fee.

At trial, the parties stipulated that defendant is the record title holder of each of these parcels. The defendant did not dispute the value of the sewer service fees assessed against the property. Twenty counts, involving 10 parcels of property, were voluntarily dismissed by the plaintiff.

Sauget offered testimony describing the general history and daily operations at American Bottoms. General manager George Schillinger explained that while other waste-water treatment facilities have a delinquency or nonpayment rate of about 2% to 3%, the American Bottoms facility has a delinquency rate of 30%. Sauget’s attorney offered testimony about his attorney fees.

The defendant testified that although he was the record title holder of all the properties, 11 of the cited properties were rental properties, 200 of the properties were being sold contract for deed, three of the titles were held for security for a down payment, and one was held by him as the nominee. In all cases, defendant testified that it was the tenant’s or purchaser’s responsibility to pay the utility bills, which included the sewer bills. The defendant also testified that the properties are located in either East St. Louis, Cahokia, Centreville or Alorton.

The trial court entered judgment in favor of the plaintiff. In a subsequent order, the trial court explained that the judgment for the plaintiff was entered on both the State-law counts and the ordinance counts. The court also entered judgment for the plaintiff for attorney fees.

On appeal, defendant argues that Sauget lacks the home-rule power to enact a valid ordinance imposing personal liability on him because his property is located outside the municipality’s corporate boundaries. He also argues that he cannot be personally liable for sewer charges because he was not the recipient of the services. Finally, he contends that the trial court improperly awarded attorney fees to the plaintiff.

Article VII, section 6(a), of the 1970 Illinois Constitution grants power to a home-rule unit. It provides in part:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).

These powers are to be liberally construed. (Ill. Const. 1970, art. VII, §6(m).) Even a liberal construction of Sauget’s home-rule powers, however, does not justify the application of Sauget’s ordinances to the defendant in this case.

Sauget cites Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6, Forsberg v. City of Chicago (1986), 151 Ill. App. 3d 354, 502 N.E.2d 283, and Chicago Health Clubs, Inc. v. Picur (1987), 155 Ill. App. 3d 482, 508 N.E.2d 742, in support of its ordinance. We note that the supreme court has reversed Picur. (Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 528 N.E.2d 978.) In Mulligan, the supreme court validated a Cook County ordinance on the retail sale of alcoholic beverages in the county. In doing so, it held that the tax was not an extraterritorial exercise of the municipality’s taxing power. (Mulligan, 61 Ill. 2d at 558, 338 N.E.2d at 16.) Similarly, in Forsberg, the court upheld a boat-mooring tax against a challenge that it was assessed against visitors who were not necessarily residents of Chicago. (Forsberg, 151 Ill. App. 3d at 361, 502 N.E.2d at 290.) The court held that a tax on individuals who reside outside Chicago, but who may enter Chicago, is not extraterritorial. Forsberg, 151 Ill. App. 3d at 361, 502 N.E.2d at 290.

These cases stand for the proposition that a home-rule community may impose a tax on services rendered within it or on sales to customers within its corporate boundaries who are parties to the transaction which results in liability. These cases do not stand for the proposition that a home-rule community, which provides sewage-treatment services to other communities pursuant to an agreement with these communities, may apply its ordinances to any record title owner of property located in a serviced community. Sauget may not apply its ordinances to parties simply because its ordinances would hold those parties liable for sewer-service fees.

Although proposed at the Sixth Illinois Constitutional Convention by the Committee on Local Government, language specifically limiting a home-rule unit’s exercise of power to its corporate boundaries was not adopted. In City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19, the supreme court held that this omission did not automatically confer extraterritorial sovereign or governmental powers on home-rule units. Instead, the court held that “whatever extraterritorial governmental powers home rule units may exercise were to be granted by the legislature.” Van Natta, 61 Ill. 2d at 485, 338 N.E.2d at 21.

Sauget’s status as a home-rule municipality does not give it the power to enforce its ordinances extraterritorially. If Sauget is to have the power to enforce its ordinances against the defendant, that power must have been specifically granted by the legislature or it must result from a power granted by the legislature. The legislature has not specifically granted such a power. It has, however, granted the corporate authorities of each municipality the right to contract with one another for sewage collection and treatment. (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 147—1.) These contracts may be entered into “upon such terms as may be agreed upon between them.” (Ill. Rev. Stat. 1991, ch. 24, par. 11 — 147—1.) In addition, section 11 — 141—7, which addresses rates and charges, states that when “users are residents of another municipality with whom there is a contract for use and service of the sewerage system, then such charges or rates shall be made in accordance with the terms of the contract.” Ill. Rev. Stat. 1991, ch. 24, par. 11-141-7.

Sauget has entered into a regional agreement to provide sewage-treatment services to nearby counties and villages. By way of this agreement, the Village of Sauget will have the power, if any, to enforce its ordinances against the defendant. The “1977 Regional Sewage Treatment Agreement,” as amended in 1982, authorizes Sauget to own, operate and fund a regional sewage-treatment plant. The 1982 amendments are at issue here. Paragraph E states:

“E. Commencing no later than June 30, 1983, the Village may enforce against users in *** such pretreatment, sewer use and user rate ordinances as may be reasonable and necessary or as may be required under applicable law and regulations ***.” (Emphasis added.)

Amendment E gives Sauget the ability to enforce against users only. The agreement does not define user. However, we must conclude that, in the context in which it is employed in this amendment, absentee owners of real estate are not users. And, in fact Sauget does not contend that they are. Sauget’s argument is that it may enforce its own ordinances against defendant because it owns the regional treatment plant. We conclude, however, that as to customers not located within its corporate boundaries, Sauget may use only the enforcement powers granted to it by the agreement. The agreement gives Sauget the power to enforce its ordinances only against users.

In holding that “user,” as employed in this agreement, does not include the record title holder of the real estate, unless he is the user of the services, we note that the trial court concluded that “user,” without any qualifying phrases, “is logically presumed to be that of a user of the services.” This is consistent with the Black’s Law Dictionary definition of “user.” Black’s defines a “user” as “[t]he actual exercise or enjoyment of any right, property, drugs, franchise, etc.” (Black’s Law Dictionary 1383 (5th ed. 1979).) Because the defendant is not the person who receives the services, he is not the person who actually exercises or enjoys the benefits provided by American Bottoms. He is, at most, an indirect beneficiary of the services, i.e., his properties are more marketable because they have indoor plumbing.

Sauget’s agreement with the other municipalities gives it the power to enforce only against users. We hold that a user is a user of the services. The defendant is not a user of the services. He is not personally liable under the terms of the regional agreement for the services provided by American Bottoms to the residents of the property even though he is record title owner of that property.

Sauget’s second theory of liability is premised on the language of section 11 — 141—7 of the Code. That section gives the municipality “the power, from time to time, to sue the occupant or user of that real estate in a civil action to recover money due for sewerage services.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 24, par. 11— 141 — 7.) Sauget argues that “user of that real estate” should be defined to include the owner of the property whether or not the owner is the person who actually receives the services. We disagree.

The statutory language Sauget relies upon has not been construed in Illinois. In construing a statute, courts try to give effect to every word, clause and sentence. The language of the statute should get its plain and ordinary meaning and the construction should not render a word or phrase superfluous or meaningless. (Old Ben Coal Co. v. Department of Mines & Minerals (1991), 207 Ill. App. 3d 1088, 1091, 566 N.E.2d 813, 815.) In addition, the court must give prime consideration to the intent of the legislature. Old Ben Coal Co., 207 Ill. App. 3d at 1091, 566 N.E.2d at 815.

The statute at issue provides for liens against the real estate upon or for which services were provided if service charges become delinquent. The municipality may foreclose this lien in an effort to collect delinquent charges. However, if the municipality obtains a personal judgment against the “occupant or user of that real estate,” that judgment releases the lien on the real estate for the amount of the judgment. Ill. Rev. Stat. 1991, ch. 24, par. 11—141—7.

The plaintiff argues that it is inconsistent to allow the real estate owner to be liable for delinquent fees by virtue of the lien but to prevent him from being held personally liable for the delinquent fees. We disagree. The statute makes the owner of the property liable for sewer services provided to a delinquent tenant only to the extent of the value of the property to which the services were provided. It does not follow that the municipality should be able to elect to sue the owner, who is not the user of the services, and thereby obtain a judgment lien against the entirety of that owner’s personalty and realty in satisfaction of a debt incurred by another. We cannot accept that when the legislature drafted section 11 — 141—7 it intended such a result.

This is particularly true in light of the terms of the Sanitary District Revenue Bond Act (Ill. Rev. Stat. 1991, ch. 42, par. 319.1 et seq.). The language of section 7 of that act (Ill. Rev. Stat. 1987, ch. 42, par. 319.7) was virtually identical to the language of section 11— 141 — 7, upon which Sauget relies, until it was amended, effective July 29, 1988 (Pub. Act 85 — 1136). This provision of section 7 now reads:

“The sanitary district also has the power, from time to time, to sue the owner, occupant or user of that real estate, or a person receiving any direct or indirect benefit from such services, in a civil action to recover money due for sewerage services, plus a reasonable attorney’s fee, to be fixed by the court; provided, however, that the sanitary district shall give notice of its intention to bring such action to the owner of record by regular mail not less than 7 days prior to filing such civil action.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 42, par. 319.7.

When a statute is ambiguous on its face, as is section 11 — 141—7, a court should look to similar statutes as an aid in construction. (Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 27, 521 N.E.2d 923, 925.) An amendatory change in the language of a statute creates a rebuttable presumption that it was intended to change the law as it theretofore existed. Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 340, 466 N.E.2d 215, 216.

Applying these rules of construction, and comparing these two statutes, we conclude that section 11 — 141—7 cannot be interpreted as Sauget asserts. In the original section 7, the legislature did not give the sanitary district the power to sue the owner of the real estate. Likewise, in section 11 — 141—7, it did not grant such power. The fact that the legislature amended section 7 to specifically include the owner indicates that the legislature did not believe that an owner was included in the definition of “occupant or user of that real estate.” Further, the fact that the legislature did not amend section 11 — 141— 7, which contained virtually identical language, to also include the term “owner” indicates that the legislature did not intend to grant such power under that section.

Based on a comparison of these two statutes, we conclude that “user of that real estate” does not also mean owner of that real estate. The legislature does not use these terms interchangeably, and we likewise decline to do so.

Finally, the defendant appeals from the judgment, in favor of plaintiff, for $15,600 in attorney fees. This judgment was entered on both the statutory and ordinance counts. Because we hold that the terms of the regional agreement govern Sauget’s enforcement powers with respect to the applicability of Sauget’s own ordinances and because the agreement does not provide that Sauget may collect attorney fees, we reverse the judgment entered on the ordinance counts. Alternatively, attorney fees are inappropriate in this case because we hold the following analysis equally applicable to Sauget’s ordinances.

Plaintiff is not entitled to attorney fees based on the statutory counts. Although the provision for attorney fees in section 11 — 141—7 has not been construed, a similar provision in section 7 was construed to apply only to the collection of money obviously due to a sanitary district.

In Greater Peoria Sanitary & Sewage Disposal District v. Kellstedt (1985), 130 Ill. App. 3d 1002, 1005, 474 N.E.2d 1267, 1270, the court called it unreasonable to allow attorney fees when there is a genuine issue as to the amount due the district. To hold otherwise, the Kellstedt court said, “would be to penalize a consumer who disputes the user charges assessed against him and would risk a violation of the consumer’s due process rights.” (Kellstedt, 130 Ill. App. 3d at 1005-06, 474 N.E.2d at 1270.) To determine whether a dispute is genuine, the trial court should consider the quality of the evidence submitted by the disputing party and the general merits of the defense. Greater Peoria Sanitary & Sewage Disposal District v. Hermann (1987), 153 Ill. App. 3d 398, 403, 505 N.E.2d 769, 773.

While it is true that there is no dispute about the actual amount of sewer fees owed, it is impossible to deny that there is a genuine dispute about who must pay these delinquent sewage-treatment fees. To require the defendant to pay attorney fees would be akin to punishing him for contesting, honestly and successfully, the fact that he was not the person liable. The legislature intended the attorney fees provision in section 11 — 141—7 to be part of the municipality’s remedy in the collection of overdue sewer bills. We do not believe that it also intended the provision to discourage or penalize individuals, such as defendant, with meritorious defenses to a municipality’s charges.

For the foregoing reasons, we reverse the trial court’s judgment in favor of the Village of Sauget. We hold that neither the statute nor the ordinances empower it to hold defendant, the record title holder of the 233 parcels at issue, personally liable for the value of sewer services provided to those parcels. We also reverse the award of attorney fees to Sauget. Each side will bear its own costs.

Reversed.

WELCH and W.A. LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CHAPMAN

license: Public Domain

text:
    MARIAN SUE TRAVIS, Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Appellees.
    Fifth District
    No. 5—91—0325
    Opinion filed March 16,1993.

      Marian Sue Travis, of Ullin, petitioner pro se.

    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondents.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Marian Sue Travis began working as a secretary at the Pulaski County probation office (Probation Office) on April 24, 1984. On December 9, 1985, Travis filed a discrimination charge with the Illinois Department of Human Rights (Department). She named as respondents the County of Pulaski, the Pulaski County Board of Commissioners, and the Pulaski County Probation Office. Her employment was terminated on March 12, 1986, for the stated reasons that she was insubordinate, lacked loyalty, and had an attitude unbecoming to a secretary. On May 5, 1989, the Department filed a complaint with the Illinois Human Rights Commission (Commission) on Travis’ behalf. The sole respondent named in the complaint was the County of Pulaski. The complaint alleged that the county discharged Travis to retaliate against her because she had filed an earlier discrimination charge against the county. The County of Pulaski filed a motion to dismiss plaintiff’s complaint.

At an evidentiary hearing on the motion to dismiss, evidence was presented as to the parties’ employment relationship. Travis argued that she was a county employee, that the county paid her salary, and that the County of Pulaski was, therefore, properly named as respondent in her complaint. The County of Pulaski insisted that it was not her employer under the Illinois Human Rights Act (Ill. Rev. Stat. 1991, ch. 68, par. 1 — 101 et seq.), but that her employer was the Pulaski County probation department, which was under the auspices of the chief judge of the circuit court of Pulaski County, a State office. The administrative law judge issued a recommended order and decision for dismissal of the complaint because the named respondent, the County of Pulaski, was not the complainant’s employer within the meaning of the Human Rights Act and was not responsible for her discharge. The Commission adopted the administrative law judge’s recommended order and decision that the County of Pulaski did not violate the Illinois Human Rights Act because it was not the employer, and the Commission dismissed the complaint.

Travis, appearing pro se, filed a “Reinstatement of Complaint in Retaliation.” On April 12, 1991, the Commission issued an order acknowledging that it would consider the document as a general exception to the administrative law judge’s decision due to the plaintiff’s pro se status. The Commission deemed the request for reinstatement to be a petition for rehearing and denied the petition. Travis appeals.

Travis argues that the Commission erred in dismissing her complaint because the original charge filed with the Illinois Department of Human Rights also named as her employers the Pulaski County Board of Commissioners and the Pulaski County probation department. Travis contends that because the probation department is a State office, it is clear that she named the State of Illinois as a party respondent. This argument is without merit.

While plaintiff named several employers in her original charge of retaliation filed with the Department of Human Rights, it was the complaint filed by the Department with the Human Rights Commission, not the initial charge, which was adjudicated by the Commission. The Department investigates charges of discrimination and determines whether there is substantial evidence that a civil rights violation has occurred which would justify the issuance of a complaint. (Ill. Rev. Stat. 1991, ch. 68, par. 7A — 102.) When there is a failure to settle or adjust a charge through conciliation, the Department prepares a complaint and files it with the Commission. (Ill. Rev. Stat. 1991, ch. 68, par. 7A — 102.) Once the Department files a complaint, it is the Commission’s responsibility to serve the complaint, commence a hearing regarding the complaint, and adjudicate the merits of the complaint. (Ill. Rev. Stat. 1991, ch. 68, par. 8A — 102.) Plaintiff was reminded of the procedure at the hearing on the motion to dismiss wherein the administrative law judge stated:

“[Mjatters that may have been addressed at the Illinois Department of Human Rights is [s-ic] not part of the commission’s record. They are two separate and distinct agencies.”

Plaintiff made no effort to amend the complaint before the Commission to add or substitute respondents. The pleadings filed with the Commission name only the County of Pulaski as a respondent in the case. She maintained throughout the proceedings before the Commission that the County of Pulaski was her employer and was the proper respondent.

We find that although plaintiff contends that the State of Illinois was always a party to this suit, the record is devoid of evidence to support this claim. (See DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 484 N.E.2d 1220.) Except for plaintiff’s original charge filed with the Department naming the Pulaski County Board of Commissioners and the Pulaski County probation department, reference to these respondents in the record is nonexistent. Furthermore, the name, Pulaski County probation department, is not so similar to the name, State of Illinois, to support a finding that plaintiff indeed intended to name the State of Illinois as a party respondent. We find that the State of Illinois was not named as a party respondent.

Based on the foregoing, we affirm the decision of the Illinois Human Rights Commission.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE LYTTON

text:
    CHARLES W. HELMIG III et al., Plaintiffs-Appellants, v. JOHN F. KENNEDY COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 129 et al., Defendants-Appellees. — FRED L. CARUS et al., Plaintiffs-Appellants, v. JOHN F. KENNEDY COMMUNITY CONSOLIDATED SCHOOL DISTRICT No. 129 et al., Defendants-Appellees.
    Third District
    Nos. 3—92—0808, 3—92—0809, 3—92—0881, 3—92—0882 cons.
    Opinion filed March 10, 1993.

      Charles W. Helmig III, of Peru, for appellants Charles W. Helmig III, Carolyn M. Helmig, Charles W. Helmig IV, Carrie M. Helmig, James M. Helmig, Mark J. Tondi, Pam Tondi, Ronnie J. Tondi, and Carol F. Tondi.
    Douglas J. Schweickert & Associates, of Peru (Scott Ganassin, of counsel), for other appellants.
    James Brusatte, Assistant State’s Attorney, of Ottawa, and William R. Banich, of William R. Banich, P.C., of La Salle, for appellees William F. Novotney and Regional Board of School Trustees of La Salle County.
    Everett E. Nicholas, Jr., of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Heidi A. Katz, of counsel), for appellee John F. Kennedy Community Consolidated School District No. 129.
    Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield (Allen J. Oehlert, of counsel), for appellees Carolyn Schultz and Gail Sunken.
   JUSTICE LYTTON

delivered the opinion of the court:

The Board of Education of John E Kennedy Community Consolidated School District No. 129 (JFK) and the Board of Education of Oglesby Elementary School District No. 125 (Oglesby) jointly petitioned the La Salle County Regional Board of School Trustees (regional board) to dissolve JFK and annex its territory to Oglesby. The regional board approved the petition. Two groups of objectors then filed separate cases as plaintiffs in the circuit court, seeking administrative review and reversal of the regional board’s decision. The cases were consolidated, and the court affirmed the decision of the regional board. The plaintiffs then filed this appeal. We affirm.

On May 21, 1992, the JFK and Oglesby boards of education each voted unanimously to petition the regional board of school trustees to dissolve JFK and annex its territory to Oglesby. On June 17, 1992, the regional board held a hearing on the petition.

JFK superintendent and principal John Josephson testified in support of the petition. Josephson stated that the dissolution of JFK and annexation to Oglesby was in the best interest of the districts and the educational welfare of the students. JFK had a total of 37 enrolled students and four full-time teachers at the end of the 1991-92 school year. Each teacher was responsible for all instructional areas for her class, including art, music and physical education. One teacher was responsible for six students in preschool and kindergarten; one teacher taught 11 students in the first and second grades; one teacher taught 12 students in the fourth and fifth grades; and one teacher taught nine students in the sixth and seventh grades. JFK had no students in the third or eighth grades.

Josephson testified that Oglesby’s educational program was far superior to what JFK offered. JFK levied taxes at the maximum allowable rates and had issued successively larger tax anticipation warrants (TAWs). JFK’s last TAW was in the maximum amount allowed by statute. Because of decreasing assessments and declining enrollment, JFK’s financial condition was worsening and the district had been placed on the Illinois State Board of Education’s financial watch list. In March of 1992, voters defeated a tax increase referendum by a margin of three to one. Thus, JFK was facing additional reductions in staff and support services.

Richard Verucchi, a member of the JFK board of education, testified about the district’s worsening financial condition. He stated that the JFK board investigated possible annexation to neighboring districts and found that Oglesby was the best alternative. This conclusion was based in part upon geography, sports, social and church activities between residents in the two districts, and the sense that Oglesby welcomed JFK’s students and had already developed a plan to integrate them into the Oglesby school system.

JFK board member Linda Mudge testified about the results of a survey conducted among JFK district residents. Out of 179 responses, 29 persons favored repeating the defeated referendum, 31 favored a referendum for a smaller increase, 100 favored dissolving the district and annexing to a neighboring district, 17 voted to delay consolidation for one year, and 2 voted to annex or consolidate without indicating a time preference. Of the 119 persons favoring annexation, 78 preferred Oglesby, 28 preferred Peru, 3 preferred Tónica, 2 had no preference, and 8 listed multiple choices including Oglesby.

Mudge testified that she believed Oglesby to be the best choice. She based this upon the expressed preferences of JFK residents, the attitude of Oglesby representatives, and Oglesby’s small-school atmosphere which was similar to JFK. Students from both JFK and Oglesby attend La Salle Peru High School, and many JFK residents participate in sports activities and attend church in Oglesby.

JFK board president Lance Korter testified about the tentative plans for the JFK school property. JFK had entered into an intergovernmental agreement with the Village of Cedar Point. Under this agreement, Cedar Point would use the school building for municipal offices and garage space. Thus, taxpayers would continue to derive a public benefit from the property.

Dr. James Boyle, superintendent of Oglesby, testified that if JFK were annexed into Oglesby, the latter’s population would increase from 4,500 to 5,100, and the student enrollment would increase from 323 to 360. Like JFK, Oglesby is on the State Board of Education’s financial watch list. However, Oglesby’s finances would be markedly enhanced if JFK were annexed. State incentive payments to Oglesby accompanying the consolidation would total over one million additional dollars.

JFK and Oglesby had entered into a pre-annexation agreement. Under this agreement, one JFK teacher was assured employment in Oglesby, and other JFK teachers would be given priority consideration for future recalls and substitute teaching work. However, after the districts approved the agreement, Oglesby reexamined its needs and unilaterally offered all four JFK teachers employment if annexation occurred.

Boyle testified about Oglesby’s transition services and programs. These included two informational meetings for JFK residents, special computer instruction for incoming seventh and eighth graders from JFK, and two places on the cheerleading squad which were being held open for JFK students. According to Boyle, granting the petition was clearly in the best interest of the two districts.

Robert Meehan, principal of Oglesby’s two elementary schools, provided in-depth analysis of the district’s curricular format. Features of Oglesby’s programs not available in JFK included certain preschool and kindergarten options, special teachers for art, music and physical education, as well as social studies, math, science and computer education at the junior high level, meal programs, morning supervision for students dropped off early, computer education, in-district special education programs, a junior high gifted-student program, and a wider range of extracurricular activities. Oglesby also offers more readily available psychological, social work and speech services. According to Meehan, Oglesby could easily absorb JFK’s students, and granting the petition would have no adverse effect upon the curricular and extracurricular opportunities that Oglesby offers.

Oglesby board president Christine Paul testified that the annexation of JFK to Oglesby was in the best interest of the students and the two districts. Paul stated that it was Oglesby’s intention to hire all four JFK teachers if annexation occurred.

Several other persons testified in support of the petition. Susan Nelson, a second-grade teacher and president of the Oglesby Elementary Teachers Union, said that because of the educational opportunities available at Oglesby, granting the petition was in the best interest of the students. JFK teachers Carolyn Schultz and Gail Sunken supported the petition, provided their statutory rights were honored and their tenure and seniority were transferred to Oglesby.

Two groups of residents filed objections and spoke in opposition to the JFK-Oglesby petition. The first group of plaintiffs was the Carus family. Frederick Carus, a resident in the Peru Township portion of JFK, stated that he does not oppose dissolution. However, in his opinion, the JFK board did not give enough consideration to splitting up its territory between the Tónica, Oglesby and Peru districts. Cynthia Carus testified that her family orients toward Peru, and prefers to be a part of Peru’s educational system.

The second group of plaintiffs consisted of members of the Helmig family who reside in the Peru township portion of JFK. Attorney Charles Helmig stated that members of his extended family would be better served by being in Peru rather than Oglesby. Helmig believed that the best interest of the JFK district would be served if the petition were denied and the matter forced back to JFK for the adoption of a rational plan.

At the conclusion of the hearing, the regional board took the matter under advisement. In an order dated July 6, 1992, the board granted the petition. On July 16, 1992, each group of plaintiffs filed petitions for rehearing, renewing its prior contentions. The plaintiffs also asserted that the regional board was precluded from hearing the JFK-Oglesby petition because a detachment petition involving a portion of JFK’s territory had previously been filed by Thomas and Nancy Bruch, and the Bruch petition was still pending at the time the JFK-Oglesby petition was filed. On July 22, 1992, a hearing was held on the Carus and Helmig petitions for rehearing. On July 23, 1992, the regional board denied the petitions for rehearing.

The objectors then filed their complaints for administrative review in the circuit court of La Salle County, where the cases were consolidated. After the parties submitted briefs and presented oral arguments, the court affirmed the decision of the regional board. The plaintiffs then filed this appeal.

The first issue presented is whether the pendency of a prior petition precluded consideration of the instant petition. The plaintiffs assert that the regional board could not consider the JFK-Oglesby petition until it considered and disposed of a petition filed by the Bruch family, which sought to detach the Bruchs’ parcel of property from the JFK district and attach said property to the Tonica school district. The plaintiffs claim that the Bruch and JFK-Oglesby petitions compete for the same territory, and the regional board’s premature consideration of the JFK-Oglesby petition adversely affects the Bruch petition.

In school district boundary cases involving multiple petitions, the principle of “first in time is first in right” is well established (People ex rel. Pfeiffer v. Morris (1937), 365 Ill. 470, 6 N.E.2d 864) and has continued to enjoy vitality in recent cases (Kerwin v. Sanders (1988), 174 Ill. App. 3d 872, 528 N.E.2d 1344; Board of Education of Center Cass School District No. 66 v. Sanders (1987), 161 Ill. App. 3d 723, 515 N.E.2d 280). We find, however, that the plaintiffs lack standing to raise this issue.

The purpose of the standing requirement is to preclude a person having no interest in a controversy from bringing suit. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 280, 545 N.E.2d 731.) The standing of a litigant is one of the components of the court’s subject matter jurisdiction. (In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 425, 531 N.E.2d 102.) Together with the doctrines of mootness, ripeness, and justiciability, the standing doctrine is one of the devices by which courts cull their dockets to preserve for consideration only those disputes which are truly adversarial and capable of resolution by judicial decision. Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 488, 524 N.E.2d 561.

The essence of the standing inquiry is whether the litigant is enti- ' tied to have the court decide on the merits of the dispute or of a particular issue. (Warth v. Seldin (1975), 422 U.S. 490, 498, 45 L. Ed. 2d 343, 354, 95 S. Ct. 2197, 2205.) State courts are not required to follow Federal law on the issue of standing, and generally, States have more liberally afforded standing to any plaintiff who shows that he has in fact been aggrieved by an administrative decision. (Greer, 122 Ill. 2d at 491.) In 1988, the Illinois Supreme Court declined to follow the United States Supreme Court’s lead in tightening the requirements for standing. Greer, 122 Ill. 2d at 488-92.

Within Illinois, a plaintiff has standing if he is able to show some injury in fact to a legally recognized interest. (Rodriguez, 131 Ill. 2d at 280.) A proponent must assert his own legal rights and interests, rather than basing his claim for relief upon the rights of third parties. People v. Bond (1990), 205 Ill. App. 3d 515, 518, 563 N.E.2d 1107.

Where the effect of the challenged action is generalized, speculative or de minimus, the complaining party will not have standing. (Village of Riverwoods v. Village of Buffalo Grove (1987), 159 Ill. App. 3d 208, 212, 511 N.E.2d 184.) Whether actual or threatened, the claimed injury must be (a) distinct and palpable, (b) fairly traceable to the defendant’s actions, and (c) substantially likely to be prevented or redressed by the grant of the requested relief. (Greer, 122 Ill. 2d at 493.) Thus, when deciding whether a party has standing, a court must look to see if that party will benefit by the relief granted. Rodriguez, 131 Ill. 2d at 280.

Applying the foregoing principles, we conclude that the plaintiffs lack standing to assert the priority of the Bruch petition. From the record before us, it does not appear that the plaintiffs participated in the Bruch case. Neither the Bruchs nor the Tónica district objected to or otherwise participated in the JFK-Oglesby petition and suit. While the plaintiffs have attempted to assert the rights of third parties, the Bruchs, the plaintiffs failed to show injury to them by the disposition of the JFK-Oglesby petition before the Bruch petition.

The cases cited by the plaintiffs are distinguishable from the case at bar. In those cases, the party asserting the priority was either a participant in the earlier action, or a party who could otherwise demonstrate that its own rights and interests would be directly and substantially affected by the outcome of the first petition. (See, e.g., People ex rel. Simpson v. Funkhouser (1944), 385 Ill. 396, 52 N.E.2d 1014; Kerwin, 174 Ill. App. 3d 872, 528 N.E.2d 1344; Board of Education of Center Cass School District No. 66, 161 Ill. App. 3d 723.) The Carus and Helmig families have not shown that their rights or interests would be affected by the outcome of the Bruch petition. The plaintiffs in this action are not proper parties to raise this issue before the court.

Moreover, we note in passing that the “first in time is first in right” doctrine is not absolute. A long delay in prosecuting or acting upon a petition may abrogate a priority established under the “first in time is first in right” doctrine. In City of Countryside v. La Grange (1962), 24 Ill. 2d 163, 167-68, 180 N.E.2d 488, the appellate court held that, where no action was taken on a petition during the eight months preceding the filing of a second petition, the first petition was deprived of its priority. According to the record before us, it appears that the Bruch petition was filed in March of 1991, more than a year before the filing of the JFK-Oglesby petition which is now before this court. Since neither the Bruchs nor the Tónica district chose to participate in this case, we need not determine whether the Bruchs have abandoned their petition or whether their petition has lost its priority due to delay.

The second issue raised by the plaintiffs is whether the JFKOglesby petition failed to comply with the applicable statutory provision. The petition explicitly stated that it was being filed pursuant to section 7 — 1 of the Illinois School Code. (Ill. Rev. Stat. 1991, ch. 122, par. 7 — 1.) Under section 7 — 1:

“School district boundaries lying entirely within any educational service region may be changed by detachment, annexation, division or dissolution or any combination thereof by the regional board of school trustees *** when petitioned by the boards of each district affected ***.” Ill. Rev. Stat. 1991, ch. 122, par. 7—1.

The plaintiffs do not contend that JFK or Oglesby has violated any requirement of section 7 — 1. Rather, the plaintiffs assert that JFK and Oglesby were required to file their petition under section 7— 2a of the Illinois School Code. (Ill. Rev. Stat. 1991, ch. 122, par. 7— 2a.) Section 7 — 2a(b) provides, in pertinent part:

“Any school district -with a population of less than 5,000 residents shall be dissolved and its territory annexed *** by the regional board of school trustees upon the filing with the regional board of school trustees of a petition adopted by resolution of the board of education or a petition signed by a majority of the registered voters of the district seeking such dissolution. *** The regional board of school trustees shall have no authority to deny dissolution requested in a proper petition for dissolution filed under this subsection (b), but shall exercise its discretion *** on the issue of annexing the territory of a district being dissolved, giving consideration to but not being bound by the wishes expressed by the residents of the various school districts that may be affected by such annexation.” Ill. Rev. Stat. 1991, ch. 122, par. 7 — 2a(b).

Three primary distinctions exist between section 7 — 1 and section 7 — 2a(b) of the School Code. First, section 7 — 2a(b) applies only to districts with less than 5,000 residents, while section 7 — 1 has no population restrictions. Second, the regional board has discretion to deny dissolution requests brought pursuant to section 7 — 1, while the regional board has no authority to deny dissolution requested in a proper petition filed pursuant to section 7 — 2a(b). Third, once dissolution has occurred pursuant to a petition filed under section 7 — 2a(b), the decision of annexation is left to the discretion of the regional board of school trustees. Under section 7 — 1, annexation may be addressed in and determined by the petition filed by the affected districts.

The plaintiffs contend that, since the JFK district had a population of less than 5,000 residents, any petition for dissolution was required to be filed pursuant to section 7 — 2a(b). Since section 7 — 2a of the School Code was enacted several years after section 7 — 1, the plaintiffs claim that section 7 — 2a effectively repealed section 7 — 1 for smaller districts. JFK and Oglesby assert that they were free to seek dissolution and annexation under either section 7 — 1 or section 7— 2a(b).

We look to the rules of statutory construction to find the intent of the legislature. As a starting point, a court should examine the language of the statute and the purposes to be achieved by the law. (In re Estate of Callahan (1991), 144 Ill. 2d 32, 43, 578 N.E.2d 985.) “We presume that statutes which relate to one subject are governed by one spirit and a single policy, and that the legislature intended the enactments to be consistent and harmonious. Even when apparent conflicts exist, we are to construe such statutes in harmony with each other, if reasonably possible.” (Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 52, 563 N.E.2d 465.) Finally, as our supreme court stated, “The sections of the School Code are in pari materia, and they must be construed with reference to one another in order to give harmonious meaning to the act as a whole.” Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 389, 415 N.E.2d 1034.

Repeal by implication is not favored in the law, and a statute will not be held to be repealed by a subsequent enactment if a repeal can be avoided on any reasonable hypothesis. Unless the two statutes cannot be reconciled, or there is such inconsistency that the two acts cannot stand, we will not find a repeal by implication. Bromberek School District No. 65 v. Sanders (1988), 174 Ill. App. 3d 301, 307, 528 N.E.2d 1336.

After reviewing the history and language of these statutory provisions, we conclude section 7 — 1 and section 7 — 2a(b) of the School Code are not in conflict and, therefore, the statutes should be read and construed in harmony with each other. We find that section 7— 2a(b) does not repeal any aspect of section 7 — 1. Section 7 — 1 and section 7 — 2a(b) of the School Code provide school districts with less than 5,000 residents with alternative means of effectuating dissolution and annexation.

Where a petition to change school district boundaries is filed pursuant to certain statutory provisions, those provisions control. (Bromberek, 174 Ill. App. 3d at 308.) As noted above, the JFK-Oglesby joint petition explicitly stated that it was being filed pursuant to section 7 — 1 of the Illinois School Code. JFK, Oglesby and the regional board properly followed the procedures within that statutory provision.

The third issue is whether the JFK-Oglesby joint petition was rendered void when, after the petition was submitted to the regional board, Oglesby unilaterally decided that it would extend offers of employment to all JFK teachers once annexation occurred. We note that, at the public hearing, Oglesby informed the regional board of its intention to hire the teachers. The plaintiffs have provided this court with no authority which supports their assertion that Oglesby’s administrative decision somehow nullified the petition for dissolution and annexation. We find that the plaintiffs’ position is without merit.

The final issue raised by the plaintiffs is whether the regional board erred in granting the JFK-Oglesby petition based upon the facts of this case. On administrative review, this court’s role is to determine whether the decision is supported by the evidence. If this court finds that the correct statutory standards have been applied, and that the decision below is supported by substantial evidence, then this court must affirm the decision. (Bromberek, 174 Ill. App. 3d at 310.) Our review of the record shows that the correct statutory standards were applied and the regional board’s decision was supported by substantial evidence.

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

Affirmed.

SLATER and BRESLIN, JJ., concur.


author: JUSTICE BRESLIN

text:
      In re MARRIAGE OF MICHELLE ELBLKASY, Petitioner-Appellant, and ELSAYED ELBLKASY, Respondent-Appellee.
    Third District
    No. 3—92—0520
    Opinion filed March 5,1993.

      Susan Bursztynsky, of Prairie State Legal Services, of Ottawa, and Bernard Shapiro, of Prairie State Legal Services, of Rockford, for appellant.
    No brief filed for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The petitioner, Michelle Elblkasy, appeals from an order of the trial court declining to exercise jurisdiction over the petitioner’s child custody petition. The issue presented on appeal is whether the trial court’s decision to decline jurisdiction on the basis of forum non conveniens was an abuse of discretion. We affirm the trial court’s decision.

We initially note that the respondent, Elsayed Elblkasy, has not appeared, or been represented by counsel, at any stage of the Illinois proceedings. Additionally, he has not submitted an appellee’s brief. However, since the record is simple and the disputed error can be easily decided without an appellee’s brief, we shall decide the merits of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The record shows that the parties were married on February 13, 1990, in Kingsland, Georgia. Thereafter, they moved to the State of New York, where their child was born on November 27, 1991. On December 27, 1991, the petitioner took the child and moved to Illinois. The petitioner had been raised in Illinois and her family still resided there.

On January 6, 1992, the respondent filed a petition in a New York State court seeking custody of the child. This petition was dismissed on April 2, 1992, because the respondent failed to properly serve the petitioner with notice. On the same day, the respondent filed a new petition for custody.

On March 25, 1992, the petitioner filed a petition for dissolution of marriage with the trial court of La Salle County, Illinois. The petitioner also requested that she be awarded custody of the child. A hearing on that petition scheduled for June 1, 1992, was continued to July 2, 1992, because the respondent was neither present nor represented by counsel.

On June 10, 1992, Illinois Judge Cynthia Raccuglia spoke with New York Judge Virginia Yancey regarding which court should retain jurisdiction of the custody matter. They determined that New York was the appropriate forum to hear the case. On June 25, 1992, a hearing was held before Judge Yancey in New York to address Michelle’s motion to dismiss Elsayed’s custody petition. The record shows that Michelle was represented by counsel at that hearing and that the motion was denied.

On July 2, 1992, a hearing on the petitioner’s motion for dissolution of marriage was held in Illinois. Although the court granted the divorce, it declined to address the child custody matter and deferred to the jurisdiction of the New York court. The court found New York to be the more convenient forum since both sides were represented in that court, and the New York court had already received evidence from both sides regarding the forum issue.

Other evidence in the record shows that the petitioner was less than candid with the Illinois court. For example, she requested an order of protection claiming that her husband was abusive, and that he was 6 feet 2 inches tall and weighed 250 pounds. However, the evidence showed that he was only 5 feet 4 inches tall and weighed 140 pounds.

The issue on appeal involves an application of the inconvenient forum provisions of the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2101 et seg.). The Illinois court found that it retained subject matter jurisdiction in this matter pursuant to section 4(b) of the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 2104(b).) Section 8 of the Act, however, allows a court to decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” Ill. Rev. Stat. 1991, ch. 40, par. 2108(a).

Section 8 provides a list of factors the trial court should consider when determining whether a more convenient forum exists:

“1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state; [and]
* * *
5. if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act.
(d) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the most appropriate court and that a forum will be available to the parties.” Ill. Rev. Stat. 1991, ch. 40, pars. 2108(c), (d).

As the application of these criteria requires exercise of the trial court’s discretion, a decision declining jurisdiction in favor of another court will be affirmed absent an abuse of that discretion. (In re Marriage of Doehner (1991), 215 Ill. App. 3d 570, 574 N.E.2d 1380.) The primary objective of the trial court is to determine which court can most capably act in the best interests of the child. (In re Marriage of Doehner (1991), 215 Ill. App. 3d 570, 574 N.E.2d 1380; In re Marriage of Pavelcik (1985), 138 Ill. App. 3d 1060, 487 N.E.2d 33.) Applying the above-mentioned principles, we find that while the instant case is a close one, the trial court did not abuse its discretion.

Applying the first statutory factor, we find that New York was recently the child’s home State. The child lived there from November 27, 1991, to December 27, 1991. The child lived in Illinois for less than two weeks when the original custody petition was filed in New York on January 6,1992.

Regarding the second factor, we note that the respondent lives in New York and the petitioner lives in Illinois. Thus, this factor does not weigh heavily in favor of either State.

Application of the third factor tends to weigh slightly in favor of Illinois. Since the petitioner’s family lives in this State, the child has personal ties here to her grandparents and extended family. However, this factor is not strongly compelling since the child might also have extended family ties in New York.

Regarding the fifth factor, which requires us to consider the purposes of the Uniform Child Custody Jurisdiction Act, we note that declining to exercise jurisdiction over this case did not contravene any of the purposes enumerated in section 2 of the Act (see Ill. Rev. Stat. 1991, ch. 40, par. 2102(a)). Specifically, it helped promote two of the factors set forth in section 2. (See Ill. Rev. Stat. 1991, ch. 40, pars. 2102(a)(2), (a)(6).) Here, the two judges discussed the case before a decision on the most convenient forum was issued by either court. This clearly promoted cooperation between the courts of the two States. In addition, that communication helped avoid relitigation of similar issues.

Finally, we note that the trial court was properly concerned with the fact that it was only being presented with one side of the custody issue, whereas the New York court had already been presented with both sides of the issue. This fact is especially significant since the record shows that the petitioner was less than candid with the Illinois court.

As such, based upon our review of the Act and the evidence, we find that the trial court’s decision was not against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

McCUSKEY, P.J., and LYTTON, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD REICH, Defendant-Appellant.
    Third District
    No. 3—91—0656
    Opinion filed March 3,1993.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Edward Reich was convicted of theft by deception (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(b)(1)) and sentenced to three years in prison. The trial court also ordered defendant to pay $57,292.96 in restitution. The conviction was based on a one-count indictment which alleged that between October 1988 and October 1989, the defendant committed the offense of theft by deception in that he fraudulently induced Arthur Orawaski to enter into a contract for the construction of a home. Defendant raises a number of issues on appeal. However, because we find it dispositive of this case, we address only defendant’s contention that he was not proven guilty beyond a reasonable doubt.

Defendant was the owner of a construction company called Energywise. In 1987, Arthur Orawaski contacted defendant and inquired whether defendant could build a home for Orawaski and his wife. Orawaski planned to build a 4,150-square-foot house and had received price estimates ranging from $187,750 to $415,000. In October 1988, defendant and Orawaski entered into a contract whereby defendant agreed to build the house for $100,000. The contract contained no specific starting or completion dates.

Orawaski told defendant that he had approximately $56,000. The parties agreed that Orawaski would pay defendant for materials, labor and equipment as needed as the construction proceeded. The plan was for defendant to construct the “shell” of the house with the money Orawaski had on hand, and Orawaski would then get a construction loan so that the job could be completed. The contract was notarized on October 28, 1988, and construction began November 2.

Defendant and two or three of his employees began digging the foundation of the house by hand using shovels, pick axes and a rototiller. Defendant never used a backhoe or any other heavy equipment to dig the foundation. The work proceeded very slowly. The footings were poured in February 1989, the foundation walls in April, and garage floor in June. Orawaski worked personally on the project to help keep the costs down. He ultimately put nearly 500 hours of labor into the project by assisting in pouring concrete, tarring the foundation and completing other tasks.

By May 1989, Orawaski was getting concerned that the project was taking too long and costing too much. The deed for the lot upon which the house was to be built contained a covenant that required construction on the property to be completed within eight months. Orawaski and defendant met with the developer, Patrick O’Donnell, on July 11, 1989. O’Donnell threatened legal action if Orawaski did not fire defendant. Defendant did not return to the work site after July 11.

During the eight months in which defendant worked on the project, Orawaski periodically gave defendant checks and cash for materials and labor. By the end of June, 1989, Orawaski had paid defendant $57,292.96. When defendant left the site for the last time on July 11, only the foundation and a concrete floor for the garage were completed.

Real estate developer Patrick O’Donnell testified that he sold a lot in his Foxley Acres subdivision to Orawaski. O’Donnell was qualified as a construction expert by the trial court. He testified that the methods used by defendant to dig the foundation were very unusual, impractical and primitive. He stated that defendant’s work was substandard and exhibited a lack of workmanship. He described the garage floor as being three to four inches “out of level.” In O’Donnell’s opinion, the foundation should have cost $14,500. He testified that it would have been impossible to build the house for $100,000. O’Donnell stated that, allowing for the work done by the defendant, he could complete the job for $242,300.

Police officer Gary Kraemer testified that he interviewed the defendant on November 2, 1989. Defendant told Kraemer that O’Donnell was harassing him and threatening court action. He told Kraemer that the problems in building the home stemmed from problems with the land. Kraemer testified that defendant claimed to have materials for the house, including windows, in storage. Kraemer confirmed that defendant did have approximately 22 used windows and other materials in storage.

Defendant testified on his own behalf. He stated that he had been in the construction business for 45 years. From 1979 to 1990 he ran a business called Energywise. His business was mainly limited to installing foam insulation and skylights, and constructing room additions to existing houses. During his 45 years in the construction business, he had built only three homes. He built one in 1953, one in 1956 and one in 1976.

In October 1988, defendant agreed to build Orawaski’s house in the Foxley Acres subdivision for $100,000. Defendant had 12 people working the project at various times. Although defendant originally had no agreement with Orawaski as to when the entire home was to be completed, on May 24, 1989, defendant signed an agreement to have the structure up by September 1,1989.

Defendant presented approximately 50 receipts for materials purchased for the project. The receipts totaled $25,509.91. Defendant stated that the labor cost for the work completed was $29,000. Defendant admitted that Orawaski had paid him nearly $58,000 of the $100,000 contract price. He also admitted that Orawaski gave him $9,600 for lumber which was never purchased, but defendant stated that he applied the money to other project costs.

Defendant testified that he stopped working on Orawaski’s house in July 1989 because O’Donnell chased him off the property. Defendant told Orawaski that he could not return to work until Orawaski could protect him from O’Donnell and provide a safe work environment. Defendant stated that he believed he could have had the roof on by September 1 if O’Donnell had not interfered. At the time of trial defendant still had windows and other materials for the project in storage. Defendant believed he could complete the project for the contract price because he charged less for his labor and did not take a large profit on materials.

On cross-examination defendant acknowledged that the only receipts on which he had written Orawaski’s name were the ones for concrete. Defendant again admitted that Orawaski had paid him nearly $58,000, that he did not return any money and that he did not finish the home.

Defendant contends that he was not proven guilty beyond a reasonable doubt. When presented with a challenge to the sufficiency of the evidence, a reviewing court examines the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

To support a conviction for theft by deception the State must prove beyond a reasonable doubt that (1) the victim was induced to part with money; (2) the transfer of the money was based upon deception; (3) defendant intended to permanently deprive the victim of the money; and (4) defendant acted with the specific intent to defraud the victim. (People v. Lighthall (1988), 175 Ill. App. 3d 700, 530 N.E.2d 81.) The term “deception” means to knowingly “[cjreate or confirm another’s impression which is false and which the offender does not believe to be true,” or to “[pjromise performance which the offender does not intend to perform or knows will not be performed.” Ill. Rev. Stat. 1987, ch. 38, pars. 15 — 4(a), (e).

Whether specific intent to defraud exists is a question of fact which may be established by circumstantial evidence. (People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800.) Proof of this element, however, cannot be based merely on supposition, guess or conjecture. (People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720.) While a jury’s determination is entitled to great weight, a reviewing court has a duty to set aside a conviction when the evidence is so unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. (People v. Gomez (1991), 215 Ill. App. 3d 208, 574 N.E.2d 822.) We believe that in this case, the State has failed to establish the requisite criminal intent beyond a reasonable doubt.

To prove the elements of deception and intent to defraud, the State presented evidence to show that defendant could not build the house for $100,000. This may or may not have been the case. However, a defendant’s failure to perform on a contract is not proof of a specific intent to defraud. (People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720; Ill. Rev. Stat. 1987, ch. 38, par. 15 — 4(e) (failure to perform standing alone is not evidence that the offender did not intend to perform).) The State was also required to prove that at the time defendant agreed to build the house he had no intention of building it or did not believe he could build it for $100,000. The State failed to prove this beyond a reasonable doubt.

The State contends that the impractical methods and substandard equipment used by the defendant, when viewed in light of his knowledge and experience in the construction business, established that defendant never really intended to perform on the contract. While it is true that defendant has been in the “construction business” for 45 years, his business consisted mainly of installing foam insulation and building additions to existing homes. During his 45 years in business he built only three homes; one in 1953, one in 1956 and another in 1976. The defendant was obviously not an experienced home builder. This is further evidenced by the fact that defendant dug the foundation for the house by hand rather than renting a backhoe.

Displaying poor workmanship, however, is not a crime, and the State’s contention that defendant merely “put on a show, went through the motions, in order to slowly bleed [the Orawaskis] of all the money they had” is not supported by the record. Defendant did in fact attempt to build the house. He put substantial time and effort into the project for eight months. This evidence weighs against the State’s characterization of the defendant as a mere “con man.”

Moreover, the fact that Orawaski repeatedly gave defendant money upon request does not prove an intent to defraud. The agreement between the parties was that Orawaski would finance the project as it progressed, giving defendant money as needed. Nor is an intent to defraud established by the fact that defendant used substandard equipment and materials. On the contrary, this shows an intent on defendant’s part to attempt to build a $200,000 to $400,000 house for less than half price as promised. Defendant testified that he believed he could keep the price down by not taking much profit on materials and keeping his wage low.

While the evidence establishes the possibility that defendant never intended to build the house for $100,000, this element, like all other elements of the offense, must be proven beyond a reasonable doubt. We believe the State failed to meet its burden of proof. The evidence of defendant’s poor workmanship, even in conjunction with his construction experience, was simply insufficient to establish an intent to defraud on defendant’s part.

There is no question that defendant failed to perform on the contract and caused the Orawaskis to suffer significant financial and emotional hardship. They may have a civil claim against defendant. Based on the record before us, however, we are unable to find that the State established beyond a reasonable doubt that defendant’s conduct amounted to theft.

In light of our findings stated above, we need not address the other issues raised by defendant on appeal. The judgment and sentence of the circuit court of Will County is reversed.

Reversed.

BARRY and STOUDER, JJ., concur.


text:
    A. EDWIN MAHLE, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF PEORIA, Defendant-Appellee.
    Third District
    No. 3—92—0376
    Opinion filed February 22,1993.
    Rehearing denied April 7,1993.

      Daniel F. Webb, of Chicago, for appellant.
    Karen L. Kendall and Bradley S. McMillan, both of Heyl, Royster, Voelker & Allen, of Peoria (John C. Mulgrew, Jr., of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, A. Edwin Mahle, filed a complaint against the defendant, First National Bank of Peoria (Bank), alleging that the Bank, as trustee, breached a fiduciary duty it owed the plaintiff, who was the beneficiary of a trust administered by the Bank. Following a bench trial, the trial court entered judgment for the Bank. The plaintiff appeals. We affirm.

The record reveals that on November 15, 1973, the plaintiff and Bank created a revokable, inter vivos trust, with the Bank as trustee and the plaintiff as beneficiary. The trust provided that the plaintiff could direct in writing that the trustee pay the plaintiff any amount of principal or income of the trust at any time.

After several conversations with Bank employees, the plaintiff, on January 20, 1975, consented to having his trust fund used as collateral for a loan that the plaintiff’s nephew, Kirk Mahle, received from a Minnesota bank. In exchange for offering the trust fund as collateral, the plaintiff was to receive 2% annual interest from Kirk on the money Kirk had borrowed from the Minnesota bank. Additionally, the plaintiff was to receive a lien on Kirk’s real estate.

The plaintiff executed a “Letter of Direction” which directed the trustee to prepare an “Assignment of Beneficial Interest” of the trust to be used as collateral for Kirk’s loan with the Minnesota bank. The plaintiff also executed an “Assignment of Beneficial Interest” which purported to release the trustee from any liability in connection with the transaction.

Thereafter, in January of 1976, the Minnesota bank sent notice to the defendant Bank that it considered the entire loan made to Kirk due and payable. At that point, Kirk apparently defaulted. As a result, the defendant Bank subsequently sent the Minnesota bank $100,000 from the trust fund. The defendant Bank did not recover any trust assets from Kirk and did not proceed against any of his real estate.

In 1982, the defendant Bank sent the plaintiff written notice, as required by the terms of the trust agreement, that it was withdrawing as trustee. In 1989, the plaintiff filed suit against the Bank alleging that it breached a fiduciary duty regarding the commitment of the trust to Kirk’s business venture by not disclosing all material facts so that plaintiff could make an informed decision.

At the trial on the plaintiff’s complaint, the plaintiff testified that Kirk had called him about securing collateral for a loan for Kirk’s sailboat business. The plaintiff claimed that he did not understand what Kirk wanted, but he gave him the telephone number of the Bank and told him to contact Richard Gillet, a trust officer at the Bank. Shortly thereafter, the plaintiff called Gillet and told him that Kirk would be calling. The plaintiff further testified that he could not recall the substance of his phone conversation with Gillet. Furthermore, he could not recall whether he had had any phone conversations with Gillet discussing the pros and cons of allowing his trust assets to be used as collateral for Kirk’s business debts. The plaintiff also noted that he did not recall Bank officials advising him not to use trust assets for this purpose.

Richard Gillet testified that he had had two to five phone conversations with the plaintiff about the contemplated transaction. During those conversations, the plaintiff told Gillet that Kirk wanted to start a boat-rental business in Minnesota and that the bank in Minnesota insisted on additional collateral before it loaned him money. According to Gillet, the plaintiff and Kirk had already discussed the details. If the plaintiff provided the needed collateral, he would receive, from Kirk, 2% annual interest on the amount of the loan.

Gillet further testified that at some point Kirk called him and said that he wanted the plaintiff to assign his interest in the trust as collateral for the loan. Gillet told Kirk to send detailed financial statements, which Gillet ultimately received.

Gillet recalled a phone conversation he had had with the plaintiff in which they discussed the risks of backing a young man going into business for the first time. According to Gillet, he had cautioned the plaintiff that those types of businesses have a high “mortality rate.” He indicated to the plaintiff that if Kirk’s business had some problems, the plaintiff could lose money. He pointed out to the plaintiff that Kirk’s own bank would not loan him the money because he did not have enough collateral and experience. According to Gillet, the plaintiff told him that he was comfortable with Kirk’s ability to survive in the sailboat business. The plaintiff further stated that he felt he would be protected if he had the “inventories collateralized” and liens on Kirk’s real estate.

Andrew Drendel, a Bank trust department employee, testified that Richard Gillet was his direct supervisor and that they were both involved in the administration of the plaintiff’s trust account. According to Drendel, the plaintiff requested that they assist Kirk “in whatever way [they could] in his business venture.” Drendel stated that he and Gillet had several conversations with the plaintiff advising the plaintiff that “this was the type of thing they did not want to do,” but that the plaintiff had already decided he wanted to do it and so they followed his directions. Drendel eventually sent documents for the plaintiff to consent to the loan and to release the trustee from liability. Upon receiving the documents, the plaintiff called Drendel for further explanation. At that time, Drendel again explained that the Bank did not want to partake in the transaction and that it did not recommend it to him. Drendel further explained to the plaintiff that if he wanted to proceed with the transaction he would have to sign the documents. Regarding the exculpatory clause, Drendel informed the plaintiff that the Bank did not want to undertake the transaction as part of the normal course of its business and that it wanted to be held harmless if the transaction “did not happen the way the plaintiff had planned.”

According to Drendel, when he called the plaintiff sometime later about Kirk’s default, the plaintiff indicated that he did not want to force Kirk out of business. The plaintiff told Drendel that Kirk was having problems with a divorce and he did not want to foreclose and force him out of business.

On appeal, the plaintiff argues that the trial court erred in finding that the Bank, as trustee, did not breach a fiduciary duty. He contends that the instant transaction was an imprudent investment, and therefore, the Bank was required to advise him of all material facts surrounding the transaction but failed to do so. The plaintiff relies on White v. Sherman (1897), 168 Ill. 589, 48 N.E. 128, in support of his position.

It is well recognized that trustees must employ such diligence and prudence as persons of discretion and intelligence employ in their own similar affairs. (McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 536 N.E.2d 419.) However, if the trustee acts within the powers delegated by the trust, his liability is limited to loss occasioned only through fraud or negligence. (In re Estate of Sanders (1940), 304 Ill. App. 57, 25 N.E.2d 923; McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 536 N.E.2d 419.) Furthermore, a trust beneficiary who consents to or approves of an act, omission, or transaction by a trustee may upon the ground of waiver or estoppel be precluded from subsequently objecting to the impropriety of such act, omission, or transaction; this rule may arise from acquiescence, request, participation, or notification. (McCormick v. McCormick (1988), 180 Ill. App. 3d 184, 536 N.E.2d 419.) Moreover, exculpatory provisions in trust instruments are generally held effective except as to breaches of trust committed in bad faith, or intentionally, or with reckless indifference to the interest of the beneficiary. Axelrod v. Giambalvo (1984), 129 Ill. App. 3d 512, 472 N.E.2d 840.

We find that the plaintiff’s reliance on White v. Sherman (1897), 168 Ill. 589, 48 N.E. 128, is misplaced. In White, the beneficiaries of the testamentary trust did not have the power to direct the use and investment of trust assets. There, the trustee invested trust assets in speculative railroad stocks. The supreme court found that the trustee’s suggestion of the stocks to the beneficiary and the beneficiary’s response that the trustee should use his own judgment were insufficient to show acquiescence by the beneficiaries in the purchase of the speculative stocks.

Here, unlike in White, the settlor created a revokable, inter vivos trust making himself the beneficiary. Furthermore, the present plaintiff had the plenary power to direct payment of the principal and income of the trust. The transaction in question was not an imprudent investment undertaken by the trustee. Rather, the transaction was entered into at the direction of the plaintiff for the personal benefit of a relative. Under the terms of the trust agreement, the Bank was bound to follow the plaintiff’s written directions regarding trust assets. The record clearly indicates that the plaintiff wanted to assist Kirk in his business venture and that the plaintiff gave his written consent directing the Bank to use trusts assets for that purpose. The plaintiff further signed a document exculpating the Bank from liability in connection with the transaction. Moreover, the trust officers testified that they advised the plaintiff about the dangers of this type of an investment but that the plaintiff nonetheless wanted to proceed with the transaction. The plaintiff admitted that he did not recall the substance of at least two conversations he had with Gillet about the transaction. Under the circumstances, we find that the trial court properly found that the Bank did not breach a fiduciary duty.

Our resolution of the above issue renders moot the remaining issue raised by the parties.

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

Affirmed.

LYTTON and STOUDER, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    JAMES FOSTER, Adm’r of the Estate of Patrice Foster, Deceased, Plaintiff-Appellee, v. RAO KANURI, Defendant-Appellant (Joseph Ptasinski et al., Defendants).
    First District (1st Division)
    No. 1—91—0199
    Opinion filed September 21, 1992.
    Rehearing denied January 29, 1993.— Modified opinion filed February 8,1993.

      Cassiday, Schade & Gloor, of Chicago (Michael J. Morrissey, Timothy J. Ashe, and Lynn D. Dowd, of counsel), for appellant.
    Judge & James, Ltd., of Park Ridge (Jay S. Judge and Kristine A. Karlin, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court;

This appeal arises from a medical malpractice action asserting wrongful death claims on behalf of the surviving spouse and minor child and a survival claim on behalf of decedent’s estate for her pain and suffering. The jury returned a verdict of $2.925 million against the defendant. The trial court denied defendant’s motion to set off the entire verdict against the pretrial settlement proceeds from other, dismissed defendants in the amount of $2.750 million, which would reduce the amount of the judgment to $175,000 owing to plaintiff. Instead, the trial court determined a setoff based upon a “per injury claim” and entered a judgment against defendant in the amount of $1,575,000.

The sole issue on appeal is whether defendant is entitled to set off the full pretrial settlement amounts paid to plaintiff by other, dismissed defendants against the jury’s total verdict against him. We answer in the affirmative and reverse the judgment of the trial court. The facts relevant to the disposition of this appeal follow.

Decedent, Patrice Foster, died after undergoing a dilatation and curettage procedure (commonly known as a D & C procedure) at Humana Hospital. She was survived by her minor son, Daniel and husband, James Foster. James Foster commenced a medical malpractice action against multiple defendants: Joseph Ptasinski, Northwest Physicians for Women, S.C., Humana Hospital (none of which are parties to this appeal) and the defendant-appellant, Rao Kanuri, M.D. The second amended complaint sounds in wrongful death and survival theories.

In October 1989 Humana Hospital settled the claims against it for $750,000, and on October 19, 1989, the trial court entered a good-faith finding in the settlement. Plaintiff then filed a motion for distribution of the settlement proceeds. On October 27, 1989, the court ruled on the motion and approved the settlement. It determined that James and Daniel were decedent’s surviving spouse and next of kin and that their percentages of dependency were 60% and 40%, respectively.

Subsequently, Ptasinski and Northwest Physicians settled the claims against them for $2 million. On June 1, 1990, the court approved that settlement, finding that it was reasonable and made in good faith. The trial court also entered an order finding James’ percentage of dependency to be 60% and Daniel’s to be 40%, thus awarding them $1,200,000 and $800,000, respectively.

The remaining defendant, Dr. Kanuri, did not settle with plaintiff but proceeded to trial. The jury returned a verdict in favor of plaintiff and against defendant in the amount of $2,925,000, to be distributed as follows: (1) $2,100,000 to Daniel for loss of society on the wrongful death claim; (2) $250,000 to James for loss of society on the wrongful death claim; and (3) $575,000 to the estate on the predeath pain and suffering claim.

Defendant filed a post-trial motion requesting a setoff of the entire $2,750,000 in settlement proceeds against the total jury verdict, so that only $175,000 remained due and owing to plaintiff. The trial court rejected defendant’s argument and granted plaintiff’s cross-motion for a setoff. In accordance with the trial court’s allocation, which took into consideration the prior determination of the percentages of dependency of the decedent’s heirs, an order was entered against defendant requiring him to pay $1,575,000 to plaintiff.

We find that the express provisions and plain language of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 302(c)) entitle defendant to have the settlement proceeds paid by the other defendants set off against the jury’s verdict. The provisions of the Contribution Act, in relevant part, state:

“Right of Contribution, (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

* * *

(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” Ill. Rev. Stat. 1989, ch. 70, pars. 302(a), (c).

Under Illinois law, based upon his or her constitutional right to a remedy, a nonsettling defendant can claim as a setoff any amount which plaintiff may have recovered in an antecedent settlement with the settling defendant(s). O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 501 N.E.2d 263.

In the present case, we agree with defendant’s argument that the trial court erroneously interpreted the Contribution Act when it considered the prior allocations of the settlement proceeds to decedent’s beneficiaries instead of authorizing a setoff of the entire settlement amount against the judgment. The general rule is that the trial court must set off the settlement funds received from other defendants against the judgment, even if the judgment is thereby reduced to $0. Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 495 N.E.2d 630; see also Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524.

Our supreme court has found that where a full setoff is denied, the plaintiff receives double recovery for the same injury, which is precluded under Illinois law. (Wilson, 131 Ill. 2d 308; Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 209, 412 N.E.2d 518.) A plaintiff is only entitled to one recovery and only one satisfaction for claimed injuries pursuant to one cause of action, regardless of the number of theories advanced. (Dial v. O’Fallon (1980), 81 Ill. 2d 548, 558, 411 N.E.2d 217.) However, the problem here is the method of allocation.

The parties contend the case of Johnson v. Belleville Radiologists, Ltd. (1991), 221 Ill. App. 3d 100, 581 N.E.2d 750, deals with identical issues raised in this appeal. We disagree. The Johnson case involves malpractice and loss of consortium claims and individual plaintiffs who were apportioned particular amounts for their distinct, separate and respective claims. The instant case involves two claims under the wrongful death and survival statutes. The legislative intent of the Wrongful Death Act is that the claims brought are those of the individual beneficiaries. The claim under the survival statute is that of the deceased which arose during his life and survived his death. (Fountas v. Breed (1983), 118 Ill. App. 3d 669, 673, 455 N.E.2d 200.) We believe that the method of allocating and computing damages and pretrial settlements against jury verdicts should not be mutually exclusive of the nature of the claim. To the contrary, the computation and distribution of the losses thereunder should be governed accordingly.

When reviewing a proposed settlement, the trial court should consider, in addition to the good-faith elements, the percentage of the settlement to be allocated with respect to the particular cause of action. When a lawsuit involves claims under both the survival and wrongful death statutes, the allocations should be made according to the claim. Expenses for conscious pain and suffering, expenses and loss of earnings of the decedent up to his or her date of death should be allocated to the survival action and the loss of benefits of the survivors should be allocated to the action for the wrongful death. (Fountas, 118 Ill. App. 3d at 673.) We believe that this allocation should be taken into consideration in the pretrial settlement, the jury verdict involving nonsettling defendants and the setoffs authorized under the Contribution Act. As explained in the Johnson case, courts must be ever mindful to arrive at results which avoid a harsh and unequal application of the law in multiparty cases and disparity in apportionments among family member and nonfamily member plaintiffs.

We remand this matter to the trial court to reconsider the settlement agreements and the jury verdict in light of the wrongful death and survival claims involved. The court must then apportion the setoff of the jury verdict against the pretrial settlements in light of the method espoused in Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 429, 308 N.E.2d 583, 586, and reiterated in Fountas.

Accordingly, we reverse and remand the judgment of the circuit court of Cook County with respect to its finding on the issue of damages for entry of an order consistent with this opinion.

Reversed and remanded for further proceedings.

BUCKLEY and CAMPBELL, JJ., concur.