author: PRESIDING JUSTICE UNVERZAGT

text:
    RUSSELL HANSON et al., d/b/a Senior’s and Junior’s Sportsman’s Bar, Plaintiffs-Appellants, v. THE ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.
    Second District
    No. 2-89-1368
    Opinion filed August 29, 1990.

      Paul E. Gaziano, of Rockford, and Mary Robinson, of Robinson & Skelnik, of Elgin, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, and Roger T. Russell, State’s Attorney, of Belvidere (Daniel N. Malato, Assistant Attorney General, of Chicago, and Carol J. Barlow, Assistant Attorney General, of Springfield, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, Russell and Audrey Hanson, d/b/a Senior’s and Junior’s Sportsman’s Bar, appeal from the decision of the trial court affirming the order of the Illinois Liquor Control Commission (Commission) upholding the revocation of their liquor license by the City of Belvidere. The plaintiffs have raised two issues on appeal: first, whether the Commission’s finding that the individual who sold a controlled substance in the plaintiffs’ tavern was an agent or employee of the plaintiffs was against the manifest weight of the evidence; and, second, whether the sanction of revocation imposed on the plaintiffs was unduly harsh and an abuse of discretion. On appeal, the Commission has for the first time raised the issue of whether the trial court had jurisdiction over the the action for administrative review because of the plaintiffs’ failure to name a necessary party, the City of Belvidere (City), in its complaint.

The plaintiffs’ liquor license was revoked by the liquor control commissioner of the City on April 6, 1989, following a hearing. The plaintiffs appealed to the Commission. A de novo hearing was held on June 7, 1989, before the Commission. The City presented the testimony of only one witness, Gary Cooper. Cooper testified that he is an employee of the Illinois State Police, Department of Criminal Investigations. He stated that he was in the plaintiffs’ bar on October 14, 1988. That evening, he was introduced to John Wirth III and observed him entering and exiting the bar and exchanging small folded packets of what appeared to be paper for United States currency. Cooper later discussed the purchase of cocaine with Wirth and, through an unidentified third person, exchanged money for a small folded packet of paper which looked similar to the ones he had earlier seen Wirth pass in the bar. The exchange took place in the bar. That evening, Wirth told Cooper that he was related to people involved in the bar.

Cooper testified that he was also at the bar on October 17, 1988. On that occasion, Wirth was behind the bar serving drinks to patrons of the bar. Wirth served a drink to Cooper, and Cooper paid him for the drink. Wirth told him that Mrs. Hanson had asked him to fill in that night. Cooper again discussed the purchase of cocaine with Wirth and exchanged $50 for a small folded packet of paper.

Cooper stated that he was again at the plaintiffs’ bar on November 21, 1988, and observed Wirth seated at a table just inside the bar. Cooper joined him at the table and purchased a folded packet of paper from Wirth for $50. The contents of all three packets purchased from Wirth tested positive for cocaine. Cooper stated that the plaintiffs were present at the bar on the occasion when he was seated at the table and that he thought Mrs. Hanson was there at least some of the time on October 14 and October 17.

The plaintiffs testified that they own a 70% interest in the bar and their three children own the remaining 30%. The bar has been in business for 5V2 years, and they had not previously had any charges brought against them by the local liquor commission. There were only three employees of the bar, the plaintiffs and their son, Ricky. The plaintiffs’ regular hours of work were 9 a.m. to 5 p.m. Ricky was frequently in charge of the bar in the evening and was present at the bar the evenings of October 14 and October 17.

Wirth is Mrs. Hanson’s nephew. The plaintiffs stated that he was not an employee of the bar and had never been on the payroll. They testified that Wirth only worked behind the bar for two hours on one occasion during the summer of 1988 and was paid in cash. Mrs. Hanson stated that he did not work at the bar at night but admitted that she did not know if Ricky ever allowed Wirth to work behind the bar at night when she was not there. Mr. Hanson testified that no one would be shocked if Wirth was behind the bar since he was related to the family and that he cut through the back side of the bar several times.

The plaintiffs testified that it was their policy that controlled substances or drugs were not allowed in the bar. The plaintiffs had never observed drugs or a narcotics transaction at the bar. They admitted that Ricky had been indicted for the sale of cocaine which allegedly took place at the bar.

Following the hearing, the Commission entered an order finding, in pertinent part:

“That on October 14, 1988, one John L. Wirth, an agent or employee of the Licensee, sold a controlled substance, to-wit, cocaine, to one Special Agent J. Gary Cooper, in violation of Sections 111.98(a)(4), (5), and 111.98(c) of the Code of Ordinances of the City of Belvidere, Section 401(b)(2) and/or (c), paragraph 1401(b)(2) and/or (c), of the Illinois Controlled Substances Act (Ill. Rev. Stat. ch. 56V2, par. 1100 et seq., 1987), and Section 100.30 of the Rules and Regulations of this Commission.”

The Commission then affirmed the order of the liquor control commissioner of the City revoking the plaintiffs’ liquor license. The plaintiffs filed a timely petition for rehearing which the Commission denied in an order which was served on the plaintiffs on August 11,1989.

The plaintiffs filed their complaint for administrative review on September 11, 1989. The original complaint contained in the record named both the Commission and the City as defendants in the caption. However, while the remainder of the complaint was typewritten, the name “City of Belvidere” was handwritten. Summons in the form provided by Supreme Court Rule 291 (107 Ill. 2d R. 291) was served on the Commission by the clerk of the court by certified mail on September 15, 1989. A regular law division summons was personally served on Mayor Patrick Murphy, the mayor of the City, on September 13, 1989. The summons did not name the City as a defendant. An attorney’s appearance was filed September 14, 1989, on behalf of the City.

Following a hearing on October 25, 1989, at which all parties were present, the trial court entered an order affirming the decision of the Commission. This appeal followed.

The Commission contends that the case should be remanded to the circuit court for a hearing on the issue of whether the circuit court had jurisdiction to decide this case. The Commission, citing Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, argues that the circuit court lacked jurisdiction over the plaintiffs’ complaint for administrative review because the City, a necessary party to the action, was not named in the complaint. The Commission attached to its brief a copy of the complaint served on it which does not list the City as a defendant. The Commission also relies on the facts that the City was not named on the summons served on the mayor, on subsequent motions and pleadings filed by the plaintiffs or on their original notice of appeal.

The plaintiffs respond by arguing that the record shows that all parties were named and served, that the Commission cannot properly rely upon facts which do not appear of record and that any defects in the summons issued to the mayor were waived by the general appearance filed by the City.

The Commission is correct that review under the Administrative Review Law (Act) (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) can be obtained only by strict compliance with the the procedures established by the statute. (See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 353 (“[s]ince the [Act] is a departure from common law, the procedures it establishes must be strictly adhered to in order to justify its application”).) Section 3 — 107 of the Act requires that “all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency *** be made defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107.) The record does show, however, that the City was named as a defendant on the complaint. The City’s name was added in handwriting to the complaint, and the City was a party to all subsequent proceedings before the trial court. The fact that the complaint served on the Commission did not list the City as a defendant cannot be considered by this court, as matters outside the record cannot be considered on appeal. Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 585.

A more difficult problem is presented by the fact that the summons the plaintiffs served on the mayor did not comply with the requirements of the Act. (Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 103, 3 — 105; see also Wilson v. Regional Board of School Trustees (1989), 179 Ill. App. 3d 485; Leghorn v. Kraft, Inc. (1988), 172 Ill. App. 3d 311; Ellis v. Miller (1983), 119 Ill. App. 3d 579.) The plaintiffs’ argument that any defect in service has been waived by the City’s filing of a general appearance is not persuasive. The issue is whether the trial court was barred from hearing the case under the Act because of the plaintiffs’ failure to follow precisely the Act’s requirements pursuant to section 3 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 110, par. 3— 102), not whether the court had personal jurisdiction over the City.

The statute’s requirements regarding issuance of summons, however, are mandatory, not jurisdictional. (See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 355.) Since this issue is not jurisdictional and was not raised by the Commission in the trial court, it cannot be considered on appeal. See Barnes v. Brown (1990), 193 Ill. App. 3d 604, 610; Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.

The plaintiffs first argue on appeal that the Commission’s findings were against the manifest weight of the evidence so that its order should be reversed. The plaintiffs’ major contention is that the evidence presented at the hearing failed to establish that John Wirth was an agent or employee of the plaintiffs. They concede that the evidence showed that an agency relationship may have existed with Wirth on October 17, 1988, because Wirth was observed working behind the bar that evening. They argue that this evidence should not be considered, however, because the Commission only found that Wirth had engaged in the sale of a controlled substance on October 14, 1988. The plaintiffs, citing Daley v. License Appeal Comm’n (1964), 54 Ill. App. 2d 265, urge that only the evidence regarding October 14 can be considered in determining the existence of an employer-employee or agency relationship and contend that there was no evidence of such a relationship on that date.

It is well established that the findings of an administrative agency on questions of fact are prima facie true and correct, and a reviewing court may set aside such findings only if they are against the manifest weight of the evidence. (Lake County Contractors Development Association, Inc. v. North Shore Sanitary District (1990), 198 Ill. App. 3d 31, 39; Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 64.) Courts have generally held that it is not the function of either the circuit court or the appellate court to reweigh the evidence (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391) or assess the credibility of the witnesses (Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 65). If there is any evidence in the record that supports an administrative agency’s decision, that decision is not contrary to the manifest weight of the evidence. Leong, 194 Ill. App. 3d at 65.

The plaintiffs do not dispute that under section 10 — 3 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 185), they are accountable for the actions of their agents or employees. (See Soldano v. Illinois Liquor Control Comm’n (1985), 131 Ill. App. 3d 10, 14; Maldonado v. License Appeal Comm’n (1981), 100 Ill. App. 3d 639, 640-41.) The question before this court, then, is whether the Commission’s finding that Wirth was an agent or employee of the plaintiffs so that they could be held accountable for his actions was against the manifest weight of the evidence.

The plaintiffs’ argument that only Wirth’s actions on October 14, 1988, can be considered based on Daley v. License Appeal Comm’n (1964), 54 Ill. App. 2d 265, is not persuasive. In Daley, the commissioner made no finding on seven of the eight charges brought against the liquor license. The court held that testimony regarding those seven charges could not be considered in determining if the revocation was proper as it was evident from the lack of findings on those charges that the commissioner found no substantive or credible evidence to support those charges. The situation here is distinguishable. The Commission found that Wirth committed a violation of the cited ordinances and statutes on October 14, 1988, and also found generally that Wirth was an agent or employee of the plaintiffs. We hold that all of the evidence presented at the hearing may be considered in our determination of whether the finding that Wirth was an agent or employee was against the manifest weight of the evidence.

Cooper’s testimony was that he observed Wirth behind the bar serving drinks to patrons of the bar on October 17, 1988. Cooper stated that Wirth served him a drink and he paid Wirth for the drink. Although plaintiffs testified that Wirth was not their employee, they did admit that Wirth had worked in the bar on one occasion during the summer of 1988, and Mrs. Hanson admitted that she did not know if her son Ricky, who was frequently in charge of the bar in the evening, ever allowed Wirth to work behind the bar when she was not there. Evidence was presented that Ricky had been indicted for the sale of cocaine which allegedly took place at the bar. Mr. Hanson stated that no one would be shocked if Wirth was behind the bar as he was related to the family and he cut through the backside of the bar several times.

The performance of work by one party is prima facie evidence of employment and, in the absence of contrary evidence, sup - ports a presumption that the person is a servant. (Byrne v. Stern (1981), 103 Ill. App. 3d 601, 605; Maldonado v. License Appeal Comm’n (1981), 100 Ill. App. 3d 639, 641.) While plaintiffs are correct that they did present contrary testimony, the same was true in Maldonado. There, the court held that the testimony of a police officer that a woman named Mary Jackson was behind the bar, served him a drink and put his money in the cash register while the owner was also behind the bar was sufficient to establish that she was an employee of the bar. The court reached this conclusion despite the testimony of the bar owner that he did not know anyone by that name and did not have an employee named Mary Jackson. His wife also testified that she did not know a Mary Jackson.

In this case, there was testimony that Wirth was seen behind the bar serving drinks on October 17, 1988. There was also testimony that Mrs. Hanson was present at the bar on that evening.

The case of Anderson v. Illinois Liquor Control Comm’n (1982), 105 Ill. App. 3d 924, is also helpful. In that case, a police officer testified that he purchased heroin from an individual inside the plaintiffs bar. Testimony that the individual was seen behind the bar working on a cooler on at least four occasions and that the individual had a key to the bar when arrested was found sufficient to show that he was an agent of the plaintiff. In this case, there was testimony that Wirth was seen working behind the bar and had worked behind the bar on one other occasion. He also had access to the back of the bar. While there was also testimony in Anderson that the plaintiff was aware of and condoned the sale of the controlled substance, evidence which does not exist here, Anderson does indicate that employee-type activities on just a few occasions can be sufficient to find an agency relationship.

The plaintiffs have cited cases setting out various factors to be considered in determining if an individual is an employee. They have not cited any cases, however, where those factors have been considered for purposes of determining a person’s employee status under the Liquor Control Act. The plaintiffs also argue that the evidence of Ricky’s indictment should not be considered, citing People v. Thomas (1983), 111 Ill. App. 3d 451, 454. That case, however, dealt only with the proof that can be considered in a sentencing determination and is not applicable to this case. In any event, the evidence here is sufficient without considering that testimony.

Based on Maldonado and Anderson, and considering the plaintiffs’ concession that the evidence showed that an agency relationship may have existed on October 17, 1988, we cannot say that the Commission’s finding that Wirth was an agent or employee of the plaintiffs was against the manifest weight of the evidence.

The plaintiffs next contend that the sanction of revocation was unduly harsh under the circumstances of this case and should be vacated. They argue that there was no evidence that they had any knowledge of the sale of the controlled substance in their tavern or that they participated in or approved of such sale. They also point out that they had never previously been cited for violations of any type. Plaintiffs cite Byrne v. Stern (1981), 103 Ill. App. 3d 601, and Soldano v. Illinois Liquor Control Comm’n (1985), 131 Ill. App. 3d 10. In both Byrne and Soldano, revocation was found to be an abuse of discretion based on the licensees’ long prior history of operating a liquor business (33 and 40 years, respectively) with no previous charges of license violations. The court in Byrne also noted that there was no evidence to show that the licensee had prior personal knowledge of the violation by his employee.

A violation of any statute, ordinance, or regulation fairly related to the control of liquor, upon liquor-licensed premises, generally constitutes cause for revocation of a license. (Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 65; Lopez v. Illinois Liquor Control Comm’n (1983), 120 Ill. App. 3d 756, 765.) The Commission relies on Anderson v. Illinois Liquor Control Comm’n (1982), 105 Ill. App. 3d 924, in arguing that the revocation should be affirmed. In that case the revocation of the licensee’s liquor license was affirmed based on the sale of heroin by an agent of the licensee. The appropriateness of the sanction was not an issue in that case, however. Also, as noted previously, there was evidence in Anderson that the licensee was aware of and condoned the sale of heroin. No such evidence was presented in this case. While there was testimony that Mrs. Hanson may have been present on October 14, 1988, there was no testimony that she or her husband was aware of the sale of cocaine.

It should be noted that the plaintiffs have had their liquor license for a significantly shorter period than the licensees in the two cases they cite. However, based on the fact that the plaintiffs operated their business for hVz years without a previous violation and the fact that there was no evidence that the plaintiffs were aware of or condoned the sale of cocaine at their bar, we hold that, under the unique circumstances present here, the imposition of the sanction of revocation was an abuse of discretion.

Accordingly, the judgment of the circuit court of Boone County is affirmed in part and reversed in part, and the cause is remanded to the local liquor commissioner of the City of Belvidere for the imposition of a reasonable sanction.

Affirmed in part; reversed in part and remanded.

REINHARD and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    JACKIE MOHR, Plaintiff-Appellant, v. ARACHNID, INC., Defendant-Appellee.
    Second District
    No. 2-89-1293
    Opinion filed August 29, 1990.

      Roberta L. Holzwarth, of Holmstrom & Green, P.C., of Rockford, for appellant.

      Scott C. Sullivan and Timothy J. Rollins, both of Williams & McCarthy, of Rockford, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The plaintiff, Jackie Mohr, appeals from the trial court’s dismissal with prejudice of her complaint seeking severance pay from the defendant, Arachnid, Inc., her former employer. The trial court dismissed the complaint with prejudice on the basis that the agreement promising severance pay was not supported by any consideration on the part of the plaintiff. We reverse and remand.

At issue on appeal is whether an employee’s continued work for her employer can constitute consideration which would support an express agreement to pay severance wages.

This litigation commenced with the filing of the plaintiff’s original complaint on May 19, 1989. This complaint was dismissed because the plaintiff named the wrong defendant, and an amended complaint was filed on July 6, 1989. The amended complaint alleged that the plaintiff was employed as a secretary by the defendant in November 1987. The amended complaint also alleged that on February 13, 1989, the plaintiff and defendant entered into a written agreement for the payment of six months’ severance pay should the plaintiff’s employment cease. The agreement, which referred to the plaintiff as “Employee” and the defendant as “Employer,” stated in part:

“WHEREAS, Employee is a key employee whose individual attention and loyalty to the Employer is essential to the Employer’s day-to-day operation and financial success; and
WHEREAS, Employee is aware of a certain buy/sell agreement among the Employer’s shareholders and of the exercise thereof; and
WHEREAS, the exercise of said buy/sell agreement has caused Employee and other key employees of Employer to become nervous, upset and distracted, including the consideration of employment elsewhere, to the financial detriment of Employer; and
WHEREAS, Employer desires to ease such nervousness and distraction through contractual arrangement of reassuring employment conditions.
NOW, THEREFORE, in consideration of the premises, it is agreed as follows:
1. Employee will continue to serve the Employer at the same or at an improved level of service as obtained prior to the exercise of the buy/sell agreement.
2. If after, but only after, a significant change in ownership of stock the Employer (significant being defined as 30 percent or more of total stock issue and outstanding) Employee shall be fired by new management, or Employee shall find conditions of employment intolerable such that Employee terminates employment with employer, then Employee shall be paid severance pay equal to six (6) months at Employee’s present salary.”

The agreement was to be effective only if termination occurred within one year of February 13,1989.

The amended complaint further alleged that on February 24, 1989, the shareholder of the defendant corporation agreed to make a significant change in the ownership thereof, as one stockholder, Michael Tillery, would purchase the shares of another, Paul Beall. The plaintiff was notified on April 12, 1989, that her employment would terminate. The defendant paid the plaintiff only two weeks’ severance pay.

The defendant filed a motion to dismiss the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (111. Rev. Stat. 1989, ch. 110, par. 2 — 615) on the grounds that: (1) the plaintiff failed to allege that she was terminated after a 30% or more change in the ownership of stock in the defendant corporation; and (2) the agreement was void and unenforceable because it was unsupported by consideration on the part of the plaintiff. The plaintiff’s response to the motion to dismiss attempted to refute both grounds.

The trial court held a hearing on the motion to dismiss on October 12, 1989. At the hearing, the plaintiff’s attorney acknowledged that the complaint failed to allege that termination occurred after a 30% change in ownership, and she offered to amend the complaint to cure this omission. The trial court ruled that, on the issue of the sufficiency of the complaint, the defendant’s motion to dismiss the complaint would be granted, but the plaintiff was given leave to file an amended complaint.

The court then heard argument on the defendant’s motion to dismiss the complaint on that ground that the agreement was unsupported by consideration. The court took the matter under advisement and indicated that it would make a ruling on October 26, 1989. On that day, the court ruled that it would dismiss the amended complaint on the same basis articulated earlier and also because the agreement sued upon was not supported by consideration. The court issued a written order of this ruling on November 21, 1989, which noted that dismissal was made pursuant to both sections 2 — 615 and 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619). Only the portion of the order corresponding to the consideration issue indicated that dismissal was to be with prejudice. The plaintiff now appeals from the November 21 order.

Initially, we must resolve the defendant’s motion to dismiss the appeal. The defendant argues that the trial court’s dismissal of the plaintiff’s complaint pursuant to section 2 — 615 provided a separate basis for the dismissal of the plaintiff’s complaint. Thus, the defendant argues, even if we reverse the trial court on the consideration issue, there exists a separate basis for the dismissal of the plaintiff’s complaint. Though it is not phrased as such, the defendant appears to argue that this case presents the court with a nonjusticiable, moot question. We ordered the motion and the plaintiff’s objections to it taken with the case.

The trial court here dismissed the same amended complaint on two separate bases, one with prejudice to refiling and one without. If we reverse the trial court’s dismissal with prejudice, then the action will be restored to the status it held before that ruling, namely, the plaintiff would have an opportunity to file a second amended complaint to cure the insufficient pleading. Since our decision can effectively grant relief to the prevailing party, this appeal is not moot. (Tumminaro v. Tumminaro (1990), 198 Ill. App. 3d 686, 690-91.) Accordingly, we deny the defendant’s motion to dismiss the appeal.

In a related matter, the plaintiff filed a motion to strike the affidavit of Michael Tillery which was submitted in support of the defendant’s motion to dismiss the appeal. The affidavit states that the stock structure of the defendant corporation did not change before the plaintiff was terminated. This affidavit does not affect in any way our analysis concerning the mootness of the appeal; quite frankly, the relevance of the affidavit to the defendant’s motion to dismiss is not clearly explained. There is no indication that the matters stated in the affidavit were ever presented to the trial court. Since it is not relevant to the question of mootness and is outside the record, we cannot consider the affidavit, and we therefore grant the plaintiff’s motion to strike it. Tumminaro, 198 Ill. App. 3d at 691.

The plaintiff’s first contention is that the defendant improperly converted a portion of its section 2 — 615 motion into a section 2— 619 motion to dismiss. It is improper for a defendant to combine separate motions under each of these sections for joint analysis and determination. However, while this improper practice is error and should not be condoned, it does not command reversal unless prejudice results to the nonmovant. Cardwell v. Rockford Memorial Hospi tal Association (1989), 183 Ill. App. 3d 1072, 1075, aff’d (1990), 136 Ill. 2d 271.

Here, the defendant’s motion to dismiss purported to be one made under section 2 — 615. However, it is not clear that the defendant could not properly have raised the issue of whether there was sufficient consideration to support the agreement in a section 2 — 615 motion. (See Davies v. Martel Laboratory Services, Inc. (1989), 189 Ill. App. 3d 694, 696-97 (motion to dismiss under section 2 — 615 based on lack of consideration to support a contract of permanent employment).) Even if the issue should have been raised under section 2— 619, the plaintiff did not object to the commingling of the two motions, nor did her response to the section 2 — 619 motion that the issue raised caught her off guard. In this situation, we do not find that the plaintiff was prejudiced by the combination of the two motions.

The plaintiff’s second contention, and the central issue on appeal, is that the trial court incorrectly determined that the severance pay agreement was void and unenforceable for lack of consideration on the part of the plaintiff. The defendant, on the other hand, argues that the trial court correctly determined that the plaintiff’s continued service in the defendant’s employ was not valid consideration because the plaintiff was only doing that which she was already obligated to do.

It is true that a promise to do something one is already obligated to do is not adequate consideration. (Corroan & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 162.) However, in Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489, the Illinois Supreme Court noted that, as a general rule, an employment relationship without a fixed duration is terminable at will by either party; an employee does not have an obligation to continue working for an employer. At issue in Duldulao was whether the policies spelled out in an employee handbook could constitute a binding contract. The court noted that, under some circumstances, an at-will employee’s continuing labor can serve as consideration for a contract with the employer. Duldulao, 115 Ill. 2d at 490.

Duldulao established three criteria for determining whether policy statements in an employee handbook can create a binding contractual agreement. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. Duldulao, 115 Ill. 2d at 490.

The defendant contends that the Duldulao analysis is limited to situations involving employee handbooks and, therefore, is not relevant here. We agree that the question of whether policy statements in employee handbooks are binding is different from the question presented in this case. Here, the agreement in question is not implied from a handbook, but was entered into with specificity in a written document drawn up for such a purpose. As a result, we believe that the issue in this case, which is narrower than that in Duldulao, can nonetheless be resolved with reference to the Duldulao analysis. Though the first two prongs of the Duldulao analysis are addressed to the vagaries inherent in making a contractual offer via an employee handbook, the third bears directly on the issue raised here. In Duldulao, the court held that, where the employer makes an effective offer to an employee through policy statements in an employee handbook, “the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a contract is formed.” Duldulao, 115 Ill. 2d at 490.

Here, there is no question that the defendant made an offer of severance pay to the plaintiff and that the plaintiff accepted the offer. Thus, Duldulao makes it clear that the plaintiff’s continued work for the defendant after the agreement was entered into constitutes consideration sufficient to support the agreement.

The defendant argues that the plaintiff was not obligated to work any harder or any better as a result of the agreement and that, therefore, continuing to work for the defendant comprised only illusory consideration. We disagree. The agreement itself indicates that it was arrived at in order to entice the plaintiff to continue working in light of possible management changes which allegedly caused her to consider other employment. Thus, the agreement only sought that the plaintiff continue to work for the defendant, something which, as an at-will employee, she was certainly not obliged to do. This constitutes sufficient consideration to support the agreement. See Adams v. Lockformer Co. (1988), 167 Ill. App. 3d 93, 98.

The defendant also argues that the severance agreement represents a “scorched-earth” policy designed to saddle the company with liabilities to frustrate a change in corporate ownership. Because corporate officers and directors owe a fiduciary duty to the corporation (see Dangeles v. Muhlenfeld (1989), 191 Ill. App. 3d 791, 795-96), such conduct might be relevant in an examination of whether a duty was breached. The question presented here, however, is one of contract law, not one pertaining to corporate duties or authority. We cannot change our contract-law analysis simply to address a possible abuse of corporate powers, especially when the latter issue has not been properly argued in that respect.

Accordingly, we hold that the trial court erred when it determined that the plaintiffs continued work for the defendant could not serve as consideration for the severance pay agreement. We therefore reverse the court’s order dismissing the amended complaint with prejudice and remand the cause for further proceedings upon the plaintiff’s filing of a second amended complaint.

The order of the circuit court of Winnebago County is reversed and the cause remanded.

Reversed and remanded.

UNVERZAGT, P.J., and GEIGER, J., concur.


author: JUSTICE INGLIS

text:
    THE VILLAGE OF SPRING GROVE, Plaintiff-Appellant, v. JOHN A. KUBAT, Defendant-Appellee.
    Second District
    No. 2-89-1162
    Opinion filed August 28, 1990.

      John A. Roth, of Diamond, LeSueur & Roth, Associates, of McHenry, for appellant.
    No brief filed for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Village of Spring Grove (Village), appeals following the judgment of the circuit court which found defendant, John Kubat, guilty of violating a Village ordinance. Plaintiff raises two issues on appeal: whether the trial court erred in imposing a fine lower than the mandatory amount; and whether the trial court erred in ordering the fine to be paid in installments without interest. We reverse and remand.

Defendant was charged with violating a weight restriction ordinance prohibiting the operation of vehicles with a gross weight exceeding 10 tons. (Spring Grove, Ill., Municipal Code, Ordinance 82(b)(3) (1986).) The trial court acquitted defendant of the charge on the basis that the traffic citation charged defendant with an excess weight of 25,600 pounds, whereas the proof showed an excess weight of 21,600 pounds. This court reversed, finding that the trial court erred in ruling that the variance between the pleadings and the proofs was fatal to defendant’s conviction. (Village of Spring Grove v. Kubat (1989), 180 Ill. App. 3d 1105 (unpublished order under Supreme Court Rule 23).) We thus remanded the cause with directions that the trial court enter a finding of guilty and assess the appropriate fine.

On remand, the Village argued that defendant’s excess weight of 21,600 pounds would yield a fine of $3,240 pursuant to the schedule of fines provided in the ordinance (see Ill. Rev. Stat. 1987, ch. 951/2, par. 15 — 113(a)) and that such fine should be imposed. Defendant argued that, instead, the court should take into consideration his financial resources and his future ability to pay. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(d); People v. Ullrich (1989), 178 Ill. App. 3d 1097.) In People v. Ullrich, the Appellate Court for the Third District held that section 5 — 9—1(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1) implicitly amended the mandatory fine schedule of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 15 — 113) so as to require the court to consider the offender’s financial resources and his future ability to pay in determining the amount of the fine. Relying on Ullrich, the trial court determined that it had the authority to impose a fine less than that prescribed by the Village ordinance. Thus, the trial court sentenced defendant with a fine of $2,880, payable in monthly installments of $60, over four years, without interest. Plaintiff timely filed its appeal pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301).

We initially note that defendant has not filed an appellee’s brief. Since the record is clear, we shall decide the appeal on the merits pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Cdrp. (1976), 63 Ill. 2d 128, 133.

Plaintiff first contends that the trial court lacked the authority to impose a fine below the mandatory amount. We agree. Ullrich, the appellate court case relied upon by the trial court, has been overruled by our supreme court in People v. Ullrich (1990), 135 Ill. 2d 477. The supreme court explained that section 5 — 9—1 “was intended to apply to discretionary fines and not to fixed, mandatory fines.” (Ullrich, 135 Ill. 2d at 484.) Thus, where a mandatory fine exists, the trial court is afforded no discretion and must impose the mandatory amount set forth in the schedule of fines. We also note that section 5 — 9—1 was recently amended specifically to exclude chapter 15 of the Vehicle Code from its application. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1(d).) Therefore, it is clear that a defendant’s financial resources and his future ability to pay are not to be considered in determining the amount of a fine in such instances.

Plaintiff next contends that it was error for the trial court to have ordered the fine to be paid in installments and without interest. Plaintiff argues that defendant is not an indigent and, therefore, he is capable of paying the fine. Plaintiff has cited no facts from the record to support its assertion that defendant is capable of paying the fine in a lump sum, but merely argues that his business can absorb the cost of the fine. The failure to cite to the record is a violation of Rule 341(e)(7), and, therefore, this argument is waived. (113 Ill. 2d R. 341(e)(7); In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 1045.) Furthermore, plaintiff has cited no authority for the proposition that, in Illinois, an offender must be indigent before a court may order a fine to be paid in monthly installments. Section 15 — 113 of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 15 — 113), which sets forth the schedule of fines for violations of the weight restriction provisions, does not provide for the method of payment of the fine. The only statutory section referring to the method of payment of fines is section 5 — 9—1 of the Unified Code of Corrections, which specifically provides that “[t]he court may order the fine to be paid forthwith or within a specified period of time or in installments.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(e).) Thus, we find that the Village has not established that the court erred in ordering that the fine be paid in installments.

Plaintiff also argues that since the court ordered defendant to pay the fine in installments, the court was required to order defendant to pay interest as well. To do otherwise, plaintiff argues, would reduce the present value of the fine below the mandatory amount. While plaintiff’s argument may have some merit, we can find no statutory provision, and the State has cited no Illinois authority, permitting the imposition of interest on such a fine (see People v. Meyerowitz (1975), 61 Ill. 2d 200, 211), and, thus, we decline to do so in this case.

For the above-stated reasons, the judgment of the circuit court is reversed, and the cause is remanded for the imposition of a fine in accordance with the mandatory fine schedule.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


text:
      In re MARRIAGE OF JOSEPH G. DUDEK, Petitioner, and SOPHIE DARLENE DUDEK, Respondent (Georgene Beechick, as Adm’r of the Estate of Sophie Darlene Dudek, Deceased, Plaintiff-Appellant, v. Joseph G. Dudek, Defendant-Appellee).
    Second District
    No. 2-89-1275
    Opinion filed August 28, 1990.
    Richard J. Johnson, of Pasky & Wood, of Aurora, for appellant.
    Richard D. Felice, of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Georgene Beechick, administrator of the estate of Sophie Dudek, appeals from an order of the circuit court of Du Page County dismissing plaintiff’s petition to enforce a judgment for dissolution of marriage. Plaintiff contends that, pursuant to the dissolution judgment and the settlement agreement incorporated therein, Sophie had certain contractual rights in the property which the estate is now entitled to enforce. We affirm.

The marriage of Joseph and Sophie Dudek was dissolved in 1985. Their property settlement agreement was incorporated into the dissolution judgment. As relevant to this appeal, the settlement agreement provided that the marital residence, which the parties held in joint tenancy, would remain in joint tenancy. Joseph had the right to reside in the home, and he became responsible for the mortgage payments, taxes, insurance, utility bills and repair costs. He had the right to any tax benefits associated with the residence and the right to lease the premises. The property settlement agreement also provided that, upon the agreement of the parties, the marital residence could be sold. From the proceeds, Joseph would receive the sum of $2,329.53; the parties would share equally in the remainder of the proceeds. If the parties were unable to reach an agreement regarding the sale of the home, a “Court of competent jurisdiction” would decide the matter.

Sophie Dudek died in 1986, and Georgene Beechick was appointed the administrator of her estate. During Sophie’s lifetime, she never took any action to sell the property and never instituted any court procedure to cause a sale. On August 28, 1989, Beechick (hereinafter referred to as the administrator) filed a petition seeking to enforce the marital settlement agreement. The petition requested that Joseph be required to sell the marital residence and divide the proceeds as outlined in the settlement agreement or to have the property appraised and pay Sophie’s estate Sophie’s share of the value of the residence. Joseph filed a motion to dismiss the administrator’s petition. He argued that, pursuant to the joint tenancy provision, upon Sophie’s death all right, title and interest in the property vested in him as the surviving joint tenant. The trial court granted the motion to dismiss. The court stated:

“I feel that because of the express language in the agreement of the parties that the property remain in joint tenancy, unless it can be shown *** to this Court that it was the intent of the parties that that language was something other than that which is clear on its face, either ambiguous or unknown to the *** decedent ***, that that was a definite expression upon the parties’ part to keep the property in joint tenancy, and that upon the death of either, joint tenancy rights would exist, which means right of survival.”

The administrator agrees with the trial court that the joint tenancy was not severed prior to Sophie’s death and that upon her death Joseph acquired sole title to the property. The administrator does not question title but argues instead that the property settlement agreement is a contract and that the estate may enforce the terms of the contract.

When a property settlement agreement between spouses whose marriage is being dissolved has been approved by the court and incorporated into the judgment of dissolution, it becomes merged in the judgment, and the rights of the parties thereafter rest upon the judgment. (In re Marriage of Dowty (1986), 146 Ill. App. 3d 675, 678-79.) In interpreting the terms of such an agreement, the courts apply the normal rules of construction of contracts; the object in so doing is to give effect to the intention of the parties. In re Estate of Kite (1974), 19 Ill. App. 3d 932, 934.

In the present case, the agreement at issue stated:

“Husband and Wife agree that the residence shall remain in joint tenancy. ***
Upon agreement by the parties the Marital Residence may be sold and the net proceeds divided as follows:
Husband shall receive the sum of $2,329.53 and the remainder shall be divided:
Fifty percent (50%) to Wife
Fifty percent (50%) to Husband
If the parties are unable to reach an agreement regarding the sale of the Marital Residence, a Court of competent jurisdiction shall decide the matter.”

The trial court indicated that it believed that the key provision of the agreement was the joint tenancy provision. We agree. One of the essential characteristics of the estate of joint tenancy is survivorship, that is, the right of the last surviving joint tenant to take the whole. (Harms v. Sprague (1984), 105 Ill. 2d 215, 224.) Upon the death of a joint tenant, title passes by operation of law to the survivor. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451.) Both parties agree that full title to the property passed to Joseph upon Sophie’s death. The question remains whether the passing of title affected other rights or interests, if any, that arose by operation of the settlement agreement.

Plaintiff contends that Dowty and Sondin v. Bernstein (1984), 126 Ill. App. 3d 703, support her position on appeal. In Dowty, the husband and wife owned a home in joint tenancy. At the dissolution hearing, attorneys for both spouses agreed that the property was about to be sold, but before any sale could occur, the wife died. The trial court determined that the husband was the sole owner of the property as the surviving joint tenant, and the appellate court reversed. The appellate court noted that the parties intended to divide the property following their divorce. (Dowty, 146 Ill. App. 3d at 679-80.) The court also pointed out that the wife’s estate could enforce the terms of the property settlement agreement to sell the property under a contract theory, relying on Sondin.

In Sondin, the husband and wife held certain property in joint tenancy. Their dissolution settlement agreement provided that in the event of a sale of the property the husband and wife would share equally in the profits. The husband died before the property was sold, and his estate sued for his share of the profits of a subsequent sale. The estate claimed that the joint tenancy had been severed and that the estate had a one-half interest in the property as a tenant in common. The appellate court held that the joint tenancy had not been severed. (Sondin, 126 Ill. App. 3d at 706.) The court concluded, however, that the husband had a contractual right to one-half of the profits from a sale of the home and that right survived his death. (126 Ill. App. 3d at 708-09.) Thus, the wife was required to pay one-half of the profits from the sale to the husband’s estate. The fact that the wife now had sole title to the property did not affect the obligations which the settlement agreement imposed on the parties.

We, however, find Dowty and Sondin distinguishable from our case in one crucial aspect, namely, that the parties here clearly demonstrated their intent that the property remain in joint tenancy following the dissolution. Sophie never took any action contrary to that intent. In Dowty, the parties had their home “on the market” at the time of the dissolution and thus intended to sever the joint tenancy. (Dowty, 146 Ill. App. 3d at 679-80.) In Sondin, the parties did not indicate in their settlement agreement their intention that the property remain in joint tenancy following the dissolution. Instead, the court determined that neither the dissolution decree nor the property settlement operated to sever the joint tenancy. Sondin, 126 Ill. App. 3d at 708.

We read the agreement in this case as expressing the parties’ intention that the property remain in joint tenancy following the dissolution of their marriage. The parties did place provisions regarding the sale of the property in the agreement, apparently to allow defendant to receive an additional sum of money following the sale and to provide procedures should the parties be unable to reach an agreement concerning a sale. If we would allow plaintiff to recover one-half of all proceeds from the sale of the residence (after defendant received his $2,329.53 additional sum), we would not be following the parties’ intention that the property remain in joint tenancy with the right of survivorship. The trial court stated: “[Tjhere’s an express provision that the property shall remain in joint tenancy. *** I have to presume that with that statement in there it was the intent of the parties that the property remain in joint tenancy until such time as any party desired to exercise his right to sell.” We agree with the trial court’s reasoning.

For the above reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE SCOTT

text:
    BOARD OF REVIEW OF GRUNDY COUNTY et al., Plaintiffs-Appellants, v. THE PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Third District
    No. 3-89-0567
    Opinion filed August 10, 1990.
    Rehearing denied September 24, 1990.

      Frederic S. Lane, of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Jacqueline S. Glassman, of counsel), for appellants.
    Hopkins & Sutter, and Minard E. Hulse, Jr., Robert A. Creamer, and Thomas J. McNulty, all of Keck, Mahin & Cate, both of Chicago, and James R. Fleming, of Coal City (Paul F. Hanzlik, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendant, Commonwealth Edison Company, sought review of the 1979 real property assessments for its Collins generating and Dresden nuclear power stations via the Property Tax Appeal Board (PTAB). After extensive proceedings resulting in a voluminous record, the PTAB determined on April 6, 1983, that the fair market value of the Collins station was $601,401,700; Dresden was valued at $219,954,924.

Edison’s ability to earn a return on its invested capital is regulated by the Illinois Commerce Commission; no purchaser would pay more for these facilities than a sum on which he could reasonably expect to earn a rate of return. Accordingly, the PTAB began its decision by noting that because the subject properties were “regulated,” the method of deriving market value would be historic original cost, less accumulated depreciation with, however, certain adjustments. The controversy before the PTAB was principally concerned with the “adjustments.” None of the parties sought judicial review of the PTAB determination of market value. The only issue in this appeal is the formula for reducing, or debasing, fair market value to assessed value.

The Department of Revenue’s (Department’s) sales ratio studies showed assessment levels for the years 1976, 1977 and 1978 of 30.76%, 25.97% and 25.74%, respectively, giving a three-year average level of assessment prior to the 1979 assessment year of 27.49%.

The PTAB was of the view that, having received “probative evidence of fair market value,” it was required by section 111.4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 592.4) to use a one-year sales ratio study (25.74%) rather than the three most recent years (27.49%) preceding the 1979 tax assessment year in order to determine the proper level of assessment. Accordingly, the PTAB fixed the assessment at $154,800,800 ($601,401,700 x 25.74%) for the Collins station and $56,616,395 ($219,954,924 x 25.74%) for Dresden.

It appears, then, that utilization of the one-year sales ratio study in lieu of the three-year average results in a combined lower real property assessment for these facilities of a little over $14 million for the year 1979. On May 11, 1983, the Board of Review of Grundy County, Illinois, together with four other local taxing bodies, filed a complaint for administrative review in the circuit court of Grundy County asking that the assessments be computed based on the three-year study method, or 27.49% of fair market value. On August 2, 1989, the Grundy County circuit court affirmed the PTAB decision.

The Grundy County Board of Review, joined by Morris Community High School District No. 101 and Morris Elementary School District No. 54 — the Collins station is included in the territory of these school districts — appeal. Their sole contention is that the PTAB’s use of a one-year sales ratio study rather than the three-year average is error.

Defendant Commonwealth Edison has cross-appealed, urging the use of a third ratio (24.38%) calculated by its statistical expert, Dr. Purushottam Laud, to determine the assessment level for the Collins and Dresden stations.

Section 20(1) of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 501(1)) requires that real property “be valued at 331/s% of its fair cash value.” Section 1(24) of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482(24)) provides that the term “331/3%” means one-third of actual value “as determined by the Department’s assessment to sales ratio studies for the 3 most recent years preceding the assessment year, adjusted to take into account any changes in assessment levels implemented since the data for such studies were collected.” (Emphasis added.)

Section 111.4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 592.4) requires the PTAB to make its decisions “based upon equity and the weight of evidence and not upon constructive fraud.” The PTAB apparently interpreted the word “equity” to require use of a one-year study where there was “probative evidence of fair market value.” One consequence is that by the very act of appealing to the PTAB, a taxpayer will be assessed according to a different process. The result here would be a reduction in taxes because of the use by the PTAB of a different debasement method. We also observe that public utility real property in general, and the Collins and Dresden properties in particular, are different from residential and commercial properties in that public utility property is ordinarily valued at historic original cost less depreciation, while other property is typically valued by a comparable sales analysis. It also appears that public utility property is not considered in the Department’s computation of assessment levels or equalization factors.

Public Act 81 — 894, enacted September 21, 1979, effective January 1, 1980, amended section 111.2 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 592.2) by adding the following language: “The board may use a one-year assessment level to be based on relevant sales during the previous year.” The foregoing sentence, however, was deleted from the Revenue Act of 1939 via Public Act 86— 977.

Subsequent to the filing of the instant case in the circuit court of Grundy County, the Illinois Supreme Court decided Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 468 N.E.2d 953, a Lake County case involving the proper level of assessment of Edison’s Zion generating station for the tax years of 1975 and 1976. The court discussed at length the statutory provisions above set forth (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 456-57, 468 N.E.2d 953). The first issue in that case is identical to the issue in the instant case; namely, whether the PTAB was required to use sales figures for the three years prior to the year of assessment in arriving at assessed valuation. Edison argued that there was significant inflation in Lake County during the years in question (that argument is also made in the instant case) and that a one-year approach would be closer to the tax assessment date. The supreme court’s answer was as follows:

“The legislature has the power to define the terms, within a statute, in any reasonable manner. (Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66.) In section 1(24), the General Assembly defined 33^3% in terms of the Department’s assessment-to-sales ratio studies for the three most recent years preceding the assessment date. In so doing, the legislature was attempting to effectuate the constitutional mandate requiring uniformity in levels of taxation. Its definition must be sustained to the exclusion of Edison’s nonstatutory alternative.
Additionally, we find the Board’s use of a one-year sales ratio study to be inequitable. Under the Act the local assessor, the board of review, and the Department were required to use the three-year average, which produced a median level of 31.75% for 1975 and a median level of 31.93% for 1976. Whereas, the Board’s use of a one-year approach resulted in levels of assessment for 1975 and 1976 of 27.29% and 28.22%, respectively. These levels are far below the statutory target levels set by section 146(2). The inequity of this result prompts us to find that, given the facts and figures of this case, the proper assessment of the property in question can only be reached by application of the three-year approach.” Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 457, 468 N.E.2d 953, 954.

On June 6, 1984, following the Commonwealth Edison decision discussed above, the PTAB issued a policy statement to all Illinois assessing officers, acknowledging that this decision required the use of the three-year average except in the rare circumstance where the evidence would show conclusively that equity would be served only by use of the one-year assessment level.

On May 20, 1987, all of the parties appeared before the circuit court of Grundy County for oral argument. The assistant Attorney General representing the PTAB stated at that time that the PTAB “erred in using that one-year level of assessment and they properly should have used the three-year level of assessment.” Nevertheless, the circuit judge affirmed the PTAB decision without any memorandum opinion or any effort to distinguish the above Commonwealth Edison decision.

In support of its cross-appeal, Edison argues that the railroad assessment cases of the early 1960’s, People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co. (1961), 22 Ill. 2d 88, 174 N.E.2d 175, People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co. (1961), 22 Ill. 2d 104, 174 N.E.2d 182, People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205, 190 N.E.2d 780, support use of the nonstatutory sales sampling technique done by its expert, Dr. Purushottam Laud. In the Burlington, Gulf, and North Western cases, the railroads were being assessed at full value by the Department of Revenue while locally assessed property was being assessed at not more than 55%, and less than that in some areas, even after giving effect to a multiplier certified by the Department of Revenue. The railroads’ claims of discrimination were allowed; appropriate tax refunds were ordered.

However, unlike the railroad cases, nothing in this record would support a claim of discrimination against Edison. Dr. Laud may be correct in his assertion that the median ratio of all 11,049 nonfarm tax parcels throughout Grundy County as of January 1, 1979, did not exceed 25.74%, but by definition, the assessments of about half of the other tax parcels in Grundy County would have had to exceed 25.74%. No nonstatutory statistical samplings were done by the railroads such as was done by Edison in the instant case. Indeed, in North Western, the court remarked as follows:

“Our statute requires only that the Department use such means as it deems ‘proper and reasonable’ to make its studies on assessed valuations, and a mere difference in opinion as to what is the best or most reasonable method is not sufficient to bring the matter within the range of judicial review” People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205, 216, 190 N.E.2d 780, 786.

Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 124 Ill. App. 3d 228, 233, 463 N.E.2d 1331, 1334-35, involved the 1979 assessment of Edison’s operating equipment at two plants in Will County, Illinois. The PTAB refused to apply the 24.41% assessment level Edison sought to establish via use of an expert in the field of mathematics and statistics. The circuit court reversed the PTAB on this point. This court reinstated that PTAB determination on the ground that it was not against the manifest weight of the evidence.

A similar nonstatutory statistical argument by Edison urging that the level of assessment should be determined by an analysis of data for the year immediately prior to and the year subsequent to the tax date was rejected in Commonwealth Edison Co. v. Property Tax Appeal Board (1983), 115 Ill. App. 3d 371, 374, 376, 450 N.E.2d 780, 782, 783, aff'd (1984), 102 Ill. 2d 443, 468 N.E.2d 948.

Edison’s cross-appeal being without merit, the ruling of the court below respecting same must be affirmed.

The decision of the Illinois Supreme Court in the above Commonwealth Edison case is dispositive of this appeal. Section 1(24) of the Revenue Act of 1939, as amended, must be implemented. That part of the August 2, 1989, judgment of the circuit court of Grundy County affirming the use of a one-year sales ratio study by the PTAB is vacated. This cause is remanded to the circuit court of Grundy County with directions to remand same to the PTAB with instructions to use the 27.49% level of assessment mandated by the Department’s assessment to sales ratio studies for the three most recent years preceding the 1979 tax assessment year to determine the proper level of assessment applicable to the Collins and Dresden generating stations.

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

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE GORMAN

text:
      In re ESTATE OF JOHN A. STERLING SMITH, Deceased (Gualandri and Company, Plaintiff-Appellant, v. Florence Martin Smith, Ex’r of the Estate of John A. Sterling Smith, Deceased, Defendant-Appellee).
    Third District
    No. 3-89-0637
    Opinion filed August 29, 1990.
    Rehearing denied September 25, 1990.

      Cusack & Fleming, P.C., of Peoria (Michael A. Fleming, of counsel), for appellant.
    Baymiller, Christison & Radley, of Peoria (Carroll Baymiller, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Gualandri & Company (claimant), recovered a judgment on its claim against the defendant, the estate of John A. Sterling Smith (estate), after a jury rendered a verdict in the claimant’s favor. Subsequent to the entry of the judgment, the claimant filed a written motion seeking an award of attorney fees and other expenses of the lawsuit. After a hearing the circuit court denied the claimant’s motion. The claimant appeals from the denial of its motion. We vacate and remand.

No transcript of the hearing on the motion was included in the record on appeal. The written order of the circuit court denying the motion stated that the exercise of the circuit court’s discretion to award fees or expenses was not warranted under the facts and circumstances of the case, but the order did not state any basis for this determination. The order noted that the circuit court considered the motion and fee affidavit filed by the claimant, as well as the arguments of counsel, but it was silent as to whether the parties were given any opportunity to introduce evidence at the hearing.

The issue presented is whether the circuit court erred or abused its discretion in failing to award sanctions under Supreme Court Rule 219(b) (107 Ill. 2d R. 219(b)) or section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611).

Supreme Court Rule 219(b) states as follows:

“If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter of fact, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making the proof, including reasonable attorney’s fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.” (Emphasis added.) (107 Ill. 2d R. 219(b).)

The record reflects that the claimant served the estate with a request to admit the genuineness of certain documents and the truth of certain matters of fact. The record as we permit it to be supplemented by the claimant also reflects that the executor of the estate in a sworn statement denied some of those matters of fact. The denied matters of fact were subsequently proven at trial. While this in itself does not necessitate that reasonable expenses in making the proof be awarded (see, e.g., Chem-Pac, Inc. v. Simborg (1986), 145 Ill. App. 3d 520, 495 N.E.2d 1124), Supreme Court Rule 219(b) makes it clear that if the circuit court decides not to make such an award it must find that there were good reasons for the denials or that the admissions sought were of no substantial importance. Furthermore, in order to assist the review of its decision under Supreme Court Rule 219(b), the circuit court must make specific findings rather than just recite the language of the rule and must see that these specific findings are made part of the record. In other words, the circuit court must find what the good reasons were, if any, for the denials, or why the admissions sought were of no substantial importance. In this case no findings were made that met these requirements.

Section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) states in relevant 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 certificate 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 Section, the court, upon motion or upon its own initiative, shall 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 the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” (Emphasis added.)

The Illinois Supreme Court has promulgated Supreme Court Rule 137 (134 Ill. 2d R. 137), effective August 1, 1989. Rule 137 preempts section 2 — 611. (See Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 468, 551 N.E.2d 1319, 1323.) All the papers submitted by the estate and objected to by the claimant were submitted prior to August 1, 1989, with one exception. Rule 137 uses language almost identical to that of section 2 — 611, with a few notable exceptions. Rule 137 uses “may” rather than “shall” in the language quoted above. Additionally, Rule 137 states:

“Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (134 Ill. 2d R. 137.)

We leave it to the circuit court on remand to determine which of section 2 — 611 and Rule 137 apply to which of the papers filed in this case.

The proper resolution of motions seeking sanctions under rules of the Illinois Supreme Court or statutory provisions like section 2 — 611 of the Civil Practice Law is of importance to the efficient operation of the courts and the integrity of attorneys as officers of the court, as well as to the particular litigants involved. The threat of sanctions should be sufficiently credible to deter the filing of papers with frivolous contentions or for improper purposes, both for the good of litigants and the efficient operation of the courts. However, if cases not within the contemplation of the applicable rules and statutes spawn “satellite litigation” over sanctions, oppression of litigants and inefficiency in court operations result.

The circuit court is in the best position to decide how those rules or statutes should be applied in the cases before it, and for that reason its decisions are entitled to considerable deference upon review. The decision whether to impose sanctions is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. (Yassin, 133 Ill. 2d at 467, 551 N.E.2d at 1323.) However, the predicate to such deference is that the circuit court make an informed and reasoned decision. A hearing ought to be held to give the parties involved an opportunity to present any evidence needed to substantiate or rebut the claim for sanctions and an opportunity to argue their positions. A hearing was held in this case on the motion for fees and expenses, but the order entered suggests that no evidence was taken at that hearing. In the absence of findings which would justify foregoing an evidentiary hearing, the circuit court erred in not having such a hearing. See Beno v. McNew (1989), 186 Ill. App. 3d 359, 542 N.E.2d 533.

The decision of the circuit court needs to clearly set forth the factual basis for the result reached in order to be accorded deferential treatment. The appellate court in reviewing a decision on a motion for sanctions should primarily be determining whether (1) the circuit court’s decision was an informed one, (2) the decision was based on valid reasons that fit the case, and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case. Secondarily, the appellate court should maintain some consistency of result at least for certain situations which are common and for which a clear result follows from the spirit as well as the letter of the applicable rules or statutes. (See generally Mars Steel Corp. v. Continental Bank N.A. (7th Cir. 1989), 880 F.2d 928 (Seventh Circuit’s en banc decision on how to approach review of decisions under Rule 11 of the Federal Rules of Civil Procedure, the rule on which section 2 — 611 and Rule 137 are patterned).) For a court of review to enter its decision without benefit of the trial court’s explicit findings tends to establish too many ad hoc rules of law as to the correct result in any given case. In this case the circuit court undoubtedly had reasons for its decision; however, it failed to express those reasons.

In this case, in order for the circuit court to fulfill the prerequisites for exercising its discretion, it must have an evidentiary hearing and it must make specific findings which will then form the basis for its ultimate decision. On remand the claimant is to be given an opportunity to prove that the threshold requirements for sanctions are present in this case, and to prove the expenses fairly traceable to the alleged violations by the estate of statutes or rules providing for such sanctions. The estate is to be given the opportunity to rebut the claimant’s contentions, and both parties are to be given an opportunity to argue their respective positions. The circuit court should set forth on the record and with specificity the reasons for its decision.

Accordingly, the order appealed from is vacated, and this cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

HEIPLE, P.J., and BARRY, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEROME SULLIVAN, Defendant-Appellee.
    Third District
    No. 3-89-0732
    Opinion filed August 15, 1990.
    Edward Burmila, State’s Attorney, of Joliet (Gary F. Gnidovec and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The trial court sua sponte dismissed a charge of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)) against the defendant, Jerome Sullivan. The State appeals. We reverse.

The record reveals that the defendant was charged by information with the offense of aggravated battery. In an unrelated case, the defendant was charged with unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver. A negotiated plea agreement with respect to the unrelated charges was reached, and at the plea hearing on those charges the trial court inquired about the aggravated battery charge. Defense counsel informed the court that the victim wished to drop the charge and that the victim had informed the State’s Attorney of his desire to do so. The State then told the court that as a matter of general policy it would not drop charges even when a victim no longer wished to pursue a matter. Since the State refused to drop the charge, defense counsel requested a trial date. The court subsequently set the trial for that afternoon.

Prior to the start of the trial, the State notified the court that since the case had only been set for a status hearing that morning, it had not anticipated such an early trial date and therefore had not subpoenaed the victim or notified the witnesses. The victim’s brother then came forward and informed the court that the victim, who was the defendant’s uncle, wanted the charge dropped against the defendant. He also stated that the victim had already returned to Ohio. He explained that his brother was a drifter and that in all probability he would not be returning to the area. Though defense counsel argued that the charge should therefore be dropped, the State maintained that it would not nol-pros the case until the victim was properly notified of the trial date.

The trial court concluded that in light of the fact that the victim wanted to drop the charge and was no longer in the State, and in the interest of judicial economy, the charge should be dismissed. It therefore dismissed the charge on its own motion.

The State argues on appeal that the trial court’s sua sponte dismissal of the aggravated battery charge was improper. The defendant replies that the trial court’s dismissal was realistic in light of the fact that the victim wanted the charges dropped and had left the State.

Initially, we note that a trial court may dismiss a criminal charge prior to trial only when presented with the grounds specifically set forth in section 114 — 1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(a)), or whenever there has been a clear denial of due process resulting in prejudice to the defendant. (People v. Uplinger (1976), 45 Ill. App. 3d 558, 359 N.E.2d 1052.) It is manifest that the court on its own motion, or on the motion of the defendant, has no power to dismiss criminal charges before trial in the absence of a supreme court rule, a statute, or a due process violation. People v. Schroeder (1981), 102 Ill. App. 3d 133, 429 N.E.2d 573.

In the instant case, the trial court dismissed the charge because the victim no longer wished to pursue the matter and it believed that it was a waste of judicial resources to allow the case to remain on its docket. Since neither of these reasons fell within the grounds set forth in section 114 — 1(a) and since no due process violation was involved, we find that the trial court was without authority to dismiss the aggravated battery charge.

Accordingly, we reverse the trial court’s order dismissing the aggravated battery charge against the defendant. The court is ordered to reinstate the charge, and the cause is remanded for further proceedings consistent with this opinion.

The judgment of the circuit court of Will County is reversed and the cause is remanded.

Reversed and remanded.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    GERY R. GASICK et al., Indiv. and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. EDWARD T. O’CONNOR, Treasurer and ex officio Collector of Taxes for Peoria County, et al., Defendants-Appellees.
    Third District
    No. 3-89-0508
    Opinion filed August 29, 1990.
    Rehearing denied September 26, 1990.

      John P. Nicoara, of Nicoara & Steagall, of Peoria (Richard L. Steagall, of counsel), for appellants.
    Kevin W. Lyons, State’s Attorney, and Kavanagh, Scully, Sudow, White & Frederick, P.C., both of Peoria (Donald J. Toohill, Assistant State’s Attorney, and Phillip B. Lenzini, of counsel), for appellees Edward T. O’Connor, Mary E. Harkrader, and County of Peoria.
    Phillip B..Lenzini, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellee Board of Trustees of Dunlap Public Library District.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs in this case, Gery R. Gasick and Bruce L. Alkire, individually and on behalf of all others similarly situated, appeal from orders of the circuit court denying their request for class certification, dismissing their second amended complaint, and denying their motion to amend their second amended complaint. The defendants in this action are Edward T. O’Connor, the treasurer and ex officio collector of taxes for Peoria County; Mary E. Harkrader, the county clerk of Peoria County; and the Board of Trustees of the Dunlap Public Library District (Board). We affirm.

The facts noted here are as alleged in the second amended complaint.

On July 21, 1986, the Board passed Ordinance 86 — 8, which purported to annex a certain area of real estate to the Dunlap Public Library District (library district) pursuant to State law (Ill. Rev. Stat. 1985, ch. 81, par. 1002 — 8(2)). By the terms of that ordinance, it was to take effect after the filing of a certified copy of the ordinance with the county clerk and the recorder of deeds of Peoria County. Notice of the annexation was published on July 24, 1986, in accordance with State law (Ill. Rev. Stat. 1985, ch. 81, par. 1002 — 8(2)). According to that statute, a 30-day period from the date of publication existed for voters to petition for a referendum on the annexation. No petition was filed in that period. The statute states, “[i]f no petition is filed with the library district within 30 days after publication or posting of the ordinance, the annexation shall take effect.” Ill. Rev. Stat. 1985, ch. 81, par. 1002 — 8(2).

On August 18, 1986, the Board passed Ordinance 86 — 9, which levied and assessed the municipal tax for the library district for the fiscal year beginning July 1, 1986. On August 20, 1986, the annexation ordinance and the levy ordinance were filed by the library district with the county clerk of Peoria County. On August 27, 1986, the annexation ordinance was filed with the recorder of deeds of Peoria County.

Plaintiffs here own property in the area sought to be annexed by the library district under Ordinance 86 — 8. Their 1986 real estate taxes, payable in 1987, included taxes for the library district. When plaintiff Gasick paid his 1986 real estate taxes, he did so under protest on the grounds that the library district tax should not have been extended to his property. Plaintiff Alkire and all the other property owners paid their 1986 real estate taxes without protest. The plaintiffs seek to act as representatives of the class consisting of all the property owners in the affected area.

On September 15, 1987, plaintiff Gasick filed a tax objection for himself and all others similarly situated, seeking a refund of the taxes paid by the property owners in the area sought to be annexed by the library district. On March 22, 1989, the circuit court by written order granted plaintiff Gasick’s tax objection, finding the tax of the library district to be “erroneous but not unauthorized.” That order also denied class certification and all other relief sought.

On April 20, 1989, plaintiff Gasick moved for leave to file an amended complaint, which the circuit court eventually permitted to be filed, and which was filed on April 28, 1989. On May 11, 1989, plaintiff Gasick moved for leave to file a second amended complaint, and plaintiff Alkire moved to be joined as an additional party plaintiff. The circuit court granted both motions on May 17, 1989. The second amended complaint sought to state a cause of action under 42 U.S.C. section 1983 (1988) for deprivation of substantive due process rights under the fourteenth amendment of the United States Constitution.

In June 1989 the defendants moved to dismiss the second amended complaint under both section 2 — 615 and section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2— 619). On June 22, 1989, the plaintiffs sought leave to amend their second amended complaint to add further counts under 42 U.S.C. section 1983 (1988) claiming deprivation of their equal protection rights under the United States Constitution. On July 27, 1989, the circuit court granted the defendants’ motions and dismissed this case with prejudice. The circuit court also denied the plaintiffs’ motion for leave to amend the second amended complaint. The plaintiffs timely filed their notice of appeal on August 2,1989.

The plaintiffs raise multiple issues on appeal, but they are phrased as general questions of law rather than as specific points of error. Rather than try to answer these general questions, we shall simply present our analysis of why the circuit court did not err in dismissing this case. In doing so we shall assume, without deciding the point, that the annexation was not effective until after the tax levy by the library district and that the tax for the library district should not have been extended against or collected from the property owners in the area at issue.

From the standpoint of State law, the property owners who paid their taxes without filing protests cannot now seek refunds of the taxes they paid that went to the library district (see Walser v. Board of Education of School District No. 1 (1895), 160 Ill. 272, 43 N.E. 346). Seeking an injunction to order refund of the taxes is a transparent attempt to do an end run around the tax protest and objection procedures that have long applied in this State, and the circuit court did not err in denying such relief. Had any of the affected property owners gone to court seeking an injunction against the extension or the collection of the tax, prior to those events, such a remedy would probably have been available (see Ames v. Schlaeger (1944), 386 Ill. 160, 53 N.E.2d 937). However, this lawsuit was not filed until after the second installment of 1986 taxes was due on September 1, 1987. At no point was a temporary restraining order or preliminary injunction sought. The mere filing of this lawsuit did not require the taxing officials or the library district to go about its official tasks any differently, or require it to segregate funds derived from the challenged tax. By the time of the first dispositive order in this case in March 1989, the disputed taxes had probably been spent by the library district. In short, all of the property owners in the area at issue by delay or inaction have foregone whatever equitable relief they might have obtained, and all but plaintiff Gasick have foregone whatever legal relief they might have obtained had they paid their 1986 real estate taxes under protest.

From the standpoint of Federal law, the plaintiffs claim a deprivation of their substantive due process rights under the United States Constitution. The plaintiffs allege that the defendants intentionally deprived the plaintiffs of “the use” of their property “without substantive due process of law,” and also that the plaintiffs suffered the “taking of their property.” In our view, the plaintiffs have not been deprived of property or the use of their property, nor has their property been taken. They and the other property owners all voluntarily paid the taxes at issue here, despite the availability of information that put into question the power of the library district to tax them, and despite the availability of equitable relief to prevent the extension and collection of the tax. By paying his taxes under protest, plaintiff Gasick began the process of availing himself of State statutory remedies allowing for refunds of taxes, which resulted in his obtaining a refund of all of his 1986 real estate taxes that went to the library district. Under these facts, the plaintiffs cannot make out a claim for deprivation of their Federal due process or equal protection rights or those of the other property owners.

If we were to assume that the property owners were deprived of property, we still believe that they had due process of law to prevent or to remedy that deprivation. Procedural due process is the more relevant inquiry than substantive due process, in our view. The United States Supreme Court in Rosewell v. La Salle National Bank (1981), 450 U.S. 503, 67 L. Ed. 2d 464, 101 S. Ct. 1221, found the Illinois real estate tax system to afford a “plain, speedy and efficient remedy” for deprivations claimed by taxpayers as a result of the administration of that tax system. While that case did not face the exact facts of the instant case, it aids our determination that the property owners here were not deprived of their Federal due process or equal protection rights.

While it may seem that the library district unfairly gained the taxes paid by the property owners here, in fact the library district only obtained the amount of its levy. The only persons who benefited from the taxes paid for the library district by the property owners in the area sought to be annexed were the property owners in the area already part of the library district.

Accordingly, we affirm the order of the circuit court.

Affirmed.

BARRY and SCOTT, JJ., concur.