text:
    MARY ARLT et al., Plaintiffs-Appellants, v. GREATAMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION, f/k/a Trident Savings and Loan Association, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1346
    Opinion filed May 6, 1991.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy and Mari-carol Lacy, of counsel), for appellants.
    Schuyler, Roche & Zwirner, of Chicago (John D. Plattner, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiffs Mary and Frederick Arlt appeal from an order of the circuit court of Cook County which dismissed their verified amended complaint with prejudice pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). In defendant GreatAmerican Federal Savings & Loan Association’s (Great-American’s) motion to dismiss, it argued that the action was not timely filed and was barred by “other affirmative matter.” Plaintiffs allege on appeal that their action is not time barred and that questions of fact exist, thereby precluding dismissal of their case on the pleadings.

In 1961, Mary Arlt and Rose Anne Arlt opened a passbook savings account at Trident Savings & Loan Association, n/k/a Great-American. Mary and Rose Anne Arlt were issued a single passbook to use when making transactions on the account. The passbook reads, “Mary Arlt and Rose Anne Arlt (sister) Trustees for Frederick Arlt (brother).” Mary and Rose Anne made various deposits to the account from 1961 through 1965, but never made any withdrawals. Mary and Rose Anne were the only people authorized to make transactions on the account. Each transaction was to be recorded in the passbook.

On September 1, 1988, Mary, Rose Anne and Frederick Arlt presented the passbook to defendant and demanded payment of the amount held in the account, plus interest; defendant refused payment. On October 11, 1988, plaintiffs filed their original complaint. Defendant filed a motion to dismiss the complaint which the circuit court granted. Thereafter, plaintiffs successfully and timely filed their verified amended complaint along with Mary, Rose Anne and Frederick Arlts’ affidavits.

In plaintiffs’ verified amended complaint, they allege that they had a savings passbook account in which they made various deposits, that they were the only ones authorized to make transactions on the account, that the defendant agreed to repay the amount deposited in the account upon demand, that plaintiffs at no time withdrew money from this account, that plaintiffs made a demand for the money, and that the bank refused payment. The affidavits of Mary, Rose Anne, and Frederick Arlt reiterate the facts set out in the complaint.

Defendant filed a motion to dismiss pursuant to sections 2— 619(a)(5) and (a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2—619(a)(5), (a)(9)) alleging the action was time barred and that the action should be dismissed because of a presumption that, the debt was paid. Defendant made the same arguments in its motion to dismiss as it does in its appellate brief. The circuit court, again, entered an order dismissing the case. The record is devoid of any indication of the basis or reasons the circuit court dismissed plaintiffs’ complaint. Plaintiffs appeal this order.

When a complaint has been dismissed, the dismissal will be upheld upon any basis found in the record. (White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370.) This court should presume the dismissal was based upon one of the grounds properly presented. (Smith v. Board of Education of East St. Louis School District No. 189 (1977), 52 Ill. App. 3d 647, 367 N.E.2d 296.) The inquiry on appeal from an order granting a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure is limited to accepting as true all well-pled facts and reasonable inferences that can be drawn therefrom and to examining whether a cause of action was stated. (Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 445 N.E.2d 1184.) Conclusions of law, however, are not admitted. Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 220, 514 N.E.2d 208, 210.

Initially, although not raised by the parties in their briefs, this court finds that plaintiffs stated a cause of action for breach of a written indebtedness which requires a plaintiff allege the existence of a contract between plaintiff and defendant, performance by plaintiff, breach by defendant and damages resulting from the breach. (Cf. Quake Construction, Inc. v. American Airlines, Inc. (1989), 181 Ill. App. 3d 908, 537 N.E.2d 863.) Plaintiffs properly allege that they had a contract with defendant, that they presented their passbook when transacting on the account, that upon presentment of their passbook defendant refused to pay plaintiffs the amount indicated in the passbook, and that the plaintiffs are damaged by not being able to retrieve their money. Thus, plaintiffs have properly alleged all the elements of a cause of action for breach of a written indebtedness, and in doing so, have stated a cause of action.

Defendant argues that the circuit court properly dismissed plaintiffs’ cause of action because it was not commenced within the 10-year time limit provided in section 13 — 206 of the Code of Civil Procedure. This section provides in pertinent part that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—206.) As section 13 — 206 states, the 10-year period begins to run after a cause of action accrues. Plaintiffs and defendant disagree as to when plaintiffs’ cause of action accrued. Plaintiffs and defendant do, however, agree that a savings account passbook is a form of indebtedness governed by the 10-year statute of limitations. (See Biehl v. H.N. Schuyler State Bank (1940), 305 Ill. App. 166, 26 N.E.2d 998 (abstract of opinion).) The question with which this court must concern itself, therefore, is when plaintiffs’ cause of action accrued.

Plaintiffs cite cases to support their position that a plaintiff’s right to maintain an action on a written indebtedness does not accrue until “a demand for payment has been made.” (Quigley v. W.N. Macqueen & Co. (1926), 321 Ill. 124, 151 N.E. 487; Emerson v. North American Transportation & Trading Co. (1922), 303 Ill. 282, 135 N.E. 497.) Defendant does not dispute this rule of law. Rather, defendant contends that the rule is qualified in that where there is no time fixed for performance, as with a savings account, “demand must be made within a reasonable time.” Quigley, 321 Ill. at 127, 151 N.E. at 489.

Defendant asserts that plaintiffs did not make their demand for the amount evidenced in the passbook within a reasonable time. This assertion, however, confuses the issues. The determination of whether demand was made within a reasonable time does not govern whether or not a cause of action is barred by the statute of limitations. The statute of limitations issue is governed solely by when demand was made and refused and when the action was filed. (See Ill. Rev. Stat. 1987, ch. 110, par. 13—206.) Plaintiffs’ cause of action accrued on September 1, 1988, when they demanded and defendant refused to pay them the monies evidenced in the passbook. Therefore, under section 13 — 206, plaintiffs have until September 1, 1998, in which to file this action. Consequently, this court holds that plaintiffs filed their action within the limitations period.

Turning to defendant’s argument that plaintiffs did not make demand within a reasonable time, we find that this is a factual question inappropriate for the circuit court to determine at this juncture in the proceedings. (See Frye v. Postal Employees Credit Union (Tenn. Ct. App. 1986), 713 S.W.2d 324, 326-27.) An inquiry into whether or not demand was made within a reasonable time requires the trier of fact to consider all the surrounding circumstances. (Frye, 713 S.W.2d at 327.) Further, it would not be equitable to allow defendant to argue that demand must be made within a reasonable time because banks and savings and loans advertise to coax people to deposit money in a savings account for their newborn child or grand-, child. After people deposit money for their children, they leave the money in the account to accumulate interest until the child is 18 or 20 years old and withdraws the money. Similarly, banks encourage people to open Individual Retirement Accounts (IRAs). A person who opens an IRA usually leaves the money in the account for an extended period of time because there is a penalty for withdrawing the money early. Clearly, banks are communicating that it is reasonable to deposit money into an account and leave it in the account for over 10 years. For the reasons stated above, we remand this case with instructions that the circuit court allow the parties an appropriate time in which to conduct discovery.

Relying on Fagan v. Bach (1912), 253 Ill. 588, 97 N.E. 1087, and Mills v. Mills (1960), 27 Ill. App. 2d 50, 169 N.E.2d 177, defendant asserts that since plaintiffs failed to demand payment of the amount evidenced in the passbook within 20 years, the debt is presumed paid. There is only one case in Illinois which applies this presumption to a savings account passbook; however, we find the circumstances and evidence vastly different from the case at bar. See In re Estate of Fantozzi (1989), 183 Ill. App. 3d 732, 539 N.E.2d 340.

Relying on Fantozzi, defendant contends that alleging possession of a passbook and the failure to pay after demand is insufficient to overcome the presumption that it paid plaintiffs the amount indicated in the passbook. In Fantozzi, the court found the following facts significant in finding the plaintiff did not rebut the presumption: (1) that the owner of the passbook had been deceased for 24 years and his wife could not testify that the deceased had not withdrawn the funds; (2) that the deceased had purchased a home for cash and his wife did not know the source of the cash; (3) that the wife did not even know if the contents of the passbook belonged to the decedent personally; and (4) that the checking account and safety deposit box in the deceased’s name were frozen at the time of his death, which supports the inference that any other account in the deceased’s name would have been discovered at the same time since notice of deceased’s death went to all departments of the bank. Fantozzi, 183 Ill. App. 3d at 736-37, 539 N.E.2d at 342-43.

A plaintiff must be allowed the opportunity to rebut the presumption of payment by clear and convincing evidence. (Mills, 27 Ill. App. 2d at 59, 169 N.E.2d at 181-82.) The circumstances in the case at bar are substantially different from those in Fantozzi. Since for purposes of determining a section 2 — 619 motion all well-pled facts and all reasonable inferences drawn therefrom are admitted, the facts admitted are that (1) presentment of the passbook was required for every transaction, (2) the passbook does not indicate any withdrawals, (3) plaintiffs’ complaint and sworn affidavits indicate no withdrawals were ever made from the account, (4) the passbook never left plaintiffs’ residence, where they have resided for 59 years, except when plaintiffs made the previously mentioned deposits, (5) plaintiffs never received any notification from defendant or any other entity that the account was considered abandoned, and (6) plaintiffs presented the passbook in anticipation of defendant paying the amount evidenced in it. Based on the facts admitted, this court cannot say, as a matter of law or fact, that plaintiffs will not be able to overcome the presumption of payment on remand.

Lastly, we consider defendant’s reliance on the Uniform Disposition of Unclaimed Property Act unpersuasive. There are no facts in the record that indicate that defendant followed the procedures therein, particularly the giving of notice as prescribed by the act.

We find that the plaintiffs stated a cause of action and filed their complaint within the statute of limitations period. Since we are unable at this juncture in the proceedings, as is the circuit court, to determine whether demand was made within a reasonable time; we remand this cause with instructions that the circuit court allow the parties an appropriate time period in which to conduct discovery.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded with instructions.

Reversed and remanded with instructions.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    ZURICH INSURANCE COMPANY, Plaintiff, v. RAYMARK INDUSTRIES, INC., et al., Defendants (Northbrook Excess and Surplus Insurance Company, Intervening Plaintiff-Appellee; International Insurance Company, Third-Party Defendant-Appellant; Aetna Casualty and Surety Company et al., Third-Party Defendants).
    First District (1st Division)
    No. 1—90—1917
    Opinion filed May 6, 1991.

      Purcell & Wardrope, Chartered, of Chicago (Sandra Young and Robert L. Bartolone, of counsel), for appellant.
    Dowd & Dowd, Ltd., of Chicago (Michael E. Dowd, Nancy J. Gleason, and Philip J. McGurie, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from Allstate Insurance Company’s (Allstate’s) March 22, 1989, motion to recover the sum of $2,605,727.25 it expended to pay a judgment against Raymark Industries, Inc. (Ray-mark). Allstate sought reimbursement from International Insurance Company (International) and Aetna Casualty & Surety Company (Aetna). An involuntary bankruptcy petition was filed on February 10, 1989, against Raymark. International moved to stay Allstate’s reimbursement proceedings until the closure or dismissal of the bankruptcy pending against Raymark. International now appeals from an order of the circuit court of Cook County, granting International’s motion to stay with respect to Raymark, but denying it with respect to International.

This case began in 1978 as a declaratory judgment action by Zurich Insurance Company, one of Raymark’s primary insurers, against Raymark and its other primary insurers to determine how insurers’ policies applied to the numerous asbestos-related bodily injury claims then pending against Raymark. Allstate’s predecessor in interest, Northbrook Excess and Surplus Insurance Company (Northbrook), was an excess insurer and, therefore, allowed to intervene as a plaintiff. Thereafter, Raymark interpleaded other excess insurers, including International, into the case as third-party defendants. Most insurers admitted to owing Raymark coverage for the claims but disagreed on the allocation of coverage. Prior to the Illinois Supreme Court’s decision determining the manner in which insurance coverage would be provided on the numerous claims (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150), the circuit court, beginning in 1984, entered a series of interim funding orders. Generally, these orders allocated defense and indemnity obligations among the insurers. After the Illinois Supreme Court’s decision, the interim funding orders reflected the coverage formula which the court’s decision mandated.

Allstate’s predecessor in interest, Northbrook, issued seven policies to Raymark with applicable limits totaling $123 million covering the period of 1976 through 1982. Northbrook made payments pursuant to the interim funding orders which exhausted these limits. In 1985, however, before these limits were exhausted, Allstate facilitated Raymark’s appeal of a $2 million plus judgment against it by obtaining a supersedeas bond which California law requires in order to appeal a lower court’s decision and guaranteeing payment if the bond were to become payable. This judgment against Raymark became final in January 1989. The plaintiff demanded payment of the judgment, and the surety on the bond threatened to sue Allstate if it did not honor its guarantee of payment. Consequently, Allstate paid $2,605,727.25 in satisfaction of the judgment including interest accrued. This payment extended beyond Allstate’s financial obligations under its policies.

On February 10, 1989, an involuntary bankruptcy petition was filed against Raymark in the United States Bankruptcy Court for the Eastern District of Pennsylvania. Raymark’s motion to dismiss the involuntary petition was denied. On March 22, 1989, one day after Allstate paid the $2 million plus judgment, it filed a motion for reimbursement against International, Aetna and Raymark contending that because the payment was in excess of its policy limits, it was entitled to reimbursement pursuant to the interim funding orders from one, two or all three.

On February 27, 1990, International filed a motion to stay Allstate’s reimbursement action pending resolution of Raymark’s involuntary bankruptcy case. International asserted that the matter fell within the automatic stay provisions of section 362(aXl) or (aX3) of the Bankruptcy Code (11 U.S.C. §§362(a)(1), (a)(3) (Supp. 1987)) because the motion was brought against a debtor in bankruptcy, namely, Raymark. International appeals from an order of the circuit court of Cook County granting its motion to stay Allstate’s reimbursement proceedings as to Raymark but denying the motion as to International. International contends that the circuit court erred in finding that the International policy issued to Raymark was not property of Raymark’s bankruptcy estate subject to the automatic stay provision of section 362(a)(1) of the Bankruptcy Code (11 U.S.C. §362(a)(1) (Supp. 1987)).

The case law in Illinois clearly establishes that a denial of a motion to stay is appealable as of right under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)). (Metropolitan Sanitary District v. United States Steel Corp. (1975), 30 Ill. App. 3d 360, 361, 332 N.E.2d 426, 427; Kellerman v. MCI Telecommunications Corp. (1985), 134 Ill. App. 3d 71, 73, 479 N.E.2d 1057, 1059.) The scope of review in an interlocutory appeal is normally limited to determining whether the circuit court abused its discretion in granting or refusing the requested interlocutory relief. (Kellerman, 134 Ill. App. 3d at 73, 479 N.E.2d at 1059.) There have been exceptions to this limited scope of review (see People v. Kerr-McGee Chemical Corp. (1986), 142 Ill. App. 3d 1104, 1106, 492 N.E.2d 1003, 1005); however, this case does not fall within one of those, and consequently, the standard of review on appeal is whether the circuit court abused its discretion in determining the interlocutory appeal. International’s position that this court should determine whether the circuit court’s ruling on a question of law was correct independent of the circuit court’s judgment is misguided. The case at bar deals with an interlocutory appeal, unlike those cited by International. See South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 519 N.E.2d 1005.

Allstate incorrectly asserts that since International failed to state the standard of review in its brief, International has waived review on the grounds that International failed to raise this as an issue on appeal. Allstate misconstrues the court’s holding in Miller v. Police Board of the City of Chicago (1976), 38 Ill. App. 3d 894, 904, 349 N.E.2d 544, 552, which held that an appellant waived the right to argue the question of constitutionality as an issue in its motion for rehearing because it failed to raise the issue before the police board, the circuit court or the appellate court. There is not any case in Illinois which has held that a party waived the standard of review by failing to recite the standard in its brief. We find that International did not waive the standard of review.

In determining whether the circuit court abused its discretion, this court should not decide whether it agrees with the circuit court’s decision, but rather, should determine whether the circuit court “acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted.” (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.) International contends that the circuit court should be reversed for refusing to grant the automatic stay as to International.

Section 362(a) of chapter 11 of the Bankruptcy Code provides in pertinent part:

“(a) Except as provided in subsection (b) of the section, a petition filed under a section 301, 302 or 303 of this title *** operates as a stay, applicable to all entities, of
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title ***.” (Emphasis added.) (11 U.S.C. §362(a) (Supp. 1987).)

In Williford v. Armstrong World Industries, Inc. (4th Cir. 1983), 715 F.2d 124, 126, the court held that the above section provides only for an automatic stay of judicial proceedings against the debtor in order to provide the debtor with time to organize its estate. “That insulation, however, belongs exclusively to the ‘debtor’ in bankruptcy.” (Williford, 715 F.2d at 126.) Section 362(a) automatically stays proceedings against the debtor only and not co-debtors. (Otoe County National Bank v. W & P Trucking, Inc. (10th Cir. 1985), 754 F.2d 881, 883.) We find that the circuit court did not abuse its discretion by refusing to grant the stay as to International, a co-debtor.

Further, a party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative. (Williford, 715 F.2d at 127.) Thus, International must “make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else.” (Landis v. North American Co. (1936), 299 U.S. 248, 254-55, 81 L. Ed. 153, 158, 57 S. Ct. 163, 166.) International did not assert that it will encounter any sort of hardship by being required to go forward with the reimbursement action. Similarly, International does not face any inequities by going forward with the action. There is, however, a fair possibility that a stay in favor of International, a solvent insurance company, would work damage against Allstate. It is clear from the record that Allstate has obeyed the circuit court’s interim orders and has paid monies pursuant to those orders in an amount which exceeds its policy limits. Here, Allstate, a solvent insurance company, is seeking reimbursement from another solvent company, International. We find that granting a stay on behalf of International would be inequitable and agree with the decision of the circuit court on this matter.

Additionally, International argues that it is entitled to the automatic stay pursuant to section 362(a)(3). This section states that an automatic stay is applicable to “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” (11 U.S.C. §362(a)(3) (Supp. 1987).) Relying on A.H. Robins Co. v. Piccinin (4th Cir. 1986), 788 F.2d 994, 1001, International argues that Raymark’s insurance policies are property of the bankrupt estate and, therefore, subject to the bankruptcy court’s jurisdiction. The court in Amatex Corp. v. Stonewall Insurance Co. (E.D. Pa. 1989), 102 Bankr. 411, 413, found that Piccinin dealt only with the automatic stay provisions of the Bankruptcy Code which are invoked to temporarily protect the debtor from an “ ‘uncontrollable scramble for its assets in a number of uncoordinated proceedings in different courts, to preclude one creditor from pursuing a remedy to the disadvantage of other creditors, and to provide the debtor and its executives with a reasonable respite from protracted litigation, during which they may have an opportunity to formulate a plan of reorganization for the debtor.’ ” (Amatex, 102 Bankr. at 413, quoting Piccinin, 788 F.2d at 998.) The Amatex court further held that “despite the likelihood that the [insurance] policies would be triggered, and even the high probability that the policies would be exhausted, the debtor has no property interest in the insurance until the debtor is legally obligated to pay damages which fall under the definitions contained in the policies.” (Emphasis added.) (Amatex, 102 Bankr. at 414.) We agree with Allstate, that the circuit court has for several years been intimately familiar with the course of the prior proceedings in this case which began in 1978. This reimbursement action is an outgrowth of that 1978 case; thus, there are not a “number of uncoordinated proceedings in different courts.” The fact that there may be potential claims at some future date does not require that International’s policy proceeds automatically become property of the estate and subject to the stay. In fact, Amatex indicates that Ray-mark does not have any property interest in International’s insurance policy. It also should be mentioned that International’s position throughout this protracted litigation has been that it does not owe Raymark any defense costs or claim expenses under its policy. International’s motion for a stay on the basis that its policy is part of Ray-mark’s estate is clearly contrary to this steadfastly held position and is self-serving. We hold that the circuit court did not abuse its discretion by denying to impose the stay as to International.

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

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE DiVITO

text:
    FRANK LARKIN, d/b/a North Shore Movers, Plaintiff-Appellee and Cross-Appellant, v. ALFRED SANELLI, Defendant-Appellant and Cross-Appellee (Karol Pavelt, Defendant and Cross-Appellant).
    First District (2nd Division)
    Nos. 1—88—2593, 1—88—2594 cons.
    Opinion filed May 7, 1991.
    Rehearing denied May 30, 1991.

      William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Jerold S. Rawson & Associates, of Northbrook (D. Kendall Griffith and Robert G. Black, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Frank Larkin, d/b/a North Shore Movers (plaintiff), brought an action for breach of contract against defendants Alfred Sanelli (Sanelli) and Karol Pavelt (Pavelt) (jointly, defendants). Following a bench trial, the court entered judgment for plaintiff against Sanelli in the amount of $6,200 plus attorney fees and costs; the court also entered judgment for Pavelt against plaintiff.

Both Sanelli and plaintiff appeal. Sanelli contends that the contracts were void and unenforceable because they were violative of the statutory prohibition concerning contracts for the storage of goods; the trial court erred in dismissing his affirmative defenses asserting the illegality of the contracts; the contracts, even if not void, created a common law bailment, concerning which plaintiff breached his duty of care; the trial court erred in dismissing his counterclaim for breach of duty under a common law bailment; and, the trial court erred in awarding attorney fees. In his cross-appeal, plaintiff contends that the trial court erred in not entering judgment for plaintiff in his claim against Pavelt and that the damages awarded by the trial court were insufficient and contrary to the manifest weight of the evidence.

The evidence elicited at trial was as follows. On April 16, 1984, Glenview State Bank (the bank) hired plaintiff to remove Sanelli’s possessions from his home in Metawa, Illinois, pursuant to a court-ordered eviction. The bank agreed to pay for the move and for the first month’s storage of the removed goods. Since plaintiff did not have a warehouse, arrangements were made with other storage facilities. Household goods and other personal items were to be stored, at Storage of the North Shore, a self-storage company. Tools and items from Sanelli’s garage not suitable for storage with the household goods were to be placed in a storage trailer leased from EWL Trucking and parked at North Side International.

All arrangements were made in the name of plaintiff, since Sanelli had no credit history with any of the storage companies. Plaintiff was required to make payments for the storage of Sanelli’s goods.

On April 17, 1984, the day of the move, plaintiff dispatched several men to Sanelli’s residence to proceed with the eviction and the transfer of his possessions to the storage sites. A bill of lading was issued which itemized the moving expenses. The parties dispute what occurred during the eviction.

Richard Palmquist, plaintiff’s employee, testified that he repeatedly attempted to explain the storage charges to Sanelli, but that Sanelli walked away and told him to talk to his daughter, Karol Pavelt, and to give the bill of lading to her. Palmquist stated that he had a conversation with Pavelt when he gave her the bill to sign and that the only other person involved in that conversation was Steve Musgrove, a representative of the bank. Palmquist discussed the move and storage with Pavelt, explaining that someone had to take care of the billing. Palmquist testified that a second bill of lading was signed by Pavelt that day. Pursuant to this bill of lading, plaintiff was to be reimbursed $190 per month for storage of the household goods and $200 per month for the leasing and the parking of the trailer.

Pavelt testified that it was Steve Klaus, another employee of plaintiff, who approached her regarding the storage bill. He allegedly told her that she had to sign the bill or everything would be removed from the trailer and put in the street. Though Pavelt told him that she was not financially responsible for what was being done, Klaus told her that her signing of the document did not mean that she was financially responsible.

Sanelli’s goods remained in storage through September 1985. When further discussions occurred between Sanelli and plaintiff in October 1985, Sanelli had made only one payment of $700. During the October conversations, Sanelli asked plaintiff to continue to “carry him” on his account. Sanelli stated that he had a pending lawsuit against the bank and that he would repay plaintiff from the settlement proceeds. Thereafter, an agreement was reached whereby plaintiff was to continue to make payments on Sanelli’s behalf, and the total monthly storage fee was raised from $390 to $440.

On October 15, 1985, Sanelli and plaintiff met to reach a final settlement of Sanelli’s account. They agreed that plaintiff would transfer title of a trailer to Sanelli for $1,500 and that plaintiff would transfer into the purchased trailer all of Sanelli’s household items from self-storage and all his equipment from the leased trailer. All goods remaining in Pavelt’s house were also to be moved into the trailer. Based upon the moving charges of $500, the accumulated storage cost of $4,000, an additional miscellaneous charge of $100, and the $1,500 trailer cost, Sanelli agreed to pay plaintiff $6,100. Sanelli paid $3,000 that day, leaving a $3,100 balance to be paid when the move was completed.

On October 17, 1985, plaintiff began the move; however, Sanelli halted it because he believed the goods in the leased trailer were damaged. Sanelli subsequently refused to pay the remaining balance due on the agreement. The goods were placed back into' storage, with storage costs continuing.

On January 17, 1986, plaintiff filed a two-count complaint seeking monetary damages for breach of contract against Sanelli and Pavelt, a permanent injunction preventing the transfer of title of the trailer sold to Sanelli, and recovery of attorney fees. On February 13, 1986, the trial court issued a preliminary injunction, enjoining defendants from selling or removing items from the storage trailers, the one which Sanelli was to purchase and the one which was leased, located on North Side International’s premises.

Defendants answered and later filed a second amended answer with four affirmative defenses and three counterclaims. Pursuant to plaintiff’s motion, the trial court struck the second amended answer and all counterclaims. The court further granted plaintiff’s motion to strike the first three affirmative defenses, but denied his motion regarding the fourth affirmative defense.

Defendants then filed a third amended answer along with the one affirmative defense which the court had not stricken. No other pleadings were filed; the case went to trial in this posture.

Following trial, judgment was entered in favor of plaintiff and against Sanelli in the amount of $6,200, despite a stipulation by the parties that the damages amounted to $12,820. Judgment was also entered in favor of Pavelt. Later, the court granted plaintiff’s petition for attorney fees against Sanelli in the amount of $9,500 plus costs of $154.02. These appeals followed.

I

Sanelli initially contends that the contracts were void and unenforceable because they violated the Personal Property Storage Act (Ill. Rev. Stat. 1987, ch. 111⅔, par. 119 et seq.). Plaintiff responds that since this affirmative defense had been stricken by the court in Sanelli’s second amended answer, and since Sanelli thereafter filed a third amended answer without repleading or giving any indication that he intended to preserve this argument, he has effectively waived this defense.

Section 2 — 613(d) of the Illinois Code of Civil Procedure establishes that a party seeking to avoid the legal effect of or defeat the cause of action set forth in the complaint must assert any ground or defense, whether affirmative or not, in the answer or reply. Ill. Rev. Stat. 1987, ch. 110, par. 2—613(d).

Moreover, Illinois courts have consistently held that a party who files an amended pleading waives any objection to the trial court’s ruling on the former pleadings. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125; Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 277 N.E.2d 748; Bowman v. County of Lake (1963), 29 Ill. 2d 268, 193 N.E.2d 833.) Although our research does not disclose any cases which deal precisely with waiver as it applies to amended answers, “answers” are “pleadings” and, therefore, the references to “pleadings” in the cases cited are applicable here. Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn. Bowman, 29 Ill. 2d at 272.

Such is the situation in the case at bar. When the trial court dismissed Sanelli’s second amended answer, counterclaims, and three of the four affirmative defenses, it granted him leave to file an amended pleading. Sanelli then had the opportunity to replead his allegation pursuant to the Personal Property Storage Act or at least to refer to the prior pleading. He did neither and thus cannot now appeal the dismissal of the earlier pleading.

Sanelli’s reliance on Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 537 N.E.2d 823, is misplaced. In that case, the later pleadings made reference to and incorporated the earlier pleadings which had been stricken. Because there was no such incorporation in this case, Arnold is inapplicable.

For the foregoing reasons, we conclude that Sanelli has also failed to adequately preserve several of the issues he presents here. Because his third amended answer did not assert the illegality of the contracts or the creation of a common law bailment, we will not address issues arising from those allegations.

II

Sanelli maintains that plaintiff was not entitled to collect attorney fees. Plaintiff responds that Sanelli has waived this issue by not objecting at trial and that, even if the issue is not waived, the contracts provide for his collection of attorney fees.

While it is true that Sanelli did not object to the award of attorney fees at trial, the circumstances surrounding the award are unusual and thus require consideration. The trial court entered an order awarding attorney fees to plaintiff after a telephone conference with defense counsel. Though the record does not disclose the specifics of that conversation, the order states:

“This matter coming to be heard upon Plaintiff’s Petition for attorney fees, Due Notice having been served upon Counsel for Defendant, Counsel for Defendant having failed to appear, but representing to the Court by telephone that counsel had no objection to Plaintiff’s Petition for fees, The Defendant, Alfred Sanelli, having appeared in open Court and having been afforded opportunity to be heard, Defendant having had a telephone conversation with his legal counsel, Mr. James Malloy, in a telephone conference from chambers and having been advised that counsel had withdrawn, it is hereby ordered ***.”

In addition to this peculiar language, there is nothing in either bill of lading which clearly provides for attorney fees in this type of action. Paragraph 10 of each bill of lading provides as follows:

“Sec. 10. Collection of all fees are [sic] subject to Illinois Commerce Commission and/or Interstate Commerce Commission Regulations. And to secure payment of the amount due as aforesaid, the undersigned and each of them does hereby, jointly, severally authorize any attorney of any Court of Record to appear for the undersigned or any of them in any such Court in term time or vacation, at any time hereafter, and confess judgment without process against the undersigned in favor of the payee or the holder of this contract for such amount as may appear to be unpaid or owing hereon, together with costs and reasonable attorneys fees and to consent to immediate execution upon any such judgment hereby ratifying and confirming all that said attorney may do by virtue hereof.”

There has been no confession of judgment in this case. Moreover, application of the aforementioned provision to a case not involving confession of judgment is not warranted. It is a general principle of contract law that an ambiguous provision in a contract will be construed against the party who prepared the contract and who chose the words used. Brown v. City of Pekin (1984), 129 Ill. App. 3d 46, 49, 472 N.E.2d 77, quoting Des Plaines Motor Sales, Inc. v. Whetzal (1965), 58 Ill. App. 2d 143, 306 N.E.2d 806.

Awarding attorney fees and the proportion to be paid are within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872.) However, because there is neither a statutory nor a contractual basis for attorney fees in this case, we find that the trial court abused its discretion in awarding such fees to plaintiff. We therefore reverse that portion of the trial court’s order.

Ill

Plaintiff contends in his cross-appeal that the trial court erred in not entering judgment against Pavelt. Pavelt has neither appeared nor filed a brief.

A reviewing court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Century 21 Castles by King, Ltd. v. National Bank (1988), 170 Ill. App. 3d 544, 524 N.E.2d 1222.) Where the judgment of the trial court is not accompanied by findings of fact, the presumption is that the trial court found all issues and controverted facts in favor of the prevailing party. Century 21, 170 Ill. App. 3d at 549.

The record clearly demonstrates that the evidence at trial was conflicting. Pavelt testified that she was told that her signing of the bill of lading did not mean that she was financially responsible, contrary to Richard Palmquist’s testimony. The trial court did not make findings of fact in its order in favor of Pavelt. It may have found Pavelt’s testimony to be more credible than Palmquist’s, or that Pavelt acted merely as an agent for Sanelli and not in her own individual capacity. Because either conclusion is plausible, we are unable to say that the court’s ruling was against the manifest weight of the evidence.

IV

Plaintiff also contends in his cross-appeal that the damages awarded to him were contrary to the manifest weight of the evidence. He argues that he is entitled to $14,900, which is equal to the stipulated amount plus $5,780 in damages from May 1984 through October 1985 minus the $3,700 in payments already made by Sanelli. Alternatively, he argues that he is entitled to at least $9,120, which is the stipulated amount minus Sanelli’s payments. He also asserts that in either case, he is also entitled to statutory post-judgment interest.

A reviewing court may not disturb a trial court’s finding as to damages unless that finding is against the manifest weight of the evidence. (Dale v. Luhr Brothers, Inc. (1987), 158 Ill. App. 3d 402, 511 N.E.2d 933.) To uphold a contention that a damage award is contrary to the manifest weight, it must be found that the trial court ignored the evidence, or that its measure of damages was erroneous as a matter of law. MBC, Inc. v. Space Center Minnesota, Inc. (1988), 177 Ill. App. 3d 226, 532 N.E.2d 255.

The order entered by the trial court awarding plaintiff $6,200 in damages offers no explanation as to how that figure was reached. Therefore, it is not clear whether the trial court found that plaintiff proved $5,780 in damages from May 1984 through October 1985. Furthermore, it appears from the record that the $5,780 may have been included in the stipulated amount. Sanelli urges that because the record is insufficient as to the reasons underlying the award, it cannot be said that the court’s finding was manifestly erroneous.

It is undisputed that the parties stipulated to $12,820 in damages and that Sanelli made payments totalling $3,700. The trial court appears to have ignored this evidence. Therefore, we remand the case to the circuit court with directions to increase the damages award to $9,120 plus statutory post-judgment interest. We have reviewed the supplemental filings submitted by the parties and find that they do not affect this result.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded to the circuit court with directions consistent with this opinion.

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

SCARIANO, P.J., and McNULTY, J., concur.

      Plaintiff’s brief states that the stipulated amount was $12,820, but that it was incorrectly read into the record as $12,880.


author: PRESIDING JUSTICE SCARIANO

text:
    PHYLLIS C. KINZER, a Taxpayer on Behalf of and for the Benefit of the City of Chicago, Plaintiff-Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Appellee.
    First District (2nd Division)
    No. 1—89—2885
    Opinion filed May 7, 1991.

      Robert S. Atkins & Associates, of Chicago (Robert S. Atkins and Robert E. Williams, of counsel), for appellant.
    Edward P. McNeela, of McNeela & Griffin, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Phyllis Kinzer appeals from that part of the dismissal of her suit against Fidelity and Deposit Company of Maryland (Fidelity) in which she claimed that Fidelity was liable to the City of Chicago (City) pursuant to a “Public Employees Blanket Bond” (bond) for losses sustained by the City as the result of certain actions taken by former City Comptroller Daniel Grim. The circuit court denied Kinzer’s, but granted Fidelity’s, motion for partial summary judgment, holding that because Grim was exempt from liability under the common law doctrine of public official immunity, and because the bond was one in which it was a surety for Grim, Fidelity was likewise not liable for his actions. Kinzer contends that Fidelity was not a surety for Grim and that therefore it could not avail itself of Grim’s immunity as a defense.

The circuit court’s judgment related to count II of Kinzer’s “Verified Fourth Amended Complaint,” filed on October 14, 1985, the essential allegations of which we summarize as follows.

Grim and other City officials signed several contracts with Festivals, Inc. (Festivals), pursuant to which Festivals agreed to produce a series of events for the City during 1980-83. Grim, while City comptroller, signed two of these contracts, which obliged Festivals to produce five events during the period of October 1980 to October 1981, and which authorized Festivals to negotiate agreements on the City’s behalf with suppliers of goods and services for these events. Festivals exercised this authority.

Festivals was paid from an account designated “Fund 666,” from which money was also drawn to pay for other events sponsored by the Mayor’s Office of Special Events. This account received some of its funds as the result of transfers from “Fund 355,” the Hotel Operator’s Tax Fund, into which there were deposited all receipts from the City’s hotel operator’s tax; the remainder of its funds were derived from profits earned from the various festivals and events. Monies withdrawn from Fund 355 were not repaid to it when the events earned a profit.

The Chicago City Council (City Council), however, never appropriated money to Fund 666, nor did it appropriate monies to be spent in fulfilling the contracts with Festivals. In 1983, after Grim had left office, the acting city comptroller suspended expenditures from Fund 666. By that time, over $28.1 million had been spent for these festivals and other events without any appropriation having been made therefor by the City Council, and the City is alleged to have suffered a net loss of over $7 million.

The bond, which was entered into between Fidelity and the City in 1977, contains four “Insuring Agreements.” The third and fourth of these agreements both require, in return for premiums paid by the City, that Fidelity indemnify the City up to stated limits, which are different for each “Insuring Agreement,” for:

“Loss sustained by the Insured [the City] through the failure of any of the Employees [alleged by Kinzer to include Grim], acting alone or in collusion with others, to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment ***.”

The circuit court, on August 1, 1986, denied Kinzer’s motions for a declaratory judgment and for a determination of Grim’s liability, postponed judgment on the liability of the other City officials involved, of Fidelity and of USF & G, and granted Grim’s motion to dismiss the claims against him. This court reversed (Kinzer v. City of Chicago (1988), 169 Ill. App. 3d 447), holding in part that the City and

Kinzer originally sought summary judgment on count I of her complaint against the City, seeking to void the contracts between Festivals and the City and a declaration that expenditures made pursuant to the contracts or otherwise made from Fund 666 violated section 8 — 1—7 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1985, ch. 24, par. 8 — 1—7), which prohibits the making of contracts or the incurring of expenses by municipal authorities without a prior appropriation. Kinzer also sought partial summary judgment with respect to count II on the issue of the liability to the City, for breach of fiduciary duty, of Grim and other City officials who had signed the contracts, as well as of the liability of Fidelity on its bond and of United States Fidelity and Guaranty Company (USF & G), which had bonded other City officials who were alleged to have also signed the contracts with Festival. Grim filed a cross-motion for summary judgment on the issue of his liability for any losses the City had incurred. Grim violated section 8 — 1—7 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 8—1—7) by entering into the contracts and expending money for the festivals and events without having appropriations made by the City Council, and that Grim was strictly liable for any of the resulting losses he caused to the City. The Illinois Supreme Court, in Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, affirmed our judgment that the expenditures made by Grim violated section 8 — 1—7 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 8—1—7), but exempted Grim from liability as to any resulting losses to the City:

“Illinois recognizes the common law public official immunity doctrine ***. [This] doctrine provides that ‘a public officer is immune from individual liability for the performance of discretionary duties in good faith.’ ([People ex rel. Scott v.J Briceland (1976), 65 Ill. 2d [485,] 502.) Although the expenditures made by Grim violated section 8 — 1—7 of the Code, he had no reason to believe that these expenditures were illegal ***. *** Grim’s official conduct in entering into contracts, incurring expenses and charging these expenditures to Fund 666 clearly fall within the boundaries of the common law public official immunity doctrine.” 128 Ill. 2d at 445-46.

Kinzer then renewed her motion for partial summary judgment as to Fidelity’s liability on the bond. Fidelity filed a cross-motion for summary judgment on its liability for Grim’s actions. On October 23, 1989, the circuit court denied Kinzer’s motion and granted Fidelity’s. Kinzer appeals.

Section 2—1005(c) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c)) empowers a court to render summary judgment when “there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law.” Kinzer does not allege the existence of any genuine issues of material fact, but rather, contests the legal propriety of the circuit court’s judgment that the bond protects Fidelity from liability for losses caused by Grim simply because he enjoys personal immunity for his acts. Accordingly, we review the order of the circuit court in light of the standard that, “[t]he construction, interpretation, and legal effect of a contract are questions of law [which may] be determined by *** a reviewing court *** independently of the circuit court’s determination.” Mitchell v. Jewel Food Stores (1989), 189 Ill. App. 3d 450, 459, rev’d on other grounds (1990), 142 Ill. 2d 152.

Fidelity argues that it is a surety for Grim and that the language of the bond clearly shows that its liability is predicated on Grim’s. We disagree. The bond, as noted above, imposes liability on Fidelity for losses to the City when an employee fails “to perform faithfully his duties or to account properly for all monies and property received by virtue of his position or employment.” Fidelity relies upon Grim’s “good faith” immunity from liability for having violated section 8 — 1—7 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 8—1—7) (Kinzer, 128 Ill. 2d at 445-46), to show that he did not fail “to perform faithfully his duties.” However, Fidelity ignores the remaining part of that clause, which imposes liability on it for Grim’s “failure *** to account properly for all monies and property received by virtue of his position or employment.” Grim, by spending public moneys through the use of Fund 666, a device which permitted bypassing of the need to secure the necessary authority for such expenditures, clearly failed “to account properly for all monies and property received by virtue of his position or employment,” even if “he had no reason to believe that these expenditures were illegal.” (Kinzer, 128 Ill. 2d at 445.) We fail to perceive what Grim’s state of mind in so doing, i.e., his “good faith,” had to do with whether he “properly” accounted for funds under his control. Therefore, insofar as the language of the contract is concerned, Grim’s “good faith” is not relevant to Fidelity’s liability under the bond; nor do we find any ambiguity in the bond which would require a determination of whether the parties intended that Fidelity’s liability be predicated upon Grim’s.

Moreover, the bond does not elsewhere predicate Fidelity’s liability on Grim’s. Fidelity, which pursuant to the bond, “agrees *** to indemnify the Obligee [City] for the use and benefit of the Insured [City] for: *** Loss caused to the Insured,” is neither made “liable for a debt,” nor is it required to “perform the obligation of the principal [in this case, Grim],” as in Erickson v. Fitzgerald (1950), 342 Ill. App. 223, 230-31 (defining a surety). (See also Vee See Construction Co. v. Luckett (1981), 102 Ill. App. 3d 444, 447.) The bond, in essence, imposes a greater scope of liability on Fidelity for “Loss caused to the Insured [by various actions of certain employees]” than it would have if, in addition to the requirement of a loss, it also required that the employee causing the loss be in debt or otherwise obligated to the City.

While we recognize that Fidelity is described throughout the bond as the “surety,” that one is so described does not ipso facto determine that the liability intended to be created was that of a surety. Rather, the nature of the obligation is the determining element. (Vermont Marble Co. v. Bayne (1934), 356 Ill. 127, 131. See also Reserve Insurance Co. v. General Insurance Co. of America (1979), 77 Ill. App. 3d 272, 279 (bond which described the obligor as a “surety,” but which required it to indemnify an insurance company against losses resulting from the dishonest actions of employees, was regarded as an insurance contract rather than a suretyship).) In this case, the nature of the obligation created by the language of the bond as set forth above does not create a suretyship.

For the foregoing reasons, the circuit court’s grant of summary judgment in favor of Fidelity is reversed, and its denial of Kinzer’s motion for summary judgment is also reversed, but only for the reason that the trial court’s orders were predicated upon Fidelity’s being a “surety” for Grim; accordingly, this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE GORDON

text:
    MICHAEL NOLAND, Plaintiff-Appellant, v. VICTOR STEINER et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—3499
    Opinion filed May 10, 1991.

      Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    Donald N. Hoppe and Thomas J. Koch, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

On May 17, 1985, plaintiff Michael Noland filed a three-count complaint in the circuit court of Cook County against Victor Steiner, M.D. (Dr. Steiner), George Nahra, M.D. (Dr. Nahra), and Good Shepherd Hospital, Barrington, Illinois (the hospital). The complaint alleged medical malpractice by the defendants in their care and treatment of plaintiff following a hip injury. Dr. Steiner and Dr. Nahra filed separate motions for summary judgment, which were granted by Judge Dean J. Sodaro in orders dated October 21, 1988. On November 18, 1988, plaintiff filed a notice of appeal from Judge Sodaro’s order “granting Defendant, George Nahra, M.D.’s Motion for Summary Judgment.” Plaintiff has not challenged the trial court’s order granting summary judgment to Dr. Steiner. Neither Dr. Steiner nor the hospital is a party to this appeal.

The sole issue presented for review is whether the trial court erred in finding that Dr. Nahra was entitled to summary judgment as a matter of law because plaintiff failed to file his lawsuit within the applicable statute of limitation. (Ill. Rev. Stat. 1985, ch. 110, par. 13—212.) The statute provides that an action for medical malpractice must be brought within two years after plaintiff knew or should have known of the injury and within four years of the date of the alleged malpractice. (Ill. Rev. Stat. 1985, ch. 110, par. 13—212; Skoglund v. Blankenship (1985), 134 Ill. App. 3d 628, 630, 481 N.E.2d 47, 49.) The statute begins to run when the plaintiff knows or reasonably should know that the injury was wrongfully caused. (Skoglund, 134 Ill. App. 3d at 631, 481 N.E.2d at 49.) If the time that plaintiff knew or should have known of the injury and that it was wrongfully caused is a disputed question, it is to be resolved by the trier of fact. Skoglund, 134 Ill. App. 3d at 631, 481 N.E.2d at 49; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868.

In the case at bar, Dr. Nahra performed the allegedly negligent surgery on plaintiff’s hip on February 12, 1982. Plaintiff contends that the pleadings, depositions, and other documents on file raise an issue of material fact as to whether he discovered that his condition was “wrongfully caused” by Dr. Nahra’s surgical procedures no earlier than May 18, 1983, a date within two years of the date he filed suit, or on May 16, 1983, more than two years before the filing date. He argues that the conflicting evidence as to the date of discovery precludes summary judgment for defendant as a matter of law. Dr. Nahra maintains that the trial judge correctly determined that no issue of material fact remained as to whether plaintiff’s lawsuit was barred by the statute of limitation. He asserts that Noland’s own sworn statements, given at his deposition, conclusively establish that he discovered the “wrongful causation” of his condition no later than May 16, 1983, when he first consulted with an orthopedic specialist who later performed corrective surgery on the hip. Defendant further asserts that plaintiff’s clear, repeated, and unequivocal statements under oath constitute judicial admissions which conclusively bind him, and that the trial court correctly ruled that later inconsistent statements could not effectively contradict these admissions. Thus, it is defendant’s position that summary judgment in his favor was properly entered.

We find it unnecessary to address the merits of this appeal because we have determined that no final and appealable order was entered by the trial court. Although neither party has raised the issue, we have a duty to consider our jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252, 1253; Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764, 765. ) Initially, we note that plaintiff’s notice of appeal asserts no basis for jurisdiction, and that plaintiff has failed to comply with Supreme Court Rule 341, which requires a statement in his appellate brief, explaining the jurisdictional basis for appeal. (134 Ill. 2d R. 341(e)(4)(ii).) Plaintiff has thereby deprived us of the ability to consider whatever theory he may have as to the appealability of the trial court’s order. (Voiland, 182 Ill. App. 3d at 334, 538 N.E.2d at 766. ) We further note that although both parties requested an oral argument in this case, and oral arguments were scheduled for February 26, 1991, no one appeared on behalf of the plaintiff. We thereupon took the case under advisement on the basis of the briefs alone.

Supreme Court Rule 304(a) provides that in an action involving multiple parties or multiple claims for relief, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court makes a special finding that there is no just reason for delaying enforcement or appeal. (107 Ill. 2d R. 304(a).) The rule further provides that “[i]n the absence of such a finding, any judgment that adjudicates *** the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (107 Ill. 2d R. 304(a).) The purpose of Rule 304(a) is “ ‘to discourage piecemeal appeals in the absence of just reason, and to remove the uncertainty which exists when a final judgment is entered on less than all the matters in the controversy.’ ” (Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 695, 508 N.E.2d 324, 326, quoting Mares v. Metzler (1980), 87 Ill. App. 3d 881, 884, 409 N.E.2d 447, 450; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 630, 373 N.E.2d 416, 420.) The case at bar is a multiparty suit involving three defendants: Dr. Nahra, Dr. Steiner, and Good Shepherd Hospital. Therefore, the order granting summary judgment to Dr. Nahra is appealable only if the requirements of Rule 304(a) have been met.

The order from which plaintiff has taken this appeal is dated October 21,1988, and states as follows:

“This cause coming on defendants [sic] motion for summary judgment with due notice and the court fully advised it is ordered that
1. Defendant Dr. Steiner’s motion for summary judgment is granted.
2. Defendant Dr. Nahra’s motion for summary judgment is granted.
3. Plaintiff is granted leave to file a reply to Defendant Nahra’s affirmative defense on or before November 18, 1988.”

This order, which disposed of only two of the three defendants joined in the case, contained no special finding relating to its enforcement on appeal.

Also on October 21, 1988, the trial court issued a separate order, which provided:

“THIS CAUSE, coming on to be heard upon the motion of the defendant, VICTOR STEINER, M.D. due notice having been given, and the Court being fully advised in the premises;
IT IS HEREBY ORDERED:
DR. STEINER’s motion for summary judgment is granted. The court makes this ruling based on part II of Dr. Steiner’s motion for summary judgment which is based on affidavits of Dr. Steiner and Dr. Thompson that there was no violation of the standard of care by Dr. Steiner.”

Likewise, this order includes no special finding stating that there was no just reason to delay enforcement or appeal.

Although plaintiff filed his notice of appeal within 30 days of October 21, 1988, it is clear that neither order of that date was an appealable order, and that both orders remained subject to revision until such time as a final disposition had been made as to the liability of all the defendants, including the hospital. Therefore, this court lacks jurisdiction to review the trial court’s order granting summary judgment to Dr. Nahra.

Moreover, nothing in the record before us establishes that the trial judge acted at some later time to make his prior summary judgment orders final and appealable. On December 6, 1988, Dr. Steiner moved the court “to make final and appealable the Order entered on October 21, 1988 which granted summary judgment on his behalf.” It should be noted that while there is an indication that the trial court did later enter the requisite Rule 304(a) finding with respect to the dismissal of Dr. Steiner, there is no indication that the trial court ever made such a finding with respect to Dr. Nahra.

More importantly, although Rule 304(a) provides that the special finding “may be made at the time of entry of the judgment or thereafter on the court’s own motion or on motion of any party,” the 30-day period for filing a notice of appeal runs from the date of entry of the required finding, which is treated as the date of entry of final judgment. (Emphasis added.) (107 Ill. 2d 304(a); 134 Ill. 2d R. 304(a) (amended November 21, 1988, eff. Jan. 1, 1989).) Thus, even if such a finding would have been later entered with respect to the order granting Dr. Nahra’s motion for summary judgment, only a notice of appeal filed within 30 days following entry of that special finding would be effective to invoke this court’s jurisdiction. See Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 1020, 380 N.E.2d 835, 841; In re Estate of Pruett (1971), 133 Ill. App. 2d 499, 501, 269 N.E.2d 356, 358.

Simply stated, plaintiff’s notice of appeal, filed in the absence of a special finding as required by Rule 304(a), was premature. It is well settled that the filing of a notice of appeal prematurely from an order or judgment which is not yet a final and appealable order neither deprives the trial court of jurisdiction to proceed with the case nor vests the appellate court with jurisdiction to consider it. (Dwyer v. Graham (1982), 110 Ill. App. 3d 316, 442 N.E.2d 298, rev’d on other grounds (1983), 99 Ill. 2d 205, 457 N.E.2d 1239; King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 400 N.E.2d 562; Myers v. Myers (1977), 51 Ill. App. 3d 830, 366 N.E.2d 1114.) In the absence of the requisite Rule 304(a) finding, the trial court’s order of October 21, 1988, granting summary judgment to Dr. Nahra, was nonappealable pending disposition of all remaining claims, rights, and liabilities of the parties, including the defendant hospital. Moreover, even if those claims had been subsequently resolved in the trial court, plaintiff could not invoke this court’s jurisdiction in reliance on his premature notice of appeal from an order which at the time was not ■ appealable. See E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 547-49, 427 N.E.2d 181, 184-86; King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 901-02, 400 N.E.2d 562, 563-64; Blan chette v. Martell (1977), 52 Ill. App. 3d 1029, 1031, 368 N.E.2d 458, 459-60.

Accordingly, for the reasons stated, a final and appealable order has not been presented for disposition by this court, and plaintiff’s appeal must be dismissed.

Appeal dismissed.

LORENZ, P.J., and MURRAY, J., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD LYONS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—2791
    Opinion filed May 10, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Thomas E Finegan, Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kevin Sweeney, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a jury convicted the defendant of first degree murder, he was sentenced to 26 years’ imprisonment. He contends that the second degree murder statute is unconstitutional and that he was denied effective assistance of counsel.

Luther Washington testified that on July 12, 1987, he had engaged in a fist fight with the defendant. During the course of the fight, another individual had hit the defendant with a stick. During the late morning of the following day, Washington was driving down Gladys Street in Chicago. He and his passenger, Jimmy McCrary, stopped to talk to Derrick and William Friday. As they were talking, Washington observed the defendant walking down the street toward Washington’s car. The defendant had a gun in his hand. As he approached the car, the defendant fired a shot. Washington backed his car up for a short distance but was unable to proceed any farther because of the traffic behind him. Washington then ducked down in the car and drove forward. He heard three or four additional shots. His passenger, McCrary, turned completely around to face the rear of the car and attempted to crouch behind the car door. The defendant fired another shot as Washington drove by. Mc-Crary exclaimed that he had been shot.

Washington testified that although he had a .25 caliber weapon under the seat of his car, he never touched the weapon at any time. Immediately following the shooting, he drove to the emergency room of Bethany Hospital and placed McCrary’s body into a wheelchair. He left his car parked on the street and called the hospital and the police. He told the police that the defendant, whom he had known for 20 years, had shot McCrary.

By stipulation it was established that McCrary’s death was caused by a gunshot wound to the left back which penetrated the posterior left ventricle of his heart.

Dorothy Freeman testified that on the day of the shooting she lived on West Gladys. She was speaking on the telephone when she heard a gunshot. She ran to the front door and observed the defendant walking down the street toward a car driven by Luther Washington. The defendant had a long-barrelled handgun which he fired at the car. The passenger in the car was slumped in the seat. She did not see anyone in the car display a weapon.

Altee Ferguson Pettus testified that on the day of the shooting she was at home watching television. She heard a shot and went to the front door. She saw the defendant walking eastbound on Gladys, holding a revolver. As the car driven by Washington backed up, the defendant fired the revolver. The car proceeded to move slowly forward. As it did so, the defendant stood in front of the car and fired again.

Georgia Caldwell testified that she ran out the door after hearing a shot and observed a man whom she was unable to identify walking down the street. The man was shooting at a car driven by Luther Washington, whom she knew from the neighborhood. The only person she saw with a gun was the person who walked down the middle of the street.

Officer Faith Lambert testified that she observed bullet holes in Luther Washington’s car, which was parked approximately '50 feet from the door of the emergency room of Bethany Hospital. The front passenger side window had been shot out and there were pieces of glass in the car.

The defendant, who was 33 years old, testified that he was a long-time heroin user. He had previously purchased drugs from Luther Washington, whom he had known for years. On the day before the shooting, Washington and his friends beat the defendant because he had been criticizing the quality of the drugs which Washington was selling. The day following the beating, the defendant returned to the area to purchase drugs from another supplier. He had armed himself with a pistol that he had obtained from a friend. As he was walking east on Gladys he saw Washington’s car and someone standing next to it. As he crossed the street he heard two shots come from the driver’s side of Washington’s car. The defendant believed that the shots were directed at him. He began to back up across the street and then fired at Washington’s car. As the car came past him, he again fired at the car because he believed that Washington was going to shoot at him. He did not see a passenger in the car.

The defendant first argues that the second degree murder statute (Ill. Rev. Stat. 1989, ch. 38, par. 9— 2) is contrary to the Illinois and United States constitutions because it allegedly violates the equal protection, due process and separation of powers provisions of those constitutions.

The defendant’s claim of unconstitutionality on the basis of the due process, equal protection and separation of powers provisions of the Federal and Illinois constitutions has been decided contrary to the defendant’s position in two recent cases, People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373, and People v. Gore (1991), 212 Ill. App. 3d 984. The arguments made by the defendant here have been more than adequately discussed in those cases, and we need not repeat them. The defendant’s claim of unconstitutionality is rejected.

During a conference on jury instructions the defense attorney said that he wanted the jury to be instructed as to second degree murder but not with the Illinois Pattern Jury Instruction. (Illinois Pattern Jury Instructions, Criminal No. 7.06A (2d ed. Supp. 1989).) He objected to that instruction on the ground that it allegedly shifted the burden of proof to the defendant. Over the objection of the defense attorney, the judge insisted that he be permitted to talk to the defendant. The judge pointed out that the defendant “is going to be the one to actually make the final decision. And he is the one that is going to complain in a P.C. if this instruction is not given.” He told the defendant what the sentences could be if the defendant were found guilty of second degree murder. The judge said that he thought second degree murder was an appropriate instruction in the case and that he “would be willing to give it.” The following then occurred:

“THE COURT: You will not be able to say later on, Judge, [the defense attorney] goofed up on this case. He should have asked for a second degree murder instruction. You would also not be able to say, Judge, you goofed up in this case, you should have given a second degree murder instruction in this case. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you want to go for it, all or nothing?
THE DEFENDANT: All or nothing.
THE COURT: That’s what you want to do here?
THE DEFENDANT: Yes, sir.
DEFENSE ATTORNEY: Your honor, I would like the record to reflect that Mr. Lyons discussed his decision several days with me. I told him and I think his decision is based upon my advice.
He can correct me if I am wrong. But I advised him that if the burden of proof had not been changed and if you were not intending to enforce the laws as presently written, I would definitely request second degree murder, just as I would have requested the voluntary manslaughter instruction under the old law where the burden stays with the state.
But for the reasons stated in my memorandum of law in which I explained extensively to my client, I do not believe, that the State’s burden of proof on first degree murder can be segregated there and not shifted to the defendant where the existence of belief is common to both charges.
And I told them that that’s the only reason that I am advising that we go for all or nothing. And I explained the possible sentences to him. I think this is a horrible type of decision to make.
As a lawyer I am appalled by the current law, but I have fully explained it to Mr. Lyons because he is the person who is placed — .”

The defendant adhered to his decision and refused to request the second degree murder instruction.

The defendant now maintains that his attorney did not render effective assistance because he did not agree to the Illinois Pattern Jury Instruction. The colloquy between the judge, the defendant and the defendant’s attorney shows a clear example of a tactical decision made by the defense attorney with the eyes-open acquiescence of his client. The judge did everything he possibly could to advise the defendant. In our judgment, the defendant has waived any right to claim ineffective assistance of counsel.

The defendant concedes that his attorney “effectively presented his case, diligently investigated and interviewed witnesses and vigorously cross-examined the prosecution witnesses.” His alleged incompetence is his failure to be so prescient that he could foretell that reviewing courts would uphold the constitutionality of the second degree murder statute. That is not incompetence. Moreover, we do not believe that the defendant’s claim meets the requirements of People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347, which held that the inadequacy of a defendant’s trial counsel entitles him to a new trial if his counsel was actually incompetent and if the incompetence resulted in substantial prejudice to the defendant without which the result of his trial would probably have been different. Applying that principle to this case, we find that the defendant has failed to establish ineffective assistance of counsel. (Cf. People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.) In our judgment there is little or no likelihood that the result would have been different if the second degree murder instruction had been given.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI, RJ, and LaPORTA, J., concur.