author: JUSTICE HOWERTON

text:
      In re MARRIAGE OF LEOTA J. BURTON et al. (Burger, Fombelle, Baxter, Zachry & Rathbun, P.C., Petitioner-Appellant, v. Leota J. Burton, Respondent-Appellee).
    Fifth District
    No. 5 — 89—0693
    Opinion filed August 30, 1990.

      Burger, Fombelle, Zachry & Rathbun, RC., of Decatur (Norman J. Fombelle and Kent A. Rathbun, of counsel), for appellant.
    Phillip M. Kirby, of Mason City, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

In 1987, the circuit court of Shelby County entered a final order dissolving respondent’s marriage. That order did not reserve the determination of attorney fees.

More than two years later, respondent’s lawyers filed in that same dissolution case a petition for attorney fees and costs for both prejudgment and post-judgment legal services performed in respondent’s dissolution action.

Not wanting to revest the circuit court with jurisdiction as had been done in the case of In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594, respondent entered a special and limited appearance contesting jurisdiction.

The circuit court held that 30 days had expired from the date of the final order of dissolution and, therefore, it was without jurisdiction to award attorney fees.

Petitioner appeals. We affirm in part and, in part, reverse and remand.

A court that has subject matter jurisdiction of dissolution proceedings also has subject matter jurisdiction over attorney fees incurred as a result of those proceedings. Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 530 N.E.2d 584; Ill. Rev. Stat. 1987, ch. 40, par. 508(a).

That jurisdiction, however, continues only for 30 days after entry of final judgment, unless the judgment expressly reserves determination of attorney fees. See In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 502 N.E.2d 459; In re Marriage of Rifkin (1983), 114 Ill. App. 3d 655, 449 N.E.2d 173; Ill. Rev. Stat. 1987, ch. 40, par. 508; see also Bremer v. Bremer (1954), 4 Ill. 2d 190, 122 N.E.2d 794.

In this case, the petition for prejudgment attorney fees was filed more than 30 days after the final order. Therefore, the circuit court was without jurisdiction to entertain petitioner’s request for prejudgment attorney fees.

Respondent cites Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 530 N.E.2d 584, and argues that petitioner not only is barred from seeking attorney fees in this dissolution action, but also is barred from filing a separate breach of contract action against respondent. Petitioner argues the circuit court that heard the dissolution should have jurisdiction to determine attorney fees even though they were not reserved and notwithstanding that more than 30 days from the final order have gone by. Petitioner says this should be the result as a matter of policy, because any contrary result necessarily would cause a lawyer to have to bring an action for fees in every dissolution case before completion of the case, a result that will pit lawyer against client in every dissolution case. This argument is predicated on the Gitlin case standing for the expansive proposition suggested by petitioner. We do not accept this argument because we do not read Gitlin as broadly as does petitioner.

Gitlin must be read in historical context. Before the merger of law and equity, a court hearing a divorce case did not have subject matter jurisdiction to order a party to pay fees to his own lawyer; instead, the lawyer had to bring a separate action at law. (In re Petition of Neiman (1972), 8 Ill. App. 3d 454, 289 N.E.2d 715; Pressney v. Pressney (1950), 339 Ill. App. 371, 90 N.E.2d 119.) After law and equity were merged, it was held that a lawyer could request fees from his own client in the divorce proceeding itself. (Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 364 N.E.2d 327.) Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)) codifies this result. Therefore, at the time Gitlin was decided it was clear that a court, hearing an action under the Illinois Marriage and Dissolution of Marriage Act, had subject matter jurisdiction to determine the issue of attorney fees between a client and his own lawyer. Gitlin faced the question whether a court would take jurisdiction of the question of attorney fees, while another court had jurisdiction of the same issue because of the pendency of an action brought under the Act.

Gitlin is easily distinguishable from the case at bar. In Gitlin, as well as in the case of In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 502 N.E.2d 459, upon which the Gitlin court heavily drew, the attorney was attempting to sue the client in a separate breach of contract proceeding while the dissolution case still was pending. We do not believe that Gitlin should be read as enacting an outright bar to the pursuit of attorney fees in any forum other than a dissolution action. To read it so could cause it to become a sword aimed straight at the heart of attorney-client relationships.

For example, if an attorney can only file a petition for fees in the dissolution case to the exclusion of all other remedies, then the effect is that the attorney has a very short statute of limitations — 30 days after judgment.

And, that still is not the heart of the problem quixotically raised by petitioner.

What if client wants to appeal? Does the attorney file both the petition for fees and the notice of appeal together? If so, does the circuit court retain jurisdiction to determine fees? What does the attorney do when, 29 days after the issuance of an order, the client shows up wanting to appeal when the attorney has not yet filed the petition for fees? Or, what happens when that same client shows up on the twenty-ninth day and the lawyer has already filed his petition for fees? These questions do not bring easy answers. As a practical matter, if Gitlin is read the way that respondent suggests, it will force counsel into a position adverse to his client; read this way Gitlin is a sword rather than the vehicle of judicial economy that was intended. Gitlin is not to be read this way. To read Gitlin, as we do, as not barring a separate action for fees so long as the dissolution case no longer is pending avoids all this mischief.

The decision of the circuit court sustaining the special and limited appearance as to prejudgment legal services is affirmed.

Petitioner likewise appeals from the order sustaining the special and limited appearances as to post-judgment attorney fees. The circuit court based its ruling upon its interpretation that petitions for post-judgment fees must be filed within the 30 days following the rendering of the legal service. We do not agree with this interpretation.

Section 508(a) provides that attorney fees can be awarded “from time to time.” We see nothing in the Act that would cause a petition for fees to have to be filed within 30 days of the time the services were rendered.

It is likewise clear that the court has subject matter jurisdiction to allow post-judgment fees. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(2).) Hence, the question is whether the court has subject matter jurisdiction over the post-judgment fees, not whether the petition for fees was filed within 30 days of the time the services were rendered. In this case, since post-judgment matters were pending at the time the petition for post-judgment fees was filed, the circuit court had subject matter jurisdiction to determine post-judgment attorney fees.

In its order on post-judgment fees, the circuit court believed that attorney fees rendered in respondent’s ex-husband’s bankruptcy proceedings could not be recovered in the dissolution proceedings. Ordinarily, a court hearing dissolution proceedings does not have subject matter jurisdiction to award attorney fees rendered in any case other than the one proceeding before it. (In re Marriage of Birt (1987), 159 Ill. App. 3d 281, 512 N.E.2d 390.) Therefore, the circuit court did not have jurisdiction to award post-judgment attorney fees for work done by petitioners in the bankruptcy case.

Finally, however, a review of the file shows that whereas all post-judgment attorney fees were denied, perhaps (we cannot tell) some should have been allowed under the reasoning of this case. We, therefore, reverse and remand for the circuit court’s consideration of post-judgment fees that do not include the bankruptcy proceedings.

Affirmed in part; reversed and remanded in part.

WELCH and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    JAMES P. CLAYTON-EL, Plaintiff-Appellant, v. MICHAEL P. LANE et al., Defendants-Appellees.
    Fifth District
    No. 5 — 89—0059
    Opinion filed August 30, 1990.

      James P. Clayton-El, of Menard, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Following the July 11, 1988, stabbing and ultimate death of an inmate at the Menard Correctional Center, where petitioner was an inmate, petitioner was removed from the general prison population and confined to segregation pending an investigation into his involvement in the crime. The next day Clayton-El, a/k/a Carmichael Morrison, was given written notice that he was under investigative status for his possible involvement. On July 16, 1988, he was served with an investigative status report, notifying him that he was to remain under investigative status.

On August 11, 1988, a disciplinary report was served on ClaytonEl, charging him with violation of Illinois Department of Corrections (IDOC) Rule 102 — assaulting any person; IDOC Rule 104 — dangerous contraband; IDOC Rule 105 — dangerous disturbance; IDOC Rule 501— violating State or Federal law (armed violence, Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2); and murder (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1). The disciplinary report contained notice that Clayton-ETs confinement was continued for the safety of the institution. Clayton-El was subsequently transferred from Menard Correctional Center to Graham Correctional Center. After his transfer, Clayton-El appeared before the Graham Correctional Center Adjustment Committee. On August 18, 1988, an adjustment committee summary was completed. ClaytonEl was found guilty of the offenses charged in the disciplinary report. His statutory good time or good conduct credits were revoked for one year, he was ordered to segregation for one year, and he was demoted to “C” grade for one year.

Clayton-El filed a petition for writ of mandamus with the circuit court on September 29, 1988. He alleged that he was denied access to the prison law library and legal materials. He also alleged that he was not given notice of the charges against him and a hearing before the adjustment committee, in violation of his State and Federal constitutional rights, his rights under Illinois statutory law, and the rights conferred upon him by the Illinois Department of Corrections. Petitioner prayed that the court declare that his rights were violated, and enjoin defendants from detaining him in segregation and denying him access to the law library and legal materials. Defendants filed a motion to dismiss the petition. After a hearing, the circuit court granted defendants’ motion. The court’s record sheet entry of January 3, 1989, provides:

“The primary issue presented by Defendant’s Motion to Dismiss is whether the Petitioner in his Petition shows that he is or may be entitled to the relief requested. Petitioner relies primarily on Ch. 38, Sect. 1003 — 8—7(c), which requires a disciplinary hearing within 8 days of the infraction or its discovery, and on the related Department regulations. Even if Defendant had full knowledge of the offense within 8 days of its commission, the facts as plead [sic] by Petitioner do.not give rise to a denial of due process. In this case, Petitioner was promptly notified of the charges against him. Investigation was commenced immediately and a disciplinary report was filed in approximately 31 days. The hearing was held and the decision was rendered within 8 days of the disciplinary report. Even if the hearing was not held within the time required by statute, a proposition which is by no means certain, the case law cited by Defendant shows there is no due process violation. Furthermore, Petitioner requested a continuance of the hearing until the underlying criminal case was concluded. He cannot request a continuance and then complain that the hearing was not timely held. Motion to Dismiss is granted.”

Petitioner appeals from the court’s order.

We will first address Clayton-El’s argument that as a prisoner he has a protectable liberty interest not to be placed in segregation without due process. Prison officials have broad administrative and discretionary authority over the institutions they manage, and as long as the conditions to which the prisoner is subjected are within the sentence imposed upon him and are not otherwise violative of the Constitution, the due process clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. (Hewitt v. Helms (1983), 459 U.S. 460, 467-68, 74 L. Ed. 2d 675, 685, 103 S. Ct. 864, 869; Montanye v. Haymes (1976), 427 U.S. 236, 242, 49 L. Ed. 2d 466, 471, 96 S. Ct. 2543, 2547.) Although administrative segregation is the sort of confinement inmates should anticipate receiving at some point in their incarceration (Hewitt, 459 U.S. at 468, 74 L. Ed. 2d at 686, 103 S. Ct. at 870), petitioner contends that State statutory and regulatory measures confer a protectable liberty interest upon him which were not satisfied.

Clayton-El contends that the prison officials had knowledge of the offenses of which he was subsequently charged, on July 11, 1988, or at the very latest July 14, 1988, when prison officials allegedly attempted to have criminal charges instituted against him. He argues that assuming prison officials had knowledge of the alleged infractions on July 14, 1988, a disciplinary hearing was not held within eight days of that date, thereby denying him due process. He cites section 3 — 8—7(c) of the Unified Code of Corrections as authority:

“A written report of the infraction shall be filed with the chief administrative officer within 72 hours of the occurrence of the infraction or the discovery of it and such report shall be placed in the file of the institution or facility. No disciplinary proceeding shall be commenced more than 8 calendar days after the infraction or the discovery of it unless the committed person is unable or unavailable for any reason to participate in the disciplinary proceeding.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—7(c).

We do not agree with petitioner’s conclusion that the defendants had knowledge of petitioner’s alleged commission of the charged infractions on July 14, 1988. Even if the defendants attempted to have criminal proceedings instituted against petitioner by the State’s Attorney’s office on that date, we cannot conclude that defendants had sufficient knowledge of petitioner’s alleged commission of the infractions on July 14, 1988. The fact that criminal charges were not instituted against Clayton-El on that date indicates that sufficient information was not available at that time to charge Clayton-El with any crime. The notices served on him prior to August 11, 1988, were notices advising him that he was under investigative status. There is no indication that defendants had sufficient knowledge of Clayton-El’s alleged commission of infractions prior to the issuance of the disciplinary report on August 11,1988.

Even if we were to conclude that defendants had knowledge on July 14, 1988, of Clayton-El’s alleged commission of the infractions charged, we do not find that Clayton-El’s due process rights were denied. He cites sections 504.30 and 504.80 of the Illinois Department of Corrections rules as conferring the protectable liberty interest which he claims he was denied when defendants failed to commence disciplinary proceedings within eight days.

Section 3 — 6—3(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 6—3(c)) provides that the “Department of Corrections shall prescribe rules and regulations for revoking good conduct credit, or suspending or reducing the rate of accumulation thereof for specific rule violations, during imprisonment.” The IDOC has established rules pursuant to its statutory authority. The IDOC is bound to follow its own rules (Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 761, 417 N.E.2d 242, 244); therefore, we will examine whether the IDOC complied with the rules petitioner refers to.

IDOC Rule 504.30 prescribes the type of situation which calls for the preparation of a disciplinary report, and prescribes the information to be included in disciplinary reports. No reference is made as to how much time is allotted for filing a disciplinary report. Rule 504.80 describes the adjustment committee hearing procedures. The only provision in Rule 504.80 which prescribes an eight-day requirement reads:

“The Adjustment Committee hearing shall be convened but need not be concluded within eight calendar days after the commission of the offense or its discovery, unless the committed person has received a continuance or is unable to participate in the hearing.” (Illinois Department of Corrections Rule 504.80(a).)

This rule, like section 3 — 8—7(c) of the Unified Code of Corrections, requires that proceedings convene within eight days of the offense or its discovery. If we assume defendants had knowledge on July 14, 1988, of petitioner’s alleged commission of the infractions, there was a lapse of 35 days between July 14 and the day the adjustment committee hearing convened on August 18,1988.

While prisoners retain rights under the due process clause, this in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. There must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. (Wolff v. McDonnell (1974), 418 U.S. 539, 556, 41 L. Ed. 2d 935, 951, 94 S. Ct. 2963, 2975.) As already noted, administrative segregation is the sort of confinement inmates should anticipate receiving at some point in their incarceration. (Hewitt, 459 U.S. at 468, 74 L. Ed. 2d at 686, 103 S. Ct. at 870.) IDOC Rule 504.40 in fact provides that an inmate may be detained in segregation while an investigation is pending. Clayton-El has not alleged that he suffered any harm from being placed in segregation, and we find no facts which indicate that he was harmed. We note in particular that he did not lose any good conduct credit as a result of his placement under investigative status.

We find it significant that Clayton-El himself requested that disciplinary proceedings be continued pending final disposition of the criminal proceedings. Included in the record is a letter which defendants contend petitioner sent to the chairman and members of the adjustment committee at Menard Correctional Center. This letter is not dated, but it is alleged by the defendants that the letter was sent prior to the issuance of a disciplinary report which was served on petitioner August 11, 1988. Petitioner does not dispute that he sent the letter and that it was sent prior to August 11, 1988. In the letter petitioner writes, “I would be (am) requesting that this committee either suspend or hold in abeyance these [Institutional proceedings until a final disposition can be had in the criminal proceedings ***.” Although at some point a delay in commencing disciplinary proceedings might constitute a denial of due process, under the facts of this case no deprivation of due process occurred. See United States ex rel. Houston v. Warden, Stateville Correctional Center (7th Cir. 1981), 635 F.2d 656; Wolff, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.

Clayton-El also argues that he was denied due process because the disciplinary report issued August 11, 1988, did not adequately advise him of the charges. Clayton-El was served with investigative status reports on July 12, 1988, and July 16, 1988. Both of these notified him that he was “being placed on investigative status for his possible involvement in an assault and stabbing of another inmate which occurred on 9 Gallery of the West Cell House at approximately 8:05 a.m.” The August 11,1988, disciplinary report stated:

“Offense: *** No. 102 Assaulting Any Person, No. 104 Dangerous Contraband, No. 105 Dangerous Disturbance, No. 501 Violating State or Federal Law, Armed Violence Ch. 38, 33A— 1, Murder Ch. 38, 9 — 1
Observation: Based on the investigation report of Investigator Dave Brubaker of the Internal Investigations Unit, Springfield, and the testimony of inmate eyewitnesses, whose identities are being withheld for security reasons, inmate Morrison, A90539, violated the above Department Rules when he participated in the murder of inmate Harris, A61244, on 9 gallery of the West Cellhouse, at approximately 8:10 a.m. on July 11, 1988. NOTE: Investigator Brubaker may be contacted for the specific statements of the confidential witnesses.”

Part of the function of notice is to give the charged party a chance to marshall the facts in his defense and to clarify what the charges are. (Wolff, 418 U.S. at 564, 41 L. Ed. 2d at 955, 94 S. Ct. at 2978.) Due process is satisfied when the accused is apprised of the charges against him with enough specificity to enable him to prepare a defense. (People v. Gilmore (1976), 63 Ill. 2d 23, 28, 344 N.E.2d 456, 460.) Clayton-El was apprised of the charges against him. He was given notice of the specific crime, the date and place of the crime, and the alleged infractions stemming from that crime. The disciplinary report advised petitioner that he could obtain further information as to the statements of the confidential witnesses by contacting Investigator Brubaker. Based on the circumstances here, we do not find that Clayton-El’s due process rights were violated.

We also find no merit to Clayton-El’s argument that he was arbitrarily denied the right to question and call witnesses. The disciplinary report served August 11, 1988, advised Clayton-El that he could obtain information as to the statements of the confidential witnesses by contacting Investigator Brubaker. The disciplinary report is signed by petitioner, and at the bottom of the report where a space is provided for the accused to request witnesses, there are written the names of two persons. The adjustment committee summary states that the investigative report was read to petitioner, and that the statements of the witnesses were included in the report. We recognize that the unrestricted right to call witnesses from the prison population carries obvious potential for disruption. Prison officials must have the necessary discretion to refuse an inmate the unqualified right to call witnesses. (Wolff, 418 U.S. at 566, 41 L. Ed. 2d at 956, 94 S. Ct. at 2979.) Absent any allegation of facts or evidence in the record indicating that Clayton-El was harmed by defendants’ alleged denial of his request to interview or call the two persons named in the disciplinary report, or other persons, we cannot assume that petitioner suffered any harm.

Finally, Clayton-El argues that the adjustment committee failed to provide an adequate fact finding basis for adjudging him guilty. There must be a written statement by the fact finders as to the evidence relied on and reasons for the disciplinary action. (Wolff, 418 U.S. at 564, 41 L. Ed. 2d at 955, 94 S. Ct. at 2979.) The adjustment committee summary issued August 18, 1988, states as reasons for the finding of guilty, the following:

“Based on statements made by eyewitnesses that they saw inmate Morrison A90539 hit inmate Harris A61244 in the head with a pipe and stand on his head and let two other inmates cause the death of inmate Harris. Due to security reasons the names of the eyewitnesses are being withheld. This information was given by Mr. R. Hoffman internal affairs investigator for Menard C.C. Based upon this it is the opinion of this committee that inmate Morrison is guilty of all charges.”

Petitioner has failed to state what harm, if any, has resulted because of the alleged inadequate adjustment committee summary. We find that the statement given by the adjustment committee adequately apprises petitioner of the evidence relied upon in finding him guilty, and we cannot find that Clayton-El was denied due process.

In conclusion, we affirm’ the finding of the circuit court of Montgomery County.

Affirmed.

HOWERTON and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE ex rel. GWEN MARTIN, Director, Department of Labor, Plaintiff-Appellant, v. SCHWARTZ OIL FIELD SERVICES, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 89—0579
    Opinion filed August 31, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Michael T. Roumell, of Chicago, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

On September 23, 1988, the Illinois Department of Labor (IDOL) filed a complaint in the circuit court of Marion County alleging that the defendant, Schwartz, had violated various provisions of the Illinois Minimum Wage Law (IMWL) (Ill. Rev. Stat. 1987, ch. 48, par. 1001 et seq.). Specifically, the complaint alleged that Schwartz failed to pay its employees time and a half for overtime work during the period between July 1, 1982, and January 21, 1985. On November 28, 1988, Schwartz filed a motion to dismiss, alleging that the suit was barred by the three-year statute of limitations contained in section 12(a) of the IMWL (Ill. Rev. Stat. 1987, ch. 48, par. 1012). After a hearing, the court granted the motion and dismissed the case. This appeal followed.

The record reveals that in August of 1987, the IDOL commenced an investigation of Schwartz Oil's payroll records. The compliance officer concluded that Schwartz owed overtime pay to 13 employees for the period of July 1, 1982, through January 21, 1985. In a letter dated March 28, 1985, IDOL informed Schwartz of its finding and gave Schwartz 10 days to reply. Schwartz responded on April 12, 1985, informing IDOL that it disagreed with the finding and requesting a formal hearing. After meeting informally with Schwartz and several of the employees in question, a formal hearing was scheduled for July 16, 1987. The meeting was cancelled without explanation by IDOL. On July 27, 1987, Schwartz received a request for compliance from IDOL. Schwartz responded by again requesting a formal hearing. On May 5, 1988, Schwartz received a letter from the Attorney General’s office stating that IDOL had forwarded the file to them for collection. The present action was brought pursuant to section 12(b) of the IMWL. Ill. Rev. Stat. 1987, ch. 48, par. 1012(b).

The sole issue on appeal is whether the three-year statute of limitations set forth in section 12(a) of the IMWL applies to claims brought by the State under section 12(b).

When interpreting a statute to determine the intent of the legislature, courts look first to the language of the statute itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 432 N.E.2d 855.) Where that language is clear and unambiguous, the court will apply the law as written, without resort to various construction aids. Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394; Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.

We must therefore first examine the language of section 12, which provides:

“(a) If any employee is paid by his employer less than the wage to which he is entitled under the provisions of this Act, the employee may recover in a civil action the amount of any such underpayments together with costs and such reasonable attorney’s fees as may be allowed by the Court, and any agreement between him and his employer to work for less than such wage is no defense to such action. Every such action shall be brought within 3 years from the date of the underpayment. Such employer shall be additionally liable to the employee for punitive damages in the amount of 2% of the amount of any such underpayments for each month during which such underpayments remain unpaid, or in an amount equal to such underpayments, whichever is smaller.
(b) The Director is authorized to supervise the payment of the unpaid minimum wages.and the unpaid overtime compensation owing to any employee or employees under Sections 4 and 4a of this Act and may bring any legal action necessary to recover the amount of the unpaid minimum wages and unpaid overtime compensation and an equal additional amount as punitive damages, and the employer shall be required to pay the costs. Any sums thus recovered by the Director on behalf of an employee pursuant to this subsection shall be paid to the employee or employees affected. Any sums which, more than one year after being thus recovered, the Director is unable to pay to an employee shall be deposited into the General Revenue Fund.” 111. Rev. Stat. 1987, ch. 48, par. 1012.

We find the language of section 12 of the IMWL to be unambiguous and clear on its face. Section 12(a) provides that employees may bring suit to recover the amount of any underpayment of wages, and that such action must be commenced within three years of the underpayment. Section 12(b) provides that IDOL may bring any legal action necessary to recover unpaid overtime wages due an employee pursuant to section 4(a) of the IMWL and that such sums shall be paid to the employee. No limitation period is contained in section 12(b). It is clear from the language of the statute that there is no statute of limitations on actions brought by the State pursuant to section 12(b).

Schwartz argues that the General Assembly intended that the three-year limitation period in section 12(a) be applicable to actions brought by the Department of Labor (IDOL) under section 12(b). It contends that section 12 of the IMWL provides a framework by which an action may be brought to collect unpaid overtime wages, either by the employee under section 12(a) or by IDOL under section 12(b) on the employee’s behalf. If the legislature decided to limit the employee’s ability to recover to three years, Schwartz maintains, it is only logical that it would likewise limit the State’s ability to recover on the employee’s behalf. There would be no incentive for the employee to bring the action within three years if he could wait and let the State do it, especially given the fact that the employee could receive more punitive damages if the State brought the action under section 12(b) than he could if he brought the action himself under section 12(a).

We do not agree with Schwartz’s analysis. To the contrary, we find the absence of the three-year period in section 12(b) to be indicative of the legislature’s intent not to apply the limitation period to actions brought by IDOL, and the legislative history of section 12 supports our finding. Originally, there was no statute of limitations included in section 12 of the IMWL. Section 12(a) provided that an employee could bring an action to collect unpaid wages and section 12(b) provided that the director of IDOL could take an assignment of such wage claim and bring the necessary action. In 1983, section 12(a) was amended, adding the three-year statute of limitations and a provision allowing the employee to collect punitive damages equal to 2% of the wage claim. Section 12(b) was not changed, but section 12(c) was added, providing that IDOL could initiate the suit on its own, without a request by the employee, and that where the director brought the claim, the employer would be liable for punitive damages equal to the wage claim. Had the General Assembly intended to impose the three-year limitation period on actions brought by IDOL, it would have added such language to section 12(b) or section 12(c). In 1985, the IMWL was again amended. Section 12(b) was deleted and section 12(c) was renumbered 12(b). Again, the legislature had the opportunity to add the limitation provision to section 12(b), but declined to do so.

Having concluded that there was no legislative intent to impose a statute of limitations on actions brought by the State pursuant to section 12(b), we need not consider the issue of whether the common law governmental immunity to statutes of limitation is applicable here. Were we to consider it, we would find that it does apply to the statute in question. As a general rule, statutes of limitation may not be asserted against the State in actions involving “public rights.” (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874.) The rationale behind this rule is that the public should not suffer because of the negligence of its officers and agents in failing to assert causes of action which belong to the public. (Shelbyville, 96 Ill. 2d at 461, 452 N.E.2d at 876.) The rule does not apply, however, where the governmental immunities limitation is expressly abrogated by the statute. (County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 152-53, 485 N.E.2d 1076, 1080.) In those situations, the governmental immunities limitation will not bar a statute of limitations defense. The governmental immunities limitation would be applicable in this case because we find the right in question to be a public, as opposed to private, right. Schwartz maintains that only the employees will benefit from the State’s action and that the policy reasons underlying the rule are not present. We do not agree. The purpose of the IMWL is to ensure adequate wage standards for the benefit of both workers and the taxpayers, and a violation of the law is a breach of public policy. (Ill. Rev. Stat. 1987, ch. 48, par. 1002.) The State has a clear and definite interest in enforcing this policy.

Schwartz also argues that even if this court finds that the statute of limitations is not applicable to the State, we should nevertheless affirm the trial court because the individual employees assigned their rights to take action to IDOL and, as their assignee, IDOL acquired no greater rights than they had. The IDOL, Schwartz maintains, is bound by virtue of the assignment to the three-year limitation period because the employees were. This argument ignores the fact that IDOL possesses the statutory authority to bring an action of its own right under section 12(b), and the assignment does not diminish this power.

For the foregoing reasons, the judgment of the circuit court of Marion County is reversed and remanded.

Reversed and remanded.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE RARICK JUSTICE CHAPMAN,

text:
    MIKE KUMOREK et al., Plaintiffs-Appellants, v. VADA MOYERS, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0165
    Opinion filed September 5, 1990.
    CHAPMAN, J., dissenting.
    Ronald R. Eckiss, of Harris & Lambert, of Marion, for appellants.
    Walden E. Morris, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

While driving home from church on May 13, 1984, plaintiffs’ vehicle was struck from behind by a car driven by the defendant Vada Moyers. Plaintiffs filed a complaint which prayed for judgment against Moyers for personal injuries, pain and suffering, medical expenses, damage to their car and costs of suit. Following a trial, the court entered judgment on the jury’s verdict against Vada Moyers and in favor of Diana Kumorek for the reasonable expense of necessary medical care, treatment and services rendered, in the sum of $2,026.50. Judgment was entered on the verdict in favor of Mike Kumorek for the reasonable expense of necessary medical care, treatment and services, in the sum of $1,912.50. Plaintiffs appeal from the trial court’s judgment order and the court’s order denying their post-trial motion. On appeal plaintiffs raise as the sole issue the adequacy of the verdict and whether they should be granted a new trial on the issue of damages only.

The collision from which this cause of action arose occurred on Illinois State Route 34, in Rosiclare, Illinois. The plaintiffs were northbound on Route 34. Mike Kumorek was driving and Diana was riding in the front passenger seat. Their two children were in the backseat. Just prior to the collision the parties were traveling in a procession of five cars. The Kumoreks occupied the third car in the line of traffic, followed by the fourth vehicle in line, followed by Moyers’ car. Mike Kumorek testified at trial that the first car in line stopped to allow southbound traffic to pass before completing a left turn. The vehicle immediately in front of the Kumoreks’ vehicle came to a complete stop behind the first car. Mike Kumorek testified that he in turn came to a complete stop. While the first three vehicles were stopping, the fourth car in line proceeded to make a right turn. After this car completed its turn, Moyers, driving the fifth vehicle in the procession, collided with the Kumoreks’ vehicle.

Although testimony was heard with regard to the damage plaintiffs sustained to their automobile and with regard to Mike Kumorek’s lost wages, plaintiffs did not address the jury’s award with regard to these elements of damages in their post-trial motion, nor have they addressed these in their brief on appeal. We, therefore, will not consider whether the jury's verdict was inconsistent with regard to the elements of lost wages and damage to plaintiffs’ car. See Fitzgerald v. MFA Mutual Insurance Co. (1985), 134 Ill. App. 3d 1007, 1009-10, 481 N.E.2d 754, 756.

With regard to the personal injuries sustained by the plaintiffs, Diana Kumorek testified that at the time of the collision she felt a stabbing pain through her neck. Shortly after the accident she went home, took some Tylenol and rested for the remainder of the day. Mrs. Kumorek testified that later that evening the pain had become so severe that she went to the county hospital where she was given medication and sent home. The following two days she stayed in bed. On Tuesday Mrs. Kumorek consulted with Dr. Leach, a chiropractor. Dr. Leach referred the patient to Dr. Woodward who, upon examining her, admitted her to the hospital to conduct further tests. Mrs. Kumorek testified that while in the hospital she underwent a CAT scan and was put in traction. She testified that during her hospital stay she experienced a great deal of pain in her head, neck, shoulder and arm. After being released from the hospital she returned to Dr. Leach for treatment. She saw Dr. Leach daily through the month of June, until she was able to return to what she termed “a mild everyday routine.”

Dr. Leach’s testimony confirmed that he treated Diana Kumorek for her ailments throughout 1984. He testified that he treated her approximately 23 to 24 times in 1985, and in 1986 he provided treatments to her 24 times. In 1987 he only saw her once and that was for the purpose of taking X rays. His treatment included adjustments, soft tissue manipulation and physical therapy consisting of ultrasound and electrogalvanic stimulation. He related that the patient had responded well under treatment and that her range of motion in the cervical spine had increased drastically. He testified, however, that as he told Mrs. Kumorek in July of 1984, he felt that she had reached her maximum medical improvement under his care and that her condition had improved as much as it was going to other than treating the symptoms of pain and loss of range of motion.

Mike Kumorek also testified as to the personal injuries he sustained in the May 1984 collision. He testified that at the time of the collision he felt his neck pop. The palms of his hands rolled up because just prior to impact he braced the steering wheel. He testified that later that day a dull headache at the base of his skull developed. The following day he consulted a doctor at the hospital emergency room, who prescribed warm pads for his neck and medication. Approximately three days after the accident, Mike Kumorek went to see Dr. Leach because his headache pain had increased. Mr. Kumorek testified that at the time he could barely move his neck in either direction. Kumorek then described the pain he experienced: “[I]t would cause a severe headache. When I say severe, it would go back to the point to where just like someone was standing on top of me bearing down.” Dr. Leach referred him to a specialist who referred Kumorek back to Dr. Leach to pursue moderate treatment consisting of applying heat pads, soft tissue manipulation, and electrogalvanic ultrasound. He continued with treatment throughout June of 1984.

Dr. Leach also testified that he treated Mike Kumorek prior to the May 1984 accident for complaints the patient had with regard to the same areas of the neck and shoulder. Dr. Leach stated that Mike Kumorek told him that he had been involved in an auto accident when he was 19 years old, 11 years prior to the accident of May 1984. Mr. Kumorek advised Dr. Leach that as a result of the prior auto accident, his neck became stiff and painful three or four times a year. Dr. Leach testified that Mr. Kumorek’s complaints regarding his neck and shoulder became more serious after the May 1984 accident, and that it was Dr. Leach’s opinion that the May 1984 accident aggravated Mr. Kumorek’s condition.

Mike Kumorek further testified to the injury he sustained to his right hand. After the May 1984 accident he periodically experienced a tingling sensation in the pads of his fingers, which he had never felt before. He testified that after the accident he was working as a mechanic, and that several times when he attempted to do his work, such as grasping a hammer, his hand would open by itself. He testified that he had no control over this reaction. He stated that he would wake up in the middle of the night and his hand would hurt from the finger tips all the way back to the elbow badly enough that he could not sleep.

When his symptoms did not improve, Mr. Kumorek saw Dr. James Durham, who referred him to Larry Laird, a physical therapist, for a nerve conductive study. After the study was completed, Mr. Kumorek was sent to Dr. Barrow for wrist surgery. Outpatient surgery was conducted wherein Dr. Barrow excised a segment of the transverse ligament across the wrist.

Dr. Barrow referred to Mr. Kumorek’s condition as carpal tunnel syndrome. He testified that healing of a nerve injury is at the rate of approximately one-sixteenth of an inch per day. Numbness in the area of the injury is to be expected for approximately four to six months. Dr. Barrow testified that in his opinion the tenderness over the nerve in the area of Mike Kumorek’s injury is a permanent condition, and that when he uses the wrist excessively he will notice it somewhat. Dr. Barrow related, however, that approximately one year after the surgery, when he last saw Mike Kumorek, most of Mr. Kumorek’s symptoms and complaints had ceased. Mike Kumorek’s testimony confirmed that he no longer has any problems with his hand.

Dr. Leach’s bill for services rendered to Diana Kumorek was admitted into evidence. The jury’s award of $2,026.50 is $112 less than the total bill of $2,188.50. It appears from the record that the $112 difference represents the cost of the March 1987 X rays taken for the purpose of allowing Dr. Leach to prepare for his deposition.

Dr. Leach’s bill with respect to Mike Kumorek totalled $2,024.50. Once again, the jury's verdict of $1,912.50 shows a $112 difference from the total bill. From the record it appears the jury did not compensate Mike Kumorek for the X rays taken in March of 1987, which cost $112. The jury’s verdict also did not take into account the bill submitted by Dr. Barrow for $370 and the $315.42 hospital bill for Mike Kumorek’s surgery.

Plaintiffs argue on appeal that the jury’s verdicts, awarding plaintiffs compensation for Dr. Leach’s bills, but not awarding plaintiffs any damages for pain, suffering and disability, are inconsistent. We agree.

The decision as to whether a new trial should be granted rests with the sound discretion of the trial court, and its ruling will not be reversed absent an abuse of that discretion. (Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 1039, 495 N.E.2d 141, 142; Ford v. Baker (1978), 61 Ill. App. 3d 45, 46, 377 N.E.2d 853, 854.) As a general rule, a new trial in a personal injury action will not be granted on the ground that the damages awarded by the jury are too small. (See Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647, 432 N.E.2d 1267, 1272.) This is particularly true where no complaint is made as to the jury instructions or admissibility of evidence, and the trial was otherwise error free. (See Ford, 61 Ill. App. 3d at 46, 377 N.E.2d at 854; Haleem v. Onate (1966), 71 Ill. App. 2d 457, 460, 219 N.E.2d 94, 96.) When the jury, however, renders a verdict and the amount of damages awarded, in viewing the record as a whole, is palpably inadequate or against the manifest weight of the evidence or when the jury clearly has disregarded a proven element of damages, then justice requires that such a verdict be set aside and a new trial ordered. (Hinnen, 144 Ill. App. 3d at 1039-40, 495 N.E.2d at 143; Schranz v. Halley (1984), 128 Ill. App. 3d 125, 126, 469 N.E.2d 1389, 1390.) Here we have just such a situation. Diana and Mike Kumorek were compensated for the full amount of their expenses for medical treatment, minus the deposition X-ray costs, but were awarded nothing for pain and suffering. This we cannot understand. If the jury believed plaintiffs had no compensable pain and suffering, its award of pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence. Conversely, if the jury believed their pain was sufficiently serious to warrant extended medical treatment to alleviate such pain and suffering, its failure to award compensation for that pain and suffering means simply the jury disregarded a proven element of damages. (Hinnen, 144 Ill. App. 3d at 1046, 495 N.E.2d at 147; Schranz, 128 Ill. App. 3d at 127, 469 N.E.2d at 1390.) Clearly the jury’s verdicts are irreconcilably inconsistent. Had the jury awarded a small amount for pain and suffering in each situation, then the situation might be different. We could then arguably acknowledge that the jury recognized such damages but chose not to believe all of the plaintiffs’ testimony. Where we are faced with zero dollar awards when damages are clearly evident, however, we have no choice but to declare that the verdicts are inconsistent. And, where verdicts returned in the same action are legally inconsistent, such verdicts must be set aside and a new trial granted. Wottowa Insurance Agency, Inc. v. Bock (1984), 104 Ill. 2d 311, 316, 472 N.E.2d 411, 413; Hinnen, 144 Ill. App. 3d at 1046, 495 N.E.2d at 147.

For the foregoing reasons, we reverse the judgment of the circuit court of Hardin County and remand this cause for a new trial on the issue of damages.

Reversed and remanded with directions.

WELCH, J., concurs.

JUSTICE CHAPMAN,

dissenting:

I respectfully dissent from the majority opinion. First, the majority fails to address the issue raised by the plaintiffs of whether the jury's verdict is inconsistent with regard to its award for disability. I cannot agree with plaintiffs’ suggestion that their proof is wholly uncontested as to this issue.

The evidence shows that plaintiffs’ vehicle sustained minor damage and was not repaired. The Kumoreks did in fact drive the car immediately following the accident. Although Diana Kumorek testified that she stayed in bed for a few days after the accident, and was hospitalized for four days as a result of the accident, scant evidence was presented showing that she could not perform her daily duties as a housewife. She testified that in June of 1984 her physical well-being was such that she could start lifting small items. She stated that at that time she was unable to vacuum, but could make a bed “as long as I watched how I bent, how I raised up. The treatments were keeping the muscles relaxed enough that I was able to go back to a mild routine.” At the time of the trial Ms. Kumorek was working as a secretary. She did not claim to have been impaired in her ability to do her job or to have missed work because of her injuries. In light of the evidence, I believe the jury’s failure to compensate her for disability may have been the result of its assessment of plaintiff’s proof and the credibility of the testimony presented at trial. The question of what evidence to believe and what evidence to reject is a decision for the trier of fact, whose determination will not be upset on review unless manifestly erroneous. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 725, 504 N.E.2d 781, 787.) The resolution of the conflict here was properly within the jury’s province.

As for the disability claimed to have been suffered by Mike Kumorek, he testified that he was unemployed at the time of the accident. About one week following the accident he took a job as a maintenance man, working one day a week. He testified that approximately three weeks after the accident he helped his father roof his house, and at that time he first noticed his hand begin to tingle and go numb. Prior to the surgery on his wrist, Mr. Kumorek took a job with a construction firm. He testified that as a result of the surgery he was unable to return to work for eight weeks. Dr. Barrow, the orthopedic surgeon who performed the surgery on his wrist, testified that in the several hundred surgeries he has performed relating to carpal tunnel syndrome, very few resulted from automobile accidents. He conceded that it ordinarily takes more than five or six months to develop the type of scar tissue that Mr. Kumorek had, and that it is possible that Kumorek had the scar tissue before the accident. Dr. Barrow testified that if he had not been given the patient’s history, as related to him by Mike Kumorek, in his opinion it would be likely that Mr. Kumorek had the scar tissue before the auto accident. Again, in view of the conflicting evidence as to whether or not the carpal tunnel syndrome was a result of the auto accident, I would decline to disturb the decision of the jury in rendering its verdict as to this element of damages. Hall, 152 Ill. App. 3d at 725, 504 N.E.2d at 787.

Likewise, the evidence as to the disability suffered by Mike Kumorek as a result of his neck injury is conflicting. Mike Kumorek testified that in performing his duties at work, the pain in his neck would cause severe headaches to the point where he would have to stop whatever he was doing and “see if the headache would go away.” In January of 1986 Mr. Kumorek took a job as a farmhand. At the time of trial in June of 1987, he was still employed in this occupation. He testified that in his work as a farmhand, he has a headache at least every day. Mr. Kumorek denied that he was absent from work because of these headaches, but testified that he is generally able to control or stop them with Tylenol. When asked whether he experiences these headaches after he has been working on a tractor looking over his shoulder for extended periods, Mr. Kumorek testified, “Well, after 10 to 15, 12 hours a day looking behind you, you’re bound to have a headache.” There was no evidence presented showing that Mike Kumorek had ever missed work or that he was incapable of performing his work as a result of his neck injury. Based on the foregoing, I would not disturb the jury’s verdict with regard to its award for disability.

The majority bases its decision to reverse on what it believes is an inconsistent verdict where the jury awarded compensation for medical expenses yet no award was given for pain and suffering. In order to determine whether the jury verdict on the amount of damages is inadequate, we must consider the record as a whole. (Ford v. Baker (1978), 61 Ill. App. 3d 45, 47, 377 N.E.2d 853, 854.) It is only where the jury had no reasonable basis for its verdict and the award is obviously inadequate that the reviewing court will set aside the verdict. Ford, 61 Ill. App. 3d at 48, 377 N.E.2d at 855.

The jury by its verdict acknowledged that plaintiffs received injuries as a result of the accident. The jury heard testimony of the plaintiffs as to their physical infirmities before the accident and the state of health of the plaintiffs after the accident. On cross-examination Ms. Kumorek testified that prior to the accident she had seen Dr. Felts, a chiropractor, for a pinched nerve in her neck. Prior to the accident Ms. Kumorek was also treated for sinus headaches by Dr. Leach. When asked whether she had been involved in any accidents prior to the one at bar, Ms. Kumorek testified that in 1981 she injured her left side when she fell out the door of their trailer onto a concrete block. She was hospitalized and treated for the injuries she sustained in that accident. Counsel for the defense then referred Ms. Kumorek to her deposition testimony of 1984 wherein, when asked what her complaints were after falling out of the trailer, she was quoted as saying, “I believe it was my right side.” On further inquiry, Ms. Kumorek testified that she did not recall which side it was that she injured in her fall. The jury heard Dr. Leach testify that although “some sort of trauma” caused Ms. Kumorek’s condition of ill-being, his opinion that the auto accident was the direct cause of her condition was based on the history provided to him by Diana Kumorek.

Evidence was presented as to Diana Kumorek’s post-occurrence activities. She testified that in June of 1984 she was able to return to a “mild everyday routine.” The jury heard her testify that in her current secretarial job if she overdoes lifting or types for an extended period of time she develops a severe headache. She also testified that since the accident she has had a third child. After he was born she had to learn how to lift and carry him in a different way than the way she was accustomed to because it put a strain on her neck and right shoulder.

The jury heard Dr. Leach testify that he treated Mike Kumorek prior to the accident for complaints Kumorek had regarding the same areas of the neck and shoulder. The jury was also aware that Mike Kumorek had been in an auto accident 11 years prior to the one at issue and that he suffered neck pain and stiffness three or four times a year as a result of that accident. It was Dr. Leach’s opinion that the 1984 accident aggravated Kumorek’s condition. The jury heard Mike Kumorek testify that in his work as a farmhand it is necessary for him to look over his shoulder for extended periods of time and that he experiences a headache everyday.

The jury was entitled to weigh the credibility and general demeanor of the plaintiffs, including their subjective manifestations of pain. (Beckmeyer v. Alcala (1985), 135 Ill. App. 3d 166, 174, 481 N.E.2d 893, 898; Paulan v. Jett (1989), 190 Ill. App. 3d 497, 501, 545 N.E.2d 1377, 1380.) Although plaintiffs testified that they suffered pain as a result of the accident, the jury was entitled to weigh the testimony. (Beckmeyer, 135 Ill. App. 3d at 175, 481 N.E.2d at 899.) The jury may have found it determinative that the plaintiffs had prior histories of pain similar to the pain plaintiffs testified they experienced after the accident. The jury may have determined that the medical expenses incurred by the parties, which were awarded, were a direct result of the accident. In light of the conflicting testimony, however, it is my opinion that we cannot say that the jury would have acted improperly in finding that the pain and suffering complained of were the result of the other incidents plaintiffs had experienced.

The majority cites Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, 495 N.E.2d 141, in support of its argument that the jury's verdict was inconsistent. In Hinnen the court ordered a new trial where the verdicts awarded the accident victim compensation for the full amount of her expenses for pain medication and physical therapy, but awarded nothing for pain and suffering. Hinnen is distinguished from the instant case in that in Hinnen there was no evidence presented that the plaintiff had a prior history of the pain she described as experiencing as a result of her 1979 accident. Although the plaintiff in that case was involved in two other accidents which may have resulted in similar pain and suffering as was experienced as a result of the 1979 accident, those occurred three and four years after the 1979 accident.

In this case both plaintiffs had suffered prior injuries to the same areas of their bodies. It may be that the jury felt that plaintiffs were entitled to recover for the medical expenses incurred as a result of this incident, but that they also concluded that the plaintiffs had not sustained their burden of proof regarding their complaints of pain. In other words, in Hinnen the plaintiff was entitled to some award for pain and suffering for at least the period of time between the accident complained of and the first subsequent accident because there was no evidence of any other cause of the pain. Here, however, the jury could have concluded that the prior injuries were the cause of plaintiffs’ pain.

The evidence of the damages suffered by plaintiffs was conflicting. Resolution of this conflict was properly within the province of the jury, and I would not disturb the jury’s finding. I find no abuse of discretion in the trial court’s denial of a new trial and would affirm the judgment of the circuit court.


author: JUSTICE WELCH

text:
    RICHARD N. HARRIS, Plaintiff-Appellant, v. THE EDUCATION OFFICERS ELECTORAL BOARD OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT 110, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0737
    Opinion filed September 5, 1990.

      Gary R. Harter, of Harter & Larson, of Belleville, for appellant.
    Patrick M. Flynn and Mark G. Schrader, both of Jennings, Flynn & Guymon, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Richard N. Harris brings this appeal seeking review of a judgment of the circuit court of St. Clair County, entered October 18, 1989, which affirmed, under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), the decision of the Education Officers Electoral Board of Community Consolidated School District 110 that the nominating petition of Norman Virden was sufficient to allow his name to be placed upon the official ballot for the election of members of the school board to be held November 7, 1989. Harris had filed a petition before the Education Officers Electoral Board of Community Consolidated School District 110 (hereinafter Board), objecting to the nominating petition for election to the Board of Education of Norman Virden.

The objector’s petition alleged that Virden’s nominating petition failed to comply with the law in the following respects: (1) the individual who notarized the petition did so under a conflict of interest in that she was, at the time she notarized the petition, the treasurer of the school district to whose Board Virden sought election, and her notary should be disqualified; (2) the nominating petition failed to contain 50 signatures as required by law in that of the 57 signatures on the petition, seven were of persons not registered to vote in the school district and two appeared to have been executed by the same person, invalidating at least one of the signatures and leaving fewer than 50 valid signatures; and (3) the irregularities in the petition called into question the certification executed by Virden that the signatures on the petition were genuine and executed in his presence. Objector’s petition prayed that the Board find that the nominating petition was not filed under the conditions required by law, that it contained an insufficient number of valid signatures, that Virden’s certifications were improper and that the name of Norman Virden should not be placed upon the official ballot for election of members of the school board to be held November 7, 1989.

After hearing evidence and argument, the Board found that the objections to four of the signatures had been proven and struck those four signatures from the nominating petition, leaving 53 valid signatures. The Board found that the other objections of Harris had not been proved and, on September 12, 1989, ordered that the name of Norman Virden be placed upon the ballot as a candidate for member of the Board of Education at the election to be held November 7,1989.

On September 18, 1989, Harris filed a complaint for administrative review before the circuit court of St. Clair County alleging that the decision of the Board was not in accordance with law and asking that it be reversed except to the extent it struck four signatures from the nominating petition. By order entered October 18, 1989, the circuit court of St. Clair County upheld the findings and decision of the Board, holding that they were not against the manifest weight of the evidence. Harris appeals.

On appeal, Harris argues that the trial court erred in failing to reverse the decision of the Board in that the Board’s findings and decision were against the manifest weight of the evidence. Harris argues that Virden’s entire nominating petition, and not just certain names, should have been stricken because the petition shows a pattern of false certifi- • cations in two or more instances in that Virden signed two or more certifications stating that the signatures on that page had been executed in his presence when in fact one or more of them had not. In his brief, filed March 12, 1990, Harris prays that the decision of the trial court be set aside, that the decision of the Board be reversed, that Virden’s petition be stricken and that Norman Virden be “declared ineligible as a candidate for the November 7,1989, election.”

Although neither party has raised the question of whether this appeal is moot, we feel compelled to do so, for it is well established that where a reviewing court has notice of facts which show that only a moot question is involved, that court will dismiss the appeal. (G & J Parking Co. v. City of Chicago (1988), 168 Ill. App. 3d 382, 386, 522 N.E.2d 774, 776.) A question is moot when no actual rights or interests of the parties remain or when events occur which render it impossible for the reviewing court to grant effective relief to either party. (In re Marriage of Holem (1987), 153 Ill. App. 3d 1095, 1098, 506 N.E.2d 739, 741.) Thus, questions arising from a trial court’s order are moot when, because of developments following issuance of that order, reversal of the order can have no practical effect on the controversy. (Holem, 153 Ill. App. 3d at 1098, 506 N.E.2d at 741.) We think that is precisely the case here.

This cause comes before us almost eight months after the election for which Virden filed his nominating petition. Although it does not otherwise appear of record, both parties at oral argument before us indicated that Virden had, in fact, been elected to the school board. The only relief sought by Harris is that the nominating petition of Virden be stricken and that Virden be declared ineligible as a candidate for the November 7, 1989, election. However, such relief would have no actual effect on the outcome of this case as Virden has already taken office. Where a decision reached on the merits would render wholly ineffective relief to the prevailing party, the court, in effect, has rendered an advisory opinion. (G & J Parking Co., 168 Ill. App. 3d at 386, 522 N.E.2d at 777.) The Illinois Supreme Court has repeatedly held that when an opinion on a question of law cannot affect the parties, a court should not issue what is essentially an advisory opinion merely to establish precedent or govern future cases. Holem, 153 Ill. App. 3d at 1101, 506 N.E.2d at 741.

For the foregoing reasons, we must conclude that reversal of the trial court’s judgment would have no practical effect on the parties or the controversy between them. Although exceptions are sometimes made to the mootness doctrine where the magnitude or immediacy of the interests involved warrant action by the court (G & J Parking Co., 168 Ill. App. 3d at 386, 522 N.E.2d at 777), we do not think this is such a case. The question of whether the trial court acted properly is therefore moot, and we are precluded from further review of the merits of this cause. Holem, 153 Ill. App. 3d at 1097, 506 N.E.2d at 741.

This appeal is dismissed.

Appeal dismissed.

LEWIS, P.J., and RARICK, J., concur.


text:
    BOATMEN’S BANK OF BENTON, Plaintiff-Appellee, v. JAMES P. DURHAM, Defendant and Third-Party Plaintiff-Appellant (J. Lloyd Tomer, Third-Party Defendant).
    Fifth District
    No. 5 — 89—0372
    Opinion filed September 5, 1990.

      Harris & Lambert, of Marion, and Darrell Dunham, of Carbondale, for appellant.
    Pamela Lacey, of Hart & Hart, of Benton, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Boatmen’s Bank of Benton (Boatmen’s Bank) filed a complaint to collect amounts due on a $20,000 note executed by James Durham in September 1985. Durham raised defenses and filed counterclaims based on previous transactions involving a note executed by Durham in 1978. Boatmen’s Bank filed a motion for summary judgment, which was granted by the trial court. Durham appeals. We affirm.

Summary judgment will lie only where there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005.) The primary function of the summary judgment procedure is to enable a court to determine whether there is any material issue of fact to be tried by a jury. (Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 226, 396 N.E.2d 1241, 1244.) With this in mind, we will examine Durham’s contention that the trial court erroneously granted Boatmen’s Bank’s motion for summary judgment.

In March of 1978, Bob Phillpot advised J. Lloyd Tomer of an investment opportunity to purchase Elvis Presley’s customized airplane for $2,086,000. In order to exercise an option to enter into a sales contract for the purchase of the airplane, Tomer and Phillpot needed $550,000 by March 31, 1978. Bob Phillpot had already obtained $150,000 toward the amount due on the option. On March 30, 1978, Tomer and Phillpot approached Howard Payne, president of Boatmen’s Bank, regarding their need to obtain the balance of $400,000. Payne advised the men that he could not loan the money to them, but that he would approve four $100,000 loans to James Durham and three other named individuals. Four notes of $100,000 each were then given to Tomer.

Tomer left Boatmen’s Bank and proceeded to James Durham’s residence, where he informed Durham of the investment opportunity. Tomer told Durham that Howard Payne had already authorized a $100,000 loan to Durham, and that Durham need only sign one of the notes. Durham testified that he then telephoned Howard Payne to confirm whether it was true that Payne had already authorized a $100,000 loan to Durham. Durham recalls that Payne advised him that he thought the investment was a “good deal,” that a member of the bank’s board of directors had invested in it, and that he personally was not investing in the deal only because it would be a conflict of interest for him to do so. Howard Payne acknowledged that he spoke with Durham regarding the note and the investment, but testified that the telephone conversation to which Durham refers did not take place until approximately 30 days after the note was signed.

Durham testified that after speaking with Payne, he dated the note, filled in the amount of $100,000, and he and his wife signed it. Tomer also signed the note, although it is not clear when he did this. Tomer took Durham’s note, obtained the necessary signatures on the three remaining notes, and returned to the bank. Payne accepted the notes and gave a cashier’s check for $400,000 to Tomer in the name of the seller of the airplane, Omni Aircraft.

Later that afternoon Durham went to the bank, but was informed by a bank employee that Tomer had already departed. Durham testified during his deposition that at that time he assumed that a loan had not been made to him on the note because $100,000 had not been deposited into his account. Payne’s deposition testimony revealed that the bank was not in the usual practice of disbursing loan proceeds to anyone other than the borrower of the money, and that Durham had not given Payne authority to draw a check to Omni Aircraft. Nonetheless, the $400,000 check issued to Omni Aircraft included the $100,000 loaned to Durham. Durham testified that he did not know for certain that he was an investor in the airplane until July of 1978 when he received a notice from Boatmen’s Bank stating that the note was due. Durham testified that while he was aware that Tomer had possession of the airplane in April of 1978, he did not know that Tomer had used the $100,000 note signed by the Durhams to secure possession of the aircraft.

In July of 1978, when Durham received notice from Boatmen’s Bank that the note was due, he telephoned Payne and advised him that it was Durham’s understanding that the note was for a term of one year. Payne assured Durham that he would “take care of it.” Durham testified that the only discussions he had with Payne regarding the note were the one in July and the one on March 30, 1978, when the note was signed.

The plan to complete the purchase of the airplane subsequently fell through and the airplane was eventually repossessed. The $550,000 paid on the option to purchase was forfeited. By August of 1979 the $100,000 note Durham executed had accrued interest of $11,687.40. Payne advised Durham and Tomer that they would have to execute a renewal of the $100,000 note, and Durham and Tomer thereafter signed a note for $111,687.40 on August 14, 1979. Durham’s wife did not sign this note. Durham testified at his deposition that at the time he signed the August 14, 1979, note he was aware that the airplane had been repossessed.

In September 1980, Payne agreed to sever the liability on the August 14, 1979, note between Tomer and Durham, allowing each of them to execute individual notes in the amount of $60,000. Tomer and Durham agreed to this arrangement. On the same day that the $60,000 notes were executed the 1979 note was marked paid. Durham then made payments on the $60,000 note which reduced his indebtedness to $20,000 by the time the note was again renewed in September 1985.

On January 3, 1986, Durham’s new attorney sent a written notice to Boatmen’s Bank advising it that he considered the transactions with the bank relating to the sale of the airplane to be in violation of Illinois securities law. The letter stated that Durham was rescinding the purchase of the security. Durham made no payments on the $20,000 note.

Boatmen’s Bank filed a complaint with the circuit court on May 12, 1986, alleging that Durham had defaulted on the $20,000 note. Boatmen’s Bank prayed for judgment in the amount of $20,000, together with interest, costs and attorney fees. Durham filed responsive pleadings admitting that he executed the note but denying that he received consideration for the loan. The trial court struck defendant’s affirmative defense of failure of consideration. Durham also raised the affirmative defense of common law misrepresentation. Durham’s counterclaim raised allegations of common law fraud, negligent misrepresentation, and violation of the Illinois Securities Law of 1953 (111. Rev. Stat. 1989, ch. 1211/2, par. 137.1 et seq.). Boatmen’s Bank filed a motion for summary judgment which was granted. The trial court entered judgment in the amount of $40,560.48, which included the principal due on the $20,000 note, interest, and attorney fees.

Durham first argues that the trial court erred in striking his affirmative defense of no consideration which would render the note unenforceable. The record reflects that Durham’s affirmative defense of failure of consideration was stricken by the trial court at an early stage of the proceedings. When plaintiff’s motion for summary judgment was heard consideration was not an issue addressed by either Boatmen’s Bank or the court. However, since Durham did raise the issue of failure of consideration during the summary judgment hearing, we will not consider the issue waived.

We will assume, as defendant contends, that the $20,000 note at issue was a renewal note, traceable to the March 30, 1978, note. We find that there was consideration as to each of the notes executed by Durham. With regard to the consideration underlying the $100,000 note executed in 1978, it is undisputed that the proceeds of that loan went toward the option to purchase the airplane. Durham argues that he did not receive the benefit of the consideration for which he bargained when he signed the note and cannot be held bound on the note. He maintains that after he left the bank on March 30, 1978, he assumed that the loan proceeds on the note he signed had not been used toward the purchase of the airplane because $100,000 had not been deposited into his account, and he had not given anyone authority to draw a check on the loan proceeds.

Notwithstanding Durham’s claim that he was unaware that the bank had disbursed the proceeds on the note, Durham does not dispute that he knew the loan proceeds had been used to purchase the airplane in July of 1978 when Payne advised him that the note was due. Durham’s only quarrel at that time was that he thought the 1978 note was due in one year. It is clear that there was consideration passing to Durham for the execution of the note. It is not necessary to establish that the maker of the note received the consideration therefor; it is sufficient if consideration was extended on the strength of the maker’s signature, in consideration of the maker’s promise to repay. (Burke v. Burke (1980), 89 Ill. App. 3d 826, 828, 412 N.E.2d 204, 206.) We find that consideration was both bargained for and received by Durham on the 1978 note.

There was also consideration given in exchange for the 1979 note for $111,687.40. Consideration is defined as some benefit to the promisor or detriment to the promisee. (Burke, 89 Ill. App. 3d at 828-29, 412 N.E.2d at 207.) There is a presumption that a negotiable instrument has been executed for consideration. (Stolzenbach v. Pagoria (1979), 71 Ill. App. 3d 863, 866, 390 N.E.2d 376, 378.) It is apparent that consideration was given in exchange for execution of this note by virtue of the undisputed testimony that Boatmen’s Bank released Durham’s wife from liability on the original note and allowed the recapitalization of the principal and interest due on the 1978 note. Likewise, the release of approximately one-half of Durham’s liability when he executed the 1980 note for $60,000 was consideration received by Durham. The subsequent extensions and renewals on notes due the bank satisfied the required consideration. The execution of a note to secure an antecedent or existing indebtedness needs no consideration. (Ill. Rev. Stat. 1989, ch. 26, par. 3 — 408; Stolzenbach, 71 Ill. App. 3d at 866, 390 N.E.2d at 378.) In view of our finding that consideration was given in exchange for execution of each of the notes, we do not find that the trial court’s failure to specifically address the issue in ruling on the motion for summary judgment was error.

Durham also contends that the trial court erred in granting summary judgment for the plaintiff because there are questions of fact as to whether Boatmen’s Bank violated Illinois securities law. We recognize that the courts have liberally construed the Illinois Securities Law to protect the public from deceit and prevent fraud in the sale of stocks, bonds and other securities. (See Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 245, 323 N.E.2d 73, 78-79.) However, the maxim of liberal construction means that courts should accept and follow the law’s spirit instead of limiting it to its letter as in derogation of the common law. (Condux v. Neldon (1980), 83 Ill. App. 3d 575, 584, 404 N.E.2d 523, 530.) In order for Durham to prevail under the Illinois Securities Law of 1953, it must be shown that Boatmen’s Bank was a participating underwriter involved in the sale of a security. Ill. Rev. Stat. 1989, ch. 1211/2, par. 137.1 et seq.

The question we must address is whether the transaction involving Boatmen’s Bank in this case is a securities transaction within the meaning of the statute. The Illinois Securities Law of 1953 defines “security” as:

“ ‘Security’ means any note, stock, treasury stock ***, or, in general, any interest or instrument commonly known as a ‘security’, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” (Ill. Rev. Stat. 1989, ch. I2IV2, par. 137.2 — 1.)

In this case a note was signed by Durham, payable to Boatmen’s Bank, in exchange for Boatmen’s Bank loaning Durham $100,000. Although the money was put toward the option to purchase an airplane, we do not find that this qualified the transaction as a security. In determining whether an instrument or a transaction is a security under the statute, form is not to be regarded over substance. The substance of the transaction, the relationship between the parties, and economic reality determine whether a transaction involves a security and whether a purchaser is entitled to protection afforded by registering or reporting an instrument pursuant to securities laws. Saunders, Lewis & Ray v. Evans (1987), 158 Ill. App. 3d 994, 996, 512 N.E.2d 59, 61; Condux, 83 Ill. App. 3d at 585, 404 N.E.2d at 525; Polikoffv. Levy (1965), 55 Ill. App. 2d 229, 234, 204 N.E.2d 807, 809, cert, denied (1965), 382 U.S. 903,15 L. Ed. 2d 156, 86 S. Ct. 237.

Both the Illinois and the Federal courts have emphasized that a security within the meaning of the securities laws is a contract, transaction or scheme whereby one person invests his money in a common enterprise on the theory that he expects to receive profits solely from the efforts of others. (Sire Plan Portfolios, Inc. v. Carpentier (1956), 8 Ill. App. 2d 354, 357, 132 N.E.2d 78, 79; Securities & Exchange Comm’n v. Howey Co. (1946), 328 U.S. 293, 301, 90 L. Ed. 1244, 1251, 66 S. Ct. 1100, 1104.) In substance, Boatmen’s Bank was acting as a lender in this case. Howard Payne did not have a personal stake in the investment other than his interest in seeing to it that the borrower of the funds was a good financial risk for Boatmen’s Bank. It is undisputed that Durham was aware of the extent of the bank’s participation in the investment, namely that of a lender. The testimony of the parties reveals that Payne did advise Durham that in Payne’s opinion the investment was a sound one. This, however, coupled with Payne’s relinquishment of the $100,000 secured by Durham’s note is not sufficient to establish that Payne was an active participant in the investment scheme so as to render the note a security under the statute. We find no authority for extending the securities law to the plaintiff here, and we will not do so.

Even if the transaction between Boatmen’s Bank and Durham did involve securities, the Illinois Securities Law would not apply because Boatmen’s Bank is not an underwriter. An underwriter is

“any person who has purchased a security from an issuer or a controlling person with a view to, or who offers or sells a security for an issuer or a controlling person in connection with, the distribution thereof, or who participates or has a participation in the direct or indirect underwriting of such distribution.” (111. Rev. Stat. 1989, ch. 121V2, par. 137.2 — 6.)

Durham argues that the bank’s role here was more than that of a passive lender. Durham maintains that the bank took on the function of counselor, advisor, and solicitor of the investment, thereby directly exerting its influence in enticing Durham to partake in the investment. We disagree.

It is clear that the bank’s primary involvement in the transactions which took place was that of a lender. Boatmen’s Bank was aware of the use to which the money was going to be put, and Howard Payne did express his interest in the investment. However, Boatmen’s Bank did not look to profit from the transaction other than by its ordinary banking charges for lending money. (See Cobb v. Uplands Hardware Corp. (1966), 68 Ill. App. 2d 158, 215 N.E.2d 298.) It is also true that the bank disbursed Durham's loan proceeds directly to a third party without any authority or approval from Durham. This conduct by the bank, although questionable, is not sufficient to label Boatmen’s Bank an underwriter.

In view of our findings, we need not reach the issue of whether Durham waived his rights under the Illinois Securities Law. Yet there does remain the issue of whether the trial court erred in ruling that Durham waived any defenses and claims of common law fraud and negligent misrepresentation he may have had. A person defrauded in a transaction may, by conduct inconsistent with an intention to sue for damages for fraud, waive the right to sue. (Kaiser v. Olson (1981), 105 Ill. App. 3d 1008, 1014, 435 N.E.2d 113, 118.) Waiver will apply if a party, after discovering the alleged fraud and with full knowledge of its material aspects, engages in conduct which is inconsistent with an intention to sue. This is especially true when the conduct engaged in affords the defrauded party an advantage or misleads or prejudices the opposite party. (Kaiser, 105 Ill. App. 3d at 1014, 435 N.E.2d at 118.) In the instant case, the trial court’s memorandum of decision provides in part that Durham “engaged in conduct inconsistent with an intention to sue” and waived his right to such defenses and claims. We concur.

Durham claims that Howard Payne solicited and encouraged him to invest in what Payne called a “sound investment.” Durham argues that he relied on this misrepresentation. We do not see this as sufficient to overcome the court’s finding that Durham waived his claims and defenses. Even if Payne made such remarks to Durham, such statements are regarded as mere expressions of opinion or promises upon which the other party has no right to rely. Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 540, 511 N.E.2d 690, 699.

The record shows that Durham knew on the day he signed the original $100,000 note that the money was to be his share in the investment in the airplane. In July 1978 when Durham received notice from Boatmen’s Bank that the note was due, his sole complaint to Payne was that Durham believed the note was for a term of one year. After the plane was repossessed, Durham executed a renewal on the original note which included the accumulated interest of $11,687.40. Several months later Durham consulted an attorney, and in September of 1980 a meeting was held at Boatmen’s Bank at which time Boatmen’s Bank effectively released Durham of $60,000 of his liability on his indebtedness by allowing him to execute a note for $60,000 instead of the approximately $120,000 then due. For approximately five years Durham made payments on the $60,000 note and reduced it to $20,000 by the time it was renewed in September 1985. It was not until January 1986 that Durham claimed any wrongdoing by Boatmen’s Bank. While renewal of the note is not necessarily dispositive of Durham’s intent to waive his cause of action on the original note, other conduct by the complaining party inconsistent with an intention to seek damages can result in a finding of settlement or waiver. Durham engaged in negotiations with Boatmen’s Bank on several occasions to alter the terms of the notes due, all to the benefit of Durham. It was not until his indebtedness was reduced to $20,000 that Durham consulted with a new attorney and thereafter ceased making payments to Boatmen’s Bank. One is not permitted to lie back and speculate as to whether avoidance or affirmance of a contract will ultimately prove more profitable. (See Kaiser, 105 Ill. App. 3d at 1014, 435 N.E.2d at 118.) Even if Durham’s claims of fraud and negligent misrepresentation were true, he would not be entitled to relief because he remained silent on the matter for nearly seven years and during this time negotiated extensions and renewals on his indebtedness with Boatmen’s Bank. Under the circumstances, we find that the trial court did not err in finding that Durham waived his common law defenses and claims.

The judgment of the trial court is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.


text:
    ESTATE OF HERMAN SCHWEBEL, Deceased, Appellee, v. THE STATE OF ILLINOIS, Appellant.
    Fifth District
    No. 5 — 88—0620
    Opinion filed September 12, 1990.
    Rehearing denied October 30,1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellant.
    A. J. Nester, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The State appeals from the judgment of the circuit court affirming the assessment of inheritance tax based upon the amended inheritance tax return filed by the administrator of the estate of Herman Schwebel (the administrator). We reverse and remand.

Herman Schwebel died on November 9, 1980. The executor of Schwebel’s estate filed a petition to probate the will which Schwebel executed on September 19, 1980. The executor also filed an inheritance tax return, in which the executor valued the total net estate at $1,229,535.30. Included within the estate were various parcels of real property valued at $1,200,355. A petition was subsequently filed by certain heirs of Schwebel challenging the validity of the 1980 will based on the existence of joint and mutual wills executed by Herman Schwebel and his brother, Ralph Schwebel, in 1960. Due to the litigation regarding the validity of the will, the parties agreed to continue the inheritance tax proceedings pending resolution of the litigation. The 1980 will was later held to be ineffective and that ruling was affirmed by this court. (In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) The court appointed an administrator who subsequently obtained a reappraisal of the real property within the estate and sold much of the real estate to pay expenses, which included repaying a large loan used to pay Federal estate taxes.

On September 18, 1987, the administrator filed an amended inheritance tax return in which the real property of the estate was valued at $643,000. Based on the reduction in value of the real property in the estate, the administrator computed the grand net value of the estate after deductions at $486,416.14. As stated earlier, in the original tax return the real property was valued at $1,200,355.

Among the deductions listed on the amended return was a deduction for Federal estate tax. The value assigned to the estate in the amended return for purposes of computing the Federal estate tax was $1,538,881.91. The value of the estate for Federal tax purposes was listed in the original inheritance tax return as $1,420,858.29.

On November 30, 1987, the State filed its objection to the amended inheritance tax return, asserting that the proper valuation of the real property in the estate was the value as of the date of death of the decedent. On February 10, 1988, the circuit court entered an order assessing inheritance tax on the estate based on the values set forth in the amended inheritance tax return. On April 11, 1988, the State appealed the circuit court’s order to the circuit court pursuant to section 11 of the Illinois Inheritance and Transfer Tax Law. (Ill. Rev. Stat. 1979, ch. 120, par. 385 (repealed by Pub. Act 82-1021, eff. July 1, 1983); Pub. Act 86-737, eff. January 1, 1990.) The State again argued that the value placed on the real property in the amended tax return was improper because it was not based on the value of the property at the decedent’s death. The State also objected to the deduction for Federal estate tax because a copy of the Federal estate tax return was not attached to the amended inheritance tax return. Following a hearing on September 19, 1989, the circuit court affirmed its prior order and dismissed the State’s appeal. On appeal to this court, the State renews its arguments made in the circuit court that the value placed on the real property in the amended return is improper and that the amended return is insufficient because it does not include a copy of the Federal estate tax return.

More than 80 years ago our supreme court stated:

“The [inheritance] tax is not upon the estate of the decedent but upon the right of succession, and it accrues at the same time the estate vests, — that is, upon the death of the decedent. Questions may arise as to the persons in whom the title vests, and such questions may affect the amount of the tax and the person whose estate shall be chargeable with it; but when those questions are finally determined their determination relates to the time of the decedent’s death. No changes of title, transfers or agreements of those who succeed to the estate, among themselves or with strangers, can affect the tax. All questions con cerning it must be determined as of the date of the decedent’s death.
*** The statute requires all the property of the estate to be appraised at its fair market value. The value of the estate which passes is the value so ascertained less the indebtedness of the decedent and the expenses of administration. Whatever litigation may occur between those who succeed to the estate as to their respective rights, or between different claimants of interests, cannot affect such value. The fair market value so ascertained is the basis upon which the amount of the tax must be fixed. Unjust claims may be made against those succeeding to the estate and they may be put to great expense in defending their property, but the value of the property or of their respective interests in the property is not thereby affected.” (Emphasis added.) (In re Estate of Graves (1909), 242 Ill. 212, 216-17, 89 N.E. 978, 979.)

The principles enunciated in Graves have often been echoed in subsequent cases. (See Hanberg v. Morgan (1914), 263 Ill. 616, 622, 105 N.E. 720, 722; People v. Flanagin (1928), 331 Ill. 203, 209-10, 162 N.E. 848, 850; People v. Upson (1930), 338 Ill. 145, 150-51, 170 N.E. 276, 279; In re Estate of Monroe (1982), 105 Ill. App. 3d 1114, 1116, 435 N.E.2d 709, 711.) The administrator does not appear to dispute that the proper basis for valuation of the decedent’s estate is market value at time of death, but contends that the diminution in value of the real property which occurred between the filing of the initial tax return and the amended return should be allowed as an expense of administration, citing Caskey v. New Hampshire (1945), 93 N.H. 438, 43 A.2d 768. We find this argument unpérsuasive for two reasons. First, the diminution in market value is not listed on the amended tax return as an expense of administration and there is nothing in the record to indicate that the administrator presented this argument to the circuit court. New theories not presented to the trial court will not be considered on review. (In re Estate of Fuerstenberg (1983), 116 Ill. App. 3d 11, 14, 452 N.E.2d 15, 18.) Second, if we were to allow the diminution in market value as an expense of administration, the effect of such a ruling would be that the value of a decedent’s estate is no longer determined at the date of death, but would instead be determined when the estate is closed. We decline the administrator’s invitation to disturb the well-settled law of this State.

The administrator further contends that the circuit court’s order affirming the valuation of the estate based on the amended tax return and dismissing the State’s appeal should be affirmed because the State failed to present any evidence at the September 19, 1988, hearing. We disagree. The record shows that when the State filed its appeal in the circuit court, it attached as documentary evidence both the original inheritance tax return and the amended return. The original return showed the value of the estate of Herman Schwebel at the date of his death, and the amended return shows on its face that the valuations of the real property which were used to compute the amended value of the estate were based on appraisals and sales of those properties which occurred long after the date of Schwebel’s death. The State thus submitted sufficient evidence to establish both the value of Schwebel’s estate at the date of his death and the fact that the amended return was based upon a valuation of the estate approximately five years after the date of Schwebel’s death. The State’s appeal also contains written arguments which address the same issues now presented to this court. The circuit court’s order stated that it “considered the matters contained in the appeal by the Attorney General” and we find that the State presented sufficient evidence to sustain its position.

With regard to the State’s second contention, that the estate failed to file a copy of its Federal estate tax return, the administrator acknowledges that submission of the Federal return is required, but contends that “nowhere in the record is there evidence that a copy of the Federal Estate Tax Return was not provided to the Attorney General.” We have reviewed the voluminous record in this case, and it contains no copy of the Federal estate tax return. On remand, if the circuit court finds that the administrator has not filed a copy of the Federal return with the Attorney General, it will order him to do so.

For the above-stated reasons, we reverse the order of the circuit court and remand for further proceedings consistent with this order.

Reversed and remanded.

LEWIS, P.J., and RARICK, J., concur.