author: JUSTICE LINN

text:
    NORMAN KOTLISKY, Indiv. and as Ex’r of the Lila Kotlisky Estate and as Trustee of Trust A under the Will of Adolph Kotlisky, et al., Plaintiffs-Appellees, v. ALLAN I. KOTLISKY, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—3667
    Opinion filed March 22, 1990.

      Molaro & Salon, of Chicago (Charles K. Piet, of counsel), for appellant.
    Siegan, Barbakoff & Gomberg, of Chicago (Steven P. Gomberg, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Adolph Kotlisky died in California in 1948, leaving a substantial estate divided into a number of trusts to provide for his wife, Lila, and their children, Allan, Norman, Rose, and Phyllis. Lila established during her lifetime “The Allan Trust” for the benefit of Allan. He borrowed money from this trust and from Lila. Lila Kotlisky died in September 1986. At issue in the pending litigation is the disposition of one trust, “Trust A,” which was set up in Adolph’s will, and the question whether Allan’s share in Trust A should be set off by the amount of money he is alleged to owe Lila’s estate because of the loans he received during her lifetime. Plaintiffs are Norman Kotlisky, individually, as executor of Lila’s estate and as trustee of Trust A under Adolph’s will; Rose Kotlisky; and Phyllis Kotlisky Poplawski.

Plaintiffs filed an action for declaratory judgment in the circuit court of Cook County, seeking an adjudication that defendant, Allan, was indebted to Lila’s estate, as evidenced by certain promissory notes. Further, they requested a declaration that his inheritance interest in the corpus of Trust A, located in a Chicago bank, be used to satisfy that debt. In attempting to serve defendant with process, plaintiffs hired a special process server in California, defendant’s State of residence. Two attempts failed, and he was never personally served. Plaintiffs then effected service by publication, after which they obtained a default judgment against defendant. He filed a special and limited appearance to test the Illinois court’s jurisdiction over him and moved to quash service of summons. The trial court held that the service by publication was good and denied the motion to quash. Plaintiffs then proceeded to a prove up of damages and received a judgment award of approximately $555,000 on a complaint requesting the principal sum of $258,550 plus interest and attorney fees.

The single issue on appeal is whether the trial court had jurisdiction to enter the judgment of default and damages.

We reverse.

Background

Norman Kotlisky resides in Chicago, Illinois. Phyllis, Rose, and Allan are residents of California. In their complaint for declaratory judgment and other relief, plaintiffs allege that Allan transacted business in Illinois within the meaning of the Illinois “long-arm” statute (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(a)(1)), “by, among other things, executing certain promissory notes that are the subject matter of this action.”

Plaintiffs allege that Trust A was established under the will of Adolph Kotlisky, dated August 6, 1941. In 1948, Adolph died and his will was admitted to probate in California. According to his will, plaintiffs allege, “Trust A was to be used primarily for Lila’s benefit [and, upon her death] Trust A was to terminate and the property distributed in two equal shares,” to Allan and Phyllis. Lila and Norman were the trustees, and upon Lila’s death in September 1986, Norman became sole surviving trustee. The corpus of Trust A consisted of approximately $2 million in cash and securities, held in a bank in Chicago.

The complaint further alleges that the “Allan Trust” was established in March 1966 by Lila as grantor, with Lila, Clement Caditz, and Richard H. Levin as trustees. Defendant was the primary beneficiary of this trust, which was to last until December 1986 or Lila’s death, whichever occurred first.

Plaintiffs allege that upon Lila’s death in September 1986, “the Allan Trust was divided into equal shares for Norman, Allan, Phyllis, and Rose, who could receive the income of the trust, in the trustees’ discretion, until December 31, 1986, when the accumulated income of the Allan Trust was distributed in equal shares to Norman, Allan, Phyllis, and Rose, and the principal of the Allan Trust was to be paid to the Estate of Lila, of which plaintiff Norman Kotlisky is the sole trustee.”

The complaint further alleges that Allan borrowed money from Lila and from the Allan Trust and that he has failed and refused to make payments on these debts. Under Lila’s will, her estate was to be divided in four equal shares: one each for Norman, Phyllis, and Rose, and one share to be divided between Allan’s two children. Norman, as trustee of Trust A and executor of Lila’s estate, seeks to distribute the funds in Trust A and collect the monies Allan owes the estate. Since Norman is also a beneficiary under the will, he requests the court’s intervention by the declaratory proceeding. According to the complaint, he has already distributed all of the monies in Trust A except $216,104.25, which he calculates is the amount that Allan owes Lila’s estate.

The complaint requests that a judgment be entered declaring that defendant owes the amount of $258,550, plus interest and attorney fees, to Lila’s estate and to further declare that the funds in Trust A be used to satisfy the debt.

After the complaint was filed, plaintiffs’ attorneys directed a special process server to serve Allan with process in California, in July 1987. The record indicates that the first attempt at service failed. Plaintiffs’ attorney contacted a California attorney who had represented Allan on previous matters to see if he would accept service on behalf of his client, but ultimately this attempt at service also failed. Plaintiffs’ attorney then hired an investigator to locate Allan, also to no avail. In November 1987 plaintiffs’ attorney again hired the special process server to serve Allan at a court hearing pending in Federal court in California. This service attempt also failed.

In February 1988 plaintiffs caused notice of their lawsuit to be placed for publication in the Chicago Daily Law Bulletin. Thereafter, plaintiffs moved for entry of default judgment on the grounds that Allan had not appeared nor answered the complaint.

Default judgment was granted on September 1, 1988, and the prove up was set for October 14. On that date, Allan, through counsel, filed a special and limited appearance and moved to quash service of summons and vacate default on the grounds that the Illinois court had not obtained jurisdiction over him because plaintiffs had not complied with the statutory requisites of section 2 — 208(b) of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—208(b).) This section governs personal service over nonresident defendants.

Plaintiffs’ response simply asserted that service by publication was a proper mode of service, without citing any case authority. It further stated in conclusory fashion that Allan had waived his jurisdictional objections by citing to the merits of the case in one paragraph of his motion.

At the hearing the trial court heard brief argument and denied the motion to quash. The court and plaintiffs’ attorneys also discussed the form of the proofs to be presented in the prove up of damages. The record does not contain a transcript of the prove up proceedings, but the judgment appealed from states in pertinent part, “Judgment is hereby entered in favor of Norman Kotlisky as Executor of the Estate of Lila Kotlisky and against the Defendant, Allan I. Kotlisky in the sum of $555,322.16 *** and that ['Judgment is entered declaring that Allan Kotlisky is obligated in the sum of $555,322.16 to the Estate of Lila Kotlisky, deceased and that the remaining funds held by Trust A, established under the Will of Adolph Kotlisky be used to satisfy this debt.”

Opinion

Allan’s position is simple: There was no personal service of summons on him, pursuant to section 2 — 208(b), and therefore the court lacked jurisdiction to enter the orders that it did. In contrast, plaintiffs assert that publication notice was effective, based on their characterization of the action as a proceeding in rem. They cite no cases in support, however. Since the trust account is located in a Chicago bank, plaintiffs contend that Illinois courts have jurisdiction to enter orders concerning Allan’s interest in the money and the disposition of that money. They also argue that Allan waived his jurisdictional objection by asserting matters in his motion to quash that went to the merits of the case.

I

We first address the waiver issue. Under well-settled case law, a person who wishes to contest the Illinois court’s personal jurisdiction over him or her must limit the challenge to jurisdictional matters, as opposed to the substantive issues of the lawsuit. (E.g., Mueller v. Mueller (1962), 36 Ill. App. 2d 305, 183 N.E.2d 887 (raising statute of limitations defense would waive special and limited appearance); J.C. Penney Co. v. West (1983), 114 Ill. App. 3d 644, 449 N.E.2d 188 (defendant’s filing of post-judgment motion asserting meritorious defense and requesting vacation of default judgment would constitute general appearance prospectively but would not validate judgment entered without personal jurisdiction); cf. Ill. Rev. Stat. 1987, ch. 110, par. 2—301(c) (which states that proceeding to trial after losing the jurisdictional objection waives the objection, unless the objection is the fundamental one that “defendant is not amenable to process issued by a court of this State”).) Logically, if a person asks the court for affirmative relief, or otherwise invokes the court’s power, he or she cannot simultaneously protest that the court lacks jurisdiction.

We have reviewed the record and do not find any indication that Allan attempted to have the court determine any portion of the merits or possible defenses to the underlying action in debt. In his motion to quash service, Allan asserted, in one paragraph: “Furthermore in passing, the action by the Plaintiffs in their complaint is in effect an action in equity to attach certain proceeds of a trust *** due to said Defendant as beneficiary of said Trust. The law in our State is clear and is set forth in Section 229 of Chapter 7, entitled Trusts, Illinois Law and Practice, which states on page 400 thereof: '*** [quoted excerpt relates to the equity power of courts to determine questions relating to trusts and cites Dunham v. Kauffman (1943), 385 Ill. 79, 52 N.E.2d 143]. ***’ It is therefore further clear that trust funds due a beneficiary of a trust of which the fund so held in trust has proceeded from some other person than the beneficiary (Defendant), are not subject to even garnishment in our State. Moreso, the trust in question was created in the state of California, by a resident of California, for the benefit of a California resident, the Defendant herein. The courts of California have exercised their jurisdiction prior to any action by the Plaintiffs in this cause and any matters touching the matters relating either to Trust A or the Estate of LILA KOTLISKY should be properly addressed to the Superior Court of the State of California, Los Angeles County, wherein the matters lie.”

The point of the above passage is not altogether clear, and therefore, its relevance to the issues is obscure, also. We do not believe, however, that Allan intended to raise any issue going beyond the jurisdictional ones. (Cf. Keller v. Snyder (1951), 344 Ill. App. 294, 100 N.E.2d 672 (Objection that notes and indebtedness evidenced thereby are not subject to garnishment by judgment creditor because notes are physically outside of the jurisdiction of the court may properly be raised by a motion under a limited appearance).) Allan seems to be alluding to the fact that Illinois does not recognize “equitable attachments,” which are prejudgment attachments of a defendant’s property pending the outcome of the lawsuit, intended as a means to secure payment of a potential damages award. Allan’s citation to Dunham v. Kauffman suggests this. We believe that this concept is relevant to the characterization of the underlying declaratory action as one in rem or in personam. Plaintiffs in the pending case asked the court to declare the liability on the debt and further declare that the trust funds should be used to satisfy the judgment. Because the court may, in a proper in rem action, enter orders against specific property, the distinction between the legal theory of the case (the debt) and the equitable relief sought (attachment of the trust funds) must be acknowledged so the court does not exceed its jurisdiction by using the trust fund as the base for entering the personal judgment against the defendant.

We conclude that Allan did not waive his jurisdictional objection. Allan has not asked the trial court for any relief beyond quashing service and vacating the default judgment as being void for want of jurisdiction. He does not address the substantive issues of plaintiffs’ complaint, nor does he assert a defense to the action on the debt. Our reading of the above-quoted portion of his motion to vacate persuades us that Allan was attempting to include additional arguments going to jurisdiction only. He was merely attempting to characterize the nature of the pending action, not ask the trial court to grant him affirmative relief or take a position on the underlying merits of the complaint.

Plaintiffs’ brief is largely concerned with the waiver issue, and they cite general principles of law, but they utterly fail to explain to us how the excerpt from Allan’s motion turns his special and limited appearance into a general one. We conclude that the issue properly before us is whether section 2 — 206 of the Code of Civil Procedure allowed the trial court to obtain either in personam jurisdiction over defendant or in rem jurisdiction over the trust account in such a manner as to permit entry of the judgment orders on appeal.

II

Plaintiffs argued and the trial court found that defendant was properly served with process through publication of notice under section 2 — 206 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—206). Before examining the terms of that statute, we note that neither side so much as alludes to the fundamental due process concerns that caused the United States Supreme Court to fashion the minimum contacts standard in reviewing a State court’s exercise of jurisdiction over a nonresident. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.) In our opinion, a measure of confusion was injected into the appeal by this questionable assumption: The mere presence of Allan’s personal property interest in the trust funds in Illinois gave the trial court jurisdiction to enter orders affecting Allan, if a proper mode of service were effected. To explain why that is inaccurate, we must trace the statutory and constitutional restraints on our State’s exercise of in personam jurisdiction over nonresidents.

SERVICE OF PROCESS BY PUBLICATION UNDER SECTION 2-206

Section 2 — 206 allows a litigant to obtain service of process by publication upon the filing of an affidavit showing that the defendant resides or has gone out of State, “in any action affecting property or status within the jurisdiction of the court.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2—206.) The quoted language “was inserted to exclude the enforcement of a mere personal liability when no property of the non-resident (either real or personal) has been seized or brought under the control of the court.” (Ill. Ann. Stat., ch. 110, par. 2—206, Historical & Practice Notes, at 180 (Smith-Hurd 1983).) One question to consider, therefore, is whether Allan’s beneficial interest in the trust res had been “seized or brought under the control of the court” at the time service by publication was effected.

The record indicates that the trust account had not been brought under the court’s control until after the entry of the default judgment. Shortly after the court had granted default judgment against defendant and denied his motion to quash service, plaintiffs moved the court to freeze the trust assets pending further order of the court. After the hearing on the default prove up of damages, the court entered the judgment amount in excess of one-half million dollars and further ordered that the remaining funds in Trust A be used to satisfy the debt.

Cases in which nonresident defendants are served by publication generally focus on whether the underlying action can be classified as one in personam or one in rem, the assumption being that a matter involving “property or status” {in rem) will permit service by publication.

In an interpleader action, Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 271, 398 N.E.2d 278, 285, the court held that an insurer incurs personal liability to beneficiaries for a given sum of money and that the “claim of the beneficiary is a personal claim on a debt, not a right in or a lien upon specific property.” (Emphasis added.) The court also stated that the claim of a purported beneficiary is not the res, and that merely depositing funds with the court did not change the action from one in personam to one in rem.

One issue in Lain was whether the trial court could properly grant summary judgment on a counterclaim against a resident of Spain, one of the potential claimants to the insurance proceeds, who had been served by publication. The court rejected the argument that personal service was unnecessary because the interpleader was an “action in rem.” The court stated, “A binding judgment cannot be rendered against anyone over whom personal jurisdiction cannot be acquired.” (79 Ill. App. 3d at 271, 398 N.E.2d at 284.) After reviewing the rationale of Hanna v. Stedman (1921), 230 N.Y. 326, 130 N.E. 566, the Lain court agreed that an action in rem has for its subject property in the jurisdiction and control of the State and that such action proceeds against specific property only. The result of the action must therefore be a judgment which operates upon the property and has no element of a personal claim or personal liability. Lain, 79 Ill. App. 3d at 272, 398 N.E.2d at 285, quoting with approval Hanna v. Stedman. See also Austin v. Royal League (1925), 316 Ill. 188, 194, 147 N.E.2d 106 (citing Hanna v. Stedman with approval and holding that a proceeding to determine which of several claimants were entitled to the proceeds of a benefit certificate was not a proceeding in rem, even though the funds were paid into court).

The complaint that was filed in the pending case expressly seeks a personal judgment against Allan, for monies he allegedly owes to his deceased mother’s estate. His liability for those debts has not been established by any legal proceeding, except for the default judgment entered in the pending case. If Norman as trustee of Trust A or as executor of Lila’s estate had obtained a judgment against Allan in a forum in which jurisdiction had not been contested (such as California), and Norman then sought to satisfy the judgment by attaching Allan’s interest in the trust res located in Chicago, such proceeding may well have fit the characterization of an in rem action justifying publication service. However, that is not the case pending before us. Confusing the two distinct situations is confusing the ultimate remedy requested in the pending case with the underlying action on the debt.

If the action on the debt is characterized as a proceeding in personam, and we believe it cannot be viewed otherwise, service by publication is insufficient. (Bank of Edwardsville v. Raffaelle (1943), 381 Ill. 486, 45 N.E.2d 651 (Where defendant is a nonresident and the proceeding is in personam, publication notice does not give the court original jurisdiction over the person, even if the person receives notice, and the judgment based upon constructive service is void).) If the plaintiffs were able to bootstrap personal jurisdiction over Allan by arguing that the Illinois court can exercise jurisdiction over the res of the trust property, there would appear to be no limits on the ability of Illinois litigants to obtain and satisfy judgments of all kinds against nonresidents whenever the nonresident has an interest in property located in Illinois. Presumably, they could then enroll their judgment in the defendants’ home States and seek deficiency judgments against them to the extent the Illinois property did not satisfy the judgment. The result in the case at bar is to make defendant personally liable for the balance of a half million dollars, by default, based on the Illinois court’s determination that publication in a Chicago newspaper gave Allan reasonable notice of the Illinois litigation.

MINIMUM CONTACTS AS THE TOUCHSTONE OF IN PERSONAM JURISDICTION

The United States Supreme Court has commented extensively on the requisites for the exercise of State courts’ jurisdiction over nonresidents, and has expressly applied these concepts to actions in rem and quasi in rem. In Shaffer v. Heitner (1977), 433 U.S. 186, 204, 53 L. Ed. 2d 683, 698, 97 S. Ct. 2569, 2580, the court held that matters pertinent to jurisdiction include the “relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States.” The court held that all assertions of State jurisdiction must be evaluated according to the minimum contacts standard of International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.

The defendants in Shaffer v. Heitner had been served by publication after the entry of a sequestration order in accordance with a Delaware statute. Under the statute a defendant’s property located in Delaware could be seized by the courts upon motion of a plaintiff. While the Supreme Court noted that quasi in rem jurisdiction traditionally had been based on attachment or seizure of property present in the jurisdiction rather than contacts between the defendant and the forum, the court believed that such an approach was no longer sound. The court found, “The case for applying to jurisdiction in rem the same test of ‘fair play and substantial justice’ as governs assertions of jurisdiction in personam is simple and straightforward. It is premised on recognition that ‘[t]he phrase, “judicial jurisdiction over a thing”, is a customary elliptical way of referring to jurisdiction over the interests of persons in a thing.’ ” (Emphasis added.) (Shaffer, 433 U.S. at 207, 53 L. Ed. 2d at 699, 97 S. Ct. at 2581.) The court recognized that the existence in a State of a defendant’s property would be a contact between the forum, defendant, and litigation which in turn would bear on the existence of jurisdiction. The presence of property alone does not, however, support the State’s exercise of jurisdiction, particularly where the property is unrelated to the cause of action.

Under the facts of Shaffer v. Heitner, neither the presence in Delaware of the nonresident defendants’ stock, nor the fact that the nonresidents were officers of a Delaware corporation, provided the necessary contacts to establish the jurisdiction of Delaware courts.

See also Rush v. Savchuk (1980), 444 U.S. 320, 62 L. Ed. 2d 516, 100 S. Ct. 571 (Minnesota could not constitutionally exercise quasi in rem jurisdiction over a defendant who had no contacts with the State, by simply attaching the contractual obligation of an Illinois insurer to defend and indemnify the defendant in connection with the underlying personal injury lawsuit).

ILLINOIS LONG-ARM STATUTE, SECTION 2-209

In Illinois, the exercise of jurisdiction over nonresident defendants takes into account the due process requirements of International Shoe and its offspring; however, we also have a long-arm statute that has its own history and gloss. See, e.g., Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 436, 427 N.E.2d 1203, 1206 (“A statute worded in the way ours is should have a fixed meaning without regard to changing concepts of due process, except, of course, that an interpretation which renders the statute unconstitutional should be avoided, if possible”); R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 311, 489 N.E.2d 1360 (Determination of whether Illinois has jurisdiction over a nonresident requires the courts to look first to the long-arm statute and if jurisdiction is found thereunder, then to the due process clause analysis).

In the pending case plaintiffs themselves recognized the need to allege a base for the Illinois court’s exercise of jurisdiction over defendant. In their complaint they invoked the Illinois long-arm statute, section 2 — 209 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—209.) They alleged that by executing certain promissory notes in Chicago defendant “transacted business” in Illinois within the meaning of section 2 — 209(1). Their burden of proof, as the parties asserting jurisdiction, was therefore to show that (1) defendant transacted business in Illinois; (2) plaintiffs’ cause of action arose out of that transaction; and (3) personal jurisdiction over defendant is consistent with due process. Carlson v. Carlson (1986), 147 Ill. App. 3d 610, 498 N.E.2d 708.

The mere execution of a contract within Illinois is not a sufficient “transaction of business” to come within this provision, however. (See Met-L-Wood Corp. v. Lifetime Pools, Inc. (N.D. Ill. 1979), 475 F. Supp. 149, 151) (“Formalities of contract execution are not determinative for purposes of jurisdiction”).) Recovery of a debt owed to Lila’s estate (which is being probated in California) does not appear to invoke any special ties to Illinois merely because the notes were signed here. It therefore appears that plaintiffs did not establish the first element of their burden of proof under the Illinois statute. Accordingly, the due process analysis does not come into play.

To a large extent, plaintiffs simply avoided their burden of establishing jurisdiction by asserting that the mode of service, publication, gave the court jurisdiction under section 2 — 206 because the relief asked for involved Allan’s interest in trust property located in Illinois and that transformed the action into a proceeding in rem. They failed to even allege, however, that defendant had any other contacts with Illinois that would make this State the fair and appropriate forum for deciding his liability on the notes. The location in Illinois of the trust account in which he had an inheritance interest adds nothing to the determination of whether defendant “transacted business” in Illinois. Even assuming defendant’s execution of the notes were viewed as transacting business in Illinois, the record is silent as to why, under a due process analysis, the minimum contacts standard would be fulfilled by either the execution of the notes or the location of property in which defendant had an interest.

Both sides skipped the preliminary statutory and minimum contacts analysis in favor of arguing whether the mode of service in this case was proper. Plaintiffs, who first sought to obtain personal service, undoubtedly were aware that the long-arm statute itself specifies that service may be had “upon any person who is subject to the jurisdiction of the courts of this State, as provided in this Section, *** by personally serving the summons upon the defendant outside this State.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(b).) Personal service outside of this State over a nonresident is provided for in section 2 — 208 of the Code, not under section 2 — 206. While the long-arm statute does not preclude other modes of service that might apply, it should be evident that not even personal service will vest jurisdiction in the court when the defendant has insufficient contacts with the forum to make him amenable to process in this State.

Further examination of the long-arm statute reveals that certain types of contacts are considered, without more, to permit Illinois courts to exercise jurisdiction over a nonresident defendant. The transaction of business analysis (subsection 2 — 209(a)(1)) and commission of a tortious act (subsection 2 — 209(a)(2)) may well involve lengthy review of case law and a multitude of factual matters. In contrast, subsection 2 — 209(a)(3) permits jurisdiction to be based on the ownership, use, or possession of any real estate in Illinois. Subsection 2 — 209(a)(5) similarly allows jurisdiction over nonresidents to be premised on a defendant’s maintenance of a marital domicile in Illinois at the time the cause of action arose, in matters affecting divorce and separate maintenance. If the pending case involved real estate or marital status, the long-arm statute would permit the Illinois courts to assert their jurisdiction over defendant’s person. In such a case publication service could be appropriate because the matter would be one “affecting property or status in the jurisdiction of the court.” Nothing in the long-arm statute, however, gives Illinois jurisdiction over Allan based solely on his interest in the personal property located in the Chicago bank.

If we were to rule that Illinois courts could enter personal judgment based on defendant’s beneficial interest in the trust account, the presence of tangible or intangible personal property of many types would subject a nonresident to Illinois jurisdiction. A California investor who keeps certificates of deposit in Illinois banks or the Texas owner of a partnership interest in an Illinois venture potentially could suffer large default judgments based solely on that tenuous contact with Illinois. If we further sanctioned publication notice as a mode of service in suits requesting personal judgments against nonresident defendants we would create judicial havoc. As previously noted, the attachment of defendant’s property following an adjudication by a court of competent jurisdiction is another matter. In the pending case the trial court was asked, as an original matter, to adjudicate the debt Allan owed Lila’s estate and then to attach his interest in Trust A to satisfy the debt.

To accept plaintiffs’ reasoning, we would travel a complete circle. We would start the jurisdictional analysis by noting that Illinois is the location of the Trust A account. We would find under section 2 — 206 that service by publication is proper in any action involving property in the jurisdiction of the court and interpret this to mean that the Trust A account was within the jurisdiction of the court. We would conclude that the basis of the court’s jurisdiction — this trust account— is also the basis for invoking publication service, since the lawsuit involves defendant’s property, the proceeds of the trust account. Such circular argument may have a superficial appeal, being easy to apply, but it certainly unravels the constitutional and statutory restraints on Illinois’ assertion of jurisdiction over nonresidents.

We conclude that the trial court did not acquire in personam jurisdiction over Allan, under section 2 — 209(b) of the long-arm statute. Therefore, mere publication of notice of the lawsuit could not have vested jurisdiction in the trial court to adjudicate Allan’s personal liability on the debt. Service of process on a nonresident is merely the means by which he or she is given reasonable notice that a lawsuit in the Illinois court has been filed. Absent a proper basis for adjudicating Allan’s liability for the monies alleged to be owing, the trial court lacked power to execute the default judgment by way of freezing the trust account assets and ordering them to be used to satisfy a portion of the judgment.

For the foregoing reasons, we vacate the trial court’s judgment against Allan Kotlisky, reverse the order which denied the motion to quash service and vacate the default judgment, and remand to the trial court with instructions to enter an order quashing service of process and dismissing the lawsuit for want of personal jurisdiction over Allan Kotlisky.

Vacated and remanded.

JIGANTI and JOHNSON, JJ., concur.

       Adolph’s will, attached to the complaint, directs that Trust A is to be for the benefit of Lila and the two “younger” children, Allan and Phyllis. The two “older children,” Norman and Rose, each received a proportionate share of property in Trusts B and C, respectively.

      The parties’ attorneys are charged with presenting the court with the significant authorities that directly bear on the controversy. That citation to relevant law may be adverse to one’s position is not an excuse. The most casual research into the area of in personam jurisdiction and the statutory methods of serving process would have revealed that all exercises of State courts over nonresidents, regardless of whether the action is “in rem” or “in personam,” are limited by the due process analysis pronounced in International Shoe and the numerous cases following that decision. Plaintiffs’ position in the pending case, that the court may base its jurisdiction on the presence of defendant’s personal property alone, harkens back to the now-discredited principles of in rem jurisdiction that were reevaluated in Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569.

      “Once it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter.” Shaffer v. Heitner (1977), 433 U.S. 186, 210-211 n.36, 53 L. Ed. 2d 683, 702 n.36, 97 S. Ct. 2569, 2583 n.36.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    UNIGARD INSURANCE COMPANY, Plaintiff-Appellee, v. WHITSO, INC., et al., Defendants-Appellants (Maria Gutierrez et al., Defendants).
    First District (5th Division)
    No. 1—88—2323
    Opinion filed March 23, 1990.

      McKenna, Storer, Rowe, White & Farrug, of Wheaton (John C. Martler and Lynn R. Price, of counsel), for appellants.
    Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Louis W.' Brydges, Sr., and Leslie A. Peterson, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Whitso, Incorporated (Whitso), and American States Insurance Company (American States), one of Whitso’s insurers, appeal from the entry of summary judgment in favor of Unigard Insurance Company (Unigard), another of Whitso’s insurers, in a declaratory judgment action arising out of a personal injury suit against Whitso.

We affirm.

On April 4, 1981, Maria Gutierrez, an employee of Whitso, was injured at work while operating an allegedly defective plastic injection molding machine. Gutierrez subsequently sued Lester Engineering Company (Lester), the machine’s manufacturer, as well as Vickers, Incorporated (Vickers), and Allen-Bradley Company, component manufacturers. In turn, Lester and Vickers filed separate two-count, third-party actions against Whitso for indemnity and contribution.

Whitso was insured by three different carriers. Unigard insured Whitso under a comprehensive business liability policy containing a $500,000 liability limit for bodily injury. American States insured Whitso under an umbrella or excess liability policy containing a $2 million liability limit. Casualty Insurance Company (Casualty) was Whit-so’s worker compensation carrier under a policy containing a $100,000 liability limit.

Casualty assumed the defense of Whitso in both third-party actions.

By letter dated September 3, 1985, American, anticipating that a third-party judgment against Whitso could exceed the limit of Casualty’s policy, advised Unigard of the above events and “notified” Unigard to assume its duties pursuant to its policy, namely to “pay any third-party judgment which may or might be entered” against Whitso.

By letters dated July 16, 1986, to Whitso, American, and Casualty, Unigard advised that it would deny coverage for liability arising from Gutierrez’ injury based, in part, on the following policy provision:

“EXCLUSIONS: [the policy’s] bodily injury liability and property damage liability does not apply
* * *
(h) to bodily injury to any employee of the INSURED arising out of and in the course of his employment by the INSURED or to any obligation of the INSURED to indemnify another because of damages arising out of such injuries[.]”

By letter dated November 28, 1986, counsel for American advised counsel for Unigard that a trial date had been set for Gutierrez’ action and asked Unigard to participate in settlement negotiations.

By letter dated December 31, 1986, counsel for American advised counsel for Unigard as to events of the settlement negotiations and again urged Unigard’s participation.

On January 13, 1987, Unigard filed a declaratory judgment action naming American, Casualty, and the parties in the underlying lawsuit as defendants. Unigard’s action sought a declaration that its policy excluded coverage to Whitso for damages sought by Gutierrez as well as for contribution as sought in the third-party actions.

In their answers to Unigard’s complaint for declaratory judgment, Whitso, American, and Gutierrez admitted Gutierrez was injured in the course of her employment. However, American and Whitso contested applicability of the exclusion provision contained in paragraph (h), above, to third-party contribution actions. American and Whitso further claimed Unigard should be estopped from raising policy defenses due to the lapse of time from the date American made demand on Unigard to join in Whitso’s defense and the filing of the declaratory judgment action.

On April 20,1987, Gutierrez’ underlying suit was settled.

On April 15, 1988, Unigard moved for summary judgment in its action for declaratory relief. American and Whitso subsequently filed a cross-motion for summary judgment, and the matter was argued before the circuit court on July 5, 1988. By order dated the same day, the circuit court granted Unigard’s motion for summary judgment and denied the cross-motion filed by Whitso and American.

This appeal followed.

Opinion

Essentially, Whitso and American contend on appeal that, as the policy exclusion in paragraph (h) does not specifically include the term “contribution,” Unigard should not have been allowed to deny an obligation to defend its insured in the third-party contribution actions based on that exclusion. Reliance is principally placed on Howalt v. Ohio Casualty Insurance Co. (1986), 142 Ill. App. 3d 435, 491 N.E.2d 1207, and Insurance Co. of North America v. Dayton Tool & Die Works, Inc. (1982), 57 N.Y.2d 489, 443 N.E.2d 457, 457 N.Y.S.2d 209.

Virtually the same argument, based on citation to the same authority, was considered and rejected by the appellate court in Midland Insurance Co. v. Bell Fuels, Inc. (1987), 159 Ill. App. 3d 780, 513 N.E.2d 1, in its interpretation, under similar facts, of a policy exclusion identical to paragraph (h) in the instant case. Generally, Midland stands for the rule that, in Illinois, such third-party actions are retentive of the characteristics of the underlying claim and, in interpreting such exclusion provisions as contained in paragraph (h) to determine an insurer’s obligation to defend, contribution and indemnity claims should be treated similarly. The appellate court reaffirmed that rule in Reliance Insurance Co. v. Nick J. Giannini, Inc. (1987), 158 Ill. App. 3d 657, 511 N.E.2d 755. We are persuaded by and, in lieu of repetition here, adopt the analysis set forth in those cases regarding interpretation of such exclusions of coverage. (See also Kroll & Edwards, Insurance Law, 19 Loy. U. Chi. L.J. 525, 537-43 (1988).) We find no material basis distinguishing the circumstances involved here to support a different interpretation of paragraph (h) from that considered by the appellate court in Midland and Reliance. We therefore conclude the trial judge correctly determined Unigard had no obligation to defend in the third-party actions;

Whitso and American also argue that Unigard’s failure to either defend Whitso under a reservation of rights or promptly institute a declaratory judgment action to determine its coverage obligation should constitute grounds to estop its defense pursuant to the exclusion contained in paragraph (h).

While we agree that, where doubt exists as to policy coverage, to avoid an estoppel, the insurer should either defend under a reservation of rights or secure a declaratory judgment to determine its rights and obligations before trial or settlement of the underlying action (see Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123), we find no conflict with that proposition in the instant case as Unigard’s suit for declaratory judgment was filed over three months prior to actual settlement of Gutierrez’ action.

We therefore affirm the judgment of the circuit court.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


author: JUSTICE MURRAY

text:
    NORTH SHORE SANITARY DISTRICT OF LAKE COUNTY, Defendant-Appellant, v. ILLINOIS STATE LABOR RELATIONS BOARD, Plaintiff-Appellee.
    First District (5th Division)
    No. 1—89—0902
    Opinion filed March 23, 1990.

      McDermott, Will & Emery, of Chicago (Karl W. Grabemann, Robert T. Isham, Jr., and Melissa Jaeckel, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant North Shore Sanitary District of Lake County (North Shore) appeals from the judgment of the-circuit court of Cook County ordering enforcement of an administrative subpoena issued by plaintiff Illinois State Labor Relations Board (Board) pursuant to section 11(b) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(b)) on behalf of Service Employees International Union, Local 11, a party to an underlying proceeding against North Shore concerning allegations of an unfair labor practice. On appeal, North Shore argues that: (1) the trial court erred as a matter of law in ruling that venue was proper in Cook County; (2) the court erred as a matter of law in granting the Board’s petition to enforce “a subpoena issued for discovery purposes”; and (3) the court erred in ruling that the Board’s subpoena was reasonable in scope and that the documents requested pursuant thereto were relevant. For the reasons set forth below, we affirm.

In July 1987, the Service Employees International Union, Local 11 (SEIU), engaged in negotiations with North Shore over a collective bargaining agreement. When the negotiations reached an impasse, SEIU received authorization to strike. Subsequently, SEIU and North Shore agreed to the terms of the collective bargaining agreement.

On February 3, 1988, SEIU filed an unfair labor practice charge against North Shore with the Board, asserting that North Shore discriminated against the SEIU bargaining unit members by disciplining them more frequently and severely than other employees in retaliation against SEIU employees because of their vote to strike during the previous bargaining between SEIU and North Shore. SEIU further asserted that North Shore’s actions were designed to discourage membership in or support for SEIU and to interfere with and restrain or coerce the employees of North Shore who were SEIU members in the exercise of their rights. The Board performed its statutorily mandated investigation of the charge and determined that the charge stated an issue of law or fact. As a result, the Board set a hearing on the charge for September 27-29, 1988, in Chicago.

On December 28, 1988, the Board issued a subpoena duces tecum to North Shore requiring (1) production of records of discipline imposed on employees not represented by SEIU and (2) for records pertaining to a particular employee. On January 10, North Shore filed a motion with the Board to revoke the subpoena, arguing that the subpoena was improper because the information sought constituted “discovery,” the information was irrelevant and privileged, and compilation of the information would be burdensome. The Board subsequently entered an order denying North Shore’s motion as to the first request contained in the subpoena and granting it with respect to the second request. Following North Shore’s refusal to comply with the subpoena, the Board, on February 8, 1989, issued a summons and a petition for enforcement of the subpoena in the circuit court of Cook County to compel compliance.

On March 2, 1989, North Shore filed a combined special and limited appearance, a motion for change of venue, and a response to the Board’s petition for enforcement of the subpoena, which adopted its motion to revoke the subpoena previously filed before the Board. On March 3, the circuit court denied North Shore’s motion for change of venue, finding that since the subpoena had been issued by the Board at its administrative hearing in Chicago, venue was properly in Cook County. The court further ordered enforcement of the subpoena. This appeal followed.

North Shore first argues, relying on section 2—103(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—103(a)) and sections 11(e) and (g) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1611(e), (g)), that the trial court erred in denying its motion for change of venue. Specifically, it asserts that venue was properly in Lake County, where it resides and transacts its business and where the unfair labor practice is alleged to have occurred, or at the place of service of the subpoena (its office in Lake County), or, “arguably,” in Du Page County, the location of SEIU’s representative or attorney where it was to produce the ordered documents. On the other hand, the Board argues, relying on section 11(b) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(b)), that venue was properly in Cook County because the subpoena was issued by it at a hearing held in Chicago and North Shore refused to comply with the subpoena during the Chicago hearings on the merits of SEIU’s charges.

Section 2—103(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—103(a)) provides, in pertinent part:

“Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located or in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Emphasis added.)

Sections 11(e) and (g) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1611(e), (g)) provide, in pertinent part:

“(e) A charging party or any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may apply for and obtain judicial review of an order of the Board entered under this Act ***, except that such judicial review shall be afforded directly in the appellate court for the district in which the aggrieved party resides or transacts business ***.
* * *
(g) The proceedings provided in paragraph (f) of this Section shall be commenced in the circuit court in the county where the unfair labor practice which is the subject of the Board’s order was committed, or where a person required to cease and desist by such order resides or transacts business.” (Emphasis added.)

Section 11(b) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(b)) provides:

“The Board shall have the power to issue subpoenas and administer oaths. If any party wilfully fails or neglects to appear or testify or to produce books, papers and records pursuant to the issuance of a subpoena by the Board, the Board may apply to a court of competent jurisdiction to request that such party be ordered to appear before the Board to testify or produce the requested evidence.” (Emphasis added.)

Contrary to North Shore’s venue argument, section 2— 103(a) (Ill. Rev. Stat. 1987, ch. 110, par. 2—103(a)) does not control under the circumstances here. It is clear from the language of section 2 — 103(a) that it pertains to the initiation of an action. The historic function of a subpoena is to aid the particular resolution of litigation— not to initiate it. (People v. Craft (1972), 8 Ill. App. 3d 131.) Moreover, section 11(b) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(b)) specifically provides that the Board may apply to any court of “competent jurisdiction” to enforce a subpoena issued by it. Jurisdiction over a matter does not involve the issue of venue; venue is a statutory matter resting with the legislature. (Chappells v. Sorenson (1957), 11 Ill. 2d 472.) Since section 11(b) does not contain a specific venue provision, as do the following subparagraphs (e) and (g), which North Shore relies upon, we believe that the legislature did not intend to fix a venue certain. In other words, since the legislature was aware of the issue of venue, and specifically provided for it in subparagraphs (e) and (g), we must conclude that it intended to not similarly limit the Board in seeking enforcement of its subpoenas to the jurisdiction in which the underlying cause of action must be filed pursuant to section 2 — 103(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—103(a)), i.e., where the aggrieved party resides or transacts business or where the unfair labor practice which is the subject of the Board’s order was committed. In the present case, we therefore agree with the trial court that venue was properly in Cook County, where the Board conducted its hearing and issued the subpoena and where North Shore refused to comply with the subpoena on January 25, 1989.

We also reject North Shore’s claims that the trial court erred in granting the Board’s petition seeking enforcement of its subpoena and the information sought to be produced therein. The trial court granted the Board’s first request for documents but denied its second request. The documents sought to be produced, therefore, were as follows:

“[A]ll records of discipline of all non-bargaining unit non-managerial employees in all classifications from May 1, 1987, to present, i.e.: all clerical, electrical, labratory [sic], and any other. Should include, but not be limited to all warnings, suspensions, and discharges, and any and all other disciplines.” (Emphasis added.)

North Shore contends that the documents requested constitute discovery per se, which it asserts is not permitted under the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.), and that the court erred in assessing the validity of the subpoena in terms of standards applicable to discovery requests rather than standards which govern the admissibility of documents as actual evidence. Alternatively, North Shore contends that the requested information is irrelevant, unreasonable and overbroad.

In disposing of North Shore’s first argument on this issue, we note that section 11(a) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a)) provides that the rules of evidence, except for privilege, do not apply to Board hearings. With respect to North Shore’s second argument, we further note that the factors to be considered in determining the validity of an administrative subpoena are: (1) the constitutionality of the statute; (2) whether the contemplated agency proceedings are included within the statutory authority; (3) the reasonableness of the demand; and (4) the relevance of the information sought. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279.) In the instant case, North Shore attacks only the reasonableness and relevancy of the information sought. Under the circumstances, we reject its argument. The information requested by the subpoena was sought in order to show whether North Shore had treated SEIU employees differently from other nonbargaining North Shore employees in imposing discipline. Such evidence is clearly relevant in assessing the existence of discrimination by North Shore. As pointed out by the Board, “[a] ‘disparate treatment’ analysis inherently requires a comparison of employees to determine ‘disparity.’ ” (See American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board (1988), 175 Ill. App. 3d 191.) We also agree with the Board that the requested information was reasonable. The subpoena covered only a period of 20 months. (See Fair Employment Practices Comm’n v. Hohe (1977), 53 Ill. App. 3d 724 (a request for personnel records for a period of three years held to be reasonable).) Additionally, North Shore only employed 100 people other than the SEIU employees and the subpoena requested only records of discipline concerning those 100 people, if any. Therefore, we cannot say that production of the documents would be unduly burdensome.

In light of the foregoing, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and GORDON, JJ., concur.

       The Board has offices only in Chicago and Springfield.

      A venue provision also exists in section 9 of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1609(2)(i)) similar to the provisions in subparagraphs (e) and (g) of section 11 (Ill. Rev. Stat. 1987, ch. 48, pars. 1611(e), (g)).


author: JUSTICE EGAN

text:
    JAMES RIOPELLE, Plaintiff-Appellant, v. NORTHWEST COMMUNITY HOSPITAL et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3179
    Opinion filed March 23, 1990.

      Michael W. Rathsack, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellant.
    Phelan, Pope & John, Ltd., of Chicago (Robert J. Bates, Jr., and Sandra D. Oliszewicz, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

This is an appeal from an order dismissing a complaint for failure to exercise reasonable diligence to obtain service of process on the defendants.

The plaintiff, James Riopelle, filed a complaint on December 1, 1983, alleging that he had been injured on December 3, 1981, after taking a drug manufactured by the defendant, Abbott Laboratories Drug Company (Abbott), which he had purchased from the defendant, Oseo Drug Company (Oseo). He also named as defendants Northwest Community Hospital (the Hospital), Dr. I. James Young (Young), and Northwest Neurological Associates, Ltd. (Associates), alleging injury due to their negligence in March 1981 but that he did not learn of their negligence until February 1982.

Rather than recite what would be a long and involved litany of the procedural steps taken in this case, we will attempt to summarize the pertinent procedural facts.

On December 1, 1983, two days before the statutory limitation period would have expired against Oseo and Abbott, the plaintiff filed a complaint, but no attempt at service of process was made on any of the five defendants. On February 4, 1985, the judge dismissed the complaint on the plaintiffs motion for voluntary dismissal. On April 16, 1985, the plaintiff refiled his complaint. On May 24, 1985, a special process server served Abbott. On June 24 Abbott filed an answer to the refiled complaint.

On July 29, 1985, the special process server served Oseo, the Hospital, Associates and Young. Oseo, by the same attorney representing Abbott, filed an appearance and answer on September 13,1985.

Between September 20, 1985, and November 1, 1985, the Hospital, Associates and Young filed motions to dismiss based on alleged failure to exercise reasonable diligence to obtain process. Notice of their motions to dismiss was not served on Abbott and Oseo. On January 14, 1986, the plaintiff filed responses to the motions to dismiss of the Hospital, Associates and Young. He sent a notice of filing of those responses to the attorneys for Abbott and Oseo. As of May 21, 1986, the Hospital, Associates and Young had filed their replies to the plaintiff’s response.

On May 29, 1986, Oseo and Abbott filed their motion to dismiss under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). The motion asserted, in part, that:

“5. Abbott has maintained its corporate offices in North Chicago, Illinois since 1981, and its address is listed in, among other publications, Sullivan’s Law Directory. Oseo, a subsidiary of Jewel Companies, Inc., has maintained its corporate offices in Chicago since 1981, and its address is listed in, among other publications, Sullivan’s Law Directory.
6. Abbott and Oseo have been available for service of summons at all times since March 25, 1981.”

The plaintiff did not file a response to the motion of Oseo and Abbott.

On June 27, 1986, the judge granted all the defendants’ motions pursuant to Rule 103(b) and dismissed the case with prejudice. On September 22, 1988, the judge denied the plaintiff’s motion to reconsider. The plaintiff has appealed only from the order dismissing the complaint against Abbott and Oseo.

The plaintiff assigns two grounds for reversal. He contends first that the judge failed to consider the fact the plaintiff “expeditiously obtained service upon refiling” the complaint. His second contention, which he describes as his principal argument, is that the defendants waived the right to a dismissal of the complaint under Rule 103(b) by answering the complaint and participating in discovery.

We will consider the plaintiff’s second argument first. After the complaint had been dismissed on June 27, 1986, as to all defendants, the plaintiff filed a motion to reconsider on July 25. The motion itself asked that the judge reconsider the dismissal of the complaint that she had ordered pursuant to the motion of the Hospital and Young. The grounds advanced in the motion were that the refiled complaint was not time barred and that the plaintiff had exercised “due diligence” in obtaining service on the Hospital and Young. The motion recited that a memorandum of law was attached which was identified as exhibit B. However, there was no memorandum of law attached to the motion. The motion made no reference to Oseo, Abbott or Associates.

On March 9, 1987, the plaintiff filed a pretrial memorandum despite the fact that the complaint was still dismissed. The plaintiff did nothing further in the case until September 23, 1987, when he sent to the attorneys for Oseo and Abbott (but not the attorneys for the other defendants) a memorandum of law in support of his motion to reconsider. This was 15 months after the motion to reconsider had been filed. In that memorandum the plaintiff maintained that Oseo and Abbott had waived the right to have the complaint dismissed because Oseo and Abbott had “each filed an answer and affirmative defense, had participated in pre-trial discovery, had delayed bringing any objection to Plaintiff’s diligence and service and had never moved to have their answer withdrawn.” Oseo and Abbott filed a motion to strike the plaintiff’s motion to reconsider. They argued that the motion to reconsider was directed only against the Hospital and Young and that, since more than 30 days had elapsed, the court had lost jurisdiction over Oseo and Abbott. The judge did not pass on the defendants’ motion to strike.

The posture of the case before the trial court at the time of the hearing was this: the written motion to reconsider made no reference to Oseo or Abbott or waiver by anyone; conversely, the memorandum filed over one year later made no mention of the Hospital or Young, but for the first time raised the question of waiver on the part of Oseo and Abbott. The plaintiff had not pleaded waiver in the response he filed to the motions to dismiss which had been filed by the Hospital, Associates and Young. He did not file any response to the motion of Oseo and Abbott. During the hearing on the motion to reconsider, the judge asked the plaintiff’s attorney why the waiver argument had not been raised at the hearing on the motion to dismiss. The plaintiff’s attorney answered, “Your Honor, I can’t answer that.”

We believe that the plaintiff failed to properly present the issue of waiver on the part of Oseo and Abbott to the trial judge and, therefore, it may not be considered by this court. Put another way, the plaintiff has waived the right to claim that the defendants waived their right to dismissal of the complaint.

The general rule is that matters not raised in the trial court may not be raised for the first time in a court of review. The question before us, therefore, is whether the plaintiff’s claim of waiver on the part of the defendants was properly before the trial court. It is certain that the written motion to reconsider did not argue waiver on the part of Oseo and Abbott. In fact, it made no mention of Oseo or Abbott at all. That being so, the question becomes: How did the plaintiff raise the issue of waiver? The answer is that it did so in a memorandum filed 15 months after the motion to reconsider had been filed. Raising an argument in a legal memorandum and not in a motion is legally insufficient to present a point for the purpose of review. See Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469; Michigan Avenue National Bank v. State Farm Insurance Cos. (1980), 83 Ill. App. 3d 507, 404 N.E.2d 426.

In oral argument in this court the plaintiff maintained correctly that in a non-jury action the scope of review is not limited by the insufficiency or absence of a post-trial motion. (107 Ill. 2d R. 366(b)(3)(ii).) But that rule may be invoked only if the point urged on review was raised at the trial or, in this case, at the hearing on the motion to dismiss. (See Bridges v. Neighbors (1975), 32 Ill. App. 3d 704, 336 N.E.2d 233.) We repeat that the plaintiff did not raise the question of waiver on the part of any defendant at the hearing on the motion to dismiss.

Our holding that the plaintiff had not properly preserved the argument of waiver in a memorandum should not be construed as a holding that the question of waiver would have been properly preserved if it had been asserted in the motion to reconsider. In Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 404 N.E.2d 964, this court held that a defense raised in a petition to vacate a void judgment would not be considered since it was not raised in the petitioner’s answer.

The defendants’ brief in this court specifically stated that the “plaintiff never properly raised defendants’ alleged waiver before the trial court.” The defendants also cited Kruk v. Birk (1988), 168 Ill. App. 3d 949, 523 N.E.2d 93, in which the plaintiff argued that the defendants had waived their right to dismissal under Rule 103(b) by answering the complaint and participating in discovery. This court rejected that argument, holding that the record revealed that the argument was not made in the trial court and that, therefore, it was not properly before this court. In our case, the plaintiff answered the defendants’ argument in his reply brief without citation and with the bald assertion that he had preserved the question for review. We conclude that he did not.

Turning now to the first error alleged by the plaintiff, we must first identify the narrow issue before us as presented in the plaintiff’s briefs. The defendants have cited a number of cases which collectively stand for the propositions that in passing on a motion to dismiss under Rule 103(b) the court is to consider the totality of the circumstances and to consider diligence or lack of diligence in service of process after refiling as well as diligence or lack of diligence before dismissal of the original complaint. (Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932; Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586; O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322.) We need not discuss those cases at length because the plaintiffs argument here is not that the judge’s final decision constituted an abuse of discretion. It is his position, rather, that the judge abused her discretion by failing to consider an appropriate factor, that is, the diligence the plaintiff exercised after the complaint had been refiled. He asks that we remand the case for a new hearing.

We must reject the plaintiff’s argument. On appeal, a judgment is presumed to be correct and the burden is upon the party assigning error to establish such error. (Sianis v. Kettler (1988), 168 Ill. App. 3d 1071, 523 N.E.2d 157.) Any doubt arising from the incompleteness of the record will be resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) No transcript of the hearing on the motion to dismiss has been provided, but the record contains the plaintiff’s responses to the motions to dismiss. One of the responses cited Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796, and another referred to O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. In Aranda the supreme court reversed a dismissal of a complaint, holding that the service on the defendant 12 days after refiling constituted a reasonable time within which to obtain service after refiling the complaint. In O’Connell, the supreme court remanded a case to the trial court to consider a Rule 103(b) motion on the merits; the court held that the trial court should consider the “circumstances surrounding plaintiff’s service of process on his original as well as his refiled complaint.” (112 Ill. 2d at 283.) It is clear to us, therefore, that the question of the timeliness of service of process after the refiling of the complaint was before the judge at the time she entered the dismissal order.

In the written motion to reconsider, the plaintiff argued that the O’Connell case did not apply. The motion also contended that the plaintiff’s attempts at service after refiling showed due diligence. During oral argument on the motion to reconsider the judge said this:

“There was an argument here, number one, that the O’Connell case did not apply. That is mentioned in the motion to reconsider. And the O’Connell case does apply because they both deal with a refiled case. There was a refiled case here, there was not diligence. Period.”

In the absence of anything in the record to the contrary, we must presume that the judge considered all the appropriate factors in the exercise of her discretion, including the time within which the plaintiff served the defendants after the complaint was refiled.

The case cited by the plaintiff, Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853, is of no help to the plaintiff. In Martinez the trial judge granted the defendant’s Rule 103(b) motion to dismiss and made certain findings which included the observation that “[o]bviously, there has not been any unreasonable delay by plaintiff in effecting service of summons, after filing [the second suit].” (Emphasis in original.) (127 Ill. 2d at 121.) Because of that remark the supreme court expressed concern that the trial judge might not have accorded adequate weight to the plaintiff’s conduct in effecting service after refiling and remanded the case for further consideration by the trial judge. In our case there is no such affirmative showing that the judge ignored any pertinent factor in the exercise of her discretion.

It is our judgment that the record fails to establish that the trial judge ignored the evidence that the plaintiff had served Abbott 5^2 weeks after refiling and Oseo four months after refiling. We could properly conclude that the judge ignored the time span between refiling and service only if we could conclude also that the time spans of 5V2 weeks and four months established diligence as a matter of law. We point out that the supreme court did not say in Martinez that service of process 12 days after refiling disclosed diligence as a matter of law. Similarly, the supreme court did not say in Catlett v. Novak or Muskat v. Sternberg, cited by the defendants, that service of process after refiling within shorter periods of time than those in this case established diligence as a matter of law.

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

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE RAKOWSKI

text:
    NEW PARK FOREST ASSOCIATES II, Plaintiff-Appellant, v. ROGERS ENTERPRISES, INC., d/b/a Rogers & Hollands Jewelers, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—0976
    Opinion filed March 23, 1990.

      Hopkins & Sutter, of Chicago (John F. Zabriskie and Michael W. Early, of counsel), for appellant.
    Katten, Muchin & Zavis, of Chicago (Francis X. Grossie, Jr., and Andrew M. Hale, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

New Park Forest Associates II (New Park Forest), a shopping center, brought action against defendant Rogers Enterprises (Rogers), its tenant, requesting the court to enjoin that tenant from vacating its store in The Center at Park Forest (the Center) during the lease term. The trial court denied plaintiff’s motion for a temporary restraining order. The court also granted defendant’s section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) and dismissed that portion of the complaint seeking injunctive relief and specific performance. Plaintiff appeals.

The issues are: (1) whether plaintiff’s law remedy was inadequate and, if so, (2) whether the lease should be specifically enforced.

The undisputed facts are that New Park Forest’s predecessor in interest and Rogers entered a lease which provided for Rogers’ rental of space in the Center until approximately December 31, 1997. In article 5, section 5.1, the lease contained the following continuous occupancy clause:

“Tenant shall occupy the Premises upon commencement of the Main term and thereafter shall continuously and uninterruptedly operate from and use the Premises for the permitted use as set forth in clause (n) of the Fundamental Lease Provisions (Permitted Use) and for no other purpose whatsoever without the prior written consent of Landlord, which can be withheld for any reason whatsoever. Tenant shall not vacate or abandon the Premises at any time during the Term.”

The lease defined Rogers’ permitted use as the operation of a store for the “sale and repair of better quality jewelry.”

On October 1, 1987, Rogers opened its store at the Center and thereafter operated continuously for 15 months. On December 27, 1988, Rogers informed New Park Forest that it was removing inventory and vacating the store on that date.

New Park Forest immediately filed suit and stated in its amended complaint that Rogers’ lease violation would cause irreparable injury because defendant’s closing would diminish traffic at the Center, thereby decreasing the value of the Center to the landlord and existing and potential tenants. Plaintiff alleged that “damages cannot be ascertained, and a damage remedy would be impractical and inadequate.” Plaintiff further alleged that Rogers’ sales report showed annualized sales of $250 per square foot, about average for shopping centers, and therefore Rogers would not suffer severe harm if forced to continue operations at the Center.

New Park Forest concluded with a prayer for relief in the form of: (1) a temporary injunction to prevent Rogers from vacating its premises at the Center; (2) an order for specific performance on Rogers’ obligation to operate and use the leased premises for maximum business; (3) a permanent injunction to prevent Rogers from violating the lease; and (4) “other relief as is just and appropriate.”

On December 28, 1988, the court denied the plaintiff’s motion for a temporary restraining order and continued the matter to January 11, 1989, for status. Rogers did not file an answer, but instead, on January 9, 1989, filed a motion to dismiss the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615).

The motion argued that New Park Forest had failed to state a claim for specific performance because the lease agreement was in the nature of a personal service contract and that plaintiff had an adequate remedy at law. The motion further stated that the claim for injunctive relief should fail because plaintiff had not alleged irreparable injury and that plaintiff had an adequate remedy at law.

In a supporting memo, Rogers argued that if specific performance were granted, the court would be placed in the untenable situation of a long-term supervisor and may be required to enforce lease terms for occupancy and use, operating hours, signs, painting, displays, common areas, and other operational requirements.

The trial court heard Rogers’ motion and held that: “Plaintiff here, in essence, *** is alleging a breach of contract, and money damages are ascertainable by a trier of fact. They may be difficult. Again triers of fact hear all sorts of difficult items.” In that order, the court ruled “there is no basis for equitable jurisdiction alleged in the amended complaint” and accordingly dismissed all prayers for equitable relief. The court then transferred the remaining money action to the law division.

Before the substantive issues may be addressed, we must consider a jurisdictional issue not addressed by the parties.

The trial court denied plaintiff’s motion for a temporary restraining order on December 28, 1988, and continued the matter to January 11, 1989, for status. While an order denying injunctive relief is interlocutory, it is appealable pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307). On January 9, defendant filed a motion to dismiss the complaint pursuant to section 2 — 615. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) That motion was granted at the hearing on March 14, 1989, as to the equitable counts only. Although this order is final in that it involves a final determination as to the rights of the parties that is sufficiently distinct from any matter left pending, it is not appealable absent an express written finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). No such finding is contained in the record sub judice. Therefore, although we may review the dismissal of plaintiff’s request for injunctive relief, we may not directly review the dismissal of its request for specific performance. This issue becomes moot, however, for reasons set forth later in this opinion.

A party who seeks a preliminary injunction must plead that: (1) he possesses a clearly ascertainable right or interest which needs protection; (2) he will suffer irreparable injury without protection; (3) there is no adequate remedy at law; (4) there is likelihood of success on the merits; and (5) he will suffer more harm without the injunction than the defendant will suffer with it. (Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291, 492 N.E.2d 969, 974.) Thus, a complaint for preliminary injunction must plead facts which clearly show a right to injunctive relief. (Lake in the Hills, 143 Ill. App. 3d at 291, 492 N.E.2d at 974.) In addition, a party seeking a mandatory injunction for specific performance must show such “extreme urgency or ‘great necessity’ ” that “the need for such relief [is] *** clearly established and free from doubt.” Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 105, 192 N.E. 572, 575.

If the well-pleaded facts in the complaint are taken as true, as is the standard pursuant to section 2 — 615, then New Park Forest has set forth a right entitled to protection. Further, New Park Forest cites studies on the fact that a tenant’s defection from a shopping center can cause irreparable injury because each tenant contributes uniquely to the total tenant mix. (See, e.g., 2 R. Powell, Real Property §242 (1987).) On the same point, plaintiff notes that Illinois courts have recognized that each tenant in a shopping center operates to attract customer traffic to the common area. (Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 556, 281 N.E.2d 462, 468.) In this case, New Park Forest claimed that the defection of Rogers would lessen customer traffic, which in turn would harm the Center and the other tenants. Therefore, plaintiff has pleaded irreparable harm.

The third element, inadequacy of plaintiff’s legal remedy, is not as clear. On this issue New Park Forest cites one Canadian case and five from other jurisdictions in the United States for the proposition that a tenant’s breach of a continuous use clause creates irreparable injury for which money damages are inadequate. (See Lonoke Nursing Home, Inc. v. Wayne & Neil Bennett Family Partnership (1984), 12 Ark. App. 282, 676 S.W.2d 461; Lincoln Tower Corp. v. Richter’s Jewelry Co. (Fla. 1943), 12 So. 2d 452; Madison Plaza, Inc. v. Shapira Corp. (Ind. Ct. App. 1979), 387 N.E.2d 483; Dover Shopping Center, Inc. v. Cushman’s Sons, Inc. (1960), 63 N.J. Super. 384, 164 A.2d 785; Slater v. Pearle Vision Center, Inc. (Pa. Super. 1988), 546 A.2d 676.) New Park Forest claims further that no amount of money-can compensate for Rogers’ unique contribution to a tenant mix and that only specific performance will maintain that mix.

The trial court ruled that money damages are ascertainable by a trier of fact even if arriving at the proper figure for these damages might be difficult.

Support exists for both positions. But even if we assume arguendo that money damages cannot fully compensate this plaintiff, New Park Forest still cannot obtain an injunction unless it sets forth facts that establish all five elements.

The fifth element balances the equities so that an equitable remedy will not be granted unless it will bring more benefit to the plaintiff than harm to the defendant. Plaintiff satisfies this element because, according to facts pleaded in the complaint, Rogers was making a profit and would not suffer unduly from being forced to maintain its store in the Center.

This leaves only the fourth element, which is whether New Park Forest had a likelihood of success on the merits. In this case, success on the merits means that the court would order specific performance of the long-term lease.

The question, then, is whether the lease in question is the type that courts will specifically enforce. Furthermore, the standard for reviewing the trial court’s decision to grant or deny specific performance is that “a decree will not be disturbed absent an abuse of discretion.” Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 Ill. App. 3d 50, 56, 505 N.E.2d 1076, 1081.

Generally, Illinois courts have refused to enter mandatory injunctions to enforce contracts “which by their terms call for a succession of acts whose performance can not be consummated by one transaction, and which require protracted supervision and direction. A court of equity will not assume what it can not practically accomplish.” (Grape Creek Coal Co. v. Spellman (1891), 39 Ill. App. 630, 632.) More recently, the Ambassador Foods court refused to grant specific performance for a tenant who wanted to retain its concession in a department store for the remaining two years of a lease because

“performance will extend over a considerable period of time and include a series of acts ***. Equity does not undertake to enforce contracts which require the performance of varied and continuous acts, or the exercise of special skill, taste, and judgment, because the execution of the decree would require such constant superintendence as to make judicial control a matter of extreme difficulty.” Ambassador Foods, 43 Ill. App. 2d at 105-06, 192 N.E. at 575-76.

One of the foreign cases cited by New Park Forest supports the proposition that a court might be willing to enforce a continuous use clause which involves the protection of third parties. In Lonoke, a building owner obtained an injunction from the lower court to compel its tenant to continue operating a nursing home on the premises for the duration of the lease instead of moving all the patients at once to a newly built facility. (Lonoke, 12 Ark. App. at 284-86, 676 S.W.2d at 463.) Lonoke is distinguishable from the case here, however, on public policy grounds. In addition, the case comes from another jurisdiction and has not been directly followed even in that jurisdiction.

New Park Forest cites two other foreign cases which directly support the proposition that the landlord of a shopping center is entitled to a mandatory injunction to enforce a continuous use clause against a tenant. In Lincoln Tower, a Florida court granted an injunction ordering a retail tenant to stay open year-round, according to the terms of the lease. (Lincoln Tower, 12 So. 2d at 453-54.) While the court discussed the irreparable injury suffered by the landlord and other tenants, it did not suggest why it would undertake to supervise a lease. (Lincoln Tower, 12 So. 2d at 453-54.) Lincoln Tower does, however, differ from the case here in that the tenant did not seek to break or change the lease in any respect except that it wanted to close its store during the slow season. Thus, court supervision would only extend to the single act of seeing that the tenant opened for normal business during the off season. Additionally, this is a Florida case and since 1943 has been followed only once, on the issue of how to interpret lease terms. Jerrico, Inc. v. Washington National Insurance Co. (Fla. App. 1981), 400 So. 2d 1316.

In Dover, a New Jersey court granted specific performance for a shopping center by ordering the defendant to reopen its bakery, resume business, display its name, and have someone in charge. (Dover, 63 N.J. Super at 392, 164 A.2d at 790-91.) The plaintiff in Dover waived any judicial supervision and stated it would rely solely on the defendant’s self-interest in maintaining a good business reputation. (Dover, 63 N.J. Super at 392, 164 A.2d at 790.) The lower court limited its supervision so that it gave “no direction with respect to the method of operating the defendant’s business on the demised premises or to the quality of the products sold and services rendered by the defendant therein.” (Dover, 63 N.J. Super at 395, 164 A.2d at 791.) Dover, then, supports specific performance on a continuous use lease, but only if the court does not have to supervise this performanee in any detail.

Defendant Rogers, on the other hand, cites numerous out-of-jurisdiction cases that refused to enforce continuous use clauses in shopping center leases explicitly because this enforcement would place the courts in the business of supervising leases. (See Lorch, Inc. v. Bessemer Mall Shopping Center, Inc. (Ala. 1975), 310 So. 2d 872; Madison Plaza, 387 N.E.2d 483; Security Builders, Inc. v. Southwest Drug Co. (Miss. 1962), 147 So. 2d 635; Grossman v. Wegman’s Food Markets, Inc. (1983), 43 A.D.2d 813, 350 N.Y.S.2d 484; Price v. Herman (1948), 274 A.D. 813, 81 N.Y.S.2d 361.) In Madison Plaza, for example, the court distinguished Dover and found that an order for specific performance of a department store lease “would require the Court to maintain constant supervision over a long period of time of acts involving taste, skill, judgment and technical knowledge in order to enforce the decree.” (Madison Plaza, 387 N.E.2d at 486.) In Grossman, a court denied specific performance for a shopping center that wanted to retain a food market for the remaining 12V2 years of a 15-year lease. That court considered Dover “where specific performance was decreed in somewhat similar circumstances, but [was] not *** persuaded thereby that specific performance should be decreed in the case at bar.” Grossman, 43 A.D.2d at 813, 350 N.Y.S.2d at 486.

New Park Forest cites two cases to show that Illinois courts will grant specific performance against a defendant who causes irreparable harm by withdrawing from a common enterprise. (See Handy Andy Home Improvement Centers, Inc. v. American National Bank & Trust Co. (1988), 177 Ill. App. 3d 647, 532 N.E.2d 537; Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 374 N.E.2d 916.) These cases do not, however, involve the problem of enforcing a continuous use clause against a tenant.

Finally, as additional authority presented after argument, plaintiff cites a first district case in which a customer obtained specific performance of a contract for advertising in a magazine at reduced rates. (See Gold v. Ziff Communications Co. (1st Dist. Sept. 26, 1989), No. 1—89—0082.) Although Gold does support the need for an injunction to prevent irreparable harm, it does not address the problem of court supervision to enforce a contract that involves many acts over several years.

Ambassador Foods, the most similar Illinois case, involved a concessionaire tenant asking for specific performance of the remaining two years of his lease. (Ambassador Foods, 43 Ill. App. 2d 100, 192 N.E. 572.) Even in this situation, where the defendant landlord would normally be enforcing most lease terms, the court denied specific performance expressly because a court “will not undertake such enforcement where the contract calls for a succession of acts whose performance cannot be consummated by one transaction, and which requires protracted supervision.” Ambassador Foods, 43 Ill. App. 2d at 106-07, 192 N.E. at 576, quoting Hernreich v. Lidberg (1903), 105 Ill. App. 495, 500.

The contract in this case calls for Rogers’ continuous occupancy and use of the leased space until approximately December 31, 1997, nine years after New Park Forest first requested an injunction and specific performance. The lease contains numerous detailed provisions for hours, signs, displays, painting, common areas and other operational requirements. Even the very purpose of the lease, the operation of a premises for the “sale and repair of better quality jewelry,” raises enforcement problems for a court which could be placed in the position of deciding what constitutes “better quality.” It is possible that, during the life of a mandatory injunction, the court would never have to enforce any of those terms or judge “better quality.” Problems may never arise. If problems did arise, however, the court would find itself in the business of managing a shopping center.

In sum, considering all well-pleaded facts in the complaint as true and considering all inferences that could be fairly drawn from those facts, it appears as a matter of law that New Park Forest does not present a. likelihood of success on the merits because Illinois courts will not specifically enforce a long-term lease of this nature. Therefore, as an element of injunctive relief is absent, the court’s denial of plaintiff’s motion for a temporary restraining order and its dismissal of that portion of the amended complaint requesting injunctive relief was not improper.

Furthermore, although the dismissal of the specific performance request is not directly before us, that issue has now been resolved because it was necessary to determine New Park Forest’s entitlement to specific performance in order to decide whether it properly pleaded an action for injunctive relief.

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

Judgment affirmed.

LaPORTA, P.J., and BILANDIC, J., concur.