author: JUSTICE HOWERTON

text:
    DUSTY RICHARDSON, Plaintiff, v. ILLINOIS POWER COMPANY, Defendant and Third-Party Plaintiff-Appellee (National Union Fire Insurance Company, Third-Party Defendant-Appellant).
    Fifth District
    No. 5 — 89—0864
    Opinion filed August 23, 1991.
    Ducey, Feder & Ducey, Ltd., of Belleville, for appellant.

      Carl W. Lee and James E. DeFranco, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff fell from a wooden power and utility pole and sued the owner, Illinois Power Company. Illinois Power filed this third-party action against its insurer, National Union Fire Insurance Company, claiming that it was an additional insured under a general liability policy, and that National Union had breached the contract by not defending Illinois Power in the underlying suit. Illinois Power also sought damages under section 155 of the Illinois Insurance Code for unreasonable and vexatious refusal to honor its policy obligations. (Ill. Rev. Stat. 1985, ch. 73, par. 767.) The circuit court of St. Clair County granted summary judgment on both counts in favor of Illinois Power. National Union appeals the summary judgment and the order assessing attorney fees, costs, and penalties. We affirm.

In support of its summary judgment motion, Illinois Power attached a liability policy naming it as an additional insured. The insurance policy states: “[T]he company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury *** even if any of the allegations of the suit are groundless, false, or fraudulent ***.” In the summary judgment motion, Illinois Power alleged that it directed a request to admit to National Union asking the insurer to admit that Illinois Power was an additional insured under the policy. National Union objected to this request, but its objections were overruled, and National Union was ordered to respond within 21 days. National Union did not respond, and, therefore, the request was deemed admitted. Illinois Power’s motion also was supported by the affidavit of its claims supervisor. The affiant acknowledged that Illinois Power had repeatedly requested a defense but that National Union failed to so provide.

National Union filed no response to Illinois Power’s motion for summary judgment. The circuit court ordered National Union to advise the court whether it would defend Illinois Power. National Union did not respond, and the circuit court granted summary judgment November 7,1988.

An evidentiary hearing was held on damages nine months later. At the hearing, counsel for National Union, for the first time, asked the court to reconsider its summary judgment order. The insurer argued that a letter from its claim representative showed its intentions to defend under a reservation of rights. This letter had been presented earlier as Illinois Power’s exhibit. After hearing arguments of counsel, the circuit court entered judgment for Illinois Power in the amount of $18,883 plus a penalty of $4,720.75.

On appeal, National Union argues the circuit court erred in granting summary judgment because: (1) Illinois Power hired its own counsel, thereby precluding it from defending; (2) section 155 of the Illinois Insurance Code is inapplicable to an insurance company’s failure to defend; and (3) Illinois Power did not prove the reasonableness of its attorney fees.

The issue on appeal is whether the pleadings, depositions, admissions, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) In order to prevent the entry of summary judgment, the nonmoving party must present a bona fide factual defense and not hide behind equivocations and denials. Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 468 N.E.2d 477.

Here, National Union did not file a response to summary judgment, nor did it file counteraffidavits or present other evidence opposing the motion; thus, Illinois Power’s affidavits and exhibits remain uncontradicted. From the record it is undisputed that Illinois Power is an additional insured under a general liability policy and that National Union presented no defense of its insured. National Union’s contention that it initially offered to provide a defense as evidenced by the letter from its claim representative is unavailing. In fact, another letter from the insurer’s claim representative, written six months later, states that until certain legal issues are “cleared up, National Union has not given me authority or instructions to take over Illinois Power’s defense.” The record establishes that no defense was provided.

If an action is commenced against an insured alleging claims potentially within the policy coverage, the insurer must either defend the suit under a reservation of rights or seek a declaratory judgment that the policy affords no coverage. (Trovillion v. United States Fidelity & Guaranty Co. (1985), 130 Ill. App. 3d 694, 474 N.E.2d 953, citing Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.) National Union did neither. Therefore, summary judgment as to count I was proper.

The circuit court also properly found that section 155 of the Illinois Insurance Code applies to National Union’s refusal to defend. Section 155(1) provides:

“(1) In any action by or against a company wherein there is in issue the liability of a company on a policy *** of insurance ***, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus [the statutory penalty].” Ill. Rev. Stat. 1985, ch. 73, par. 767(1).

The statutory penalty for an insurer’s vexatious and unreasonable refusal to defend has been applied against the insurer. (See Sprayregen v. American Indemnity Co. (1969), 105 Ill. App. 2d 318, 245 N.E.2d 556; Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 258 N.E.2d 150; Domas v. Fidelity & Casualty Co. (1969), 113 Ill. App. 2d 22, 251 N.E.2d 284.) The legislature intended to provide a remedy to an insured who encounters unnecessary difficulties when an insurer withholds policy benefits. (Meier v. Aetna Life & Casualty Standard Fire Insurance Co. (1986), 149 Ill. App. 3d 932, 500 N.E.2d 1096, citing Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373.) One important benefit of a liability policy is the defense of liability claims that have been filed in court. It would defeat the purpose of the statute to allow an insurer to escape any penalty when it fails to provide one of the most important benefits of a liability policy — a defense. What constitutes vexatious and unreasonable refusal is a matter for the trial judge’s determination. (Sprayregen, 105 Ill. App. 2d at 326, 245 N.E.2d at 560, citing Howard Foundry Co. v. Hartford Fire Insurance Co. (7th Cir. 1955), 222 F.2d 767.) The record supports the circuit court’s finding that National Union’s refusal to defend was vexatious and unreasonable. Thus, the 25% penalty provision (Ill. Rev. Stat. 1985, ch. 73, par. 767(l)(a)) is applicable.

We further find, after considering the factors in Songer v. State Farm Fire & Casualty Co. (1982), 106 Ill. App. 3d 141, 435 N.E.2d 948, and reviewing the affidavit submitted by counsel, that the attorney fees and costs submitted to the circuit court in affidavit form are reasonable. The affidavit was well documented. The attorney set forth the work performed by him and other members of his firm, the precise number of hours spent, and the billing rate of associates and partners for each year of the litigation. National Union did not present any affidavits or other evidence to oppose Illinois Power’s evidence concerning its attorney fees. Illinois Power also asks for additional attorney fees for prosecuting this appeal. We believe counsel is entitled to recover reasonable attorney fees for the prosecution of this appeal, and this amount should be determined after hearing by the trial court. The circuit court is otherwise affirmed.

Affirmed and remanded with directions.

CHAPMAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES LEAR, JR., Defendant-Appellee.
    Fifth District
    No. 5 — 90—0112
    Opinion filed August 23, 1991.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Michael J. Meyer, of Meyer, Keller & Runde, of Effingham, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was stopped for speeding on Interstate 57 in Effing-ham County and was arrested for driving on a suspended license. Defendant’s car was towed off the highway and impounded in a local garage where Sergeant Kim Rhodes, the officer who stopped defendant, and another officer conducted an inventory search on defendant’s car. While searching the trunk, the officers noticed a bundle of money in an area where the lining had been pulled away from the trunk wall, just beneath the trunk lock. While searching further between the trunk lining and trunk wall, Rhodes found a drawstring bag tied to and hanging from the trunk bar. She grasped the bag, thought it contained weapons, searched it, and found two loaded handguns.

Defendant was charged with possession of a firearm without the requisite firearm owner’s identification card in violation of section 2 of the Firearm Owners Identification Card Act (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 2) and unlawful use of weapons in violation of section 24 — 1(a)(4) of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(4)).

Defendant moved to suppress the introduction of the guns into evidence, claiming that the search and seizure of the guns violated article I, section 6, of the Illinois Constitution and the fourth amendment of the United States Constitution. The circuit court granted the motion to suppress. The State appealed. We affirm.

The circuit court, relying on People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, upheld the inventory search of the trunk and the seizure of the money, but held that the search into the contents of the drawstring bag went beyond a valid inventory search and suppressed the handguns.

In Velleff, Chicago police stopped defendant for driving with a cracked windshield and without a license plate. Since defendant had no driver’s license and the car was not registered to him, he was arrested and told to follow the police to the station. While at the station, police impounded his car and conducted an inventory search after having discovered that defendant was wanted for an outstanding traffic violation. In the trunk, police found an orange plastic bag. They opened it, found a towel inside, unfolded the towel, and found a handgun, which turned out to have been stolen. The circuit court refused to suppress the evidence. On appeal, it was stated that an “inventory [search] does not authorize the inspection of closed con-tamers absent exigent circumstances ‘such as danger to the officer or the destruction and mobility of the evidence.’ ” People v. Velleff, 94 Ill. App. 3d at 824, 419 N.E.2d at 92, quoting People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346 (wherein the Illinois Supreme Court ruled that the inventory search of a suitcase was unreasonable under the fourth amendment to the United States Constitution).

The State argues in the case at bar that the search into the drawstring bag was permissible and relies on People v. Braasch (1984), 122 Ill. App. 3d 747, 461 N.E.2d 651, wherein the second district held that a search of the contents of a paper bag found in defendant’s trunk during an inventory search was proper. Braasch relied on: (a) Illinois v. Lafayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605, which held that an inventory search at the stationhouse of containers or articles in defendant’s possession done in accordance with established inventory procedures did not violate the fourth amendment; and (b) on Professor LaFave’s commentary that the Supreme Court would likely reach the same conclusion as to containers within inventoried vehicles. (See 2 W. LaFave, Search & Seizure §7.4 (Supp. 1984).) History has proved kind to Professor LaFave’s prediction. (See Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738 (where opening a closed container found in an impounded vehicle during a warrantless inventory search that was done pursuant to standard police procedure was held not to violate the fourth amendment).) In the case at bar, however, the State failed to prove the predicate to a constitutionally valid search of a closed container— namely, that it was the standard policy to make an inventory of the contents of a closed container that itself is discovered during a routine inventory.

The one thread common to all valid warrantless inventory searches is that the search was predicated on a standard police procedure. (See Colorado v. Bertine (1987), 479 U.S. 367, 93 L. Ed. 2d 739, 107 S. Ct. 738; South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092; Illinois v. Lafayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605; People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346; People v. Braaseh (1984), 122 Ill. App. 3d 747, 461 N.E.2d 651; People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89.) Here, Officer Rhodes testified at the suppression hearing that the inventory search of defendant’s car was done pursuant to standard procedure. That testimony validates opening the trunk. However, she never testified that it was standard procedure to open closed containers in all impounded vehicles, which we believe to be the predicate necessary to a search of the closed drawstring bag. We hold the State must show such a policy before an inventory search into containers found in an impounded vehicle will be upheld. “[I]t is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle.” (Colorado v. Bertine, 479 U.S. at 376-77, 93 L. Ed. 2d at 749, 107 S. Ct. at 734-44 (Blackmun, J., concurring).) Here no such policy was proven, and we cannot presume that one exists especially since other pieces of luggage in defendant’s trunk were not searched. We, therefore, affirm the circuit court.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED SCHUPPERT, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0528
    Opinion filed August 23, 1991.
    Rehearing denied September 25,1991.

      Fred Schuppert, of Mason, appellant pro se.

    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Fred Schuppert, was charged with conducting a marriage ceremony, knowing that his performance was not authorized by law, in that the celebrants had not obtained a marriage license, in violation of section 32 — 6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 6(a)). Defendant chose to have a bench trial in the circuit court of Effingham County and was found guilty as charged on May 8, 1990. He was sentenced to two years’ conditional discharge, 40 hours of community service to the elderly, a $1 fine, and payment of costs. On appeal, defendant asserts that the issues are (1) whether defendant interfered with judicial procedure, (2) whether the defendant conducted a marriage ceremony knowing his performance was not authorized by law, and (3) whether a State-issued marriage license is necessary where an “ecclesiastical” marriage is performed. We affirm.

Defendant has provided a record on appeal which consists of the common law record and transcripts of several pretrial proceedings. No transcripts of the June 17, 1990, bench trial or the July 9, 1990, motion and sentencing hearing have been made part of the record.

The appellant has the duty to preserve an adequate record from which to review any claims of error. (People v. Donatelli (1988), 176 Ill. App. 3d 1086, 1088, 531 N.E.2d 1063, 1065, citing People v. Smith (1969), 42 Ill. 2d 479, 483, 248 N.E.2d 68, 71.) In the absence of adequate preservation and presentation of the record on review, every reasonable intendment against the defendant is presumed on appeal. (People v. Stevens (1984), 125 Ill. App. 3d 854, 857, 466 N.E.2d 1321, 1324.) Any factual questions concerning the adequacy of the evidence against the defendant must therefore be resolved against the defendant, based upon his failure to provide the reviewing court with a complete record on appeal. We will therefore not discuss defendant’s first two contentions, which involve resolution of factual questions.

This court will address the legal question of whether the State of Illinois can legitimately require the obtaining of a State-issued marriage license for all marriages. The defendant asserts that while a marriage license is required for a civil marriage ceremony, he performed an “ecclesiastical marriage,” one which allegedly does not necessitate a marriage license issued by the State of Illinois because the ecclesiastical marriage contemplates a contract between only those who marry, not the marriage partners and the State of Illinois. Defendant’s assertions are without merit.

The statutes governing the formalities for a marriage do not differentiate between a marriage performed by a judicial officer, a marriage performed by a public official, or a marriage performed with the prescriptions of any religious denomination or by an officiant of a tribe, Indian nation, or native group. (See Ill. Rev. Stat. 1989, ch. 40, par. 201 et seq.) Section 201 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.) provides that a marriage is valid in the State of Illinois if it is a heterosexual marriage which is licensed, solemnized, and registered in conformance with the Act. The Director of the Department of Public Health prescribes the forms of the application for a marriage license, the license itself, the marriage certificate, and the consent to marriage where such consent is necessary. (Ill. Rev. Stat. 1989, ch. 40, par. 202.) In order to obtain a license to marry and a marriage certificate form, prospective partners must complete a marriage application form and sign it, appear before the county clerk and pay the license fee after proving they are of age or have proper consent and that the marriage is not prohibited, and supply any necessary affidavits or court orders. Ill. Rev. Stat. 1989, ch. 40, par. 203.

Section 209 of the Act provides for the solemnization and registration of marriages. (Ill. Rev. Stat. 1989, ch. 40, par. 209.) This section clearly contemplates the return of the marriage certificate to the county of origin after the performance of any marriage by a judge, public official empowered to perform marriages, or any person who has performed a marriage ceremony in accordance with the prescriptions of any religious denomination, Indian nation, or tribe or native group where those prescriptions require an officiant. The statute also provides that either the person who conducts the marriage ceremony or, if no individual acting alone solemnizes a marriage, both parties to the marriage shall complete the marriage certificate form within 10 days after the performance of the marriage, forwarding it to the county clerk within that time period.

It is the responsibility of the county clerk under section 210 to register the marriage and notify the Department of Public Health of that marriage. (Ill. Rev. Stat. 1989, ch. 40, par. 210.) The return must be accompanied by the copy of the marriage license application obtained by the applicants, the date and place of marriage, and the marriage license number. It is obvious from these requirements of the Act that all marriages, whether conducted by a duly authorized secular officiant or a person designated by a religious group or a native American group, or where there is some group affirmation of the commitment between the parties, can be conducted only after application for a marriage license, issuance of a marriage license, and provision of a marriage certificate. Even in a situation where no single person conducts a marriage, as in a group affirmation in recognition of a marriage, the participants themselves must return the marriage certificate to the clerk of the county court.

Although the freedom to marry is one of the basic rights of mankind and is fundamental to our society (see Boddie v. Connecticut (1971), 401 U.S. 371, 376, 28 L. Ed. 2d 113, 118, 91 S. Ct. 780, 785), reasonable regulations that do not interfere in a significant manner with decisions to enter into the marital relationship may be imposed. (See Zablocki v. Redhail (1978), 434 U.S. 374, 386, 54 L. Ed. 2d 618, 631, 98 S. Ct. 673, 681.) There is a rational relationship which exists between the requirement that marriages of any sort be licensed and the strong continuing interest of the State in the institution of marriage, which adheres to the traditional doctrine that marriage is a civil contract between three parties, the husband, the wife, and the State itself. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 63, 394 N.E.2d 1204, 1210.) The Hewitt court recognized that the policies inherent in the Illinois Marriage and Dissolution of Marriage Act, which provides procedures for solemnizing and registering marriages, serve to strengthen and preserve the integrity of marriage and to safeguard family relationships. Hewitt, 77 Ill. 2d at 61, 394 N.E.2d at 1209.

The provision of sanctions under section 32 — 6(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 6(a)) for persons who conduct a marriage ceremony knowing that performance was not authorized by law reflects the public policy embodied in the Act, which seeks to regulate marriage for the protection of the citizens of Illinois. Defendant was clearly aware that the marriage ceremony which he performed was one conducted without a license. His signature appears with those of the celebrants on the “certificate of marriage without a license” which is part of the record. Furthermore, the attempt to legitimize the marriage as a common law marriage is one that must fail regardless of the good intentions of either the defendant Or the celebrants. Common law marriages were abolished by the legislature in 1905, reflecting the fact that the State of Illinois has a strong continuing interest in the institution of marriage and in precluding marriages from devolving into private contracts, terminable at will. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 64, 394 N.E.2d 1204, 1210.) The “affirmation of common law marriage” notarized and recorded in the office of the county clerk of Effingham County, accompanied by a “certificate of marriage without a license,” cannot serve to legitimize the defendant’s act of conducting a marriage without a marriage license issued by the State. The defendant clearly was in violation of section 32 — 6(a) of the Criminal Code of 1961 through his performance of an unlicensed marriage ceremony. His conviction and sentence are therefore affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE HARRISON

text:
    BOARD OF EDUCATION OF SPARTA COMMUNITY UNIT SCHOOL DISTRICT No. 140, Plaintiff-Appellant, v. THE ILLINOIS STATE BOARD OF EDUCATION et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0542
    Opinion filed August 26, 1991.

      David R. Smith and Edward J. Fisher, both of Nehrt, Sachtleben, Fisher, Smith & Kerkhover, of Chester, for appellant.
    Ralph H. Loewenstein, of Deffenbach, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, the Board of Education of Sparta Community Unit School District No. 140 (the School Board or Board), appeals from a judgment of the circuit court of Randolph County which upheld, on administrative review, the decision of an Illinois State Board of Education hearing officer which found that the School Board had no cause to dismiss defendant, Gary G. Stull, Jr., from his position as a tenured public high school teacher and that Stull should be reinstated with back pay and benefits. The sole question presented for our review is whether the hearing officer’s decision is contrary to the manifest weight of the evidence. For the reasons which follow, we hold that it is. We therefore reverse.

The record before us established that defendant Stull was employed by the School Board as a high school teacher and softball coach. As we have just indicated, Stull was tenured, i.e., he had entered upon “contractual continued service” pursuant to section 24 — 11 of the School Code (Code) (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 11). In accordance with section 24 — 12 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12), which governs the removal or dismissal of teachers in contractual continued service, the School Board approved a motion to dismiss Stull from his position “for cause.” The motion was based on Stull’s relationship with two female students at the high school where he taught. Both of those students had initially come into contact with Stull because they were interested in playing on the softball team for which he served as coach, and the School Board charged that Stull’s conduct with respect to these students was unprofessional and immoral.

As required by section 24 — 12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12), the School Board served written notice of the charges upon Stull and appended to that written notice a bill of particulars. The bill of particulars alleged various improprieties involving Stull and the two female students. Among these were that Stull had given unsolicited and uninvited kisses and hugs to the students, presented them with gifts, and written them letters expressing affection for and physical attraction to them.

Stull requested a hearing on the charges before a disinterested hearing officer pursuant to section 24 — 12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12). From a list provided by the Illinois State Board of Education, Stull and the School Board selected Professor Milton Edelman to serve as the hearing officer. Edelman accepted his appointment and conducted a hearing on the matter in August of 1989.

Following that hearing, the parties submitted briefs, and on December 15, 1989, Edelman rendered his decision. In that decision, Edelman found that while Stull’s “actions may, in some instances, have been unwise and shown poor judgment, *** they do not constitute just cause for dismissal.” Edelman further determined that “[t]he evidence supports a finding that [Stull’s] conduct is remediable.” Accordingly, Edelman concluded that Stull should be “reinstated and made whole for all losses of wages and benefits resulting from his dismissal.” As authorized by sections 24 — 12 and 24 — 16 of the School Code (Ill. Rev. Stat. 1987, ch. 122, pars. 24 — 12, 24 — 16), the School Board then sought administrative review of the hearing officer’s decision in the circuit court of Randolph County pursuant to article III of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Following a hearing, the circuit court upheld the hearing officer’s decision, and the School Board now appeals.

There is no dispute that tenured public school teachers may not be removed from employment except for cause. “Cause” is some substantial shortcoming which renders continuance in employment detrimental to discipline and effectiveness of service; something which the law and sound public opinion recognize as a good reason for the teacher to no longer occupy his position. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1026-27, 506 N.E.2d 640, 642-43.) In this case, as we have indicated, the finding of cause by the School Board was based on various improprieties by Stull, including giving unsolicited and unwanted hugs and kisses and presenting gifts to the two female students involved. Stull argued that these incidents either did not occur as the students claimed or else could be interpreted innocently. The hearing officer agreed, and we will not disturb his findings on this point. After all, the findings and conclusions of an administrative hearing officer on questions of fact such as these are considered to be prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110) and may be set aside only if contrary to the manifest weight of the evidence (Massie v. East St. Louis School District No. 189 (1990), 203 Ill. App. 3d 965, 971, 561 N.E.2d 246, 250).

This, however, does not end our inquiry. The record shows that the allegations of improper physical contact and gift giving actually played a relatively minor role in the Board’s decision to discharge Stull. The primary reason the Board sought to fire him was because of the series of letters he sent to the two female students. Given the importance of those letters to the case, we shall quote from them at length.

To the first student, whom we shall identify only as C.O., Stull wrote, in part:

“I care for you a lot, Lady. You’re a very pretty young woman and I really appreciate your looks, personality and maturity. You mentioned the fact that you were glad of my attentions. I am taking this as a fact that you liked holding hands, hugging, touching and kissing as much as I did. I may be way off track. I can still feel your closeness on Fri. today as I did then. Still feel, taste & enjoy our kiss, wanting to hold you and have another. I thought about and still felt it all weekend. Thanks for that.
I will be more distant. If you can let me know who has said anything I will especially back off when this person is around. What I feel for you won’t change. It hurts to think of the happiness I will miss. When we don’t have people around can I touch, hold and enjoy the feelings I have? A simple yes or no will do.
* * *
I love you lots!” (Emphasis in original.)

Stull’s correspondence with the second student, whom we shall identify as T.A., was much more extensive. Twelve different letters to her were adduced by the School Board at the hearing. One of those, identified as School Board exhibit 2, states:

“Hi Doll. (Frogger)
* * *
Neat letter today[.] I’ve read it 4 times already, (except for the ‘hey ya butt!!!’)
* * *
As for thanking me. Hey. Being around is enough. A smile, a hug. Looking pretty the way you do. Who needs words when I have these things!! I want you to know that I’ll always be here for you. A shoulder to lean or cry on, a hand to hold[,] an ear to listen, I’m here. I was only kidding this A.M. *** Any time for you, Babe.
I’m glad you think my eyes are pretty. I look forward to seeing how you look everyday. Seeing a pretty lady like you starts my day off right.
I care for you an awful lot, [T.]. I have a hard time keeping my thoughts off of you. Wonderin [sic] if you’re smilin’, what class you’re in[,] how cute you are. All these & more.”

In another letter, identified as School Board exhibit 3, Stull confessed:

“Hey Lady.
* * *
I feel weird about my feelings. I have never felt this way since I fell for my other girl. (Know who?) I get goose bumps being around you and feel queasy in my stomach when I know I get to see you for a little bit. I love you Lady. I think more than you will know.
I am planning on being around. Even if something would come up. You [indecipherable] or me change jobs, you would still be a part of my life. A big part. I think about you a bunch. Probably too much, but I can’t keep my mind off you.
Thanks for saying J’-n keeping you from a living hell. Please know that I am here for you. Whenever, wherever, or whatever you want, need, desire, call and I’ll do all I can to make your wish come true.
* * *
Anybody take your place?? I’m yours, Lady. It’s almost frightening what I would consider doing if you asked. There is no more room in my heart for anyone else. You have helped fill an empty void. Thanks.
* * *
Why do I spoil you?? Cuz I love you. I think its great to see your happy smile, the flash and glisten of your eyes the way you look at me when I do something to spoil you. These are just a few reasons why.
* * *
The last part of your note I just got done reading for the 5th time. Thank you for caring the way you do and not thinking less of me for my feelings toward you. I’d love to have some time just for us. Maybe someday. Well, it has been a lot easier writing with this note here in front of me. *** I hope I can see you both Thurs & Fri sometime. Need to go. I love you.”

In another letter, designated as School Board exhibit 4, Stull wrote:

“Dearest [T.]
* * *
*** Whenever I have something good in my life (you) I have a tedency [sic] to loose [sic] it, and I’d hate to loose [sic] what we have.
* * *
Have my feelings changed?? Maybe, but only for the better and stronger. It was hard getting through vacation time only thinkin’ ‘bout you and not seeing you. I enjoyed the talk we had over break that one day you pitched (or at least tried to). Seeing you relax on the couch, I really wanted to come over and join you. Oh, well....”

In a letter designated as School Board exhibit 6, Stull continued in the same vein:

“Hey Lady!!
* * *
I haven’t told you yet but you look neat today. You have a sexy right knee. (That’s not all, either) Ha!! Ha!!

* * *

Last Thurs when you said it was lonely when I wasn’t there 9th hour. I know what you mean. My day didn’t end right. I was trying to figure out what was wrong and then I remembered I didn’t see [T.].
As far as looking retarded wearing the skirt last week. [T.] if that’s retarded, send me to the crazy house. You looked super and the reason people were staring was because you did look so good. Anytime you want to dress up for me is fine with me. I appreciate a beautiful young woman when I see one. I am imaging [sic] you in your skirt now and I must say, I can imagine pretty well.
* * *
I must be nuts, but sometimes I just want to hold you close. This A.M. when you opened your present and smiled, you looked so very pretty and I really felt awful close to you. I wanted to let you know how deeply I care for you and I hope you can and do know that my feelings are strong for you. I try to see your smile, your eyes and how they sparkled when you teased me. Hear you laugh and giggle when your [sic] happy.
Thanks for being around. I love you bunches.” (Emphasis in original.)
In a letter identified as School Board exhibit 7, Stull went on:
“Hey Babe[:]
* * *
Why do I say you look neat?? Look in the mirror, Lady. Pretty hair (that my fingers get caught in)[,] pretty sensual face, [d]eep eyes that I’d love to crawl into, soft wonderful lips, and a great body to hold it up. Really, [T] you are a pretty lady and a lot of time the clothes you wear suit you and you do look great. BUT you could wear rags and as long as you smile, you’d be beautiful.
I’m happy you like the bear. Please consider the sweatshirt as a gift also. K?? KH!
* * *
Stupid skirt?? No way. Sexy is more like it.
* * *
I was serious this A.M. about wanting to hold you close when you cried. Hold you close & not let you go. Then you stopped crying & I lost my chance. Oh, well. [BJetter luck next time.
I still feel its [sic] neat, how our feelings have grown. I liked you. But I had no visions of falling head over heels for you. I am so happy when your [sic] around and when your [sic] not I can imagine and its [sic] almost as good.
Want to hear somethin [sic] really dumb?? Holdin [sic] hands[,] takin [sic] you home yesterday was neat. Going to the game last night I had an itchy nose & my hands still smelled like you. It was neat!! Almost like havin [sic] you close!! Is that silly or what?? Love you.” (Emphasis in original.)

There are other passages of similar import. These are among the worst.

The hearing officer believed that these letters were not cause for termination because they “do not show sexual intent.” Although he acknowledged that “some of the wording in the letters appears to have sexual meaning,” his position was that the letters should not be read in isolation. Instead, he thought they must be considered in the context of Stull’s philosophy of teaching, which was that an educator should address “the whole student rather than just teaching a particular subject matter.” In the hearing officer’s view, Stull’s letters were aimed at advancing this philosophy by “bolstering the self-image of these young women, especially [T.A.] who needed help with a number of personal problems.”

When considering documentary evidence such as these letters, we are not bound by the hearing officer’s findings of fact, but are free to examine the evidence and reach an independent conclusion. (National Boulevard Bank v. Citizens Utilities Co. (1982), 107 Ill. App. 3d 992, 1005-06, 438 N.E.2d 471, 481.) In our view, the hearing officer’s interpretation of the letters is wholly untenable. These letters are overtly sexual. Indeed, if one did not know their authorship, one would think they were written by some libidinous high school suitor, not a professional educator who was more than twice the students’ age. Aside from incidental chitchat about softball and such (which we have not included in our excerpts), they speak of little else but physical attraction and desire.

The sexual nature of the letters was confirmed by a clinical psychologist who testified at the hearing. He opined, as had the Department of Children and Family Services, that Stull’s conduct, including these letters, constituted sexual exploitation of the young women in question. The hearing officer did not give the psychologist’s testimony much weight, but the testimony of a psychologist was hardly needed to understand Stull’s actions in this case. To ignore the blatantly sexual basis of his overtures is to forsake common sense. This was not simply a matter of morale boosting. It was seduction. That surely is something which no legitimate pedagogical philosophy could possibly sanction as a proper tool in the education of children.

The young women in question came to Stull because he was the softball coach and they wanted the opportunity to play on his team. They, and their parents, had a right to expect that they would be given that opportunity without having to be subjected to the type of conduct involved here. The students looked to Stull for guidance. What they got was a come on. Given their apparent emotional turmoil and vulnerability, which the hearing officer himself recognized, this was probably the last thing they needed. In the end, Stull’s attention to them merely exacerbated their problems. Far from making them better students or athletes, it ultimately resulted in their forsaking softball entirely. And when they eventually rebuffed Stull and came forward to complain of what he had done, they were actually ostracized by their peers, who blamed them for daring to bring Stull’s reputation into question. The victims were thus victimized again. For all these reasons, the School Board could certainly have concluded that Stull’s actions were immoral and were detrimental to the discipline and effectiveness of his continued service in the school district.

The hearing officer found that even if Stull’s conduct were improper, it could be remedied. The issue of remediability is important, because if conduct is remediable, a teacher is entitled to written warning before being dismissed. Without such warning, a School Board has no jurisdiction to terminate a teacher’s employment for the conduct charged. If the teacher’s conduct is irremediable, on the other hand, no written warning is required before dismissal action is initiated. Massie v. East St. Louis School District No. 189 (1990), 203 Ill. App. 3d 965, 973, 561 N.E.2d 246, 251.

As a general rule, the test for determining whether conduct is irremediable is (1) whether damage has been done to the students, .faculty, or school, and (2) whether the conduct resulting in that damage could have been corrected had the teacher been warned. (203 Ill. App. 3d at 973, 561 N.E.2d at 251.) Whether a cause for dismissal is remediable is a question of fact, the initial determination of which is the responsibility of the School Board. The Board’s decision should not be overturned unless the reasons given for dismissal are against the manifest weight of the evidence or the Board acted in an arbitrary or capricious manner. (Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1027, 506 N.E.2d 640, 643.) In this case, the School Board did find that Stull’s conduct was irremediable, and the hearing officer had no proper basis for overturning that determination.

Evidence adduced at the administrative hearing demonstrated the adverse effect Stull’s conduct had on his victims and the potential harm which might befall other female students if Stull were not removed from his position. The hearing officer did not give much credence to this evidence. Indeed, he seems to have trivialized the entire episode. He even accused the young women of having misinterpreted Stull’s motives. We, however, fail to see how anyone could reasonably come to such a conclusion based upon the record presented here. Even if one discounts entirely the testimony of the young women and the psychologist, the import of Stull’s letters is all too clear. That such conduct has profound harm on the students involved, the student body as a whole, and the very operation of the school’s educational enterprise seems to us to be self-evident.

The hearing officer appears to have made much of the fact that, under the record, Stull “would have stopped writing letters, stopped hugging students, never offered even light kisses, not given presents, had he known the Board’s wishes.” But this is not enough. A discharged teacher could always say that if only he had been told not to do something wrong, he would have refrained from the offending conduct. This would virtually eliminate the ability of school districts to discharge teachers, for “[i]f it took only a promise never to engage in the improper conduct again, it is clear that it would be very difficult, if not impossible, to satisfy the second prong of the remediability test.” (Board of Education of Argo-Summit School District No. 104 v. State Board of Education (1985), 138 Ill. App. 3d 947, 952-53, 487 N.E.2d 24, 27, quoted in McBroom v. Board of Education of District No. 205 (1986), 144 Ill. App. 3d 463, 473, 494 N.E.2d 1191, 1198.) For this reason, our court has recognized that the second prong of the remediability test is not appropriate in situations such as this one involving immoral conduct by a teacher. In such cases, the more appropriate focus is not whether the conduct itself could have been corrected by a warning, but whether the effects of the conduct could have been corrected. Fadler v. Illinois State Board of Education (1987), 153 Ill. App. 3d 1024, 1028-29, 506 N.E.2d 640, 644.

As in Fadler and our more recent decision in Massie v. East St. Louis School District No. 189 (1990), 203 Ill. App. 3d 965, 974-75, 561 N.E.2d 246, 252, we believe the circumstances here are such that

“[a] warning, even if effective in stopping plaintiffs conduct, would not be effective in correcting the *** damage to the students or the damage to the reputation of the faculty, school district and [teacher] himself. *** [The teacher’s] conduct has no legitimate basis in school policy or society. No purpose would be served by giving [the teacher] a written warning. We conclude, therefore, [that the teacher’s] conduct is irremediable.” Fadler, 153 Ill. App. 3d at 1029, 506 N.E.2d at 644.

For the foregoing reasons, we hold that the circuit court erred in sustaining the hearing officer’s decision that Stull should be reinstated as a teacher with back pay and benefits. The School Board had cause to discharge Stull, and its discharge decision should have been upheld on administrative review. Accordingly, the judgment of the circuit court of Randolph County is reversed.

Reversed.

HOWERTON and GOLDENHERSH, JJ., concur.


text:
    FARM CREDIT BANK OF ST. LOUIS, as Successor to The Federal Land Bank of St. Louis, Plaintiff-Appellant, v. McKINLEY ANDREW BROWN, a/k/a Mac Brown, Indiv., et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0538
    Opinion filed August 26, 1991.

      Terry Sharp and William K. Richardson, both of Law Office of Terry Sharp, P.C., of Mt. Vernon, for appellant.
    Edward J. Heller, of Reed, Heller & Mansfield, of Murphysboro, for appellees.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Farm Credit Bank (FCB), brought an action in the circuit court of Williamson County against the defendants seeking to recover monies owed on a promissory note. The note in question had been secured by a mortgage on certain farm ground. When the note went into default, FCB foreclosed on the mortgage and the property was sold. Because the proceeds of the sale were insufficient to pay off the outstanding balance, FCB subsequently filed the present action to recover the deficiency. Defendants filed a motion to dismiss which was granted by the trial court. Plaintiff appeals. We affirm.

On March 24, 1981, Loren Brown, as sole maker, executed a promissory note in the amount of $142,100 in favor of the Federal Land Bank of St. Louis, plaintiff’s predecessor in interest. The loan was to be repaid in 24 annual installments and was secured by a mortgage executed by Loren and Beth Brown on certain farm ground in Hamilton County, Illinois. Loren Brown died on April 22, 1983, and his will was admitted to probate. Article first of the will provided that the executor was to fully pay all just debts and funeral expenses. Article second established a testamentary trust for the benefit of Beth Brown during her lifetime, the corpus of which consisted of two tracts of land in Saline County and $10,000 in cash. McKinley Brown and Ann Hurst were the residual beneficiaries of the trust, and McKinley Brown was named as testamentary trustee. The residue of the estate, including the property subject to FCB’s mortgage, passed to Beth Brown via article third. Letters testamentary were issued on May 27, 1983, naming decedent’s son, defendant McKinley Brown, as executor. McKinley Brown caused notice of Loren Brown’s death to be published in September of 1983. An inventory of the estate assets was filed on May 25, 1984, the total value of which was listed at $1,112,263.78. Item one in the inventory described the Hamilton County property, which consisted of approximately 400 acres of farm ground, valued at $800 per acre, or $288,000. The mortgage in favor of FCB covered 200 acres of this land, and the inventory noted the existence of the mortgage and an outstanding balance due thereon of $145,736. On January 10, 1987, McKinley Brown wrote a letter to FCB indicating that Loren Brown was deceased and that Beth Brown was now the owner of certain stock Loren Brown had held in FCB. No claim was filed by FCB. Final accounting was filed on August 21, 1987. The final accounting was approved and the estate was closed.

The annual installment payments on the note continued to be made through 1987. The 1988 payment was not paid, and the loan went into default. Plaintiff filed a complaint for foreclosure on November 22, 1988, naming as defendants Beth Brown, McKinley Brown, unknown owners, nonrecord claimants, and the unknown heirs and devisees of Loren Brown. Although the complaint specifically alleged that none of the named defendants were personally liable for any deficiency, the prayer for relief requested a personal judgment for any deficiency “if authorized by law.” The judgment of foreclosure ordered the property to be sold and specifically found that none of the named defendants were liable for any deficiency arising from such sale, but also provided that if the proceeds of the sale were insufficient to pay the amounts due plaintiff, the sheriff was to specify the amount of the deficiency “and [that] a judgment shall be entered therefor, if appropriate.” The property was sold and the sheriff’s report of sale was entered on June 2, 1989. According to the report, the property was purchased by FCB for $90,000. At the time of sale, the total amount of indebtedness including interest on the judgment, costs, and fees, was $173,332.46, which left a deficiency in the amount of $83,332.46. The present complaint for deficiency was filed on January 5, 1990. Count I of the present complaint sought a finding by the trial court that FCB still had a claim against the estate of Loren Brown for the deficiency. Count II sought a full accounting from McKinley Brown in his capacity as trustee of the testamentary trust. Count III sought the imposition of a constructive trust on the testamentary trust, the income from the administration of which would be paid to FCB, or, alternatively, the sale of sufficient trust assets to pay FCB the amount of the deficiency. Count IV sought a judgment against McKinley Brown, in his capacity as surety under his executor’s bond, for breach of his duties as executor. Count V alleged that McKinley Brown continued making payments or caused such payments to be made on the note, constituting fraud, and sought a personal judgment against him. Count VI sought a personal judgment against McKinley Brown for breach of his duties to FCB as executor. Count VII sought a judgment based on unjust enrichment against Beth Brown, individually and as residual beneficiary, and count VIII sought the imposition of a constructive trust upon the residue of the estate. Defendants moved to dismiss the complaint based upon the res judicata effect of the prior foreclosure action and FCB’s failure to file a claim within six months of the date the claims notice was published or within six months of having received actual notice. The trial court found that plaintiff’s complaint against the estate was barred by the claims limitation period. The court also found that pursuant to section 15 — 1501 of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1501), parties against whom personal judgment of deficiency is sought are necessary parties to a foreclosure action; that plaintiff did not seek a deficiency judgment against any of the defendants in the complaint for foreclosure; and that the judgment thereon provided that none of the named defendants therein were liable for a deficiency. Based upon this finding the trial court concluded that the claims in plaintiffs present complaint were also barred by the res judicata effects of the judgment of foreclosure. Finally, the trial court found because McKinley Brown had given notice to FCB of Loren Brown’s death, an allegation of fraudulently concealing that death could not be sustained, and the court entered an order dismissing all eight counts of the complaint.

On appeal, FCB argues that it has a proprietary interest in the traceable assets of the estate because it did not receive actual notice of decedent’s death until after the claims bar date had passed. Citing Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, FCB argues that due process requires that known creditors of an estate be given actual notice of death, and that the trial court erred in not applying Tulsa retroactively.

At the time of decedent’s death, section 18 — 12 of the Probate Act provided:

“All claims against the estate of a decedent, except expenses of administration and surviving spouse’s or child’s award, not filed with the representative or the court within 6 months after the entry of the original order directing issuance of letters of office are barred as to all of the decedent’s estate ***.” (Ill. Rev. Stat. 1983, ch. 1101/2, par. 18 — 12.)

Notice of death was therefore not required and the lack thereof did not operate to prevent creditors’ claims from being barred. In 1985, section 18 — 12 was amended to make publication notice of death pursuant to section 18 — 3 a requirement before a claim would be barred. (Ill. Rev. Stat. 1985, ch. 1101/2, pars. 18 — 3, 18 — 12.) This amendment applied to the estates of decedents dying on or after September 16, 1985. (Pub. Act 84 — 395, eff. Sept. 16, 1985.) Because Loren Brown died prior to September 16, 1985, notice of death by publication or otherwise was not required by statute.

On April 19, 1988, approximately eight months after the estate was closed, the Supreme Court ruled in Tulsa that notice by publication alone did not satisfy the requirements of due process as to known creditors of an estate. Such creditors, the court held, were entitled to actual notice. Because the decision in Tulsa was rendered after the estate of Loren Brown was closed, the rule announced therein impacts on the present case only if Tulsa is applied retroactively. The question of the retroactive application of Tulsa appears to be a case of first impression in Illinois.

To determine whether the Tulsa rule should be applied retroactively, we must examine the criteria for retroactive application of decisions in civil cases articulated in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349. Those criteria are:

“First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied [citation], or by deciding an issue of first impression whose resolution was not clearly foreshadowed [citation]. Second, it has been stressed that ‘we must *** weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ [Citation.] Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ [Citation.]” Chevron, 404 U.S. at 106-07, 30 L. Ed. 2d at 306, 92 S. Ct. at 355.

Regarding the first criterion, both parties maintain that the Tulsa result was “clearly foreshadowed” by the Supreme Court’s decisions in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652, and Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706, and by the court’s rationale in Gibbs v. Estate of Dolan (1986), 146 Ill. App. 3d 203, 496 N.E.2d 1126. In Mullane, the Supreme Court held that as a matter of due process, State action affecting property must generally be accompanied by notice. (Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.) In Mennonite, the court held that actual notice was required of a proceeding which would adversely affect liberty or property interests where the name and address of the party in question was reasonably ascertainable. (Mennonite, 462 U.S. at 800, 77 L. Ed. 2d at 188, 103 S. Ct. at 2712.) In Gibbs, the court held that Mullane and Mennonite did not require that actual notice be given to known creditors of an estate because those cases concerned notice of a pending adjudication of rights, whereas the claims bar date in a probate proceeding was analogous to a statute of limitations period, notice of which was not required. (Gibbs, 146 Ill. App. 3d at 208-09, 496 N.E.2d at 1130, citing Texaco, Inc. v. Short (1982), 454 U.S. 516, 536, 70 L. Ed. 2d 738, 755, 102 S. Ct. 781, 796.) Contrary to the parties’ assertions, Gibbs, far from foreshadowing the result in Tulsa, portends just the opposite. (We note that the Gibbs analogy is no longer viable, however, given the Supreme Court’s finding in Tulsa that Oklahoma’s nonclaim statute was not a self-executing statute of limitations and that Short was inapposite. The Tulsa court reasoned that because the probate court was involved throughout the process, because the nonclaim statute is operative only after probate proceedings have been commenced, and because the time bar is not triggered by the appointment by the court of an executor or executrix, Oklahoma’s nonclaim statute was not self-executing and so was not analogous to a statute of limitations. (Tulsa, 485 U.S. at 486-87, 99 L. Ed. 2d at 576, 108 S. Ct. at 1345.) The claims bar date set forth in section 18 — 12 is triggered by the issuance of letters testamentary by the court. Clearly, the claims bar date contained in the Illinois Probate Act, like that of Oklahoma’s probate code, is not self-executing.) We note also that in Tulsa, the Supreme Court acknowledged that “the almost uniform practice is *** to provide only publication notice.” (Tulsa, 485 U.S. at 489, 99 L. Ed. 2d at 578, 108 S. Ct. at 1347.) Given this and the decision in Gibbs, we are not persuaded that the decision in Tulsa was “clearly foreshadowed.”

We are, however, convinced that Tulsa clearly overrules past precedent upon which the parties may have relied. It has long been the law in Illinois that it was the responsibility of the creditor to formally notify the representative of its claim and that absent such notice, the representative was not required to pay the claim, even if he had actual knowledge of it. (In re Estate of Worrell (1982), 92 Ill. 2d 412, 442 N.E.2d 211, citing Morse v. Pacific Ry. Co. (1901), 191 Ill. 356, 61 N.E. 104; In re Estate of Newcomb (1972), 6 Ill. App. 3d 1094, 287 N.E.2d 141; Bosnah v. Murphy (1960), 28 Ill. App. 2d 110, 170 N.E.2d 640.) As the court in Worrell noted, the statute’s insistence that the creditor formally notify the estate representative of his claim “[was] indicative of a policy that [had] existed in Illinois for many years.” (Worrell, 92 Ill. 2d at 420, 442 N.E.2d at 214-15.) The sufficiency of notice by publication, even as to known creditors, was impliedly upheld in Gibbs wherein the court distinguished Mullane and Mennonite and rejected appellant’s contention that due process required more than publication notice. (Gibbs, 146 Ill. App. 3d 203, 496 N.E.2d 1126.) Although the court in Tulsa ultimately rejected the distinction the Gibbs court drew between Mullane, Mennonite, and the case before it, Gibbs is illustrative of the state of the law in Illinois at the time the Brown estate was probated. We find that the first Chevron Oil criterion militates in favor of a nonretroactive application of Tulsa.

The second Chevron Oil criterion requires us to weigh the merits and demerits of each case by determining whether retroactive application would further the rule announced in Tulsa. The purpose of the actual notice requirement is to prevent known or readily ascertainable creditors from being deprived of a property interest without due process of law, as determined by Mallone and Mennonite. While retrospective application might further the purpose and operation of the rule, we believe that given the hardship which would be created by retrospective application to an estate which is already closed and the fact that the rule in Tulsa represents a departure from past probate law, the demerits of retrospective application outweigh the merits.

The final factor to be considered under Chevron Oil is the potential inequity, injustice, and hardship that might be created by retroactive application. Retroactive application of the actual notice requirement of Tulsa to estates already closed could open a Pandora’s box and cause the disturbance of many settled property rights, rights defined by reliance on long-standing and well-settled law. One of the very purposes of the claims limitation period, and the reason why our courts have adamantly refused to craft exceptions to it, is to promote the expeditious disposition of estates.

The question of retroactive application of Tulsa has been addressed by the courts of several other States. In Hanesworth v. Johnke (Wyo. 1989), 783 P.2d 173, the supreme court of Wyoming declined to apply Tulsa retroactively. Applying the factors set forth in Chevron Oil, the court found that the Tulsa decision addressed a question of first impression, that the benefit of avoiding the hardships created by retroactivity weighed in favor of nonretroactive application, and that retroactive application could cause the disturbance of many property rights, creating hardship and injustice. (Hanesworth, 783 P. 2d at 177.) In reaching its conclusion, the Wyoming Supreme Court noted with respect to the first criterion that the Supreme Court in Tulsa “acknowledged that it rejected a practice widely adopted by state legislatures and courts.” (Hanesworth, 783 P.2d at 177.) In Estate of McDowell (1989), 245 Kan. 278, 777 P. 2d 826, the supreme court of Kansas applied Tulsa to the case under consideration, even though the decedent had died and probate proceedings had been initiated prior to the Tulsa decision. After reiterating the criteria set forth in Chevron Oil, the court in McDowell held that Tulsa was applicable. The court reasoned that because the estate was still open at the time the Tulsa decision was rendered, because no funds had been distributed, and because no real estate titles would be involved, application of Tulsa would cause no significant hardships, inequities, or disruptions. These are crucial distinctions between McDowell and the case at bar. In Trustees of the Washington-Idaho-Montana Carpenters-Employees Retirement Trust Fund v. Galleria Partnership (1989), 239 Mont. 250, 780 P. 2d 608, the supreme court of Montana characterized Tulsa as a “step-out” from the earlier cases of Mullane and Mennonite. In Missouri Highway & Transportation Comm’n v. Myers (Mo. 1990), 785 S.W.2d 70, the supreme court of Missouri stated in dicta that a persuasive argument could be made for not applying Tulsa retroactively.

Based upon our analysis and the opinions of the high courts of a number of our sister jurisdictions, we hold that the Supreme Court’s decision in Tulsa should not be given retroactive effect. We are aware that the court in Rose v. Kaszynski (1988), 178 Ill. App. 3d 266, 533 N.E.2d 73, relied on Tulsa in affirming the trial court’s allowance of a claim against an estate of a decedent who died in 1984, a claim which was not made prior to the expiration of the claims limitation period. It is not clear from the opinion whether the estate was still open at the time Tulsa was decided and the court does not address the question of retroactivity. To the extent that our opinion is in conflict with Rose, we decline to follow it.

Having determined that Tulsa should not be applied retroactively, FCB was not entitled, as a matter of due process, to actual notice of Loren Brown’s death. Under the statutes in force at the time, the executor was not even required to provide notice by publication, although such notice was provided in this case. Where a creditor fails to file a claim against the estate, even if such debt is not presently due and owing, he is not entitled to share in the proceeds and cannot pursue estate assets into the hands of the beneficiaries. (Beebe v. Kirkpatrick (1926), 321 Ill. 612, 152 N.E. 539.) Though not yet due, the note was an absolute obligation and FCB could have filed a claim against the estate for the balance due on the note. (Ill. Rev. Stat. 1983, ch. 1101/2, par. 18 — 4; In re Estate of Lloyd (1965), 44 Ill. App. 2d 215, 194 N.E.2d 525; In re Estate of Whipple (1936), 285 Ill. App. 491, 2 N.E.2d 366.) As noted above, our courts have repeatedly stressed the necessity of filing a claim and have consistently refused to create exceptions even where equity would otherwise demand such exceptions. (Wingate v. Pool (1860), 25 Ill. 102; In re Estate of Ito (1977), 50 Ill. App. 3d 817, 365 N.E.2d 1309.) Having failed to file a claim against the estate, FCB’s sole and only recourse was to the mortgaged premises. In re Estate of Duffield (1930), 258 Ill. App. 78, 86.

We next address the res judicata effects of the prior foreclosure action on plaintiffs complaint for deficiency. The foreclosure complaint was brought against Beth Brown, McKinley Brown, unknown heirs and devisees of Loren Brown, unknown owners, and non-record claimants. Section 15 — 1501 of the Mortgage Foreclosure Law requires that all parties against whom personal liability is sought be joined as necessary parties. The judgment of foreclosure specifically found that none of the named defendants were liable for any deficiency that might arise from the sale. Plaintiff maintains that it had no contractual right to a deficiency judgment. Plaintiff is correct. Loren Brown was the sole maker of the note and the only party liable thereon. The mortgage agreement, signed by both Loren and Beth Brown, did not provide for an action for any deficiency should the sale of the mortgaged property produce insufficient funds to pay the outstanding debt. As stated above, FCB’s only recourse was to the mortgaged premises. The only name on the mortgage, other than Loren Brown’s, was Beth Brown’s. The foreclosure judgment specifically found that she was not liable for any deficiency. Under the doctrine of res judicata, issues which have been adjudicated and determined in a former action cannot be relitigated in a subsequent action between the same parties or their privies. (Skolnick v. Petella (1941), 376 Ill. 500, 34 N.E.2d 825.) Accordingly, FCB cannot now seek a deficiency judgment against her.

Finally, we address the propriety of the court’s dismissal of those counts of the complaint which are based upon McKinley Brown’s actions as executor. In its complaint, FCB alleged that McKinley Brown failed to pay the just debts of the estate as he was charged to do by the will. The discharge of this duty does not include payment of debts for which no claim has been filed. It is the duty of an executor to preserve assets of the estate and pay only those debts for which a claim has been made. (Duffield, 258 Ill. App. at 86.) Indeed, part of an executor’s duty is to raise the claims bar limitation period as a defense against otherwise valid claims. (In re Estate of Smith (1910), 155 Ill. App. 640.) Not only was McKinley Brown not obligated by his duty as executor to pay the debt owed to FCB, he was required not to pay it in view of FCB’s failure to file a claim, and to have done so would have been a breach of his duty as executor. (Fragd v. Estate of Fragd (1912), 175 Ill. App. 240.) Plaintiff also alleged that McKinley Brown’s continued payment of the annual installments of the note misled FCB into thinking that Loren Brown was alive so that FCB would not file a claim. Given that notice of Loren Brown’s death was provided to FCB, however, it cannot claim to have been misled by the actions of McKinley Brown and the trial court correctly found that the allegation of fraud could never be sustained.

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

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY S. ALLEN, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0203
    Opinion filed August 27, 1991.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301) from final judgment of the circuit court of Effingham County granting defendant Gregory S. Allen’s petition to rescind the statutory summary suspension of his driver’s license. Defendant has not filed a brief with this court. We proceed to address the merits of the State’s appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493; Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 472 N.E.2d 1228.

On December 25, 1989, defendant was arrested and charged by a uniform traffic ticket with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501). Defendant received a statutory summary suspension pursuant to section 11 — 501.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1) for failure to submit to chemical tests at the request of the arresting officer. Confirmation of that suspension was filed on January 5, 1990, and the suspension was to become effective on February 9, 1990, the 46th day following the arrest. Ill. Rev. Stat. 1989, ch. 95V2, par. ll-501.1(g).

On January 16, 1990, defendant filed a petition to rescind the statutory summary suspension and a hearing on the petition was scheduled for February 15, 1990. The State’s Attorney filed a motion on January 17, 1990, requesting substitution of judge for the assigned judge, the Honorable Richard H. Brummer, pursuant to section 114— 5(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 5(c)). Thereafter, on February 8, 1990, the chief judge assigned the Honorable E.C. Eberspacher as the trial judge in the case. On that date, Judge Eberspacher entered an order on his own motion removing the Effingham County State’s Attorney and her office from the prosecution of the case and requiring that she surrender her files to the sheriff.

On February 15, 1990, the date originally set for the hearing on defendant’s motion to rescind the suspension, defendant appeared before the daily call judge, the Honorable Steven P. Seymour, and announced his readiness to proceed with the hearing. Judge Seymour stated that he had no authority to hear the petition to rescind because the case had been assigned to Judge Eberspacher. Although an assistant State’s Attorney was present in the courtroom, Judge Seymour noted that due to Judge Eberspacher’s order removing the State’s Attorney’s office from the case, no one appeared on behalf of the State.

On February 20, 1990, Judge Eberspacher entered an order reinstating the State’s Attorney as the prosecuting authority and reinstating Judge Brummer as the trial judge in defendant’s case. Later that day, defendant and an assistant State’s Attorney appeared before Judge Seymour and the State’s motion for continuance was granted because the prosecutor had not had control of the State’s file and had had no opportunity to subpoena witnesses.

On March 1, 1990, the parties appeared for the hearing on defendant’s petition to rescind the suspension and defendant filed a second motion to rescind based on a failure to hold a rescission hearing within 30 days of defendant’s January 16, 1990, request, as required under section 2 — 118.1 of the Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1). The State argued that, due to Judge Eberspacher’s order, the State had no control over the failure to hold a timely hearing and should not be held accountable for its absence. Further, the State contended that the mandatory time requirement of section 2 — 118.1 was not intended to apply when circumstances beyond the State’s control precluded it from proceeding.

Judge Seymour agreed that the failure to hold the hearing within the time limits of the statute was not the result of a lack of diligence either by the State or by defendant. However, the court stated that based on In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614, it was compelled to grant defendant’s motion to rescind the statutory summary suspension.

We agree with the trial court that Trainor is dispositive of the instant case. Section 2 — 118.1(b) of the Code provides in relevant part as follows:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. *** Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 2-118.1(b).)

The Trainor court interpreted this 30-day time period as mandatory and held that the failure to hold a hearing within 30 days of the request, unless the delay was occasioned by defendant, violated defendant’s right to due process. (Trainor, 156 Ill. App. 3d at 922-23, 510 N.E.2d at 617.) In so holding, the Trainor court commented that the time frame specified in the statute reflected the legislature’s determination of what constitutes a prompt hearing for due process requirements, and that the only appropriate remedy for noncompliance with this rule was to require the rescission of the motorist’s suspension. 156 Ill. App. 3d at 922, 510 N.E.2d at 617.

We further agree with the trial court’s conclusion that because the statutory time period has been determined to be mandatory, rescission of defendant’s suspension was required because defendant did not cause the delay. In statutory construction, the use of the word “shall” generally indicates a mandatory meaning and will not be given a permissive meaning when it is used with reference to a person’s right or benefit, as here, and the right or benefit depends on the mandatory meaning. (People v. Rideout (1990), 193 Ill. App. 3d 884, 890, 550 N.E.2d 632, 635; Newkirk v. Bigard (1985), 109 Ill. 2d 28, 33, 485 N.E.2d 321, 323, cert, denied (1986), 475 U.S. 1140, 90 L. Ed. 2d 335, 106 S. Ct. 1789.) Although the State argues that the legislature could not have intended that a suspension be rescinded under the peculiar circumstances of the instant case, where the language of the act is certain and unambiguous the only legitimate function of the courts is to enforce the law as enacted by the legislature. It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent. Carswell v. Rosewell (1986), 150 Ill. App. 3d 168, 172, 501 N.E.2d 695, 697.

In the present case, the record shows that the hearing on defendant’s petition was held well after 30 days had elapsed from the date of his request, and after his driving privileges had already been rescinded. Therefore, applying the Trainor court’s reasoning to the case at bar and considering the intent of the legislation and the circumstances at the time the rescission order was entered in this case, we conclude that defendant did not have the benefit of the prompt hearing contemplated in the statute to satisfy due process requirements. The statutory summary suspension was therefore properly rescinded. Accordingly, the judgment of the circuit court of Effingham County is affirmed.

Affirmed.

HOWERTON and WELCH, JJ., concur.


text:
    VIRGINIA WALTERS, Special Adm’r of the Estate of Virginia King, Deceased, Plaintiff-Appellant, v. MARION MEMORIAL HOSPITAL, Defendant-Appellee.
    Fifth District
    No. 5-90-0506
    Opinion filed August 27, 1991.

      Mark I. Bronson, of Newman & Bronson, of St. Louis, Missouri, for appellant.
    Jonathan Ries and Bart C. Sullivan, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Virginia Walters, substituted as special administrator of the estate of Virginia King, now deceased, appeals from the entry of summary judgment granted by the circuit court of Williamson County dismissing her medical malpractice action against defendant, Marion Memorial Hospital (hospital), on the basis that the cause was barred by the statute of limitations as set forth in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212). We affirm.

On May 29, 1987, King, then age 71, was admitted to defendant hospital for various cardiological and gastrointestinal problems. She ultimately was discharged on July 31, 1987. On June 1, 1987, during her stay in defendant hospital, King fell, fracturing her right hip. On July 14, 1989, King filed a malpractice action against the hospital alleging she learned after being discharged that the nurse on duty negligently failed to properly assist her from the bathroom thereby causing her broken hip. The hospital moved for summary judgment on the grounds the two-year statute of limitations applicable to medical malpractice claims had already run. The trial court granted the hospital’s motion.

King, through Walters, argues on appeal the trial court erred in granting the hospital’s motion for summary judgment when her complaint was filed within two years after her discharge from the hospital’s continuous care and treatment. Moreover, plaintiff argues, whether she timely filed her complaint within two years of the date she discovered her injuries were caused by the hospital’s negligence is a disputed question of fact and therefore not properly decided upon a motion for summary judgment.

Summary judgment is appropriate when the pleadings, depositions, and affidavits, construed most strongly against the movant and most liberally in favor of the opponent, present no genuine issue of material fact and show that judgment should be granted as a matter of law. (See, e.g., Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 304-05, 541 N.E.2d 226, 230-31; Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 61, 501 N.E.2d 882, 886; see also Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 745, 544 N.E.2d 846, 849.) The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. (Dockery, 185 Ill. App. 3d at 304, 541 N.E.2d at 230.) If only one conclusion can be drawn from the undisputed facts, then it becomes a question of law with the timeliness of plaintiff’s complaint left for the trial court to determine. Neaterour, 188 Ill. App. 3d at 746, 544 N.E.2d at 850; Saunders, 150 Ill. App. 3d at 61, 501 N.E.2d at 886.

Section 13 — 212 of the Illinois Code of Civil Procedure states in part:

“[N]o action for damages for injury or death against any *** hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, *** of the existence of the injury or death for which damages are sought ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212.)

This section has been interpreted as meaning a plaintiff must bring his cause of action for damages against the hospital which he believes injured him within two years of the date on which he knew or reasonably should have known of his injury and that it was wrongfully caused. (Saunders, 150 Ill. App. 3d at 59, 501 N.E.2d at 885; Roper v. Markle (1978), 59 Ill. App. 3d 706, 710, 375 N.E.2d 934, 937-38; see also Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, 421 N.E.2d 864, 868; Ravin v. A.H. Robins Co. (1989), 182 Ill. App. 3d 46, 50, 538 N.E.2d 164, 166.) Wrongfully caused does not mean actual knowledge of a specific defendant’s negligent conduct or that an actionable wrong was committed (Dockery, 185 Ill. App. 3d at 305, 541 N.E.2d at 231; Saunders, 150 Ill. App. 3d at 59, 501 N.E.2d at 885; Bates v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 137, 140, 438 N.E.2d 1250, 1253), but rather becoming possessed of sufficient information concerning an injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct was involved. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81; Bates, 108 Ill. App. 3d at 140, 438 N.E.2d at 1253; see also Nolan, 85 Ill. 2d at 171, 421 N.E.2d at 868.) Often the nature of the injury itself controls the determination of when a plaintiff has such knowledge or reasonably should have known that his injury was caused by defendant’s wrongful conduct. (Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885; see also Ravin, 182 Ill. App. 3d at 51, 538 N.E.2d at 167.) If the injury is traumatic in nature, that is, immediate and caused by an external force or violence, the plaintiff knows or should know of his right to sue when injured. (See Bates, 108 Ill. App. 3d at 141-42, 438 N.E.2d at 1253-54; Roper, 59 Ill. App. 3d at 711, 375 N.E.2d at 938; see also Lofton v. General Motors Corp. (7th Cir. 1982), 694 F.2d 514, 518-19.) The more obvious the injury, the more easily a plaintiff should be able to determine its cause. (Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885.) On the other hand, if the injury is latent in nature, not manifesting itself until sometime after the defendant’s wrongful act occurred, or is an aggravation of a physical problem which may naturally develop absent negligent causes, a plaintiff is not expected to immediately know of either its existence or its potential wrongful cause. (Va Salle v. Celotex Corp. (1987), 161 Ill. App. 3d 808, 810, 515 N.E.2d 684, 686; Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885; Lutes v. Farley (1983), 113 Ill. App. 3d 113, 116, 446 N.E.2d 866, 868.) Until the plaintiff knows or should know that his condition, seemingly innocent in causation, is perhaps the result of another’s negligent acts, he has no opportunity to discover that a cause of action exists. (Roper, 59 Ill. App. 3d at 714, 375 N.E.2d at 940.) Here, however, plaintiff had the opportunity to discover that a cause of action existed when she fell. Under no clearer set of circumstances could a plaintiff pinpoint the precise time of an injury. (See Dockery, 185 Ill. App. 3d at 305-06, 541 N.E.2d at 231; see also Lofton, 694 F.2d at 515, 518.) Even plaintiff admitted she was injured on June 1, 1987, the day she fell. Her injuries were not the result of any past medical treatment, but rather arose from a traumatic event. As both the injury itself and its cause were obvious, a reasonable person would have been put on inquiry to determine whether actionable conduct was involved. By waiting 2 years and 44 days from the date of her injury to file her complaint against defendant hospital, plaintiff failed to file her cause of action in a timely manner. The trial court therefore properly granted defendant’s motion for summary judgment.

Plaintiff, however, raises the theory of “continuous care and treatment” as tolling the commencement of the statute of limitations. This theory recognizes that a cause of action as to any act occurring within the continuous treatment period rendered by a physician or hospital does not accrue until the end of the entire course of treatment. (See Neaterour, 188 Ill. App. 3d at 747, 544 N.E.2d at 850-51; Jacobson v. Natonson (1987), 164 Ill. App. 3d 126, 131, 517 N.E.2d 304, 307-08; see also Aznel v. Gasso (1987), 154 Ill. App. 2d 785, 788-89, 507 N.E.2d 83, 86.) As her course of treatment at the hospital did not end until July 31, 1987, the date of her discharge, plaintiff asserts her complaint filed within two years of this date was timely. Whether or not we choose to recognize the theory or doctrine of continuous care and treatment at this time (see Jacobson, 164 Ill. App. 3d at 131-32, 517 N.E.2d at 308), we believe plaintiff cannot take advantage of its tolling provision in any event. While plaintiff may have received continuing care at the hospital, the care itself for the various medical problems she had when she entered did not result in her injury. Moreover, continuing treatment alone does not satisfy the doctrine; continuing negligence is also needed in order to toll the statute of limitations. (See Aznel, 154 Ill. App. 3d at 788, 507 N.E.2d at 86. Contra Daly v. Carmean (1991), 210 Ill. App. 3d 19, 29, 568 N.E.2d 955, 961.) One traumatic event does not constitute continuing negligence. Therefore, as plaintiff failed to file her complaint within two years from the date she was injured, the day of her fall, we must affirm the trial court’s order of summary judgment.

For the aforementioned reasons, we affirm the judgment of the circuit court of Williamson County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    MALISIE TUCKER, Plaintiff-Appellant and Cross-Appellee, v. ILLINOIS POWER COMPANY, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5 — 90—0214
    Opinion filed August 27, 1991.

      Marc P. Weinberg, of Goldenhersh Law Offices, of East St. Louis, for appellant.
    Carl W. Lee and Gregory M. Skinner, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Malisie Tucker brought suit against Illinois Power Company (Illinois Power) alleging a violation of the Public Utilities Act (Ill. Rev. Stat. 1983, ch. 1112/3, par. 1 — 101 et seq.) because of an interruption of natural gas service to Tucker’s residence on or about January 29, 1985. The case was tried before a jury, and a verdict was returned for Tucker for $5,000. Tucker filed a post-trial motion and a motion to tax attorney fees and costs against the defendant. The trial court denied Tucker’s post-trial motion but allowed Tucker’s motion to tax attorney fees and costs of $1,666.67.

Tucker appeals, alleging, inter alia, that the trial court erred in denying her post-trial motion for a new trial and erred in limiting her award of attorney fees to the terms of her attorney’s contingency fee contract. Illinois Power cross-appeals, submitting that the trial court erred in finding that Illinois Power violated the Public Utilities Act and is required to pay Tucker’s attorney fees. The first issue we are called upon to decide is whether the trial court erred in denying Tucker’s motion for a mistrial at the close of jury selection.

Prior to jury selection plaintiff argued that because she is black, the principles of Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, required the court to conduct an evidentiary hearing to determine whether the defendant used its peremptory challenges to exclude blacks from the venire on the basis of their race. The court reserved ruling on whether an evidentiary hearing on that issue was required.

Each party had five peremptory challenges, and Illinois Power exercised four of its five challenges to exclude black members of the venire. Out of the presence of the venire, Tucker once again asserted her objection to Illinois Power’s use of peremptory challenges to exclude blacks without giving a racially neutral reason for doing so. Tucker moved for a mistrial on the grounds that the principles of Bat-son apply to civil cases, and that Illinois Power used its peremptory challenges to discriminate against blacks.

The four black members of the venire who were peremptorily challenged were L.V. Watson, Irene White, Havie Eades, and Darius Howlett. During voir dire Havie Eades stated that he lives in East St. Louis and is employed as a punch press operator. His wife is not employed and they have no children. Darius Howlett stated that he also lives in East St. Louis. He is employed as a cashier and stockman at National Supermarket and has never been married. No further questions were asked of Mr. Eades and Mr. Howlett. The only other factual information regarding the two men which we can discern from the record is their ages and levels of education.

In response to Tucker’s assertion that Illinois Power had to explain why it excluded four blacks, Illinois Power stated that L.V. Watson was challenged because he was a patient of the plaintiff’s treating physician, who was expected to testify at trial, and that Irene White was challenged because Illinois Power had reason to believe she was the chairman of an advisory group for senior citizens. Illinois Power offered no reason for excluding Havie Eades and Darius Howlett from the jury. The trial court denied Tucker’s motion for mistrial.

The Supreme Court in Batson held that the use of peremptory challenges by a prosecutor to purposefully exclude members of the defendant’s race from the jury in a criminal case deprives the defendant of equal protection of law. (476 U.S. at 86, 90 L. Ed. 2d at 80, 106 S. Ct. at 1717.) The principle espoused in Batson was recently broadened in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364, when the court held a criminal defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded jurors are of the same race. In yet another extension of Batson, the court in Edmonson v. Leesville Concrete Co. (1991), 500 U.S___ 114 L. Ed. 2d 660, 111 S. Ct. 2077, held that a private litigant in a civil case may not use peremptory challenges to exclude jurors because of race. The Edmonson court remanded the case for a determination of whether Edmonson had established a prima facie case of racial discrimination under the approach set forth in Batson (476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723), such that the defendant would be required to offer race-neutral explanations for its peremptory challenges.

Generally, the nature of a peremptory challenge suggests it may be used for any reason. To establish a prima facie case of purposeful discrimination in jury selection, the complaining party must first show that the opposing party has exercised peremptory challenges to remove members of a cognizable racial group from the venire. The next step for the person complaining about the use of the peremptory challenges is to show that all of the relevant circumstances raise an inference that the person challenging the jurors used peremptory challenges to exclude members of the venire on the basis of race. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723; Powers, 499 U.S. 400,113 L. Ed. 2d 411, 111 S. Ct. 1364.

Illinois Power contends that Tucker failed to establish a prima facie case of discrimination because two members of the jury panel were black. It has been held that the mere presence of some blacks on the jury does not preclude the court from finding that a prima facie case of discrimination has been established. (People v. Harris (1989), 182 Ill. App. 3d 114, 119, 537 N.E.2d 977, 980.) While the explanation for exercising a peremptory challenge need not rise to the level justifying exercise of a challenge for cause (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723), the party’s explanation cannot be considered race neutral if the party failed to exclude members of the venire of a second racial group having the same or similar characteristics and there are no further characteristics meaningfully distinguishing members of the venire of the second racial group who were retained from the venirepersons who were challenged. (People v. Mack (1989), 128 Ill. 2d 231, 239, 538 N.E.2d 1107, 1111.) The party pressed for an explanation must demonstrate that the excluded members of the venire exhibit a specific bias related to the particular cause to be tried, rather than the fact that their race will bias them in favor of the opposing party or render them unfit to serve on the jury. People v. McDonald (1988), 125 Ill. 2d 182, 198-99, 530 N.E.2d 1351, 1358.

Illinois Power failed to come forward with any explanation, let alone a race-neutral explanation, for its exclusion of Eades and Howlett. Tucker further contends that Illinois Power’s explanation for excluding Watson and White did not rebut the presumption of discrimination. The record reveals that (1) Illinois Power was not required by the trial court to explain the reasons behind the use of its peremptory challenges to exclude Eades and Howlett, (2) the reasons for their exclusion, other than race, are not apparent, and (3) the trial court made no finding as to whether the explanations given by Illinois Power for excluding Watson and White were sufficient to overcome the presumption of the prima facie showing of purposeful discrimination.

Under the circumstances, we are constrained to remand this case for a Batson hearing. (See Edmonson v. Leesville Concrete Co. (1991), 500 U.S___ 114 L. Ed. 2d 660, 111 S. Ct. 2077.) Upon remand the trial court shall conduct a Batson hearing to determine whether there was a violation of the principles of Batson. If the trial court determines there was no violation of Batson, it shall certify that conclusion to this court. If, on the other hand, the trial court finds that there was a Batson violation, it shall fashion an appropriate remedy and certify its finding and its remedy to this court.

In view of our disposition of this case on the Batson issue, it is unnecessary to address the remaining issues raised by the parties at this time.

Remanded with directions.

RARICK, P.J., and WELCH, J., concur.