author: JUSTICE NICKELS

text:
      In re MARRIAGE OF CAROL J. HUBBARD, Petitioner-Appellee, and JOHN P. HUBBARD, Respondent-Appellant.
    Second District
    No. 2—90—1305
    Opinion filed June 20, 1991.

      Ronald T. Wade, of O’Brien, Healy, Wade & Gorman, of Rockford, for appellant.
    Paul R. Cicero, of Alexander & Cicero, P.C., of Rockford, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Respondent, John R Hubbard, appeals from an order of the circuit court of Winnebago County that granted, in part, the petition of Carol J. Hubbard for an award of expenses incurred in preparing the marital residence for sale. Respondent was ordered to pay 80% of the actual repair expenses for the furnace at the marital residence. The sole issue raised by respondent on appeal is whether the trial court lacked jurisdiction to enter the order because it was a modification of the property rights of the parties set forth in the judgment of dissolution. We reverse.

The parties were married on July 30, 1983. No children were born of the marriage, but petitioner has a minor child from a prior marriage. Following a trial, a judgment of dissolution of marriage was entered by Judge Robert G. Coplan on August 7, 1990. The judgment provided that both parties were barred from receiving maintenance. It also stated that the following items were to be paid from the proceeds of the sale of the marital residence: marital debts totalling $12,140.80, petitioner’s attorney fees in the amount of $2,849.60, and respondent's attorney fees in the amount of $2,446.00. Petitioner was to receive the remaining net proceeds from the sale of the marital residence.

On October 2, 1990, petitioner filed a petition requesting that respondent be ordered to pay $3,930.45 to petitioner for debts she incurred and would incur in preparing the marital residence for sale. Expenses to repair and maintain the house and yard totaled $1,154.45, and an estimate prepared by an air-conditioning and heating service provided that the cost of replacing parts of the furnace would be $2,776.

A hearing regarding the petition was held on October 3, 1990, before Judge Richard Vidal. Petitioner’s counsel argued that respondent was earning approximately $100,000 per year while petitioner was earning approximately $20,000 per year. He stated that the marital residence had been sold, and the real estate closing was scheduled the following day. The equity to be realized from the sale would be approximately $30,000 to $35,000. He then argued:

“Now, what I guess I am suggesting is that the Court had a value in mind when it denied her maintenance and instead awarded her these proceeds. The fact that the furnace needs to be replaced means there is $2,700.00 less that she is going to receive.”

Respondent’s attorney argued that the court lacked jurisdiction to grant the relief petitioner was requesting because it constituted a “disposition of property,” and the judgment, which disposed of the marital home and which was entered more than 30 days before the petition was filed, was final and could not be modified.

The trial judge found that he had jurisdiction because he was enforcing and interpreting the previous order of the court. He determined that the items to repair and maintain the house and yard were “those which [would] enhance the value of the property” and that petitioner would realize the benefit of those expenses. He found that the furnace repair was different, however, because it was a latent defect at the time of the trial and because it was a necessary repair of the property so it could be sold. He then ordered respondent to pay four-fifths, or 80%, of the necessary cost of the furnace repairs as respondent earned basically five times more than petitioner. Petitioner was ordered to pay one-fifth of the cost.

After the trial court denied respondent’s motion to reconsider and a written order was entered, this timely appeal followed. On appeal, respondent first notes that the order appealed from was entered more than 30 days after the judgment of dissolution was entered. He contends that the trial court did not therefore have jurisdiction to order respondent to contribute to the cost of furnace repairs. He argues that the order modified provisions in the judgment of dissolution with respect to property disposition and that, under section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(b)), these provisions could not be modified. We agree.

Although a court clearly retains jurisdiction to enforce its judgments indefinitely (Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 53), it loses jurisdiction over a matter once 30 days have passed after the entry of a final and appealable order. (Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 115.) Provisions in a judgment of dissolution relating to maintenance, support and property disposition may be modified in some circumstances, however, pursuant to section 510 of the Act. Section 510(b) provides in pertinent part:

“The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” Ill. Rev. Stat. 1989, ch. 40, par. 510(b).

Provisions which constitute a disposition of property or property settlement are therefore generally not modifiable or revocable. (In re Marriage of Martino (1988), 166 Ill. App. 3d 692, 696; In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 318-19; see also Lamp v. Lamp (1980), 81 Ill. 2d 364, 369.) Property rights created by a judgment of dissolution become vested when the judgment is final, and a trial court lacks general jurisdiction to modify an order affecting these rights. In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 321; In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956.

Petitioner does not contend that the trial court’s order was, in fact, a modification of maintenance or support. (Cf. Lamp, 81 Ill. 2d at 369-77 (judgment awarding possession of marital residence to wife was in nature of award of child support and therefore modifiable); Martino, 166 Ill. App. 3d at 696-97 (agreement providing that husband would provide housing was a maintenance agreement which could be modified).) Therefore, the order at issue here could only affect the property disposition contained in the judgment. The trial court thus had jurisdiction to enter an order modifying the property disposition only if conditions existed which would justify the reopening of a judgment as in other civil cases. See Ill. Rev. Stat. 1989, ch. 40, par. 510(b); Redmer, 111 Ill. App. 3d at 321.

The court in King v. King (1985), 130 Ill. App. 3d 642, listed the circumstances under which post-30-day relief may be obtained from a final order. They are: (1) pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401; see In re Marriage of Reines (1989), 184 Ill. App. 3d 392; In re Marriage of Shelton (1984), 127 Ill. App. 3d 775); (2) under the revestment doctrine (see In re Marriage of Demond (1986), 142 Ill. App. 3d 134, 137-38 (property disposition could be modified where parties actively participated in proceedings which were inconsistent with the merits of the prior judgment); see also In re Marriage of Wharrie (1989), 182 Ill. App. 3d 434, 435-36; but cf. Licciardi v. Collins (1989), 180 Ill. App. 3d 1051, 1056); (3) where the final order or judgment is void (see In re Marriage of Verdung (1989), 126 Ill. 2d 542, 547); (4) pursuant to an agreement of the parties (see In re Marriage of Steel (1990), 195 Ill. App. 3d 348, 352-54; In re Marriage of Taylor (1989), 191 Ill. App. 3d 648, 650-51); and (5) where a nunc pro tunc order would be appropriate (cf. In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 173-74). (See King, 130 Ill. App. 3d at 654-55.) None of these circumstances exist here.

. Petitioner argues, however, that the need to repair the furnace was unanticipated at the time the judgment was entered and “the [trial] court properly elected to apportion the cost of repairing the furnace between the parties according to their ability to pay.” She contends that the “apportionment was in no sense a modification of the decree, but was merely an exercise of the court’s equitable power to interpret the substance of the decree in light of the court’s obvious intention at the time the decree was entered.” We cannot agree.

Despite jurisdiction to enforce a judgment (Waggoner, 78 Ill. 2d at 53; In re Marriage of Milliken (1990), 199 Ill. App. 3d 813, 817), a court does not have jurisdiction to engraft new obligations onto the judgment. (Waggoner, 78 Ill. 2d at 53-54 (court could not modify judgment to require husband to remove judgment liens against marital residence which was awarded to wife); see also Milliken, 199 Ill. App. 3d at 817-20 (court could not order husband to reimburse wife for wife’s payment of husband’s debt); In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 207-09 (court could not modify judgment to provide that wife was to pay portion of mortgage and insurance on marital residence prior to sale where judgment expressly required husband to make all of the mortgage payments until the sale of the home); In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 110-12 (court could not modify property settlement to require wife to pay one-half of the mortgage after she vacated the marital residence).) A court also lacks jurisdiction to make other equitable modifications. See In re Marriage of Clark (1986), 149 Ill. App. 3d 613, 617-18 (court lacked jurisdiction to award husband possession of marital residence even though wife, who was awarded possession of the residence until sale, permitted the property to fall into disrepair and failed to make any mortgage payments on the house causing the commencement of foreclosure proceedings); Redmer, 111 Ill. App. 3d 317 (court lacked jurisdiction to modify judgment to award possession of marital residence to husband after custody of the parties’ minor children was transferred to him).

In this case, the judgment did not provide that respondent was to pay any part of the cost of preparing the marital residence for sale. Also, the judgment stated that petitioner was awarded “the remaining net proceeds of sale of the marital real estate.” The use of the term “net proceeds” can only mean that petitioner was to receive any proceeds remaining after the specified items were paid and after the costs of sale, anticipated and unanticipated, were paid.

Therefore, while we agree with petitioner that the trial court’s order was equitable and reasonable under these circumstances, the conclusion is inescapable that the trial court lacked jurisdiction to enter it.

For the foregoing reasons, the judgment of the circuit court of Winnebago County is reversed.

Reversed.

GEIGER and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    EDWARD N. BERNIER, Plaintiff-Appellee, v. TRANSAMERICA INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 2—90—0969
    Opinion filed June 20, 1991.

      Karen L. Kendall and Gary M. Peplow, both of Heyl, Royster, Voelker & Allen, of Peoria, and Douglas J. Pomatto, of Heyl, Royster, Voelker & Allen, of Rockford, for appellant.
    Ronald T. Wade, of O’Brien, Healy, Wade & Gorman, of Rockford, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Transamerica Insurance Company, appeals from a judgment of the circuit court granting plaintiff Edward N. Bernier’s motion for summary judgment. Plaintiff sought the reformation of an insurance policy issued to him by defendant. The trial court’s ruling came after cross-motions for summary judgment had been filed by the parties. The court’s order raised the underinsured motorist coverage from $30,000 per person to $100,000 per person. The trial court based its ruling upon the principle that, where an insurer fails to make an adequate offer of additional uninsured or underinsured motorist coverage required by the applicable provisions of section 143a — 2 of the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2), the additional coverage may be implied in law, and a trial court may reform the policy to include the higher coverage.

Defendant contends that plaintiff received an adequate offer, which satisfied the statutory requirements, to purchase uninsured and underinsured coverage equal in limits to his bodily injury liability coverage, but that plaintiff elected to accept lower limits. Therefore, defendant believes the trial court should not have reformed the policy to the higher limits. We disagree that defendant made a proper offer of additional insurance coverage to plaintiff. The reformation of the policy was proper. We therefore affirm.

For several years prior to May 1984, plaintiff purchased automobile insurance coverage from State Farm Mutual Automobile Insurance Company through an agent named A1 Ethridge. The State Farm policy contained liability limits for bodily injury of $100,000 per person and $300,000 per accident. Both the uninsured (UM) and underinsured (UNDM) motorist coverages were in the amounts of $100,000 per person and $300,000 per accident during the period June 19, 1981, to May 19, 1984. When plaintiff first obtained insurance coverage from Ethridge in 1973, the agent explained what UM motorist coverage was. Plaintiff’s deposition indicates that, prior to 1981, he may have received a letter from State Farm explaining what UNDM coverage was and that it could be purchased up to his bodily injury limits. He was at least aware that he had purchased from State Farm UNDM coverage of $100,000 per person and $300,000 per accident.

In May 1984, plaintiff’s neighbor, Nancy Eckburg, contacted plaintiff regarding the purchase of automobile insurance through the Flynn Insurance Agency, where Eckburg was a newly employed sales agent of an independent insurance broker who was her brother. Eckburg advised plaintiff that she could get him the same coverage he had with State Farm at a better price. Eckburg and plaintiff met at his home, where plaintiff showed her the declaration page from his State Farm policy showing his coverage with that company, and he asked Eckburg to obtain the same coverage. Eckburg drew up an insurance package and gave plaintiff a price, including the cost of UNDM coverage, presumably with limits of $100,000 and $300,000. Eckburg explained what UNDM coverage was. Plaintiff asked Eckburg to obtain insurance coverage with bodily injury limits of $100,000/$300,000 and an equal amount of coverage for UM and UNDM. The application for insurance was not completed by Eckburg, however, but was completed by her brother. It was apparently signed later by plaintiff’s wife, who was not present at the meeting.

In due course, an automobile insurance policy was issued by Transamerica. The policy issued by defendant, effective May 18, 1984, included bodily injury liability coverage with a single limit of $300,000 and UM and UNDM coverage with a single limit of $30,000. Although plaintiff read the declaration page with those limits on it when he received it, he did not recall whether he ever contacted Eckburg to increase the limits for UM and UNDM coverage. When defendant issued its policy of insurance to plaintiff, no mailer or other communication was sent to plaintiff offering to increase the UM and UNDM limits to an amount equal to the limit for bodily injury coverage.

The deposition of Nancy Eckburg indicates that she had little independent recollection of the face-to-face meeting with plaintiff in May 1984. She explained that her usual practice would have been to go through all of the coverage options and pricing for the client, including the availability of UM and UNDM coverage up to the limits of his bodily injury coverage. She could not recall how much $300,000 of coverage for UM and UNDM would have cost. She had no specific recollection whether she had explained to plaintiff what UM and UNDM coverage was, but stated it would have been her usual practice to do so. Between May 1984 and October 1986, plaintiff contacted Eckburg nine times to make changes on the policy, but none of the changes involved an increase in UM and UNDM coverage.

On December 5, 1986, plaintiff was involved in an automobile accident. The driver of the other vehicle was insured by another company whose policy limit for bodily injury liability was only $25,000. Plaintiff filed suit against the estate of the other driver and was awarded judgment in the amount of $110,000. Plaintiff also filed a suit for declaratory judgment seeking to reform the policy issued to him by defendant. Plaintiff sought to raise the $30,000 UNDM coverage to $100,000 because of defendant’s failure to offer the higher coverage to plaintiff pursuant to the provisions of the Insurance Code.

As we see it, the sole issue raised in this appeal is whether defendant, as the insurer, made a proper “offer” of additional under-insured motorist coverage which satisfied the relevant statutory requirements of the Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2) as construed by our courts and which would make effective the insured’s clear power of acceptance or rejection of the additional coverage. (See, e.g., Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 333.) At the relevant time in question (as well as under the present version), section 143a — 2(1) of the Code required insurers to offer insureds uninsured motorist coverage in an amount equal to the insured’s bodily injury liability limit. (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(1); Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 553.) Section 143a — 2(5) also then required, as it does now, that on or after July 1, 1983, any policy which provided uninsured motorist coverage in excess of the statutory minimum provided by section 7 — 203 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 7 — 203, as amended) must also provide underinsured motorist coverage in an amount equal to the amount of uninsured coverage. (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(5); Krska, 162 Ill. App. 3d at 553.) In other words, the right to elect higher UM coverage carries with it the right to elect an equal amount of UNDM coverage.

Reading the two sections together, it is clear that defendant was required to offer UNDM motorist coverage in an amount equal to plaintiff’s bodily injury liability limit. (See Krska, 162 Ill. App. 3d at 553.) Defendant acknowledges that an offer of increased coverage for UNDM was required by the Insurance Code. Defendant correctly points out that, under section 143a — 2(2) of the Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(2)), the insured may elect or reject additional UM coverage up to the bodily injury limits provided that coverage is not less than that required by section 7 — 203 of the Illinois Vehicle Code. Where the insured elects to purchase UM coverage less than his bodily injury limits, or rejects limits in excess of that required by law, the insurer need not offer, in any renewal or supplementary policy, coverage in excess of that elected by the insured, unless the insured subsequently makes a written request for such coverage. Ill. Rev. Stat. 1983, ch. 73, par. 755a — 2(2).

Defendant argues that plaintiff was given the opportunity to purchase higher UNDM coverage equal to the limits of his bodily injury liability coverage because he received sufficient information regarding UNDM at the meeting with Eckburg, the independent insurance broker. Defendant apparently claims, without citation to relevant authority, that, where an insured receives sufficient information regarding UNDM coverage from other sources, the insurer is excused from making an “offer” of such coverage which meets the four-part test of a proper “offer” adopted by our supreme court in Cloninger. 109 Ill. 2d at 425-26, 427.

Under Cloninger and decisions following it, to satisfy the requirements of section 143a — 2 of the Code, an offer must (1) notify the insured in a commercially reasonable manner if the offer is not made in face-to-face negotiations; (2) specify the limits of the optional coverage without using general terms; (3) intelligibly advise the insured of the nature of the offer; and (4) advise the insured that the optional coverage is available for a relatively modest premium increase. (See Krska, 162 Ill. App. 3d at 553; see also Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 475.) An offer must meet all four parts of the test to satisfy the requirements of the Insurance Code. An otherwise model offer may be insufficient if it fails to provide specific price information. Orr v. Illinois Farmers Insurance Co. (1991), 210 Ill. App. 3d 1015, 1025-26; Watson v. Hartford Casualty Insurance Co. (1990), 205 Ill. App. 3d 88, 94.

Defendant proposes that, where plaintiff admitted that he understood that he could have UNDM coverage equal to his bodily injury coverage and asked his broker to obtain that coverage for him, the extensive four-step analysis of Cloninger regarding what constitutes an adequate offer is unnecessary, presumably because an adequate offer may be implied from the broker’s representations to plaintiff and from plaintiff’s own knowledge. In support of this position, defendant relies on a statement made by this court in Rutter which said, “if plaintiff received from another source the information missing from the offer itself, no legitimate purpose would be served by relieving plaintiff of the consequences of his decision not to purchase the additional coverage” (Rutter, 190 Ill. App. 3d at 476). (See also Watson, 205 Ill. App. 3d at 94 (“it is possible that the plaintiffs may have received the information from another source, such as an insurance agent”); Orr, 210 Ill. App. 3d at 1028 (“Plaintiffs may obtain missing information from another source”).) We emphasize that this type of supplementary information from other sources may cure an otherwise inadequate offer only where an actual offer was made by the insurer or its own agent. The language used in those cases regarding supplementary sources of information does not stand for the proposition that the insurer can shift its statutory duty entirely to the insurance consumer for whose protection the legislation was enacted or to third parties who are not agents of the insurer. If there is the slightest doubt that the law places the duty to make an offer on the insurer and its agents, we remove that doubt by our decision today.

In the case at bar, the salient fact is that neither the insurer nor one of its own agents ever offered plaintiff the additional UNDM coverage, and defendant conceded in the trial court and in this court that it relied instead on the independent broker’s representations regarding such an “offer.” That reliance was misplaced. An independent insurance agent or broker acts as the agent of the insured, not the insurer, and has no duty to advise the insured of the availability of increased UM (or UNDM) coverage. (Shults v. Griffin-Rahn Insurance Agency, Inc. (1990), 193 Ill. App. 3d 453, 456-57.) It was the insurance company’s duty to notify the insured upon the issuance of a policy that he could purchase the additional coverage, and, where an insurance company fails to comply with section 143a — 2 by not making the additional coverage conspicuously known to the insured, the insurance policy will be reformed to include the higher coverage. Shults, 193 Ill. App. 3d at 457.

It is uncontested that the defendant insurer never made an offer of additional insurance to plaintiff. Here, the independent broker had neither the duty nor the power to make the offer. Therefore, plaintiff had no meaningful opportunity to accept or reject the offer. It was not plaintiff’s duty to inquire. Had defendant made a definite offer in clear and specific terms as required by law, plaintiff would have had a clear power to accept or reject the coverage. (See Cloninger, 109 Ill. 2d at 425.) The question whether the independent insurance agent or broker breached her fiduciary duty in procuring insurance on behalf of plaintiff is not properly before this court. The state of plaintiff’s knowledge and understanding regarding the availability of additional UM or UNDM coverage cannot be the focus of further inquiry here where the insurer never actually made an offer to plaintiff, as it was required to do under the Insurance Code.

The provisions of the Insurance Code regarding underinsured motorists were intended to foster the compensation of injured parties more adequately as well as to protect insurance consumers. (Cloninger, 109 Ill. 2d at 424.) The burden of providing an adequate offer of additional insurance coverage upon the issuance of a policy was slight, and defendant’s duty was clearly mandated by statute. We decline defendant’s “offer” to shift its responsibility to the consumer or to an independent third party. Under the circumstances, the trial court properly reformed the policy to include the higher coverage.

The judgment of the circuit court is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.


author: JUSTICE HAASE

text:
    HENRY J. ROMANSKI, Plaintiff-Appellant, v. JOHN A. BARRA et al., Defendants-Appellees.
    Third District
    No. 3-90-0718
    Opinion filed June 17, 1991.

      Henry J. Romanski, of Oak Park, appellant pro se.

    Kevin W. Lyons, State’s Attorney, of Peoria (Chris L. Fredericksen, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Henry J. Romanski, filed a complaint for malicious prosecution against the former State’s Attorney of Peoria County, John A. Barra. Pursuant to county ordinance, the present State’s Attorney of Peoria County, Kevin W. Lyons, filed his appearance on behalf of Barra. Romanski filed a petition for declaratory relief seeking to disqualify Lyons as defense counsel. Romanski contends the county ordinance that permits Lyons to represent Barra is unconstitutional and wrongly adopted. The trial court dismissed the petition. The trial court ruled the plaintiff lacked standing to challenge the ordinance. The plaintiff appeals. We affirm.

During Barra’s tenure as the State’s Attorney of Peoria County, he had occasion to file a petition for a rule to show cause against Romanski. The petition alleged Romanski engaged in criminal misconduct before the Tenth Judicial Circuit Court. Romanski was ultimately found guilty by the court of indirect criminal contempt and sentenced to pay a fine of $300. Romanski appealed to this court and we reversed. (See People v. Romanski (1987), 155 Ill. App. 3d 47.) Romanski then instituted the present action.

Romanski seeks to challenge an ordinance enacted by the Peoria County board. The ordinance provides that Peoria County will indemnify and provide legal representation to present and former county officials in litigation arising from the good-faith execution of their official duties. The Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 302) specifically conveys to public entities the right to enact such ordinances. Romanski contends he has standing to challenge the ordinance based upon his due process rights as guaranteed by the Illinois and Federal Constitutions.

The question of standing presents to a court the issue of whether the constitutional or statutory provision on which a party’s claim rests can properly be understood as granting persons in the plaintiff’s position a right to judicial relief. (Warth v. Seldin (1975), 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct 2197.) This requires a parfy seeking declaratory relief to possess some personal claim, status, or right which is capable of being affected by the grant of a declaratory judgment. Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462.

The problem with the plaintiff’s petition for declaratory relief is that he fails to explain how any of his due process rights would be negatively affected by Lyons representing Barra. Indeed, it is difficult to discern any reason, other than personal animosity, why the plaintiff would concern himself with who represents or indemnifies his opponent. It is true there are instances where a party may properly move to disqualify opposing counsel, but such decisions usually involve ethical, not legal, considerations.

For example, in Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 452 N.E.2d 804, the court disqualified the plaintiff’s attorney, Allen Schultz, because Schultz had previously represented the defendant. Although Schultz filed an affidavit to the effect he had gained no knowledge through his prior relationship with the defendant that would enure to the benefit of his present client, the court nonetheless ordered him disqualified. In affirming the ruling, the court noted the Illinois Code of Professional Responsibility may provide a basis for disqualification and that the Canon of Ethics is not only aimed at protecting only the attorney-client relationship, but also at maintaining public trust in the integrity of the bar by avoiding even the appearance of impropriety.

Likewise, in People ex rel. Carey v. Lincoln Towing Service, Inc. (1976), 40 Ill. App. 3d 126, 351 N.E.2d 342, the court disqualified Bernard Carey, the Cook County State’s Attorney, from acting as appellate counsel for a private citizen in a tort action against another private citizen. The court noted that the State’s Attorney is authorized to act in his capacity as State’s Attorney in matters in which the People of the State or of his county, as a collective body, may be concerned. But that it is improper, and indeed unauthorized (see Ill. Rev. Stat. 1973, ch. 14, par. 7), for a State’s Attorney, acting in his capacity as State’s Attorney, to represent one private citizen in a private tort action against another private citizen.

In the case at bar, Romanski has failed to cite any ethical or statutory limitations that would warrant the disqualification of Lyons as defense counsel. Nor has he alleged with specificity the claim, status, or right which would be negatively affected by the denial of his petition for declaratory relief. The trial court’s ruling that Mr. Romanski lacked standing to challenge the ordinance, therefore, was not in error. Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and SLATER, JJ., concur.


author: JUSTICE BARRY

text:
    TULLY HEUBNER, Plaintiff-Appellant, v. GALESBURG COTTAGE HOSPITAL et al., Defendants (Michael S. Sidell et al., Defendants-Appellees).
    Third District
    No. 3-90-0423
    Opinion filed June 4, 1991.

      Law Offices of William W. Schooley, of Granite City (Floyd D. Peterson, Jr., of counsel), for appellant.
    Jeanne L. Wysocki, of Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Tully Heubner brings this interlocutory appeal from an order of the circuit court of Knox County granting a motion of defendant radiologists Michael S. Sidell and Subbia G. Jagannathan for summary judgment. This is our second opportunity to review this cause of action, the first arising on interlocutory appeal from the dismissal of the medical malpractice complaint against Galesburg Cottage Hospital and these defendants. In our earlier unpublished order, we held pursuant to McCastle v. Mitchell B. Sheinkop, M.D., Ltd. (1987), 121 Ill. 2d 188, 520 N.E.2d 293, that the complaint need not have been dismissed for failure to attach a report from a radiologist.

Defendant Cassandra P. Perkins has never been served and is not a party to this appeal. For purposes of this decision, our reference hereafter to “defendants” or “parties” is not meant to include Perkins.

On remand from the earlier appeal, defendants’ renewed motion to dismiss was denied, and they answered the complaint. The parties proceeded with discovery, and defendants moved for summary judgment. On May 22, 1990, the trial court granted summary judgment in defendants’ favor on grounds that Ms. Perkins was neither retained nor under the control of these defendants, and that any malpractice on her part, as a matter of law, did not impose vicarious liability on the other named defendants. This appeal was perfected pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from the order granting summary judgment in favor of defendant radiologists. Plaintiff has not appealed from the order granting summary judgment in favor of Galesburg Cottage Hospital. We affirm.

Underlying this cause of action in medical malpractice are two injuries to plaintiff’s left wrist. Plaintiff reported to defendant hospital on May 4, 1985, for treatment and X rays following the initial injury. He was reinjured on September 7, 1985, and again received treatment and X rays at defendant hospital on September 8. On that date Dr. Cassandra Perkins was the only radiologist on duty. Dr. Perkins interpreted the wrist X rays as normal and signed her name to the “Diagnostic Radiology Consultation” form under the preprinted names of Drs. Michael S. Sidell and Subbia G. Jagannathan. According to the complaint, the September 8 X rays disclosed a subluxation or dislocation of the lunate bone of the left wrist, but the condition was not diagnosed at that time by the defendant radiologists. Plaintiff did not learn of the condition until he consulted with an orthopedic surgeon about persistent pain in the wrist on July 16, 1986. Plaintiff brought suit against the hospital; Dr. Perkins; and Drs. Sidell and Jagannathan, licensed diagnostic radiologists and shareholders of a small professional corporation known as Galesburg Radiology Associates (GRA) which provided radiology services for the hospital.

According to the pleadings, affidavits and discovery materials of record, GRA needed another radiologist for a short term in 1985. (The record on appeal does not conclusively establish the existence of the small professional corporation at the time of the malpractice complained of. Therefore, for purposes of this opinion, the liability of GRA is deemed the same as that of the individual defendant doctors.) They contacted International Placement & Recruiting (IPR) to obtain a locum tenens physician to work at Galesburg Cottage Hospital for the period September 7 through September 13, 1985. IPR provided Dr. Perkins, a licensed radiologist, for this purpose. The contract signed by Dr. Sidell for GRA stated that GRA would pay IPR for the radiologist’s services and IPR would provide physician’s benefits, malpractice insurance, etc. GRA furnished Perkins with the schedule of her required services for the hospital. In the event the physician was not acceptable to GRA, it was Sidell’s understanding that he was to report his complaint to IPR, not the physician, and IPR would replace her. IPR is not a party to this suit.

The issue in this appeal is whether a genuine issue of material fact precludes the entry of summary judgment. While plaintiff is not required to prove his case in response to defendants’ motion for summary judgment, he is required to present sufficient factual basis to entitle him to a judgment under applicable law. (Johnson v. Sumner (1987), 160 Ill. App. 3d 173, 513 N.E.2d 149.) “A triable issue precluding summary judgment exists where there is a dispute as to material facts, or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts.” Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1014, 498 N.E.2d 867, 870, citing Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 240 N.E.2d 699.

The trial court in this case found as a matter of law that the defendant doctors “did not retain or exercise any control over [Dr.] Perkins’ *** professional discretion and conduct”; they did not “engage in conduct sufficient to hold them vicariously liable for the conduct of [Dr.] Perkins”; and that neither defendant doctor “failed to diagnose a dislocation of Plaintiff’s left wrist and failed to select qualified persons to perform radiological duties at Galesburg Cottage Hospital.” The issue plaintiff seeks to try is whether Drs. Sidell and Jagannathan exercised control over Dr. Perkins which would subject them to malpractice liability.

In support of plaintiff's argument that the doctors of GRA may be liable for what plaintiff concedes to have been Dr. Perkins’ primary negligence, plaintiff cites Greene v. Rogers and Johnson v. Sumner. We have reviewed both cases and find them factually inapposite.

In Greene, plaintiff brought a medical malpractice suit against a consulting doctor and hospital for the alleged wrongful death of his wife. According to the complaint, the emergency room physician, Dr. D’Arcy, negligently admitted Mrs. Greene to a regular hospital ward instead of the coronary care ward and failed to diagnose her heart condition and put her through a series of physical tests while she was suffering from myocardial infarction. In one count plaintiff sued the hospital based on a respondeat superior theory, asserting that D’Arcy was an agent of the hospital. The trial court granted summary judgment for the hospital on this count, and the jury returned verdicts for both defendants on the remaining counts. Plaintiff raised several issues on appeal, including a challenge to the trial court’s grant of summary judgment for the hospital which is relevant to this case. We noted in Greene that the two dominant factors in determining whether an agency relationship existed between the emergency room physician and the hospital were “control retained by the principle and the method of payment.” (147 Ill. App. 3d at 1014, 498 N.E.2d at 871.) The facts of Greene demonstrated that the hospital there did not control the initial treatment and diagnosis of patients in the emergency room and that, inasmuch as Dr. D’Arcy was employed and paid by an entity known as “Scott Emergency Medical Services, Ltd.,” which was under contract to furnish emergency physician services to the hospital, D’Arcy could not be considered an agent of the hospital by the manner of payment either.

Plaintiff seeks to analogize the employer-employee relationship that we noted between D’Arcy and Scott Emergency Medical Services, Ltd., in Greene with the relationship between Perkins and GRA here. Significantly, however, the record conclusively belies plaintiff’s position since it is clear that Perkins’ employee status was with IPR, not GRA. GRA had contracted to provide radiological services to the hospital here, and IPR contracted to provide GRA with a locum tenens physician for a week. IPR, not GRA, retained the right to control and to pay Perkins for her services.

Similarly, Johnson fails to support plaintiff’s argument. In Johnson, plaintiff sued emergency, room doctors and a hospital for malpractice as a result of failure to diagnose an ectopic pregnancy which later ruptured and left her sterile. The emergency room doctors there were employed by Hospital Emergency Physicians, S.C. The small professional corporation was under a contract with the hospital to provide emergency room services, and was paid by the hospital for its physicians’ services. The corporation, not the hospital, “was responsible for employment, retention, and supervision of emergency care physicians.” (160 Ill. App. 3d at 176, 513 N.E.2d at 151.) In ruling that the trial court did not err in granting summary judgment for the hospital, we held that, as in Greene, no express agency existed between the hospital and the emergency room physician, and that the doctrine of apparent agency would not be extended to claims of medical malpractice to impose vicarious liability on the hospitals in this State. 160 Ill. App. 3d at 176, 513 N.E.2d at 151, citing Greene, 147 Ill. App. 3d 1009, 498 N.E.2d 867; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198; Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877.

There was no issue in Johnson as to the vicarious liability of Hospital Emergency Physicians, S.C., or the individual physician/shareholders of the small corporation. The only issue there addressed was whether the hospital could be held vicariously liable based on an agency relationship between the hospital and the individual physicians employed by the small corporation providing emergency room services. In this case, plaintiff raises no issue on appeal concerning the hospital’s vicarious liability. Thus, although certain factual similarities may be identified, Johnson, like Greene, is too attenuated to lend any support to plaintiff’s cause in this case.

We have considered other factors plaintiff suggests as determinative on the employer-employee issue and found them wanting. Plaintiff notes, for instance, that in his deposition Dr. Jagannathan alluded to “hiring” Dr. Perkins and stated that she was allowed to use GRA’s letterhead and report forms during her association with GRA. Technically, the defendant doctors “subcontracted” with IPR for a service, i.e., for a fee, IPR was to furnish GRA with a radiologist for a few days so that GRA could meet its contractual obligation with the hospital. The fact that Dr. Perkins was permitted to use GRA’s stationery and report forms does not detract from the inescapable conclusion that she performed services as an agent of an independent contractor (IPR), and not as an employee of Drs. Siddell and Jagannathan. Plaintiff does not dispute the fact that Dr. Perkins was the only radiologist on duty on September 8, 1985, when plaintiff’s X ray was interpreted. It is clear that her use of GRA’s stationery was a mere convenience and did not prove a master/servant relationship between Dr. Perkins and Drs. Siddell and Jagannathan. Thus, the trial court did not err in finding as a matter of law that no agency relationship existed between Perkins and the shareholders of GRA.

From the pleadings and other documentation before us, it is clear that Dr. Cassandra Perkins was an employee only of IPR. With respect to her, these defendant doctors stand in the same position as the hospitals in Greene and Johnson. Since they did not assume control over Perkins’ employment, retention or supervision and she was paid by IPR for her services, there are no facts sufficient to raise a material dispute on the agency question, and the trial court did not err in granting summary judgment in favor of the doctors who contracted for IPR’s service.

The judgment of the circuit court of Knox County is affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE SLATER

text:
    PATRICIA LONG, Plaintiff-Appellant, v. TAZEWELL/PEKIN CONSOLIDATED COMMUNICATION CENTER et al., Defendant-Appellees.
    Third District
    No. 3—90—0471
    Opinion filed June 4, 1991.

      Patricia M. Parker, of Reynolds, Murphy & Associates, P.C., of Peoria (G. Edward Murphy, of counsel), for appellant.
    Eric I. Blanc, State’s Attorney, of Pekin (Stewart J. Umholtz, Assistant State’s Attorney, of counsel), for appellees City of Pekin, County of Tazewell, James R. Donahue, Everett M. Voile, Donald Benassi, and Larry Homerin.
    Burt L. Dancey, of Elliff, Keyser, Oberle & Davies, P.C., of Pekin, for appellee City of Pekin.
   JUSTICE SLATER

delivered the opinion of the court:

The communications director of the Tazewell/Pekin Consolidated Communications Center (T/PCCC) terminated plaintiff’s employment as a telecommunications operator/police dispatcher. Plaintiff filed suit against the defendants alleging that the T/PCCC rules and regulations manual established a contractual relationship between the plaintiff and T/PCCC which was breached by the defendants. Defendants filed a motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) claiming that plaintiff was an employee at will and that the manual had a disclaimer which applied to the plaintiff’s situation. The trial court granted defendants’ motion, and the plaintiff appeals. We reverse.

Plaintiff was hired as a probationary employee in January of 1979. As part of her training, she was provided and required to read a handbook entitled “Rules and Regulations Manual.” After six months, she was awarded full-time employee status.

On September 7, 1988, plaintiff received a memorandum letter from the communications director about complaints he had received regarding her job performance. Plaintiff was suspended for two days commencing Saturday, September 10, 1988. She was further directed to report to the director’s office on September 14, 1988, for a full discussion of the complaints. Prior to that meeting, however, the director sent to the plaintiff a written memorandum dated September 13, 1988, outlining five complaints about her job performance. On the same date, he sent another letter terminating her employment effective immediately.

Plaintiff was allowed to appeal her decision to the T/PCCC board of directors. A hearing was held on October 21, 1988. By letter dated October 24, 1988, the board, which was comprised of the individually named defendants, found that the decision to terminate plaintiff’s employment was justified.

Plaintiff subsequently filed a multicount complaint against defendants alleging that the rules and regulations manual (manual) created a binding contract and that she was terminated in violation of her contractual rights as set forth in that manual.

Defendants’ motion to dismiss alleged that plaintiff failed to state a cause of action because she was merely an employee at will and had no contractual rights. The trial court found, under the rationale of Duldulao v. Saint Mary of Nazareth Hospital (1987), 115 Ill. 2d 482, 505 N.E.2d 314, that the manual created no contractual relationship. The court further stated that even if the language of the manual could be construed to create an employment contract, the disclaimer language contained within the, mhM WtWfW .......' i , to enter into a contract with plaintiff.

Generally, employment relationships of indefinite duration are presumed terminable “at will” by either party without cause unless facts support the existence of a contract. (Duldulao v. Saint Mary of Nazareth Hospital (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) Whether a contract exists is a question of law to be determined by the court. (Habighurst v. Edlong Corp. (1991), 209 Ill. App. 3d 426, 568 N.E.2d 226; Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 454 N.E.2d 1120.) In Duldulao, the court devised a three-prong test for determining whether an employee handbook creates enforceable contractual rights:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

The primary controversy in this case concerns the first prong of the Duldulao test. In Duldulao, the handbook contained a statement urging employees to be familiar with its contents as it (the handbook) is “designed to clarify your rights and duties as employees.” The handbook also stated that employees were initially on probation for a period of up to 90 days and during that time could be terminated without notice but only for just cause. At the end of the probationary period, the employee, if retained, became permanent. Thereafter termination “cannot occur without proper notice and investigation.” The handbook also advised that permanent employees “are never dismissed without prior written admonitions and/or an investigation that has been properly documented.” (115 Ill. 2d at 486.) The supreme court additionally noted that the handbook in Duldulao contained no disclaimers. Our supreme court concluded by finding that the statements in the employee handbook were such that an employee would reasonably believe that a progressive disciplinary procedure would be required prior to termination. Duldulao, 115 Ill. 2d 482, 505 N.E.2d 314.

Similarly, we consider the manual in this case to contain promises regarding procedures to be used prior to termination of an employee. The manual provides in section II, article 230, in part, as follows:

“DISCIPLINE/RESIGNATION/SEVERANCE
In order to maintain an effective and professional communication center, a form of discipline must be established and enforced. The following shall be established procedures for disciplinary problems.
1) An immediate oral reprimand shall be given *** to an employee not operating under professional communication manner or who is violating established procedures or regulations.
2) A written reprimand shall follow an oral reprimand ***[;]
3) If a further form of discipline is needed, or if conditions warrant, a term of suspension or a transfer of shifts shall be assigned ***[;]
4) Dismissal is the last form of employee discipline. Every employee shall have the right of appeal with the T/PCCC Board ***
In all cases of discipline, a memorandum shall be made up by the *** director, stating the date of the infraction, time, reason for the disciplinary action, and the signature of the *** director *** ft

The above language regarding disciplinary procedures is, as in Duldulao, phrased in an unequivocal mandatory manner. Here, the complaint alleges that plaintiff was terminated for conduct that occurred over a period of time and that she was not provided with the preliminary reprimands as required by the manual. We also note that defendants have, to an extent, relied upon the provisions of the manual. The director of communications in his letter of termination advised plaintiff of her right to appeal to the board and, in fact, such a hearing was held. It cannot be said that such a time-consuming procedure would be afforded merely as a courtesy to plaintiff if defendants had not believed it was required by the manual.

It is not unreasonable that plaintiff would believe the statements contained in the manual constituted an offer regarding disciplinary procedures, thereby satisfying the first prong of the Duldulao test. Regarding the last two prongs of the Duldulao test, plaintiff has alleged that the manual was provided to her when she was hired and that she was required to become familiar with its contents. She continued to work for T/PCCC after learning of these policy statements, which constitutes acceptance of the offer.

The manual also outlines the duties of various employees, including the position of telecommunicator. Within the description of the duties of telecommunicator is a disclaimer which states “[t]he position of telecommunications operator is a non-civil service position. The employer may discharge the employee at any time.”

Courts, since Duldulao, have wrestled with whether disclaimers contained within the respective employee handbooks are sufficient to negate the promises made. Decisions both ways have been rendered. For example, in Robinson v. Christopher Greater Rural Health Planning Corp. (1991), 207 Ill. App. 3d 1030, 1036, 566 N.E.2d 768, the court determined that a general disclaimer in the manual negated any promises. There, the disclaimer stated that defendant “assumes no contractual liability to any employee via the job description or this publication” (emphasis omitted). In Habighurst v. Edlong Corp. (1991), 209 Ill. App. 3d 426, 568 N.E.2d 226, the court determined that a disclaimer prominently placed on the final page of the handbook which was signed, detached and understood by plaintiff negated any statements made in the handbook.

By contrast, in Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982, the court determined that an employee manual containing clearly stated policies in mandatory terms created an enforceable contractual relationship despite disclaimer language within the handbook. The disclaimer analyzed in Perman was not, however, set off from the rest of the text, printed in capital letters or titled. The court therefore held that the manual contained unequivocal language regarding grievance procedures prior to the discharge of an employee and thereby created a contractual relationship.

With regard to the disclaimer contained within the manual in this case, we find Perman analogous. Here, as in Perman, the disclaimer was not distinctly set out separate and apart. The disclaimer was in effect hidden within the text describing the duties of the telecommunicator. The disclaiming language is not unequivocal in that it merely states that a telecommunicator is not a civil service employee who is granted by law certain procedural safeguards. The disclaimer also does not specifically state that T/PCCC would not be bound by the provisions of the manual as it applied to plaintiff. Any ambiguities in language contained within the manual must be construed against the drafter of the language. Wheiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 251 N.E.2d 242.

Finally, defendants argue that plaintiff was afforded all of the procedural safeguards to which she is entitled in that she was given her appeal hearing before the board. This argument is premature as nothing other than the plaintiff’s allegations are in the record to support the board’s decision to terminate plaintiff. We decline to rule as a matter of law that defendants’ decision to terminate plaintiff was justified without evidentiary support in the record.

In summary, we find that the manual creates a contractual relationship between plaintiff and T/PCCC which is not negated by the disclaimer. The decision of the trial court granting defendants’ motion to dismiss is therefore reversed, and this cause is remanded for further hearing.

Reversed and remanded.

STOUDER, P.J., and HAASE, J., concur.


author: JUSTICE GREEN

text:
    E. ELVINA BOYD et al., Plaintiffs-Appellants, v. SANITARY DISTRICT OF DECATUR, Defendant-Appellee.
    Fourth District
    No. 4—90—0887
    Opinion filed June 13, 1991.
    Gregory L. Barnes, of Gregory L. Barnes, Ltd., of Decatur, for appellants.
    Peter W. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for.appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs E. Elvina Boyd and Thomas Boyd appeal from an order entered by the circuit court of Macon County dismissing their amended two-count complaint against defendant Sanitary District of Decatur, Illinois, on grounds it was not filed within the applicable statutory period of limitations, an affirmative matter as set forth in section 2 — 619(aX9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX9)). Defendant maintains the notice of appeal was not filed within the 30-day period after the entry of the final judgment of the circuit court as required by Supreme Court Rule 303(aXl) (134 Ill. 2d R. 303(aXl)). We agree and dismiss the appeal for want of jurisdiction.

On August 30, 1989, an entry was made on the circuit court’s official docket sheet for the case indicating that court had granted defendant’s motion, which had requested the complaint be dismissed “with prejudice.” The entry made no mention of any requirement for the order of dismissal to be followed by a written order. Approximately one year later on September 5, 1990, the trial court granted plaintiffs’ motion for a written judgment order to be entered on the docket entry of August 30, 1989, on grounds that Supreme Court Rule 271 (134 Ill. 2d R. 271) required entry of a written order. The written order on the court’s August 30, 1989, ruling was entered on December 26, 1990, and plaintiffs filed their notice of appeal on that same day.

The issue presented is whether the final judgment from which appeal is attempted was entered on August 30, 1989, the date of the docket entry, or on December 26, 1990, the date the written judgment of dismissal was filed. The question turns upon the operation of Supreme Court Rules 271 and 272 (134 Ill. 2d R. 272). Rule 271 states:

“When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.” (134 Ill. 2d R. 271.)

Rule 272 states:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 134 Ill. 2d R. 272.

Difficulty in interpretation arises here because the judgment, the time of entry of which is in controversy, was one “other than in the course of trial” — which is the stated criteria for coverage under Rule 271 — but it was also a “final judgment,” upon which Rule 272 is based.

We agree with defendant that Rule 272 controls in this case. In Swisher v. Duffy (1987), 117 Ill. 2d 376, 512 N.E.2d 1207, the trial court granted the plaintiff’s motion for voluntary dismissal, and an entry was made in the official docket without any mention that a written order of voluntary dismissal be submitted for the court’s signature. Three weeks later, the trial court signed a written order of voluntary dismissal tendered by plaintiff’s attorney. Plaintiff refiled the action exactly one year from the date the written order of voluntary dismissal was entered, and the trial court dismissed the complaint on grounds it was not filed within one year of the date the voluntary dismissal was granted as required by section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217). The appellate court reversed, holding the trial court’s order of voluntary dismissal was entered on the date the written order was signed. (Swisher v. Duffy (1985), 139 Ill. App. 3d 691, 487 N.E.2d 696.) The supreme court reversed the appellate court and affirmed the trial court. The supreme court noted that Rule 272 governs the time of judgment for the purposes of determining the time aUowed for filing an appeal, and there Rule 272 controlled over Rule 271 because a voluntary dismissal order was a final and appealable judgment. Accordingly, the supreme court found that judgment was entered at the time of the docket entry.

The rule of Swisher is the only reasonable way of reconciling the possible overlap between the two rules when an order made other than in the course of trial is also, as here, final as to all claims and all parties and then appealable under Rule 301. (134 Ill. 2d R. 301.) We follow Swisher here. Plaintiffs’ motion for entry of a written order alleged that on September 11, 1989, plaintiffs’ counsel contacted the court and the court indicated to counsel a written order was to be filed. However, the record does not indicate any “notation to that effect” was made by the clerk. Accordingly, we hold the order of dismissal was entered on August 30, 1989, and any appeal therefrom was fatally tardy. We dismiss the appeal.

Appeal dismissed.

LUND, P.J., and KNECHT, J., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. ALAN JO DOBRINICK, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Fourth District
    No. 4—90—0829
    Opinion filed June 18, 1991.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Willoughby & Latshaw, P.C., of Decatur (K. Michael Latshaw, of counsel), for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court;

On September 26, 1990, the circuit court of De Witt County issued an order directing the Secretary of State (Secretary) to issue defendant Alan Dobrinick a judicial driving permit (JDP). The Secretary now appeals, alleging this order was erroneously entered.

On August 18, 1990, defendant was arrested for the offense of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501). He took a breathalyzer test, with the results showing an alcohol concentration in excess of 0.10. Accordingly, he received a statutory summary suspension effective from October 3, 1990, until January 3, 1991. (See Ill. Rev. Stat. 1989, ch. 95V2, pars. 11 — 501.1, 6 — 208.1.) On September 12, 1990, defendant filed a petition seeking a JDP. On September 26, 1990, the court, granting the petition for the period from November 2, 1990, to January 3, 1991, entered an order directing the Secretary to issue it to defendant. The Secretary objected, advising the court of the fact that defendant’s driving privileges were suspended for 12 months, effective October 5, 1990, for repeated moving violations. The court, pursuant to the Secretary’s request, reconsidered the matter and reaffirmed its earlier order. The Secretary now appeals.

Defendant initially argues this case is moot since the period of the JDP has obviously elapsed. However, due to the short duration of the action involved and the fact that this particular issue is likely to recur again, an exception to the mootness doctrine is applicable. See People v. Meece (1987), 162 Ill. App. 3d 658, 660, 515 N.E.2d 1321,1322.

The Secretary argues that the court was without authority to enter the order granting the JDP because defendant’s driving privileges were suspended during the entire period in question for repeated moving violations. We agree and reverse.

Unfortunately, neither the trial court nor counsel had the benefit of our recent decision in People v. Boyd (1991), 211 Ill. App. 3d 99, 570 N.E.2d 8, which resolved this question. In that case, defendant pleaded guilty to the DUI, which resulted in his driving privileges being revoked. The court then granted defendant’s request for a JDP which covered part of the period in which defendant’s driving privileges were revoked.

We observed that section 6 — 206.1(a)(4Xiii) of the Illinois Vehicle Code (Code) provides:

“In any case, should the Secretary of State enter a suspension or revocation of driving privileges pursuant to the provisions of this Code while the JDP is in effect or pending, the Secretary shall take the prescribed action and provide a notice to the person and the court ordering the issuance of the JDP that all driving privileges, including those provided by the issuance of the JDP, have been withdrawn.” (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 206. l(a)(4)(iii).)

We concluded, therefore, that a JDP could not be granted when the defendant’s driving privileges are lost for reasons other than the statutory summary suspension. Boyd, 211 Ill. App. 3d at 101, 570 N.E.2d at 9.

The underpinning of the Boyd decision was the relationship between a summary suspension, the JDP, and the regular driving privileges. We explained:

“The statutory summary suspension is a temporary suspension of a driver’s privileges upon his arrest for DUI when he has refused a breath test or shows an alcohol level of 0.10 or more. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1.) This suspension is unrelated to the ultimate disposition of the underlying DUI violation. (See People v. Meyer (1988), 166 Ill. App. 3d 1030, 520 N.E.2d 1244.) To relieve undue hardship, the Code allows the court to order the Secretary to issue a JDP to qualifying individuals. (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 206.1.) This JDP is effective for a portion of the statutory summary suspension period and gives the driver limited driving privileges during that time. However, it is clear the JDP is only effective for statutory summary suspensions. (See Ill. Rev. Stat. 1989, ch. 95%, par. 6— 206.1(a).) It can have no impact on any other suspension or revocation authorized by the Code. Therefore, if a driver’s underlying driving privileges are lost for another reason and he also has received a statutory summary suspension, the court cannot issue a JDP and any JDP already issued is invalid because there are no driving privileges to be allowed to be used. This is clearly the import of section 6 — 206. l(aX4Xiii). ’ ’ (Boyd, 211 Ill. App. 3d at 101, 570 N.E.2d at 9.)

The fact that the present case involves a suspension of the underlying driving privileges, rather than a revocation, obviously does not affect this analysis or change the conclusion.

Again, much of the confusion in this case, as in Boyd, was created by the notice that the Secretary sent to the court. There, we endeavored to clarify the situation by stating:

“In the notice, the Secretary indicated why it believed the order issuing the JDP was improper. It then concluded with a paragraph asking the court to reconsider its order and stating:
‘If the Judge wishes to again officially order the issuance of the JDP, we will issue the permit and make the appropriate entries to our official records.’
Thus, by this language, the notice suggests the court could still order issuance of the JDP.
However, the second sentence of section 6 — 206.1(a)(4)(iii) does not indicate that the Secretary is to notify the court of the loss of privileges and ask the court to reconsider its order. It simply states that the Secretary is to notify the driver and the court that the driver’s driving privileges, including any pursuant to the JDP, are lost.
Once the driving privileges are lost, for reasons other than the statutory summary suspension, the Secretary’s regular procedures are invoked. That means the Secretary is required to give the driver notice of this action pursuant to section 6 — 209 of the Code. (Ill. Rev. Stat. 1989, ch. 95%, par. 6 — 209.) We conclude this notice, which in these circumstances must also be given to the court, will also suffice for the notice requirements of section 6 — 206.1(a)(Jf)(iii). This notice is just that — a notice. It is not a request or a suggestion to the court that any hearing be held to reconsider an order. It is simply a notice to the court that any JDP entered or to be entered is invalid because the driver’s underlying driving privileges have been suspended or revoked.” (Emphasis added.) Boyd, 211 Ill. App. 3d at 101-02, 570 N.E.2d at 9-10.

For the above-mentioned reasons, it is clear that since the suspension of defendant’s driving privileges for repeated moving violations was effective prior to (and remained in effect for the duration of) the period of the JDP, the entry of the order of the circuit court of De Witt County directing the Secretary to issue a JDP was error.

Reversed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. LUCAS, Defendant-Appellant.
    Fourth District
    No. 4—90—0410
    Opinion filed June 18, 1991.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorney’s Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in Vermilion County, defendant John W. Lucas was convicted of four counts of murder and concealment of a homicidal death. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 9 — 3.1.) The defendant was found to be eligible for the death penalty under section 9 — l(bX7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(bX7)). This statute provides:

“A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
* * *
7. the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(bX7).

The circuit court sentenced defendant to death for his murder conviction, and to a five-year term of imprisonment for the concealment of a homicidal death. The Illinois Supreme Court affirmed the convictions but vacated the death sentence and remanded the case to the trial court for resentencing. (People v. Lucas (1989), 132 Ill. 2d 399, 443-47, 548 N.E.2d 1003, 1021-23.) The Illinois Supreme Court explained the requirements for imposition of the death penalty, and concluded defendant was not eligible therefor.

“There is no conclusive evidence in the record to indicate that the decedent’s death was either premeditated, prolonged or tortuous. Applying the above-mentioned principles, we cannot say that the circumstances surrounding the decedent’s death were exceptionally brutal or heinous and indicative of wanton cruelty. Accordingly, we find that all of the qualifying requirements of section 9 — 1(b)(7) have not been met and, consequently, the defendant is not eligible for the death penalty under section 9 — 1(b)(7).” (Emphasis in original.) Lucas, 132 Ill. 2d at 446, 548 N.E.2d at 1023.

On remand to the circuit court of Vermilion County, a resentencing hearing was held on June 13, 1990. Judge Ralph S. Rearman presided over the resentencing hearing, although the original proceedings were conducted before Judge James K. Robinson.

At the resentencing hearing, the State presented no evidence in aggravation, and requested the trial judge take judicial notice of the original proceedings. Defendant presented evidence in mitigation, including evidence of his good behavior in prison. William Goskie testified he was a unit superintendent at Pontiac Correctional Center, where defendant was housed on death row. Goskie testified defendant was under his supervision for approximately V-k years. Goskie stated during this time he could not remember defendant receiving any disciplinary infractions. Based upon his experience, Goskie testified defendant’s good behavior was uncommon.

Officer Charles Margherio testified he was a gallery officer in the north cell house where death row inmates were housed at Pontiac Correctional Center. Margherio testified he had daily contact with defendant and could not recall defendant ever having received a disciplinary infraction. Margherio explained defendant conducted himself properly with the guards and with other inmates. Margherio also testified defendant stayed away from gang activity and maintained a good attitude and a well-kept cell. Margherio testified he had no indication defendant was using alcohol or other substances while in prison and he never found any contraband in defendant’s cell.

Following the presentation of evidence, the parties presented their arguments before Judge Pearman. The State alleged the Illinois Supreme Court’s “obvious misreading of the facts” led to its determination that defendant was not eligible for the death penalty. Over objection by defense counsel, the State asserted that despite the Illinois Supreme Court’s decision, the present case involved exceptionally brutal and heinous behavior indicative of wanton cruelty, as found by the original trial judge. The State also argued the record showed premeditation, regardless of the Illinois Supreme Court’s opinion to the contrary. In rebuttal closing argument, the State maintained: “The court is not bound by the Supreme Court’s version of the facts. The court is bound by the facts as it has before it.”

In announcing his sentencing decision, Judge Pearman concluded it was his duty to follow the decision of the supreme court, although he disagreed with the opinion. Judge Pearman stated he agreed with the dissenting opinion of Justice Miller, rather than with the majority opinion. He stated he agreed with Justice Miller’s conclusion that defendant qualified for the death penalty, and felt Judge Robinson was within his discretion in imposing the death sentence in the first sentencing hearing. Despite his disagreement with the Illinois Supreme Court’s decision, Judge Pearman followed the mandate and sentenced defendant to a term other than death. The court imposed the maximum sentence of 40 years’ imprisonment for murder, to run concurrent to a five-year term of imprisonment previously imposed for concealment of a homicidal death.

We now address the issues raised by defendant. Defendant contends the prosecutor’s attack on the supreme court for remanding this cause for resentencing was advanced for no other purpose than to inflame and influence the trial judge, who did not sit at the original sentencing hearing.

At the resentencing hearing, the prosecutor stated his disagreement with the Illinois Supreme Court’s decision in Lucas. Defendant on appeal takes issue with the prosecutor’s statements of disagreement. Defendant contends the following statements made by the prosecutor are improper:

“[State’s Attorney]: The defendant can easily argue that he doesn’t have any priors. That’s not what he was sentenced on. He was sentenced to death, because the trial court believed that the evidence showed that his murder of Danny Carrigan was done under circumstances that were exceptionally heinous and brutal indicative of wanton cruelty.
[Defense counsel]: Objection, your honor. The supreme court said that wasn’t—
[State’s Attorney]: The supreme court in its omnipotent wisdom—
THE COURT: The objection is overruled. He’s referring to why the trial court sentenced him.
[State’s Attorney]: Thank you, your honor.
THE COURT: I read both opinions.
[State’s Attorney]: The supreme court in its omnipotent wisdom, and I would suggest through obvious misreading of the facts, one good example would be that in their opinion they refer to after shaking Danny the defendant noticed Danny had stopped breathing. In an effort to revive him splashed water on him and placed him on the floor and performed CPR on him. They cite that as a fact, one of the facts established at trial.
In reality it was shown that the explanation by Mr. Lucas was ludicrous ***.
The medical testimony was that explanation was not consistent with the physical evidence and was highly improbable under the testimony of Dr. Maratos. Yet the supreme court cites it as one of the facts of the case.
The defendant was sentenced to death, because of this episode, coupled with his prior acts of violence, his prior conduct toward Danny that made it clear, as Justice Miller indicated in his dissent, that there was indeed evidence to some degree of premeditation. That there was, indeed, evidence that this wasn’t an isolated episode or an incident.
Under these circumstances I would suggest that on re-sentencing the only reasonable and appropriate sentence for Mr. Lucas is the maximum term possible in the Illinois Department of Corrections and that would be the recommendation of the State.
* * *
The court is not bound by the supreme court’s version of the facts. The court is bound by the facts as it has before it.”

Defendant contends the prosecutor’s comments were a direct attempt to improperly influence a new trial judge during the re-sentencing of defendant. In the resentencing hearing, the State twice reminded Judge Rearman of Judge Robinson’s decision to impose the death penalty. We conclude the prosecutor’s express disagreement with the supreme court’s holding was not improper. Such comments made by any party at a sentencing hearing are just so much blather. An experienced trial judge is not likely to rely on such comments, and nothing in this record suggests he did.

Defendant relies on People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924, stating the “law of the case” doctrine requires the prosecution to refrain from attacking the conclusions of the Illinois Supreme Court. The only exceptions to this doctrine are if the facts presented in the subsequent proceedings are so substantially different as to require a different interpretation, or if, in the interval between appeals, a higher court has made a contrary ruling on the precise issues of law on which the earlier opinion was based. (Weinger, 101 Ill. App. 3d at 875, 428 N.E.2d at 937.) Neither exception is applicable to this case. Defendant maintains the State had no authority to take issue with the law of the case as stated by the Illinois Supreme Court.

Weinger, as defendant states, requires the prosecution to refrain from attacking the conclusions of the supreme court. Weinger and the “law of the case” doctrine do not prohibit the prosecutor from disagreeing with a reviewing court, but rather bind a court to the Illinois Supreme Court’s view of the law. Weinger forbids the appellate court from relitigating an issue which it or the supreme court has already decided, but does not forbid the prosecution from disagreeing with the reviewing court’s decision.

Defendant further contends the prosecution must honor the mandate of the Illinois Supreme Court. The Illinois Supreme Court held when a reviewing court issues a mandate, it vests the trial court with jurisdiction to take only such action as conforms to that mandate. People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 442 N.E.2d 185; see also People v. Gurga (1988), 176 Ill. App. 3d 82, 530 N.E.2d 1059.

In this case, the Illinois Supreme Court vacated the death sentence and remanded the cause to the circuit court of Vermilion County with directions to impose a sentence other than death. (Lucas, 132 Ill. 2d at 446-47, 548 N.E.2d at 1023.) Defendant contends the prosecutor’s allegedly improper comments influenced the judge to decline to follow the supreme court’s order. At the resentencing hearing, the court made the following statement:

“I’m not going to comment at length on the Supreme Court opinion.
I have also reviewed other cases, which attempt to define the behavior that would qualify for either extended term or as the factor for the imposition of the death penalty.
While it is my personal opinion that the dissenting opinion of Justice Miller is more appropriate, it is my duty to follow the decision of the Supreme Court, even though I respectfully disagree with some of their conclusions.
To base a distinction upon how long a decedent must suffer for before dying *** the result is the same.
I think Justice Miller was correct in saying that this case did qualify for the death penalty and that Judge Robinson was certainly within his discretion in imposing it to begin with.”

While the trial court did express a personal belief the supreme court’s decision was incorrect, it clearly stated it was bound by the supreme court’s opinion. The trial judge followed the supreme court’s mandate and sentenced defendant to a term other than death. Nothing in this record suggests defendant was given the maximum sentence simply because the prosecutor and the trial judge disagreed with the supreme court’s opinion.

Defendant next cites People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369, and People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119, alleging the prosecution’s improper comments constitute reversible error. In both Yates and Holman, the prosecutor’s remarks were so clearly prejudicial and improper as to constitute reversible error. Those cases simply do not apply here.

In this case, the prosecution’s comments, while sarcastic and of limited assistance to the sentencing judge, were not improper. At the sentencing hearing, the court stated it reviewed the entire transcript of the original trial, as well as the presentence report. The State presented no evidence in aggravation, but asked the court to take judicial notice of the transcript of the trial, transcript of the previous sentencing hearing, and all exhibits previously admitted into the record. The court took judicial notice of the initial sentencing hearing and the factors in aggravation and mitigation. Upon consideration of those factors, the trial court, while disagreeing with the supreme court’s decision, followed the order issued by the Illinois Supreme Court. No abuse of discretion by the trial court occurred. Absent an abuse of discretion, a sentence within the statutory limits will not be disturbed. People v. Reid (1987), 160 Ill. App. 3d 491, 513 N.E.2d 517.

Defendant next contends the evidence of his outstanding prison behavior and lack of criminal record was not adequately taken into consideration by the trial judge as mitigating factors in his resentencing hearing. Defendant cites People v. Daniels (1988), 173 Ill. App. 3d 752, 527 N.E.2d 993, to support his contention that good prison behavior entitles him to a sentence reduction on remand. In Daniels, the court ruled the evidence of good prison conduct following original sentencing does not, standing alone, entitle a defendant to sentence reduction on remand.

In Daniels, defendant was given a sentence which was four times greater than the sentence his accomplice received. The appellate court ruled the trial court abused its discretion by not taking into account defendant’s rehabilitative potential. Defendant was only 18 years old at the time of sentencing and was about to complete his bachelor’s degree at the time of appeal. These factors led the appellate court to conclude the trial court, should have given some consideration to defendant’s prison conduct, as well as defendant’s youth, when determining defendant’s rehabilitative potential. Daniels, 173 Ill. App. 3d at 756-57, 527 N.E.2d at 996.

In this case, the trial court adequately considered both defendant’s prison behavior and criminal history during resentencing. The court stated:

“We hear today that this is a much different person who is not befuddled by alcohol and drugs, prepared to live a meaningful life. And I am not belittling the strides of improvement that the defendant may have made since the time that he has been incarcerated, not only improving his ability to communicate, but cleaning up his personal conduct as well. Those are to be commended, but they do not reduce the seriousness of the offense ***.
This is a defendant who had no significant criminal record before this incident. He had incidents of violence and abuse, but he was not charged or found guilty and therefore had only a minor criminal background ***.
I can think of no more serious a crime than to murder a defenseless infant. Infant who can in no way ward off the blows that are being imposed.
Therefore, it will be the judgment of this court based upon the verdict guilty of the offense of murder that you serve a term of 40 years in the Department of Corrections.”

The trial court did consider defendant’s good prison conduct and lack of criminal record. It simply found the seriousness of the offense required the maximum sentence. The trial court did not abuse its discretion in imposing the maximum sentence allowed. The defendant murdered a defenseless seven-month-old child by first striking the child’s body against an object with such force the child’s liver ruptured, and then smothering the child to death. We need not recount the other injuries suffered by the infant. The sentence imposed was within the statutory limitations, and a sentence within statutory limits will not be disturbed on review absent an abuse of discretion. (Reid, 160 Ill. App. 3d 491, 513 N.E.2d 517.) The sentence here was proper and was imposed because of the seriousness of the offense, not because the prosecutor or the trial judge disagreed with the supreme court.

Affirmed.

GREEN and STEIGMANN, JJ., concur.