author: JUSTICE DOYLE

text:
    RONALD J. ECK, JR., Plaintiff-Appellant, v. McHENRY COUNTY PUBLIC BUILDING COMMISSION et al., Defendants-Appellees (Jerome E. Olsen et al., Defendants).
    Second District
    No. 2—92—0277
    Opinion filed December 4, 1992.

      William F. Ryan and James M. Harman, both of Doyle & Ryan, Ltd., of Chicago, for appellant.
    David R. Barry, Jr., and Matthew J. Schueler, both of Bollinger, Ru-berry & Garvey, of Chicago, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Ronald J. Eck, Jr., filed a six-count complaint in the circuit court of McHenry County against defendants, McHenry County Public Building Commission (PBC), McHenry County (County), Jerome E. Olsen, and Olsen and Associates, alleging negligence and violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, pars. 60 through 69). Plaintiff appeals from the circuit court’s order of PBC’s and County’s motions to dismiss the Structural Work Act counts. Jerome E. Olsen and Olsen and Associates are not parties to this appeal, and the remaining counts are not the subject of this appeal. The trial court’s order contains the requisite Supreme Court Rule 304(a) finding (134 Ill. 2d R. 304(a)).

PBC and County contend that section 3—108(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 3—108(a)) bars a cause of action against a local public entity based upon alleged violations of the Illinois Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, pars. 60 through 69). The County raises the additional issue of whether section 3—103(a) of the Tort Immunity Act provides it with immunity.

Counts I and III of plaintiff’s second amended complaint alleged that on February 21, 1991, defendants PBC and County were the owners and general contractors of a structure being erected in the City of Woodstock, Illinois. On that date, plaintiff was employed as a journeyman carpenter with Kiewit Western, Inc. While he performed his duties, a scaffold upon which he was standing collapsed causing him to fall 35 feet to the ground.

Plaintiff further alleged that defendants, individually and through their agents, servants and employees, were present during the course of the construction and erection of the structure; that defendants participated in and coordinated the work being done and designated various work methods; and that defendants maintained and checked the work progress and participated in the scheduling and inspection of the work. Additionally, defendants had the authority to stop the work, refuse work and materials, and order changes. The complaint further alleged that defendants were among the persons, firms, or corporations “having charge” of the construction and erection of the structure.

In his complaint, plaintiff alleged various violations of the Structural Work Act. Defendants allegedly permitted a scaffold to be utilized which was in violation of the prevailing safety codes of the Occupational Safety and Health Administration (OSHA). They also failed to provide adequate catch platforms or other safety devices so as to give proper and adequate protection to the life and limb of the plaintiff and failed to provide a proper scaffold. Plaintiff alleged that, as a proximate result of defendants’ conduct, he sustained temporary and permanent injuries resulting in expenditures for medical treatment and a loss of earnings.

In response to plaintiff’s original complaint, defendants filed separate motions to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619). The parties subsequently stipulated that defendants’ motions would apply to plaintiff’s second amended complaint. In their motions, both PBC and County averred that section 3—108(a) of the Tort Immunity Act barred plaintiff’s cause of action based upon the Structural Work Act. County’s motion further averred that plaintiff’s Structural Work Act cause of action was barred under section 3—103(a) of the Tort Immunity Act (see Ill. Rev. Stat. 1991, ch. 85, par. 3—103(a)).

The circuit court entered its order granting defendants’ motions to dismiss with prejudice counts I and III of plaintiff’s second amended complaint. Plaintiff then filed this timely appeal.

Because of the substantial similarity of counts I and III and the similarity of defendants’ motions, we will discuss them together for the purposes of this appeal. Plaintiff’s primary appellate contention is that the plain language of the Tort Immunity Act evidences that the legislature did not intend to preclude a cause of action against a local public entity founded upon violations of the Structural Work Act. Defendants respond to the contrary and direct our attention to Eiben v. E.J. Cattani & Sons, Inc. (1991), 217 Ill. App. 3d 609, wherein the Appellate Court, Third District, held that section 3—108(a) of the Tort Immunity Act barred a Structural Work Act cause of action against Bureau County.

Upon review of a trial court’s grant of a motion to dismiss, all well-pleaded allegations in the complaint are taken as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505; Elliott v. L R S L Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 727.) Dismissal of a complaint, or portion thereof, should not be granted under section 2—619 unless it clearly appears that no set of facts can be proved which would entitle plaintiff to recover. (Elliott, 226 Ill. App. 3d at 727-28.) This court is concerned only with questions presented by the pleadings. Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not admitted. Elliott, 226 Ill. App. 3d at 728.

As a preliminary matter, we note that the purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. (Ill. Rev. Stat. 1991, ch. 85, par. 1—101.1 (a); West v. Kirkham (1992), 147 Ill. 2d 1, 11.) By statutory definition, counties and municipal corporations are local public entities. (Ill. Rev. Stat. 1991, ch. 85, par. 1—206.) Therefore, PBC, as a municipal corporation (see Ill. Rev. Stat. 1991, ch. 85, par. 1044), and County are afforded the immunities and defenses provided by the Tort Immunity Act (see Ill. Rev. Stat. 1991, ch. 85, pars. 1—101.1(a), (b)).

On appeal, plaintiff argues that (1) the trial court’s ruling is inconsistent with established rules of statutory construction; (2) the legislature intended section 3—108(a) to apply only to completed property; (3) section 3—108(a) cannot be interpreted so as to provide immunity to a governmental entity for supervision thus negating liability under the Structural Work Act; (4) had the legislature intended to confer immunity upon public entities engaged in construction, it would have specifically provided for it in the Tort Immunity Act; and (5) the allegations of the complaint fall under an ultrahazardous activity exception to the Tort Immunity Act. PBC responds that (1) plaintiff’s interpretation contradicts the clear language of the statute and ignores other provisions of the Tort Immunity Act; and (2) had the legislature intended to create an exception to the Tort Immunity Act for claims brought under the Structural Work Act, it would have done so. County responds that (1) if the legislature intended section 3—108(a) to apply only to completed property it would have been expressly provided for in the statute; (2) plaintiff’s argument fails to consider the statute as a whole; (3) had the legislature intended to create an exception to the Tort Immunity Act for Structural Work Act claims, it would have expressly done so; and (4) notwithstanding the applicability of section 3—108(a), section 3—103(a) confers immunity from Structural Work Act claims.

A statute will be construed by an appellate court independent of the trial court’s determination. (Magna Bank v. Comer (1992), 232 Ill. App. 3d 300, 304.) The fundamental tenet of statutory construction, to which all other canons and rules subordinate, is to give effect to the true intent and meaning of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194.) A court’s initial inquiry is directed to the language of the statute itself. (Hernon, 149 Ill. 2d at 194.) A court, however, should also consider the purpose of the statutory enactment. (Harvel v. City of Johnston City (1992), 146 Ill. 2d 277, 283; In re Houlihan (1992), 231 Ill. App. 3d 677, 680.) Furthermore, the consequences resulting from various constructions must be taken into consideration, and a court should select a construction which leads to a logical result and avoid one which the legislature could not have contemplated. (Klier v. Siegel (1990), 200 Ill. App. 3d 121, 124.) Moreover, the courts presume that the General Assembly, in passing legislation, did not intend absurdity, inconvenience or injustice. Hernon, 149 Ill. 2d at 195.

In support of their argument, defendants rely in large measure upon Eiben v. E.J. Cattani & Sons, Inc. (1991), 217 Ill. App. 3d 609. In Eiben, an employee of a private contractor was injured after falling from a support tower used in conjunction with a pile driver. The employee brought suit against the crane operator, Bureau County and the county highway department alleging violations of the Structural Work Act. The Appellate Court, Third District, affirmed the trial court’s dismissal of plaintiff’s Structural Work Act count against Bureau County. The court held that plaintiff’s allegations that the county “had charge of” the project by virtue of maintaining supervision or control over the project raised a bar to tort liability under section 3—108(a) of the Tort Immunity Act. Eiben, 217 Ill. App. 3d at 612-13.

We note that although the plaintiffs in Eiben raised the issue of the applicability of section 3—108(a) with respect to Structural Work Act claims, the third district did not squarely address this threshold question. Rather, it focused on the more narrow question of whether the substance of plaintiff’s complaint alleged supervision or control over the project. Implicit in that analysis, therefore, is the assumption that section 3—108(a) bars a Structural Work Act claim. Because of the absence of contrary authority, the third district’s decision in Eiben was binding upon the circuit court in the present case. For reasons we will now set forth, however, we choose not to follow the holding in Eiben.

In 1959, the supreme court abolished common-law sovereign immunity in Illinois. (Molitor v. Homeland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 21.) In 1965, the legislature responded by enacting the Tort Immunity Act. It provides that local governmental units are liable in tort but limits this liability with an extensive list of immunities based upon specific governmental functions. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 506.) Sections 3—108(a) and (b) of the Tort Immunity Act provide:

“(a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.
(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours for such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said hours posted.” Ill. Rev. Stat. 1991, ch. 85, pars. 3—108(a), (b).

A survey of the cases that have addressed section 3—108(a) immunity reveals that the type of activity involved typically arises in either a scholastic or recreational setting. See, e.g, Castenada v. Community School District Unit No. 200 (1991), 226 Ill. App. 3d 514 (students on public property); Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 (adult swimming class); Koh v. Village Greens of Woodridge (1987), 158 Ill. App. 3d 226 (supervision and regulation of public golf course during tournament); Ramos v. City of Countryside (1985), 137 Ill. App. 3d 1028 (supervision of summer recreation program on public property); Edmonson v. Chicago Board of Education (1978), 62 Ill. App. 3d 211 (supervision of activities in school lunchroom); Woodman v. Litchfield Community School District No. 12 (1968), 102 Ill. App. 2d 330 (supervision of student in classroom where one student injured another).

With the exception of Eiben, our research discloses no case in Illinois that has addressed the interplay between section 3—108(a) of the Tort Immunity Act and claims brought against a local public entity under the Structural Work Act. A substantial body of case law exists, however, which implicitly recognizes that local public entities can be held liable for claims brought under the Structural Work Act arising out of construction-related injuries. See, e.g., Harvel v. City of John ston City (1992), 146 Ill. 2d 277 (spouse of injured party can maintain cause of action for loss of consortium against defendant city); Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363 (failure to barricade opening from which materials were hoisted could, if violations of Structural Work Act are proved willful, subject city to liability for injuries sustained by worker); Lafata v. Village of Lisle (1989), 185 Ill. App. 3d 203, aff’d (1990), 137 Ill. 2d 347 (reversal of summary judg ment in favor of village with regard to Structural Work Act claim); Keyser v. Metropolitan Sanitary District (1987), 165 Ill. App. 3d 696 (appellate court affirmed Structural Work Act verdict against public entity); McCarty v. City of Marshall (1977), 51 Ill. App. 3d 842 (Structural Work Act applicable against city where worker sustained injuries from fall after receiving electrical shock).

Although the plain language of section 3—108(a) could arguably include the failure to supervise construction activities, we do not believe that the legislature intended to immunize local public entities from liability for construction-related injuries brought under the Structural Work Act. If we were to adopt such a broad reading of section 3—108(a), the term “activity” would engender activities clearly beyond what have been typically and historically regarded as governmental functions. In short, the exception (i.e., immunity) would swallow the rule. Moreover, the existence of case law predating the 1986 amendment of the Tort Immunity Act and recognizing the right of an injured worker to maintain a cause of action against a local public entity based upon violations of the Structural Work Act suggests that had the legislature intended to confer immunity, it would have expressly provided for it in the statutory amendments. Because the Tort Immunity Act is in derogation of the common law, it must be strictly construed against a local public entity. Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 764.

In further support of our conclusion, we note that under the common law municipalities were afforded immunity from liability for the performance of discretionary acts. (Greeson v. Mackinaw Township (1990), 207 Ill. App. 3d 193, 200.) They were not afforded immunity, however, for the performance of ministerial tasks, that is, those amounting to the performance of a task in accordance with an order. (Greeson, 207 Ill. App. 3d at 200.) Discretionary acts are those acts which require personal deliberation, decision and judgment. Greeson, 207 Ill. App. 3d at 200.

As our supreme court has stated in a somewhat different factual context:

“It is well settled, that municipal corporations have certain powers which are discretionary or judicial in character, and certain powers which are ministerial. *** Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial. [Citations.] Official action is judicial where it is the result of judgment or discretion. Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty, that nothing remains for judgment or discretion. [Citation.] A corporation acts judicially, or exercises discretion, when it selects and adopts a plan in the making of public improvements, such as constructing sewers or drains; but as soon as it begins to carry out that plan, it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner.” (Emphasis added.) City of Chicago v. Seben (1897), 165 Ill. 371, 377-78.

Although the statement above was made prior to the enactment of the Tort Immunity Act, it is apparent from a review of the statute as a whole that the legislature contemplated the discretionary/ministerial distinction when it drafted the provisions of the Act. For example, section 3—103(a) confers immunity from liability for injuries caused by the adoption of a plan or design of construction. This section clearly recognizes the exercise of discretionary authority as a basis for immunity which is consistent with the supreme court’s pronouncement in Seben. Additionally, immunity from liability for discretionary acts is implicit in other provisions. (See, e.g., Ill. Rev. Stat. 1991, ch. 85, par. 3—104 (“failure to initially provide”); Ill. Rev. Stat. 1991, ch. 85, par. 3—105(b) (“failure of a local public entity *** to upgrade any existing street”); Ill. Rev. Stat. 1991, ch. 85, par. 4—102 (“failure to establish a police department”); Ill. Rev. Stat. 1991, ch. 85, par. 5—101 (“failure to establish a fire department”).) The common thread linking these provisions is that a local public entity is immunized from liability in the exercise of its discretion while acting in a governmental capacity. Moreover, the statute reveals no provision that expressly confers immunity from liability arising from the performance of wholly ministerial tasks. It logically follows, in light of the implicit retention of the discretionary/ministerial distinction in the existing statute, that, had the legislature intended to confer immunity for ministerial tasks, it would have been expressly provided for at the time of enactment or in later amendments.

The discretionary/ministerial distinction, as applied to the Tort Immunity Act, continues to be recognized. (See, e.g., Parsons v. Carbondale Township (1991), 217 Ill. App. 3d 637 (failure of township supervisor to comply with requirements of State manual delineating specifications for construction and placement of road signs may subject public entity to liability for negligent failure to perform a ministerial task); Greeson v. Mackinaw Township (1990), 207 Ill. App. 3d 193 (city immune from liability because employee was acting in discretionary capacity).) Although the cases that have applied the distinction differ factually from the case at bar, we find it applicable to the present case.

Based upon the foregoing, it is our conclusion that where a local public entity engages in the supervision or oversight of a municipal construction project in accordance with a previously agreed-upon plan or design of construction, that entity is no longer engaged in the exercise of a discretionary function and, as such, is not afforded immunity from liability under section 3—108(a) of the Tort Immunity Act. We recognize that inherent in the performance of virtually any ministerial task, such as the oversight of a construction project, is an element of discretion. It is our opinion, however, that an act in this context is best characterized by viewing it as a whole rather than by focusing upon its component elements. Otherwise, it would be possible to recharacterize almost any ministerial task as discretionary, thus providing for an overly broad application of immunity protection. We do not believe that the legislature intended such a broad interpretation of the Tort Immunity Act.

Additionally, County separately contends that section 3—103(a) provides it with immunity for “the adoption of a plan or design or a construction of or improvement to public property where the design has been approved in advance.” (Emphasis added.) Plaintiff responds that the immunity intended by the legislature extends only to injuries that result from a negligent plan or design of construction and that such injuries are not the type contemplated by the Structural Work Act.

Section 3—103(a) of the Tort Immunity Act provides:

“A local public entity is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe.” Ill. Rev. Stat. 1991, ch. 85, par. 3—103(a).

Considering the plain language of the statute, we note that County misquotes the statute in its brief and imports this misunderstanding into its argument. The statute does not confer immunity from liability for the adoption of a plan or design or construction; rather, immunity exists for the adoption or design of a construction (see Ill. Rev. Stat. 1991, ch. 85, par. 3—103(a)). Therefore, County’s argument is in derogation of the plain language of the statute.

Moreover, after comparing the statute with plaintiff’s complaint, we conclude that section 3—103(a) immunity is inapplicable to the issues of this case. Counts I and III of plaintiff’s complaint do not allege the failure to adopt a design or plan; rather, they are premised upon violations of the Structural Work Act resulting from defendant’s having charge of the project. Therefore, because the allegations do not pertain to injuries resulting from the adoption of a plan or design, section 3—103(a) immunity is inapplicable. See Anderson v. Sutter (1983), 119 Ill. App. 3d 1070, 1078.

Finally, it is unnecessary, in light of our disposition concerning the applicability of section 3—108(a) to the facts of this case, to consider plaintiff’s contention that the facts alleged in his complaint bring this case within what he perceives as an “ultrahazardous activity” exception to the Tort Immunity Act, nor is it necessary to consider whether section 3—108(a) applies only to completed property. Thus, we offer no opinion as to those contentions.

For the foregoing reasons, we reverse the order of the circuit court of McHenry County dismissing with prejudice counts I and III of plaintiff’s second amended complaint and remand this cause for further proceedings.

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ALLAN J. HAMILTON, Indiv. and as Trustee, et al., Plaintiffs-Appellants, v. J. McDONALD WILLIAMS et al., Defendants-Appellees.
    Second District
    No. 2—92—0026
    Opinion filed November 24, 1992.

      Myron M. Cherry, Peter Flynn, and William R. Coulson, all of Cherry & Flynn, and Howard P. Ryan, of Peterson & Ross, both of Chicago, and Schirott & Associates, P.C., of Itasca (James R. Schirott, of counsel), for appellants.
    James R. Daly, F. Samuel Eberts III, and Carol A. Tiesi, all of Jones, Day, Reavis & Pogue (Daniel E. Reidy, of counsel), and Dan K. Webb, of Winston & Strawn, both of Chicago, and John E. Norton, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, former partners in a real estate venture with defendants, filed this timely appeal from an order of the circuit court of Du Page County denying, inter alia, their motion pursuant to section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401) to declare as void for lack of subject-matter jurisdiction an earlier mandate entered by this court. Defendants filed a motion to dismiss this appeal and for an award of sanctions. Defendants’ motion and objections thereto are taken with the case.

The issues presented for review are: (1) whether a section 2—1401 petition brought in the trial court is the proper means to challenge the subject-matter jurisdiction of an appellate court over an earlier appeal by the parties; (2) whether this court had jurisdiction to consider the first appeal between the parties in this matter (see Hamilton v. Williams (1991), 214 Ill. App. 3d 230); and (3) whether the institution of this appeal warrants the imposition of sanctions.

The facts underlying this matter are detailed in Hamilton v. Williams (1991), 214 Ill. App. 3d 230. We will, therefore, provide only a background summary of the facts taken from our earlier opinion.

Defendant Trammel Crow (Crow) is a large nationwide real estate organization. Plaintiffs (Hamilton Partners) are former partners of Crow in various real estate projects located in and around the Chicago area. In January 1987, Hamilton Partners resigned from Crow, triggering the buy-sell provisions of various limited real estate partnership agreements. As a result, litigation ensued, and the parties subsequently entered into settlement negotiations.

During the negotiations, the parties agreed to a division of the properties. The parties’ settlement agreement was memorialized, in part, in a letter of intent. The letter of intent provided that in the event the parties could not agree upon a value for various properties within 10 days, Sudler Marling, Inc., and American Appraisal Associates would be directed by Hamilton Partners and Crow, respectively, to deliver their independent determinations of the value of each party’s respective interest in the disputed properties. The agreement also provided “that if one party should fail to submit its report in a timely manner, as outlined in the letter of intent, the first determination delivered would be conclusive and binding on the parties” (hereinafter referred to as the “first in time remedy”). Upon submission of the two reports, the parties were then allowed two additional days to resolve differences in the reports, and failing that, the reports would be submitted to an arbitrator named in the document. Such arbitration would be considered final and conclusive.

The parties were unable to agree on the values for various properties thus triggering the arbitration mechanism in the letter of intent. In particular, two properties were at issue, the Hamilton Lakes business park and Hamilton Lakes office park. During the appraisal period, Crow became concerned that the quality of the appraisal information provided by American Appraisal was not of sufficient quality and that American might not meet the submission deadline. Consequently, Crow hired Jared Schlaes to appraise the two properties. Schlaes subsequently learned that the arbitrator was to be John T. Ryan of Cushman and Wakefield. Schlaes disclosed to Crow that he and Ryan had a prior employment relationship, but he did not consider it to be a problem.

After becoming concerned about its use of Schlaes instead of American, Crow persuaded American to assume the appearance of a contractor/subcontractor relationship with Schlaes. American subsequently “adopted” Schlaes’ appraisal reports. Schlaes’ report valued the two properties in question at $22.8 million and $14.8 million, respectively. In contrast, Hamilton Partners’ appraiser set the values substantially higher at $67.29 million and $22.5 million.

Upon discovering that the Crow appraisals were prepared by Schlaes rather than American, Hamilton Partners became concerned and felt that the matter was in need of investigation. Despite their concern and uncertainty about the use of the Schlaes reports, however, Hamilton Partners chose to proceed with the arbitration. Apparently, they were of the opinion that because the reports were of such poor quality and reflected values that were unreasonably low, the arbitrator would reject them thus possibly providing Hamilton Partners with a strategic advantage. Accordingly, Hamilton Partners raised no objection to the use of the reports prior to the arbitrator’s decision. The arbitrator subsequently determined the values of the two properties to be $25 million and $15 million (i.e., values very close to the Schlaes appraisal) and nearly $50 million less than the Hamilton Partners’ appraisal.

Two days later, Hamilton Partners filed an emergency motion to enforce the letter of intent and to apply the “first in time remedy” on the grounds that (1) Crow’s use of Schlaes amounted to a breach of the letter of intent; and (2) Schlaes’ former employment relationship with the arbitrator fatally tainted the arbitration.

In a subsequent proceeding, the trial court determined that the relationship of Schlaes and the arbitrator was not a fatal conflict of interest. Following a lengthy trial on Hamilton Partners’ emergency motion, the trial court concluded that Crow’s use of Schlaes was tantamount to a breach of the letter of intent; that Hamilton Partners had not knowingly and intentionally waived Crow’s breach of the agreement; but their conduct subsequent to the breach waived their right to the “first in time remedy.”

Significant to the present appeal, the trial court, on June 24, 1988, entered its order nunc pro tunc June 16, 1988 (June 24 order), vacating the arbitration award with respect to the two properties, and directing the parties to submit a plan for appraisal and rearbitration. On December 2, 1988, the parties entered into an agreed order for rearbitration (December 2 order).

As a practical matter, the June 24 order consists of two component parts. The first part of the order vacated the original arbitration award, in connection with the Hamilton Lakes office and business park properties, made by arbitrator John Ryan. The second part directed the parties to submit a plan for appraisal and arbitration of the properties which were the subject of the vacated award. We note that the order contained no express language compelling arbitration, nor was the order entered pursuant to a motion by either party to compel arbitration. Additionally, Hamilton Partners state in their brief that at that instant in the litigation neither party desired further arbitration and that the parties desired the trial court to determine the values of the properties in question.

The December 2 order, entitled “Agreed Order for Rearbitration,” provided the methodology for determining, inter alia: the fair-market value of the properties; qualifications and selection of appraisers; selection and duties of the arbitrator; deadlines for appraisals; and an agreement that the entry of the order was “without prejudice to the rights of any party to appeal consistent with Illinois law from the rulings and orders heretofore made on June 16 and June 24, 1988.” Also included in the December 2 order was a statement in the introductory paragraph that reads, in part, as follows: “that the appraisal and arbitration of the *** properties *** ordered by this Court shall be implemented as set forth herein.”

In July 1989, the new arbitrator assigned values of $53 million and $19.5 million to the two properties, the identical values assigned by Hamilton Partners’ second appraiser. Following subsequent motions and hearings, the court, on November 22, 1989, entered its order “with respect to all issues arising from [Hamilton Partners’] July 22, 1987, Emergency Motion Pursuant to the Court’s Order to Retain Jurisdiction.” The order decreed, among other things, that Crow pay to Hamilton Partners $8,535,000 as a result of the partial order entered August 8, 1988, confirming the rearbitration award, and interest on the amount from August 26, 1987, to August 18, 1989. The order also contained a Rule 304(a) finding (see 134 Ill. 2d R. 304(a)) that there was “no just reason for delaying enforcement of, or any appeal from, this order and/or any other orders and rulings arising from [plaintiffs’ July 22, 1987, [e]mergency motion.” On December 19, 1989, defendants filed their notice of appeal from various orders entered by the trial court including the June 24, 1988, order, the December 2, 1988, order and the November 22, 1989, order.

In the first appeal to this court, we determined the dispositive issue as being whether the trial court erred in vacating the original arbitration award “because Hamilton Partners waived its right to object to Crow’s use of a substitute appraiser by proceeding to arbitration with knowledge of the substitute appraiser without objection thereto.” (Hamilton, 214 Ill. App. 3d at 239.) It appears from the record and the parties’ memoranda in the present action that neither party raised the issue of appellate jurisdiction during the pendency of the first appeal. This court held that Hamilton Partners’ proceeding to arbitration without objection with knowledge of Crow’s breach of the letter of intent waived their right to the “first in time” remedy and the same conduct waived the breach itself. (Hamilton, 214 Ill. App. 3d at 243.) Consequently, on May 15, 1991, this court filed its opinion and disposition reversing the circuit court’s order which vacated the first arbitration, vacating subsequent orders entered by the trial court in connection with the rearbitration and remanding with directions to reinstate the first arbitration award. Hamilton, 214 Ill. App. 3d at 248.

On July 8, 1991, this court denied Hamilton Partners’ petition for rehearing. It appears from the record that no issue of appellate jurisdiction was raised in that petition.

On October 2, 1991, the Illinois Supreme Court denied Hamilton Partners’ petition for leave to appeal. In their petition, Hamilton Partners, for the first time, raised the issue of whether this court had subject-matter jurisdiction to hear the first appeal.

On November 12, 1991, the Illinois Supreme Court denied Hamilton Partners’ motion for leave to file an original writ of mandamusI prohibition or for a supervisory order. The only issue raised in this petition was the jurisdictional issue.

On November 19, 1991, Hamilton Partners filed in the trial court an emergency petition pursuant to section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401) alleging that the judgment of this court reversing the trial court’s orders of June 24, 1988, and December 2, 1988, compelling arbitration was void for want of subject-matter jurisdiction. Hamilton Partners argued that Crow’s failure to file a timely notice of appeal pursuant to Supreme Court Rule 307 (see 134 Ill. 2d R. 307) with regard to the June 24 and December 2 orders deprived this court of jurisdiction. During the hearing on the petition, Crow argued that the June 24 order vacating the original arbitration was not tantamount to an order compelling arbitration and that the focus was upon the vacatur of the original arbitration. Hamilton Partners’ petition further alleged, and Crow argued to the contrary, that a section 2—1401 petition was the proper means to challenge the appellate court’s jurisdiction over the first appeal.

On November 25, 1991, this court issued its mandate as follows: “[I]n accordance with the views expressed in the attached decision the judgment of the Circuit Court of Du Page [Cjounty entered nunc pro tunc June 16, 1988, vacating the first arbitration award is reversed, and its subsequent orders entered in connection with re-arbitration are vacated. The cause is remanded with directions to reinstate the first arbitration award. Reversed and Remanded.”

On December 9, 1991, after considering Hamilton Partners’ section 2—1401 petition, the circuit court entered its order as follows: (1) denying Hamilton Partners’ motion to declare as void for want of jurisdiction the appellate court’s mandate and reinstate the original arbitration award; (2) releasing the appeal bond posted by Crow; and (3) denying Hamilton Partners’ request for a stay of those orders pursuant to Supreme Court Rule 305(b) (see 134 Ill. 2d R. 305(b)).

On January 6, 1992, Hamilton Partners appealed from the circuit court’s order denying their section 2—1401 petition. In response, Crow filed a motion to dismiss the appeal and for an award of sanctions. During the pendency of this appeal, Hamilton Partners filed their motion for direct appeal to the Illinois Supreme Court pursuant to Supreme Court Rule 302(b) (see 134 Ill. 2d R. 302(b)) which was subsequently denied on March 5, 1992.

Hamilton Partners’ primary contention is that this court lacked subject-matter jurisdiction to consider the first appeal as a result of Crow’s failure to file a timely notice of appeal from the trial court’s entry of either the June 24 or the December 2 orders “compelling arbitration.” Hamilton Partners argue that the December 2 agreed order’s explicit characterization of the June 24 order as an order of the court requiring rearbitration evidences the court’s intention to compel arbitration. Hamilton Partners further appear to argue that, notwithstanding the nature of the June 24 order, the December 2 order clearly compelled arbitration thus making it immediately appealable as of right pursuant to Supreme Court Rule 307. In its appellate brief, Crow contends that the June 24 order requiring the parties to submit a plan for the appraisal and arbitration contained “none of the telltale signs of an injunction.” Crow further argues that the December 2 agreed order adds nothing to Hamilton Partners’ argument because the order was not entered in response to a motion to compel arbitration and, where no party has moved to compel arbitration, the entry of an order providing for rearbitration is not an order compelling arbitration. Crow also argues that even if the December 2 order was considered an order compelling arbitration, an interlocutory appeal of that order would not have reached the issue of the vacatur of the original arbitration award.

In the motion to dismiss, the objections thereto, and the briefs, the parties have articulated numerous arguments supported by extensive citation to authority which we have carefully considered. We will address only those points necessary to reach a disposition of this protracted litigation.

We proceed initially to the issue of whether an appellate court’s jurisdiction over an earlier appeal between the parties may be attacked by way of a section 2—1401 petition in the trial court after the issuance of a mandate directed to the merits of the case, noting that neither party has provided any directly controlling case law.

An appellate court is under a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Gilkey v. Scholl (1992), 229 Ill. App. 3d 989, 992; Village of Lake in the Hills v. Hain (1991), 222 Ill. App. 3d 88, 90.) Even if the issue is not raised by the parties, this court must nevertheless determine the question of its jurisdiction (Carlson v. Powers (1992), 225 Ill. App. 3d 410, 413; Canfield v. Delheimer (1991), 210 Ill. App. 3d 1055, 1057) prior to deciding the merits of an appeal (Steel City Bank v. Village of Orland Hills (1991), 224 Ill. App. 3d 412, 416). Implicit in these rules is the principle that an appellate court’s proceeding to the merits of an appeal necessarily contemplates a threshold jurisdictional inquiry and determination. As a question of law before the court, once determined it becomes the law of the case. Moreover, the failure of a court of review to explain its rationale on a jurisdictional issue is irrelevant, “for the law of the case turns on whether a court previously ‘decide[d] upon a rule of law’ *** not on whether, or how well, it explained the decision.” (Christianson v. Colt Industries Operating Corp. (1988), 486 U.S. 800, 817, 100 L. Ed. 2d 811, 830, 108 S. Ct. 2166, 2178.) After due consideration, we hold that our decision to proceed to the merits of the first appeal between the parties implicitly constituted a determination on the issue of appellate jurisdiction thus rendering it the law of the case. Therefore, upon return of the mandate reversing the trial court’s vacatur of the first arbitration award and vacating its subsequent orders in connection with the rearbitration, the trial court was bound by this court’s determination of all questions decided, and its sole obligation was to act in conformance "with this court’s judgment. (See Salkeld v. V.R. Business Brokers, Inc. (1992), 231 Ill. App. 3d 441, 445.) The only question remaining open for further consideration by the trial court, therefore, was whether it entered its order in compliance with the mandate. P S L Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 309; People v. National Builder’s Bank (1957), 12 Ill. 2d 473, 474.

Although decided in a different jurisdictional context, we find persuasive support for our holding in the following pronouncement of the United States Supreme Court:

“ ‘As most commonly defined, the doctrine [of the law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ [Citation.] This rule of practice promotes the finality and efficiency of the judicial process by ‘protecting against the agitation of settled issues.’ [Citation.]
* * *
*** [T]he law-of-the-case doctrine ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ [Citation.] A court has the power to revisit prior decisions of its own ***, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’ ” (Emphasis added.) Christianson, 486 U.S. at 815-17, 100 L. Ed. 2d at 830-31, 108 S. Ct. at 2177-78, quoting Arizona v. California (1983), 460 U.S. 605, 618 n.8, 75 L. Ed. 2d 318, 333 n.8, 103 S. Ct. 1382, 1391 n.8.

Additionally, our supreme court has held that where an appellate court determines an issue of law governing a particular case, its holding establishes the law of the case and, as such, binds the trial court and appellate court in any subsequent proceeding between the parties. (See P S L Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 312.) Although the factual scenario in P S L Realty differs once again from the present case, we share the court’s concern that at some point in time there must be an end to litigation. A case that appears interminable “will certainly prove to be so if the various courts through which it passes must consider and reconsider each question several times.” (P S L Realty, 86 Ill. 2d at 313.) We conclude that the trial court correctly refused to void the mandate of this court on the ground of defective appellate jurisdiction in the first appeal. Litigation that is interminable is intolerable.

We note, however, that the appellate and trial courts’ adherence to the law of the case doctrine would not insulate the jurisdictional issue from review by the supreme court. (See Christianson, 486 U.S. at 817, 100 L. Ed. 2d at 831, 108 S. Ct. at 2178.) Nor is our decision here intended to foreclose a legitimate challenge to this court’s jurisdiction through a timely petition for rehearing. (See, e.g., Wilburn v. City of Chicago (1984), 123 Ill. App. 3d 744.) As noted earlier, Hamilton Partners did in fact petition this court for rehearing in the original appeal although they apparently did not raise the jurisdictional issue therein. They also filed a petition for leave to appeal and a motion for leave to file an original writ of mcmdamiis/prohibition or for a supervision order, both of which raised the issue of this court’s jurisdiction.

While we remain mindful of the general principle that jurisdiction may be attacked in any court at any time, in our view, to allow challenges to appellate jurisdiction in the trial court after the issuance of a mandate directed to the merits would wreak havoc on our well-structured system of review. Moreover, our decision to reach the merits of the first appeal did not work a manifest injustice abrogating the application of the law of the case doctrine because, as discussed below, this court had jurisdiction to consider the first appeal on the merits.

The Illinois Constitution provides, in part, that “[ajppeals from final judgments of a Circuit Court are a matter of right to the Appellate Court.” (Ill. Const. 1970, art. VI, §6.) Since the procedures for effecting one’s constitutional right and invoking the appellate court’s jurisdiction are purely statutory, the requirements provided within our supreme court rules must be complied with. (People v. Allen (1977), 49 Ill. App. 3d 108, 111.) Appellate jurisdiction cannot be conferred by agreement of the parties (E.J. De Paoli Co. v. Novus, Inc. (1987), 156 Ill. App. 3d 796, 798), nor may the failure to file a timely notice of appeal be waived by the parties (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 674).

It is axiomatic that an appellate court’s jurisdiction is confined to reviewing final orders or judgments, unless the particular judgment or order falls within an enumerated category permitting interlocutory appeals. (In re Marriage of Agustsson (1992), 223 Ill. App. 3d 510, 514.) An appellate court’s threshold inquiry, therefore, is whether the order appealed from is final and appealable. (Trizzino v. Kline Brothers Co. (1982), 106 Ill. App. 3d 230, 232.) In our jurisdictional analysis, therefore, the first step is to determine whether the orders of June 24 and December 2 were final.

A final order terminates the litigation on the merits of the case and determines the ultimate rights of the parties, so that, if affirmed, the only action remaining is to proceed to judgment. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171; Agustsson, 223 Ill. App. 3d at 514.) The purpose of a final order is to prevent the multiplicity of suits and piecemeal appeals. Kinkin v. Marchesi (1991), 213 Ill. App. 3d 176, 178.

On the date of entry, the first part of the June 24 order vacating the original arbitration award was a nonfinal order because the dis-positive issue of the values of the properties was still undetermined, thus leaving open a question on the merits. Likewise, the second part of that order contemplated the submission of additional information necessary to resolve a material issue in the litigation, thus making it nonfinal. Next, the December 2 order cannot be deemed final because it necessarily contemplated further action by the parties to resolve a material issue (i.e., the value of the properties).

Having determined that the orders of June 24 and December 2 were nonfinal, the next inquiry is whether the June 24 and December 2 orders were otherwise appealable. Hamilton Partners contend that the June 24 and December 2 orders were tantamount to an order compelling arbitration, and, when entered by the circuit court, the orders became immediately appealable as of right pursuant to Supreme Court Rule 307 (see 134 Ill. 2d R. 307). Crow contends that Hamilton Partners’ argument overlooks the fact that the issue raised in the prior appeal was whether the trial court erred in vacating the first arbitration award, and not that portion of the order which addressed the plan for appraisal and arbitration. Crow argues that vacatur of an arbitration award is not immediately appealable as of right under Rule 307. Crow further maintains that its appeal was brought properly pursuant to Supreme Court Rule 304(a) (see 134 Ill. 2d R. 304(a)) and that it was not until the trial court’s entry of the November 22, 1989, order, and the requisite Rule 304(a) finding that there was “no just reason for delaying enforcement or appeal,” that the time for filing its notice of appeal began to run.

It is apparent from the parties’ arguments that Hamilton Partners have focused upon the plan and appraisal language of the June 24 order and the introductory language in the December 2 order as a basis upon which to characterize the orders as compelling arbitration. In contrast, Crow’s argument, in part, focuses upon the first part of the June 24 order vacating the original arbitration award as the basis for its contention that the issue raised in the original appeal was related to vacatur and not to compelling arbitration.

It is well established that appeals from interlocutory orders are permitted only as specifically provided in the rules (Robert A. Besner & Co. v. Lit America, Inc. (1991), 214 Ill. App. 3d 619, 623), and, if allowed by the rules, such orders are immediately appealable as of right (Besner, 214 Ill. App. 3d at 623). Additionally, if an order is entered which is immediately appealable as of right under Rule 307, an appeal must be perfected within the time frame prescribed by the rule or the right to challenge the ruling will be lost. (Besner, 214 Ill. App. 3d at 625-26.) Supreme Court Rule 307 provides, in relevant part:

“Rule 307. Interlocutory Appeals as of Right
(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” (134 Ill. 2d R. 307(a)(1).)

The purpose of Rule 307(a)(1) is to provide interlocutory review of a court’s exercise of its equitable power to grant injunctive relief and to prevent abuses of the power that could result in irreparable harm. (In re Marriage of Johnston (1990), 206 Ill. App. 3d 262, 264.) In its determination of what constitutes an appealable injunctive order under Rule 307(a), a court will look to the substance of the action and not the form. (In re A Minor (1989), 127 Ill. 2d 247, 260.) Actions of the circuit court having the force and effect of injunctions are appealable even if labeled as something else. Minor, 127 Ill. 2d at 260; see, e.g., Notaro v. Nor-Evan Corp. (1983), 98 Ill. 2d 268; see also In re Marriage of Blitstein (1991), 212 Ill. App. 3d 124, 130 (protective order entered pursuant to the Domestic Violence Act); Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 594 (denial of a motion to stay); In re Marriage of Granger (1990), 197 Ill. App. 3d 363, 372 (gag order restraining parties and attorneys from making extrajudicial comments).

Hamilton Partners direct our attention to Notaro v. Nor-Evan Corp. (1983), 98 Ill. 2d 268. In Notaro, the defendant appealed from an order of the circuit court denying its motion to compel arbitration. Our supreme court expressly held that an order denying a defendant’s motion to compel arbitration was immediately appealable under Rule 307. (Notaro, 98 Ill. 2d at 271.) The court acknowledged the appellate court’s analogizing the order in Notaro to an order granting or denying injunctive relief. Notaro, 98 Ill. 2d at 270.

After considering the facts of Notaro, we conclude that the orders entered in the present case are distinguishable. In Notaro, the defendant requested specifically that the trial court enter an order compelling arbitration. Here, the trial court’s order was not in response to a party’s motion to compel arbitration. Additionally, the underlying issue in No-taro was the arbitrability of the dispute and not, as here, the implementation of an arbitration procedure previously agreed to by the parties. In other words, the arbitrability of the dispute in the present case was not in question, thus eliminating from the June 24 and December 2 orders any trait of compulsion. The orders here regulated the procedural details of an already acknowledged arbitrable dispute. Indicative of this rationale is the Notaro court’s discussion of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) which, in part, provided that a court may compel arbitration where an arbitration agreement is shown to exist and one party refuses to arbitrate. (Notaro, 98 Ill. 2d at 273.) Implicit within that provision is the recognition of a challenge to the arbitrability of a dispute. Moreover, we note that Hamilton Partners in their brief stated that upon vacatur of the first arbitration neither party desired further arbitration and that both parties wanted the trial court to determine the appropriate values of the properties in question. Therefore, by Hamilton Partners’ own admission, neither party sought to compel arbitration in response to a challenge to the arbitrability of their dispute.

Although the June 24 and December 2 orders entered here are distinguishable from Notaro, it is still necessary to consider whether the December 2 and the second part of the June 24 orders were in substance orders granting injunctive relief thus bringing them within the ambit of Rule 307. An injunction has been described as “ ‘a judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.’ ” (Minor, 127 Ill. 2d at 261, quoting Wangelin v. Goe (1869), 50 Ill. 459, 463.) Our supreme court, however, has also stated:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not do a particular thing. Orders of the circuit court which can be properly characterized as ‘ministerial,’ or ‘administrative’ — because they regulate only the procedural details of litigation before the court — cannot be the subject of an interlocutory appeal. [Citation.] *** [Such orders] do not affect the relationship of the parties in their everyday activity apart from the litigation ***.” (In re A Minor (1989), 127 Ill. 2d 247, 261-62.)

One common factor running through the cases holding that an order possesses sufficient injunctive qualities so as to render it immediately appealable as of right is that the order impinges upon or restrains a party’s rights external to the litigation. For example, in Minor, the order had the effect of abridging the appellee’s first amendment rights. In Notaro, the order denying defendant’s motion to compel arbitration had the effect of denying defendant a right to a remedy.

In view of these principles, we conclude that the second part of the June 24 order is not in substance an order granting injunctive relief. Rather, it is more properly characterized as an order entered for the purpose of regulating the administrative and procedural details of the litigation. Notwithstanding the introductory language in the December 2 order, the June 24 order merely instructed the parties to submit a plan for appraisal and arbitration. It did not operate to impair any real or supposed rights of the parties outside the bounds of the litigation. Its sole effect was to regulate the conduct of the parties with respect to the progress of the litigation at hand. In sum, the second part of the order did not possess the injunctive-like quality sufficient to bring it within the ambit of Supreme Court Rule 307.

Similarly, although the December 2 order recites a detailed plan for the rearbitration of the property values and necessarily contemplates further arbitration, we conclude that it does not possess the injunctive-like qualities necessary to make it immediately appealable as of right under Supreme Court Rule 307. The order merely regulates the procedural details of the arbitration, and it does not affect the rights of the parties beyond the litigation. Additionally, the rationale distinguishing the December 2 order from the order in Notaro applies equally as well in this context. The December 2 order was not entered in response to a party’s motion to compel where one party has challenged the arbitrability of the dispute; rather, it was entered consistent with the parties’ earlier voluntary submission to arbitration. Cf. Johnson v. Baumgardt (1991), 216 Ill. App. 3d 550, 556-57.

Moreover, even if the December 2 order were immediately appeal-able as of right under Rule 307, the issue on review would have been limited to that aspect of the order alleged to compel arbitration. (See Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1151 (“An appeal under Rule 307 does not open the door to a general review of all orders entered by the trial court up to the date of the order that is appealed”).) This court, therefore, would not have had jurisdiction, at the time of the entry of the order, to reach the issue of the vacatur of the original arbitration.

In the interest of completeness, it is still necessary to consider further whether this court had jurisdiction to reverse that part of the circuit court’s order which vacated the original arbitration award. As noted above, the first part of the June 24 order vacating the arbitration award was a nonfinal order. Additionally, that portion of the order was not immediately appealable as of right under Rule 307. Crow contends that the circuit court’s orders were not ripe for certification until all the elements of relief for its June 16, 1988, breach finding were concluded on November 22, 1989, and that its appeal from that order on December 22, 1989, was properly brought pursuant to Supreme Court Rule 304 (see 134 Ill. 2d R. 304).

It is well established that “an order remains interlocutory, with regard to its appealability, only so long as no final order has been entered. Once a final order is entered, all prior nonfinal orders become appealable.” (In re E.L. (1987), 152 Ill. App. 3d 25, 30, citing Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433.) Although the record does not contain copies of the orders entered between December 2, 1988, and November 22, 1989, the transcripts of proceedings for December 2, 1988, and August 25, 1989, reflect that various issues pertaining to the vacatur of the original arbitration award remained unresolved. It does not appear that until the entry of the November 29, 1989, order that all of the issues relating to the June 24 order vacating the original arbitration were resolved. Although certainly not dispositive in a determination of finality, the express language of the November 22 order reveals that issues with regard to the June 24 order remained unresolved until that date. The order expressly stated that “upon entry of this order (and the [separate] agreed order) all issues arising from [Hamilton Partners’] July 22, 1987, Emergency Motion and the Court’s rulings pertaining thereto will have been disposed of.” We conclude, therefore, that the June 24 order vacating the original arbitration award did not achieve the requisite degree of finality until the entry of the November 22 order which fixed, among other things, the values of the vacant properties.

Additionally, because the November 22 order did not dispose of all the remaining issues in the case, it was necessary for the order to contain an express written finding that there was no just reason for delaying enforcement or appeal (see 134 Ill. 2d R. 304(a)), thus rendering the order appealable as of that date. An examination of the order reveals that it contained the requisite language and that it tracked the language expressly stated in the rule as required by this court (see Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, 1102).

From the foregoing analysis, we conclude that Crow’s filing of its notice of appeal on December 19, 1989, properly invoked the subject-matter jurisdiction of this court to review that portion of the trial court’s order entered June 24, 1988, nunc pro tunc June 16, 1988, vacating the original arbitration award. Additionally, we note that this conclusion is consistent with our earlier opinion. First, our decision not to expressly state our basis for acquiring appellate jurisdiction does not permit the conclusion that this court failed to consider it. Second, the dispositive issue in the first appeal related to the vacatur of the original arbitration. Third, even assuming, arguendo, that the second portion of the June 24 order was immediately appealable as of right, the opinion does not address the issue of the propriety of the June 24 and December 2 order in the context of “compelling arbitration”; rather, its focus is upon the vacatur of the original arbitration award. Furthermore, notwithstanding our earlier conclusion, the language of the mandate vacating the trial court’s subsequent orders in connection with the rearbitration does not lend itself to the conclusion that this court, in the first appeal, exercised its jurisdiction to consider the orders entered in connection with the rearbitration. It would only follow as a logical matter, of course, that once the order vacating the original arbitration was reversed, any subsequent orders entered relative to the rearbitration would have to be vacated, because allowing them to stand would be in direct conflict with the order of reversal.

Crow next contends that Hamilton Partners’ alleged attempt to ignore and avoid this court’s decision in the prior appeal amounts to a frivolous misuse of the appellate process warranting the imposition of sanctions. Hamilton Partners respond that sanctions are inappropriate because their appeal here was justified in view of the authority it presented in support of its position.

Supreme Court Rule 375(b) vests this court with the power to impose sanctions for the prosecution of a frivolous appeal. (See 134 Ill. 2d R. 375(b).) The rule states, in part:

“If, after consideration of an appeal, it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.” 134 Ill. 2d R. 375(b).

Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 788-89.

In light of the complexity and novelty of the procedural and jurisdictional questions presented, and the absence of directly controlling case law, it is our opinion that the imposition of sanctions would be inappropriate. Although we have unequivocally held that the jurisdiction of this court could not be reviewed by the trial court in a section 2—1401 proceeding, we do not view Hamilton Partners’ effort to appeal from the trial court’s decision as an unreasonable attempt unwarranted by existing law or done in bad faith for the purpose of needlessly increasing the cost of litigation or causing unnecessary delay. Accordingly, Crow’s motion for sanctions is denied.

For the foregoing reasons, we affirm the order of the circuit court of Du Page County denying Hamilton Partners’ petition for relief, and we deny Crow’s motion for sanctions.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE GEIGER

text:
    NORTH SHORE SIGN COMPANY, INC., Plaintiff-Appellee, v. SIGNATURE DESIGN GROUP, INC., Defendant (Hwy, Ltd., d/b/a Yan’s Hunan Inn Restaurant, Defendant-Appellant).
    Second District
    No. 2—91—1407
    Opinion filed December 8, 1992.

      David Drenk, of Donovan & Roberts, P.C., of Wheaton, and Drake James Leoris, of Leoris & Cohen, P.C., of Highland Park, for appellant.
    Thomas L. Sbertoli, of Graham, Graham & Sbertoli, Ltd., of Libertyville, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Hwy, Ltd., d/b/a Yan’s Hunan Inn Restaurant (Hwy or defendant), appeals from the trial court’s order of October 24, 1991, denying sanctions sought pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) against the plaintiff, North Shore Sign Co., Inc. The court denied sanctions after hearing the arguments of the parties but apparently without the benefit of an evidentiary hearing. The appeal is before this court following a Rule 304(a) finding (134 Ill. 2d R. 304(a)) that there is no just reason to delay enforcement or appeal of the order denying sanctions.

On appeal, the defendant contends that it was an abuse of discretion for the trial court to deny an award of attorney fees incurred when the defendant responded to the plaintiff’s amended motion to vacate an order granting summary judgment to the defendant and denying the plaintiff’s motion for summary judgment on the plaintiff’s petition to remove signs which plaintiff had fabricated and installed at the defendant’s restaurant. The defendant argues that the plaintiff’s amended motion to vacate the summary judgment was not warranted by existing law because the plaintiff invoked certain provisions of the Mechanics Lien Act (Act) (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.) without reasonable inquiry into the law. The defendant asserts that the signs were not permanent, lienable fixtures under that act; rather, they were movable “trade” fixtures or goods whose removal was more properly governed by an action for replevin. We reverse the' order of the trial court and remand the cause for further findings of fact and law sufficient to support its decision.

The record reveals that on December 1, 1988, the defendant, as tenant of the premises, entered into a contract with Signature Design Group, Inc. (Signature or contractor), an architectural and engineering design firm. According to the contract, Signature was to construct certain improvements on the premises located at 100 North Milwaukee Avenue in Libertyville, Illinois. Among other things, the contractor was to provide the defendant with two exterior signs. The plaintiff’s contract to install the signs, dated May 23, 1989, had a contract price of $8,612 plus the cost of the permit fees.

On the verso of the contract was a provision which stated, in pertinent part:

“9. Title to all materials and property covered by this contract shall remain in Company [plaintiff] and shall riot be deemed to constitute a part of the realty to which it may be attached until the purchase price is paid in full. Company is given an express security interest in said material and property both erected and unerected notwithstanding the manner in which such personal property shall be annexed or attached to the realty. In the event of default by Purchaser ***, Company may at once (and without process of law) take possession and remove *** all materials used or intended for use in this construction of said equipment *** without being deemed guilty of trespass.”

The contract further provided that the contractor was to pay on receipt of the invoice, and after 30 days an interest charge would be added. The defendant claims not to have been present during the contract negotiations and did not take part in the selection of plaintiff, but did submit information to the contractor regarding the logo, style and colors of the sign which the contractor passed on to the plaintiff.

The defendant submitted an affidavit in support of its cross-motion for summary judgment in which its president, Cheng Ysen Yan, states that, on March 17, 1989, Chris Nesbitt, the president of Signature, represented to the defendant that the two signs were ordered but he did not advise the defendant from whom the signs were ordered. The affidavit further states that the contractor had promised substantial completion of the improvements by May 15, 1989, but the contractor failed to perform within that time and thereafter represented that the work would be performed by June 30, 1989. By June 8, 1989, the defendant had made progress payments to the contractor totalling $204,375.18, whereas the total original contract price was $245,000.

On June 30, 1989, the plaintiff began installing the signs on the defendant’s leasehold premises and completed the installation on July 7, 1989. The invoice for the signs' was dated July 10, 1989. The defendant’s affidavit states that, on or about July 28, 1989, the defendant’s president and Chris Nesbitt of Signature, among others, had a meeting during which the defendant became aware that certain subcontractors had not been paid in full. Defendant was assured that payment would be made by Signature to various subcontractors, including the plaintiff, who had already performed work at the premises.

According to the plaintiff’s answer to the defendant’s interrogatories, beginning on July 30, 1989, the plaintiff’s president, Victor Laska, made demands for payment on Signature. The plaintiff, however, did not record a notice of a claim of a mechanics’ lien regarding the work on defendant’s premises. On or about July 31, 1989, the defendant contemplated terminating Signature’s services.

Signature never completed its performance, and the defendant claimed that it was not entitled to full payment of the $245,000 contract price after August 9, 1989. The defendant did pay other contractors and suppliers after August 12, 1989, to complete the project. On September 6, 1989, the defendant attempted to ascertain from Signature whether the two exterior signs had been paid for out of the $204,375.18 paid by the defendant. The plaintiff had not been paid.

On September 13, 1990, the plaintiff filed its verified complaint. Count I, sounding in contract or quantum meruit, claimed that the plaintiff had fabricated and installed the signs for the benefit of defendant, Yan’s Hunan Inn Restaurant (Hwy), that demand for payment of $9,028.50 had been made upon the defendants, Hwy and Signature, and that the amount remained due. Count II sought payment in the amount of $435 for other work done.at the request of Signature.

On December 20, the plaintiff filed a petition to remove the signs, stating that it had not been paid for the signs. It claimed it had made numerous demands on Signature and other parties to the action, and that it could remove the signs from the building without noticeable trace of that removal. The defendant (Hwy) filed a motion to dismiss the petition, arguing that it had become a judgment and a lien creditor of Signature in another case pending in the circuit court where it had filed a counterclaim alleging breach of contract by Signature and fraud by Nesbitt. (The record discloses that, in that other cause, on October 29, 1990, there was a judgment entered in favor of Hwy in the amount of $263,042.10 for compensatory damages against Signature and Nesbitt and $350,000 for punitive damages against Nesbitt.) The court denied the motion to dismiss the petition to remove on January 23,1991.

The defendant’s answer to the verified complaint and the petition to remove the signs admitted that the plaintiff had not been paid for signs, but denied that the plaintiff had a right to demand payment from the defendant or that the defendant had a duty to make payment. The defendant claimed that it had “paid value” for the signs to Signature. As an affirmative defense, the defendant claimed that it had made progress payments through June 8, 1989, and that it had no knowledge of the agreement between the plaintiff and Signature. The defendant further stated that Signature was not entitled to full payment of the contract price until it completed its performance and that it had never completed its performance. Defendant claimed that the plaintiff’s reservation of title merely created a security interest in the signs when they were affixed to the defendant’s leasehold premises (citing Ill. Rev. Stat. 1989, ch. 26, par. 2—401). The defendant maintained that it was a good-faith purchaser for value and had title to the signs (citing Ill. Rev. Stat. 1989, ch. 26, par. 2—403). Additionally, the defendant claimed that it became a lien creditor when Signature was served with a citation to discover assets on December 7, 1990.

On March 19, 1991, the plaintiff filed its motion for summary judgment on the petition to remove the signs. The plaintiff argued that the defendant was not a good-faith purchaser for value because its last payment to Signature was on June 8, 1989, before the signs were installed and before the invoice was sent; and that the amounts paid did not include funds for the signs. The plaintiff also asserted that the defendant had notice that the signs were not paid for. The plaintiff argued that it retained title or a security interest in the signs and that its interest was superior to that of the defendant. The plaintiff also maintained that, even if it had an unperfected security interest, it was a purchase money security interest which attached first in time and had priority. The affidavit of the plaintiff stated that the signs were anchored with two or more bolts and could be removed without noticeable damage.

In its memorandum in support of its cross-motion for summary judgment, the defendant essentially argued that its right in the signs was superior to the plaintiff’s because the signs were movable goods, that it was a good-faith purchaser for value, and that the title had passed to the purchaser. (See Ill. Rev. Stat. 1989, ch. 26, par. 2—401.) The defendant maintained that it acquired title from Signature upon installation on July 7, 1989, because a person with voidable title has the power to transfer a good title to a good-faith purchaser for value (see Ill. Rev. Stat. 1989, ch. 26, par. 2—403(1)). The defendant also argued that the owner of the building was a necessary party to the action.

On April 2, 1991, after considering the arguments of the parties, the trial court granted the defendant’s cross-motion for summary judgment and denied the plaintiff’s petition to remove the signs. The plaintiff was given leave to file an amended complaint.

On May 2, 1991, the plaintiff filed a motion to vacate the order granting summary judgment, arguing that it was against the manifest weight of the evidence. On May 7, 1991, substitute counsel appeared for the plaintiff, and on June 18, 1991, the plaintiff filed an amended motion to vacate the order granting summary judgment to the defendant and denying its motion for summary judgment on the petition. The plaintiff stated its belief that the court’s decision was apparently based on the court’s determination that the defendant had a superior interest in the signs where the defendant argued that it had made commercially reasonable payments to the general contractor which were assumed to include amounts attributable to the signs.

The plaintiff stated that the defendant’s argument overlooked the provisions in the Mechanics Lien Act which should have controlled whether the payments were appropriately made to a contractor under a construction contract. The plaintiff cited section 5 of the Act, which provides that, before payments are made, the contractor has a duty to give the owner and the owner has a duty to require that the contractor give a statement in writing, under oath, or verified by affidavit, of the names and addresses of all parties furnishing materials and labor and of the amounts due or becoming due. (Ill. Rev. Stat. 1989, ch. 82, par. 5.) The plaintiff also cited section 32 of the Act, which further provides that no payments to the contractor shall be regarded as rightfully made as against the subcontractor if made by the owner without exercising or enforcing the rights and powers conferred upon him in sections 5, 21, and 22 of the Act. Ill. Rev. Stat. 1989, ch. 82, par. 32.

The plaintiff argued that the court should have looked to the Act as opposed to the Uniform Commercial Code (Ill. Rev. Stat. 1989, ch. 26, par. 1—101 et seq.) to determine whether the payment to the contractor acted as a defense to the claim of the plaintiff for the return of the sign and whether the defendant had a superior interest in the sign. The plaintiff urged the court to find that the plaintiff had a superior right in the sign and to allow it to remove the sign according to its original petition.

On July 9, 1991, the court entered an order requiring the defendant to disclose to the plaintiff information regarding any contractor’s or subcontractors’ sworn affidavits.

On August 8, 1991, the trial court denied the plaintiff’s amended motion to vacate the summary judgment and the denial of its petition to remove the signs. The court also found that there was no just cause to delay the enforcement or appeal of the order. See 134 Ill. 2d R. 304(a).

On September 9, 1991, the defendant filed its motion for Rule 137 sanctions and complained that, in lieu of filing an amended complaint, the plaintiff erroneously argued in its amended motion to vacate that the Mechanics Lien Act applied to the signs. The defendant argued that trade fixtures are not lienable under the Mechanics Lien Act, citing B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 852, and, therefore, the plaintiff’s motion was not well grounded in fact or law. As stated in its affidavit, the defendant sought attorney fees in the amount of $1,975 in responding to the plaintiff’s amended motion to vacate. On October 24, 1991, after hearing the arguments of the parties, the trial court entered an order denying the defendant’s motion for sanctions, and this appeal followed the trial court’s finding of appealability on December 5, 1991. On that date, the plaintiff also filed an amended complaint to add Nesbitt as a defendant with Signature.

On appeal, the defendant contends that the trial court abused its discretion in denying an award of sanctions to the defendant where the defendant argued that the plaintiff’s amended motion invoking the Mechanics Lien Act was unfounded in law because the signs were not lienable under that act. Alternatively, the defendant argues that, assuming the signs were not trade fixtures, then they were permanent fixtures attached to the realty which were also not subject to replevin since a replevin action can only be brought for the recovery of goods or chattels as opposed to realty. See Ill. Rev. Stat. 1989, ch. 110, par. 19—101. But see Isham v. Cudlip (1962), 33 Ill. App. 2d 254, 265-66 (a replevin action may lie for a dwelling as personal property depending in large part on the intention of the parties).

The defendant further argues that the plaintiff’s remedy would have been to foreclose on its mechanics’ lien, if any. The defendant asserts that the plaintiff made no premotion investigation into the law in arguing that the Mechanics Lien Act supported the removal of the signs.

We agree that the central issue before this court is whether the trial court abused its discretion in denying the defendant’s motion for sanctions pursuant to Supreme Court Rule 137. We first observe that the defendant has presented no reports of the proceedings, if any, of either the hearing on the cross-motions for summary judgment or the motion for sanctions. Additionally, the trial court made no specific findings of fact or law in its order granting summary judgment and in its order denying the motion for sanctions. The order of October 24, 1991, merely stated that, after hearing the arguments of the parties, the motion for sanctions was denied. Even though the trial court’s judgment may be sustainable, on the state of the record, this court is unable to determine with certainty the basis for the trial court’s order and whether it was appropriate under the circumstances.

Supreme Court Rule 137 dictates that litigants and attorneys have an affirmative duty to conduct an inquiry of the facts and the law prior to filing an action, pleading, or other paper. (Couri v. Korn (1990), 202 Ill. App. 3d 848, 855.) The rule requires that a party or litigant sign pleadings and other legal papers to certify that he or she has read the document, has made a reasonable inquiry into its basis, and believes that it is well grounded in fact and in law, or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 134 Ill. 2d R. 137.

A violation of the rule may subject a party, its attorney, or both, to an appropriate sanction, including the award of reasonable attorney fees to the opposing party; the purpose of the rule is to prevent a litigant from abusing the judicial process by penalizing the party who brings a vexatious or harassing action without a sufficient legal or factual foundation. (See Beno v. McNew (1989), 186 Ill. App. 3d 359, 365.). Because the rule is penal in nature, it must be strictly construed. In re Estate of Wernick (1989), 127 Ill. 2d 61, 77; Couri, 202 Ill. App. 3d at 855.

Although Rule 137 does not impose greater duties on the litigants and their attorneys than its predecessor provision (Ill. Rev. Stat. 1989, ch. 110, par. 2—611), it does add the requirement that judges make specific findings in the order imposing sanctions. (Sajdak v. Sajdak (1992), 224 Ill. App. 3d 481, 494; Bertuli v. Gaull (1991), 215 Ill. App. 3d 603, 605-06.) Rule 137 states: “Where a sanction is imposed under this rule, the judge shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (Emphasis added.) 137 Ill. 2d R. 137.

In deciding whether to award sanctions under Rule 137, a trial court must consider the factual circumstances presented in each case. Generally, a hearing on both the merits and the amount of fees is required before an award can be made. (Beno v. McNew (1989), 186 Ill. App. 3d 359, 366.) In this type of proceeding, this court has before shown its disapproval of summary dispositions without express and adequate findings by the trial court. Beno, 186 Ill. App. 3d at 366-67 (in a section 2—611 proceeding in which sanctions were denied, where no express factual findings were made, judgment was reversed and cause remanded to conduct evidentiary hearing on merits of movant’s petition for sanctions).

The decision to impose sanctions is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. (Bertuli, 215 Ill. App. 3d at 605.) Although the trial court’s decision whether to impose sanctions is entitled to considerable deference, the predicate to such deference is that the circuit court make explicit factual findings upon which a court of review may make an informed and reasoned decision. (215 Ill. App. 3d at 605.) The specific factual basis of the trial court’s decision is needed so that the reviewing court may determine: (1) whether the circuit court’s decision was an informed one; (2) the decision was based on valid reasons that fit the case; and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case. (In re Estate of Smith (1990), 201 Ill. App. 1005, 1009-10; accord Bertuli, 215 Ill. App. 3d 603.) For a court of review to enter its decision without the benefit of the trial court’s explicit findings tends to establish too many ad hoc rules of law as to the correct result in any given case. Smith, 201 Ill. App. 3d at 1010.

We agree generally with the rationale for specific findings expressed in Smith and Bertuli. While we recognize that a summary disposition of a motion for sanctions may be appropriate in cases where the pleadings, trial evidence and the factual basis in the record are clear, we believe the trial court must at least express succinctly the basis for its decision even when it denies a motion for sanctions. A reviewing court should not be put in the position of making the trial court’s findings. See Beno, 186 Ill. App. 3d at 366.

In the present cause, the trial court concluded that the plaintiff’s conduct in invoking certain provisions of the Mechanics Lien Act in its amended motion to vacate the summary judgment did not warrant sanctions. As can be seen in our detailed recitation of the facts, there were many factual and legal issues that needed to be resolved in order to determine what the interests of the parties were in the signs that were constructed. Various competing theories were advanced regarding the title to the property, the lien priorities of the parties, if any, and the appropriate remedy. In granting summary judgment to the defendant, the trial court evidently believed that the defendant’s interests in the signs were superior, but the record is silent as to the precise reason for the court’s decision.

Similarly, the trial court must have had specific reasons for its decision to deny sanctions which it failed to express in its order. Perhaps the court found the plaintiff’s argument at least plausible — although possibly wrong — regarding the duty of the defendant to inquire into the payments owed to subcontractors under the Act. Perhaps the issues and the remedies were not as clear as the defendant suggests. (We observe, in passing, that under certain circumstances a claimant may repossess building materials under the Act (see Ill. Rev. Stat. 1989, ch. 82, par. 4).) However, this court should not be required to speculate as to which of the determinative facts and legal theories the trial court relied on in deciding the case.

We believe that the proper disposition in this cause is to reverse the order denying sanctions as deficient and to remand the cause for further proceedings so that the circuit court may make the specific findings of fact or law to support its decision and to facilitate appellate review. (See Beno, 186 Ill. App. 3d at 367.) The court is not required to but may consider further evidence if it deems this necessary.

The circuit court’s order denying sanctions is reversed, and this cause is remanded for the entry of an order consistent with our discussion herein. In so ruling, we express no opinion on the merits of the defendant’s motion for sanctions or on the correctness of the result.

Order reversed; cause remanded with directions.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE SLATER

text:
    GEORGE MURRAY et al., Plaintiffs-Appellants, v. BOARD OF REVIEW OF PEORIA COUNTY et al., Defendants-Appellees.
    Third District
    No. 3-92-0107
    Opinion filed November 24, 1992.

      Cassidy & Mueller, of Peoria (Timothy J. Newlin, of counsel), for appellants.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee Property Tax Appeal Board.
    Donald J. Toohill, Assistant State’s Attorney, of Peoria (John Schmidt, of counsel), for appellee Peoria County.
    Edward T. Habecker, of Hinshaw & Culbertson, of Peoria, and Stephen R. Swofford, of Hinshaw & Culbertson, of Chicago, for other appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiffs George and Mary Murray appeal from the circuit court’s dismissal of their complaint for administrative review. We affirm.

This case arises from a property tax assessment conducted in 1989 which increased the assessed valuation of plaintiffs’ property. After the board of review of Peoria County upheld the increased assessment, plaintiffs appealed to the Property Tax Appeal Board (Appeal Board) pursuant to section 111.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1989, ch. 120, par. 592.1). On May 17, 1991, the Appeal Board issued its decision upholding the assessment. On June 19, 1991, plaintiffs filed a two-count complaint for administrative review in the circuit court. (See Ill. Rev. Stat. 1989, ch. 120, par. 592.4.) Count I of plaintiffs’ complaint sought reversal of the Appeal Board’s decision. Count II alleged that plaintiffs were deprived of their rights to due process and equal protection in violation of 42 U.S.C. sections 1983 and 1985 (1982). The Appeal Board was not named as a defendant in plaintiffs’ complaint.

On October 29, 1991, plaintiffs filed a motion for leave to amend their complaint to add the Appeal Board as an additional party defendant. Plaintiffs’ motion was granted on November 5, and an amended complaint was filed on November 19, 1991. The Appeal Board was served with summons on December 2, 1991. On December 4 the court dismissed count I of the amended complaint after a hearing on motions filed on November 21 and 22 by the defendants named in the original complaint. The court denied, however, the defendants’ motion to dismiss count II. Following subsequent motions by the parties, including a motion to dismiss the complaint by the Appeal Board, plaintiffs’ motion to reconsider the dismissal of count I, and a motion to reconsider the denial of defendants’ motion to dismiss count II, the trial court dismissed count II of plaintiffs’ complaint on February 10, 1992, and this appeal followed.

Plaintiffs maintain that the circuit court erred in dismissing count I of their complaint for failing to initially name the Appeal Board as a defendant. Plaintiffs acknowledge that the Administrative Review Law requires that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby” (Ill. Rev. Stat. 1989, ch. 110, par. 3—103). In addition, section 3—107 provides that “the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants” (Ill. Rev. Stat. 1989, ch. 110, par. 3—107). Clearly, section 3 — 107 required the Appeal Board to be named as a defendant, and plaintiffs do not contend otherwise. Plaintiffs argue, however, that they demonstrated a good-faith effort to comply with the Administrative Review Law by filing their amended complaint within 35 days of November 5, 1991, the date on which the circuit court granted their motion for leave to file an amended complaint. We disagree.

In Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, our supreme court affirmed the dismissal of a complaint for administrative review for failure to name a necessary party. After finding that the superintendent of the Chicago police department was a necessary party, the court considered whether Lockett should have been allowed to amend his complaint to join the superintendent as a defendant. The court stated:

“The requirement that a complaint be filed within the 35-day limit is jurisdictional; if a complaint is not timely filed, no jurisdiction is conferred on the circuit court and judicial review of the administrative decision is barred. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 211.) The 35-day period for the issuance of summons, on the other hand, is mandatory, not jurisdictional, and failure to comply with that requirement will not deprive the court of jurisdiction. (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 382; Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403-04.) However, as the 35-day period is intended to ‘hasten the procedure’ of administrative review and avoid undue delay, a litigant must show a good-faith effort to file the complaint and secure issuance of summons within the 35 days in order to avoid dismissal. (City National Bank & Trust Co., 97 Ill. 2d at 382; Cox, 96 Ill. 2d at 404.) In cases where the 35-day requirement has been relaxed, the plaintiffs had made a good-faith effort to issue summons within the statutory period. Nevertheless, due to some circumstance beyond their control, summons was not issued within the statutory period. See City National Bank & Trust Co., 97 Ill. 2d at 382; Cox, 96 Ill. 2d at 404 (cases in which the plaintiffs had filed their complaints for administrative review and summons with the clerk of the circuit court within the 35-day period but, due to problems at the clerk’s office which were beyond the plaintiff’s control, the summonses were not issued until after the 35-day period).
* * *
We are aware that the appellate court has held a failure to name and issue summons against necessary parties within the 35-day time limit can be cured by subsequent amendment. (See, e.g., Bradshaw v. Barnes (1986), 145 Ill. App. 3d 866; Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582.) To the extent those cases conflict with our holding today, they are overruled.” (Emphasis added.) Lockett, 133 Ill. 2d at 354-56, 549 N.E.2d at 1268-69.

It is clear from the record in this case that plaintiffs’ amended complaint naming the Appeal Board as a defendant was filed long after the statutory 35-day period. Plaintiffs’ attempt to come within the “good-faith effort” exception described above on the basis of filing an amended complaint within 35 days of the grant of leave to amend must fail. Lockett explicitly overruled those cases holding that a subsequent amendment can cure a failure to name and issue summons against a necessary party within the 35-day time limit. Plaintiffs have failed to comply with the requirements of the Administrative Review Law. (See Gilty v. Village of Oak Park Board of Fire & Police Commissioners (1991), 218 Ill. App. 3d 1078, 578 N.E.2d 1294.) We affirm the circuit court’s dismissal of count I of plaintiffs’ complaint.

Plaintiffs also contend that the court erred in dismissing count II of their complaint. As indicated earlier, in count II plaintiffs sought relief under 42 U.S.C. sections 1983 and 1985 (1982) for violations of their constitutional rights to due process and equal protection of the law. Although plaintiffs maintain that the court dismissed count II due to failure to exhaust administrative remedies, the court’s order does not explain the reason for the dismissal, nor does the record contain a transcript of the dismissal hearing. Nevertheless, it is well settled that a court of review may sustain a trial court’s judgment on any grounds warranted by the record, regardless of whether the reason given by the trial court was correct. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37; Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9.

“The purpose of administrative review is to make certain the agency has acted within its judicial bounds defined by law, to guard those statutory and constitutional rights guaranteed to one subject to administrative action, and to ascertain whether the record supports the order issued.” (Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 1012, 464 N.E.2d 1125, 1131.) Our supreme court has recognized that constitutional issues may be raised in a complaint for administrative review and that “[t]o hold otherwise would result in piecemeal litigation by first requiring review of an administrative body’s decision and then entertaining another action to test constitutionality brought on by such decision.” (Howard v. Lawton (1961), 22 Ill. 2d 331, 333, 175 N.E.2d 556; see also First National Bank, & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 444 N.E.2d 126 (payment of taxes under protest followed by objection to application for judgment provides adequate procedure to litigate violations of constitutional rights); LaSalle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252 (same).) We believe, therefore, that it was entirely proper for plaintiffs to allege violations of their constitutional and statutory rights as part of their complaint for administrative review. Nevertheless, count II of plaintiffs’ complaint suffers from the same infirmity as count I — failure to name and issue summons against the Appeal Board within the statutory 35-day period. Framing count II as a constitutional claim and invoking the protections of sections 1983 and 1985 does not change the nature of the complaint. It remains a complaint for administrative review and is, therefore, as we held above, subject to dismissal under Lockett.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

BARRY, P.J., and HAASE, J., concur.