author: JUSTICE WOODWARD UNVERZAGT, J., JUSTICE BOWMAN,

text:
    VERNON SINN, Plaintiff-Appellant, v. ELMHURST MEDICAL BUILDING, LTD., Defendant (J.V.M. Realty et al., Defendants-Appellees; Elmhurst West Medical Building, Inc., Defendant).
    Second District
    No. 2 — 92—0357
    Opinion filed April 22, 1993.
    BOWMAN, J., concurring in part and dissenting in part.
    Aldo E. Botti and Frank J. Wesolowski, both of Botti, Marinaccio & Tameling, Ltd., of Oak Brook, for appellant.
    Kenneth W. Fewkes, John J. Mangan, and Paul A. Michalik, all of Rooks, Pitts & Poust, of Wheaton, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Vernon Sinn, appeals the circuit court’s orders dismissing his complaint against defendants Bank of Naperville, as trustee for trust No. 2626, J.V.M. Realty (J.V.M.), and Jim Madary for failure to diligently obtain service of summons and refusing to reconsider its decision. Plaintiff contends that the court abused its discretion in dismissing the action with prejudice against these three defendants.

On December 28, 1988, plaintiff allegedly slipped and fell on property at 533 West North Avenue, Elmhurst. He immediately reported the occurrence to his doctor, whose office was located on the premises, and Madary, the property manager.

On December 27, 1990, plaintiff signed a retainer contract with the law firm of Ramsell & Associates (Ramsell). On December 28, 1990, Ramsell filed a complaint on plaintiff’s behalf concerning this incident. That complaint named, among others, the three defendants who are parties to this appeal.

No summonses were issued at the time the complaint was filed. Ramsell apparently had ordered a tract search of the subject premises on January 2, 1991.

On January 21, 1991, plaintiff informed Ramsell that he no longer wished that firm to represent him. On January 24, 1991, Donald Ramsell informed plaintiff by telephone and letter that summons had not been issued and that he “must serve summons on defendants as soon as possible,” or risk losing the case. Ramsell also stated that plaintiff owed the firm $1,241 for legal services.

On March 28, 1991, the court granted Ramsell leave to withdraw as plaintiff’s counsel. On April 5, 1991, plaintiff retained the firm of Botti, Marinaccio, DeSalvo & Tameling, Ltd. (Botti), to take over the case. That same day, Botti contacted Ramsell to make arrangements to turn over the file.

Apparently a fee dispute ensued between plaintiff and Ramsell during which time Ramsell refused to release plaintiff’s file. Sometime late in May 1991, Ramsell agreed to send plaintiff the tract search upon payment of $50. On July 11, 1991, Botti sent Ramsell the $50 and received the tract search.

Plaintiff obtained an “alias summons” for defendant Bank of Naperville on August 20, 1991. The summons was served on September 3,1991.

On December 6, 1991, plaintiff obtained “alias summonses” for J.V.M. and Madary, which were served on December 16, 1991.

The bank filed an appearance and a motion to dismiss the complaint with prejudice for failure to comply with Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) regarding diligent service of summons. The court granted the motion on January 9, 1992.

Plaintiff moved the court to reconsider its January 9 ruling. Meanwhile, J.V.M. and Madary also moved to dismiss pursuant to Rule 103(b). On February 20, the court denied plaintiff’s motion to reconsider the previous ruling, granted the motion of J.V.M. and Madary to dismiss, and denied plaintiff’s oral motion to reconsider that ruling. Plaintiff filed a notice of appeal March 23,1992.

On appeal, plaintiff contends (1) the court erred in dismissing his complaint against the bank with prejudice for failure to procure diligently service of summons and (2) the court erred in dismissing his complaint against J.V.M. and Madary for the same reason.

Defendants respond that the court did not abuse its discretion in dismissing the action with prejudice where plaintiff made no attempt to serve the bank until nearly eight months after the complaint was filed and no attempt to serve J.V.M. and Madary until more than 11 months after the filing.

Supreme Court Rule 103(b) provides as follows:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” 134 Ill. 2d R. 103(b).

The primary purpose of the rule is to promote the expeditious handling of lawsuits by giving the court wide discretion to dismiss when service is not effected with reasonable diligence. The rule protects defendants from unnecessary delay in service and prevents circumvention of the statute of limitations. (Segal v. Sacco (1990), 136 Ill. 2d 282, 286.) Rule 103(b) is not based upon the subjective test of plaintiff’s intent, but upon the objective test of reasonable diligence in effecting service. (Cannon v. Dini (1992), 226 Ill. App. 3d 82, 86; Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, 129.) Plaintiff has the burden to show reasonable diligence in obtaining service of process. (Cannon, 226 Ill. App. 3d at 86; Schusterman v. Northwestern Medical Faculty Foundation (1990), 195 Ill. App. 3d 632, 639.) Dismissal under Rule 103(b) is within the sound discretion of the trial court. Segal, 136 Ill. 2d at 286.

Factors which a court may consider in ruling on a Rule 103(b) motion include (1) the length of time used to obtain service; (2) the activities of plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4) the ease with which defendant’s whereabouts could have been ascertained; (5) actual knowledge on the part of defendant of the pendency of the action as the result of ineffective service; (6) special circumstances which would affect plaintiff’s efforts; and (7) actual service on defendant. Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, 377; Segal, 136 Ill. 2d at 287.

Plaintiff contends that applying these factors to the instant case leads to the conclusion that the court abused its discretion in dismissing the action against the bank. Plaintiff contends that the length of time required to effect service, 7 months and 23 days, is not as long as some other cases in which courts found reasonable diligence. He claims he became embroiled in a dispute with his original attorneys who failed to serve defendants and thereafter “held hostage” his file. After his original attorneys withdrew, he “immediately” obtained new counsel, who proceeded to conduct an investigation to determine who were proper parties. Plaintiff contends: “Once Bank of Naperville was determined to be the owner of the property where Plaintiff was injured *** Summons was issued.”

Plaintiff also contends that since he immediately reported the incident, defendant had actual notice of the action. Moreover, plaintiff contends that “special circumstances” existed due to the conflict with his former attorneys and the illness of his mother during the pendency of the suit.

We cannot agree that the circuit court abused its discretion in dismissing the bank from the case under these circumstances. Contrary to plaintiff’s assertion, the record does not reveal reasonable diligence in obtaining service against the bank. Rather, the record shows the following. Plaintiff filed his complaint the day the statute of limitations was to run. Shortly thereafter, a dispute developed between plaintiff and his attorneys. Although plaintiff “fired” Ram-sell on January 21, Ramsell did not obtain leave to withdraw until March 28, and plaintiff did not consult Botti until April 5. All this time, plaintiff knew that summons had not been placed and that it was important for him to do so.

Even after retaining Botti, plaintiff did nothing for an additional 41/2 months. Plaintiff contends that Botti was conducting the investigation required by Supreme Court Rule 137 (134 Ill. 2d R. 137) and was further delayed by Ramsell’s holding the file “hostage” for payment of its fees. Plaintiff contends these circumstances excuse his failure to obtain service at an earlier date.

We disagree. Plaintiff does not explain why it took 4x/2 months after he retained Botti to discover that the bank was the owner of the building. Initially, we note that Ramsell apparently had this information early in January 1991 and that knowledge of an attorney is knowledge of the client regardless of whether the attorney has actually communicated this information to the client. (Rogers v. Balsley (1993), 240 Ill. App. 3d 1005, 1011.) Moreover, plaintiff stated that Ramsell agreed to release its tract search as early as late May 1991. However, plaintiff took no action to obtain the tract search until July. Even after obtaining the tract search, plaintiff did not attempt to effect service for another six weeks. Plaintiff does not explain what further “investigation” was being conducted during this time. Finally, Ramsell’s file was not the only source of this information. Plaintiff does not explain why he or his new attorneys could not have simply ordered another tract search or utilized some other source of information. In short, plaintiff does not explain why it required nearly eight months to verify that the party named in the complaint as the owner of the building was in fact the proper party defendant.

In Womick, the supreme court upheld the trial court’s dismissal under Rule 103(b) where plaintiff made no effort to serve defendant for nine months. (Womick, 137 Ill. 2d at 380; see also Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125 (seven-month delay showed lack of diligence); Luebbing v. Copley Memorial Hospital (1978), 60 Ill. App. 3d 780 (10-month delay showed lack of diligence).) The court did not abuse its discretion in dismissing the bank from the action.

Plaintiff contends in a supplemental brief that Cannon v. Dini (1992), 226 Ill. App. 3d 82, requires us to reverse the trial court’s order. However, that case is factually distinguishable from this one. In Cannon, plaintiff effected service on the defendant doctor 13 months after filing the complaint. However, plaintiff had a summons issued for the doctor one month after filing the complaint, and four attempts were made to effect service. Plaintiff did serve successfully two additional defendants. For the next seven months, plaintiff was preoccupied fending off motions to dismiss by the properly served defendants. After these were resolved, plaintiff diligently sought to serve the remaining defendant. 226 Ill. App. 3d at 87.

In this case, plaintiff made no effort to serve defendant for nearly eight months. Moreover, he was not preoccupied with motions from other defendants as was Cannon, since no one had been served. Cannon does not require a different result.

Plaintiff’s second contention is that the court abused its discretion in dismissing defendants J.V.M. and Madary from the action. Again, we disagree. Much of what we have said regarding the bank applies to these two defendants as well.

Plaintiff’s affidavit demonstrates that he informed Madary of the accident the day it happened. Thus, he was apparently aware in 1988 that Madary was the managing agent for the building. Even assuming that plaintiff was justified in waiting until May 1991 to retain Botti, which began its own investigation, plaintiff does not explain why this investigation required six months. Plaintiff knew the location of the building where he fell, and he knew the identity of Madary as the managing agent. Presumably, a few phone calls could have determined whether Madary was a proper party and the identity of his employer (presumably J.V.M.).

The only factors identified in Womick which plaintiff identifies as being favorable to him are that defendants had actual notice of the occurrence through Madary and presumably were not prejudiced by the delay. However, the Womick court held that actual notice of the suit and a lack of prejudice will not necessarily preclude dismissal under Rule 103(b), since these are merely two of the factors to be considered. (Womick, 137 Ill. 2d at 379.) In fact, the court upheld the trial court’s dismissal of the case where plaintiff failed to effect service for nine months. Womick governs this case and leads to the conclusion that the court did not err in dismissing the complaint against defendants J.V.M. and Madary.

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

Affirmed.

UNVERZAGT, J.,

concurs.

JUSTICE BOWMAN,

concurring in part and dissenting in part:

I respectfully dissent vis-a-vis the majority finding which dismissed plaintiff’s claim against the Bank of Naperville trust No. 2626. My colleagues rely on Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, Penrod v. Sears, Roebuck & Co. (1986), 150 Ill. App. 3d 125, and Luebbing v. Copley Memorial Hos pital (1978), 60 Ill. App. 3d 780, to justify their conclusion that the plaintiff failed to exercise reasonable diligence to obtain service of summons on defendant. I find these cases distinguishable on the basis that none involve the element of “special circumstances which would affect plaintiff’s efforts.” (See Womick, 137 Ill. 2d at 377). In Womick, the plaintiff was represented by an attorney who filed suit two days before the statute of limitations expired and did not place summons for service until nine months after the statute had expired and offered no explanation for this inactivity. Thus, in that case, no special circumstances existed which would affect plaintiff’s efforts in serving the summons. In Penrod, plaintiff’s lawsuit was filed two days before the expiration of the statute of limitations. Plaintiff’s attorney mailed the complaint and summons to the circuit clerk requesting filing of the complaint and issuance of summons. Approximately four months later, plaintiff’s attorney contacted the circuit clerk regarding status of the summons and was advised that summons had not issued. Approximately two months later, plaintiff’s attorney again contacted the clerk regarding the status of summons and was advised to prepare another summons. This summons was never returned to plaintiff’s attorney. A month later, plaintiff’s attorney prepared an alias summons which issued from the clerk and was served on defendant. In total, seven months elapsed from filing the lawsuit until service of summons on defendant. Penrod does not involve special circumstances which would affect plaintiff’s efforts. In Luebbing, plaintiff did not place summons until 10 months after the lawsuit was filed. There was no explanation given for the failure to place summons and the element of special circumstances affecting plaintiff’s effort was not involved.

In the present case, I believe the following special circumstances affected plaintiff’s diligence in obtaining service of summons: (1) from January 21, 1991, until April 5, 1991, he was without the services of an attorney and (2) during this time, he was unable to obtain the attorney’s file on this case because of a fee dispute. When the discharged attorney formally withdrew from plaintiff’s case on March 28, 1991, plaintiff promptly retained another attorney within one week’s time. Because of the continuing fee dispute, plaintiff’s newly retained attorney was unable to obtain file information pertinent to service of summons on the bank until July 1991. Based on this information, plaintiff’s attorney had an alias summons issued on August 20, 1991, and the Bank of Naperville trust No. 2626 was served with summons on September 3, 1991.

I believe the plaintiff’s case more closely comports with the circumstances of Cannon v. Dini (1992), 226 Ill. App. 3d 82, than the circumstances of Womick, Penrod, or Luebbing. In Cannon, the reviewing court overturned the trial court’s decision that plaintiff’s delay of 13 months to effect service on defendant was not reasonably diligent as required by Supreme Court Rule 103(b). In Cannon, plaintiff filed a complaint on November 7, 1988, four days prior to expiration of the statute of limitations period. Eleven days later, summons on defendant Dini issued. A return of service of that summons indicated attempted service on four separate occasions during the life of the summons. Plaintiff’s complaint was stricken on March 29, 1989, and an amended complaint filed on April 3, 1989. On August 3, 1989, seven months and six days after the initial summons was returned, plaintiff was issued an alias summons for service on defendant at the same address as the first summons. This alias summons was returned and not served. Next, a special process server unsuccessfully attempted service at the same address. His return of summons indicated defendant had apparently moved. A third alias summons issued and was served on defendant December 27, 1989. The facts indicated that defendant Dini had practiced medicine in Chicago for many years and was listed in the telephone directory yellow pages. His home address was listed in the telephone directory, and he had resided there for many years. He had not attempted to evade service. Although he moved his business office in February 1989, he had sent plaintiff several billing notices with a current office address. Thus, in Cannon special circumstances existed which affected plaintiff’s efforts in serving summonses. In considering defendant’s challenge that the plaintiff did nothing for seven months after the initial summons was returned, the reviewing court held the seven-month period of alleged “inactivity,” during which plaintiff’s complaint was stricken and refiled and the second motion to dismiss remained pending for four months, could not comprise the basis of a finding that plaintiff failed to exercise reasonable diligence in serving Dini. Cannon, 226 Ill. App. 3d at 88.

Similarly, I believe that plaintiff’s lack of legal representation between January 21, 1991, when he discharged his attorney, and April 5, 1991, when he retained new counsel, coupled with the inability of his new counsel to obtain essential parts of the discharged attorney’s investigative file until July 1991 constitute “special circumstances.” As stated in the majority opinion, special circumstances constitute one of the factors which a court may consider in ruling on a Rule 103(b) motion. (Womick, 137 Ill. 2d at 377.) I determine that the existence of special circumstances cannot comprise the basis of a finding that plaintiff failed to exercise due diligence in serving the Bank of Naperville trust No. 2626. Accordingly, I would find that the trial court abused its discretion by dismissing plaintiff’s claim against the Bank of Naperville trust No. 2626 based on a violation of Supreme Court Rule 103(b).

Because there are no special circumstances involved, I concur in the finding of my colleagues that the trial court did not abuse its discretion in finding that plaintiff’s claim against defendants J.V.M. Realty and Jim Madary be dismissed based on a violation of Supreme Court Rule 103(b).

I concur in part and dissent in part.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    LOETTA NELSON, Plaintiff-Appellee, v. UNITED AIRLINES, INC., Defendant (Andy Frain, Inc., Defendant-Appellant).
    Second District
    No. 2—92—0477
    Opinion filed April 27, 1993.

      Stephen W. McCarty, of Rockford, and Robert L. Sklodowski, of Sklodowski & Franklin, and Richard J. Puchalski, of Doss, Puchalski & Keenan, Ltd., both of Chicago, for appellant.
    Robert A. Calgaro, of Conde, Stoner & Killoren, of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Andy Frain, Inc. (Frain), appeals the circuit court’s order of April 3, 1992, denying in part Frain’s petition to vacate as void a default judgment entered on October 21, 1991, against it in the amount of $175,000 after Frain failed to appear or answer. The court vacated only the money damages portion of the default judgment, but let stand an order finding defendant liable which the court had entered, on October 4, 1991. The April 3 order also provided for a further hearing on the issue of damages. Defendant, United Airlines, Inc., was earlier dismissed from the action with prejudice and is not a party to the appeal.

Defendant Frain argues that service of process was not properly made upon any officer or agent of the corporation (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 204) having authority to accept service where an employee-dispatcher was served by the Cook County sheriff at its offices in Chicago, Illinois, and the allegedly improper service resulted in a lack of personal jurisdiction. According to Frain, any order which the court entered was void ab initio and Frain may attack such an order at any time, directly or collaterally, since void orders may be set aside more than 30 days after their entry.

We conclude that this appeal is premature as it is taken from a nonfinal order; this prevents this court from acquiring jurisdiction. We therefore dismiss the appeal.

The record reveals that plaintiff, Loetta Nelson, filed a complaint on March 16, 1990, in which she alleged that she sustained injuries through the negligence of defendants when she was required to deplane at O’Hare Airport without the benefit of a wheelchair she had requested. Plaintiff requested the Cook County sheriff to serve Andy Frain, Inc., at 310 West Chicago Avenue in Chicago. The return of service shows that, on March 22, 1990, at 11:39 a.m., a deputy served a 38-year-old black male named Mr. Macids.

On plaintiff’s motion, the court entered a finding of default against Frain on September 7, 1990, for failure to appear in the cause. On October 4, 1991, plaintiff filed a motion for a default judgment. On October 4, having considered the affidavits and depositions submitted in support of the motion, the court entered a default judgment against Frain on the issue of liability only. A hearing on the issue of damages was scheduled for October 11, 1991. On October 21, 1991, the court entered judgment for plaintiff in the amount of $175,000. (The clerk of the court filed the order on October 22,1991.)

On February 19, 1992, Frain filed a motion to vacate the default judgment of October 22, 1991, awarding money damages of $175,000 to plaintiff. Frain alleged that Macids was not a registered agent, but was one of several dispatchers; he did not work in a supervisory capacity. Frain maintained that it had a duly registered agent at the time of service. Defendant also averred that it was sued under the wrong name, but this issue has not been raised on appeal.

According to the affidavit of Stephen Cohen, Frain’s president, Andy Frain Services, Inc., was located at 310 West Chicago Avenue in Chicago, Illinois. Macids was employed by Blair Communications Corporation, d/b/a Andy Frain Services, Inc., but Macids was not an officer or a registered agent of the corporation. Cohen stated that, to the best of his knowledge, Blair Communications Corporation, d/b/a Andy Frain Services, never received a copy of the summons and complaint given to Macids.

Cohen’s affidavit also stated that Andy Frain Services, Inc., was first notified of the pending default judgment on January 10, 1992, when a citation to discover assets was sent to Frain via regular mail. However, the affidavit of Robert A. Calgaro, plaintiff’s attorney, states that the citation was personally served on Frain on January 9, 1992, at 10:10 a.m. by Deputy Sims on Mr. Carter, a black 55-year-old male at Frain’s corporate offices at 310 West Chicago Avenue; this service produced the response of Frain, which filed a motion to vacate the default judgment on February 19, 1992.

Among other things, Calgaro’s affidavit stated that United Airlines’ insurance carrier, United States Aviation Underwriters, had forwarded Calgaro’s letter on behalf of plaintiff to Frain at its West Chicago Avenue location. The letter was appended to the affidavit. In that letter of August 22, 1989, the insurance carrier stated that Andy Frain, Inc., provided wheelchair assistance for United Airlines at O’Hare Airport. United Airlines’ insurer also expressed its belief that Frain’s representative would be contacting Calgaro in the near future.

On April 3, 1992, the court denied Frain’s motion to vacate the judgment as to liability, but vacated the judgment as to damages and ordered the parties to schedule a hearing date on the issue of damages. Defendant Frain filed a timely appeal from the orders of October 22,1991, and April 3, 1992.

On appeal, Frain argues that the service was not made upon an officer or agent with authority to accept service on the corporation and any order entered by the court should be deemed void for lack of personal jurisdiction. Frain further states that restrictions governing relief from judgments do not apply to or affect the right to relief from a void order which may be set aside even after 30 days from the entry of judgment. See R.W. Saw ant & Co. v. Allied, Programs Corp. (1986), 111 Ill. 2d 304, 309 (the time limitations or requirements of a section 2 — 1401 petition to vacate (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401) do not apply to the right to relief from a void order).

A private corporation may be served by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 204.) Defendant claims that service is improper where service is made upon an employee who does not have the requisite level of authority to receive process as an actual “agent” of the corporation for that purpose. Defendant cites Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, and Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581.

Plaintiff responds that service was effectuated upon an employee and dispatcher of personnel of Frain’s and, in the absence of sufficient proof that Macids was not an “agent” of Frain’s, the fact of agency was sufficiently established. Plaintiff argues that an employee may be deemed an “agent” for the service of process unless the evidence established that the employee was unable to understand the import of the papers served. Plaintiff relies on this court’s decision in Megan v. L.B. Foster Co. (1971), 1 Ill. App. 3d 1036, 1038 (service upon an intelligent clerk-receptionist was sufficient).

Plaintiff also argues that this court does not have jurisdiction because the partial vacatur of the default judgment which left the issue of damages pending renders the order nonfinal and therefore nonappealable. Defendant replies that the “motion” to vacate should be treated as a section 2 — 1401 petition and that the denial of its “motion” is made appealable by virtue of Supreme Court Rule 304(b)(3), which provides that a judgment or order is appealable without a Rule 304(a) finding (no reason to delay enforcement or appeal) if it is a “judgment or order granting or denying any of the relief prayed in a petition under section 2 — 1401 of the Code of Civil Procedure.” (134 Ill. 2d R. 304(bX3).) All of the other provisions of Rule 304(b) concern final dispositions. (134 Ill. 2d Rules 304(b)(1), (b)(2), (b)(4).) By its own terms, section 2 — 1401 of the Code of Civil Procedure provides for relief from final judgments. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401.) Frain initially argues that a motion or petition to vacate a void judgment is not governed by the requirements of a section 2 — 1401 petition. Indeed, it is now well settled that a motion to vacate a judgment as void for lack of proper service or jurisdiction is not a petition under section 2 — 1401 (formerly section 72) notwithstanding the label that the parties apply to the motion. Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 917-18; Mason, 51 Ill. App. 3d at 585; G. Brock Stewart, Inc. v. Valenti (1976), 43 Ill. App. 3d 673, 674; see also People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 70-72.

Even if we were to characterize defendant’s motion as a section 2 — 1401 petition, this would not necessarily render the order partially vacating the judgment a final and appealable order, particularly where the court manifested an intention to retain jurisdiction by reserving an issue for further consideration. Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 518-20 (Rule 304(b)(3) when read in conjunction with section 72 (now section 2 — 1401) was not intended to make immediately and separately appealable every order that disposes of any portion of the total relief sought; order was not appealable where court continued cause for further proceedings).

For this court to have jurisdiction, the order of the trial court must be a final order unless it comes within the exceptions set forth by the supreme court rules. (Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351.) A final judgment is one which fixes absolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Flores v. Dugan (1982), 91 Ill. 2d 108, 113.) An order vacating a prior judgment and ordering a hearing on damages is not a final order because it does not finally terminate the litigation or dispose of the issues between the parties; rather, it is an interlocutory and nonappealable order (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill. App. 3d 606, 610), unless the order can be appealed with leave of the court, for example, under Rule 306 or 308 (134 Ill. 2d Rules 306, 308).

Although some cases have stated that an appellate court can review a void order “at any time,” this court has held that a notice of appeal from a void order must be filed within the time specified after the entry of a final judgment or within the time allowed by the appellate court. (People v. Green (1989), 188 Ill. App. 3d 1027, 1030.) In Green, this court found no authority which would allow an appellate court to obtain jurisdiction over a void judgment other than as permitted by Rule 303 or 306 (134 Ill. 2d Rules 303, 306), citing with approval Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 947, 950-51 (Green, P.J., specially concurring).

The supreme court rules make no provision for appeals from void orders, and raising the issue of voidness does not render final an order not otherwise final; rather, the issue whether an order is void can always be raised in a case properly before a court of review. (See Cain, 167 Ill. App. 3d at 947 (Green, P.J., specially concurring).) We agree with the reasoning of Presiding Justice Green. We hold that where, as in this case, a party challenges a judgment on the basis that it is void and the order which sets aside the judgment leaves a claim at issue or the order manifests the court’s intention to retain jurisdiction of the cause, the order setting aside the judgment is not a final order and is not immediately appealable.

We adhere to the rule that an appeal may be taken only from a final order or judgment unless an exception is permitted by rule or by precedent. To hold otherwise could result in abusive delay and piecemeal appeals if an appeal were immediately allowed from any interlocutory order where the party has challenged the court’s judgment on the basis of voidness or lack of jurisdiction. See Cain, 167 Ill. App. 3d at 950-51 (Green, P.J., specially concurring).

In the case at bar, the defendant has appealed from a nonfinal order and has cited insufficient authority to establish the jurisdiction of this court. We therefore do not reach the merits of the appeal. The appeal must be dismissed.

Dismissed.

WOODWARD and QUETSCH, JJ., concur.


text:
    RONALD RANDELS et al., Plaintiffs-Appellants, v. BEST REAL ESTATE, INC., et al., Defendants-Appellees.
    Second District
    No. 2—92—1051
    Opinion filed April 27, 1993.

      Ashley S. Rose, of Ashley S. Rose, Ltd., of Wheaton, for appellants.
    Leigh M. Rawson, of Brittain & Ketcham, P.C., of Elgin, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiffs, Merry Randels and Ronald Randels, brought an action arising from their purchase of residential real estate against defendants, Janice Donnell (Seller), the seller of the real estate, Best Real Estate, Inc. (Realtor), the brokerage firm which listed the real estate for sale, and Carol Tweedie (Broker), Realtor’s sole proprietor.

Plaintiffs alleged that Seller, Broker and Realtor violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1991, ch. 12U/2, par. 261 et seq.). Plaintiffs also alleged common-law misrepresentation by Broker and Seller.

After a bench trial, the trial court granted judgment for defendants. Plaintiffs appeal from that judgment.

The primary issue on appeal is whether the trial court erred by failing to apply the correct case law with respect to the Consumer Fraud Act. Realtor and Broker have not filed an appellate brief. However, we will consider the merits of this appeal based on the rule announced in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The facts are generally not in dispute. Seller was the owner of certain residential real estate commonly known as 821 Royal Lane, West Dundee, Illinois (the property). The property was improved with a single-family residence with a septic system. On November 4, 1988, Seller listed the property for sale with Realtor through its sales agent, Maggie Schaaf (Broker’s Agent).

Before listing the property for sale, Seller had seen a local newspaper article which indicated that the owner of the property would be required to disconnect the property’s septic system and connect the property’s waste water system to the municipal sewer system within five years, but that the hookup fee would be waived. Seller told Broker’s Agent about the newspaper article. Seller testified that she gave Broker’s Agent this information because she wanted to be sure that prospective buyers of the property would be made aware of the hookup requirement. Seller also asked Broker’s Agent to check with village authorities and find out if the waiver of the hookup fee would apply to new owners.

A Village of West Dundee ordinance (the ordinance) mandated the hookup of residential sewer systems with municipal sewers at a property owner’s expense. Pursuant to the ordinance, the village required the owner of the property to connect the property’s sewage system to the public sewage system by October 1, 1991.

Broker and Broker’s Agent informed the first potential buyers of the property of the hookup requirement. On November 20, 1988, Harry and Jane Clark submitted a written offer to purchase the property through Broker’s Agent and Realtor. The Clarks did not close on the property because they were unable to sell their home before the scheduled closing. The Clarks subsequently wrote a letter which was admitted into evidence in this trial. The letter indicated that both Broker and Broker’s Agent had informed them of the hookup requirement, that the hookup fee had been waived, and that they should contact the Village of West Dundee for further information.

On January 10, 1989, plaintiffs submitted an offer to Seller through Realtor to buy the property for $86,750. The listed price for the property was $94,500. Plaintiffs intended to purchase the property as an investment. Seller accepted the offer. Plaintiffs planned to refurbish the residence and resell the property for a profit within six months. Plaintiffs had made an initial offer for the property of $79,000. With their initial offer, plaintiffs submitted a written list of 14 repairs which they asserted needed to be made to the property and justified the relatively low offer price.

At the time plaintiffs made their offers, Merry Randels was employed as a licensed real estate agent and had been so employed for about eight months. Without contacting Realtor, Merry Randels found a listing for the property in a Multiple Listing Service book and obtained a computer listing for the property. The computer listing contained, inter alia, the following information: “city sewer available” and, on the same line, “Assmt NOT AVAIL.”

On several occasions Merry Randels used her status as a real estate agent to “sign out” the key to the property and, accompanied by her husband, “show” the property to herself and her husband. Neither Broker nor Broker’s Agent was present when plaintiffs visited the property. Merry Randels wrote the contract offer herself and submitted it to Seller through Realtor. Plaintiffs never communicated directly with Seller in any way. Plaintiffs submitted the contract to Broker’s Agent without any conversation or inquiry about the property.

Neither Broker nor Broker’s Agent made representations of any kind to the plaintiffs relating to the septic system. Broker’s only conversation with either plaintiff in regard to the substance of the contract, other than negotiating an offering price acceptable to Seller, related to Broker’s concern that Merry Randels be shown on the contract as a real estate agent. Broker testified that she discussed this matter with Merry Randels because ethical considerations require that a buyer who receives a commission as an agent in a real estate transaction must be shown on the contract. Merry Randels received a commission for the sale of the property as the selling agent.

At the time of the closing, plaintiffs were unaware of the ordinance and the hookup requirement. Merry Randels testified that plaintiffs did not make inquiries of any kind about the septic system or availability of the municipal sewer system because plaintiffs were not concerned about such details. Plaintiffs were familiar with septic systems because their own home had a septic system. Ronald Randels testified that he had inspected the septic system on the property during one of plaintiffs’ visits to the property.

Shortly after closing on the property, plaintiffs learned of the ordinance requiring the hookup to the public sewer system. Plaintiffs testified that they would not have purchased the property if they had known of the hookup requirement because such an endeavor was beyond the scope of the type of repairs they anticipated making before selling the property for a profit.

At trial, plaintiffs’ expert witness opined that a real estate sales person had a duty to disclose a mandatory sewer system hookup requirement to a prospective buyer of real estate. The expert also opined that such information is material to making an offer to purchase real estate.

In November 1991, nearly three years after plaintiffs closed on the property, plaintiffs paid a contractor to disconnect the property’s septic system and hook up the property’s sewer system to the village’s sewer system. Plaintiffs claim damages for the cost of the sewer hookup and related costs such as those for relandscaping. Plaintiffs also claim damages for: the difference between what they paid for the property and what they would have offered if they had known about the hookup requirement, the mortgage payments they made since buying the property, the real estate taxes during that period, maintenance costs incurred since owning the property, and legal fees.

In a post-trial order, the trial court granted judgment in favor of all defendants. The trial court specifically found that Seller was not directly liable to plaintiffs because the Consumer Fraud Act did not apply to Seller and because Seller had no direct contact with and made no representations to plaintiffs. The trial court also found that the silence of Realtor and Broker with respect to the ordinance requiring the sewer hookup “did not mislead or suggest that factually the ordinances had been complied with” and that “the state of the law was public knowledge available equally to the plaintiffs.” The trial court explicitly relied on two cases: O’Brien v. Noble (1982), 106 Ill. App. 3d 126, and City of Aurora v. Green (1984), 126 Ill. App. 3d 684.

Plaintiffs appeal from the trial court order. Plaintiffs argue that the trial court erred when it applied O’Brien and City of Aurora and that defendants are liable under the rules set forth in Kinsey v. Scott (1984), 124 Ill. App. 3d 329.

Plaintiffs first allege that Seller, Realtor, and Broker violated the Consumer Fraud Act. Section 2 of the Consumer Fraud Act protects consumers, including prospective purchasers of real estate (see, e.g., Beard v. Gress (1980), 90 Ill. App. 3d 622, 627), against deceptive acts or practices. (Ill. Rev. Stat. 1991, ch. 121V2, par. 262.) Under the Consumer Fraud Act, a deceptive act or practice includes “misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact.” Ill. Rev. Stat. 1991, ch. 121V2, par. 262.

The legislature clearly mandated that Illinois courts should liberally construe and broadly apply the Consumer Fraud Act in order to eradicate all forms of deceptive and unfair business practices. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 495.) The Consumer Fraud Act expands a consumer’s rights under the common law, and a plaintiff can recover for innocent misrepresentations or omissions. Duhl, 102 Ill. App. 3d at 495.

A plaintiff alleging Consumer Fraud Act violations does not have to show actual reliance on the deceptive acts or that the defendant committed the deceptive acts in bad faith. (Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 182-83.) However, a plaintiff must show that the deceptive act related to a material fact. (Ill. Rev. Stat. 1991, ch. 1211/2, par. 262; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 565.) A deceptive representation or omission of law generally does not constitute a violation of the Consumer Fraud Act because both parties are presumed to be equally capable of knowing and interpreting the law. Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 1135.

Plaintiffs charged that Seller, Realtor and Broker violated the Consumer Fraud Act by a deceptive act of omission when they failed to inform plaintiffs of the ordinance requiring the sewer hookup. The question before us is whether the omission was one of material fact or law.

Plaintiffs contend that the omission was one of material fact and rely on Kinsey v. Scott (1984), 124 Ill. App. 3d 329, for authority. In Kinsey, the owner of an apartment building had constructed a fifth apartment in the building without obtaining a permit and replied to a potential buyer’s inquiries that there was nothing wrong with the building and that the building conformed to municipal building codes. (Kinsey, 124 Ill. App. 3d at 333.) The Kinsey court held that the owner’s misrepresentations were statements of material fact. 124 Ill. App. 3d at 338.

Defendants contend that the nondisclosure of the ordinance in this case was an omission of law and therefore was not a violation of the Consumer Fraud Act. Like the trial court, defendants rely on O’Brien v. Noble (1982), 106 Ill. App. 3d 126, and City of Aurora v. Green (1984), 126 Ill. App. 3d 684.

In O’Brien, buyers of land which was advertised as appropriate for a house did not inquire of real estate brokers involved in the transaction as to zoning restrictions on the land and only discovered after closing that they could not build a house on the land because of insufficient frontage under zoning ordinances. (O’Brien, 106 Ill. App. 3d at 127.) Buyers brought a negligent misrepresentation action against the real estate brokers for failure to inform buyers of developmental restrictions in the zoning ordinances. The O’Brien court noted that zoning ordinances are a matter of public record and were readily available to the buyers and affirmed the trial court judgment in favor of the brokers. 106 Ill. App. 3d at 130.

In City of Aurora, the owners of an apartment building illegally converted the building to five units although zoning ordinances limited apartment buildings to two residential units. (City of Aurora, 126 Ill. App. 3d at 685.) After listing and advertising the building as a five-unit building, the owners and their real estate agents allegedly represented to potential buyers that the building could be used under the zoning ordinance as a five-unit building. (126 Ill. App. 3d at 685.) The court determined that, under either the Consumer Fraud Act or an action for common-law fraud, the case turned on whether the representations were of law or fact. (126 Ill. App. 3d at 689.) The City of Aurora court concluded that the representations were of law and therefore were not actionable under either the Consumer Fraud Act or a common-law fraud theory. (126 Ill. App. 3d at 687.) The court also held that Kinsey was distinguishable on its facts. 126 Ill. App. 3d at 689.

This court reconciled several cases, including the above cases, which involved the fact or law determination in Perkins v. Collette (1989), 179 Ill. App. 3d 852. The Perkins court concluded that “[t]he primary factor which distinguishes [the cases] is whether the seller’s misrepresentations could have been discovered merely by reviewing applicable zoning or building ordinances.” Perkins, 179 Ill. App. 3d at 859.

Thus, the analytical focus in cases such as the instant case, which involve a determination of whether an alleged misrepresentation or omission was one of fact or law, has evolved beyond a strict fact versus law dichotomy. (Gilmore v. Kowalkiewicz (1992), 234 Ill. App. 3d 522, 529.) Under this analysis, the key question is whether a defendant’s misrepresentations or omissions were discoverable through the exercise of ordinary prudence by the plaintiff, and a finding of liability is made when the defendant misrepresents or omits facts of which he possesses almost exclusive knowledge the truth or falsity of which is not readily ascertainable by the plaintiff. Stichauf v. Cermak Road Realty (1992), 236 Ill. App. 3d 557, 568.

Applying these principles to this case, we find no violation of the Consumer Fraud Act. The village ordinance requiring the sewer hookup was a matter of public knowledge, and the ordinance plainly sets out the circumstances under which property owners were required to hook up to public sewers at their expense. Plaintiffs knew the property had a septic system, and a simple review of the applicable village ordinances would have put the plaintiffs on notice that the hookup was required. The computer listing, which the plaintiffs obtained on their own, indicated that city sewers were available and that a related assessment was possible. However, plaintiffs did not inquire about the septic system, sewer availability, or possible assessments. In fact, plaintiffs made few, if any, inquiries about the property they bought. One of the plaintiffs, a licensed real estate agent who received a commission for the sale of the property, essentially showed the property to herself and the other plaintiff. Under these circumstances, we conclude that defendants’ failure to disclose the ordinance was an omission of law readily discoverable by plaintiffs and therefore did not violate the Consumer Fraud Act because the omission was not of a material fact. Accordingly, the trial court was correct in its judgment that none of the defendants violated the Consumer Fraud Act.

Plaintiffs also alleged common-law misrepresentation by Seller and Broker. One of the elements necessary to support an action for misrepresentation is a false statement of material fact. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286.) For the same reasons we concluded above that the alleged omissions were not omissions of material fact, we conclude that the alleged misrepresentations were not misrepresentations of material fact. Thus plaintiffs failed to prove their allegations of common-law misrepresentation against Seller or Broker. Accordingly, we find that the trial court was correct in its judgment that there was no misrepresentation by either Seller or Broker.

Based on the foregoing, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re J.A.J., JR., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.A.J., Jr., Respondent-Appellant).
    Second District
    No. 2—91—0527
    Opinion filed April 20, 1993.

      Josette Skelnik, of Law Offices of Josette Skelnik, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, J.A.J., Jr., appeals the order of the circuit court adjudicating him delinquent. The circuit court found he committed a criminal trespass to a vehicle (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 2). The State had charged him, however, with theft (Ill. Rev. Stat. 1991, ch. 38, par. 16 — 1(a)(1)(A)). On appeal, respondent argues that the circuit court erred in adjudicating him guilty of trespass to a vehicle because it is not a lesser included offense of theft.

On March 26, 1991, the State filed a supplemental petition seeking an adjudication of wardship alleging that respondent was delinquent. The State alleged he committed the offense of theft in that he “knowingly exerted unauthorized control over property of James Gent, being a 1984 Chevrolet Camaro, having a total value exceeding $300.00, intending to deprive James Gent permanently of the use of the property, in violation of Section 16 — 1(a)(1)(A), Chapter 38, Illinois Revised Statutes.”

At the adjudicatory hearing, the State presented evidence that Gent left his Camaro running while he went into a gas station office. A passenger who remained in the car testified that a hooded person whom she could not identify jumped into the car and drove it. A State trooper found the car abandoned on the tollway 27 miles east of the incident. The trooper found respondent and two youths walking along the tollway east of the car. The court admitted respondent’s statement that “Willie, Chris and I saw a Camaro running so we got the car and Willie drove until the car broke down.” Respondent moved for a directed finding, and the court ruled the State failed to prove respondent intended to deprive Gent of the car permanently. The court found the evidence sufficient to find respondent committed a criminal trespass to a vehicle and asked the parties to research whether respondent could be found delinquent on this basis. After a hearing on this issue, the court entered the order adjudicating respondent delinquent.

While the allegations of a petition for wardship need not meet the standards of a criminal charging instrument, the petition must apprise the accused of the precise offense charged with sufficient specificity to prepare his defense. (In re S.R.H. (1983), 96 Ill. 2d 138, 143, 145.) Criminal trespass to a vehicle is not a lesser included offense of theft because theft does not require proof of a knowing and unauthorized entry of a vehicle. (People v. Rainbolt (1977), 52 Ill. App. 3d 374.) No person may be convicted of an offense that he has not been charged with committing unless the charge is a lesser included offense. A lesser included offense is one composed of some but not all of the elements of the greater offense and which does not have any element not included in the greater offense. People v. Jones (1992), 149 Ill. 2d 288, 293-94; People v. Brocksmith (1992), 237 Ill. App. 3d 818, 823-24.

The petition in the cause before the court did not advise respondent of the additional element of knowingly entering the vehicle of another. Thus, respondent could not be found delinquent on the ground of criminal trespass to property.

The State has confessed error on this issue and agrees that the respondent would not have sufficient notice of the additional element to prepare his defense. The State requests that this court grant respondent relief on appeal.

For the above reasons, the order of the circuit court is reversed.

Reversed.

UNVERZAGT and QUETSCH, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    KIMBERLY HARTUNG, Plaintiff-Appellant, v. MAPLE INVESTMENT AND DEVELOPMENT CORPORATION et al., Defendants-Appellees.
    Second District
    No. 2—92—0457
    Opinion filed April 15, 1993.
    Lloyd E. Dyer, Jr., of Mountcastle, Kelly & Dyer, P.C., of Wheaton, for appellant.
    Mary T. Nagel and Michael Resis, both of Querrey & Harrow, Ltd., of Chicago, for appellee Maple Investment and Development Corporation.

      John M. Barnes and Steven M. Tefft, both of Law Offices of John M. Barnes, of Chicago, for appellee Famous Industries.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Kimberly Hartung, appeals from the circuit court’s order of March 18, 1992, granting summary judgment to defendants, Maple Investment and Development Corporation (Maple) and Famous Industries, a/k/a Famous Liquors (Famous). We affirm.

Plaintiff’s negligence complaint filed on April 9, 1991, alleged that she was a business invitee who had tripped on a raised portion of a sidewalk near Famous’ store located in a shopping center owned and managed by Maple. The store was located in a shopping center near the corner of Main Street and Roosevelt Road in Lombard, Illinois. Plaintiff complained that, as a result of defendants’ alleged negligence in permitting the sidewalk to be in a dangerous condition, plaintiff fell and sustained injuries on April 14, 1990.

In her deposition, plaintiff testified that, on a clear evening when it was still light out, she was walking her dog. She could not remember what time it was. She was on her way to visit her husband, who worked part-time at a drugstore just past the Famous liquor store which was located a couple of blocks from her house. All of a sudden, her foot hit a raised part of the sidewalk, and she went down, falling forward on her hands. She had walked on that sidewalk probably twice that year and three or four times during the prior year. She stated that the sidewalk was wider than a standard sidewalk and that she fell somewhere toward the center of the walk. There was no problem with the lighting and nothing blocking her view.

Plaintiff had never noticed the elevated section of the sidewalk before this incident. She could not remember which foot hit the raised portion, nor could she remember exactly what her legs were doing as she fell. She did not examine the sidewalk immediately after her fall. A couple of days after her fall, she went back to examine the sidewalk with her husband. They did not have a measuring stick, but they estimated that there was one-half-inch to three-fourths-of-an-inch difference in the elevation between two slabs of the sidewalk area where she fell. Photographs of the sidewalk were submitted in support of defendants’ motion for summary judgment.

On March 18, 1992, the trial court heard oral arguments on the defendants’ motion. The court examined the photographs of the sidewalk which appear to have been marked by plaintiff at her deposition. The court was informed that no one had actually ever measured the difference in the grade between the slabs at the time of the occurrence and that the area had been repaired since the time of plaintiff’s deposition.

Defendants argued that, under the Dlinois rule, a sidewalk deviation one-half inch to three-fourths of an inch high is such a minor defect that it is de minimis and, as a matter of law, cannot be the basis of a negligence action. (See Warner v. City of Chicago (1978), 72 Ill. 2d 100, 103-04, citing Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 604 (municipality has no duty to keep all sidewalks in perfect condition; slight inequalities in level or other minor defects frequently found in traversed areas are not actionable).) Plaintiff argued that the facts presented a jury question and the minor defect rule should not be applied to situations where a publicly used sidewalk belongs to private landowners. The court granted defendants’ motion.

On appeal, plaintiff again argues that the court should not have decided the question as a matter of law and that it was error to grant summary judgment to defendants. Plaintiff also claims that the minor defect or de minimis rule applies only to municipalities and should not be applied to a case involving a sidewalk which is privately owned and part of a shopping mall. This latter question appears to be one of first impression in this jurisdiction.

We first decide whether the de minimis rule applies to this set of facts without regard to ownership or control of the premises. We must decide whether a one-half to three-fourths-of-an-inch difference in the elevation of two slabs of a sidewalk constitutes a defect so minor that the negligence action should be barred as a matter of law.

“A complaint for negligence must set out the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach.” (Eckhardt v. Kirts (1989), 179 Ill. App. 3d 863, 870.) A duty is an obligation imposed by law which requires one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Fancil v. Q. S. E. Foods, Inc. (1975), 60 Ill. 2d 552, 554.) The determination of whether a duty exists is a question of law. (Kirts, 179 Ill. App. 3d at 870.) The primary factors that a court considers in determining the existence of a duty include:

“(1) the foreseeability of injury to the plaintiff as a result of defendant’s actions or inactions; (2) the magnitude of the burden to defendant of guarding against the injury and the consequences of placing that burden on the defendant; and (3) the currently prevailing public policies and social attitudes of the community.” Leesley v. West (1988), 165 Ill. App. 3d 135, 141.

In determining whether a legal duty exists, the occurrence involved must not have been simply foreseeable; it must have been reasonably foreseeable. The imposition of a legal duty requires more than a mere possibility of occurrence. “ ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ ” (Emphasis omitted.) Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, quoting Restatement (Second) of Torts §16.9, at 929 (1956).

The de minimis rule barring actions against municipalities for minor defects in sidewalks is rooted in the scope of municipalities’ duty to maintain their property in a reasonably safe condition. This duty includes keeping sidewalks and streets safe for the purposes for which they are intended. Municipalities do not have a duty to keep all sidewalks in perfect condition at all times. (Gleason v. City of Chicago (1989), 190 Ill. App. 3d 1068, 1069.) Thus, slight defects frequently found in traversed areas are not actionable as a matter of law. (Gleason, 190 Ill. App. 3d at 1070, citing Arvidson, 11 Ill. 2d 601.) However, because there is no mathematical formula or bright-line test for determining what constitutes a slight defect, and there is some diversity of opinion as to which defects are considered minor, each case must be determined on its own facts. Courts generally rely on the well-established rule that a sidewalk defect is actionable, that is, it presents a jury question, only when the defect is such that a reasonably prudent person should anticipate some danger to persons walking on it. West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 542.

In Gleason (190 Ill. App. 3d at 1070-72), a one-fourth-inch crack, in the absence of other aggravating circumstances, was too slight to be actionable as a matter of law. In Warner (72 Ill. 2d at 104), the court opined that, without more, a defect of lVs inches in level would not be actionable because of its minimal nature. In Walter v. City of Rockford (1947), 332 Ill. App. 243, 251, where there was a three-fourths-inch-wide crack between two sidewalk slabs and one slab was approximately one inch higher than the other, the court held that the defect was so slight that no reasonable mind could foresee that an injury would result to a pedestrian who was exercising reasonable care for her own safety. In Cooks v. United States (7th Cir. 1987), 815 F.2d 34, the plaintiff’s heel caught on a one-half-inch elevated sidewalk slab in front of the Federal Archives and Record Center, causing her to fall. In applying Illinois law regarding the liability of municipalities to this Federal property, the court held that the defect was too minor to be actionable.

It is true that minor defects in a sidewalk may be actionable where there are other aggravating factors such as heavy traffic because pedestrians may be distracted and must be constantly alert to avoid bumping into each other. (See Warner, 72 Ill. 2d at 104.) Most recently, in Birck v. City of Quincy (1993), 241 Ill. App. 3d 119, the court found a discrepancy of l7/s inches in the height of the sidewalk to be so minimal as to be nonactionable where there was no evidence that the area was congested with traffic. The court noted that the actionable “stumbling” point seems to be where the defect approaches two inches. Birck, 241 Ill. App. 3d at 122.

We will not review the cases cited by plaintiff because they concern defects that were over one inch or defects that were accompanied by other aggravating circumstances. Plaintiff has not pled any other aggravating circumstance in her complaint, but has specifically attributed her fall to the raised portion of the sidewalk. Based on our review of the above cases, it is clear that, if the de minimis rule applies to a private owner or possessor of land, the defect here cannot not be the basis of a negligence action as a matter of law since the defect was, by plaintiff’s own estimate, only one-half to three-fourths of an inch high.

We next address whether the de minimis rule governs the liability of a private owner or possessor of land. Plaintiff cites cases involving premises liability where the injury occurs in the entry, stairway or on the floor inside a building or business establishment. It appears that in these “flooring” cases, some positive evidence of even minor defects may be sufficient to raise a factual issue for the jury rather than a question of law for the court to decide. (See Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 569; see also River v. Atlantic & Pacific Tea Co. (1961), 31 Ill. App. 2d 232.) However, these cases do not stand for the proposition that, for purposes of liability, outdoor sidewalks belonging to private landowners should be equated with entryways, stairways or indoor flooring. In urging this court not to apply the de minimis rule to private landowners, plaintiff cites no authority precisely on point.

Based on our own research and consideration of the issue and the facts of this case, we hold that the de minimis rule applies to private owners and possessors of land. A municipality is not an insurer against all accidents and has a duty only to exercise ordinary care to keep the sidewalks reasonably safe for persons exercising ordinary care. (Arvidson, 11 Ill. 2d at 607.) Similarly, an. owner or occupier of land is not an absolute insurer of the safety of an invitee. (See Hutter v. Badalamenti (1977), 47 Ill. App. 3d 561, 563.) The duty of an owner or occupier of any premises towards invitees is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them, and he must maintain the premises in a reasonably safe condition. Ill. Rev. Stat. 1991, ch. 80, par. 302; Ward v. Kmart Corp. (1990), 136 Ill. 2d 132,141.

As expressed in section 343 of the Restatement (Second) of Torts, the applicable standard of care is this:

“A possessor of land is subject to liability for physical harm caused to his invitee by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343 (1965).

As we pointed out in our prior discussion of duty, the risk of harm must not be merely foreseeable, but reasonably foreseeable. A possessor of land has a duty to exercise reasonable care to avoid creating an unreasonable risk of harm to an invitee. In applying these principles to the case at bar, we conclude that the sidewalk in question did not have a defect such that the risk of harm was reasonably foreseeable. Further, defendants did not create an unreasonable risk of harm. One obvious reason that a municipality is not required to maintain perfect sidewalks is that a large area is involved which imposes a great burden on the municipality to maintain it. Equally important, we believe, is that extreme and changeable weather conditions in Illinois are such that slight variations in sidewalk elevations are to be expected; sidewalks cannot be maintained perfectly at all times. See Warner v. City of Chicago, 72 Ill. 2d at 111 (Ryan, J., dissenting).

It is common knowledge that sidewalks are constructed in slabs for the very reason that they must be allowed to expand and contract with changes in temperature. The Tracy court observed that defects in sidewalks may be avoided by pedestrians more easily than defects in stairs. (Tracy, 116 Ill. App. 3d at 569-70.) Moreover, because indoor flooring is not exposed to the weather and can be more easily monitored for defects, courts have been more inclined to find smaller defects in flooring actionable. We believe that a minor defect such as the one in the present case is one that a person exercising ordinary care could have easily avoided. The defect is one which is routinely encountered in an ordinary sidewalk.

There was no unreasonable risk of harm presented by the facts of this case, and we see no compelling reason to require possessors of land to maintain sidewalks perfectly at all times. To require private landowners to monitor sidewalks and to maintain them perfectly at all times seems to us unduly harsh and impractical — especially where, for example, in a shopping center, the outside area exposed to the elements might cover hundreds of thousands of square feet. We emphasize, however, that as the municipality cases have shown, the de minimis rule cannot be applied blindly to cover every situation. Its application may very well depend on other factors not present here.

Our conclusion finds support in the decisions of at least two other State jurisdictions which have applied the de minimis rule to bar actions against private landowners where the defect was minor. See Helms v. American Legion, Inc. (1966), 5 Ohio St. 2d 60, 213 N.E.2d 734 (applying de minimis rule for municipalities to private landowners where such minor defects are commonly encountered); McCormick v. Insured Lloyds Insurance Co. (La. App. 1986), 488 So. 2d 491 (one-inch elevation in stepping stone walkway leading to shop was minor and did not create unreasonable risk of harm in view of wet climate and absence of other negligent maintenance). But cf. Dora v. Kroger Co. (1965), 1 Mich. App. 286, 136 N.W.2d 47 (rule that two-inch depression in sidewalk is nonactionable as matter of law against municipality would not be applied to grocery store proprietor; question was for jury).

Summary judgment is proper where, as here, plaintiff cannot establish the duty element of her negligence action such as by showing that defendant’s conduct created a reasonably foreseeable risk of harm or, alternatively, an unreasonable risk of harm. (Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 6; Kirts, 179 Ill. App. 3d at 873.) The court correctly decided the issue as a matter of law.

The judgment of the circuit court is affirmed.

Affirmed.

McLaren and QUETSCH, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL CASTILLO, Defendant-Appellant.
    Second District
    No. 2—92—0319
    Opinion filed April 13, 1993.
    G. Joseph Weller, of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Joel Castillo, pleaded guilty to the offense of unlawful delivery of more than 100 grams of cocaine (Ill. Rev. Stat. 1991, ch. 56x/2, par. 1401(a)(2)(B)) in exchange for the dismissal of two remaining counts of a grand jury’s indictment, as well as a separate charge of unlawful delivery of a controlled substance. Defendant was sentenced to a 10-year term of imprisonment and fined $9,000 in the circuit court of Kane County. The defendant filed a pro se notice of appeal and requests that the cause be remanded to the trial court to allow defendant to file a motion to withdraw his guilty plea because the trial court failed to properly admonish, him in accordance with Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)). We remand.

On September 3, 1991, the grand jury of Kane County returned a three-count indictment against the defendant, charging him with two counts of unlawful delivery of a controlled substance and a single count of unlawful possession of a controlled substance without a controlled substances tax stamp. Specifically, it was alleged that on August 22, 1991, the defendant made a delivery of more than 15 grams of cocaine, a Class X felony, that the defendant made another delivery of more than 100 grams of cocaine, also a Class X felony, and that the defendant possessed more than five grams of cocaine without a controlled substances tax stamp, a Class 4 felony.

The defendant was represented by private counsel throughout the proceedings. A trial date was set for February 10, 1992. However, on that day, the parties announced their intention to enter into a negotiated plea of guilty. In exchange for the defendant’s plea of guilty to the Class X felony of unlawful delivery of more than 100 grams - of cocaine, the prosecutor would dismiss the remaining two counts of the indictment, as well as a separate charge of unlawful delivery of a controlled substance. The parties agreed that the defendant would receive a sentence of 10 years’ imprisonment and would be fined $9,000.

The trial judge inquired of the defendant as to the voluntary nature of his plea and then asked for a factual basis. The prosecutor stated that, if called to testify, undercover narcotics investigator Mike Barnes would state that he received a substance from the defendant on August 22, 1991, which, when analyzed by a forensic chemist, was determined to be cocaine. The defendant acknowledged the facts which would be proved at trial.

The trial judge accepted the negotiated plea and then gave the defendant the following admonitions regarding his right of appeal:

“Now, Mr. Castillo, since this is a voluntary plea on your part, should you wish to change your mind, you have 30 days from today’s date in which to file a petition to ask for leave to withdraw your plea of guilty. If you do file such a petition, it will be set down before me for a hearing. If I grant you leave to withdraw your plea of guilty, then you’re right back to where you were when you walked in here this morning. All the charges that are being dismissed, as well as the other case, will be reinstated. All the rights you gave up are given back to you. Then we go to trial on both cases. If I deny you leave to withdraw your plea of guilty, then you have a right to appeal, and you can do that by filing a notice of appeal within [30] days thereafter. If you need an attorney and can’t afford one, one will be appointed for you. If you need a copy of today’s report of proceedings and can’t afford it, one will be given to you.”

Defendant was sentenced to 10 years’ incarceration and a $9,000 fine.

The defendant’s pro se notice of appeal was filed on March 12, 1992. The office of the State Appellate Defender was appointed to represent the defendant on appeal on March 16, 1992, and on April 20, 1992, this court granted defendant’s motion to treat the notice of appeal as timely filed.

Defendant contends that the trial court did not properly admonish him with respect to the requirement that he file a motion to withdraw prior to appeal in accordance with Supreme Court Rule 605(b). On this basis, he asserts, he should be excused for not filing a motion asking to have the judgment vacated and for leave to withdraw his plea. Defendant requests that this matter be remanded to the trial court in order to allow him to file a Rule 604(d) motion, that is, a motion to have the judgment vacated and for leave to withdraw his guilty plea.

Supreme Court Rule 604(d) states in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The motion shall be in writing and shall state the grounds therefor. *** Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (134 Ill. 2d R. 604(d).)

Rule 604(d) sets out a condition precedent to an appeal from a defendant’s plea of guilty. (People v. Stacey (1977), 68 Ill. 2d 261, 267; People v. Radunz (1989), 180 Ill. App. 3d 734, 739.) The purpose of Rule 604(d) is to ensure that, before an appeal is taken from a guilty plea, the trial judge who accepted the plea and sentenced the defendant is given an opportunity to hear and correct any improprieties that may have occurred outside the official record. (People v. Wilk (1988), 124 Ill. 2d 93, 104; Radunz, 180 Ill. App. 3d at 739.) If a defendant fails to file a Rule 604(d) motion, a jurisdictional defect exists which precludes the appellate court from reviewing a judgment entered on a guilty plea. Radunz, 180 Ill. App. 3d at 739; People v. Potts (1985), 136 Ill. App. 3d 1059,1061.

Supreme Court Rule 605(b), in essence, requires the trial court to advise a defendant of the requirements for appeal from a guilty plea which are set out in Rule 604(d). Rule 605(b) states in relevant part:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that he has a right to appeal;
(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) that upon the request of the State any charges that may have been dismissed as a party of a plea agreement will be reinstated and will also be set for trial;
(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” (134 Ill. 2d R. 605(b).)

A failure to file a timely Rule 604(d) motion is excused if the trial court fails to properly admonish the defendant pursuant to Rule 605(b). Radunz, 180 Ill. App. 3d at 739; Potts, 136 Ill. App. 3d at 1061.

In the instant case, defendant did not file a timely motion to vacate his guilty plea. While defendant contends his failure to file should be excused and the cause remanded because proper Rule 605(b) admonitions were not given, the State maintains that the defendant received sufficient Rule 605(b) admonitions from the trial court. The State asserts that while the trial court did not recite the language of Rule 605(b) to the defendant, the defendant was sufficiently advised that a motion to withdraw was a prerequisite to appeal. We do not agree. We find that the trial court did not advise defendant that prior to his appeal he “must file in the trial court *** a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion.” (Emphasis added.) (134 Ill. 2d R. 605(b)(2).) The fact that a Rule 604(d) motion must be filed in order to appeal was not substantially communicated. (See People v. Ahlstrand (1983), 113 Ill. App. 3d 363, 366.) Furthermore, the trial court did not state that defendant must set forth in the motion itself his grounds for wishing to withdraw his guilty plea. Thus, we determine that the trial court did not substantially admonish defendant in accordance with Rule 605(b). On this basis, we determine that defendant is excused from not complying with Rule 604(d) (Radunz, 180 Ill. App. 3d at 740) and remand, so that defendant may be properly admonished and may file a motion to withdraw his guilty plea with the trial court. In addition, we note that an admonition with respect to the fact that any issue not raised in the motion shall be waived on appeal was not included in the trial court’s statement. However, that is not at issue in this case. Nevertheless, it is the trial court’s duty to substantially admonish the defendant of all subsections of Rule 605(b). We note with favor the Rule 605(b) admonishments in People v. Favelli (1988), 176 Ill. App. 3d 618, 621. These are clear and adequately address all subsections of the rule. Although the standard is that the trial court must substantially admonish defendant in accordance with Rule 605(b), thus not requiring recitation of the rule, deviation from the language of the rule may result in noncompliance with Rule 605(b).

On the basis of the reasoning herein set forth, we remand for further proceedings in accordance with this opinion.

Remanded.

INGLIS, P.J., and McLAREN, J., concur.


text:
      In re APPLICATION OF THE DU PAGE COUNTY COLLECTOR, for Judgment and Sale for Taxes Against Real Estate Delinquent for Nonpayment of General Taxes for the Year 1985 (John Lotus Novak, Du Page County Treasurer and ex officio Collector, Applicant-Appellant, v. Application Engineering et al., Objectors-Appellees).
    Second District
    Nos. 2—90—1288 through 2—90—1290 cons.
    Opinion filed April 13, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Anna B. Harkins, Barbara A. Preiner, and George J. Sotos, Assistant State’s Attorneys, of counsel), for appellant.
    Joseph J. Butler, of Crane & Norcross, of Chicago, and James A. Gerahty, of Wheaton, for appellee Application Engineering.
    Ralph C. Putnam, Jr., of Alschuler, Putnam, McWethy, Funkey & Lewis, P.C., of Aurora, for appellee Jewel Companies.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The ex officio Du Page County collector (the collector) appeals from three orders entered by the circuit court of Du Page County on October 23, 1990. The orders directed the collector to refund that portion of the county’s real estate tax levy deemed excessive, plus interest, to each of three tax objectors. The three tax objectors were Application Engineering, Jewel Companies, Inc., and Inland Real Estate Corp. (taxpayers). The three cases were consolidated for purposes of appeal.

The issue on appeal is whether the county could exclude its liability insurance tax levy from its general corporate tax levy effectively circumventing the maximum rate limitation placed on general corporate tax levies by section 25.05 of “An Act to revise the law in relation to counties” (Counties Act) (Ill. Rev. Stat. 1983, ch. 34, par. 406).

On December 17, 1991, this court, after concluding that the trial court orders did not meet the requirements of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), ordered the dismissal of the appeal for want of jurisdiction. (In re Application of the Du Page County Collector (2d Dist. 1991), Nos. 2-90-1288, 2-90-1289 and 2-90-1290 (unpublished order under Supreme Court Rule 23).) However, the supreme court reversed our order and remanded the case for consideration of the issue raised on appeal. In re Application of the Du Page County Collector (1992), 152 Ill. 2d 533.

The facts are not in dispute. Each of the taxpayers owned real estate in Du Page County and timely paid its 1985 county real estate taxes under protest in 1986. Each of the taxpayers made various objections to the county real estate tax levy including a specific objection to the levy for liability insurance on the ground that the rate extended for liability insurance caused the county’s general corporate tax rate to exceed the statutory maximum rate.

For 1985, the tax year in question, the county did not include the liability insurance rate in its general corporate rate. The general corporate rate levied by the county for that year was .1175% and the liability insurance rate was .0295%. If the county had included the liability insurance rate in its general corporate rate, then the general corporate rate would have been .1470% and would have exceeded the statutory maximum rate of .12% by .027%. There was no referendum approving liability insurance taxes in excess of the general corporate maximum rate.

The trial court found that the county could not exclude the liability insurance rate from its general corporate rate. The trial court also found that the county levy for liability insurance was “illegal, excessive and void” to the extent the general corporate tax rate would have exceeded the maximum rate if the liability insurance rate had been included in the general corporate rate — .027 per hundred dollars of valuation. The trial court ordered the collector to refund the amount of the liability insurance tax deemed excessive plus interest (stayed pending appeal) to each of the taxpayers.

The collector appeals these orders. The only issue before us is whether the trial court erred when it sustained the taxpayers’ objections after finding that the county could not exclude its liability insurance rate from its general corporate rate.

In 1985, in addition to setting the maximum general corporate tax rate for counties such as Du Page County at .12%, section 25.05 of the Counties Act listed a number of taxes which were exempt from and exceptions to the maximum rate. (Ill. Rev. Stat. 1983, ch. 34, par. 406 (now Ill. Rev. Stat. 1989, ch. 34, par. 5 — 1024).) Section 25.05 did not include liability insurance taxes in its list of exceptions to the general corporate tax maximum rate. Ill. Rev. Stat. 1983, ch. 34, par. 406.

Section 27 of the Counties Act provided that a county could authorize a tax exceeding the section 25.05 maximum rate. (Ill. Rev. Stat. 1983, ch. 34, par. 501 (now Ill. Rev. Stat. 1989, ch. 34, par. 5— 2001).) However, section 27 provided that a county could only authorize a tax in excess of the section 25.05 general corporate tax maximum rate after a majority of the voters in the county specifically approved an excess tax in a referendum. Ill. Rev. Stat. 1983, ch. 34, par. 501.

Section 9 — 107 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 2 — 101 et seq.) provided that a county may levy liability insurance taxes. (Ill. Rev. Stat. 1985, ch. 85, par. 9 — 107.) The Tort Immunity Act also provided that taxes levied under its authority, including liability taxes, “shall be exclusive of and in addition to the amount of tax [a county] is now or may hereafter be authorized to levy for general purposes under any statute which may limit the amount of tax which [a county] may levy for general purposes.” Ill. Rev. Stat. 1985, ch. 85, par. 9 — 107.

The collector contends that this Tort Immunity Act language clearly places liability insurance taxes outside the limitations of section 25.05. The collector argues that the principal case relied on by the trial court in reaching a contrary conclusion (People ex rel. Nordstrom v. Chicago & North Western Ry. Co. (1957), 11 Ill. 2d 99) (Nordstrom I) was incorrectly decided and is distinguishable from this case. We disagree.

There are three distinct means of properly excluding a county tax from the rate limitations of section 25.05 of the Counties Act. First, a county may levy a tax in excess of the limit fixed by section 25.05 after a favorable vote at a referendum under section 27. (Ill. Rev. Stat. 1983, ch. 34, par. 501; People ex rel. Nordstrom v. Chicago, Burlington & Quincy R.R. Co. (1959), 15 Ill. 2d 602, 604 (Nordstrom II).) Second, the legislature may exempt a tax from the limitation of section 25.05 by clearly and expressly excluding the tax in section 25.05 itself. (See Ill. Rev. Stat. 1983, ch. 34, par. 406.) Third, the legislature may exclude the tax “by equally clear language found in acts authorizing the tax but which acts are independent of the Counties Act.” People ex rel. Ramey v. Gulf, Mobile & Ohio R.R. Co. (1958), 15 Ill. 2d 126,130.

Here, there was no referendum under section 27, and the legislature did not exclude liability taxes from the section 25.05 limitations by any language in section 25.05 itself. Thus the question before us is whether language in the Tort Immunity Act clearly and expressly excluded liability taxes from the section 25.05 limitation.

In Nordstrom I, our supreme court determined that the language of “An Act relating to the care and treatment by counties of persons afflicted with tuberculosis ***.” (County TB Act) (Ill. Rev. Stat. 1951, ch. 34, pars. 164 through 175i9) did not authorize a county to exclude a tax levied under the County TB Act from the section 25.05 limitation on general corporate taxes. (Nordstrom, 11 Ill. 2d at 104.) The court concluded that the language of the County TB Act did not manifest an intention on the part of the legislature that the tax should be exempt from the section 25.05 limitation. (Nordstrom, 11 Ill. 2d at 105.) The relevant language from the County TB Act provides:

“ 'The County Board of each County in this State shall have the power to provide for the care and treatment of the inhabitants thereof who may be afflicted with tuberculosis and to levy a tax not to exceed .075 per cent of the full and fair cash value as equalized or assessed by the Department of Revenue annually on all taxable property of such county, such tax to be levied and collected in like manner with general taxes of such county and to form, when collected, a fund to be known as the “Tuberculosis Care and Treatment Fund,” which tax shall be in addition to, in excess of and excluded from all other taxes which such county is now or hereafter may be, authorized to levy, on the aggregate valuation of all property within such county, and the county clerk in reducing tax levies under the provisions of Section 162 of “An Act to revise the law in relation to the assessment of property and the levy and collection of taxes, and to repeal certain Acts herein named,” filed May 17, 1939, as amended, shall not consider the tax for said tuberculosis care and treatment fund, authorized by this Act, as part of the general tax levy for county purposes, and shall not include the same in the limitation of one (1) per cent of the assessed valuation upon which taxes are required to be extended.’ ” (Emphasis added.) Nordstrom, 11 Ill. 2d at 102, quoting Ill. Rev. Stat. 1951, ch. 34, par. 175il.

Nordstrom I also discussed language in “An Act authorizing counties to levy a tax for the purpose of maintaining public non-sectarian hospitals” (Ill. Rev. Stat. 1985, ch. 34, par. 5351) (the Nonsectarian Hospital Act) which had been considered by the court in an earlier decision (People ex rel. Harrell v. Baltimore & Ohio R.R. Co. (1951), 411 Ill. 55). The language in question provided, in relevant part, that the related tax “shall not be included in any tax limitation of rate upon which taxes are required to be extended but shall be excluded therefrom and in addition thereto.” (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 7001.) The Harrell court held that these words did not exempt the tax from section 25.05. Nordstrom, 11 Ill. 2d at 106.

The comparable language in the Tort Immunity Act provides:

“Any tax levied under this Section shall be levied and collected in like manner with the general taxes of the entity and shall be exclusive of and in addition to the amount of tax that entity is now or may hereafter be authorized to levy for general purposes under any statute which may limit the amount of tax which that entity may levy for general purposes. The county clerk of the county in which any part of the territory of the local taxing entity is located, in reducing tax levies under the provisions of any Act concerning the levy and extension of taxes, shall not consider any tax provided for by this Section as a part of the general tax levy for the purposes of the entity nor include such tax within any limitation of the percent of the assessed valuation upon which taxes are required to be extended for such entity.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 85, par. 9 — 107.

A comparison of the language in the County TB Act and the Nonsectarian Hospital Act with the language in the Tort Immunity Act shows many similarities in language and a parallel structure between the County TB Act and the Tort Immunity Act. The first set of key words is “shall be in addition to, in excess of and excluded from all other taxes which the county is now or hereafter may be, authorized to levy” in the County TB Act (Ill. Rev. Stat. 1951, ch. 34, par. 175il), and “shall be exclusive of and in addition to the amount of tax that entity is now or may hereafter be authorized to levy for general purposes” in the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 9 — 107). In Nordstrom I, the court stated that the words “in addition to” in the County TB Act meant only that the tax “shall be in addition to other taxes authorized by the General Assembly, and not subject to reduction with other taxes.” (Nordstrom, 11 Ill. 2d at 104.) The court also said that the words “in excess of and excluded from” in the County TB Act related to provisions for reducing levies and not the “overall rate limitation.” Nordstrom, 11 Ill. 2d at 105.

The comparable Tort Immunity Act language is virtually identical to the County TB Act language, and we must therefore construe it as our supreme court construed it in Nordstrom I. Accordingly, we conclude that the Tort Immunity Act language relates only to the provisions for reducing taxes.

Next, we compare the language of the Nonsectarian Hospital Act “shall not be included in any tax limitation of rate upon which taxes are required to be extended” (Ill. Rev. Stat. 1985, ch. 34, par. 5351), and the remaining relevant language of the Tort Immunity Act, “under any statute which may limit the amount of tax which that entity may levy for general purposes” (Ill. Rev. Stat. 1985, ch. 85, par. 9 — 107). Although the language in the two acts is not identical, we find that the gist of the language, that limitations on rates shall not apply, is the same. Nordstrom I noted with approval that Harrell held that the Nonsectarian Hospital Act language did not authorize a tax in excess of the general corporate maximum rate. (Nordstrom, 11 Ill. 2d at 106.) We see nothing in the Tort Immunity Act language to place it outside the control of Nordstrom I and Harrell. We therefore conclude that the Tort Immunity Act language does not authorize a tax in excess of the maximum county rate.

Ramey supports our conclusion. In order for the legislature to authorize an exception to the section 25.05 limitation through an independent statute, the language of the independent statute must be “equally clear” as the language in the list of exceptions in section 25.05 itself. (Ramey, 15 Ill. 2d at 130.) Virtually every exception listed within section 25.05 identifies the specific statute by name and statutory code number and gives the date the statute was authorized or amended. (See Ill. Rev. Stat. 1983, ch. 34, par. 406.) Here, the Tort Immunity Act language does not identify a specific statute by name, code number or date. Thus, the Tort Immunity Act does not exempt its taxes from the section 25.05 limitation because it does not use language equally clear as the language of section 25.05 itself. The legislature must have been aware of the section 25.05 limitation when it passed the Tort Immunity Act and could have specifically identified the section 25.05 limitation in the Tort Immunity Act but it has not done so. In the absence of such a specific identification, Nordstrom I applies.

Our conclusion is further supported by the well-established principle that tax statutes should be strictly construed in favor of taxpayers and against the government. Ramey, 15 Ill. 2d at 129.

Based on the foregoing, we hold that the language of section 9— 107 of the Tort Immunity Act does not exclude county liability insurance taxes from the maximum rate limitation on a county’s general corporate tax rate imposed by section 25.05 of the Counties Act. Accordingly, we find that the trial court properly sustained the taxpayers’ objections.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and QUETSCH, JJ., concur.