author: JUSTICE HAASE

text:
      In re MARRIAGE OF BEVERLY KAY MORRICAL, Petitioner-Appellee, and ROLLAND STEPHEN MORRICAL, Respondent-Appellant.
    Third District
    No. 3 — 90—0810
    Opinion filed July 23,1991.

      Leonard E Sacks, of Sacks & Albrecht, of Kankakee, for appellant.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

Subsequent to its order dissolving the marriage of the petitioner, Beverly Kay Morrical, and the respondent, Holland Stephen Morrical, the trial court distributed the parties’ property between them. Holland appeals the property distribution order.

The record shows that the parties were married for almost 24 years. They had two children: Sarah, who was 19 at the time of the proceedings and attending college, and Stephen, who was then 14 and living with Beverly. At the time of the dissolution, Holland was 51 and Beverly was 50.

Holland was engaged in several businesses, including real estate ventures with partners. Beverly had been employed as a high school librarian throughout the marriage. In addition, the parties owned a business known as The Fabric Sewing Business.

In the property distribution order, the trial court noted that this was a case where an equal division of the marital property was appropriate. It then itemized the parties’ property and placed a value upon each item based upon the evidence presented.

Beverly was awarded the marital residence, the household furniture, the car in her possession, her teacher’s retirement plan, and an annuity. Holland received The Fabric Sewing Business, the building which housed the business, the business furniture, the auto in his possession, the equity in the real estate holdings, the Ameritus fund, the life insurance, the securities, the Woods subdivision bank account, and the cash on hand.

The court also found that Holland had dissipated $32,000 from the sale of stock, for which he had not accounted. Beverly was entitled to one-half this figure.

In order to divide the property equally, the court determined that Holland should pay Beverly an equalization payment of $52,935. After reviewing Holland’s motion to reconsider, the court reevaluated Beverly’s annuity and reduced the equalization payment to $49,185.

On appeal, Holland first argues that the trial court abused its discretion in distributing the marital property. Specifically, he complains that the court erred in its valuation of The Fabric Sewing Business.

The trial court’s distribution of the marital property will be disturbed only when it has abused its discretion, which is to say, only when no reasonable person would take the view adopted by the court. (In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 530 N.E.2d 1110.) The date of dissolution is the proper date for valuation of the parties’ business. In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 446 N.E.2d 1198.

Here, we find no abuse of discretion in the trial court’s determination of the value of The Fabric Sewing Business. Holland contends that the trial court could only consider the values placed on The Fabric Sewing Business according to Holland’s financial statements closest to the date of the dissolution. However, he cites no authority, nor have we found any, that supports his apparent proposition that the trial court is precluded from considering the value of a business in the years preceding the date of the dissolution. Indeed, the case law indicates the contrary to be true. See In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 446 N.E.2d 1198.

From our review of the record, it appears that the trial court did consider the business values supplied by Holland’s 1986 through 1989 financial statements. Additionally, the court had before it evidence that the business’ profits had increased in the last year. Given the range of values submitted to the court, we find a reasonable person could have arrived at the same figure as the court. Indeed, a careful review of the record convinces us that the trial court arrived at a just and equitable valuation of the business based on the evidence submitted.

Holland next argues that the trial court erred in ordering him to make equalization payments rather than dividing the parties’ assets “in kind.”

Where marital property is not susceptible to division in kind or such division is inequitable, the spouse receiving the whole may be subjected to an obligation to make an equalizing cash payment. In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.

Holland does not suggest how the trial court might have accomplished a just “in kind” division of the parties’ property, thereby avoiding equalization payments. However, we note that two of the parties’ most valuable assets, The Fabric Sewing Business and the equity in the various real estate ventures, were not susceptible to an equitable “in kind” division. Division of the business would have necessitated an ongoing business association between the parties. This clearly was undesirable given the animosity between the parties and their inability to cooperate with each other. Furthermore, Holland had various partners in most of the real estate ventures. The difficulty in dividing such an interest is obvious. After a careful review of the record, we cannot say the trial court erred in dividing the parties’ property as it did and ordering the equalization payments.

Holland next argues that the trial court’s finding that he dissipated $32,000 worth of marital assets was against the manifest weight of the evidence. He disputes both that dissipation occurred and the amount of any dissipation.

“Dissipation” as used in section 503(d)(1) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(1)) refers to the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown. In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 563 N.E.2d 494.

In the instant case, there was evidence showing that Holland had sold stocks worth up to $32,000 in 1988 at a time when both he and Beverly admitted that the marriage was undergoing serious problems. While Holland never gave a satisfactory accounting of what happened to the proceeds from the sale of the stock, he did admit that he gambled with some of the money. Under these circumstances, we find the trial court did not err when it determined that Holland had dissipated $32,000 of the marital property.

Finally, Holland asserts that the trial court erred in determining the value of the real estate contracts and the Walnut Street property. Specifically, he contends that the court included $18,000 of non-marital property in determining the value of the real estate contracts. We find, however, that the court specifically stated in deciding his motion to reconsider that it had not included his nonmarital property in calculating the equity value of the real estate. Furthermore, from our review of the record, we find no error in the court’s valuation of the real estate contracts.

Regarding the Walnut Street property, we note that Holland has not included record cites where we can find the indebtedness he asserts the court failed to include in valuing the property. An appellate court is not required to search the record for the purpose of finding error. (Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 333 N.E.2d 716.) We have nonetheless thoroughly searched the record and find no support for Holland’s contention. To the contrary, in his deposition Holland stated that the value of the property was $50,000 and there was no indebtedness on it. Therefore, the court’s $50,000 valuation of the property was supported by the record.

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

Affirmed.

SLATER and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD G. McNEELEY, JR., Defendant-Appellant.
    Third District
    No. 3 — 90—0581
    Opinion filed June 20,1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Edward G. McNeeley, Jr., was charged by indictment with unlawful possession of more than 900 grams of cocaine and unlawful possession with intent to deliver more than 900 grams of cocaine (Ill. Rev. Stat. 1989, ch. 561l2, pars. 1402(a)(ll), 1401(a)(11)). Following a jury trial, the defendant was acquitted of those charges but convicted of the lesser included offenses of possession of more than 15 but less than 100 grams of cocaine and possession with intent to deliver more than 15 but less than 100 grams of cocaine (Ill. Rev. Stat. 1989, ch. 56½, pars. 1402(a)(2), 1401(a)(2)). The trial court subsequently sentenced him to a term of seven years’ imprisonment.

On appeal, we found that Judge Bumgarner had erred in denying the defendant’s motion to have a different judge hear his motion for a new trial. Our decision was based on the fact that the motion for a new trial directly attacked Judge Bumgarner’s conduct during the reading of the jury verdicts. We therefore remanded the cause with instructions that a different judge would consider the merits of the defendant’s motion for a new trial and would conduct a new sentencing hearing if he denied that motion. People v. McNeeley (3d Dist. 1990), No. 3 — 89—0395, (unpublished order under Supreme Court Rule 23).

Following a hearing on remand, Judge McCuskey denied the defendant’s motion for a new trial. Judge McCuskey thereafter re-sentenced him to seven years’ imprisonment. The defendant appeals.

The record shows in relevant part that at the defendant’s trial the State presented considerable circumstantial evidence showing that the defendant possessed over 900 grams of a substance containing cocaine, along with paraphernalia used in selling cocaine. At the conclusion of the evidence, the jury received instructions on the charged offenses and also on the lesser offenses of possession of more than 15 but less than 100 grams of cocaine and possession with intent to deliver more than 15 but less than 100 grams of cocaine. Following deliberations, the jury returned with four verdicts.

The trial judge read the first two verdicts, which found the defendant not guilty of possession of more than 900 grams of cocaine and not guilty of possession with intent to deliver 900 grams of cocaine. After reading the second not guilty verdict, the judge stated: “And now you know why we can’t do much with narcotics, and you’re excused. Thank you very much.” He then dismissed the jury, left the bench, and went to his chambers.

After learning that he had not read all of the verdicts, the judge returned to the bench and instructed the jury to return to the jury box. The last two verdicts found the defendant guilty of possession of more than 15 but less than 100 grams of cocaine and guilty of possession with intent to deliver more than 15 but less than 100 grams of cocaine. The judge subsequently ordered the jury polled and all of the jurors affirmatively stated that those were the verdicts they had reached. He then apologized to the jury for going off “half-cocked” and discharged them.

At the hearing on remand, bailiff Harry Rohleder testified that he was the bailiff in the courtroom when the events in question occurred. He stated that when the judge made the above-quoted statement, he sounded a little angry. The judge then got up and walked out of the courtroom. Rohleder told the jurors to go into the jury room, which they did. As they were getting ready to leave, the judge asked them to be reseated in the jury box. A minute or two had passed between the time the judge left the bench and when he returned. Rohleder noted that no one went into the jury room with the jurors, and no one talked with them at any time in his presence. He further noted that when the judge initially made his comments and left, the jurors just looked at each other and shrugged or smiled.

Courthouse security officer Kenny Mack testified that after the trial judge read the first two verdicts, he threw down the verdict forms, jumped up, and quickly went into his chambers. The jurors looked upset and started talking among themselves. They then went into the jury room. After one to two minutes, the judge returned. Mack noted that at one point before the judge returned, one or two of the jurors went out the gate that divides the audience from the rest of the courtroom, but were told to come back by the bailiff.

On cross-examination, Mack stated that the jurors were unable to hear anything the assistant State’s Attorney said to the judge in his chambers. He also noted that although he handcuffed the defendant, it was done outside the sight of anyone in the courtroom. Mack acknowledged that while the events in question were transpiring, he was busy escorting the defendant out of the courtroom and was paying attention to him.

Marcia Straub, the defendant’s trial attorney, testified that the judge made the statement in question in a loud angry voice, swung his hands in the air, got up, and literally ran off the bench. She noted that it was possible the jurors heard the defendant expressing his relief to his girlfriend after the first two verdicts were read. Straub also noted that the jurors appeared upset and angry. She and the defendant then walked out of the courtroom. At the time, the jurors were talking to each other in the jury room and the bailiff was with them. When the judge returned after about three minutes, the jurors were still in the jury room or coming back into the jury box. She did not see any of them anywhere else.

Deputy circuit clerk Linda Smiddy testified that she was clerking for the trial judge at the time. After the judge read two of the verdicts, he handed all four forms to her and left the courtroom. She immediately went after him and handed him the four verdict forms, telling him he had failed to read two of them. No more than two minutes passed between the time he left and when he returned. When she and the judge returned to the courtroom, the jurors were scattered, but were all in the room.

The motion judge found that there was no evidence the trial judge’s comments had prejudiced the defendant, coming as they were after the jury had returned unanimous verdicts. The judge noted that the jury’s deliberations were uneventful and that the defendant had presented no direct evidence that the polling process was tainted in any way.

On appeal, the defendant argues that he was denied his right to properly poll the jury on the guilty verdicts because the trial judge’s statements and conduct insured that no juror would voice any dissent with respect to the verdicts.

The purpose of polling a jury is to determine that the verdict accurately reflects each juror’s vote as reached during deliberations and that the jurors’ votes were not the result of force or coercion. (People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.) For the comments of a judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he was harmed by them. (People v. Garcia (1988), 169 Ill. App. 3d 618, 523 N.E.2d 992.) The mere possibility of harm to the defendant is not sufficient grounds for holding that a jury poll was improper. People v. Chandler (1980), 88 Ill. App. 3d 644, 411 N.E.2d 283.

Here, the defendant’s appeal argument is necessarily speculative, since there was no direct evidence that any juror was precluded from voicing his dissent due to the trial judge’s behavior. While it is certainly possible to envision situations where a judge’s behavior would mandate a presumption that he had improperly influenced the jury polling, this is not such a case. The instant judge’s actions, while improper, left a question of fact as to whether the jury polling had been tainted. The judge hearing the motion for a new trial determined from the evidence presented that the defendant had failed to meet his burden of showing that the polling was tainted. While that evidence included some testimony that the jurors were upset and scared by the judge’s outburst, it also included testimony indicating that the jurors were unfazed by the outburst. Under these circumstances, we find that the motion judge did not abuse his discretion in finding that the defendant was not entitled to a new trial.

The defendant further argues that it was reversible error to receive the jury’s guilty verdict after the jury was discharged and the court had lost control of it. He relies upon People v. DeStefano (1965), 64 Ill. App. 2d 389, 212 N.E.2d 357, where the trial court improperly accepted a guilty verdict after declaring a mistrial. In DeStefano, the jury foreman told the court the jury could not reach a verdict. The court declared a mistrial and released the jurors, who left the box, returned to the jury room, and engaged in conversation with the bailiff and an assistant State’s Attorney. The court then learned that the jury had in fact found the defendant guilty with respect to one charge and was hung only as to a second charge. After the bailiff retrieved the signed guilty verdict form from the jury room, where it had been left, the trial court accepted the verdict. The appellate court reversed, holding that the trial court had lost control of the jury and that the integrity of the verdict was called into question.

In cases of this type, the pivotal question is whether the trial court lost control of the jury, i.e., whether the protective shield which must surround a jury was removed, allowing the jurors to be influenced by improper outside factors. (People v. Gale (1971), 132 Ill. App. 2d 986, 271 N.E.2d 94.) Here, unlike DeStefano, we note that either the judge or the deputy circuit clerk retained control over all the signed verdict forms throughout the events in question. Further, the judge hearing the motion for a new trial could have properly concluded from the evidence that the court never lost control of the jurors. One witness indicated the jurors might have heard the defendant talk with his girlfriend. Another witness, who admitted that he was paying more attention to the defendant than to the jurors, indicated that one or two jurors might have gone through the gate. The bulk of the evidence showed, however, that the jurors simply went back to the jury room by themselves, then returned to the jury box when the judge returned. Under these circumstances, the motion judge could have properly concluded that the jurors were subjected to no improper outside influences.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


author:
JUSTICE STOUDER
      PRESIDING JUSTICE McCULLOUGH,

text:
    DAVID J. MATTERN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Rowe Construction Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3 — 90—0769WC
    Opinion filed July 26,1991.
    McCULLOUGH, P.J., dissenting.
    Elmo E. Koos, Sr., of Peoria, for appellant.
    Mark S. Fine, of Ganan & Shapira, of Chicago, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, David J. Mattem, appeals the Industrial Commission’s (Commission’s) dismissal of his petition for review. The relevant facts are not in dispute. The petitioner initially filed a compensation claim against the respondent, Rowe Construction Company. The record does not disclose the nature of the claim or the arbitrator’s decision. The petitioner received a copy of the arbitrator’s decision on June 27, 1988. On July 5, 1988, he mailed a petition for review to the Commission. On the same date, he mailed a copy of the petition to the respondent’s attorney, who received it the next day.

On July 11, 1988, the petition for review arrived at the Industrial Commission office with 20 cents postage due. An employee of the Commission refused delivery. On July 19, 1988, the petitioner received the returned petition. When he later refiled the petition, the respondent moved to dismiss on the ground that it had not been filed within the 15-day time limit mandated by the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b)).

The Industrial Commission found that the petitioner had not strictly complied with section 19(b) and dismissed the petition. The circuit court confirmed the Commission’s decision. On appeal, the petitioner contends that although he mailed the petition with insufficient postage, he still met the requirements of section 19(b).

Initially, we note that section 19(b) states that within 15 days of receipt of the arbitrator’s decision, a party must file a petition for review with the Commission. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b).) The party must strictly comply with the filing requirement (Northwestern Steel & Wire Co. v. Industrial Comm’n (1967), 37 Ill. 2d 112, 224 N.E.2d 853), and its failure to do so results in the Commission’s loss of jurisdiction over the appeal (Wiscons v. Industrial Comm’n (1988), 176 Ill. App. 3d 898, 531 N.E.2d 956).

In this case, we find that the Commission should not have granted the motion to dismiss. The Act is humane legislation designed to provide employees with prompt and definite compensation, and it should be liberally construed to effect its purpose. (General American Life Insurance Co. v. Industrial Comm’n (1983), 97 Ill. 2d 359, 454 N.E.2d 643.) Here, the Commission received the petition within the prescribed time limit. The amount of insufficient postage was small, and the failure to provide the correct postage appears to have been inadvertent. Additionally, the respondent was not prejudiced, as its attorney received the petition within the 15-day time period. Based on the foregoing, we find that the petitioner sufficiently complied with the requirements of section 19(b).

The judgment of the circuit court of Peoria County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LEWIS, WOODWARD, and McNAMARA, JJ., concur.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

The Commission should not be required to pay money to file a review proceeding with itself.

Under section 19(b) a party must “file” a petition for review within 15 days.

In the instant case, the petition for review was not filed. The mailing which contained the petition for review did not have sufficient postage and the appellant does not assert that it did. Because of postage due, the Commission clerk refused the mailing.

In Elles v. Industrial Comm’n (1940), 375 Ill. 107, 30 N.E.2d 615, the supreme court held that where the clerk “filed” the review action without receiving the fee in advance, the failure to pay did not deprive the circuit court of jurisdiction.

Likewise, in Hanks v. Floyd (1977), 51 Ill. App. 3d 1048, 367 N.E.2d 483, the plaintiff mailed a complaint for filing to the clerk of the circuit court but the filing fee was not enclosed. The plaintiff in an accompanying letter notified the clerk the filing fee would be paid promptly upon receipt of the billing statement. During a subsequent telephone conversation, an employee of the clerk’s office agreed to file the complaint on November 15. On November 17, the fee was received by the clerk, who then changed the file stamp to November 17, two days after the statute of limitations had expired. The court held that “Although by statute the fees of the clerk of the circuit court ‘shall be paid in advance’ [citation], this language has been interpreted to be merely directory, not mandatory.” (Hanks, 51 Ill. App. 3d at 1050, 367 N.E.2d at 484.) The Hanks court concluded by saying although the filing fee was not paid, the clerk has authority to file the complaint.

Here the Commission clerk did not file the petition for review but refused the mailing. Whether the Commission clerk has a petty cash fund or other monies on hand to pay out in such cases is unknown. The Commission has no duty to accept a mailing with postage due. Query, would the majority result be the same if the Commission clerk had no petty cash fund or resources to pay the $0.20?

Elies and Hanks said the payment of the filing fee was directory, not mandatory. In both cases, the clerk could have refused to file the pleading but did not.

We are not talking about the Commission filing a pleading without receiving a fee. We are requiring the Commission clerk to pay money out of its funds for postage — in order to receive an envelope, determine the contents and file a pleading — which is the responsibility of the party seeking review.

In Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 531 N.E.2d 1040, the clerk of the circuit court testified to a courtesy policy notifying lawyers when complaints were sent by mail without the filing fee enclosed. The clerk would file the documents, notify the attorney involved, and if payment was not received, would scratch out or otherwise remove the filing notations from the document. As stated in Hanks and Elles, the Ayala court stated:

“It is well established that the statutory requirement that filing fees be paid in advance is directory rather than mandatory and, therefore, it is not a necessary predicate for the trial court to acquire jurisdiction of a case. (In re Marriage of Savas (1985), 139 Ill. App. 3d 68, 74, 486 N.E.2d 1318, 1323.) Although a filing fee has not been paid, the clerk has the authority to file a complaint, and it is now clear that the payment in advance of a filing fee is not a condition precedent to the filing of a complaint for statute of limitations purposes. Hanks v. Floyd (1977), 51 Ill. App. 3d 1048, 1050, 367 N.E.2d 483, 484.” (Ayala, 176 Ill. App. 3d at 1095, 531 N.E.2d at 1043.)

The Ayala court further stated that “the clerk may refuse to accept a document unless the fee is paid.” Ayala, 176 Ill. App. 3d at 1095, 451 N.E.2d at 1043.

The petitioner argues that the physical location of the Commission office makes the parties in compensation cases dependent upon mail service. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, mentions problems with delays in mail service, but the supreme court determined such problems do not excuse compliance with the structures of the Workers’ Compensation Act. The Arrington court stated:

“We recognize the hardship that strict compliance with section 19(f)(1) imposes upon attorneys whose offices are located at a distance from the office of the Industrial Commission. Quite often delays in mail service make it difficult for an attorney to mail his check to the Industrial Commission and receive a receipt back in time to file the praecipe for certiorari with the circuit clerk within 20 days of the receipt of notice of the decision of the Commission. The clear language of the statute does not permit this court to ignore its mandate.” Arrington, 96 Ill. 2d at 511-12, 451 N.E.2d at 869.

Here, there is no evidence to show the Commission clerk knew what was enclosed in the mailing, specifically that it was a petition for review. There was no duty to accept the “postage due” envelope. The mandate of the majority will require the Commission clerk to pay “postage due” and accept all mailings. Such a procedure just will not work. It is not a duty or prerogative of the Commission clerk to guess what the mailing is, pay the postage due, and, if it is a petition for review, file it.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. MOORE, Defendant-Appellant.
    Third District
    Nos. 3 — 89—0506, 3 — 89—0507 cons.
    Opinion filed July 24,1991.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, David L. Moore, was charged in a one-count indictment in Peoria County case No. 85 — CF—630 with the offense of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)). In case No. 85 — CF— 629, the defendant was charged in a four-count indictment with one count of theft and three counts of forgery (Ill. Rev. Stat. 1985, ch. 38, pars. 16 — 1(b), 17-3(a)(2)).

On December 26, 1985, the defendant entered negotiated pleas of guilty to all of the charges. The trial court sentenced him to concurrent terms of imprisonment of four years and four months for each of the five convictions. On November 30, 1988, the defendant filed a pro se petition for post-conviction relief in each case. The trial court denied the defendant’s petition. The defendant appeals. We affirm.

The record reflects that under the terms of the plea agreement, the State agreed the defendant would be given concurrent terms of imprisonment of four years and four months on all charges. After the court accepted the defendant’s guilty pleas, both parties waived a presentence report and an immediate sentencing hearing was held. When the trial court asked if the defendant had any criminal history, the prosecutor referred to two convictions for forgery and theft in Indiana, and stated that she had also received some information by teletype about an unspecified conviction in Maine. Upon questioning by the trial court, the defendant admitted having convictions for forgery and theft in Indiana. After both parties waived arguments, the court imposed the agreed-upon sentence.

Almost three years later, the defendant filed a pro se petition for post-conviction relief in each case. The petitions alleged, inter alia, that the defendant had been denied his right to the effective assistance of counsel in the original trial court proceedings. Specifically, the petitions claimed that defense counsel (1) failed to properly investigate the facts of the cases, including the defendant’s prior record, and (2) misrepresented the terms of the plea agreement to the defendant by telling him that Clinton County, Indiana, had agreed to drop pending charges against him. The defendant explained the charges were not dropped and that he was subsequently found guilty of forgery and sentenced as a habitual offender to a term of 30 years in prison.

On January 4, 1989, the trial court appointed the public defender of Peoria County to represent the defendant. Prior to the evidentiary hearing, defense counsel filed a petition for a writ of habeas corpus ad testificandum, requesting the defendant’s presence at the hearing. The petition was denied.

At the hearing, the only witness was Ronald Hamm, a partner of the law firm which had represented the defendant in the original trial court proceedings. Hamm testified he met with the defendant more than six times at the Peoria County jail. At some time during those meetings, the two discussed pending charges in Indiana. Hamm further testified he contacted the prosecutor’s office in the county in Indiana where the charges were pending in an attempt to negotiate an agreement, but was told they intended to continue with the prosecution. He stated this call was probably made a couple of weeks prior to the defendant’s guilty pleas in this case. Hamm denied having told the defendant the Indiana charges would be dropped. He also recalled a conversation in which they discussed the likelihood that Indiana would seek the defendant’s return for trial after he was sent to the Illinois Department of Corrections.

Hamm concluded his testimony by noting the plea agreement in this case extended to cases in Tazewell County as well, and that the defendant was pleased with the agreement because he was not required to make restitution. Additionally, he noted the defendant did not provide him with any exculpatory evidence or witnesses with respect to the Peoria County cases.

At the conclusion of Mr. Hamm’s testimony, defense counsel again requested to have the defendant present to testify, but the trial court refused. After hearing the arguments of counsel, the trial court denied the defendant’s petition for post-conviction relief.

On appeal, the defendant argues the trial court abused its discretion in refusing to permit the defendant to be present at the evidentiary hearing on his petition for post-conviction relief. The defendant contends that since the trial court was called upon at the hearing to resolve a question of fact, based on evidence it heard that day, the defendant should have been present. We do not agree. Defendant asserts he could have greatly assisted his post-conviction counsel in questioning Mr. Hamm about their communications. Furthermore, the defendant contends that if he had been present at the hearing, he could have been called as a witness in order to rebut the particular claims by Mr. Hamm or to clarify points in his own affidavit.

When factual issues are to be determined at a post-conviction proceeding, the presence of the defendant may be necessary. (People v. Hamby (1968), 39 Ill. 2d 290, 235 N.E.2d 572.) However, while a defendant in a criminal case has a constitutional right to be present at his trial, that right does not carry over to post-conviction proceedings. (People v. Jennings (1957), 11 Ill. 2d 610, 144 N.E.2d 612.) Rather, the presence of the petitioner is ordinarily committed to the sound discretion of the hearing judge. People v. Ashley (1966), 34 Ill. 2d 402, 216 N.E.2d 126.

The defendant argues that in Hamby the Illinois Supreme Court concluded the defendant must be present for an evidentiaryhearing on his petition when factual issues are involved. We do not agree. In Hamby, the court did not state the defendant must be present. Rather, the court concluded that when factual issues are to be determined the presence of the defendant “may” be necessary. (People v. Hamby (1968), 39 Ill. 2d 290, 235 N.E.2d 572.) We believe that Hamby was not intended to subvert the general rule that the presence of the petitioner is ordinarily committed to the sound discretion of the hearing judge. Here, based upon the record, we find no abuse of that discretion resulting from the trial court’s refusal to allow the defendant to appear personally.

We therefore affirm the judgment of the circuit court of Peoria County.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE SLATER

text:
    WILDE-HAMMAR, INC., Appellant, v. CHARLES P. CONNOR et al., Appellees.
    Third District
    No. 3-90-0573
    Opinion filed July 19,1991.
    — Rehearing denied August 27,1991.

      McKeown, Fitzgerald, Zollner, Buck, Hutchison & Ruttle, of Joliet (Richard T. Buck and Scott M. Belt, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Liquor Control Commission.

      City Legal Department, of Joliet (Thomas A. Thanas and Linda A. Haviland, of counsel), for other appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff Wilde-Hammar, Inc., a Delaware corporation, operates a business known as the Wilde-Hammar Lounge (the lounge) in Joliet, Illinois. Barry Kraker, president and principal stockholder of WildeHammar, Inc., was charged with committing aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)8)) and criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 15(a)(1)) in connection with an incident involving a patron of the lounge, Lori Bazzarone. The liquor commissioner of the City of Joliet subsequently revoked plaintiff’s liquor license for violating a local liquor control regulation which prohibits the licensee from violating or allowing a violation of any city ordinance, State statute, or Federal law upon the premises. The order revoking plaintiff’s license was upheld by the Illinois Liquor Control Commission, which found that the commissioner’s findings were supported by substantial evidence. A petition for rehearing was denied. Plaintiff filed a complaint for administrative review in the circuit court of Will County and the court affirmed the decision of the Liquor Control Commission. Plaintiff now appeals, contending: (1) that the liquor commissioner did not proceed in the manner provided by law; (2) that the findings of the commissioner are not supported by substantial evidence; and (3) that merely being arrested is an insufficient basis for finding a violation of State law. We affirm.

Before discussing the issues presented by plaintiff, we first address two motions which were ordered taken with the case. Defendants filed a motion to strike plaintiff’s brief because it contains information which does not appear in the record. This information, which concerns the disposition of the criminal charges and a civil lawsuit brought against Barry Kraker, is the basis of a large part of one of plaintiff’s arguments on appeal. Plaintiff has filed a motion to supplement the record with the additional information.

Section 3 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110) provides that no new or additional evidence shall be heard by the court on review of an administrative decision. Plaintiff’s motion to supplement the record is therefore denied. Defendants’ motion to strike plaintiff’s brief is also denied. We will, however, disregard any reference to, or arguments based upon, information not contained in the record.

Plaintiff first contends that it was improper for the liquor commissioner to revoke plaintiff’s license when it was the deputy liquor commissioner who conducted the hearing and heard the evidence and testimony. Plaintiff argues that the deputy commissioner had the opportunity to assess the credibility of the witnesses and that therefore only he, and not the commissioner, could properly render a decision.

Section 4 — 2 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 111) authorizes the liquor commissioner to appoint others to assist him in the performance of his duties. It is well settled that “in the absence of statutory provisions to the contrary, it is not necessary that testimony in administrative proceedings be taken before the same officers who have the ultimate decision-making authority.” (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128, 357 N.E.2d 785, 791; see also Starkey v. Civil Service Comm’n (1983), 97 Ill. 2d 91, 454 N.E.2d 265; Stojanoff v. Department of Registration & Education (1980), 79 Ill. 2d 394, 403 N.E.2d 255; Starnawski v. License Appeal Comm’n (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.) Such a procedure is proper so long as the decision maker “considers the evidence contained in the report of proceedings before the hearing officer and bases [his] determinations thereon.” (Homefinders, 65 Ill. 2d at 128, 357 N.E.2d at 791.) The order revoking plaintiff’s license specifically states that the liquor commissioner “reviewed the evidence in the record and *** conferred with the hearing officer.” We find no error.

Plaintiff next maintains that the findings and order of the liquor commissioner are not supported by substantial evidence in light of the whole record. The commissioner found that plaintiff violated section 4 — 35 of the Joliet Liquor Code, which prohibits the licensee from violating, or permitting or allowing a violation of, any city ordinance, State statute, or Federal law on the licensed premises. The bases of the violations were the commissioner’s determinations that Barry Kraker: (1) “intentionally and knowingly without legal justification made physical contact of an insulting and provoking nature with Lori Bazzarone on July 16, 1989, at the Wilde-Hammar Lounge” in violation of section 12 — 4(b)(8) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)); and (2) “intentionally and knowingly touched and fondled Lori Bazzarone’s sex organs and breasts through her clothing for the purpose of his sexual gratification and arousal” in violation of section 12 — 15(a)(1) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 12-15(a)(1)).

The testimony presented at the five-day hearing indicated that Bazzarone went to the lounge with two friends at approximately 10 p.m. on July 15, 1989, after attending a festival in Plainfield, Illinois. Bazzarone had never been to the lounge and did not know Barry Kraker. According to Bazzarone and one of her friends, Cynthia Frieders, she drank one “Long Island iced tea,” a drink containing four shots of liquor, and she had a few sips out of a second drink before going to the washroom sometime after midnight. According to other witnesses, Bazzarone had three “iced teas” and several additional shots of liquor and she appeared to be highly intoxicated. Bazzarone and Frieders entered the women’s washroom and found that a man was in the stall. According to Bazzarone and Frieders, the man left within a few minutes; according to others, Bazzarone, Frieders, and the man remained in the washroom for 15 to 20 minutes and would not allow anyone to enter.

Bazzarone testified that after the man left, another girl, Giselle Batozech, entered the washroom and entered the stall ahead of Bazzarone and Frieders. As Batozech was leaving, a man whom Bazzarone later identified as Kraker entered the washroom. Frieders was “pushed out” of the small washroom when Kraker entered. Bazzarone testified that Kraker began touching Batozech’s breasts and she told him “no, no, no, no” in a “laughing type of voice” and ran out of the bathroom. According to Bazaronne, Kraker then grabbed her (Bazzarone’s) breasts, buttocks, and groin before she was able to leave the washroom. She stated that she was “hollering no” while this occurred. Frieders testified that as she reentered the washroom she heard Bazzarone say “no” and saw her bent over with her arms up and “she had gone under [Kraker’s] arms.” Frieders stated that Kraker’s hands were “near [Bazzarone’s] back or on her back.”

Bazzarone testified on direct and cross-examination that Kraker was dressed in grey tuxedo trousers, a pleated white shirt, and a pink bow tie. Also, on rebuttal cross-examination she testified that he was wearing dark pants, a pleated shirt, and a pink bow tie. The record indicates that Kraker had been to a wedding that night, but he was not wearing a tuxedo, although members of the wedding party were at the lounge wearing tuxedos similar to the one described by Bazzarone. Kraker, however, was wearing a grey suit with a white shirt and salmon-colored tie, clothing which one witness described as the “same color as the wedding party wore.”

Kraker testified that he and his wife went to the lounge after a wedding reception and he entered the women’s washroom because he was told that there was a man inside. Kraker chased the man out of the washroom and saw Bazzarone, who was bent over near the sink and appeared drunk. He told her to leave and she “gave [him] some lip.” Kraker picked Bazzarone up by the shoulders and escorted her out of the restroom with his hands on her back. Kraker denied touching or grabbing Bazzarone’s breasts, buttocks, or groin.

Bazzarone testified that, after she ran out of the washroom, she left the lounge and did not return except with a police officer to identify Kraker. Michael Dillon, a lounge customer and deputy sheriff, testified that Bazzaronne remained or came back in the lounge and said that she was “pissed” about being thrown out of the lounge. Kraker stated that he also overheard Bazzarone say she was “pissed.” David Thayer, another lounge patron, testified that sometime around midnight he was outside the lounge talking to Kraker when Bazzarone came staggering out and said to Kraker: “You son-of-a-bitch, you can’t throw me out of here.” A Joliet police officer who was called to investigate the incident described Bazzarone as hysterical and frightened. The officer did not think that Bazzarone was intoxicated. Kraker was arrested and charged with aggravated battery and criminal sexual abuse.

The findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110). Upon administrative review, both the trial and appellate courts are confined to determining: (1) whether the findings and orders of the administrative agency are against the manifest weight of the evidence; and (2) whether the agency acted arbitrarily and without cause or in clear abuse of its discretion. (Easter Enterprises, Inc. v. Illinois Liquor Control Comm’n (1983), 114 Ill. App. 3d 855, 449 N.E.2d 1013; Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366; Askew v. Daley (1978), 62 Ill. App. 3d 370, 379 N.E.2d 75.) In order to find that the agency’s findings are against the manifest weight of the evidence, it must be determined that an opposite conclusion is clearly evident from the record. Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, 545 N.E.2d 1363; Spiros Lounge, 98 Ill. App. 3d at 284, 423 N.E.2d at 1369.

As plaintiff notes in its brief, in this case “Bazzarone’s credibility, truthfulness and memory are *** crucial” to a determination of the correctness of the liquor commission’s conclusion that the commissioner’s findings were supported by substantial evidence. It is not the function of this court, however, to reweigh the evidence or assess the credibility of the witnesses. (Leong v. Village of Schaumburg (1990), 194 Ill. App. 3d 60, 550 N.E.2d 1073; Spiros Lounge, 98 Ill. App. 3d at 284, 423 N.E.2d at 1369.) While the testimony of the witnesses was in conflict, the mere existence of conflicting testimony does not warrant a conclusion that a finding of fact is erroneous. (Legones v. License Appeal Comm’n (1968), 100 Ill. App. 2d 394, 241 N.E.2d 499.) Although Bazzarone was obviously mistaken in testifying that Kraker was wearing a tuxedo, this was simply a factor to be weighed by the trier of fact. Such an error does not destroy her credibility, particularly where the clothing worn by Kraker was similar to that worn by members of the wedding party. We find that the testimony of Bazzarone, Frieders, and the Joliet police officer who responded to the incident provided substantial evidence which, if believed, supported the findings of the liquor commission and the local liquor commissioner.

Although presented as a single issue, plaintiff’s final contention consists of two distinct arguments. First, plaintiff contends that the mere fact that Kraker was arrested and charged with violating State law is insufficient to support a finding that he actually committed a statutory violation. We agree, and if the revocation of plaintiff’s license was based simply on the fact that Kraker was arrested, we would not hesitate to reverse. Plaintiff ignores the fact, however, that the liquor commissioner’s decision was based on the testimony of numerous witnesses presented in the course of a five-day hearing. It was the evidence presented at the hearing, and not the mere fact of Kraker’s arrest, which provided the bases for the revocation of plaintiff’s license. Moreover, plaintiff’s attempt to interject the results of the criminal proceedings against Kraker must fail as “the licensee’s conviction of the crime to which his alleged misconduct related is neither necessary to sustain the order of revocation nor material.” (Weinstein v. Daley (1967), 85 Ill. App. 2d 470, 476, 229 N.E.2d 357; see also Legones v. License Appeal Comm’n (1968), 100 Ill. App. 2d 394, 241 N.E.2d 499; Nechi v. Daley (1963), 40 Ill. App. 2d 326, 188 N.E.2d 243.) Graves v. Illinois Liquor Control Comm’n (1977), 55 Ill. App. 3d 888, 371 N.E.2d 368, cited by plaintiff, is inapposite. In Graves this court affirmed the circuit court’s reversal of a license revocation because the charges against the plaintiff were not sufficiently clear and specific to allow the presentation of a defense. No similar issue is raised in this case and the charges here were sufficiently specific.

Finally, relying on Nappi v. License Appeal Comm’n (1977), 50 Ill. App. 3d 329, 365 N.E.2d 612, plaintiff maintains that the statutory violations committed by Kraker are insufficient to support the revocation of its license because the violations are not reasonably related to the control of liquor. In Nappi, one of plaintiff’s barmaids shot her husband after he came to plaintiff’s bar looking for her. Plaintiff’s license was revoked on the basis that he, through his agent, committed aggravated battery. The circuit court reversed, finding that the act of the barmaid was not chargeable to the plaintiff. The appellate court affirmed, noting that the husband was not a patron and that the shooting was a purely personal act which was not attributable to the licensee.

Nappi is clearly distinguishable from this case, which involves aggravated battery and criminal sexual abuse committed against a patron by the president and chief stockholder of the licensee. These acts are clearly attributable to the licensee. Furthermore, the liquor commissioner is vested with broad discretionary power to determine whether sufficient cause exists to revoke a license (Askew v. Daley (1978), 62 Ill. App. 3d 370, 379 N.E.2d 75), and we find no abuse of that discretion. While the statutory violations here are not as directly related to the control of liquor as, for example, selling alcohol to minors, they are related to the safety and security of those who visit such establishments.

“The operation of dramshops is fraught with danger, and the purpose of the Liquor Control Act is to protect the public against that danger by regulating the retail sale of liquor.” Nappi, 50 Ill. App. 3d at 330, 365 N.E.2d at 614.

We believe that the maintenance of a reasonably safe environment is “fairly related to the control of liquor” (Askew, 62 Ill. App. 3d at 374, 379 N.E.2d at 77) and that, at a minimum, this includes refraining from the type of conduct at issue here. (Cf. Daley v. Kilbourn Club, Inc. (1965), 64 Ill. App. 2d 235, 211 N.E.2d 778 (discharge of firearm by bartender was sufficient cause for license revocation).) We hold, therefore, that violation of the statutes prohibiting aggravated battery and criminal sexual abuse provided sufficient bases for the revocation of plaintiff’s license. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE McLAREN

text:
      In re S.G. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. A.G. et al., Respondents-Appellants).
    Second District
    No. 2 — 90—0880
    Opinion filed July 11,1991.
    — Rehearing denied August 21,1991.
    Guardianship & Advocacy Commission, of Elgin (William E. Coffin, of counsel), for appellants.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondents, Allen and Cheryl G. (respondents), appeal from the trial court’s order finding them unfit parents and terminating their parental rights. We reverse.

In March 1986, the respondents’ three children, S.G., T.G., and B.G., were adjudged to be neglected minors and were placed with guardians or foster parents. In October 1989, the State filed a petition for termination of parental rights, seeking to terminate the respondents’ parental rights to all three children. Following a bench trial, the court found the respondents unfit and terminated their parental rights on July 10, 1990. The respondents’ motion to vacate or for a new hearing was denied. This appeal followed.

The respondents contend that the trial court’s order terminating their parental rights was not supported by the evidence. Parental rights of a nonconsenting parent may only be terminated upon an adjudication of unfitness. (In re Paul (1984), 101 Ill. 2d 345, 351.) A finding of unfitness must be supported by clear and convincing evidence. (Paul, 101 Ill. 2d at 352; In re Henry (1988), 175 Ill. App. 3d 778, 790.) The trial court’s findings are to be given great deference and will only be overturned on appeal if they are against the manifest weight of the evidence. (Henry, 175 Ill. App. 3d at 790.) Our review of the evidence leads us to conclude that the trial court’s finding of unfitness is not supported by the evidence.

The respondents were found to be unfit because both parents “failed to make reasonable progress or efforts to correct the conditions which were the basis for the removal of the minors or to make reasonable progress toward the return of the minors within 12 months after [sic] the adjudication of neglect.” These are independent bases for a finding of unfitness. (Henry, 175 Ill. App. 3d at 790.) Initially, we must note that the proper first basis is “failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal” of the child (emphasis added) (Ill. Rev. Stat. 1989, ch. 40, par. 1501D(m)); “progress” is not an element of this basis. Whether a parent has made reasonable efforts to correct the conditions involves a subjective judgment based upon the amount of effort which is reasonable for a particular person. (Henry, 175 Ill. App. 3d at 790.) On the other hand, a parent’s reasonable progress toward the return of the children involves an objective judgment based upon progress measured from the conditions in existence when custody was taken from the parent and requires demonstrable movement toward the goal of reunification. Henry, 175 Ill. App. 3d at 790-91.

We first address the “reasonable efforts” basis. The respondents’ children were originally adjudged neglected in March 1986, in that the “MINORS’ ENVIRONMENT IN [sic] INJURIOUS TO THEIR WELFARE.” The court heard testimony that the mobile home in which the family resided at the time of the adjudication of neglect was littered -with trash, foul smelling, and infested with vermin. In addition, the home contained fire hazards and non-functioning doors and -windows. However, the court also heard testimony that by March 1988 the respondents had achieved the task of maintaining a clean, safe, hazard-free home, and that the Department of Children and Family Services (DCFS) continued to monitor the situation. The basis for the removal of the children was the injurious environment in the home. The record shows that the respondents made substantial efforts to remedy the situation and were able to achieve that goal, pending continuing compliance. Therefore, the record does not support this basis for termination of the respondents’ parental rights. However, as the language of subsection lD(m) is in the disjunctive, either a failure to make reasonable efforts or reasonable progress can be grounds for an adjudication of unfitness. (In re Bennett (1980), 80 Ill. App. 3d 207, 210.) We must, therefore, further examine the court’s finding that the respondents did not make reasonable progress towards the return of their children.

As stated above, this basis involves an objective judgment based on measurable progress from the conditions present at the time custody was taken from the parents and requires demonstrable movement toward the goal of reunification. (See Henry, 175 Ill. App. 3d at 790-91.) In the case before us, Greg Liepitz from DCFS testified that the ultimate goal of family reunification was to be achieved through the accomplishment of objectives established by DCFS. Reviews of the respondents’ progress toward achieving these objectives were held every six months after the children were adjudged neglected. Liepitz testified that the respondents had made “satisfactory” progress at each six-month review toward the objective of correcting the problem that led to placement of the children, including achieving the task of maintaining a safe, clean, hazard-free home. Liepitz also testified that the respondents had achieved the other objectives of regular visitation with their children and regularly attending counseling sessions at Ecker Mental Health Center. In addition, the respondents attended parenting classes recommended by DCFS and the semiannual reviews of the respondents’ progress held by DCFS. There can be little doubt from this evidence that the respondents made substantial, measurable progress from the conditions which necessitated the removal of the children. The State argues that the respondents “cannot nurture and care for their children” and that they “have made no measurable progress in genuinely interacting with their children.” These accusations, however, were not at issue before the court. The inability to nurture or interact is not a proper statutory basis for the removal of children in this State. The children were originally taken away from the respondents because of the “injurious” environment at home; having made progress toward correcting that problem, the respondents should not have their parental rights terminated for these other nebulous, uncharged reasons. To decide otherwise would allow the State to terminate parental rights for nonstatutory reasons which were originally uncharged and which parents have no reason to know are possible bases for removal of their children. The termination of parental rights is as drastic and permanent an action as can be taken by a court. (Blakey v. Blakey (1979), 72 Ill. App. 3d 946, 947.) Because we find that the respondents made both reasonable efforts and reasonable progress, the trial court’s order terminating the respondents’ parental rights must be reversed.

Because of our disposition of this issue, we will not address the respondents’ remaining issues.

For these reasons, the judgment of the circuit court of Kane County is reversed.

Reversed.

DUNN and NICKELS, JJ., concur.


text:
      In re MARRIAGE OF EDWIN C. PARKER, Petitioner-Appellant and Cross-Appellee and BARBARA T. PARKER, Respondent-Appellee and Cross-Appellant.
    Second District
    No. 2 — 90—1044
    Opinion filed July 12,1991 .
    — Rehearing denied August 21,1991.

      Donald C. Schiller and Robert W. Wilcher, both of Schiller, DuCanto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellant.

      Jay J. Johnston, of Hall, Holmberg, Roach, Johnston & Fisher, and Thomas M. Gurewitz, both of Waukegan (Jeffrey C. Thut, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Edwin Parker, appeals from orders of the trial court granting respondent, Barbara Parker, an additional distribution of property. While Edwin sets forth six issues in his brief, it appears there are only two issues on appeal: (1) whether the trial court erred by granting Barbara’s section 2 — 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401); and (2) whether the trial court erred by awarding an additional distribution of $520,800 to Barbara. Edwin’s six “issues” are really arguments supporting his position that the court did commit error as to the two issues set forth above. Barbara cross-appeals from the identical orders of the trial court which awarded her an additional $520,800 due to the revaluation of an asset and denied her request for attorney fees incurred in bringing her section 2 — 1401 petition. We affirm in part, reverse in part, and remand.

Edwin and Barbara began living separate and apart in January 1986. The parties, both represented by counsel, began negotiating a marital settlement agreement (Agreement) in August. Edwin’s personal financial statement was provided to Barbara’s attorney and included 5,000 shares of Dur-O-Wal, Inc., common stock with a book value of $142,000. Edwin owned 50% of the outstanding stock of DurO-Wal. Edwin specifically noted he was currently trying to sell the company for more than book value.

The Agreement was executed on December 9, 1986, and provided for the distribution of the parties’ assets and liabilities, the payment of child support and the payment of maintenance. The Agreement contained a schedule of Edwin’s assets which included the Dur-O-Wal stock and its corresponding book value. The Agreement also contained the following articles with separately enumerated provisions under each article: Article I — Right of Action and Incorporation of Recitals; Article II — Custody of Seth; Article III — Payments for Barbara; Article IV — Support of Seth; Article V — Property Division; Article VI — Debts; Article VII — Mutual and General Release and Waiver; and Article VIII — General. Pursuant to paragraph B.3 under article V, property division, Edwin was to receive the Dur-O-Wal stock.

The trial court entered a judgment of legal separation on December 29, 1986. The Agreement of the parties was incorporated in its entirety into the judgment order. Paragraph F of article VIII provided that if any part of the Agreement was held to be invalid, the remaining parts shall remain valid and enforceable.

Efforts to sell Dur-O-Wal had begun in 1986. The company was eventually sold in October 1987, and the proceeds attributable to Edwin’s interest amounted to approximately $4,083,000.

On April 18, 1988, Barbara filed a “petition for relief” pursuant to section 2 — 1401 of the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Barbara sought relief from the judgment of legal separation, alleging: (1) she was emotionally distressed to the extent that she was not capable of caring about the significance of the proceedings or understanding the consequences of the financial settlement; (2) Edwin had told her he would never seek a dissolution of marriage; (3) Edwin made misrepresentations and fraudulent statements claiming “the value of his 5,000 shares of Dur-O-Wal Corporation was $142,000 when in fact his stock in the corporation was sold in 1987 for $2,500,000”; and (4) the court did not have jurisdiction to divide property in an action for legal separation.

Edwin denied all allegations of fraud and misrepresentation. Edwin stated Barbara was represented by counsel who knew of the attempts to sell the company. Edwin also stated that all company records and assets had been open for investigation at all times. Edwin concluded Barbara’s claimed lack of knowledge as to the fair-market value of the Dur-O-Wal stock was due to her own failure to exercise any diligence in discovery.

On August 24, Edwin filed a motion for summary judgment claiming Barbara’s section 2 — 1401 petition was meritless. The court denied the motion, finding material issues of fact existed as to whether Edwin had misrepresented the value of Dur-O-Wal.

On December 6, Edwin filed a “Motion for Entry of Order” abandoning his objections to Barbara’s petition and requesting the court to grant Barbara’s section 2 — 1401 petition vacating the entire judgment of legal separation which incorporated the Agreement therein. The court set the matter for hearing. At the January 19, 1989, hearing, Barbara presented an alternative order vacating only the provision of the Agreement containing the valuation of Dur-O-Wal. Edwin argued Barbara’s allegations of lack of understanding, coercion, duress, and unconscionability addressed the entire agreement and, therefore, the entire agreement should be vacated. Alternatively, Edwin argued that, if the court chose to selectively vacate only a portion of the Agreement, the court should vacate all of article V entitled “Property Division” instead of only one paragraph of the article.

The court noted Edwin had withdrawn his objections to Barbara’s section 2 — 1401 petition. With respect to the Dur-O-Wal stock valuation, the court found:

“That in the aforementioned settlement agreement, 5000 shares of the capital stocks of Dur-O-Wal Corporation were valued at $142,000.00 and distributed to the Respondent, EDWIN C. PARKER, SR., as part of the division of the marital property; that said valuation is patently incorrect as indicated by the sale of said stock in the fall of 1987 for approximately $4,083,000.00 in cash plus payments and other benefits as outlined in the ‘Consulting and Non-Competition Agreement’.”

The court also found the severability clause contained in the Agreement provided authority to selectively vacate one paragraph of the Agreement. The trial court ordered:

“That the property settlement agreement incorporated in the said judgment for legal separation be and the same is hereby vacated as to the valuation of the 5,000 shares of Dur-O-Wal valuation and the distribution of the same between the parties.
That this cause be and the same is set for hearing as to the valuation of said stock in Dur-O-Wal Corporation and for a determination as to the distribution of said asset between the parties hereto.”

Edwin filed a motion to reconsider which the court denied. On June 13, the court clarified the issues for trial. The court set the relevant date for valuation of Dur-O-Wal and other property as December 1986. The court also stated it would consider the circumstances of the parties. The court noted its final decision would be based upon the factors in sections 502 and 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, pars. 502, 503) as of the time of the judgment of legal separation.

Thereafter, the court held a trial on the issues of the value of DurO-Wal in December 1986 and whether this value should result in an additional distribution to Barbara. The court heard extensive testimony as to the attempts to sell Dur-O-Wal and the value to be attributed to Dur-O-Wal as of December 1986. Barbara also testified as to her present financial condition. She also testified she actively participated in the negotiations leading up to the settlement agreement. Additionally, Edwin provided testimony as to his present financial condition. The court also heard expert testimony as to the value of the maintenance-support benefits package provided to Barbara under the Agreement.

On March 22, 1990, the court entered an order dissolving the parties’ marriage. The court found the fair-market value of Edwin’s interest in Dur-O-Wal as of December 1986 to be $2.0025 million. The court also found Barbara had no meaningful choice when entering into the settlement agreement as the additional $1.86 million in fair-market value of Dur-O-Wal ($2.0025 million fair-market value— $142,000 disclosed book value) was undisclosed to her. The court also found the resulting economic circumstances unreasonably favored Edwin. The court concluded the Agreement was unconscionable necessitating an additional distribution of $520,800 to Barbara. The court ordered Edwin to pay Barbara’s attorney fees and costs in bringing the petition.

On April 17 Edwin filed a motion to reconsider, and on July 5 Edwin filed an amended motion to reconsider. Edwin alleged the court’s judgment of dissolution was based solely upon findings of fact and rulings which went beyond the scope of the two issues the court had previously determined were to be litigated at trial. Additionally, Edwin alleged he attempted to, but was denied an opportunity to, present evidence which constituted a meritorious defense to the court’s determinations. These additional findings concerned Edwin’s misrepresentation of the value of his Dur-O-Wal stock, Barbara’s lack of a meaningful choice in entering into the Agreement, and the Agreement’s unconscionability requiring an additional distribution to Barbara. Also, Edwin claimed the court failed to make a finding as to the value of the “benefits-support package” awarded to Barbara. Edwin also challenged the court’s award of attorney fees. Edwin’s prayer for relief asked the court:

“A. For the entry of an Order vacating the award to BARBARA T. PARKER of $520,800;
B. For the entry of an Order vacating the award of attorneys’ fees to counsel for BARBARA T. PARKER; and
C. For the entry of an Order denying any and all fees and costs to COOPERS & LYBRAND, and assessing against BARBARA T. PARKER the fees and costs incurred by EDWIN C. PARKER as a result of COOPERS & LYBRAND’S involvement in this cause.
D. For such other, further and different relief as this Honorable Court deems just.”

On August 21, the court granted Edwin’s amended motion to reconsider with respect to attorney fees and costs. The court denied the remainder of the motion. Edwin timely appeals from the court’s or-tiers of March 22 and August 21, 1990. Barbara timely cross-appeals from these same orders.

We first address Barbara’s contention that Edwin may not attack the trial court’s decision to grant Barbara’s section 2 — 1401 petition as Edwin did not timely appeal from the court’s ruling. Barbara asserts the trial court granted her petition and vacated a portion of the earlier judgment on January 19, 1989. The court denied Edwin’s motion to reconsider on March 16, 1989. Barbara argues the granting of a section 2 — 1401 petition is a final and appealable order, and Edwin’s failure to timely appeal this decision precludes him from attacking it now.

Edwin claims the trial court did not enter a final and appealable order on January 19, 1989. Edwin argues the court did not make a final determination on Barbara’s petition until March 22, 1990, when the court ordered an additional distribution of property to Barbara. Therefore, Edwin contends his appeal of this issue is timely.

Supreme Court Rule 304(b)(3) provides:

“The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
* * *
3. 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(b)(3).)

An order from which an appeal may be taken may not be reviewed on appeal from a subsequent order entered in the same cause. (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 673-74.) A party who chooses to proceed to trial instead of directly appealing an order vacating a prior judgment is precluded from attacking the order vacating the initial judgment after the subsequent trial and judgment. Johnson, 47 Ill. App. 3d at 674; In re Marriage of Flatow (1981), 102 Ill. App. 3d 859, 862.

On January 19, 1989, the trial court entered an order stating in pertinent part: “That the property settlement agreement incorporated in said judgment for legal separation be and the same is hereby vacated as to the valuation of the 5,000 shares of Dur-O-Wal.” Edwin claims the court explained its ruling during the hearing on his motion to reconsider and indicated the vacatur was not complete. Therefore, Edwin argues the court’s order was not appealable.

During the hearing on Edwin’s motion to reconsider, the trial court stated:

"One point of clarification must be stated in this record. When this Court ruled that the issue of the evaluation and distribution of the Durawall [sic] company was to be the focus of the further hearings, I did not automatically mean that this Court would then award a portion of the proceeds of the sale of the company to Mrs. Parker. Rather the court will evaluate — the Court will address the evaluation of the company and the distribution of the award with a full review of what Mrs. Parker has been awarded under the settlement agreement; and then if the Court should find it necessary and appropriate in accordance with the factors of 503 will either make an additional distribution to Mrs. Parker or deny an additional distribution to Mrs. Parker.”

We determine the court’s explanation of its ruling does not indicate the January 19 vacatur was not complete. The trial court clearly stated in its January 19 order that it was vacating a portion of its earlier judgment. In its later explanation of that ruling, the court was simply pointing out Barbara may not win on the merits at trial. This statement is applicable to any case in which a court vacates a prior judgment. A hearing on a petition to vacate does not determine the merits of the final disposition.

Edwin argues he did not have anything to appeal until the court changed its prior distribution to Barbara. Supreme Court Rule 304(b)(3) renders decisions on section 2 — 1401 petitions final and appealable so a party whose judgment was wrongly vacated can immediately appeal instead of wasting judicial resources by going through a wholly unnecessary trial. The fact that the court may enter an identical judgment after a trial on the merits is irrelevant. Edwin did not timely appeal from a final and appealable judgment. Therefore, this court is without jurisdiction to review the trial court’s order granting Barbara’s section 2 — 1401 petition.

Disregarding the above jurisdictional defect, there is another defect which precludes this court from reviewing the court’s grant of relief pursuant to Barbara’s section 2 — 1401 petition. Edwin’s notice of appeal states he is appealing from the March 22 and August 21, 1990, orders of the trial court. The March 22 order was a judgment on the merits after trial, and the August 21 order denied Edwin’s motion to reconsider the March 22 judgment. Neither order had anything to do with the January 19 order vacating the prior judgment as this decision was already the law of the case. The scope of this court’s jurisdiction is fixed by the notice of appeal. (Wells v. Kern (1975), 25 Ill. App. 3d 93, 98.) Edwin’s notice of appeal contained no reference to the January 19, 1989, order. Therefore, since we have rejected Edwin’s claim that the January 19 order was not final, this court lacks jurisdiction to review that order. See In re Marriage of Kondos (1982), 109 Ill. App. 3d 615, 619; 134 Ill. 2d R. 303(c)(2).

Edwin next argues the trial court erred in awarding $520,800 to Barbara as an additional distribution. Edwin claims the court’s findings that: (1) Edwin had understated the value of the Dur-O-Wal stock; (2) the value of the stock was undisclosed or unknown to Barbara; (3) Barbara had no meaningful choice when entering into the Agreement; and (4) the Agreement was unconscionable are all against the manifest weight of the evidence.

A review of the trial court’s order and its memorandum opinion indicates that it did make the above findings. As the trial court indicated in its January 19, 1989, order vacating the prior judgment, the only issues to be resolved at trial were the value of the Dur-O-Wal stock and the distribution of the stock between the parties. While the above findings are relevant and would have been very helpful in determining whether to reject the settlement agreement of the parties (see Ill. Rev. Stat. 1989, ch. 40, par. 502), as previously stated, Edwin did not timely appeal from the trial court’s lack of appropriate findings during the hearing to vacate. The factual findings noted above were only germane to the order of vacation and had no bearing on the two issues before the court at trial concerning final disposition.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) sets forth factors to be considered by the court when distributing property. (See Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) These factors include the value of the property and the economic circumstances of each spouse when the division of property is to become effective. (Ill. Rev. Stat. 1989, ch. 40, pars. 503(d)(2), (d)(4).) Any misconduct by the parties is not to be considered when distributing property. See Ill. Rev. Stat. 1989, ch. 40, par. 503(d).

Upon a review of the record, we conclude the court’s distribution of property was not based solely upon the proper factors as set forth in section 503 but was influenced by the court’s impression of Edwin’s alleged misconduct as evidenced by the court’s findings. The court should not have considered this evidence in apportioning the property between the parties. The court’s findings were irrelevant and, as discussed below, were against the manifest weight of the evidence. Edwin was prejudiced by these errors, and this matter must be remanded for a redistribution of the proceeds from the sale of the Dur-O-Wal stock consistent solely with the considerations set forth in section 503(d) of the Act.

Neither party has claimed on appeal that the trial court erred in determining the value of the Dur-O-Wal stock. Therefore, the trial court’s finding as to the value of the stock is the law of the case, and the only issue to be decided on remand is the proper distribution of the asset.

We now turn to Barbara’s cross-appeal. Barbara first contends the court erred in awarding her $520,800 as an additional distribution. As stated above, the distribution issue must be addressed on remand. Therefore, we need not review Barbara’s claims at this point.

Barbara also contends the court’s denial of her request for attorney fees was error. Barbara claims Edwin precipitated the need for the section 2 — 1401 proceedings by not being “honest and up front concerning the value of Dur-O-Wal when he negotiated the original” Agreement. Barbara also argues that “the law is equally as clear that[,] in a situation where a party necessitates legal proceedings, Section 508B [sic] must be expanded to award fees to aggrieved spouses without regard to their respective financial abilities to pay.” Barbara argues the trial court erred in determining that section 508(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)) did not apply to the case at bar.

Section 508(b) of the Act provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(b).)

The three cases cited by Barbara, In re Marriage of Cotton (1984), 103 Ill. 2d 346, In re Marriage of Ziemer (1989), 189 Ill. App. 3d 966, and Kuhns v. Kuhns (1972), 7 Ill. App. 3d 884, do not support her position as none of those cases were decided under section 508(b).

The above section applies to proceedings to enforce a judgment. Barbara’s section 2 — 1401 petition is a proceeding to vacate a judgment, not a proceeding to enforce a judgment. Additionally, we find no reason to “expand” section 508(b) to cover the situation at bar as the ability to receive fees in connection with the bringing of a section 2 — 1401 petition is expressly provided for in section 508(a)(4). (See Ill. Rev. Stat. 1989, ch. 40, par. 508(a)(4).) The trial court did not err in finding that section 508(b) of the Act did not apply to the case at bar.

An award of attorney fees is within the sound discretion of the trial court and -will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299.) The party seeking fees must show an inability to pay the fees and an ability of the other spouse to pay the fees. Bussey, 108 Ill. 2d at 299-300.

In the case at bar, it appears Edwin clearly had the ability to pay Barbara’s attorney fees. However, it is not clear that Barbara could not pay her attorney fees. Furthermore, an additional consideration in awarding attorney fees is the identity of the party who precipitated the need for the legal proceedings. (See Cotton, 103 Ill. 2d at 360-62.) Barbara argues that it was Edwin’s nondisclosure and dishonesty concerning the value of the Dur-O-Wal stock that required her to reopen the proceedings.

Edwin disclosed in his financial statement and schedule of assets that the book value of his stock was $142,000. Edwin also disclosed he was attempting to sell the stock for more than book value. It is elementary that book value rarely equals fair-market value. (See In re Marriage of Reib (1983), 114 Ill. App. 3d 993, 1000.) Fair-market value is defined as the price a willing buyer will pay a willing seller in a voluntary transaction. (In re Estate of Voss (1973), 55 Ill. 2d 313, 315.) Book value is generally the cost of an asset. It is axiomatic that the cost of an asset is rarely its fair-market value at a later date as most assets either depreciate or appreciate in value. This court is bemused that, when presented with the book value of the stock, Barbara, or her attorney, did not investigate or make further inquiries as to the fair-market value of the stock.

There is no evidence to suggest the book value Edwin ascribed to the stock was inaccurate. There is no evidence Edwin ever withheld any information or documents with which the fair-market value of the stock could have been ascertained. Accepting Barbara’s argument, Edwin would have an affirmative duty to have his stock “appraised” and then disclose this appraisal to Barbara. Barbara provides no authority for the imposition of such a duty. A person may not avail himself of the remedy provided in section 2 — 1401 unless he can establish that, through no fault of his own, the claimed error of fact was not made available to the trial court in the initial proceeding. (See Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.) A section 2— 1401 petition is not intended to relieve a party from the consequences of his own negligence or mistake. Brockmeyer, 18 Ill. 2d at 505; In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929.

It was Barbara’s fault the fair-market value of the stock was not presented to the trial court in the initial action. There was no established misrepresentation or dishonesty by Edwin. Edwin’s actions in no way necessitated the section 2 — 1401 proceedings. We find that it was Barbara who precipitated the legal proceedings in this matter. It was Barbara who sought to vacate a prior judgment. As it is not clear to this court Barbara was unable to pay her attorney fees, and we have found it was Barbara who initiated the instant proceedings, we determine the trial court did not abuse its discretion in denying Barbara’s request for attorney fees.

For the foregoing reasons, the decision of the trial court in granting Barbara’s section 2 — 1401 petition is not reviewable by this court. The decision by the trial court concerning attorney fees is affirmed. The court’s distribution of the proceeds of the sale of the Dur-O-Wal stock is reversed, and the cause is remanded to the trial court for the determination of the proper distribution of the proceeds from the sale of the Dur-O-Wal stock based upon section 503 given the value ascribed to the stock by the trial court of $2,002,500 in the prior proceedings.

Affirmed in part; reversed in part and remanded.

DUNN and NICKELS, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE ex rel. JAMES E. RYAN, State’s Attorney for Du Page County, Plaintiffs-Appellants, v. THE CITY OF WEST CHICAGO et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0093
    Opinion filed July 19,1991.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Carole R. Doris, and George J. Sotos, Assistant State’s Attorneys, of counsel), for appellants.
    Joan S. Kato and Lynn Marie Pruss, both of Bell, Boyd & Lloyd, of Oak Brook, and Robert D. Greenwalt, of West Chicago (Larry Thompson, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, James E. Ryan, the State's Attorney of Du Page County, filed a complaint in quo warranto against defendants, City of West Chicago (City) and Du Page Airport Authority (Authority). Plaintiff appeals from an order of the circuit court of Du Page County granting with prejudice motions to dismiss filed by the City and the Authority. On appeal, plaintiff contends that: (1) under section 18 — 103 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103), the circuit court was not permitted to consider motions to dismiss a quo warranto complaint which generally challenged the authority of defendants to undertake certain actions, and (2) the circuit court erroneously concluded that the complaint was not a proper quo warranto complaint. We reverse and remand.

Plaintiff attached to his complaint a copy of an annexation agreement entered into by the City and the Authority on September 17, 1990. The agreement states in part as follows. On September 14, 1990, the Authority presented a petition requesting annexation of a 1,706-acre tract of land which it owned by the City. The City agreed not to limit by ordinance any of the statutory powers conferred upon the Authority in “An Act in relation to airport authorities” (Act) (Ill. Rev. Stat. 1989, ch. 15½, par. 68.1 et seq.). This would enable the Authority, among other things, to continue maintaining a security force for police and fire protection. The City also agreed to refrain from regulating the operation of Du Page Airport and imposing certain types of restrictions regarding the airport or airport land.

The agreement further provided that the Authority would adopt a building code at least as stringent as the City code and that the City would not require any building permit or fees for any structure owned by the Authority and used for airport purposes. Additionally, the City agreed to pay the Authority one-half of all municipal retailer’s occupation, sales, and use tax revenue collected by the City because of goods sold on the Authority’s property. The agreement had other provisions, including sections on water and sewer service, roads and drainage, and well sites. It also stated that the City would consider issuing revenue bonds to help develop the Authority’s property.

Count I of plaintiff’s complaint is directed against the City. Under the heading, “Question Presented,” it states as follows:

“There is a legitimate public concern whether the City has unlawfully exceeded its statutory authority by annexing the Du Page Airport and by the terms of the annexation agreement whereby the City delegates to the Authority its rights and authority: (1) to exercise certain of the City’s police powers, including but not limited to, land use regulation, building inspection and permitting, and other licensing and public service duties and powers; and (2) to pay to the Authority a sum equal to fifty percent of the Municipal Retailer’s Occupational [sic] taxes and other sales and use taxes collected by the City by virtue of goods sold on or at the Authority’s property.”

Plaintiff then prayed that the court require the City to answer the complaint and show by what lawful authority and warrant it exercised the above powers. If the City was unable to do so, plaintiff prayed for a judgment ousting and expelling the City from the exercise of those powers.

Count II of the complaint was directed against the Authority. Under the heading, “Question Presented,” it states as follows:

“There is a legitimate public concern whether the Authority has unlawfully exceeded its statutory powers by: (1) annexing into West Chicago and by entering into an annexation agreement by which the Authority presumes to exercise certain municipal police powers, including but not limited to, land use regulation beyond “airport hazard” zoning, building inspection and permitting, and other licensing and public service duties and powers; and to accept allocation of sales tax and any other use taxes in contravention of Article 9, Section 2 of Illinois Constitution; and (2) by raising and expending public funds (including the issuance of bonds) for the purpose and operation of property for recreational, commercial and other uses unrelated to airport purposes.”

Plaintiff prayed in this count that, if the Authority was unable to show by what lawful warrant and authority it exercises the above powers, the court enter a judgment ousting and expelling it from exercising them.

Both the City and the Authority filed motions to dismiss in which they contended plaintiff’s complaint was not a proper quo warranto action because the terms of an annexation agreement may not be challenged through quo warranto proceedings. Plaintiff filed a motion to strike the motions to dismiss on the basis that if a quo warranto complaint does not expressly set forth the basis to the challenge of defendant’s claimed right, section 18 — 103 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103) requires defendant to file an answer disclaiming or justifying its exercise of the claimed right. The trial court denied the motion to strike and dismissed both counts of the complaint with prejudice. Plaintiff now appeals.

It is clear that a complaint in a quo warranto action does not have to set forth the basis of plaintiff's challenge but needs only to allege that defendant is asserting the claimed right without lawful authority. (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103; People ex rel. Nelson v. Village of Long Grove (1988), 169 Ill. App. 3d 866, 871.) Furthermore, section 18 — 103 of the Code states in part as follows:

“If the plaintiff elects to set forth expressly in the complaint the grounds for an attack on the defendant’s claimed right, the defendant may answer the complaint or present a motion directed thereto as in other civil actions, but if the complaint is in general terms, as provided in Article XVIII of this Act, the defendant shall by answer disclaim or justify, and, if the defendant justifies, shall set out the facts which show the lawful authority to exercise the right claimed.” Ill. Rev. Stat. 1989, ch. 110, par. 18 — 103.

Since the above provision is found in article XVIII of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101 et seq.), which is entitled “Quo Warranto,” it is evident that section 18 — 103 applies only to quo warranto complaints. If the language of a statutory provision is unambiguous, the plain and ordinary meaning of that language will be given effect. (People ex rel. Ryan v. Village of Villa Park (1991), 212 Ill. App. 3d 187, 191.) Here, the statutory language could not be clearer. Section 18 — 103 allows motions to dismiss complaints to be brought only if the complaint expressly sets forth the grounds for an attack on defendant’s claimed right. If, however, the complaint does not do so and is phrased in general terms, defendant must by answer either disclaim or justify. (People ex rel. Henderson v. Redfern (1966), 75 Ill. App. 2d 196, 200.) It is readily apparent from the language of section 18 — 103 that motions to dismiss quo warranto complaints cannot be considered under the aforementioned circumstances.

The Authority asserts that the result of such a conclusion is that any pleading concerning any matter which is filed by the Attorney General or a State’s Attorney on behalf of the People of the State of Illinois and is entitled “Complaint in Quo Warranto” will be free from attack by a motion to dismiss as long as general allegations are made. We disagree. In determining the nature of a pleading or a motion, courts are not bound by the title given to the document by a party; instead, the substance of the document will be examined. See Maas v. Cohen Associates, Inc. (1983), 112 Ill. App. 3d 191, 194 (document entitled “motion for injunction” would be regarded as complaint and motion to strike that filing would be regarded as a motion to strike a complaint).

Section 18 — 101 of the Code, which sets forth the grounds for obtaining quo warranto relief, states as follows:

“A proceeding in quo warranto may be brought in case:
(1) Any person usurps, intrudes into, or unlawfully holds or executes any office, or franchise, or any office in any corporation created by authority of this State;
(2) Any person holds or claims to hold or exercise any privilege, exemption or license which has been improperly or without warrant of law issued or granted by any officer, board, commissioner, court, or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license;
(3) Any public officer has done, or allowed any act which by the provisions of law, works a forfeiture of his or her office;
(4) Any association or number of persons act within this State as a corporation without being legally incorporated;
(5) Any corporation does or omits to do any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law;
(6) Any railroad company doing business in this State charges an extortionate rate for the transportation of any freight or passenger, or makes any unjust discrimination in the rate of freight or passenger tariff over or upon its railroad.” Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101.

Since section 18 — 101 sets forth the grounds for quo warranto relief, a complaint which fails to allege one or more of the above grounds cannot be considered a complaint in quo warranto. Thus, the Authority’s concern that the Attorney General or a State’s Attorney could evade pleading requirements by mislabeling a pleading as a quo warranto complaint is unfounded.

In their respective motions to dismiss, the City and the Authority contended that while a quo warranto complaint may be filed to allege that a municipality failed to file the appropriate statutory procedures for annexation (see Ill. Rev. Stat. 1989, ch. 24, par. 7— 1 — 1 et seq.), a quo warranto action may not be filed to challenge provisions of an annexation agreement. If plaintiff’s complaint was not a proper quo warranto action under section 18 — 103, then the motions to dismiss could have been considered by the trial court. The City attached exhibits to its motion, including a copy of the petition for annexation and its annexation ordinance, to show that it had complied with the procedural annexation requirements. The trial court agreed with the above contention and granted the motions to dismiss, relying on the holding of this court in People ex rel. Citizens for a Better Bloomingdale v. Village of Bloomingdale (1976), 37 Ill. App. 3d 583.

First of all, we note that, in count II, plaintiff alleges that it was beyond the Authority’s statutory powers to have its land annexed into the City, thus challenging the validity of the annexation itself, not the terms of the annexation agreement. A quo warranto complaint is the proper method of challenging a completed annexation. (In re Petition of Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 543.) Therefore, at the very least, the above allegation should have withstood the motions to dismiss.

Furthermore, defendants’ assertion that a quo warranto complaint is never an appropriate means of challenging an annexation agreement, as opposed to an annexation, is without merit. Section 18 — 101(5) of the Code expressly permits a quo warranto complaint to be filed against a corporation which “exercises powers not conferred by law.” (Ill. Rev. Stat. 1989, ch. 110, par. 18 — 101(5).) This provision clearly applies to municipal corporations such as the City and Authority, as our supreme court has held that a quo warranto action may be brought in an attempt to oust a municipal corporation from unlawfully exercising assumed powers. People v. City of Chicago (1952), 413 Ill. 83, 86; see also People ex rel. Gage v. Village of Wilmette (1940), 375 Ill. 420, 424 (word “corporation” in quo warranto act construed as including municipal corporation).

If, in an annexation agreement, a municipal corporation agrees to do something which it is not empowered to do under the law, we can perceive no reason why this could not be challenged in a quo warranto action. The complaint in this case alleges that, in the annexation agreement, the City has agreed to delegate certain of its powers to the Authority and share certain tax revenues. The complaint further states that a question exists as to whether the City has a legal right to delegate, and the Authority a legal right to accept, those powers, and whether the tax-sharing arrangement is illegal. Thus the complaint alleges that both the City and Authority have exercised powers not conferred by law, and it is a proper quo warranto complaint under section 18 — 101(5).

The Village of Bloomingdale case, relied upon by defendants and the trial court, is distinguishable and does not dictate the result urged by defendants. In that case, a citizens’ group was denied leave to file a quo warranto complaint seeking to challenge an annexation made pursuant to an annexation agreement. The court noted that plaintiffs did not allege any failure to comply with the statutory requisites for annexation. Instead, the court stated, “The thrust of *** plaintiffs’ proffered complaint for writ of quo warranto was to challenge the wisdom of the Board’s action in reference to the annexation agreement.” (Village of Bloomingdale, 37 Ill. App. 3d at 585.) In upholding the trial court’s denial of leave to file a complaint in quo warranto (such leave is required if the complaint is not filed by the Attorney General or a State’s Attorney), the court stated, “We conclude that the exercise of the defendant’s officials discretion in the performance of its authorized powers is not subject to challenge by quo warranto.” 37 Ill. App. 3d at 587.

In the case at bar, plaintiff raises no challenge to the wisdom of the annexation agreement. Instead, the thrust of the complaint is that the City officials did not have the authority to delegate certain of its powers to the Authority and the Authority does not have the right to exercise those powers. Furthermore, the complaint states that the City and the Authority do not have the legal right to share tax revenues. This is not a challenge to discretionary actions taken by the City and Authority; instead, it is clearly a challenge to their authority to take certain actions as required by the annexation agreement. The concerns raised in Village of Bloomingdale are not present here.

Since plaintiffs’ complaint is a proper complaint in quo warranto, the trial court erred by granting the motions to dismiss, and its dismissal order must be reversed. Additionally, those motions should have been stricken and should not have been considered under section 18 — 103 of the Code because the complaint is phrased in general terms and does not specify the basis for an attack on defendants’ exercise of authority. We therefore reverse the order of the circuit court of Du Page County and remand the cause with instruction to order defendants to file answers disclaiming or justifying the actions alleged in the complaint.

Reversed and remanded with directions.

INGLIS and BOWMAN, JJ., concur.