text:
    DAVID CHAPMAN et al., Plaintiffs-Appellees and Cross-Appellants, v. DENNIS BROKAW et al., Defendants-Appellants and Cross-Appellees.
    Third District
    Nos. 3 — 91—0852, 3 — 91—0879 cons.
    Opinion filed February 28, 1992.
    Rehearing denied March 25, 1992.

      Timothy L. Bertschy, of Heyl, Royster, Voelker & Allen, of Peoria (Matthew S. Hefflefinger, of counsel), for Dennis Brokaw and Bonnie Brokaw.
    Gary L. Morris, of Peoria, for David Chapman and Marsha Chapman.
   JUSTICE SLATER

delivered the opinion of the court:

This appeal involves a contract dispute between landlords, David and Marsha Chapman (collectively Chapman or the Chapmans), and tenants, Dennis and Bonnie Brokaw (collectively Brokaw or the Brokaws), concerning an oral lease agreement and option to purchase real estate. Chapman sued Brokaw in a forcible entry and detainer action. Brokaw counterclaimed. After a jury trial, Chapman was awarded possession of the real estate. The jury awarded Brokaw a total of $10,000 in damages for breach of the covenant of quiet enjoyment and for breach of the option. The trial judge, sitting in equity, denied Brokaw’s request for specific performance of the option contract but entered judgment on the verdicts. Both Chapman and Brokaw appeal. We affirm in part, reverse in part, and remand.

On September 28, 1988, Dennis Brokaw met with David and Marsha Chapman to discuss the terms of a lease whereby Brokaw would rent a house from the Chapmans for one year at a monthly rental of $610. Their agreement included an option to purchase the house at anytime until September 1, 1989, for the sum of $66,000. Brokaw gave the Chapmans $1,410, which represented rent for the first and last months plus a security deposit of $190. A formal lease was to be drawn up and signed within 30 days, but was never done. At the September 28 meeting, Marsha Chapman wrote out a receipt for the tendered $1,410. The receipt provided as follows:

“Sept 28, 88
Received of Dennis Brokaw fourteen-hundred & ten dollars. 1st month rent & last month & $180 [sic] security deposit. 1 yr lease to be signed within 30 days.
/s/ Marsha A. Chapman.
Purchase price of $66,000 is good thru August of 1989.”

The Brokaws moved into the house in October of 1988. On June 20, 1989, the Brokaws attempted to exercise the option to purchase by sending to the Chapmans a document signed by the Brokaws entitled “Contract to Purchase Real Estate” along with a $1,000 earnest money check. On June 22, 1989, Chapman returned the check and served Brokaw with a notice to quit the premises by August 1, 1989. The Brokaws remained in the house and paid rent for July.

During July, the parties renegotiated for the sale of the house, and a closing date was set for August 28, 1989. The Brokaws failed to appear at the scheduled closing. In September of 1989, the Brokaws tendered $3,000 to the Chapmans as earnest money to purchase the house. On October 3, 1989, the Chapmans filed a forcible entry and detainer action seeking possession and $610 in back rent for August, but did not immediately serve the Brokaws with notice of the action. On October 17, Brokaw tendered another $4,000 to Chapman. Thereafter Brokaw was served with summons in the forcible entry and detainer action. Brokaw denied Chapman’s right to possession and filed a counterclaim for (1) a declaratory judgment that the June 22 notice to quit was invalid, (2) damages for breach of the covenant of quiet enjoyment, and (3) specific performance of the option agreement.

Brokaw has not paid rent since August of 1989 except for $610 which was paid in 1991. During the course of litigation, the Chapmans twice amended their complaint to request additional back rent. At trial, the court refused to allow Chapman to introduce evidence that Brokaw was assisted by an ex-attorney in preparation for litigation and in negotiations for the purchase of the property. The trial judge also excluded evidence of prior unrelated eviction and forfeiture proceedings brought against Brokaw. After Chapman had rested, the court granted the Brokaws leave to amend their counterclaim to seek damages for breach of the option agreement.

Two special interrogatories were submitted to the jury. In response, the jury found: (1) that the parties had entered into a one-year lease in September of 1988; and (2) that the Chapmans had breached the covenant of quiet enjoyment. The jury awarded possession of the property to Chapman. The jury awarded Brokaw $1,000 in damages for breach of the covenant of quiet enjoyment and $9,000 for breach of the option contract. The trial judge, exercising his chancery powers, denied Brokaw’s request for specific performance.

We first address the issue of whether the jury’s finding that the parties had a valid one-year lease was against the manifest weight of the evidence. The Brokaws contend that on September 28, 1988, the parties entered into a one-year lease agreement with an option to buy. The Chapmans argue that because no formal lease was signed by the parties, Brokaw had only a month-to-month tenancy terminable upon 30 days’ notice.

In Elinois, four elements are required to create a valid lease: (1) a definite agreement as to the extent and bounds of the property leased; (2) a definite and agreed term; (3) a definite agreement as to the rental; and (4) the time and manner of payment. (Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.) Initially, we note that Chapman has not alleged that the September 28, 1988, agreement is unenforceable under the Frauds Act (Statute of Frauds) (Ill. Rev. Stat. 1989, ch. 59, par. 2). The Statute of Frauds is an affirmative defense and must be raised by the party relying on it. (Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226.) The statute does not act sua sponte to invalidate oral contracts (Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482), and when it is not properly invoked by the pleadings as a defense, a verbal contract falling within the scope of the statute may be enforced. Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458.

Chapman claims that the September 28 agreement contained a condition precedent which was never met. Chapman points to the provision in the receipt which states “one year lease to be signed within 30 days.” At trial, David and Marsha Chapman testified that they did not intend to sign a lease and be bound until they received credit references from the Brokaws. Dennis Brokaw denied that credit references were requested.

The fact that the parties may contemplate a more formal agreement will be executed in the future does not necessarily render prior agreements mere negotiations where it is clear that the ultimate contract will be based on terms substantially similar to those in the previous agreement. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.) The question is whether the parties intended the prior agreement to be binding or whether they considered a formal writing to be a condition precedent to the vesting of rights and duties. (Interway, 85 Ill. App. 3d at 1099, 407 N.E.2d at 619.) If the parties intended the September 28 agreement to “be contractually binding, that intention would not be defeated by the mere recitation in the writing that a more formal agreement was yet to be drawn.” Interway, 85 Ill. App. 3d at 1098, 407 N.E.2d at 618.

The phrase “one year lease to be signed within 30 days” does not evidence a clear intention that a formal lease was to be a condition precedent. Where the language of a writing is ambiguous and the parties disagree about the facts surrounding their negotiations, the determination of the writing’s meaning and the intention of the parties is a question of fact. (Interway, 85 Ill. App. 3d at 1098, 407 N.E.2d at 619.) In this case, the jury determined that the parties had a valid one-year lease. Whether credit references had been requested and whether the parties intended to be bound as of September 28 were questions of fact which hinged on the credibility of the witnesses. We find that the jury’s determination that the parties had a one-year lease was not against the manifest weight of the evidence.

The jury also determined that Chapman breached the oral option agreement which was part of the lease. Both parties testified that at the September 28 meeting they agreed that Brokaw would have the option to purchase the leased property at anytime prior to September 1, 1989, for $66,000. Again, Chapman has not raised the argument that the option agreement is unenforceable under the Statute of Frauds. Chapman contends that the option agreement was not binding because Brokaw gave no consideration in exchange for Chapman’s promise to keep the offer open. We disagree. It is well settled that a promise to pay rent is “sufficient consideration to support [an] option as well as the right of occupancy under the lease, and to bind the lessor, irrespective of the lessee’s lack of obligation to purchase.” Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 552. See also Cole v. Ignatius (1983), 114 Ill. App. 3d 66, 448 N.E.2d 538.

However, while the parties may have had an enforceable option agreement, we do find the jury’s determination that Chapman breached the option agreement to be against the manifest weight of the evidence. The only terms of the option which were agreed upon by the parties were that Brokaw had until September 1, 1989, to purchase the property for $66,000. An option must be exercised in strict accordance with its terms. (Department of Public Works & Buildings v. Halls (1966), 35 Ill. 2d 283, 220 N.E.2d 167.) The only way for Brokaw to exercise the option, according to its terms, was to tender the sum of $66,000 to Chapman prior to September 1, 1989.

On June 20, 1989, Brokaw attempted to exercise the option by sending to Chapman a signed document entitled “Contract to Purchase Real Estate” along with a $1,000 earnest money check. This proposed contract required Chapman to accept a six-month promissory note for $5,000 and give credit against the purchase price for rent paid. It was further subject to Brokaw’s being able to secure financing in the amount of $49,300. The proposed contract clearly added new conditions to the option and therefore did not constitute a valid acceptance of the option. (Department of Public Works & Buildings v. Halls (1966), 35 Ill. 2d 283, 220 N.E.2d 167.) Brokaw never effectively exercised the option. Accordingly, the $9,000 judgment against Chapman for breach of the option is reversed.

Brokaw contends that the trial judge erred in refusing to grant specific performance of the contract to purchase the real estate arising out of the option agreement. An option contract does not become an enforceable contract for sale until the option is effectively exercised in accordance with its terms. (Moehling v. Pierce (1954), 3 Ill. 2d 418, 121 N.E.2d 735.) Because Brokaw never effectively exercised the option in this case, a contract for the sale of the property was never formed. Therefore, there was no contract to specifically enforce. We affirm the judgment of the trial court denying specific performance.

The Chapmans contend that the jury’s finding that they breached the covenant of quiet enjoyment was also against the manifest weight of the evidence. The covenant of quiet enjoyment is implied in all lease agreements. (Blue Cross Association v. 666 North Lake Shore Drive Associates (1981), 100 Ill. App. 3d 647, 427 N.E.2d 270). The Brokaws allege that the Chapmans breached the covenant of quiet enjoyment when the Chapmans pounded on their door, harassed them by phone, circled the property in their car, and wrongfully served them with a notice to quit the premises. Chapman denied these allegations. After hearing extensive testimony and weighing the credibility of the witnesses, the jury found that Brokaw was entitled to $1,000 for breach of the covenant of quiet enjoyment. The jury was in the best position to make a determination on this issue, and this court will not disturb its findings. (Bailey v. Clark (1990), 203 Ill. App. 3d 1017, 561 N.E.2d 367.) We affirm the judgment of $1,000 against the Chapmans for breach of the covenant of quiet enjoyment.

Chapman next contends that the trial court erred in excluding evidence that Brokaw was assisted by an ex-attomey while proceeding pro se and that Brokaw had been involved in prior unrelated court actions for foreclosure and eviction. Determination of the relevancy of evidence is largely within the discretion of the trial court and reversal of its decision is not warranted absent an abuse of that discretion. (Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 464 N.E.2d 751.) We agree with the trial court that the proffered evidence was irrelevant in the instant case. We specifically find that there was no abuse of discretion by the trial court in this regard and that the evidence was properly excluded.

Finally, the Chapmans contend that the jury’s refusal to award them back rent which accrued during the course of litigation was against the manifest weight of the evidence. We agree. The Brokaws argued, and the jury apparently found, that when the Brokaws attempted to exercise the option, their status as tenants terminated, and that they became vendees and were therefore no longer obligated to pay rent. (See Welsh v. Jakstas (1948), 401 Ill. 288, 82 N.E.2d 53.) However, as discussed supra, the Brokaws did not effectively exercise the option to purchase. Therefore, they never became vendees, but rather they remained tenants at all times. We reverse this portion of the judgment and remand for a determination of the appropriate amount of rent due to Chapman. In this regard, on remand, consideration should be given to the $7,000 the Chapmans received from the Brokaws during September and October of 1989.

In summary, we affirm the judgment of the trial judge as it relates to the denial of the request for specific performance. We affirm the judgment for possession of the real estate to the Chapmans. We affirm the judgment of $1,000 against the Chapmans for breach of the covenant of quiet enjoyment. We reverse the judgment of $9,000 for breach of the option agreement. The judgment in favor of Brokaw on the issue of rent is reversed and remanded.

Affirmed in part; reversed in part and remanded.

GORMAN and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUADALUPE GAMBOA, SR., Defendant-Appellant.
    Third District
    No. 3 — 91—0467
    Opinion filed February 28, 1992.

      Robert S. Grossman, of Chicago, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet, and Joan M. Kripke, of Chicago (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Guadalupe Gamboa, Sr., appeals the trial court’s denial of his motion to withdraw his guilty plea. For reasons which follow, we remand to the trial court for further proceedings.

On April 1, 1990, Gamboa pled guilty to unlawful possession with the intent to deliver a controlled substance (count I) (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) and unlawful possession of weapons by a felon (count II) (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1). Before accepting Gamboa’s guilty pleas, the trial court admonished him pursuant to Supreme Court Rule 402. (134 Ill. 2d R. 402.) The court accepted Gamboa’s guilty pleas and found that they were voluntary, informed, and knowingly made by the defendant.

On April 29, 1990, Gamboa filed a motion to withdraw his pleas of guilty. Gamboa asserted various defenses to the two charges. Gamboa also claimed he was taking medication which prevented him from understanding the consequences of his guilty pleas. The trial court denied Gamboa’s motion and set the matter for sentencing.

On June 30, 1990, the trial court sentenced Gamboa to eight years’ imprisonment on count I and concurrently to four years’ imprisonment on count II. The court also imposed a street value fine of $5,040.

At the conclusion of the sentencing hearing, the trial court advised Gamboa concerning his appellate rights. The trial court told Gamboa that it was not necessary for him to file a motion to withdraw his plea of guilty within 30 days following sentencing since Gamboa had previously filed such a motion prior to sentencing. Gamboa proceeded to file his notice of appeal on June 24, 1990, without filing a new motion to withdraw his guilty plea.

The State seeks to dismiss Gamboa’s appeal on the following grounds: (1) he failed to file a motion to withdraw his guilty plea within 30 days following sentencing; and (2) his defense counsel failed to file the certificate required by Supreme Court Rule 604(d). (134 Ill. 2d R. 604(d).) The State asserts these two errors by Gamboa deprive this court of jurisdiction to hear his appeal.

Gamboa admits that: (1) his motion to withdraw his guilty plea was filed before the trial court sentenced him; (2) he did not file another motion to withdraw his guilty plea within 30 days following his sentencing; and (3) his counsel failed to file the requisite Rule 604(d) certificate. Gamboa alleges that it would have been an “exercise in futility” to have filed an additional motion to vacate his guilty plea following his sentencing. Gamboa claims he has substantially complied with Rule 604(d). Therefore, Gamboa argues we should consider his appeal on the merits and not dismiss it. In the alternative, Gamboa requests that we remand the cause to the trial court for further proceedings.

Rule 604(d) establishes the mandatory conditions precedent for an appeal from a defendant’s plea of guilty. (People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) Rule 604(d) provides in relevant part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. *** If the motion is denied, a notice of appeal from the judgment and sentence shall be filed within the time allowed in Rule 606, measured from the date of entry of the order denying the motion.” (Emphasis added.) 134 Ill. 2d R. 604(d).

In Wilk, our supreme court stressed that Rule 604(d) sets forth mandatory procedures which must be strictly followed. Rule 604(d) was enacted to allow a trial court to consider any alleged errors which may have resulted in the defendant’s guilty plea and to make a record for the appellate court to consider on review in cases where the defendant’s claim is disallowed. (Wilk, 124 Ill. 2d at 98, 529 N.E.2d at 222.) Based on Wilk, we find a defendant is allowed no deviation from the statutory procedure required in Rule 604(d). We do not find that substantial compliance with Rule 604(d) is satisfactory to perfect an appeal. Only complete compliance with Rule 604(d) will suffice.

We find that Gamboa’s appeal was not properly perfected because his defense counsel failed to file a Rule 604(d) certificate. Our court recently addressed this same procedural error in People v. Vickery (1991), 207 Ill. App. 3d 574, 566 N.E.2d 495. We held in Vickery that Rule 604(d) mandates the filing of the defense attorney’s certificate before an appeal can be properly perfected. (Vickery, 207 Ill. App. 3d 574, 566 N.E.2d 495.) In Vickery, we remanded the cause to the trial court to allow counsel the opportunity to file the mandatory certificate.

In this appeal, we also find that Gamboa’s motion to withdraw his guilty plea was filed prematurely and did not comply with the mandatory requirements of Rule 604(d). Normally, such a finding would require the dismissal of Gamboa’s appeal. However, in the interest of justice, we must review the trial court’s admonishment to Gamboa concerning his appellate rights. The trial court advised Gamboa as follows:

“Normally, after advising you with respect to your appellate rights, I would tell you that the first thing that you would need to do is file a motion to withdraw your plea of guilty; however, in this case inasmuch as you have already done that prior to the sentencing, and that that [sic] motion was denied, I do not think that you would have to do that in order to perfect your rights to appeal. You have thirty days from this date to file a notice of appeal.”

We find the trial court’s admonition clearly misled Gamboa. Based on the trial court’s analysis of Rule 604(d), Gamboa did not file a new motion to withdraw his guilty plea within 30 days following his sentencing.

Once again, we emphasize that Rule 604(d) reads in pertinent part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (Emphasis added.) 134 Ill. 2d R. 604(d).

Based upon the clear statutory language of Rule 604(d), we find the trial court’s comments were clearly a misstatement of the law and constituted reversible error. We also find Rule 604(d) requires that within 30 days following the date on which the sentence is imposed, the defendant must file in the trial court a motion to withdraw his plea of guilty and vacate the judgment. The filing of that motion is a mandatory requirement of Rule 604(d) which cannot be waived by the trial court. Therefore, we remand this cause to the trial court for further proceedings consistent with this opinion. Based upon our findings, it is not necessary to address the other issues raised by Gamboa.

Remanded.

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


author: JUSTICE STOUDER

text:
    ROBERT SPROWLS, Indiv. and d/b/a Sprowls Oil Company, Plaintiff-Appellant, v. FIRST STATE BANK OF PRINCETON, ILLINOIS, DefendantAppellee.
    Third District
    No. 3 — 91—0558
    Opinion filed February 28, 1992.

      Boyle, Goldsmith, Shore & Bolin, of Hennepin (Roger C. Bolin, of counsel), for appellant.
    Vonachen, Lawless, Trager & Slevin, of Peoria (Stephen A. Kouri, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This is the second appeal of the instant case. Briefly, the facts reveal the defendant, First State Bank of Princeton (Bank), exerted substantial control over a distressed farmer’s account. The plaintiff, Robert Sprowls and the Sprowls Oil Company (Sprowls), alleges the bank enticed him into delivering tractor fuel oil throughout the year 1986 to the farmer by repeatedly reassuring Sprowls that there would be no problem with payment of the account. At the end of 1986, the farmer deposited money generated from a bumper crop into his farm account. The farmer wrote a check to Sprowls on the farm account to pay the fuel bill. Subsequently, the bank dishonored the check and exercised a setoff against the farmer’s account thereby preventing payment to Sprowls but ensuring retention to itself of virtually all of the farmer’s revenues for that year.

The plaintiff filed a five-count complaint. The specific counts and their respective theories alleged were as follows:

Count I — Breach of contract implied in law;
Count II — Breach of contract implied in fact;
Count III — Breach of express, oral contract;
Count IV — Equitable estoppel; and Count V — Third-party beneficiary.

The bank filed a motion to dismiss the complaint. The trial court dismissed counts I and II. Counts III, IV, and V were re-pleaded in an amended complaint. The bank, thereafter, filed a motion for summary judgment as to the remaining counts. The trial court granted the bank’s summary judgment motion. On the previous appeal, we reversed the trial court as to counts I and II, and affirmed as to counts III, IV, and V. (Sprowls v. First State Bank (1990), 204 Ill. App. 3d 514, 561 N.E.2d 1292.) The case was remanded for further proceedings as to counts I and II.

Subsequent to remand, the parties filed cross-motions for summary judgment. The trial court denied Sprowls’ motion but granted the bank’s. As to count I, the trial court held that while the bank may have realized a benefit directly from Sprowls providing fuel resulting in a bountiful harvest, he is in no different position than any other creditor of the farmer and that under Sprowls’ theory there would be a contract implied in law not only with all of the creditors but also with the farmer’s grocer, barber, doctor or lawyer.

As to count II, the trial court found that a contract implied in fact must be drawn from the actions of the parties. The court noted that the farmer ordered the fuel, was billed, and subsequently wrote a check to Sprowls on the farm account. The bank’s intentions and expectations that Sprowls be paid do not imply a contract. The bank did not assign or transfer any security to Sprowls. Accordingly, the trial court reasoned, there was no contract between Sprowls and the bank.

The sole issue in the instant appeal is whether there exists an issue of material fact precluding the granting of summary judgment as to counts I and II. An implied contract is created by law as a result of the parties’ acts. (Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 448 N.E.2d 1016.) Implied contracts are sometimes divided into contracts implied in fact and those implied in law. (Heavy v. Ehret (1988), 166 Ill. App. 3d 347, 519 N.E.2d 996.) A contract implied in fact is one whereby a contractual duty is imposed by reason of a promissory expression which may be inferred from the facts and circumstances and the expressions on the part of the promissor which show an intention to be bound. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614.) Contracts implied in law (quasi contracts) arise notwithstanding the parties’ intentions, result from a duty imposed by law, and are contracts merely in the sense that they are created and governed by principles of equity. Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.

In the instant case, Sprowls alleges to have had various conversations with James Tolan, the bank’s vice-president, in which it is alleged Tolan repeatedly reassured Sprowls that the bank would pay his fuel bill with proceeds from the farmer’s crop. According to the bank, however, it never gave Sprowls any assurance that it would pay the fuel bill before any other creditor. As such, it is readily apparent that the instant case involves great factual inconsistencies. We conclude that this conflict in evidence is sufficient to defeat a motion for summary judgment. Whether the bank’s alleged reassurances to the plaintiff constitute an implied contract in fact or law is for the trier of fact to decide at trial.

Moreover, the bank, relying on Gadsby v. Health Insurance Administration, Inc. (1988), 168 Ill. App. 3d 460, 522 N.E.2d 865, asserts the express contract between Sprowls and the farmer preeludes Sprowls from prevailing under a theory of implied contract. In Gadsby, the plaintiff-employee sued his former employer, ATI Carriage House (ATI), and its insurance claims administrator, Health Insurance Administration (HIA), for, inter alia, breach of contract under both express and implied contract theories. In that case, as part of its employee benefits package, ATI provided health insurance to its current employees but not to its retired employees. Unaware of this distinction in his benefits package, the plaintiff-employee filed an insurance claim for certain medical expenses following his retirement. HIA denied the claim because the ATI plan did not cover employees who did not work at least 30 hours per week. As part of his lawsuit, plaintiff alleged that ATI and HIA breached a contract implied in fact.

Affirming the trial court’s granting of summary judgment in favor of ATI and HIA, the court found that the express contract regarding employees’ benefits did not provide coverage for retired employees; thus, there could not be an express contract involving these parties and an implied contract existing at the same time. In stark contrast, the express contract in the instant case was between Sprowls and the farmer. That contract does not contain any language regarding the rights and obligations of the bank to Sprowls. Therefore, because there is no existing express contract between Sprowls and the bank, Sprowls is not precluded from prevailing under an implied contract theory. We conclude the bank’s reliance on Gadsby is misplaced.

Accordingly, we reverse the judgment of the circuit court of Bureau County and remand for proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and McCUSKEY, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK A. SHACKELFORD, Defendant-Appellant.
    Third District
    No. 3-91-0334
    Opinion filed February 21, 1992.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The trial court found the defendant, Mark A. Shackelford, guilty of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12— 16(d)). It thereafter sentenced him to two years’ probation, conditioned upon his serving 60 days in jail, paying a $200 fine, and paying $292 in witness fees. The defendant appeals, arguing that the court erred in ordering him to pay the $292 cost of transporting two State witnesses to Illinois to participate in the proceedings against him. We affirm.

The record shows in pertinent part that the 14-year-old victim and her 18-year-old aunt, who was also a witness, travelled by train from Denver, Colorado, to Galesburg, Illinois, for the defendant’s trial. The defendant is not contesting the amount spent on transportation or the necessity of transporting the witnesses by train. His contention is that the State’s costs for transporting its witnesses can never be assessed against a defendant.

The defendant notes that the allowance and recovery of costs, being unknown at common law, rests entirely upon the statutory provisions, which must be strictly construed. (People v. Bratcher (1986), 149 Ill. App. 3d 425, 500 N.E.2d 954.) Accordingly, the assessment of costs or fees not authorized by statute is an abuse of discretion. People v. Nicholls (1977), 45 Ill. App. 3d 312, 359 N.E.2d 1095.

Section 13 of division XIV of the Criminal Code of 1874 provides: “When any person is convicted of an offense under any statute, or at common law, the court shall enter judgment that the offender pay the costs of the prosecution. Such costs shall include reasonable costs incurred by the Sheriff for serving any arrest warrants, for picking up the offender from a county other than the one in which he was convicted, and for picking up the offender from any location outside the State of Illinois pursuant either to his extradition or to his waiver of extradition.” Ill. Rev. Stat. 1989, ch. 38, par. 180—3.

The defendant argues that under a strict construction of section 13, the train tickets cannot be said to constitute a cost of prosecution. He therefore concludes that the trial court lacked authority to order him to pay for the tickets.

We find that historically Illinois courts have ruled that witness fees are properly assessed as costs of prosecution. (See Corbin v. People (1893), 52 Ill. App. 355.) More recently, the Fifth District Appellate Court has held that Corbin is still the law in Illinois and witness fees may be properly imposed as part of the costs of prosecution pursuant to section 47 of the Fees and Salaries Act (Ill. Rev. Stat. 1989, ch. 53, par. 65). (People v. Brumkhorst (1980), 80 Ill. App. 3d 815, 400 N.E.2d 472.) Section 47 provides that when an out-of-State witness is required to travel to Illinois to attend a criminal trial, the county treasury shall pay him 20 cents per mile travelled.

In People v. Hanei (1980), 81 Ill. App. 3d 690, 403 N.E.2d 16, the fifth district noted that section 13 does not expressly refer to witness fees as part of the costs to be assessed by the court clerk. The court went on to hold, however, that even though it is apparent that the primary concern of section 47 is the payment of fees to the witness and not the taxing of fees as costs, historical practice and precedent require the clerk to assess as costs all fees of witnesses subpoenaed to testify in a cause. Such fees are then the subject of a judgment against a convicted defendant pursuant to section 13.

We further note that in People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, the Illinois Supreme Court cited Corbin with approval. Although Nicholls is not directly on point, it is analogous to the instant case. The court held in essence that the general language of section 13 may be read in conjunction with other statutes allowing for the payment of specific expenses in criminal trials. If the specific provisions, when read with section 13, evince a legislative scheme to authorize the taxing of those expenses as costs against an unsuccessful criminal defendant, those costs may be properly assessed against such a defendant. In the instant case, we find that when sections 13 and 47 are read together, a legislative scheme to allow the taxing of witness travel expenses as costs is evinced.

We are aware that in People v. Reynolds (1987), 152 Ill. App. 3d 216, 504 N.E.2d 163, the Fourth District Appellate Court took a position which could be construed to be at odds with the general rule that witness fees may be taxed as costs. The appellate court held that the trial court had improperly assessed the State’s expert witness fees as a cost of prosecution. Reynolds is distinguishable, however, on the mere fact that expert witness fees are not the same as witness transportation expenses. More importantly, the Reynolds court reached its conclusion based simply on its observation that section 13 is to be strictly construed. We find the detailed analyses in Hanei and Nicholls more instructive.

For the foregoing reasons, we hold that the trial court properly assessed as costs the State’s expenses in transporting two of its witnesses. Although the defendant does not contest the actual amount, we note that it is far less than the 20 cents per mile allowed under section 47. As such, we find no abuse of discretion in the amount of the fees taxed as costs.

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

Affirmed.

STOUDER and McCUSKEY, JJ., concur.


author: JUSTICE NICKELS

text:
    SCOTT G. SCHUTTLER, Plaintiff-Appellant, v. EUGENE H. RUARK et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0419
    Opinion filed March 4, 1992.

      Roger A. Ritzman, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton, and Linda A. Bryceland, of David A. Novoselsky & Associates, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Huck, Bouma, Martin, Charlton & Zellner, P.C., of Glen Ellyn (James M. Huck, Jr., of counsel), for appellees Eugene H. Ruark and Joseph Butler.
    Marvin S. Berz and Nathan N. Kessler, both of Chicago, and Vescelus, Powell & Stock, of Wheaton (Kevin W. Bloese, of counsel), for appellees Joan Schuttler Hebson, Richard Raymond Hebson, and Kathy M. Mottl.
    David P. Schippers and Jonathan B. Gilbert, both of Schippers & Gilbert, Chartered, of Chicago (Paul J. Bargiel, of counsel), for appellee Petrice S. Miller.
    W. Thomas Powell, of Vescelus, Powell & Stock, of Wheaton, guardian ad litem.

   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Scott Schuttler (Scott), appeals the circuit court’s dismissal of his complaint seeking a declaration of his right to receive income as the “lawful issue” of his adoptive father, Ballard Schuttler, under the testamentary and inter vivos trusts of Ballard’s grandfather, Peter Schuttler III. Scott asserted that the September 1989 amendment of the Instruments Regarding Adopted Children Act (Ill. Rev. Stat. 1989, ch. 40, par. 1652) (hereinafter the amendment) created new substantive rights for adopteds and was applicable to income distributed pursuant to the trusts after that date. The trial court found that our final adjudication of Scott’s rights prior to September 30, 1989 (Fischer v. LaFave (1989), 188 Ill. App. 3d 16), barred his claim based on the doctrines of res judicata and collateral estoppel, that the amendment did not apply to such prior adjudication, that Peter Schuttler III did not intend to include Scott within the class designated “lawful issue,” and that application of the amendment to include Scott in the class of Peter Schuttler Ill’s “lawful issue” would unconstitutionally impair the vested rights of the members of that class. Scott appeals, asserting that: (1) the doctrines of res judicata and collateral estoppel do not apply because the passage of the amendment created new facts rendering this a new and different claim; (2) the amendment is applicable to this proceeding for income distributed after September 30, 1989; (3) the prior adjudication created no vested rights in the class designated “lawful issue”; and (4) the trial court erred in finding the testator intended to exclude Scott from such class. In response, defendants, the trustees and guardian ad litem, further assert that Scott, who was 18 years old and not a “child” at the time of his adoption, is not within the amendment. Scott’s claim is limited to Ballard’s share of the income of the trusts, but, notably, he makes no similar claim as to the eventual distribution of the corpus of the trusts at this time.

In 1940 and 1941, respectively, Peter Schuttler III (testator) executed both a trust indenture and a codicil to his 1939 will, each of which provided for the creation of a trust with essentially identical provisions. Each trust provided a share of the income of the trust for the benefit of the testator’s three grandchildren, Peter V (Peter), Ballard, and Joan and “to their lawful issue them surviving, share and share alike, per stirpes and not per capita.” Upon the deaths of the testator’s wife and son, who were the beneficiaries of the other shares of the trusts, the three grandchildren would receive the entire income of each of the trusts. Both trusts were to terminate 20 years after the death of the last surviving grandchild, with the principal and any accrued undistributed income of the testamentary trust distributed to the “lawful issue” of the grandchildren. The similar proceeds of the inter vivos trust were also to be distributed to the “lawful issue” of the grandchildren, but with the added provision that in default of such issue, the proceeds of the inter vivos trust would be paid to “the heirs-at-law of the Settlor *** as determined by the laws of Illinois in effect at the date of such distribution.”

The testator died in May 1941, and both his wife and son died prior to 1986. Ballard died August 20, 1986, and was survived by his adopted son, Scott, whose natural father’s refusal to consent had prevented Ballard’s adoption of Scott until Scott’s majority. Peter also died sometime prior to August 20, 1986, and was survived by his two natural daughters. At the time of this proceeding, Joan was the only living grandchild of the testator.

After his adoptive father’s death in 1986, Scott requested that the trustees pay Ballard’s share of the income of the trusts to Scott, and the trustees filed a petition to determine whether Scott was the “lawful issue” of Ballard and, therefore, entitled to receive Ballard’s portion of the income of the trusts. The circuit court found that Scott as an adopted child was not Ballard’s “lawful issue” as that term was used in the testator’s will and the trust indenture and that there was no language in either instrument by which the testator indicated a contrary intent. On August 30, 1989, this court affirmed. (Fischer, 188 Ill. App. 3d 16.) On September 6, 1989, the legislature passed the amendment, which provides:

“After September 30, 1989, a child adopted at any time before or after that date is deemed a child born to the adopting parent for the purpose of determining the property rights of any person under any instrument executed before September 1, 1955, unless ***
*** [t]he intent to exclude such child is demonstrated *** by clear and convincing evidence.” (Ill. Rev. Stat. 1989, ch. 40, par. 1652(b)(1).)

Scott’s petition for reconsideration and for leave to appeal to the Illinois Supreme Court was subsequently denied.

On June 13, 1990, Scott filed the present action seeking a declaration that the amendment created and conferred on him a substantive right to share in the distributions of income that were or will be paid after September 30, 1989. The circuit court granted the motion of defendants to dismiss Scott’s complaint. This appeal followed.

We first consider Scott’s assertion that the amendment created and conferred new rights on adopteds, which is a new fact rendering his present claim different from that considered in the prior litigation and, therefore, not subject to the bar of either res judicata or collateral estoppel. The doctrines of res judicata and collateral estoppel bar a party from relitigating an issue that has been finally determined by a court of competent jurisdiction. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251.) Res judicata differs from collateral estoppel in that res judicata applies to the same parties, or those claiming through them, concerning the same claims or demands or those that could have been raised. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 609; Toepper v. Cooker (1986), 150 Ill. App. 3d 206, 208.) In contrast, collateral estoppel arises when a party or someone in privity with a party participates in separate, consecutive causes of action that share a common controlling question of fact. (Buttitta v. Newell (1988), 176 Ill. App. 3d 880, 882.) A final judgment as to such question of fact in one cause is dispositive of the same factual question in the other cause. (Buttitta, 176 Ill. App. 3d at 882.) However, neither res judicata nor collateral estoppel applies if the claim asserted is based on a new fact or condition, which changes the basis of the claim. (Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129; Deke v. Huenkemeier (1919), 289 Ill. 148.) Thus, Scott’s claim depends entirely on whether the amendment created and conferred new substantive rights on adopted children because, absent such right, no new fact exists that changes the basis of his claim.

In construing a statute, a court must ascertain and give effect to the legislature’s intent in enacting the statute. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) A court must also consider, however, the reason and necessity for the law, the evil to be remedied, and the object to be obtained by the statute. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364.) A statute capable of two interpretations should be given that which is reasonable and which will not produce absurd, unjust or unreasonable results that the legislature could not have intended. (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312-13; People v. Williams (1987), 119 Ill. 2d 24, 28.) Finally, an interpretation that renders a statute valid is always presumed to have been intended by the legislature (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 363), and a court is obliged to construe a statute to affirm its constitutionality. (Mulligan, 123 Ill. 2d at 312; Williams, 119 Ill. 2d at 28.) With the guidance of these fundamental rules of statutory construction, we now turn to the amendment.

Prior to the enactment of the amendment, adopted children were presumed not to be natural children for purposes of determining property rights under documents drafted before 1955 (Ill. Rev. Stat. 1941, ch. 3, par. 165; Ford v. Newman (1979), 77 Ill. 2d 335, 340) and to be natural children under documents drafted after that date (Ill. Rev. Stat. 1989, ch. 40, par. 1652). However, both presumptions were rebuttable upon a showing of contrary intent. (Ford, 77 Ill. 2d at 340; Ill. Rev. Stat. 1989, ch. 40, par. 1652.) The legislature recognized the confusion and inconsistency created by such differing treatment in enacting the amendment in 1989. In discussing the amendment, Senator Berman, the amendment’s sponsor, stated:

“[The amendment] deals with several Appellate Court cases regarding the rights of adopted children to take—pursuant to wills and trusts executed prior to September 1, 1955. The law in Illinois, as everyone previously understood before these court cases, was that adopted children would not inherit under such instruments unless the contrary attempt appeared on the document itself. Two recent Appellate Court decisions have called this widely accepted presumption into question. [The amendment] eliminates the resulting confusion by allowing adopted children to inherit under such documents in certain circumstances.” 86th Ill. Gen. Assem., Senate Proceedings, June 26, 1989, at 112-13.

The amendment altered the presumption to one that now consistently applies to all documents, irrespective of the date such documents were drafted. However, the current presumption that an adopted child is a natural child remains subject to rebuttal upon a showing of contrary intent of the testator by clear and convincing evidence. Ill. Rev. Stat. 1989, ch. 40, par. 1652(b)(1).

A presumption arises as a legal conclusion from the facts proved; it is an inference which common sense draws from the known course of events. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517.) When a presumption ceases to conform to this definition, it no longer applies. (Bullard, 102 Ill. 2d at 517.) Thus in this instance, the legislature recognized that the former presumption that a testator intended to exclude an adopted child no longer had validity in today’s society. The amendment corrected the presumption so that it now conforms to the inference that common sense dictates be drawn from the course of events that culminates in an adoption, which is that an adopted child was intended to be treated no different than a natural child.

However, a presumption is a procedural rule that dictates the effect of the absence of evidence. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 460-62; Diederich v. Walters (1976), 65 Ill. 2d 95, 100-03.) “Burden of proof” refers not only to the burden of persuasion, which is convincing the trier of fact, but to the burden of production, which is presenting sufficient evidence to establish a prima facie claim. (Franciscan Sisters Health Care Corp., 95 Ill. 2d at 462.) A presumption does not shift the burden of proof, but rather shifts only the burden of production. (Franciscan Sisters Health Care Corp., 95 Ill. 2d at 460-62.) Thus, a statutory presumption is a rule of evidence.

Rules of evidence, discovery, and privilege are procedural rules. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 364.) No one has a right in any particular procedure. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 391; Board of Managers of Dominion Plaza One Condominium Association No. 1-A v. Chase Manhattan Bank, N.A. (1983), 116 Ill. App. 3d 690, 693-94.) Therefore, because the presumption in favor of including adopteds under all documents without regard to the drafting date is a procedural rule of evidence, the amendment did not create or confer any substantive rights.

In this instance, the circuit court correctly determined that the amendment, which corrected the outdated presumption of exclusion of adopteds, did not create or confer a substantive right on Scott as the testator’s adopted great-grandson. Thus, no new fact existed to prevent the application of the doctrines of res judicata and collateral estoppel. In light of our disposition of this issue, we need not reach the other allegations raised by either Scott or the trustees and guardian ad litem.

For the reasons set forth above, the judgment of the circuit court of Du Page County dismissing Scott’s complaint is affirmed.

Affirmed.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE BOWMAN

text:
    LILLIAN SIMPSON, Plaintiff-Appellant, v. ILLINOIS HEALTH CARE SERVICES, INC., Indiv. and d/b/a Memorial Hospital, et al., DefendantsAppellees (Napoleon Abando, Defendant).
    Second District
    No. 2 — 91—0657
    Opinion filed March 3, 1992.

      Jeffrey E. Martin, of Karlin & Fleisher, and David A. Novoselsky and Linda A. Bryceland, both of David A. Novoselsky & Associates, both of Chicago, for appellant.
    Vette E. Kell, of Kell, Nuelle & Loizzo, of Woodstock, and Thomas H. Fegan, of Johnson & Bell, Ltd., of Chicago, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Lillian Simpson, filed a four-count medical malpractice complaint against defendants Illinois Health Care Services, Inc., individually and doing business as Memorial Hospital; Memorial Hospital; Memorial Hospital for McHenry County; Eugene Lee, M.D.; S. Bobba, M.D.; and Napoleon Abando, M.D. The trial court dismissed the complaint with prejudice for failure to file an affidavit and health professional’s report as required by section 2—622 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—622). On appeal, plaintiff contends that the court abused its discretion in dismissing the complaint with prejudice.

The various hospital designations apparently refer to the same entity, which we will refer to as “the hospital.” Plaintiff voluntarily dismissed Dr. Abando from the action, and he is not a party to this appeal.

Plaintiff’s complaint alleges that on January 8, 1989, she was treated at the hospital for “various injuries and/or illnesses.” While at the hospital she asked Dr. Lee to examine a lump on her right breast. Plaintiff further alleges that defendants failed to test adequately the breast lump to determine whether it was malignant and as a result failed to diagnose and treat her breast cancer.

Plaintiff’s motion to reconsider the dismissal with prejudice provides the following additional facts. On January 8, 1989, Dr. Lee examined plaintiff’s breasts and made several attempts to aspirate fluid from the lump. When no fluid was obtained, he did no further followup. On approximately August 29, 1990, plaintiff awoke with her right arm and hand swollen. She went to see Dr. Robin Borchardt at the Rockford Family Care Clinic in Rockford. A biopsy revealed that plaintiff had stage 2 breast cancer.

Plaintiff filed her complaint on December 27, 1990. The complaint did not contain an attorney’s affidavit pursuant to section 2—622(a)(1) or section 2—622(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2—622(a)(1), (a)(2)). However, the complaint alleges in each count:

“Plaintiff is filing this action pursuant to Section 622(a)(2) [sic] of the Code of Civil Procedure, Ill. Rev. Stat., Chapter 110, and will file the required certificate and written report within 90 days after the filing of this Complaint.”

All defendants initially answered the complaint. On April 19, 1991, the hospital and Dr. Bobba moved to withdraw their answer and file a motion to dismiss the complaint. The motion was brought pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) and was based on plaintiff’s failure to file an affidavit or doctor’s report pursuant to section 2—622 within 90 days of filing the complaint. Dr. Lee later obtained leave to withdraw his answer and join in this motion.

In response, plaintiff filed a motion for extension of time to file the section 2—622 report and affidavit. The motion included the affidavit of plaintiff’s attorney, Jeffrey Martin, which detailed his next-described attempts to obtain the required physician’s certification.

Initially, Martin contacted plaintiff’s subsequent treating physician, Dr. Borchardt, on December 13, 1990. Borchardt responded by letter that the medical records he reviewed contained insufficient information for him to be able to reach any conclusion as to whether defendants had rendered inadequate care to the plaintiff. Martin received this letter February 8, 1991.

Martin then contacted another of plaintiff’s treating physicians, Dr. Michael Beierle, and sent him plaintiff’s medical records for review. Martin thereafter attempted to contact Dr. Beierle on several occasions to obtain the results of his review of the records. Specifically, Martin left telephone messages for him on February 26, February 27, March 30 and April 6, 1991. On the last-named date, Martin learned that Dr. Beierle had been on vacation for several weeks and would return to his office on April 8.

On April 8, Martin spoke with Dr. Beierle, who informed him that his review of the records showed that defendants had indeed deviated from the applicable standard of care in failing to diagnose and treat plaintiff’s breast cancer. Beierle advised Martin that he would forward the necessary physician’s report to him.

Martin again called Beierle on April 15 when he still had not received the report. Beierle’s secretary stated that the doctor was quite busy, but that he had the records on his desk and would get to it.

On April 30, Dr. Beierle’s secretary phoned Martin and dictated the report to him over the phone. Martin requested that the report be sent to him immediately. He called again on May 9 and May 10 to inquire about the report, stressing that it was urgent that he receive it immediately. Subsequently, Martin learned that the report had been mailed to the wrong address.

The court scheduled a hearing on the motion to dismiss on May 14, 1991. On that date, plaintiff filed an addendum to her complaint which consisted of Dr. Beierle’s report. In summary, Dr. Beierle concluded that defendants had erred in failing to make further inquiry about the lump on plaintiff’s breast and failing to diagnose her breast cancer. These errors led to the spread of plaintiff’s cancer and her likely death from the cancer. In Dr. Beierle’s opinion, plaintiff had a meritorious cause of action against Dr. Lee and the hospital.

The court granted defendants’ motion and dismissed the complaint with prejudice. Plaintiff filed a motion to reconsider which the court denied. This appeal followed.

On appeal, plaintiff contends that the court abused its discretion in dismissing her complaint with prejudice where the required physician’s report was tendered only 48 days late and the record shows that diligent efforts were made to obtain the report within 90 days of filing the complaint. Defendants respond that the court did not abuse its discretion and that, in any event, the report which plaintiff eventually tendered was insufficient.

Section 2—622(a)(1) provides that in any medical malpractice action the plaintiff must attach to the complaint an affidavit stating that he has consulted with a health professional in whose opinion there is a “reasonable and meritorious cause” for filing the action. In addition, the plaintiff must attach the -written report of the health professional indicating the basis for this determination. (Ill. Rev. Stat. 1989, ch. 110, par. 2—622(a)(l); McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 190.) Section 2—622(a)(2) allows a 90-day extension for filing the affidavit if the statute of limitations is about to expire. Ill. Rev. Stat. 1989, ch. 110, par. 2—622(a)(2); McCastle, 121 Ill. 2d at 190.

The clear purpose of section 2—622 is to deter the filing of frivolous medical malpractice lawsuits. (Cato v. Attar (1991), 210 Ill. App. 3d 996, 998.) While section 2—622 allows the court to dismiss a complaint for failure to comply with its mandates, it does not require dismissal with prejudice. (McCastle, 121 Ill. 2d at 192-93.) The decision whether to dismiss a complaint for failure to comply with section 2— 622 is within the trial court’s sound discretion, and its decision will not be overturned on appeal absent an abuse of that discretion. (Cato, 210 Ill. App. 3d at 999; Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 951.) In determining whether late filing should be allowed, the court may consider whether the plaintiff has demonstrated good cause for failure to file timely the documents. (Premo v. Falcone (1990), 197 Ill. App. 3d 625, 633.) However, generally amendments to medical malpractice pleadings should be liberally allowed to enable the case to be decided on its merits rather than on procedural technicalities. Cato, 210 Ill. App. 3d at 999; Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.

This court recently reversed a dismissal with prejudice for failure to comply timely with section 2—622 in Cato v. Attar (1991), 210 Ill. App. 3d 996. In that case, the complaint was filed without complying with section 2—622. The statute of limitations was not about to run, so the section 2—622(a)(2) extension was not applicable. However, 57 days after the initial filing, plaintiff sought leave to amend her complaint to attach the required documents. Plaintiff’s counsel explained that he had not attached the affidavit initially because he mistakenly relied on the First District Appellate Court’s decision in DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, which held the statute unconstitutional. The supreme court in DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, has recently reversed the appellate court’s decision and determined that section 2—622 is constitutional. Additionally, we noted that this court had previously upheld the statute in Bloom v. Guth (1987), 164 Ill. App. 3d 475. While not condoning counsel’s incomplete research, we nonetheless held that the plaintiff demonstrated good cause for failure to file timely the required attachments. (Cato, 210 Ill. App. 3d at 1000; see also Kus v. Sherman Hospital (1990), 204 Ill. App. 3d 66, 72 (plaintiff’s attorney reasonably, although incorrectly, believed that section 2 — 622 did not apply).) Under similar circumstances, this court held that the trial court did not abuse its discretion in vacating an order which had dismissed plaintiff’s complaint with prejudice and further noted that the case involved a two-year-old plaintiff, who, had the case not been filed and dismissed, would have had another 16 years to file her complaint. Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 468-69.

In the instant case, the alleged misdiagnosis occurred January 8, 1989. The complaint was filed December 27, 1990. Thus, at least arguably, the statute of limitations was about to run on January 8, 1991. This was sufficient to trigger the 90-day extension under section 2— 622(a)(2). However, plaintiff did not seek leave to file the health professional’s report until May 14, 1991, or 47 days after the 90-day extension expired. Plaintiff’s counsel explained that he had attempted to obtain a certificate from Dr. Borchardt, one of plaintiff’s subsequent treating physicians, prior to filing the complaint. Later Dr. Borchardt informed him that the records available to him were insufficient to make a determination regarding the degree of care exercised by defendants in the treatment of plaintiff. Plaintiff’s attorney then sent her medical records to Dr. Beierle, who eventually did determine that defendants violated the applicable standard of care in failing to diagnose plaintiff’s breast cancer. Plaintiff’s counsel detailed his attempts to contact Dr. Beierle and obtain his report.

We believe that plaintiff demonstrated good cause for her failure to file the report and affidavit within 90 days. Plaintiff’s attorney sent her medical records to two of her subsequent treating physicians and made repeated efforts to obtain their reports within the 90-day time limit. While in retrospect it might have been better had plaintiff filed a motion for extension of time within the original 90-day extension, this is more akin to a procedural technicality, which should not be the basis for dismissing an otherwise allegedly meritorious complaint.

On the record established so far, the complaint may have merit, and Dr. Beierle so found. Of course, we do not have occasion to pass upon the sufficiency of the complaint at this time. We hold only that the trial court should have permitted plaintiff to file Dr. Beierle’s report and abused its discretion in dismissing the complaint with prejudice for failure to do so in a more timely manner.

Defendants argue in the alternative that the report which plaintiff proposed to file was insufficient in any event. The record affirmatively demonstrates that the trial court did not pass on the sufficiency of the proposed report. The determination of the sufficiency of the documentation is initially a question for the trial court. (Cato v. Attar (1991), 210 Ill. App. 3d 996, 1000.) Therefore, we do not consider this issue.

For the foregoing reasons, the judgment of the circuit court dismissing plaintiff’s complaint with prejudice is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE DUNN

text:
    JAMES B. SULLIVAN, Plaintiff-Appellant, v. THE COUNTY OFFICERS ELECTORAL BOARD OF DU PAGE COUNTY et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0175
    Opinion filed March 3, 1992.

      James Bryan Sullivan, of Oak Brook, appellant pro se.

    Thomas C. Kellegan, of Wheaton, and Patrick K. Bond and Mary E. Dickson, both of Schirott & Hervas, P.C., of Itasca, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, James Sullivan, appeals from a judgment of the circuit court of Du Page County in an action for judicial review of a decision of the County Officers Electoral Board of Du Page County (Board). The circuit court upheld the Board’s decision to allow the name of defendant, Hugh R. Murphy, to remain on the March 17, 1992, primary ballot for the office of Republican precinct committeeman in precinct 129 of York Township in Du Page County. Sullivan contends that Murphy’s name should have been removed from the primary ballot because his statement of candidacy erroneously listed the office sought as precinct committeeman for precinct 129 of Oak Brook Township and because Murphy, while acting as a deputy registrar, illegally solicited signatures on his nominating petition from newly registered voters. We affirm.

In December 1991 Murphy submitted a nominating petition for the above office to the Board. The petition consisted of four sheets containing a total of 42 signatures. There was a statement near the top of all four sheets that Murphy was seeking election to the office of Republican precinct committeeman for precinct 129 of York Township.

As required by section 7 — 10 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 7 — 10), Murphy attached a statement of candidacy to his petition. On this statement he erroneously listed the office sought as precinct committeeman for precinct 129 of Oak Brook Township. There is no Oak Brook Township. Precinct 129 of York Township is, however, located in the Village of Oak Brook.

Plaintiff filed objections with the Board to Murphy’s petition. One objection was based upon the above error in Murphy’s statement of candidacy. Another was that three persons who signed the petition did so in connection with being registered to vote by Murphy who, as the incumbent precinct committeeman, was also a deputy registrar (see Ill. Rev. Stat. 1989, ch. 46, par. 6—50.2(a)). Plaintiff contended that this was a violation of section 6—50.2(e) of the Code (Ill. Rev. Stat. 1989, ch. 46, par. 6—50.2(e)), which prohibits deputy registrars from electioneering or promoting any cause during the performance of their duties. Plaintiff further contended that these alleged violations should result in Murphy’s removal from the ballot.

The Board held a hearing on the objections. On January 9, 1992, it issued a written decision overruling the objections and stating that Murphy’s name would appear on the ballot. Plaintiff sought judicial review of the decision in the circuit court of Du Page County which upheld it in an order dated February 5, 1992. Plaintiff now appeals.

Access to a position on the ballot is a substantial right which should not be lightly denied. (Welch v. Johnson (1992), 147 Ill. 2d 40, 56.) Thus, a minor error in a nominating petition should not result in a candidate’s removal from the ballot. (See Ryan v. Landek (1987), 159 Ill. App. 3d 10, 15-16.) In Lewis v. Dunne (1976), 63 Ill. 2d 48, certain information regarding the office for which the candidate sought nomination was inadvertently omitted from the statement of candidacy but was present in the candidate’s nominating petition. Our supreme court held that there was substantial compliance with section 7 — 10 of the Code and the candidate’s name should appear on the ballot. (Lewis, 63 Ill. 2d at 53.) In so holding the court noted that there “was no basis for confusion as to the office for which the nominating papers were filed” nor was there any conflict between the statement of candidacy and the nominating petition in this regard. 63 Ill. 2d at 53.

Likewise the candidate’s error in his statement of candidacy in the case at bar does not create any confusion as to the office for which his nominating papers were filed. Because Murphy could not possibly be seeking office in Oak Brook Township, which does not exist, it is obvious that he is seeking office in York Township, as stated four times in his nominating petition. Here, unlike Lewis, the statement of candidacy conflicts on its face with the nominating petition, but that conflict is readily resolved in light of the fact that there is no Oak Brook Township. We therefore conclude that the Board correctly overruled this objection.

Plaintiffs second objection was properly overruled as well. Under section 10—10 of the Code, if a candidate’s right to a position on a primary ballot is challenged an electoral board is to consider “whether or not *** [the] nomination papers or petitions are in proper form, and whether or not they were filed within the time and under the conditions required by law” and whether the papers are genuine. (Ill. Rev. Stat. 1989, ch. 46, par. 10—10.) As an administrative agency created by statute, the Board may only exercise the powers conferred upon it by the legislature. Kozel v. State Board of Elections (1988), 126 Ill. 2d 58, 68.

Plaintiff’s second objection clearly has nothing to do with the form of Murphy’s nomination papers, their timeliness, or whether they were genuine. With regard to the office sought by Murphy, the conditions under which such papers must be filed are set forth in sections 7 — 10, 7 — 10.1, and 7 — 10.2 of the Code (Ill. Rev. Stat. 1989, ch. 46, pars. 7 — 10, 7 — 10.1, 7 — 10.2). There is nothing in these provisions which concerns signatures collected by individuals during the performance of their duties as deputy registrars. We therefore conclude that plaintiff’s second objection was not a valid objection to Murphy’s nominating petition, and it was properly rejected by the Board. If Murphy did knowingly violate section 6—50.2(e) of the Code (Ill. Rev. Stat. 1989, ch. 46, par. 6—50.2(e)), however, he would be subject to prosecution for a Class A misdemeanor (see Ill. Rev. Stat. 1989, ch. 46, par. 29-12).

The Board has filed a motion to dismiss this appeal because of the expense and other difficulties that would result if Murphy’s name were removed from the ballot. In light of our disposition of this appeal, it is not necessary to consider this motion.

For the above reasons, the judgment of the circuit court of Du Page County upholding the Board’s decision is affirmed.

Affirmed.

GEIGER and WOODWARD, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    AUTO OWNERS INSURANCE, as Subrogee of Daniel Jansen, Plaintiff-Appellee, v. LEON BERKSHIRE, Defendant-Appellant.
    Second District
    No. 2 — 91—0579
    Opinion filed March 6, 1992.
    — Rehearing denied April 7,1992.

      Mary P. Gorman, of O’Brien, Healy, Wade & Gorman, of Rockford, for appellant.
    Richard M. Butera, of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appelalee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Leon Berkshire, appeals the order of the circuit court granting the motion of plaintiff, Auto Owners Insurance, the subrogee of its insured party, Daniel Jensen, for an order of turnover of certain funds held by First Federal Savings and Loan Association of Rockford (First Federal). The issue on appeal is whether the funds deposited in a checking account are exempt from execution because they are traceable to the proceeds of retirement benefits pursuant to section 12—1006 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 12— 1006). This is a case of first impression as no Illinois court has yet ruled on the extent of section 12—1006. We have jurisdiction under Supreme Court Rule 304(b)(4) (134 Ill. 2d R. 304(b)(4)), as this appeal concerns a final order from a supplemental proceeding under section 2—1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2-1402).

Plaintiff filed a complaint in which it alleged that defendant had negligently operated his automobile causing $100,000 in damages to its insured. Defendant failed to file an answer, and plaintiff obtained a default judgment on February 26, 1988. Over the next three years, plaintiff collected a few thousand dollars by serving defendant’s employer with wage garnishments.

On October 30, 1990, plaintiff served a citation to discover assets on First Federal. Defendant filed a claim of exemption of the $696.32 in the account, alleging the funds were his interest in retirement benefits paid to him by his former employer. Plaintiff petitioned for the turnover of the funds. The circuit court found that the proceeds were not exempt from the “non-wage garnishment” filed by plaintiff and ordered the turnover of the funds.

As there is no report of proceedings, the parties have stipulated to certain facts. (See 134 Ill. 2d R. 323(d).) Plaintiff and defendant agree that all the funds in the account were “proceeds from a pay-out to the Defendant of retirement benefits paid to him by his former employer.” Plaintiff argued below that the funds lost their exempt character as retirement funds when defendant deposited them into his checking account. The circuit court found that because defendant deposited them into a personal account and were being used for the defendant’s individual use, the funds were “no longer” exempt. No other information regarding the pension plan is before this court.

Section 12—1006 states as follows:

“(a) A debtor’s interest in or right, whether vested or not, to the assets held in or to receive pensions, annuities, benefits, distributions, refunds of contributions, or other payments under a retirement plan is exempt from judgment, attachment, execution, distress for rent, and seizure for the satisfaction of debts if the plan (i) is intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986, as now or hereafter amended, or (ii) is a public employee pension plan created under the Illinois Pension Code, as now or hereafter amended.
(b) ‘Retirement plan’ includes the following:
(1) a stock bonus, pension, profit sharing, annuity, or similar plan or arrangement, including a retirement plan for self-employed individuals or a simplified employee pension plan;
(2) a government or church retirement plan or contract;
(3) an individual retirement annuity or individual retirement account; and
(4) a public employee pension plan created under the Illinois Pension Code, as now or hereafter amended.”Ill. Rev. Stat. 1989, ch. 110, par. 12—1006.

Prior to the effective date of section 12—1006, the Code of Civil Procedure provided for the exemption of pensions and similar assets in section 12—1001(g) (Ill. Rev. Stat. 1987, ch. 110, par. 12—1001; see also Ill. Rev. Stat. 1979, ch. 52, par. 13(b); In re Vogel (N.D. Ill. 1987), 78 Bankr. 192, 195). In addition, pension plans which included an anti-alienation clause became spendthrift trusts and could not be attached by creditors. (Peoples Finance Co. v. Saffold (1980), 83 Ill. App. 3d 120, 122.) The Illinois Pension Code (Ill. Rev. Stat. 1989, ch. 108½, par. 1 —101 et seq.) also contains its own provisions for exemptions. In the last decade, the legislature has greatly increased the protection afforded by the exemption statutes. (See In re Marriage of Logston (1984), 103 Ill. 2d 266, 278-80; In re Whalen (C.D. Ill. 1987), 73 Bankr. 986, 989.) We must also note that while the trial court referred to a nonwage garnishment, the procedure employed by plaintiff was a supplementary procedure under section 2—1402, namely, a citation to discover assets and a motion for a turnover. The nonwage garnishment action has its own exemption for pension plans and does not apply here. (See Ill. Rev. Stat. 1989, ch. 110, par. 12—704.) Instead, we must apply the language of section 12—1006.

When interpreting a disputed statutory provision, the court must first ascertain and give effect to the true intent and meaning of the legislature, considering first the statutory language. (Waste Management of Illinois, Inc. v. Illinois Pollution Control Board (1991), 145 Ill. 2d 345, 348; In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) Those terms which are unambiguous must be given their plain and ordinary meaning. The court should not insert words into a legislative enactment when the statute otherwise presents a cogent and justifiable legislative scheme. (Waste Management, 145 Ill. 2d at 348.) To the extent that the statute is susceptible of two interpretations, a court may properly examine other sources for evidence of legislative intent, including the reason for the enactment, the circumstances that led to the adoption, the end sought to be achieved and the statutory language before the change. Logston, 103 Ill. 2d at 279.

Section 12—1006 protects a debtor’s interest “in the assets” and a debtor’s right “to receive” benefits, distributions, refunds of distributions or other payments under a retirement plan. Unfortunately, the record in the cause before the court does not explain the nature of the “pay-out” of defendant’s pension plan. It could be a lump-sum distribution of defendant’s accrued benefits paid on termination (see In re Smith (C.D. Ill. 1990), 115 Bankr. 144, 147 (construing former section 12—1001(g)(5) to hold a lump-sum asset not exempt because it was not a “payment”); In re Summers (S.D. Ill. 1989), 108 Bankr. 200, 203), or it could be a periodic distribution of payments intended for support. In either event, the language of the statute is broad and all inclusive. Section 12—1006 applies to the proceeds traceable to pension plan payments. By its very terms, it protects the principal as well as the income or the right to receive payments. Where the purpose of an exemption is to protect income necessary for the support of a debtor and his family, it makes no sense to allow the funds to be exempt so long as the debtor cannot use them. (See First National Bank v. How (1896), 65 Minn. 187, 190, 67 N.W. 994, 995; Dunham, Tracing the Proceeds of Exempt Assets in Bankruptcy and Non-Bankruptcy Cases, 1978 S. Ill. U. L.J. 317, 323 (1978).) Thus, section 12—1006 allows the debtor to receive benefits and to use them as well. Any other interpretation frustrates the legislative policy and renders the statute meaningless.

A debtor may trace the exemption from the exempt asset to the liquid form, but the concept of tracing is not limitless. So long as the debtor continues to hold and to use the funds for the support of the debtor and his family, the exemption statutes require the exemption of funds traceable from exempt payments. Conversely, if the debtor transforms the support payments into an investment, the purpose of the statutes is not being met; the funds are not being used for support and thus should lose their exempt character. (See Dunham, 1978 S. Ill. U. L.J. at 325.) Thus, the exempt funds remain exempt so long as they retain the “quality of moneys.” Philpott v. Essex County Welfare Board (1973), 409 U.S. 413, 416, 34 L. Ed. 2d 608, 611, 93 S. Ct. 590, 592; Porter v. Aetna Casualty & Surety Co. (1962), 370 U.S. 159, 162, 8 L. Ed. 2d 407, 410, 82 S. Ct. 1231, 1233.

The courts of this State have applied the Philpott quality of moneys test to determine that the deposit of certain Federal proceeds into a checking account or certificate of deposit does not make the exempt funds lose their exempt character. (Fayette County Hospital v. Reavis (1988), 169 Ill. App. 3d 246, 251 (exempting the deposit of Social Security payments); Shrader v. Maultz (1978), 58 Ill. App. 3d 484, 486 (exempting the deposit of Railroad Retirement Act benefits).) While it did not state the “quality of moneys” test, the court in East Moline Works Credit Union v. Linn (1964), 51 Ill. App. 2d 97, 101-02, held that funds remaining from a worker’s compensation settlement retained their exemption when deposited into a checking account. Under the quality of moneys test, defendant in the cause before the court would still be entitled to exempt the funds when he deposited them into his checking account. The personal property exemption statutes are to be construed liberally to protect debtors (McClellan v. Powell (1902), 109 Ill. App. 222, 225; In re Barker (7th Cir. 1985), 768 F.2d 191, 196), and liberal tracing should be allowed when the purpose of the statute is met (see In re Jackson (C.D. Ill. 1989), 95 Bankr. 590, 593).

Although plaintiff has not cited Reavis, we note that the court held in dicta that a debtor’s right to receive benefits did not include the exemption of property traceable to exempt property, based on an argument that section 12—1001 provided for tracing for some funds but not others. (Reavis, 169 Ill. App. 3d at 250.) However, since the holding of Reavis in 1988, the legislature has expanded the language and placed the exemption for pensions into a statutory section separate from section 12—1001, and we must construe section 12—1006 apart from that section. Also, we cannot read the statutes to render them meaningless. Not to permit the tracing of the ready funds would frustrate the purposes of the exemption and pension statutes, which are to provide support for the debtor and his family and to prevent them from becoming public charges. (See In re Marriage of Logston (1984), 103 Ill. 2d 266, 279-80; Christ Hospital v. Greenwald (1980), 82 Ill. App. 3d 1024, 1028.) Although the other exemption statutes provide for the tracing of some benefits and not of others, the principle of expressio unius est exclusio alterius, applied in Reavis, has no place in interpreting the exemption statutes when to apply it would frustrate the purpose of the statutes. (See Dunham, 1978 S. Ill. U. L.J. at 320, 343 (construing the identical language of the Federal statute on which section 12—1001(h) was based).) The concept of tracing is part of Illinois law even where the exemption statute does not specifically provide for it. (See Linn, 51 Ill. App. 2d at 101.) “[T]he intent of the exemption in question is not limited to the funds before they reach the pensioner, but also includes monies derived from the pension payments in the hands of the pensioner.” Shrader, 58 Ill. App. 3d at 487.

At this point it is important to note that the record does not reflect, and the parties do not argue, whether the pension in the cause before the court qualified under section 401 of the Internal Revenue Code (26 U.S.C.A. §401 (West 1988)) and the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C.A. §1001 et seq. (West 1985)). Thus, it is unnecessary for us to join the controversy whether ERISA preempts the application of the Illinois exemption statute. Compare In re LeFeber (7th Cir. 1990), 906 F.2d 330, 331, with In re Wimmer (C.D. Ill. 1991), 129 B.R. 563, 568.

Even if our statute were preempted, the Internal Revenue Code and ERISA provide that qualified pension benefits may not be attached or garnished. (29 U.S.C.A. § 1056(d)(1) (West 1985); 26 U.S.C.A. §401(a)(13) (West 1988); Treas. Reg. §1.401(a)-13(b)(l); Kennedy v. Deere & Co. (1987), 118 Ill. 2d 69, 74; Peoples Finance Co. v. Saffold (1980), 83 Ill. App. 3d 120, 123; Greenwald, 82 Ill. App. 3d at 1026.) ERISA also protects the proceeds of a qualified plan. (Travelers Insurance Cos. v. Fountain City Federal Credit Union (11th Cir. 1989), 889 F.2d 264, 266.) The funds of a plan may be rolled over into another qualified plan. (See 26 U.S.C.A. §403(a)(4) (West 1988); Tenneco Inc. v. First Virginia Bank (4th Cir. 1983), 698 F.2d 688, 690.) As debtors can have no expectation of receiving the funds prior to retirement, creditors cannot expect to satisfy their claims from those assets even when they are payable as a lump sum. Smith v. Mirman (4th Cir. 1984), 749 F.2d 181,184-85.

Thus, defendant’s funds retained their character when he deposited them into his checking account. To paraphrase Portia, the quality of moneys is not strained; it droppeth as a liquid asset from the pension trustee to the account beneath. It is twice exempt: it is exempt when given and exempt when received. Since the basis of the trial court’s order appears to be that the funds lost their character upon deposit, the trial court erred in its reasoning.

However, the record is not clear regarding the character of the funds. Thus, our analysis is not complete because even if the funds were originally exempt, they may still lose their exemption depending on the original character of the payment. The record does not clearly demonstrate the nature of the “pay-out” of the pension plan. If the funds represent a payment of defendant’s total accrued benefits as a lump-sum distribution, then the funds could be held for future use and investment rather than support. It was incumbent upon defendant to ensure the continuing qualification of the asset under ERISA, the Internal Revenue Code or the exemption statute by depositing the pension funds into a spendthrift trust, IRA or other protected plan. (See 26 U.S.C.A. §402(a)(5) (West 1988); Reliance Insurance Co. v. Zeigler (7th Cir. 1991), 938 F.2d 781, 784.) On the other hand, if the payment was a periodic pension benefit intended for current support, the funds were exempt and stayed exempt because defendant deposited them into an account retaining the “quality of moneys.” There is no evidence that the funds were deposited into a nonqualified account for the purpose of investment; such an account would not be deemed necessary for defendant’s current living expenses and would not meet the statutory purpose behind the allowance of an exemption. Shrader, 58 Ill. App. 3d at 487.

Thus, we must remand the cause for the trial court to make an additional finding. If the funds were a lump-sum distribution of defendant’s interest in his pension plan, the funds were no longer exempt because he failed to roll the funds over into another qualified plan. Conversely, if the funds were a pension distribution intended for support, the funds remained exempt as they retained the quality of moneys in the checking account.

For the above reasons, the order of the circuit court of Winnebago County is reversed, and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and NICKELS, JJ., concur.


text:
    CLIFFORD EKKERT, Plaintiff-Appellant, v. THE CITY OF LAKE FOREST et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0732
    Opinion filed March 6, 1992.
    Stanley H. Jakala, of Berwyn, for appellant.
    Murray R. Conzelman, of Conzelman, Snarski & Stepanich, of Waukegan, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Clifford Ekkert, appeals the dismissal of his complaint for injunctive and declaratory relief against defendants, the City of Lake Forest and the Board of Fire and Police Commissioners of the City of Lake Forest. Plaintiff sought to enjoin defendants from denying him eligibility for employment as a fire fighter because he was over 35 years of age at the time of his application. The trial court concluded that section 10— 2.1—14 of the Illinois Municipal Code (section 10—2.1—14) (Ill. Rev. Stat. 1989, ch. 24, par. 10— 2.1—14) barred plaintiff from such employment.

On appeal, plaintiff argues that (1) defendants are estopped to invoke the age limitation of section 10—2.1—14 because plaintiff reasonably relied on defendants’ representations that he was eligible for the position; and (2) the age limit set forth in section 10—2.1—14 has been invalidated by the partial consent judgment entered by the Federal District Court for the Northern District of Illinois in United States Equal Employment Opportunity Comm’n v. Bloomingdale Fire Protection District (N.D. Ill., Nov. 8, 1990), No. 90—C—1891 (the Federal consent order). We disagree and hold that the complaint was properly dismissed.

The complaint alleged the following facts. Plaintiff was born August 5, 1955. On or about May 1, 1990, defendants published a document entitled “Career Opportunity” describing openings for the position of “Firefighter (PM).” The document stated that applicants would have to meet certain requirements, including “Age 21-35.” On or about May 30, 1990, defendants sent plaintiff and other prospective applicants information on application deadlines and various required tests. On June 13, 1990, plaintiff received the necessary application forms from defendants.

Plaintiff submitted his application shortly after August 5, 1990, his thirty-fifth birthday. Defendants scheduled plaintiff for a variety of written and physical tests. Plaintiff successfully completed a written test, a physical test and an interview. On November 1, 1990, defendants published a list of those eligible for the position of fire fighter (PM). Plaintiff was included on this list. The list stated that those eligible would have to pass polygraph, psychological and medical examinations to remain eligible. Plaintiff later passed all of these further tests.

On March 12, 1991, however, defendants informed plaintiff he was no longer being considered for the fire fighter position. Defendants explained that this was because plaintiff turned 35 before the eligibility list was published and that State laws excluded anyone 35 or older from being accepted into the State pension fund.

On November 8, 1990, the Federal District Court for the Northern District of Illinois (Lindberg, J.) entered the Federal consent order. Plaintiff attached a copy of the order with his complaint. The order recites that on March 30, 1990, the United States Equal Employment Opportunity Commission (EEOC) filed an action against the Bloomingdale and Glenside Fire Protection Districts and the State of Illinois, alleging that the State was violating the Age Discrimination in Employment Act of 1967 (the Federal Act) (29 U.S.C.A. §621 et seq. (West Supp. 1991)) by publishing, maintaining and enforcing section 16.06 of the State Fire Protection District Act (section 16.06) (Ill. Rev. Stat. 1989, ch. 127½, par. 37.06), requiring all applicants for a position in the fire department of a fire protection district with any but not all full-time paid members to be under 35 years of age. The EEOC also alleged that the defendant fire protection districts were violating the Federal Act by maintaining hiring policies or practices that complied with section 16.06.

The Federal consent order recited that “[u]pon the pleadings, record, and stipulations of the parties,” the court made the following findings. Subsequent to September 20, 1987, section 16.06 violated the Federal Act to the extent that it required fire protection districts of which any officers are full-time paid members to hire only individuals under age 35. This finding specifically excluded those fire protection districts with either “all full time paid officers or members” or “no full time paid officers or members.” The State denied any liability for providing remedies for its publication and maintenance of section 16.06 and denied that it had enforced section 16.06. The districts also expressly denied that they had maintained hiring practices or policies in accord with section 16.06 or that they had unlawfully discriminated on the basis of age.

The Federal court ordered that (1) the State was forever enjoined from maintaining and enforcing that portion of section 16.06 requiring fire protection districts with any but not all full-time paid members to hire only individuals under the age of 35; (2) the two individual fire protection districts were forever enjoined from maintaining policies or practices in accord with the invalidated portion of section 16.06; (3) nothing in the order constituted an adjudication of any of the defendants’ liability for remedying any damages under the Federal Act arising from the alleged publication, maintenance or enforcement of section 16.06 or from the alleged maintenance of hiring policies or practices in accord with section 16.06.

Plaintiff attached no other part of the record in the Federal case. The complaint alleged that defendants, like the individual fire protection districts in the Federal action, employed some (but not entirely) full-time paid fire fighting personnel. Plaintiff alleged that without injunctive relief he would suffer irreparable injury from no longer being considered for employment as a fire fighter for defendants. Plaintiff also requested rulings that (1) the Federal consent order barred defendants from preventing him from being employed as a fire fighter solely because he was 35 years old at the time that he applied; (2) defendants by their actions toward plaintiff interpreted section 10—2.1—14 to allow plaintiff to qualify for the eligibility list; (3) plaintiff’s ineligibility for the City of Lake Forest fire fighters’ pension fund should not disqualify him for the position of fire fighter.

Defendants moved to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). Defendants argued that (1) section 10—2.1—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—6) barred plaintiff from working as a fire fighter for defendants; (2) section 10—2.1—14 provides only that if a person is placed on an eligibility list and becomes over age before he is appointed to such a position, he remains eligible until the list is properly abolished and that this provision did not entitle plaintiff to relief because he admitted that he had already turned 35 when he applied (and when his name was placed on the eligibility list); (3) defendants could not be estopped to deny their lack of statutory authorization for hiring plaintiff; (4) the Federal consent order did not apply to this case as defendants were not parties to the Federal action and the Federal consent order involved a different statute than the one in the present case; and (5) the Federal Act did not forbid defendants from refusing employment to plaintiff, as plaintiff was under 40 years old and maximum hiring ages similar to the one here had been upheld in Federal court. After hearing argument, the trial court granted defendants’ motion to dismiss. Plaintiff timely appealed.

Section 10—2.1—6 plainly states that “[a]ll applicants for a position in either the fire or police department of the municipality shall be under 35 years of age.” (Ill. Rev. Stat. 1989, ch. 24, par. 10— 2.1—b.) Plaintiff acknowledges that he does not meet this statutory requirement, and, on appeal, he does not assert that section 10— 2.1—14 validates his application. Plaintiff instead invokes the doctrine of equitable estoppel, arguing that because he reasonably and detrimentally relied on defendants’ officially issued assurances that he was eligible for the fire fighter position at age 35, defendants must not now be allowed to plead their lack of statutory authority to hire plaintiff.

We cannot agree that estoppel applies to this case. Here plaintiff requests that we order defendants to exercise powers unauthorized— indeed prohibited—by statute. However, a municipality is limited to those powers given it by constitution and statute and cannot be bound by a contract that does not comply with the prescribed conditions for the exercise of the municipality’s power. (Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill. App. 3d 163, 169; South Suburban Safeway Lines, Inc. v. Regional Transportation Author ity (1988), 166 Ill. App. 3d 361, 367-68.) A contract that is legally prohibited is not merely voidable but void, and the municipality will not be estopped to assert that the contract is invalid. (Ad-Ex, 207 Ill. App. 3d at 170; Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 291-92.) Also, a party that contracts with a municipality is charged with knowledge of the limitations on the municipality’s power to contract. (Ad-Ex, 207 Ill. App. 3d at 169; Ligenza, 133 Ill. App. 3d at 290-91.) As defendants lacked the statutory authority to place plaintiff on the eligibility list, we may not order them to do so.

Plaintiff relies on a number of cases, primarily involving zoning regulations, in which courts held that municipalities were estopped to deny the validity of certain exercises of their powers. Those cases do not erase the distinction between an irregular exercise of a municipality’s authority, which may create an estoppel, and a municipal action undertaken without any authorization, which is ultra vires and cannot bind the municipality. South Suburban Safeway Lines, Inc., 166 Ill. App. 3d at 368; Ligenza, 133 Ill. App. 3d at 291.

Plaintiff argues second that the Federal consent order bars defendants from enforcing the age limitation of section 10—2.1—6. Although the order enjoins the State and two fire protection districts from enforcing or acting in accord with a different statute, section 16.06 of the State Fire Protection District Act, plaintiff reasons that because the statutory age limitations are essentially similar, the order holds that section 10—2.1—6 is invalid under the Federal Act. We disagree.

The issue here is whether the complaint adequately pleads that defendants may not enforce the age limit because they are bound by a previous adjudication that this limit is invalid. Thus plaintiff invokes the doctrine of collateral estoppel, which applies when a party or one in privity with that party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252.) Collateral estoppel requires an identity of issues. Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.

Here collateral estoppel does not apply. Defendants were not parties to the Federal action and are not in privity to the State. (City of Naperville v. Morgan (1984), 126 Ill. App. 3d 91, 93.) Moreover, the Federal suit involved a different statute from that involved here, and the Federal court’s ruling does not specify the issues involved other than the declaration that section 16.06 violates the Federal Act.

Finally, the Federal court ruling was based on the consent of the parties to that case. The consent order states that the defendants denied that they had enforced or observed section 16.06; it is thus quite possible (based on the limited record that plaintiff provides) that the issue of whether section 16.06 violates the Federal Act was never actually litigated. Generally, courts are reluctant to give preclusive effect to consent judgments, in large measure because the extent to which issues are actually litigated in suits ending in consent judgments is often doubtful. (La Preferida, Inc. v. Cervecería Modelo S.A. de C.V. (7th Cir. 1990), 914 F.2d 900, 906; Avondale Shipyards, Inc. v. Insured Lloyd’s (5th Cir. 1986), 786 F.2d 1265, 1272-73.) The Federal consent order does recite that section 16.06 violates the Federal Act. Whether the defendants actually attempted to litigate this issue is unclear at best, and this lack of clarity (along with the failure to establish identity of issues or identity of the relevant parties) forbids giving the Federal consent order any preclusive effect here.

Plaintiff does not address these considerations in his appellate brief, but argues instead that the Federal case must be read as authority for invalidating section 10—2.1—6 because that statute and section 16.06 are similar and must be read in pari materia. This argument mixes apples and oranges. Rules of statutory construction are not particularly germane to whether a previous adjudication should be given preclusive effect.

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

Affirmed.

McLAREN and NICKELS, JJ., concur.