text:
    DU PAGE AVIATION CORPORATION, FLIGHT SERVICES, INC., et al., Plaintiffs-Appellants, v. DU PAGE AIRPORT AUTHORITY, Defendant-Appellee.
    Second District
    Nos. 2—91—0112, 2—91—0386 cons.
    Opinion filed June 5, 1992.

      Maureen A. Hill, of Clancy & Krippner, of St. Charles (Wendell W. Clancy, of counsel), for appellants.

      Bell, Boyd & Lloyd, of Chicago (Lawrence M. Gavin, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Du Page Aviation Corporation, Flight Services, Inc., S S P F (a partnership), Chicago Beechcraft (a limited partnership) and Joe Boyd (plaintiffs) appeal after the trial court dismissed with prejudice all counts of their amended complaint and second amended complaint against the Du Page Airport Authority (Authority), defendant. Plaintiffs sued the Authority in February 1989 for damages that allegedly are based on the expiration of plaintiffs’ property leases at the airport. Plaintiffs wanted fair-market value compensation for certain improvements they made on the leased property instead of depreciated value compensation that the leases provided, and the Authority allegedly refused to renegotiate the leases. We affirm.

We set forth only the relevant facts to the issues raised. On February 14, 1989, plaintiffs filed a three-count complaint against defendant. Count I was based in estoppel theory, count II alleged a conspiracy, and count III alleged tortious interference with business contracts. Plaintiffs later added count IV, which sought to enjoin the Authority from exercising an option to terminate plaintiffs’ leases. On January 19, 1990, the trial court granted the Authority’s section 2— 615 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The court specifically dismissed counts II, III, and IV, and allowed plaintiffs leave to file an amended complaint which would include count I.

On February 15, 1990, plaintiffs filed a four-count amended complaint: count I was based in estoppel theory, count II alleged a conspiracy to restrain trade, count III alleged tortious interference with business relationships, and count IV alleged violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 12Xik, pars. 261 through 272).

On October 9, 1990, the trial court dismissed count I with prejudice pursuant to section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619) and dismissed counts II, III and IV with prejudice pursuant to section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615).

In granting the Authority’s motion to dismiss count I, the estoppel count, the court held that the leases were clear and unambiguous and that they provided a formula for compensating the plaintiffs for leasehold improvements when the leases expired. The court further held that plaintiffs’ complaint failed to state a cause of action in estoppel since plaintiffs did not allege detrimental reliance or that defendant broke a promise to plaintiffs. The court dismissed count II of the amended complaint, the antitrust count, on the grounds that the Authority was immune from liability under section 5(14) of the Illinois Antitrust Act (Ill. Rev. Stat. 1989, ch. 38, par. 60 — 5(14)) and the State action doctrine (citing Wellwoods Development Co. v. City of Aurora (N.D. Ill. 1986), 631 F. Supp. 221, 224-25, aff’d (7th Cir. 1987), 822 F.2d 1091). The court dismissed count III of the amended complaint, the tortious interference count, on the ground that the Authority was immune under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). The court dismissed count IV of the amended complaint, the Consumer Fraud Act count, because the Authority was not subject to the Act, citing Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, and also on immunity grounds.

On December 20, 1990, the trial court granted plaintiffs’ section 2 — 1301 motion to vacate (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301) in part the October 9 order. The court entered an order which modified the dismissal of count I of the amended complaint to without prejudice and denied the motion to vacate in all other respects. The court also added final and appealable language of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) to the earlier dismissal of counts II, III and IV and granted plaintiffs leave to file a second amended complaint instanter. Plaintiffs’ second amended complaint consisted of two counts. Count I sounded in estoppel theory. Count II alleged that defendant had violated the Eminent Domain Act (Ill. Rev. Stat. 1989, ch. 110, pars. 7 — 101 through 7 — 129), thereby depriving plaintiffs of property in violation of section 1983 of the Civil Rights Act of 1871 (42 U.S.C. §1983 (1988)). Plaintiffs did not reallege or preserve counts II, III and IV from the amended complaint in their second amended complaint.

On January 22, 1991, plaintiffs filed a timely notice of appeal as to the December 20, 1990, order.

On March 7, 1991, the trial court granted defendant’s section 2— 619 motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) plaintiffs’ second amended complaint. On April 4, 1991, plaintiffs filed a timely notice of appeal as to the March 7, 1991, order. Finally, on April 10, 1991, this court granted plaintiffs’ motion to consolidate the two appeals.

Plaintiffs raise seven issues on appeal, all regarding whether the trial court erred in dismissing the various counts in their complaints. Specifically, plaintiffs argue that: (1) count II of the amended complaint sufficiently stated a cause of action under the Illinois Antitrust Act; (2) count III of the amended complaint sufficiently stated a cause of action for tortious interference with prospective advantage; (3) count IV of the amended complaint sufficiently stated a cause of action under the Consumer Fraud Act; (4) the Tort Immunity Act does not immunize the Authority from liability; (5) the amended and second amended complaints comply with the applicable statutes of limitation; (6) count I of the second amended complaint sufficiently stated a cause of action in estoppel theory; and (7) count II of the second amended complaint sufficiently stated a cause of action under section 1983 (42 U.S.C. §1983 (1988)).

The Authority responds that this court lacks jurisdiction to consider the October 9, 1990, order dismissing counts II, III and IV of plaintiffs’ amended complaint because plaintiffs’ notice of appeal referred only to the later December 20, 1990, order. In the alternative, the Authority urges this court to conclude that plaintiffs waived any objection to the dismissal of counts II, III and IV of the amended complaint by filing their second amended complaint. The Authority finally argues that even if this court has jurisdiction to review the issues raised and if we find no waiver, the trial court properly dismissed all counts of plaintiffs’ complaints.

DOES THIS COURT HAVE JURISDICTION TO REVIEW THE OCTOBER 9,1990, ORDER?

We disagree with the Authority’s contention that this court is without jurisdiction to review the October 9 order. We begin by noting that Supreme Court Rule 303(c)(2) states:

“(c) Form and Contents of Notice of Appeal.
* * *
(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (134 Ill. 2d R. 303(c)(2).)

The Illinois Supreme Court held in Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed. (Burtell, 76 Ill. 2d at 434.) “[T]he unspecified judgment is reviewable if it is a ‘step in the procedural progression leading’ to the judgment specified in the notice of appeal.” (Burtell, 76 Ill. 2d at 435, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254.) In Burtell, the supreme court held that the notice of appeal at issue was sufficient to confer jurisdiction because the earlier order sought to be reviewed, but which was not mentioned in the notice of appeal, was an order for an accounting. The court noted that the notice of appeal referred to the final judgment, which was based on the accounting. Burtell, 76 Ill. 2d at 431-36. But see Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 568, 572 (appellate court without jurisdiction to consider any issues raised regarding a dismissal order because the notice of appeal referred only to a later summary judgment order and requested relief from that order only).

In the instant case, the trial court’s December 20, 1990, order specifically added final and appealable language from Rule 304(a) (134 Ill. 2d R. 304(a)) to its earlier order of October 9, 1990, dismissing counts II, III and IV. We conclude that the October 9, 1990, order is a step in the procedural progression leading to the December 20, 1990, order and that therefore the October 9, 1990, order is properly before this court.

DID PLAINTIFFS WAIVE OBJECTION TO THE DISMISSAL OF THE AMENDED COMPLAINT BY FILING A SECOND AMENDED COMPLAINT?

At issue is whether plaintiffs waived any objection to the dismissal of counts II, III and IV of their amended complaint, even though the trial court made the dismissal final and appealable under Rule 304(a), by later filing a second amended complaint. It is well established in Illinois that “a party who files an amended pleading waives any objection to the trial court’s ruling on the former complaints.” (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153; see Perkins v. Collette (1989), 179 Ill. App. 3d 852, 856.) In Foxcroft, our supreme court stated that “ ‘[wjhere an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.’ ” (Foxcroft, 96 Ill. 2d at 154, quoting Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.) The court further stated:

“There are significant policy considerations which favor adherence to this general rule. In particular is the interest in the efficient and orderly administration of justice. It is expected that a cause will proceed to trial on the claims as set forth in the final amended complaint.” (Foxcroft, 96 Ill. 2d at 154.)

The court concluded that “we perceive no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review.” Foxcroft, 96 Ill. 2d at 154.

Plaintiffs argue that they adequately preserved the dismissal of counts II, III and IV of their amended complaint by obtaining Rule 304(a) findings as to those counts from the trial court. We disagree. The import of Foxcroft is that plaintiffs in the instant case had two choices to preserve the counts at issue for appellate review. First, they could have elected to stand on the dismissed counts and argue such at the appellate level, prior to filing their second amended complaint. Alternatively, they could have realleged or preserved the dismissed counts in their second amended complaint. Plaintiffs did neither and have therefore waived this court’s consideration of the trial court’s dismissal of counts II, III and IV of their amended complaint.

' Even if we were to conclude that plaintiffs’ filing of a second amended complaint did not constitute a waiver, we find no error by the trial court. Because we are reviewing the trial court’s orders dismissing all counts in plaintiffs’ amended and second amended complaints, we must accept all well-pleaded facts as true. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 514.) Our quest is to determine the “legal sufficiency of the complaint.” (Kirk, 117 Ill. 2d at 516.) While “[p]leadings are to be liberally construed with a view to doing justice between the parties [citations], *** that does not lessen the obligation of the plaintiff to set out facts necessary for recovery under the theory asserted in the complaint.” (Kirk, 117 Ill. 2d at 516; see Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287.) Pursuant to these rules, we will review the trial court’s dismissal of each count in plaintiffs’ amended complaint and second amended complaint.

ANTITRUST COUNT

Count II of plaintiffs’ amended complaint alleged that the Authority conspired to restrain trade in violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1989, ch. 38, pars. 60 — 1 through 60 — 11). The trial court dismissed count II on the grounds that the Authority was immune from liability under the Antitrust Act and the State action doctrine.

Plaintiffs argue that section 5(14) of the Antitrust Act (Ill. Rev. Stat. 1989, ch. 38, par. 60 — 5(14)), on which the trial court relied to dismiss the count, does not apply because the Authority is not a “unit of local government.” Plaintiffs further argue that the State action antitrust immunity doctrine, also relied on by the trial court, does not apply to the instant case. On that latter point, plaintiffs distinguish Wellwoods Development Co. v. City of Aurora (N.D. Ill. 1986), 631 F. Supp. 221, aff’d (7th Cir. 1987), 822 F.2d 1091, a strikingly similar case on which the trial court relied, as involving an antitrust claim against a municipality rather than an airport authority. Plaintiffs also argue that the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.) does not apply to the instant case. Lastly, plaintiffs argue that count II sufficiently alleged the essential elements of an antitrust claim.

The Authority responds that the trial court properly dismissed count II of the amended complaint for three reasons. First, the Authority argues that under section 5(14) of the Antitrust Act, the Authority is a “local unit of government” and the Act therefore does not apply. The Authority refers this court to section 1 of article VII of the Illinois Constitution, which states in pertinent part:

“ ‘Units of local government’ means counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts.” (Ill. Const. 1970, art. VII, §1.)

The Authority also invokes Chicago Transit Authority v. Danaher (1976), 40 Ill. App. 3d 913, where the court concluded that the Chicago Transit Authority and the Chicago Housing Authority were both “units of local government” in that they were both “special districts” within the meaning of the above section of the Illinois Constitution. Danaher, 40 Ill. App. 3d at 915-17.

Second, the Authority argues that it is immune from liability under the State action doctrine, which protects States and municipalities from antitrust liability (see Town of Hallie v. City of Eau Claire (1985), 471 U.S. 34, 39, 85 L. Ed. 2d 24, 29-30, 105 S. Ct. 1713, 1716-17), as well as under the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seg.). The Authority argues that this court should follow the reasoning and holding of the court in Wellwoods Development Co. The court there dismissed plaintiff’s antitrust claim against the defendant municipal airport authority, concluding that the two criteria for application of the State action doctrine were met: (1) that a legislative act authorized the challenged conduct; and (2) that anticompetitive effects were a foreseeable result of the authorization. (Wellwoods Development Co., 631 F. Supp. at 224-25.) The Authority also argues that it is immune from liability for refusing to extend plaintiffs’ leases or to enter into various contracts with plaintiffs under the Tort Immunity Act, specifically citing to sections 2 — 104, 2— 109 and 2 — 201 (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 104, 2 — 109, 2— 201).

Lastly, the Authority argues that the allegations in count II of plaintiffs’ amended complaint are vague, conclusory and fail to allege the essential elements of an antitrust claim. The Authority cites Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, for the proposition that an antitrust claim must allege factual allegations of an illegal agreement including “when, how or what the defendants agreed to do” (Adkins, 129 Ill. 2d at 521), which they argue plaintiffs have failed to do. The Authority cites Coffey v. MacKay (1972), 2 Ill. App. 3d 802, for the proposition that a mere refusal to deal, as they contend is the case here, does not constitute an antitrust violation. (Coffey, 2 Ill. App. 3d at 810.) Finally, the Authority argues that this count should be dismissed because the amended complaint fails to allege facts demonstrating that competition has been unreasonably restrained, citing Adkins (129 Ill. 2d at 521-22).

We agree with the trial court’s determination that the Authority was immune from liability under section 5(14) of the Antitrust Act, which provides:

“No provisions of this Act shall be construed to make illegal:
* * *
(14) the activities of a unit of local government or school district and the activities of the employees, agents and officers of a unit of local government or school district.” (Ill. Rev. Stat. 1989, ch. 38, par. 60 — 5(14).)

The Authority is plainly a “unit of local government” within the meaning of that section (see Ill. Const. 1970, art. VII, §1 (defining “units of local government”); Danaher, 40 Ill. App. 3d at 915-17 (court held that the Chicago Transit Authority and the Chicago Housing Authority were “units of local government”)).

We also agree with the trial court that the Authority is immune from liability under the State action antitrust immunity doctrine. We believe that Wellwoods Development Co. is squarely on point and controlling in that regard. The instant case and Wellwoods Development Co. are remarkably similar in that in both a municipal airport authority was sued under an antitrust theory. Plaintiffs’ argument that in Wellwoods Development Co. a municipality, rather than an airport authority, was sued is really a distinction without a difference. The two-part test for application of the State action immunity doctrine set out by the Wellwoods Development Co. court is met in the instant case: (1) a legislative act authorized the Authority to contract with parties (see Ill. Rev. Stat. 1989, ch. ISVz, par. 68.8 — 03 (allowing a municipal airport authority to enter into contracts)); and (2) the anticompetitive effects of allowing the Authority to contract with parties was a foreseeable result of the legislative authorization. See Wellwoods Development Co., 631 F. Supp. at 225 (when the legislature allows a municipal corporation to enter into contracts, there will be some contracts that the municipal corporation will choose not to enter into, a foreseeable result that could be characterized as anticompetitive).

Having found ample support for the trial court’s dismissal of count II of plaintiffs’ amended complaint, we need not consider the alternative arguments raised by the Authority.

TORTIOUS INTERFERENCE COUNT

Count III of plaintiffs’ amended complaint alleged that the Authority engaged in tortious interference with plaintiffs’ business. The trial court dismissed count III on the ground that the Authority was immune from liability under the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 2-104, 2-109, 2-201).

This court has stated that the requisite elements for a tortious interference with business claim are: “(1) plaintiff has a valid business expectancy; (2) defendant has knowledge of the expectancy; (3) defendant intentionally interferes with the prospective business relationship and prevents its realization; and (4) resultant damage to plaintiff.” Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 867; see Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 510-13.

Plaintiffs summarily argue that count III sufficiently states a cause of action for tortious interference. The Authority responds that count III failed to state a prima facie case because it did not allege the existence of a contract or a business relationship with a third party which plaintiffs are seeking to protect, and also because count III failed to allege interference. While the Authority also argues other reasons to affirm the trial court’s dismissal of count III, we need not discuss them since we agree that plaintiffs have failed to allege a prima facie case for tortious interference.

Illinois courts have stated that the first element of a prima facie case for tortious interference, that plaintiff had a valid business expectancy, requires allegations of business relationships with specific third parties. (Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 184; Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 402-03.) In the instant case, rather than alleging business relationships with specific third parties, count III alleges in general and conclusory terms that “plaintiffs were continually negotiating and entering into business relationships with others.” Such is insufficient and by itself would have been fatal to count III at the dismissal stage.

Yet count III is also lacking another element of a prima facie case for tortious interference, that of interference by the Authority toward a third party. While plaintiffs seek to hold the Authority liable for refusing to enter into leases or contracts with them, claiming that the refusal interfered with plaintiffs’ ability to continue dealing with their own customers, we find such allegations insufficient. Illinois courts require that a tortious interference claim be supported by allegations that the defendant acted toward a third party. (Willcutts v. Galesburg Clinic Association (1990), 201 Ill. App. 3d 847, 851; Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 607; Parkway Bank & Trust, 43 Ill. App. 3d at 402-03.) We find no such allegations within the four corners of plaintiffs’ amended complaint.

We conclude that count III of plaintiffs’ amended complaint failed to state a cause of action for tortious interference. We therefore hold that the trial court properly dismissed count III, albeit on different grounds than the trial court (see Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502).

CONSUMERFRAUD COUNT

Count IV of plaintiffs’ amended complaint alleged that the Authority violated the Consumer Fraud Act (Ill. Rev. Stat. 1989, ch. 121½, pars. 261 through 272). The trial court dismissed the count, concluding that the Authority was not subject to the provisions of the Act and also on grounds of immunity.

Plaintiffs argue that the trial court erred because the series of wrongful acts alleged in count IV are “precisely what this Act was created to protect against.” Plaintiffs contend that for purposes of count IV this court should view the Authority as a commercial enterprise rather than a municipal corporation and thus find it subject to the Act.

The Authority responds with four arguments. We find the first argument dispositive of this issue. The Authority argues that under section 10a of the Act (Ill. Rev. Stat. 1989, ch. 121½, par. 270a) municipal corporations such as it are not subject to provisions of the Act, citing Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, which the trial court also relied on. We agree.

Section 10a of the Consumer Fraud Act provides a right of action for violations of the Act against a “person.” (Ill. Rev. Stat. 1989, ch. 121½, par. 270a.) The term “person” is defined in section 1(c) of the Act as “any natural person or his legal representative, partnership, Corporation (domestic and foreign), company, trust, business entity or association, and any agent *** thereof.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 121½, par. 261(c).

The Authority notes that in defining “person” the legislature specifically listed “domestic or foreign” corporations, but did not include municipal corporations. They urge that this court apply the statutory construction rule of expressio unius est exclusio alterius, pursuant to which a court may find that when certain things are specified or listed in a law, a legislative intention to exclude all others from the law’s operation may be inferred. (See Lunde v. Rockford Public Library Board (1987), 153 Ill. App. 3d 803, 809-10.) We agree that application of that rule to section 1(c) of the Act leads to the inference that the legislature did not intend to make municipal corporations subject to the Act.

Our conclusion that the Authority is not subject to the Consumer Fraud Act is strengthened by our supreme court’s decision in A, C & S. In that case, the supreme court held that a school district lacked standing to bring an action under the Act because it was not a “person” within the meaning of the Act. The court rejected the school district’s argument that it fell within the definition of a “corporation” stating:

“The plaintiffs also argue that pursuant to the School Code school districts have the legal status of bodies ‘politic and corporate,’ with capacity to sue and be sued [citation], and thus fall within the Consumer Fraud Act definition of a ‘corporation.’ The Consumer Fraud Act clearly makes an unusual distinction that the Act only applies to domestic and foreign corporations. A body politic or municipal entity is neither type of corporation, and we believe that such an interpretation would again ignore language within the Act.” (A, C & S, 131 Ill. 2d at 468.)

Similarly here, the Authority is a municipal corporation, does not fall within the definition of “person” in the Act, and is therefore not subject to suit under the Act.

We conclude that the trial court properly dismissed count IV of plaintiffs’ amended complaint.

ESTOPPEL COUNT

In count I of plaintiffs’ second amended complaint, plaintiffs alleged that the Authority should be required to pay plaintiffs the fair-market value of the leasehold improvements which plaintiffs made at the airport rather than the depreciated value, as their leases called for, under an estoppel theory. Plaintiffs alleged that they believed that the Authority would renegotiate their leases to include a fair-market value method of payment since the Authority had done so with many other lessees at the airport. The trial court dismissed this count without articulating a reason.

Plaintiffs argue that the trial court erred because count I adequately stated a cause of action in estoppel. They invoke Amalgamated Trust & Savings Bank v. Village of Glenview (1981), 98 Ill. App. 3d 254, for the proposition that the two essential elements to invoke equitable estoppel against a municipality are:

“(1) [that there occurred] an affirmative act on the part of the municipality, and (2) the inducement of substantial reliance on the affirmative act.” (Amalgamated Trust, 98 Ill. App. 3d at 261.)

They also invoke City of Chicago v. Sievert Electric Co. (1985), 134 Ill. App. 3d 552, for the proposition that “[w]hether the doctrine of estoppel may be applied against a municipal corporation depends upon a consideration of all of the circumstances of the case.” (Sievert Electric, 134 Ill. App. 3d at 556.) Plaintiffs summarily argue that the first element of the two-part Amalgamated Trust test, that of an affirmative act on the part of a municipality, is adequately alleged in count I, and that they were induced to rely on that affirmative act, satisfying the second element. The affirmative act alleged by plaintiffs is the Authority’s renegotiation of leases with other tenants at the airport.

The Authority responds that the trial court properly dismissed count I because: (1) plaintiffs’ leases are valid and should be enforced as written; (2) plaintiffs have failed to adequately allege a prima facie estoppel claim; (3) the Authority is not liable under section 2 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 2 — 106); and (4) the count is barred by the statute of limitations and laches.

We believe that the Authority’s first argument, that the leases are valid and should be enforced as written, is strong enough that we need not consider the remaining three arguments raised.

Initially, we note that “[principles of estoppel do not usually apply to public bodies [citation] and estoppel is found against such bodies only in rare and unusual circumstances.” Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 337-38; accord Carey v. City of Rockford (1985), 134 Ill. App. 3d 217, 219 (the law does not favor a finding of estoppel against a public body).

In that context, we believe the trial court properly dismissed count I of plaintiffs’ second amended complaint. Prior to dismissing a similarly worded estoppel count in plaintiffs’ amended complaint, the trial court stated:

“The leases were clear that were entered into between the Plaintiff[s] and [the Authority],
The provisions are unambiguous. They’re — they provide for — for a formula for compensation.
That was obviously acceptable to all parties at the time they were entered into.”

Plaintiffs entered into written leases which stated in clear and unambiguous terms that plaintiffs would be paid the depreciated value of any leasehold improvements when their leases terminated. We find no basis to allow plaintiffs to proceed on an estoppel theory and have a court of law rewrite their leases so that they will be compensated at fair-market value for the leasehold improvements. We find no error in the trial court’s dismissal of count I of plaintiffs’ second amended complaint.

SECTION 1983 COUNT

In count II of plaintiffs’ second amended complaint, plaintiffs alleged that the Authority took the leasehold improvements without complying with the Eminent Domain Act (Ill. Rev. Stat. 1989, ch. 110, par. 7 — 101 through 7 — 129) and thereby deprived plaintiffs of property in violation of section 1983 of the Civil Rights Act of 1871 (42 U.S.C. §1983 (1988)). The trial court dismissed count II without articulating a reason.

Plaintiffs summarily contend that the trial court erred by dismissing count II because it sufficiently stated a cause of action under section 1983. Plaintiffs claim that since the Authority owed them either the depreciated value of the improvements under the terms of the leases, or the fair-market value as argued in this case, plaintiffs maintained a valid property interest in the leasehold improvements.

The Authority responds that plaintiffs have no valid property interest in the leasehold improvements because the unambiguous terms of the leases provided that all leasehold improvements became the property of the Authority and that plaintiffs would be paid the depreciated value of the improvements, when the leases terminated. The Authority argues that inasmuch as the improvements became their property pursuant to the leases, the Eminent Domain Act has no application here. The Authority contends that count II is “frivolous and was properly dismissed.”

We briefly review the elements for a section 1983 cause of action. Section 1983 establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” (42 U.S.C. §1983 (1988).) Two allegations must be made to state a claim under that provision. First, the plaintiff must allege that some person has deprived him of a constitutionally protected right (Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 514), such as a vested property right (see Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 577-79, 33 L. Ed. 2d 548, 561-62, 92 S. Ct. 2701, 2709-10). Second, he must allege that the person who has deprived him of that right acted under color of State law. Fellhauer, 142 Ill. 2d at 514.

We agree with the Authority that the trial court properly dismissed plaintiffs’ section 1983 count. The leases between the Authority and plaintiffs, the validity of which has not been challenged by the plaintiffs, provided that all leasehold improvements became the property of the Authority. The leases also provided that plaintiffs would be paid the depreciated value of the improvements when the leases terminated. This was the deal the two parties struck when they signed the leases. The underlying premise in this section 1983 count, that the Authority could only have taken control of the leasehold improvements through an eminent domain proceeding, contradicts the language of the valid and enforceable leases. We conclude that count II of plaintiffs’ second amended complaint was properly dismissed by the trial court.

Since we did not rely on any of the Authority’s arguments that it was not liable under the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.) or because plaintiffs’ cause of action is barred by the statute of limitations, we have likewise not considered any of plaintiffs’ arguments to the contrary.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

NICKELS and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
      In re MARRIAGE OF CHARLES R. PHILLIPS, Petitioner-Appellee, and PERMELIA ANN PHILLIPS, Respondent-Appellant.
    Second District
    No. 2—91—0695
    Opinion filed May 22, 1992.
    Rehearing denied July 8, 1992.

      Scott Courtin, of Truemper, Hollingsworth & Wojtecki, of Aurora, and Wilson Burnell, of Oswego, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Permelia Ann Phillips (Ann), appeals after the trial court entered a judgment dissolving her marriage with petitioner, Charles R. Phillips. The judgment designated the distribution of marital and nonmarital property between the parties. Ann appeals, contending that a new trial should be granted to determine the proper value of certain assets, that the distribution of marital assets was grossly unfair, and that she should be reimbursed for the value of certain nonmarital property that was deemed marital property. We reverse in part and remand.

The parties were married on April 18, 1981, and resided in Aurora, Illinois. Before the marriage, Charles was a barber in business with his half-brother. Ann was in management with AT&T. The couple lived in Charles’ apartment for a short time after their marriage. They later moved to 1131 E. New York Street in Aurora, a building that was purchased by the couple for a “Unisex Hair Styling” shop before their marriage. They lived in an efficiency apartment in the building for three months.

The property at 1131 E. New York was purchased for $25,000. Charles paid the $2,500 earnest money out of his funds. Ann contributed $4,000 toward the purchase of the building. A mortgage for $18,500 was obtained with the Aurora National Bank (Aurora National). The couple worked together to remodel and convert the building into a hair styling shop. The shop is named “Phillips Hair Studio” and is primarily operated by a business manager. The value of the property was stipulated to be $68,500.

After living at 1131 E. New York for three months, the couple moved to 830 Galena in Aurora. The building was owned by Ann prior to the marriage. Charles testified that he made improvements to the building before they moved into it. The couple lived at 830 Galena for a year and a half. After moving from the property, Ann sold it for $39,000, receiving net proceeds of $32,870.18. She deposited this money into account No. 251605 at Aurora Federal Savings (Aurora Federal), a joint account in the names of Ann and her mother, Lucille Marie Davis.

In 1983, the couple purchased a house at 575 Apache Drive in Batavia for $77,000. Charles and Ann each contributed $8,000 toward the down payment, and the remaining balance was financed with a mortgage. Charles made certain repairs to the house, including plumbing, trim, flooring and painting. In July 1986, the house was refinanced through Aurora Federal for $55,000. Charles has continued to live at 575 Apache since the purchase. The value of the property was stipulated to be $110,500 at trial.

In June 1986, AT&T transferred Ann to Freehold, New Jersey. Ann purchased 20-H Manchester in Freehold for $60,000, to live in while in New Jersey. Ann financed part of the purchase with a mortgage that had an unpaid balance of approximately $50,000 in June 1989. Ann was transferred back to Aurora in October 1987. By that time, petitions had been filed to dissolve the couple’s marriage.

During the couple’s marriage, the finances of both parties were kept relatively separate. Each party filed separate income tax returns. Ann’s salary with AT&T was approximately $47,000 a year plus “A.P.A. team awards.” Ann has a savings plan with AT&T which, as of June 1, 1989, had a balance of $153,072.34. The premarital contribution and accumulation in the AT&T savings plan had a value of $58,782.97 as of June 1989. Ann also participates in AT&T’s stock ownership plan. A January 1982 statement from AT&T showed that Ann owned 13.985 shares of stock through 1980, and at the time of trial in June 1989, she owned 137.682 shares. The value of the stock was stipulated as the closing price on June 12, 1989. Ann also has a pension plan with AT&T. The value of the portion acquired during the marriage was stipulated to be $10,191.

Ann owned a number of other accounts containing savings and stock. She has a bank account with Old Second National Bank of Aurora, account No. 28322, for daily financial transactions. The balance on June 12, 1989, was approximately $800. Ann opened an account with Aurora Federal, No. 251605, in January 1983. Ann deposited portions of her AT&T salary into this account. The proceeds from the sale of her property at 830 Galena were also deposited into this account. From this account, Ann wrote checks to Merrill Lynch for deposit into her stock account.

Ann has three separate accounts with Merrill Lynch. Account No. 62621432 is a stock transfer account which Ann claims had a balance of $20,000 when the couple married. The total value of shares on June 12, 1989, was $60,092.13. Account No. 62621707 is a Canadian Maple Leaf Gold Coin account containing 10 coins. The value of the coins on April 22, 1989, was approximately $3,889. The third account with Merrill Lynch, No. 62685255, was opened to roll over her AT&T IRA accounts. The balance of the account was determined to be $19,935.79, as of June 1989.

Finally, Ann purchased shares in Putnam Health Sciences Trust on May 21, 1982, which were held with her other Merrill Lynch accounts. On June 20, 1989, it was stipulated that the value of the account was $12,500.

As previously stated, Charles was a barber before his marriage to Ann. He also was in the business of purchasing distressed real estate. Charles and his brother purchased 323 Flagg Street, Aurora, prior to his marriage to Ann. The property was purchased in his brother’s name. The value of 323 Flagg was stipulated at trial to be $28,000.

Other properties which were purchased during the marriage were put into an Illinois land trust, trust No. 53270, with Aurora National as trustee. The beneficial interest in the trust was assigned to Aurora National to secure a $70,000 line of credit. The trial judge assigned values to the properties in trust by subtracting the mortgage balance from either the stipulated values assigned to them at trial on June 12, 1989, or the purchase price. The properties included in the land trust were: 120 N. State Street and 124 N. State Street, Aurora, valued together by the trial court at $18,522.76; 1018-1020 Kane Street, Aurora, valued at $15,000; 1128 New York, Aurora, valued at $55,000; 202-204 Schiller Ave., Aurora, valued at $30,349.22; and 737 Kane, Aurora, a vacant lot that was improved with a house from 910 Kane, Aurora, valued at $5,000.

Charles had another property in the trust, 918 Kane, Aurora, which was sold before the trial court assigned values to the properties in trust. The property was sold for $31,000. Also, in January 1989, 1128 New York was sold for $55,000. Charles had also purchased a house at 915 Fenton for approximately $2,300, which was moved to 1020 Kane, Aurora. Charles sold 202-204 Schiller for $77,000. Finally, 737 Kane was appraised after the hearings, with the house from 910 Kane on the lot, at approximately $55,000.

Hearings were held on all property and maintenance issues beginning on June 5, 1989. On June 12, the parties stipulated to the values of many of the properties previously discussed. After the hearings concluded in August 1989, the court requested briefs from both parties detailing the proposed distribution of marital and nonmarital assets.

The filing of the trial briefs was not complete until July 1990. In the interim, Charles sold 202-204 Schiller in violation of the court’s September 15, 1989, order restraining him from selling real estate. After a hearing on a rule to show cause, the court ordered Charles to pay one-half of the $11,756.02 net proceeds from the sale of the property to Ann. Ann claims that she never received the proceeds.

On March 21, 1991, the trial court issued a letter opinion detailing the court’s decision on the distribution of property between the parties. The values given to the property were those stipulated to or determined in the hearings in June and August 1989. The court distributed assets in the following fashion:

“To Charles Phillips
Non-Marital Property
1. Barber and beauty business known as Phillips Hair Studio along with inventory and bank accounts value— $35,000
2. 323 Flag Street, Aurora, Illinois 14,000
Marital Assets
1. 1131 East New York Street, Aurora, Illinois 68,500
2. 575 Apache Drive, Batavia, Illinois 110,500
3. Beneficial interest in Aurora National Bank Trust #52370 including properties at 120/ 124 State Street; 1128 East New York Street; 202-204 Schiller, Aurora, Illinois; 1018 Kane Street, Aurora[,] Illinois; 737 Kane Street, Aurora, Illinois; less individual mortgages on said premises and Aurora National Bank line of credit in the approximate amount of $70,000 which said mortgages and line of credit Charles Phillips shall assume and be solely obligated to pay and shall indemnify and hold Wife harmless therefrom 53,871.98
4. Charles Phillips IRA Account 4,300
5. 1986 Nissan automobile 9,000
6. Aurora Federal Savings & Loan Assoc. Account #208311-1 3,404.06
7. Aurora Federal Savings & Loan Assoc. Account #205359-3 1,177.34
8. 1986 Van 500
9. Used barber and beauty chairs 2,000
10. One-half AT&T ESOP
[Employee Stock Ownership Plan] X
To Permelia Ann Phillips Non-Marital Property
1. Merrill Lynch Account #62621707 $ 3,889
2. AT&T Pension Plan non-marital portion 12,188
Marital Property
1. Merrill Lynch Account #6262134 60,092
2. AT&T Savings Plan for Salaried Employees 155,072.34*
3. AT&T Pension Plan marital portion 10,191
4. Merrill Lynch Account #626-85255 19,935.79
5. Aurora Federal Savings & Loan Assoc. Account
#001-09-251605 6,018.48
6. Putnam Health Services Account 12,500
7. 20H Manchester, Freehold, New Jersey 20,000
8. Old Second National Bank Account #28322 800
9. 1983 Buick automobile 1,500
10. One-half AT&T Employee Stock Ownership Plan X”
* This figure should be 153,072.34

The trial court also stated that each party would be responsible for the debt, taxes and expenses on each property awarded to him or her. Ann was given the right to repurchase the one-half interest in the AT&T stock ownership plan awarded to Charles. No maintenance or attorney fees were awarded.

The judgment for dissolution of marriage was filed on April 19, 1991, in accordance with the trial judge’s previous letter opinion. Ann filed a post-trial motion on May 14, 1991, claiming numerous errors by the trial court. Her main contention was that the court erred in using the June 1989 stipulated values of certain property to determine the distribution of property in April 1991. Ann’s post-trial motion was denied on May 24,1991. Thereafter, she filed a timely notice of appeal.

Ann contends that a new trial on the issue of property valuation should be granted because the trial court erred in using stipulated values from June 1989 instead of values determined at the time of the judgment in April 1991. Ann also contends that the distribution of marital assets was grossly unfair because the trial court failed to properly consider Ann’s contributions in acquiring and preserving marital property. Finally, Ann contends that she should be reimbursed for portions of marital property that she owned prior to the marriage, citing section 503(cX2) of the Hlinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2)).

We note that the petitioner, Charles, has not filed a brief in this cause. We will analyze the appeal in accordance with the principles discussed in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

We find that Ann’s third contention squarely addresses the distribution problems in this case, and we choose to address it first. Ann contends that the trial court erred by failing to reimburse her for the value of her nonmarital property that was found transmuted into marital property. In essence, we are asked to interpret section 503(cX2) of the Act, which states:

“(2) When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” Ill. Rev. Stat. 1989, ch. 40, par. 503(cX2).

Ann claims that she should receive reimbursement for $58,339.61, the amount that was in her AT&T savings plan before she was married. She also claims that she should be reimbursed for the premarital value of her Merrill Lynch stock account, No. 62621432, which was approximately $20,000. Ann claims that the net proceeds from the sale of 830 Galena, $32,870.19, should be subject to reimbursement because it was nonmarital property. Finally, Ann suggests that the trial court was inconsistent in awarding nonmarital property because Charles received 323 Flagg as nonmarital property when marital assets were used to improve it.

Ann has focused on the right to reimbursement under section 503(cX2). To fully understand the interpretation of section 503(cX2) of the Act, we must also analyze section 503(cXl), which states:

“(1) When marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution, subject to the provisions of paragraph (2) of this subsection; provided that if marital and non-marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates, the commingled property shall be deemed transmuted to marital property, subject to the provisions of paragraph (2) of this subsection.” Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(1).

Before the court may dispose of property upon dissolution of marriage, it must be classified as either marital or nonmarital. (In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 381.) The classification will not be disturbed unless contrary to the manifest weight of the evidence. (In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 689.) After classification, the court assigns each spouse’s nonmarital property to that spouse and divides the marital property between the parties in just proportions. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) Section 503(b) provides that all property acquired after the marriage is presumed to be marital property regardless of how title is held and the presumption is rebutted by showing that property was acquired by a method listed in section 503(a) of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 503(b).) Clear and convincing evidence is needed to rebut the presumption that property acquired after the marriage is marital property. Landfield, 209 Ill. App. 3d at 692.

When applying section 503(cXl) to Ann’s AT&T savings plan, we find that the trial judge erred in designating this asset as marital property. The trial judge followed Charles’ argument that the savings plan was marital because marital contributions, those contributions made to the plan after marriage, were commingled with nonmarital contributions to create a marital asset. In fact, section 503(cXl) states that when marital and nonmarital assets are commingled resulting in the loss of the identity of the contributed property, the resulting asset retains the classification of the property receiving the contribution, subject to reimbursement to the contributing estate. Ill. Rev. Stat. 1989, ch. 40, par. 503(cXl).

Here, the savings plan would retain its original classification as Ann’s nonmarital property. The contributions made to the savings plan during the marriage were marital property because remuneration to a spouse, in whatever form, during the marriage is considered marital property. (See In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 715 (part of husband’s pension attributable to the married years is to be considered as marital property).) The savings plan is funded through salary contributions by the employee and matching funds of 66 cents for every dollar for the first 6% of the employee’s salary by AT&T. The cash contributions into the savings plan during the marriage lost their identity and became part of the nonmarital savings plan. Thus, the savings plan should have been classified as nonmarital because the savings plan was the property receiving the contributions.

Section 503(cX2) allows for reimbursement to the contributing estate, unless it was a gift from that estate or is not traceable by clear and convincing evidence. (Ill. Rev. Stat. 1989, ch. 40, par. 503(c)(2).) Here, there was no evidence presented to show that the contributions made to the savings plan were meant to be a gift from the marital estate to Ann’s nonmarital estate. Ann’s contention that marital problems occurring six months after the marriage began demonstrate that a gift was intended is insufficient evidence to prove a gift of marital property to the nonmarital estate. (See generally Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification & Division upon Dissolution of Marriage, 72 Ill. B.J. 336, 340 (1984) (when marital property contributed to nonmarital estate, presumption of marital property overcomes common-law presumption of gift).) Also, the marital contributions are traceable by clear and convincing evidence. Ann presented an expert witness, James Casey, who supplied detailed evidence of the contributions made to the savings plan before and after the marriage.

The trial court erred in classifying the AT&T savings plan as marital property. On remand, the trial court should include the savings plan in Ann’s nonmarital estate. The marital estate should be reimbursed for the contributions made to the savings plan after the date of marriage. James Casey presented a document prepared by AT&T, Ann’s exhibit No. 29, that detailed the marital contribution to the savings plan. All accumulations in the plan, even those resulting from contributions of marital property, are nonmarital property, subject to reimbursement. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(7).) The marital contribution, subject to reimbursement, is $94,280.37, based on Ann’s exhibit. We recognize that the exhibit deems the premarital portion to be prior to January 1, 1981, when in reality the parties were married in April 1981. However, neither party objected to the use of this chart to distinguish premarital and marital contributions and accumulations, and we find that the chart makes the distinction as well as can be done.

The same analysis would apply to the distribution of Ann’s shares of stock owned through the AT&T employee stock ownership plan. Ann’s exhibit No. 15A detailed the number of shares allocated to Ann before the marriage. The number of shares owned by Ann through 1980, as stated on the statement of account as of January 2, 1982, was 13.958 shares. In June 1989, Ann testified that she owned 137.682 shares of stock.

Under section 503(cXl) of the Act, the stock ownership plan is a nonmarital asset that increased after marriage through contributions based on Ann’s salary, a marital asset. As such, the entire stock plan, all 137.682 shares, should be classified as nonmarital property subject to reimbursement to the marital estate for contributions made to the plan during the marriage. Ann’s exhibit No. 14 distinguishes the accumulation of stock prior to 1981 and the dividend accumulations on that stock versus the accumulation of stock and dividends after the marriage. Based on that document, the marital estate is entitled to a reimbursement of 68.574 shares of AT&T stock valued, as per the trial judge’s determination, as of the date of the close of business on the New York Stock Exchange as reported in the Chicago Tribune for June 12,1989.

The classification and distribution of the AT&T savings plan and the employee stock ownership plan is analogous to the classification and distribution of stock owned by the husband in In re Marriage of Landfield (1991), 209 Ill. App. 3d 678. There, the husband owned l.SBB1^ shares of stock in the Landfield Company. The husband acquired 223 shares prior to the marriage, inherited 511V2 shares from his father’s estate after marriage, and acquired 854 shares during the marriage. (Landfield, 209 Ill. App. 3d at 690-91.) The reviewing court found that the trial court properly classified the 854 shares as marital property because the husband failed to rebut the presumption that the property acquired after the marriage was marital property. Landfield, 209 Ill. App. 3d at 693.

Here, the classifications of the savings plan and stock ownership plan are similar. Ann owned portions of each before marriage. These portions are designated as nonmarital property. The portions acquired during the marriage are presumed to be marital property. (Ill. Rev. Stat. 1989, ch. 40, par. 503(b).) Ann failed to rebut this presumption, so the portions acquired during the marriage should be reimbursed to the marital estate pursuant to section 503(cX2) of the Act.

Ann also argues that the proceeds received from the sale of 830 Galena, $32,870.19, and the $20,000 she had in Merrill Lynch account No. 6262134 should also be designated as nonmarital property. The trial judge found that the proceeds from the sale of 830 Galena were deposited in Aurora Federal account No. 251605 and commingled with marital funds, thereby transmuting the proceeds into a marital asset. The money was later deposited in Merrill Lynch account No. 6262134. The trial judge made no finding concerning the $20,000 that allegedly existed in Merrill Lynch account No. 6262134 prior to the marriage, but determined that the account was a marital asset.

We hold that the trial court’s finding that Merrill Lynch account No. 6262134 was marital property was not against the manifest weight of the evidence. Ann’s assertion that the account was established before the marriage and contained $20,000 is not strongly supported by her testimony. Ann testified at the hearing on this issue as follows:

“Q. Let me show you Plaintiff’s Exhibit No. 23 and ask you if you’ve seen that document before?
A. Yes, I provided it to you.
Q. Is that the document from which you ascertained [that the value of Merrill Lynch account No. 6262134] was $20,000.00 at the time you got married?
A. Yes.
Q. Why isn’t it a fact that Plaintiff’s Exhibit No. 23 is a document—
A. Not the date that I got married. You asked for 1981, so I didn’t say date of marriage. You said 1981. So that’s for 1981.
Q. But September 26, 1981, to October 30th, 1981, is the date that this document bears, isn’t it?
A. Yes.
Q. And this is where you got your information that your account in your opinion was worth $20,000.00 on the day you got married?
A. Yes.
Q. You don’t have any actual documents that show what the value was on the date you got married, is that correct?
A. No.”

Our reading of the record shows that insufficient evidence was presented to establish the value of Merrill Lynch account No. 6262134 before the marriage or what assets were used to fund that account. The trial judge chose to disbelieve Ann’s testimony, and it is not our function to reassess the trial court’s credibility findings. See Durante, 201 Ill. App. 3d at 382.

We also find, however, that the trial court erred in failing to reimburse Ann for $27,649.48 of the $32,870.19 of Ann’s nonmarital proceeds from the sale of 830 Galena that were contributed to her Merrill Lynch accounts. Ann established that she kept the proceeds from the sale of 830 Galena in Aurora Federal account No. 251605 for only a month before beginning to transfer it to Merrill Lynch account No. 6262134 and its predecessor account No. 66146501. We have reviewed the monthly bank statements from Aurora Federal and determine that only $27,649.48 is traceable to the Merrill Lynch deposits.

Ann testified that a $20,000 check written to Merrill Lynch on April 29, 1983, and checks for $1,061.45 and $5,000 written to Merrill Lynch on June 8, 1983, were all traceable to the 830 Galena proceeds. Ann argues in her brief that a check for $5,408.57, written on March 8, 1983, was also to Merrill Lynch. However, the record reflects that the $20,000 check on April 29, 1983, was the first to Merrill Lynch. Before the $20,000 check was written, $3,684.55 of the 830 Galena proceeds had to be used between February 15 and March 15, 1983, to cover debits on account No. 251605. Between March 15 and April 15, 1983, an additional $519.54 was taken from the 830 Galena proceeds, as the other credits on the account failed to cover the debits by that figure. Between April 15 and May 15, 1983, an additional $1,017.25 of 830 Galena proceeds was needed to keep the account in the black before the $20,000 check was debited. So, Ann only had $27,649.48 of 830 Galena proceeds in the account when the first check to Merrill Lynch, for $20,000, was written.

The two checks written to Merrill Lynch on June 8, 1983, for $1,061.45 and $5,000 were fully traceable to the nonmarital 830 Galena proceeds. Ann also claims that a check written on March 29, 1984, to Merrill Lynch for $5,224.95 was directly traceable, but based on the monthly debits and credits of the account through March 1984, only $1,588.03 of 830 Galena proceeds remained in the account. Thus, Ann is entitled to a nonmarital reimbursement of $27,649.48.

Finally, Ann argues that the trial court erred by awarding 323 Flagg to Charles as nonmarital property when marital proceeds were used to improve it. Ann argues that $20,000 of marital property was used to rehabilitate 323 Flagg. As authority for this assertion, she cites her testimony at the hearings:

“Q. And how did Section 8 relate to the 323 Flag [sic] Street property after the marriage?
A. Section 8 is very strict with their requirements, and we had to rehabilitate the entire building to bring it up to code for Section 8 tenants. I mean, walls, floors, there was some — about some 20,000 put into it.
Q. And where did that money come from?
A. Out of the marital funds. Charles took it out of the business funds.”

Charles testified that the funds used to rehabilitate 323 Flagg came from fire insurance proceeds. Because Ann must trace the reimbursable marital proceeds by clear and convincing evidence (Ill. Rev. Stat. 1989, ch. 40, par. 503(cX2)), and because we will not disturb the credibility determination of the trial court (Durante, 201 Ill. App. 3d at 382), we find that the trial court did not err in awarding 323 Flagg to Charles as non-marital property without reimbursement to the marital estate.

We choose not to discuss the classification of the remaining assets because Ann did not raise the issue of improper classification as to those particular assets and because we find that the trial court’s classification as to those assets was not contrary to the manifest weight of the evidence. We do, however, discuss Ann’s other contentions as they relate to the proper distribution of marital assets on remand.

Ann argues that a new trial should be granted to redetermine the values of many of the investment properties awarded to Charles. She claims that the properties should be valued at the time of the judgment. Ann posits that the trial court erred when it relied on the June 1989 stipulated values of the investment properties in its April 1991 judgment.

“Whether to reopen proof is a matter for the trial court’s discretion, taking into account any excuse for the failure to introduce the relevant evidence at trial and any surprise or unfair prejudice to the opposing party; we will not disturb the court’s decision absent a clear abuse of discretion and substantial injustice.” (In re Marriage of Feldman (1990), 199 Ill. App. 3d 1002, 1006.) Assets are to be valued at the time of the judgment for dissolution of marriage. (In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 35.) However, it is the obligation of the parties to present the court with sufficient evidence of the value of the property. (In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 59.) Greater liberty should be allowed in reopening proofs when the case is tried before the court without a jury. In re Marriage of Suarez (1986), 148 Ill. App. 3d 849, 858.

We find that the trial court did not abuse its discretion when it denied Ann’s post-trial request to reopen proofs. We recognize that there was nearly a two-year gap between the time proofs were closed in August 1989 and when the judgment for dissolution was issued in April 1991. However, a large portion of this delay was due to the lack of diligence on the part of each party’s attorney. On August 9, 1989, the last day of the hearings, the trial judge informed the parties that he wanted each side to submit trial briefs discussing the distribution and valuation of marital and nonmaritai property. Charles, the petitioner, was given three weeks from the date he received the trial transcript to submit a brief. Ann was given three weeks to respond to that brief and Charles was given two weeks after that to reply to Ann’s brief. In reality, Charles’ initial brief was not filed until January 30, 1990. Ann’s response brief was filed on June 5, 1990, and Charles’ reply brief was filed on July 20,1990.

We also recognize that the trial court contributed to the delay in this cause. The trial judge’s letter opinion was not filed until March 12, 1991, and the judgment for dissolution of marriage was not filed until April 19, 1991. However, at no time during the nine-month delay before judgment did Ann file a motion to reopen proofs. It was only after the judgment had been rendered, and Ann had not received any of the investment properties, that she sought to reopen proofs. A poor precedent would be set if we were to remand for a new trial on valuation in this situation.

Ann argues that the assets should be valued at the time of the judgment. We agree. At the time the trial court made its decision, the only valuation evidence that had been presented was the stipulated values of the properties. It is the parties’ obligation to present evidence of the value of property. (Courtright, 155 Ill. App. 3d at 59.) Here, the trial court made its decision based on the only evidence that was presented, and we hold that the trial court did not err in using the valuations submitted.

The cases cited by Ann on the issue of valuation are distinguishable. In In re Marriage of Suarez (1986), 148 Ill. App. 3d 849, the husband made a motion to reopen proofs before the judgment was entered. (Suarez, 148 Ill. App. 3d at 857.) In effect, the trial court was on notice before the judgment was entered that circumstances had changed between the time proofs were closed and the entry of the judgment. Our reading of the record in this case shows that the trial judge had only the stipulated values to consider in rendering the judgment. Neither party presented the trial court with a motion or sufficient evidence to justify reopening proofs before the entry of the judgment.

The case of Rubinstein (145 Ill. App. 3d 31) was a situation where the trial court valued the husband’s stock holdings nine months before the dissolution. However, the dissolution judgment was entered on January 24, 1984, and the trial on the issues of custody, support and maintenance was reserved for a later date. (Rubinstein, 145 Ill. App. 3d at 32.) The trial court’s supplemental judgment on July 19, 1984, was entered, setting forth the distribution of property and determination of support. (Rubinstein, 145 Ill. App. 3d at 32.) The reviewing court reversed and remanded because the husband’s stock was valued based on its book value on April 30, 1983. The court stated that the stock should have been valued as of January 24, 1984, the date of the original judgment for dissolution. Rubinstein, 145 Ill. App. 3d at 35.

The sequence of events in our situation makes the Rubinstein case inapplicable. Here, the trial on the issues of valuation and property distribution was held before the judgment for dissolution. Also, the valuation problem in Rubinstein was not a result of a delay from the time of the hearings to the time of the judgment. The trial court in Rubinstein chose an improper point in time to value the stock. The trial court here valued the property at the time it rendered the judgment based on the only evidence that was before the court, the stipulated values.

Finally, Ann relies on In re Marriage of Reib (1983), 114 Ill. App. 3d 993. There, the trial court distributed property without evidence of the value of certain subsidiary companies owned by the husband. The husband owned a holding company, whose principal asset was an insurance company. It was stipulated at trial that the value of the insurance company was zero, but no evidence was presented as to the value of the other assets held by the holding company. Reib, 114 Ill. App. 3d at 999.

In the case at bar, the trial court did not distribute property that had not been designated a value. All of the property Ann claims must be revalued had a stipulated value which the judge relied upon when deciding the distribution of assets. Thus, the Reib case is distinguishable on its facts.

In addition to our previously discussed reasons for affirming the trial court’s denial to reopen proofs, we note that Ann argues that the investment properties awarded to Charles should be revalued, but she ignores the fact that the assets she received, more than likely, also increased in value during the 20-month period between the hearings and the judgment. She was awarded pension plans, savings plans, stock and real property, some or all of which have assumably also increased in value.

Ann’s final contention is that the distribution of assets was grossly unfair and contrary to the factors listed in section 503(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)). The trial court has broad discretion on matters of property distribution which will not be disturbed absent an abuse of discretion. In re Marriage of Ryan (1985), 138 Ill. App. 3d 1077,1080.

Because the trial court failed to properly classify certain property as nonmarital, the case will be remanded for a redistribution of marital assets. Thus, we need not discuss whether the distribution of assets was equitable. However, we will address Ann’s contention that Charles dissipated marital assets. She claims that Charles’ selling and mortgaging of investment properties and placing them in trust to secure a $70,000 line of credit was dissipation. Ann also claims that Charles cannot adequately account for the $70,000 obtained by the Aurora National Bank.

Dissipation is defined as the use of marital property for the sole benefit of one spouse for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 491.) A party charged with dissipating marital assets is obligated to establish by clear and convincing evidence how the funds were spent. (In re Marriage of Bush (1991), 209 Ill. App. 3d 671, 676.) “General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1022.) A finding concerning dissipation will not be disturbed unless against the manifest weight of the evidence. In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565.

The trial court made a finding that neither party had dissipated assets. Each party had charged the other with dissipation. The trial court’s analysis on this issue focused primarily on Charles’ charge of dissipation because, according to the trial judge, it was the “more serious claim.” Charles claimed that Ann violated an injunction entered on November 15, 1987, by disposing over $38,000 from her Aurora Federal Savings account No. 251605. Ann’s testimony that she used the funds for daily living expenses was sufficient to overcome the dissipation claim.

We find that the trial court’s decision that Charles did not dissipate assets was not against the manifest weight of the evidence. Charles’ testimony sufficiently detailed the tracing of funds from the sale of investment properties. Charles made his living by selling and reinvesting in real estate. We do not expect that he would cease business operations and cease paying his daily living expenses during these proceedings. Also, most of the money that Charles received from the sale of property was used to purchase new properties and pay the debts of other marital properties at a time when Charles did not know if he was going to be awarded the property upon judgment. Charles sold 202-204 Schiller for $77,000. All but $11,756 was used to pay off debts related to the real estate ventures with the Aurora National Bank. Charles also testified that the $11,756 was deposited in his real estate checking account and used to continue his rehabilitation projects. This was a continual process of selling, paying off debts and reinvesting in real estate, not the selling of marital assets for his sole, personal benefit.

Charles also sold 918 Kane for $31,000. After some confusion, Charles testified that the $31,000 was spent as follows: $2,500 went into his real estate account to pay bills; $4,076.20 to pay a junior mortgage with Aurora National Bank; $1,094 to pay a mortgage on another property; $2,000 for attorney fees; $70 for a doctor’s bill; $2,000 to purchase equipment for the salon; $190 to pay for work done on 1918 Kane; $394 for his daughter’s (from a previous marriage) tuition; $75 to secure housing; $20 for a charitable donation; $402 to Aurora National to pay a mortgage payment; $2,400 to pay for moving the house from 915 Fenton; $270 to computer consultants; $2,500 for use in the salon bank accounts; $3,313.85 to purchase 737 Kane; $885 to purchase materials for 1018 Kane; $1,000 to purchase 910 Kane; and $3,200 as a second payment to move 915 Fenton. Although these figures do not equal $31,000, we believe Charles provided sufficient detail in tracing the funds from the sale of 918 Kane such that the trial court’s determination that Charles did not dissipate assets is not against the manifest weight of the evidence.

Ann argues that Charles did not account for rent received from 120-124 State, but we find that his testimony was adequate. Charles stated that the rent is deposited in his real estate account and used to reinvest in other property, pay utilities and maintain the properties. Ann also argues that Charles dissipated the $70,000 line of credit with Aurora National because he failed to account for how that money was spent. We do not recognize a line of credit as a marital asset. Charles is responsible for repaying the money used from the line of credit. As such, the dissipation analysis does not apply to the $70,000 line of credit.

The cases cited by Ann to support her dissipation argument are distinguishable. In In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, the husband testified that he thought he gave $5,000 to his wife while she testified that she never received the money. (Partyka, 158 Ill. App. 3d at 550.) The husband also testified that a $14,000 commission check was used to pay “a lot of bills,” but that he did not know “specifically” what he did with the check. (Partyka, 158 Ill. App. 3d at 550.) The husband’s testimony in Partyka was filled with vague generalities, while in this case, Charles gave a reasonably detailed description with regard to the distribution of cash from the sale of property.

The remaining cases relied upon by Ann also reflect a lack of specificity by the alleged dissipator in explaining expenditures, which is simply not the case in our situation. Szesny v. Szesny (1990), 197 Ill. App. 3d 966, 972 (husband claimed that money was spent for “family expenses,” but could not produce detailed evidence of expenditures); In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1022 (husband testified that $14,000 received from sale of real property was “spent, I guess”; that some money was used to pay bills which he could not recall; and that part of $32,700 received frojn cashing a certificate of deposit was spent on vacations with his girlfriend).

As a final matter, we note Ann’s argument that she never received one-half of the net proceeds from the sale of 202-204 Schiller. The trial court ordered Charles to pay Ann one-half of $11,756.02. The trial court, upon remand, should consider this order when redistributing marital assets.

We reverse the trial court’s classification of certain marital property and remand for a redistribution of marital assets. The trial court should use the same values for the assets that were used in its letter opinion of March 21, 1991. No additional hearings are needed to determine classification, dissipation or valuation. The trial court should redistribute marital assets based on the following chart:

Nonmarital Property
Charles: Phillips Hair Studio along with inventory and bank account value $35,000.00
323 Flagg, Aurora, Illinois 14,000.00
Ann: Merrill Lynch account No. 62621707 $ 3,889.00
AT&T Pension Plan, nonmarital portion 12,188.00
AT&T Savings Plan, nonmarital portion 58,782.97
AT&T Stock Plan, nonmarital portion (valued on June 12, 1989) 69.108 shares
Merrill Lynch account No. 6262134 27,649.48
Marital Property
1131 E. New York, Aurora $ 68,500.00
575 Apache, Batavia 110,500.00
Beneficial interest in Aurora National Bank Trust No. 52370 including properties at 120/ 124 State Street; 1128 East New York Street; 202-204 Schiller, Aurora, Illinois; 1018 Kane Street, Aurora, Illinois; 737 Kane Street, Aurora, Illinois; less individual mortgages on said premises and Aurora National Bank line of credit in the approximate amount of $70,000 which said mortgages and line of credit Charles Phillips shall assume and be solely obligated to pay and shall indemnify and hold Wife harmless therefrom 53,871.98
Charles Phillips IRA account 4,300.00
1986 Nissan automobile 9,000.00
Aurora Federal account No. 208311-1 3,404.06
Aurora Federal account No. 205359-3 1,177.34
1986 Van 500.00
Used barber and beauty chairs 2,000.00
AT&T ESOP, marital portion (valued as of June 12,1989) 68.574 shares
Merrill Lynch account No. 6262134 $ 32,442.52
AT&T Savings Plan, marital portion 94,280.37
AT&T Pension Plan, marital portion 10,191.00
Merrill Lynch account No. 626-85255 19,935.79
Aurora Federal account No. 251605 6,018.48
Putnam Health Services account 12,500.00
20H Manchester, Freehold, New Jersey 20,000.00
Old Second National Bank account No. 28322 800.00
1983 Buick automobile 1,500.00

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed in part, and the cause is remanded for the redistribution of marital property.

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE NICKELS

text:
    GEORGIA COMFORT, Plaintiff-Appellant, v. WHEATON FAMILY PRACTICE, Defendant-Appellee (Philip Comfort, Plaintiff; Beverly Glas et al., Defendants).
    Second District
    No. 2—91—0684
    Opinion filed June 3, 1992.
    Rehearing denied July 13, 1992.

      Michael P. Cogan, of Motherway & Glenn, P.C., of Chicago, for appellant.
    John J. Mangan, of Rooks, Pitts & Poust, of Wheaton, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Georgia Comfort, appeals the order of the trial court in which the cause of action against defendants Wheaton Family Practice and John Pace was dismissed with prejudice. The issue on appeal is whether section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622) requires a plaintiff to file an affidavit declaring that a meritorious cause of action exists against a medical partnership when the partnership is alleged only to be vicariously liable for the medical malpractice of its employee and agent.

On October 2, 1989, plaintiff Georgia Comfort filed a complaint in which she alleged in count I that Dr. Beverly Glas committed medical malpractice by failing to diagnose breast cancer in time for plaintiff to receive appropriate treatment. In count II, plaintiff Philip Comfort, her husband, who is not a party to this appeal, alleged a loss of consortium based on the same allegations. Attached to the complaint was an affidavit by their attorney stating that he consulted with a medical professional who determined that a meritorious cause of action existed against Dr. Glas. A medical report stating that Dr. Glas should have ordered further tests based on plaintiff’s symptoms was also attached.

On December 4, 1990, plaintiffs filed their second amended complaint in which they added Wheaton Family Practice (Wheaton) and Dr. John Pace as defendants. Plaintiffs alleged that Wheaton was a partnership employing Dr. Glas and Dr. Pace, who acted as ostensible agents and employees of the partnership. Plaintiff Georgia Comfort alleged that she “requested of the defendant, WHEATON, by and through said defendant’s agents and employees, defendants, DR. BEVERLY GLAS and DR. JOHN PACE, that a mammogram be ordered to rule out breast cancer as an explanation for plaintiff’s presenting symptoms.” Plaintiff alleged that Dr. Glas told her on three occasions that a mammogram was unnecessary. Plaintiff alleged that “WHEATON, by and through its agents and employees, defendants, DR. BEVERLY GLAS and DR. JOHN PACE, was negligent.” In count II, Philip Comfort alleged a loss of consortium based on the same allegations.

Plaintiffs did not submit a new affidavit or medical report concerning the allegations of negligence. The original affidavit and medical report submitted pursuant to section 2 — 622 mentions only Dr. Glas but not Dr. Pace or Wheaton Family Practice. Dr. Pace and Wheaton filed a motion to dismiss pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) based on the lack of compliance with section 2 — 622. Plaintiffs argued to the trial court that no affidavit was necessary where the liability of a defendant was based on an agency relationship. On April 2, 1991, the trial court dismissed these two defendants with prejudice. The trial court also found that there was no just cause for delay in enforcement or appeal of the order. Plaintiffs’ timely motion for reconsideration of the dismissal order was denied on May 22, 1991. Plaintiff Georgia Comfort filed a timely notice of appeal on June 18,1991.

On July 2, 1991, we granted Dr. Pace’s motion to dismiss the appeal as it pertained to him based on his representation that the motion to reconsider was directed only against Wheaton. We note also that Dr. Glas is not a party to this appeal, as the trial court did not dismiss the cause against her. Thus, we address the appeal only as it concerns Wheaton, the partnership.

On appeal, plaintiff argues that she need not file a separate affidavit alleging the partnership was negligent when the complaint alleges that the partnership is vicariously liable for the actions of its agents under a theory of respondeat superior. Although there has been much recent litigation concerning section 2 — 622 (see Mizell v. Passo (1992), 147 Ill. 2d 420; DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57) and the vicarious liability of medical providers (Uhr v. Lutheran General Hospital (1992), 226 Ill. App. 3d 236), we have found no decision of an Illinois court of review addressing this precise issue.

Section 2 — 622 provides that in any medical malpractice action the plaintiff must attach to the complaint an affidavit stating that she 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. DeLuna, 147 Ill. 2d at 64-65; McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 190; Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685, 688-89.

Section 2 — 622(b) is designed to reduce the number of frivolous lawsuits that are filed and to eliminate such actions at an early stage. (DeLuna, 147 Ill. 2d at 65-66.) The technical requirements of this statute should not interfere with the spirit or purpose of the statute. The absence of strict technical compliance with the statute is one of form only and not of substance. The technical requirements of the statute should not be mechanically applied to deprive the plaintiff of her substantive rights. (Simpson, 225 Ill. App. 3d at 689; Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 333.) The purpose of the enactment was not to burden the plaintiff with insurmountable hurdles prior to filing but to reduce the number of frivolous lawsuits. 212 Ill. App. 3d at 333.

Section 2 — 622(b) of the Code provides that a separate certificate and written report shall be filed regarding each defendant who has been named in the complaint and shall be filed regarding each defendant named at a later date. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(b).) However, a single written report involving multiple defendants may be sufficient to satisfy the statute. In Premo v. Falcone (1990), 197 Ill. App. 3d 625, we ruled that when the purpose of the statute is met, that is, where the plaintiff certifies that there is a reasonable and meritorious cause of action against each defendant, a single report would suffice. (197 Ill. App. 3d at 632.) Similarly, in Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1040, and Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 374, the single report was sufficiently broad to cover each defendant in the cause where the charges of negligence were the same regarding each defendant. However, in Alford v. Phipps (1988), 169 Ill. App. 3d 845, 854, the court ruled that the written report must discuss the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for filing the action against that defendant exists; where the report failed to mention the particular doctors but merely stated that negligence was committed, the cause was dismissed.

Plaintiff also cites Premo, where we also implied, in dicta, that allegations of negligence in the complaint could be attributable to the physician and thereby to his employer. (Premo, 197 Ill. App. 3d at 632-33.) However, we did not rule that the contents of the medical certificate were sufficient under section 2 — 622.

To understand plaintiff’s argument, we must discuss the theory of vicarious liability underlying her cause of action. A partnership is liable to the same extent as a partner for any wrongful act of the partner acting in the ordinary course of the business. (Ill. Rev. Stat. 1989, ch. IO6V2, par. 13.) Under the doctrine of respondeat superior, a health care provider may be liable for a physician’s misconduct when an employer-employee or principal-agent relationship exists between them. (Alford v. Phipps (1988), 169 Ill. App. 3d 845, 859.) This form of vicarious liability is independent from the liability for failing to review and supervise the medical care administered to its patients by its employees and agents. (169 Ill. App. 3d at 858; see Rohe v. Shivde (1990), 203 Ill. App. 3d 181, 198-99 (examples of failing to review or supervise).) When suit is brought against a master based on the alleged acts of the servant, and no independent acts are alleged against the master, the master’s liability is entirely derivative. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 533; Rohe, 203 Ill. App. 3d at 198.

It has been held that a health care provider has no duty to insure that each of its staff physicians will always perform her duty of due care to her patient. (Alford, 169 Ill. App. 3d at 848. But see Uhr, 226 Ill. App. 3d at 251; Cunningham v. Huffman (1992), 223 Ill. App. 3d 878, 888.) Absent a principal-agent relationship, the alleged misconduct of a physician may not ordinarily be imputed to a hospital. (Kirk, 117 Ill. 2d at 524.) Wheaton, however, is a partnership, and a partnership is liable for the torts of its partners committed in the course of the partnership business. Plaintiff has specifically alleged an agency and employment relationship. Plaintiff is not alleging a different act of negligence against Wheaton other than the act alleged against Dr. Glas. Had plaintiff specifically alleged that Wheaton committed the separate tort of failing to supervise its employees or otherwise failing a duty towards its patients, then it is arguable that plaintiff would need a separate certificate pertaining to Wheaton pursuant to section 2 — 622. Instead, plaintiff bases Wheaton’s liability in the complaint solely on the actions of Dr. Glas, which are represented in a certificate. If plaintiff’s medical certificate had referred to Wheaton’s act rather than Dr. Glas’s act, the certificate may not have been sufficient to satisfy section 2 — 622 as explained in Alford because it is not alleged that Wheaton committed a particular act of negligence. Alford, 169 Ill. App. 3d at 854.

Requiring a separate medical certificate for the vicarious liability of a partnership exalts form over substance. Plaintiff has conformed to the purpose of section 2 — 622 in this cause because the precise act underlying the claim has been revealed to the defendants and found to be medically meritorious. Plaintiff alleges no other or separate act or failed duty. Since the aim of the statute is not to create technical hurdles, the medical certificate was sufficient. Requena, 212 Ill. App. 3d at 333.

Moreover, Wheaton’s liability arises by operation of law. The liability is a conclusion of law based on partnership, agency and negligence principles, of which a medical expert may not be qualified to make an opinion. Section 2 — 622 requires the opinion of a medical expert, not a legal expert. (See McAlister v. Schick (1992), 147 Ill. 2d 84, 98; see also Russell v. Good Shepherd Hospital (1991), 222 Ill. App. 3d 140, 146 (legal issue of punitive damages based on willful and wanton act).) Had the clinic violated a duty to supervise, then perhaps a certificate filed by a professional in health care administration would be required. However, since plaintiff is alleging only the act of malpractice, she must file a certificate dealing with the commission of that act. The liability of Wheaton is a legal question, and plaintiff need not file a certificate (other than that required by Supreme Court Rule 137 (134 Ill. 2d R. 137)) regarding the legal merit of that claim.

Ordinarily, we address the subject of jurisdiction at the beginning of a disposition. While we have determined that we have jurisdiction over this cause, we have reserved our discussion of it until after we stated the principles of agency law. The jurisdictional issues arise because plaintiffs, on November 26, 1991, voluntarily dismissed their complaint against Dr. Glas pursuant to section 2 — 1009 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009). In response to our order directing the parties to address the mootness of the cause, plaintiff submitted a statement in which she stated that she may refile the cause within one year. (See Mizell v. Passo (1992), 147 Ill. 2d 420 (when a court may allow the refiling of a complaint after failure to comply with section 2 — 622).) Since the partnership is liable only if the physician was negligent (see Kirk, 117 Ill. 2d at 533), and plaintiff dismissed her complaint against Dr. Glas, the issue is whether the appeal is moot.

We determine that the appeal is not moot because plaintiff is alleging a single act of negligence. She has alleged the direct liability of Wheaton in her complaint. If plaintiff had sued only Dr. Glas and this appeal concerned a possible counterclaim by Dr. Glas for indemnity or contribution against Wheaton, for example, the cause would be moot. Instead, plaintiff has alleged that Wheaton acted “by and through” its agents. We can still grant effective relief against Wheaton. Thus, the appeal is not moot. Tumminaro v. Tumminaro (1990), 198 Ill. App. 3d 686, 691.

The second jurisdictional issue arises because plaintiff had an order entered in the circuit court purporting to dismiss her cause “in its entirety.” This order did not affect the appeal before this court. Jurisdiction vested in this court pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The trial court generally has no jurisdiction over a cause which is vested in the appellate court (People v. Palmer (1992), 148 Ill. 2d 70, 82; however, the trial court may dismiss the appeal of any party on the motion of that party before the filing of the record on appeal in the reviewing court (see 134 Ill. 2d R. 309; People v. Curry (1988), 167 Ill. App. 3d 146, 149-51). Thus, because the record was filed in August 1991 prior to the circuit court’s order and despite the broad language of that order, the appeal, as it pertains to Wheaton, was not dismissed.

For the above reasons, the order of the circuit court dismissing the cause of action against Wheaton Family Practice is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and BOWMAN, J., concur.