author: JUSTICE O’CONNOR

text:
    SYLVIA MUSKAT, Plaintiff-Appellant, v. PAUL STERNBERG et al., Defendants-Appellees (Robert Block et al., Defendants).
    First District (1st Division)
    No. 1—89—0327
    Opinion filed March 28, 1991.
    Rehearing denied April 30, 1991.

      Harold A. Liebenson and Norbert N. Rosenthal & Associates, Ltd., both of Chicago (Paula Brooks Tarr and Norbert N. Rosenthal, of counsel), for appellant.
    Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, Brian C. Fetzer, and Emilio E. Machado, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Sylvia Muskat appeals from the trial court’s order that dismissed her complaint with prejudice against Dr. Paul Sternberg and his professional corporation Paul Sternberg, M.D. S.C. (collectively referred to as the defendants) under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) for her failure to exercise reasonable diligence to obtain service of summons prior to the expiration of the applicable statute of limitations. Muskat contends that the trial court abused its discretion by dismissing her action with prejudice. For the reasons set forth below, we affirm.

Between July 23 and July 26, 1980, the defendants were allegedly involved in Muskat’s cataract removal surgery. Almost two years after her surgery, on July 22, 1982, Muskat’s attorney filed a complaint which alleged negligence and products liability against the defendants for injuries allegedly caused by the cataract removal surgery. Specifically, Muskat’s complaint alleges that after July 24, 1980, the implanted lens became loose and descended into her eyeball; that between one to two months after, her surgery, she visited at least three other physicians who told her that the implanted lens became loose and descended into her eyeball, which physicians each treated her eye; and that she suffered pain, diminished vision, and a serious threat that if the lens migrated further into her eye, she could lose her sight.

On July 23, 1984, more than two years after Muskat’s complaint was filed, her action was dismissed for want of prosecution because service of process was neither attempted nor obtained upon either of the defendants.

Another year passed before Muskat’s attorney refiled her complaint on July 23, 1985, pursuant to section 13—217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—217). Finally, between August 19 and October 25, 1985, the defendants were served with process in the refiled action. Service of process was obtained more than three years after the action was originally filed and more than five years after the alleged injury.

On December 5, 1985, the defendants’ attorney filed a notice of motion, a motion to vacate technical defaults, an appearance, a jury demand, an answer to complaint, interrogatories and a request for production. Muskat did not answer the defendants’ interrogatories, did not respond to the production request and was not required to do so because the response period had not yet expired.

Then, on December 20, 1985, 15 days later, the defendants filed their motion to dismiss Muskat’s complaint pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) contending that Muskat failed to exercise reasonable diligence in effectuating service of process. Rule 103(b) states:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” (107 Ill. 2d R. 103(b).)

The trial court heard the motions to dismiss and denied them on the grounds that the appropriate time period by which to measure Muskat’s diligence in obtaining service of process commences with the refiling of the lawsuit.

Subsequently, this court granted the defendants’ joint application for interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308), and the-following question was certified:

“Whether, in a case in which the plaintiff’s original lawsuit was dismissed for want of prosecution, and no Supreme Court Rule 103(b) motion was filed and no service of process was attempted or obtained in the original lawsuit, a trial court may consider any lack of reasonable diligence in obtaining service of process in the original lawsuit in ruling on a Supreme Court Rule 103(b) motion in the refiled lawsuit.”

We answered the certified question in the affirmative, reversed the trial court’s denial of the Rule 103(b) motion to dismiss and remanded for further proceedings. (Muskat v. Sternberg (1986), 151 Ill. App. 3d 304, 502 N.E.2d 1099.) Thereafter, the Illinois Supreme Court granted Muskat’s petition for leave to appeal, and the court affirmed our decision. Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932.

On remand from the supreme court, the defendants renewed their motions to dismiss pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) and Muskat filed her answer.

On October 11, 1988, the trial court heard the motions to dismiss. However, during the hearing, Muskat’s attorney asked for leave to amend Muskat’s complaint to include fraudulent concealment allegations against the defendants, contending that Sternberg “willfully and fraudulently concealed *** that it was imminent and necessary that [Muskat] be examined immediately after her release from the hospital because the *** intraocular lens [could] become dislodged and sink into [Muskat’s] eyeball and irreparably injure her,” that Sternberg “intentionally concealed his malpractice” and that on or about July 22, 1985, Muskat discovered her injury when a medical consultant advised her of the specific area in which any deviation from normal treatment might have occurred.

Ruling on the motion, the trial court stated that the defendants were made a party in the 1982 suit; that despite the “wall of silence,” Muskat knew she had an action against the defendants; that she knew enough to file a suit; and that the fact that “the 1982 case was filed would indicate that the plaintiff had knowledge that she had been injured, and that injury was wrongfully caused, or I can’t see how she could file the suit and name these *** parties.” Accordingly, the trial court denied the motion to amend Muskat’s complaint on the grounds that it would not address the problems raised by the Rule 103(b) motions to dismiss. Then, the court continued the hearing with respect to the Rule 103(b) motions to December 29,1988.

At the December 29, 1988, hearing, Muskat’s attorney argued a motion to reconsider the motion to file an amended complaint, which the trial court denied. Additionally, the trial court heard arguments with respect to the Rule 103(b) motions. After the court determined that there was not sufficient participation in discovery to amount to waiver, it dismissed Muskat’s complaint against the defendants with prejudice. The court stated that “maybe someone has an action against an attorney *** an attorney has no right to withhold service of summons until he can pinpoint who did what when he’s named them in the first place.”

Muskat appeals the Rule 103(b) dismissal with prejudice.

Muskat argues that the trial court abused its discretion by dismissing her complaint because the defendants waived any objection to Supreme Court Rule 103(b) by not filing motions for two to four months after being served, by answering her complaint and by filing interrogatories and a request for production. We disagree.

The defendants did not waive their objection of an unreasonable delay in obtaining service because they raised their Rule 103(b) in the initial stages of the litigation and did not actively participate in defending the action on its merits. (Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 292, 492 N.E.2d 1.) The defendants timely raised their Rule 103(b) objection since they filed their motion merely two to four months after they were served with notice of the action. Similarly, in Meyer v. Wardrop (1976), 37 Ill. App. 3d 243, 345 N.E.2d 762, the appellate court determined that a Rule 103(b) objection was not waived even though defendant Wardrop filed his Rule 103(b) motion to dismiss more than 11 months after he was served and had filed an appearance. (Meyer, 37 Ill. App. 3d at 247.) Therefore, we cannot conclude that the defendants relinquished their right to raise a defense under Rule 103(b) on the grounds that two to four months had passed between the time they vzere served and the time they filed their motion to dismiss.

Furthermore, the defendants did not “actively” participate in defending the action on the merits simply by filing an appearance, an answer to Muskat’s complaint, interrogatories and a request for production. (See Gatto v. Nelson (1986), 142 Ill. App. 3d 284, 292, 492 N.E.2d 1 (where the appellate court determined that third-party defendants had not waived their Rule 103(b) objections even though they filed their motion to dismiss plaintiff’s action two months after they filed their appearance and answer to the third-party action, and four months before they were served by plaintiff).) The defendants never required Muskat to answer the interrogatories and to respond to the production request, and they neither answered interrogatories nor noticed or participated in any depositions. Therefore, the case at bar is distinguishable from Lovell v. Hastings (1973), 11 Ill. App. 3d 221, 296 N.E.2d 608, which Muskat cites as support for her contention that Sternberg waived his objection. In Lovell, there was a four-month delay from the filing of an appearance by the defendant to the filing of a motion to dismiss under Rule 103(b). However, during the four-month delay, the defendant in Lovell filed answers to interrogatories and took a deposition. The Lovell court held that the delay, coupled with the “active participation” in the litigation, constituted a waiver of a Rule 103(b) objection.

Similarly, the plaintiff in Daily v. Hartley (1979), 77 Ill. App. 3d 697, 396 N.E.2d 586, contended that the Lovell waiver rule should apply because there was a five-month delay between defendant’s first appearance and the filing of the motion to dismiss under Rule 103(b), and because defense counsel attended a discovery deposition and made three court appearances. The appellate court affirmed the trial court’s determination that defendants had not waived their Rule 103(b) objections because “[t]he defendant’s activities [fell] far short of the Lovell state of involvement.” (Dailey, 77 Ill. App. 3d at 704.) The appellate court stated that “[i]t is only where it is obvious that defendant’s participation and utilization of available pretrial discovery procedures are in anticipation of a defense on the merits that the Lovell waiver rule should be applied.” 77 Ill. App. 3d at 704.

Accordingly, we find that the trial court did not abuse its discretion in determining that the defendants did not waive their Rule 103(b) objection. The defendants’ motion to dismiss was timely, and they did not actively participate in defending the action on its merits because Muskat did not answer their interrogatories or request for production, and because they neither answered interrogatories nor noticed or participated in any depositions.

Muskat argues that the trial court abused its discretion by determining that Muskat did not diligently serve the defendants because she served the defendants soon after her complaint was refiled. Muskat’s argument is without merit. Those cases which review dismissals under Supreme Court Rule 103(b) consistently state that nothing is more critical to the judicial function than the administration of justice without delay and that reasonable diligence in the service of process, as required by Rule 103(b), is essential to rendering justice fairly and promptly. (Muskat v. Sternberg (1988), 122 Ill. 2d 41, 48, 521 N.E.2d 430; Catlett v. Novak (1987), 116 Ill. 2d 63, 70, 506 N.E.2d 586; O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, 492 N.E.2d 1322; Reap v. Highland Park Hospital (1988), 169 Ill. App. 3d 756, 758, 523 N.E.2d 1117.) The standard for determining “reasonable diligence” is an objective one, and the burden is upon Muskat to show that she exercised reasonable diligence in her efforts to obtain service. (Daily v. Hartley (1979), 77 Ill. App. 3d 697, 701, 396 N.E.2d 586.) The trial court properly considered the circumstances regarding service of process on the original as well as the refiled complaints (Catlett v. Novak (1987), 116 Ill. 2d 63, 71, 506 N.E.2d 586), such as: (a) the length of time used to obtain service; (b) Muskat’s activities; (c) Muskat’s knowledge of Sternberg’s location; (d) the ease with which Sternberg’s location could have been ascertained; (e) whether Sternberg had actual knowledge of the pendency of the action; and (f) special circumstances which would affect Muskat’s efforts. North Cicero Dodge, Inc. v. Victoria Feed Co. (1987), 151 Ill. App. 3d 860, 863, 503 N.E.2d 868.

According to the Illinois Supreme Court in this case, the trial court acted within the scope of its discretion when it considered the length of time from the initial filing of the complaint and the ultimate service of process in the refiled case. (Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932.) The defendants were served more than three years after the action was originally filed and more than five years after the alleged injury. “ ‘Refiling under section 13—217 does not insulate the plaintiff from the lack of diligence displayed prior to the dismissal.’ ” Reap v. Highland Park Hospital, 169 Ill. App. 3d 756, 758, 523 N.E.2d 1117, quoting Muskat, 122 Ill. 2d at 49.

Nevertheless, Muskat argues that the trial court abused its discretion because the defendants were promptly served after her compláint was refiled, contending that such diligence should outweigh any lack of diligence prior to refiling her complaint. This contention is without merit. The same argument was made and rejected by this court in Reap v. Highland Park Hospital (1988), 169 Ill. App. 3d 756, 523 N.E.2d 1117. The Reap court concluded that the supreme court’s opinion in Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932, was dispositive on this issue and affirmed the dismissal of plaintiff Reap’s refiled complaint with prejudice. In Reap, the plaintiff’s medical malpractice action was filed on the eve that the applicable statute of limitations expired. During the next 10 months, the action was dismissed twice for want of prosecution. Throughout such time, the plaintiff did not attempt or obtain service of process. Subsequently, plaintiff Reap refiled his action pursuant to section 13—217 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—217), and the defendants were served promptly in the refiled action. Defendants moved to dismiss under Rule 103(b), and the trial court dismissed the refiled complaint with prejudice. (Reap v. Highland Park Hospital (1988), 169 Ill. App. 3d 756, 758, 523 N.E.2d 1117.) Accordingly, the prompt service in Muskat’s refiled action does not outweigh the fact that Muskat’s attorney neither attempted nor obtained service in the original action.

Additionally, Muskat argues that “searching for a medical expert,” the defendants’ “refusal to answer questions” and “the medical community’s unresponsiveness and stonewalling” constitute “special circumstances” affecting her efforts to effect service. We disagree. After filing Muskat’s complaint, which alleges that Muskat knew she had been injured and believed that it was wrongfully caused, Muskat’s attorney searched for a medical expert who could explain and corroborate any negligent conduct. Muskat’s attorney does not explain why a medical expert was necessary to obtain service of process. If Muskat’s attorney was actually concerned with corroborating any alleged malpractice and making those allegations in good faith, as Muskat’s attorney argues, it seems that the time to inquire with an expert is before the case is filed or, alternatively, after obtaining service of process and during the pretrial period, rather than after filing the complaint and before attempting to obtain service of process.

While Muskat’s attorney may have been correct that he could not go forward in a trial without being able to explain the alleged malpractice, delaying service of process is not the appropriate means to dispose of an action if the attorney believes that he cannot persuade the trier of fact of malpractice. Delaying service of process is clearly unjust to the defendants because without service they were not put on notice that a lawsuit was pending. Consequently, the defendants did not have an opportunity to question occurrence witnesses or to investigate the relevant facts in close proximity to the alleged action. Moreover, at the time Muskat filed her complaint, she was not required pursuant to section 2 — 622 to file an affidavit stating that a physician had concluded in a -written report that “there is a reasonable and meritorious cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—622(a)(1).) In short, the inability to find a corroborating expert is no excuse for failure to promptly obtain service of process on a defendant.

For the reasons stated above, the trial court acted within the scope of its discretion when it determined that Muskat did not diligently serve the defendants.

Muskat argues next that the trial court abused its discretion by denying her motion to amend her complaint to include fraudulent concealment allegations. She contends that her action falls within the fraudulent concealment exception to the statute of limitations set forth in section 13 — 215 of the Limitations Act (Ill. Rev. Stat. 1987, ch. 110, par. 13—215, previously codified in Ill. Rev. Stat. 1979, ch. 83, par. 23) and that, consequently, her complaint should not have been dismissed with prejudice. We are not persuaded by Muskat’s argument and her attempt to extend the statute of limitations period so that the dismissal with prejudice is avoided.

While, generally, a plaintiff is permitted to amend her complaint before final judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2— 616), the trial court did not abuse its discretion by denying Muskat’s motion because a fraudulent concealment theory was simply not supported by facts Muskat alleged in her refiled complaint. Section 13— 215 provides:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.” (Ill. Rev. Stat. 1987, ch. 110, par. 13—215.)

By its terms, section 13—215 applies only to fraudulent concealment cases where a party is unwittingly induced not to file his action, until, after expiration of the limitations period. (Sharpe v. Jackson Park Hospital (1981), 99 Ill. App. 3d 874, 877, 425 N.E.2d 1244, aff’d (1982), 92 Ill. 2d 232, 441 N.E.2d 645.) “If at the time the plaintiff discovers the ‘fraudulent concealment’ a reasonable time remains within the applicable statute of limitations, section [13—215] of the Limitations Act does not toll the running of the limitation period.” (Anderson v. Wagner (1979), 79 Ill. 2d 295, 322, 402 N.E.2d 560.) This rule is logical because once a party discovers the fraud, it is no longer concealed, and if time remains within which to file the action, section 13—215 cannot operate to toll the limitations period. (Sharpe, 99 Ill. App. 3d at 877.) Consequently, Muskat could not sustain a fraudulent concealment action because the alleged malpractice was discovered when she allegedly experienced pain and learned from other physicians between August and September of 1980 that the lens had migrated from her eye. Therefore, Muskat discovered her alleged action long before the two-year statute of limitations period expired (Ill. Rev. Stat. 1987, ch. 110, par. 13—212) and had ample time to file her original complaint within the limitations period. Accordingly the trial court acted within the scope of its discretion when it denied Muskat’s motion to amend her complaint to include allegations of fraudulent concealment.

Muskat also argues that the trial court abused its discretion by dismissing her complaint with prejudice, contending that her lawsuit was governed by the five-year statute of limitations because her action was fraudulently concealed and that service was obtained before five years had elapsed. We disagree. A fraudulent concealment theory is simply not supported by the facts Muskat alleged. (See discussion above.) Consequently, the trial court did not abuse its discretion when it dismissed Muskat’s complaint with prejudice pursuant to Rule 103(b) because her lack of diligence occurred after the expiration of the applicable statute of limitations period, i.e., two years from the time she knew or should have known of the existence of the injury. Ill. Rev. Stat. 1987, ch. 110, par. 13— 212.

Based upon the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.

      The appellate court noted that defense counsel appeared at a deposition to ascertain whether a Rule 103(b) objection would be proper.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    WINSTON PLAZA CURRENCY EXCHANGE, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF FINANCIAL INSTITUTIONS et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—0965
    Opinion filed March 28, 1991.

      Nisen & Elliott, of Chicago (Donald C. Shine and Stephen G. Kehoe, of counsel), for appellant.
    Roland Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Winston Plaza Currency Exchange, Inc. (Winston Plaza), brought an action for equitable relief against defendants Illinois Department of Financial Institutions (DFI), its Director, Shinae Chun, and the supervisor of its Currency Exchange Division, Michael Goldman (Goldman) (jointly, defendants), alleging a violation of “An Act in relation to *** Community Currency Exchanges ***” (Community Currency Exchange Act) (Ill. Rev. Stat. 1983, ch. 17, par. 4801 et seq.), based upon the grant of a license to a new competing currency exchange. Defendants moved to dismiss Winston Plaza’s complaint on the ground that it lacked standing to challenge defendants’ actions. The circuit court granted the motion and dismissed Winston Plaza’s cause of action with prejudice. Plaintiff appeals from that judgment.

Winston Plaza is a licensed, operating currency exchange located at 1380 Winston Plaza Drive in Melrose Park, Illinois. On or before July 7, 1989, defendants received an application for a license to operate a new currency exchange (North Avenue Exchange) at 2316 W. North Avenue in Melrose Park, approximately six blocks from Winston Plaza’s location. Upon receipt of this application, defendants issued a notice to Winston Plaza, as well as to other licensed currency exchanges in the area, advising them of the proposed license and soliciting their comments as to the need for a new exchange.

Winston Plaza’s vice-president, Jeffrey Silverman, subsequently sent a letter of objection to defendants, setting forth reasons why he opposed the granting of the license. Specifically, he asserted that the approval of the North Avenue Exchange license would have a strong detrimental effect on the economic security and financial well-being of Winston Plaza. On November 1, 1989, however, Silverman received a letter from defendants stating that the license had been approved.

Between November 6 and November 9, 1989, Silverman met with, telephoned, and wrote to defendant Goldman in an attempt to persuade him to reconsider defendants’ decision. On November 14, 1989, Goldman advised Silverman that the decision would stand.

On November 29, 1989, Winston Plaza filed a two-count complaint for equitable relief against defendants for granting the license, allegedly without regard to the impact of such action on Winston Plaza. In count I, plaintiff asserted its right to have the granting of the license reviewed by way of a petition for issuance of a common law writ of certiorari. In count II, plaintiff asserted that it had a due process right to have its evidence of harm considered before the new license was granted. Winston Plaza later added a mandamus count, asserting that defendants were without discretion to refuse to consider its evidence of harm.

On January 8, 1990, defendants filed a motion to dismiss Winston Plaza’s complaint for failure to state a claim upon which relief could be granted, and, specifically, for lack of standing. On March 12, 1990, after hearing arguments of counsel, the circuit court granted defendants’ motion to dismiss Winston Plaza’s complaint with prejudice. This appeal followed.

I

Winston Plaza initially contends that it has standing to bring a petition for common law writ of certiorari to challenge the licensing of the North Avenue Exchange. It alleges that the issuance of the license will diminish its financial stability. Defendants respond that Winston Plaza lacks standing to challenge their decision.

Section 22.01 of the Community Currency Exchange Act (the Act) (Ill. Rev. Stat. 1989, ch. 17, par. 4843 ) provides that “[a]ll final administrative decisions of the Director hereunder shall be subject to judicial review pursuant to the provisions of the Administrative Review Law.”

The Act, therefore, expressly adopts the Administrative Review Law as the appropriate method for seeking review of a DFI decision. Where a statute specifically adopts the Administrative Review Law, it does so to the exclusion of all other remedies and is the sole means of review. (City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill. App. 3d 881, 520 N.E.2d 1097; Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286.) Thus, it supplants various common law methods of seeking review, such as certiorari, mandamus, or injunctive relief. City of Wood Dale, 166 Ill. App. 3d at 890.

Winston Plaza contends, however, that section 4.1 of the Act was amended to confer standing upon competitor community currency exchanges to challenge DFI’s decision to issue a license to another currency exchange. Section 4.1 was amended by Public Act 83 — 652, effective September 23, 1983, as follows:

“4809. Public policy — Investigation to determine advisability of granting application — ‘Community’ defined
§4.1 The General Assembly finds and declares that community currency exchanges provide important and vital services to Illinois citizens, that the number of community currency exchanges should be limited in accordance with the needs of the communities they are to serve, and that it is in the public interest to promote and foster the community currency exchange business and to insure the financial stability thereof. Upon receipt of an application for a license for a community currency exchange, the Director shall cause an investigation of the need of the community for the establishment of a community currency exchange at the location specified in the application and the effect that granting the license will have on the financial stability of other community currency exchanges that may be serving the community in which the business of the applicant is proposed to be conducted.” (Emphasis added to show amendment.) Ill. Rev. Stat. 1989, ch. 17, par. 4809.

Although Winston Plaza argues that the amendatory language demonstrates the legislature’s intent to confer standing upon it, we do not believe that to be the case. As defendants maintain, Winston Plaza relies on the prefatory language, which is not part of the law itself and cannot be used to create an ambiguity in the statute. Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 545 N.E.2d 706.

Moreover, the amendatory language is clear in its purpose. It added the requirement that DFI consider what effect the issuance of a license will have on the financial stability of other community currency exchanges serving the area. The amendment, however, does not mandate how DFI must conduct its investigation, nor does it confer standing upon competitor currency exchanges to appeal the issuance of licenses. Winston Plaza’s reliance on this language is therefore misplaced.

This court considered and rejected contentions similar to Winston Plaza’s in Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App. 3d 896, 364 N.E.2d 449, and in Cottage-63rd Street Currency Exchange, Inc. v. Callahan (1982), 104 Ill. App. 3d 586, 432 N.E.2d 1258.

In Roosevelt-Wabash Currency Exchange, Inc., as in the instant case, the plaintiff was an existing licensee challenging the licensing of another currency exchange in the area. The defendant, Anthony Fornelli, Director of the Illinois Department of Financial Institutions, filed a motion to dismiss the plaintiff’s complaint for lack of standing. The circuit court granted the motion and the plaintiff appealed.

The appellate court affirmed the circuit court’s order, finding that “[a]s a competitor, plaintiff has no direct interest in the matter which would give rise to a specific right to be heard.” (Roosevelt-Wabash Currency Exchange, Inc., 49 Ill. App. 3d at 899.) The court also found that the plaintiff had no standing to maintain an action for administrative review, as that remedy is limited to parties of record to the original proceeding before the agency. Roosevelt-Wabash Currency Exchange, Inc., 49 Ill. App. 3d at 901.

In Cottage-63rd Street Currency Exchange, Inc., this court analyzed the provision of section 4.3 of the Act which governs the issuance of licenses to ambulatory currency exchanges. That provision contains the same language which is at issue in the instant ease and which requires DFI to consider the effect that granting a license will have on the financial stability of other community currency exchanges. Ill. Rev. Stat. 1981, ch. 17, par. 4811.

The court initially recognized that “the primary purpose of the currency exchange act has been held to be the protection of consumers served by currency exchanges.” (Cottage-63rd Street Currency Exchange, Inc., 104 Ill. App. 3d at 590, citing First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17.) The court rejected the plaintiff’s argument that the amendatory language of section 4.3 showed a clear legislative intent to protect the interests of community currency exchanges by bringing them within the class protected by the statute. In so doing, the court held that section 4.3 did not elevate the community currency exchange to the status of the consumer whom the act was originally designed to protect. Cottage-63rd Street Currency Exchange, Inc., 104 Ill. App. 3d at 591.

Cottage-63rd Street Currency Exchange, Inc. is wholly applicable to the instant case. Winston Plaza makes the same argument here that was made and rejected in that case. The language at issue in both cases is practically identical. Although Winston Plaza attempts to distinguish Cottage-63rd Street Currency Exchange, Inc. because the plaintiff there sought a declaratory judgment rather than a writ of certiorari, such a distinction is neither relevant nor significant.

Winston Plaza’s reliance on Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 443 N.E.2d 247, and Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286, is misplaced. Both cases involved the real parties in interest and agencies which had not adopted the Administrative Review Law as the exclusive means of judicial review.

In summary, we conclude that Winston Plaza lacks standing to bring a petition for writ of certiorari for several reasons. First, the Act has adopted the Administrative Review Law as the means of review, thus excluding common law remedies such as writs of certiorari. Second, the amendatory language of section 4.1 does not bring Winston Plaza within the class of consumers whom the Act was intended to protect. Finally, the case law cited by Winston Plaza is not persuasive because Winston Plaza is not a party in interest.

II

Winston Plaza’s second contention is that it has standing to seek a writ of mandamus against defendants to require them to consider all evidence of harm to its financial stability before the issuance of a new license to the North Avenue Exchange. Specifically, Winston Plaza argues that defendants, in deciding whether to grant the new license, did not consider documented objection material which it submitted to them. Defendants respond that Winston Plaza lacks standing to seek a writ of mandamus against them and that the circuit court properly dismissed with prejudice the mandamus count.

Mandamus is an extraordinary remedy, rather than a remedy of right, and the party seeking the writ must show a clear legal right to the relief requested. (Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 767, 518 N.E.2d 270, citing Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 598, 374 N.E.2d 932.) Mandamus is used to direct a public official or body to perform a ministerial duty, one which does not involve the exercise of judgment or discretion. (Crump v. Illinois Prisoner Review Board (1989), 181 Ill. App. 3d 58, 536 N.E.2d 875, appeal denied (1989), 127 Ill. 2d 613, 545 N.E.2d 107.) It cannot be used to direct a public official or body to reach a particular decision or to exercise its discretion in a particular manner, even if the judgment or discretion has been erroneously exercised. Crump, 181 Ill. App. 3d at 60, quoting Daley v. Hett (1986), 113 Ill. 2d 75, 80, 495 N.E.2d 513, and Pardo v. Chrans (1988), 174 Ill. App. 3d 549, 554, 528 N.E.2d 1071.

Winston Plaza interprets the amendatory language of section 4.1 of the Act as creating a ministerial duty on defendants’ part; however, the amended language simply does not support that interpretation. Section 4.1, as amended, requires DEI to cause an investigation of “the effect that granting the license will have on the financial stability of other community currency exchanges that may be serving the community.” (Ill. Rev. Stat. 1989, ch. 17, par. 4809.) The amendment does not specify the manner in which DEI must conduct its investigation. Nor does it require DEI to consider any submissions by the affected currency exchanges.

Defendants correctly assert that the facts alleged in Winston Plaza’s complaint demonstrate that defendants considered Winston Plaza’s objections; met with Winston Plaza to discuss the objections; agreed to reconsider the original decision; accepted additional information submitted by Winston Plaza; and, after reviewing the record, informed Winston Plaza that a license would nevertheless be issued. Defendants were not required by law to take any of these actions. Thus, because there was no affirmative duty on defendants, Winston Plaza’s claim that it is entitled to a writ of mandamus is unavailing. Winston Plaza is not entitled to mandamus merely because it does not agree with defendants’ decision.

In this case, it is clear that Winston Plaza was given an opportunity to be heard when defendants solicited comments prior to the issuance of the license to the North Avenue Exchange. Winston Plaza’s argument that defendants did not consider the subsequently submitted additional information is therefore of no relevance.

Ill

Winston Plaza’s final argument is that it has standing under procedural due process principles to challenge the licensing of the North Avenue Exchange. Specifically, Winston Plaza argues that it was entitled to a hearing to protect its license because of defendants’ own policies. Defendants respond that Winston Plaza does not have standing to challenge the new license under due process principles.

As previously indicated, this court held in Roosevelt-Wabash Currency Exchange, Inc. that “[a]s a competitor, plaintiff has no direct interest in the matter which would give rise to a specific right to be heard.” (Roosevelt-Wabash Currency Exchange, Inc., 49 Ill. App. 3d at 899, citing American Surety Co. v. Jones (1943), 384 Ill. 222, 51 N.E.2d 122.) Moreover, the Illinois Supreme Court has held that not every individual who may be adversely affected by a regulation under consideration is entitled to prior notice and a due process hearing. Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 545 N.E.2d 706, 714.

The primary purpose of the Act is to protect the consumers served by currency exchanges. (Cottage-63rd Street Currency Exchange, Inc., 104 Ill. App. 3d at 590.) The amendatory language of the Act does not alter that purpose. Although the amendment requires DFI to conduct an investigation prior to the issuance of a new license, this requirement does not confer upon Winston Plaza any protectable property interest in the new license. The actions taken by defendants were not directed at Winston Plaza’s own license; thus, Winston Plaza’s claim of a due process violation is unavailing.

The cases relied upon by Winston Plaza are distinguishable in that each one involved adverse action against the actual party in interest. Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 497 N.E.2d 984 (plaintiff’s job at issue); Interstate Material Corp. v. City of Chicago (1986), 150 Ill. App. 3d 944, 501 N.E.2d 910 (plaintiff’s certification at issue); Reed v. Village of Shorewood (7th Cir. 1983), 704 F.2d 943 (plaintiff’s license at issue).

Based on the foregoing, we conclude that the circuit court properly dismissed Winston Plaza’s complaint with prejudice.

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

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


author: JUSTICE JOHNSON

text:
    FINLEY C. CAMPBELL, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—89—1008
    Opinion filed March 28, 1991.
    Rehearing denied May 2, 1991.

      Finley C. Campbell, of Chicago, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This matter comes before this court on appeal by plaintiff, Finley C. Campbell, from the circuit court of Cook County. On November 22, 1988, Mr. Campbell filed a complaint for administrative review before the trial court. He sought to set aside a final administrative decision of the Department of Employment Security (hereinafter the Department) that found him ineligible for unemployment compensation. The trial court confirmed the decision of the Department. Subsequently, plaintiff filed this appeal. The issues presented for review are (1) whether the trial court had subject matter jurisdiction to review the determination of the Department, and (2) whether the Department’s decision that plaintiff was ineligible for unemployment insurance benefits was against the manifest weight of the evidence.

We affirm.

Background

Mr. Campbell has been employed as a “call” teacher for the past 26 years. In 1983, he began work as a part-time teacher at Columbia College. He was employed by Columbia College during the spring terms from 1983 through 1985, and during the fall term of 1984. During this same period of time, Mr. Campbell taught at Prairie State College in September 1984, and worked as both a part-time instructor and full-time teacher at Chicago State University in the fall of 1984. He later taught two courses at Chicago State University from January to April 1985. In addition, he taught two courses at Malcolm X College from February to May 1985. Mr. Campbell also taught one course at Columbia College from February to June 1985, and two courses at that same institution in the fall of 1985.

During the summer of 1985, Mr. Campbell applied for employment with Columbia College; however, he was unsuccessful. Subsequently, he applied for unemployment insurance benefits, at which time he was expected to return to Columbia College in February 1986. Mr. Campbell did, in fact, return to Columbia College as an instructor from February through May 1986. He also obtained a verbal contract to teach two courses in the summer of 1986, but he was not given a teaching position because an insufficient number of students registered for his courses.

On July 5, 1985, Columbia College filed an employer notice of possible ineligibility. On July 26, 1985, a claims adjudicator found that Mr. Campbell was ineligible for unemployment compensation pursuant to the provisions of section 612 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 442). Despite this finding, Mr. Campbell continued to receive unemployment compensation. On April 14, 1986, Columbia College protested the issuance of benefits to Mr. Campbell, noting that the claims adjudicator had found him ineligible on July 26, 1985.

On May 16, 1986, the Department issued a notice of reconsidered determination and recoupment, indicating that Mr. Campbell had been overpaid a sum of $209 per week for the 17 weeks from the week ending on June 29, 1985, through the week ending October 12, 1985. In the spring of 1986, he received a recoupment bill from the Department for $3,077.

On May 30, 1986, Mr. Campbell filed an application for reconsideration of the original determination of the claims adjudicator. He maintained that he was entitled to unemployment compensation because he was employed on a semester-by-semester basis, and that he was never employed for a full academic year. On June 26, 1986, a second claims adjudicator affirmed the initial adjudicator’s finding of ineligibility.

On July 9, 1986, Mr. Campbell filed yet another application for reconsideration of the claims adjudicator’s determination. He appealed the decision on the following two grounds: (1) the decision did not address the recoupment; and (2) the decision was unfair because he did not know that he was required to appeal the original 1985 denial of unemployment compensation, as he had been informed by an agent of the Department that it was not necessary to do so because he was receiving benefit checks.

Mr. Campbell also submitted a letter to the Employment Security Commission in support of his position. This letter, which was addressed to him and signed by Ms. Lya Dym Rosenblum, the Dean of Columbia College, was entitled “part-time teacher salary authorization.” The letter states in pertinent part:

“This records the engagement by Columbia College of the person identified above for the period beginning February 18, 1985, and ending June 8, 1985 to teach the class(es) listed below. The total stipend for this engagement will be indicated as below. It is understood by both parties that this is a limited engagement for a limited purpose and does not constitute an offer or acceptance of permanent employment and does not include any payment, ‘fringe benefit,’ or renumeration other than the total shown below. It is further understood that the termination of this engagement on the date shown does not constitute termination of employment, but merely the completion of a contract for services.”

On July 21, 1986, a hearing was held before referee Lamberto Arzadon. Referee Arzadon noted that Mr. Campbell should have filed his appeal within 30 days of the claims adjudicator’s decision on July 26, 1985. Mr. Campbell responded by asserting that he was unaware of his ineligibility for unemployment compensation until he received the recoupment order. He maintained that he appealed the decision to the satisfaction of the person at the local office of the Department located at 55th Street and South Michigan Avenue in Chicago, Illinois, and that this person told him to disregard the notice of ineligibility. On July 23, 1986, Referee Arzadon found that Mr. Campbell’s appeal had been filed after the deadline and dismissed the appeal on that basis.

Mr. Campbell then appealed to the board of review. Upon his appeal to the board of review, he submitted a letter dated August 18, 1986, sent to him by Mr. Peter Christiansen, the literature coordinator at Columbia College. This letter states, in its entirety, as follows:

“Many apologies for not responding earlier to your letter. As you know, I’ve been out of the country, and a number of things have slipped by me. I hope that this belated answer will be satisfactory.
As literature coordinator of the department, I would love to be able to assure people of continued employment, at least on the part-time basis which at present concerns you, but there are far too many obstacles in the way of this desire. Let me list a few of them[:]
1. When you are scheduled (tentatively) to teach a class (or classes), there is, at the time the schedule is drawn up, no contractual guarantee that you will have employment.
2. There is no assurance that any such class will have full enrollment, which is a major condition of employment.
3. There is no absolute assurance that money will be available for these courses, since it might be shifted at the last minute.
4. If any full-time people do not have a full load due to cancellation [sic] of classes (or for any other reason), they have a right to ‘bump’ part-timers.
5. Although it is true that you have worked at Columbia off and on since 1984, there is no formal or reasonable assurance that you will be hired for any subsequent semester, since only full-timers, who have official contracts, can only have assurance.
Therefore, while I sympathize with your plight, I can in no wise agree that Columbia College has to compensate you for your cancelled classes, since neither I nor anyone else at the college is authorized to guarantee you employment. I can offer you employment for any semester, on a part-time basis, as you know, but I cannot reasonably or legally guarantee you any such employment.”

On October 27, 1986, the board of review upheld the referee’s determination that Mr. Campbell’s appeal was delinquent.

Plaintiff Campbell next appealed to the circuit court of Cook County for administrative review. The defendants prevailed. He then appealed to this court, we ordered that the matter be remanded to the Department upon the Department’s motion.

On April 29, 1988, Mr. Campbell had another hearing before referee Andrew Kot. Referee Kot noted that the court’s order of remand required a hearing on the merits with respect to Mr. Campbell’s eligibility for benefits in light of section 612 of the Unemployment Insuranee Act (Ill. Rev. Stat. 1987, ch. 48, par. 442). At the hearing, Mr. Campbell testified with respect to his employment history. After the hearing, he submitted two “Statements of Facts” which contained corrections of his former testimony. A second hearing was held before Referee Kot on June 27, 1988, in light of these “Statements of Facts.” On October 14, 1988, the board of review determined that section 612 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 442) applied to Mr. Campbell, and it upheld the original claims adjudicator’s finding of ineligibility.

A copy of the order of the board of review was dated and mailed to Mr. Campbell on October 14, 1988. Twelve days later, a second copy of the decision was mailed to Mr. Campbell. The second notice was addressed to Columbia College, but the address written was incorrect. Mr. Campbell later received the second copy of the decision bearing a corrected address for the employer Columbia College. Mr. Campbell eventually received both notices. However, he received the second notice of the order mailed on October 26 before he received the notice which was mailed first. He filed his complaint on the 35th day after receiving the second notice.

Plaintiff Campbell appealed to the circuit court of Cook County again on November 22, 1988. The Department and Columbia College moved to dismiss for lack of jurisdiction, on the basis that plaintiff filed his complaint 39 days after the notice of the administrative decision was filed, when he was required to file his complaint for administrative review 35 days after the mailing of the administrative decision.

The parties next appeared before the circuit court of Cook County on March 7 and 20, 1989. The court denied defendants’ motions to dismiss, but confirmed the administrative determination of ineligibility. It is from the latter part of this decision that plaintiff appeals.

Opinion

I

First, plaintiff maintains that the trial court had jurisdiction over his case based upon notions of "justice and fair play.” Plaintiff fails to cite any case law or statutory authority in support of his position.

Defendants allege that the trial court had no jurisdiction over this case and that it erred by denying defendants’ motion to dismiss. Defendants rely upon article VI, section 9, of the Illinois Constitution (Ill. Const. 1970, art. VI, §9), section 1100 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 520), and section 3—103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 3—103). Defendants also rely upon Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, Cox v. Board of Fire & Police Commissioners of the City of Danville (1982), 107 Ill. App. 3d 704, and City of Chicago v. Shayne (1963), 27 Ill. 2d 414.

The Illinois Constitution provides that “Circuit Courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, §9.) The Unemployment Insurance Act makes no provision for service of process, but adopts the provisions of the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 48, par. 520.) The Administrative Review Law provides that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—103.) The 35-day period for commencing review proceedings begins to run on the date that a copy of the administrative decision is mailed to the affected party. Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 707.

The Illinois Supreme Court has ruled that “[where a court exercises] special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it.” (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210.) The supreme court also found that “where jurisdiction of the subject matter does not exist, it cannot be conferred upon [the trial] court by consent of the parties or by their acquiescence.” City of Chicago v. Shayne (1963), 27 Ill. 2d 414, 418.

We find that the trial court had jurisdiction over the case at bar. The board of review mailed plaintiff a copy of its decision on October 14, 1988. He filed his complaint for administrative review on November 22, 1988. Although plaintiff appealed 39 days after the board’s decision was first mailed, he filed his complaint on the 35th day after receiving a copy of the decision. Initially, a copy of the order of the board of review was dated and mailed to plaintiff on October 14, 1988. Twelve days later, another copy of the decision was mailed to him. This notice was mailed to Columbia College, plaintiff’s last employer, bearing the college’s incorrect address. Plaintiff received a copy of this second notice bearing a corrected address for the employer Columbia College. He received the second notice of the order prior to the notice which was mailed first. In the interest of justice and fair play, we find that plaintiff filed notice of appeal in a timely manner. We rule that plaintiff complied with the statute, and jurisdiction was not created by the consent of the parties or their acquiescence. Accordingly, we find that the trial court had jurisdiction to hear plaintiff’s complaint.

II

Plaintiff next contends that the trial court’s finding should be reversed because he had no reasonable assurance of employment for the fall semester of 1985. First, plaintiff asserts that defendants had no right to assume that he had a reasonable assurance of obtaining employment. Plaintiff maintains that he was “unemployed” pursuant to the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 442) because as a part-time academic, he had no guaranteed income and no summer vacations. Plaintiff also asserts that he was “unemployed” pursuant to the aforementioned Act because he was unable to secure a full-time teaching position, and he was denied promised employment as a part-time instructor. Second, plaintiff argues that the board of review erred by considering his employment history at three different educational institutions rather than limiting its consideration to his employment history at Columbia College. Finally, plaintiff maintains that he should not have to pay recoupment because there was no explanation as to why he was classified ineligible to receive benefits. Again, plaintiff fails to cite any statutory or common law authority in support of his contention.

Defendants maintain that if we find that the trial court had jurisdiction over this case, we should affirm the trial court’s holding on the merits because plaintiff had a reasonable assurance of continued employment in the fall of 1985 and was thus ineligible for unemployment compensation pursuant to section 612 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1987, ch. 48, par. 442.) Defendants also maintain that plaintiff’s complaint with respect to recoupment may not be considered by this court because the Department has not yet considered whether the plaintiff is not liable for recoupment due to his absence of fault for overpayment, or whether recoupment would be against equity and good conscience. Defendants rely upon relevant provisions of the Federal Unemployment Tax Act (also referred to as FUTA) (26 U.S.C. §§3301, 3302, 3304 (1988)), section 503 of the Social Security Act (42 U.S.C. §503 (1988)), and section 900 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 490). Defendants also rely upon Cabais v. Egger (D.C. Cir. 1982), 690 F.2d 234, Basketfield v. Police Board (1974), 56 Ill. 2d 351, and Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469.

In rebuttal, plaintiff maintains that section 612 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 442) is inapplicable in this case because the statute was not “openly presented” as a means of disqualifying him for unemployment compensation.

In Cabais v. Egger (D.C. Cir. 1982), 690 F.2d 234, the District of Columbia Circuit made the following observation:

“Unemployment Insurance *** is a joint federal-state responsibility. Under the Federal Act, employers must pay federal unemployment taxes on wages paid while each state provides unemployment compensation to claimants in accordance with state law. If the laws of a state comply with minimum federal standards ***, employers in that state are allowed a ninety percent credit against FUTA tax liability. In addition, *** states *** receive federal grants to cover the necessary costs of administering the state program if the program meets [federal] requirements ***.” Cabais, 690 F.2d at 235-36.

See 26 U.S.C. §§3301, 3302, 3304 (1988); 42 U.S.C. §503 (1988).

States must comply with the following minimum standards enunciated in section 3304 of the Federal Unemployment Tax Act: “(6)(A) [Compensation is payable *** except that[:]

(i) with respect to services in an instructional *** capacity for an educational institution ***, compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms (or, when an agreement provides instead for a similar period between two regular but not successive terms, during such period) to any individual if such performs such services in the first or such academic years (or terms) and if there is a contract or reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms ***.” 26 U.S.C. §3304(a)(6)(A)(i) (1988).

See 26 U.S.C. §3304(c) (1988); 42 U.S.C. §503(a) (1988).

In compliance with these requirements, section 612 of the Unemployment Insurance Act makes the following similar provisions:

“An individual shall be ineligible for benefits, on the basis of wages for service in employment in an instructional *** capacity performed for an educational institution *** during a period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual performed such service in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that the individual will perform service in any such capacity for any educational institution in the second of such academic years (or terms).” Ill. Rev. Stat. 1987, ch. 48, par. 442(B)(1).

The Code of Civil Procedure specifies that “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1987, ch. 110, par. 3—110.

In addition, the Illinois Supreme Court has mandated that “the permissible scope of judicial inquiry concerning factual determinations by administrative agencies has been limited to ascertaining if the agency decision was contrary to the manifest weight of the evidence.” (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358.) The supreme court has also held that “[t]he courts [shall] not reweigh the evidence, but are limited to a determination [of] whether the final decision of the administrative agency is just and reasonable in light of the evidence presented.” Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471.

The board of review found that plaintiff had a reasonable assurance of employment with an educational institution during the following fall term. Both Federal and State law provide that an instructor who is an employee of an educational institution is ineligible for unemployment benefits if the instructor was employed “during a period between two successive academic years, or during a similar period between two regular [academic] terms, whether or not successive, *** and if there is a *** reasonable assurance that the individual will perform service in any such capacity for any educational institution in the second of such academic years [or academic terms].” 26 U.S.C. §3304(a)(6)(A)(i) (1988); Ill. Rev. Stat. 1987, ch. 48, par. 442(B)(1).

The findings and conclusions of the board of review on questions of fact are prima facie true and correct. (See Ill. Rev. Stat. 1987, ch. 110, par. 3—110.) We cannot reweigh the evidence; however, we may determine whether the final decision of the board of review is just and reasonable in light of the evidence presented. (See Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471.) We find that the facts support the finding of the board of review. The facts show that plaintiff had always been able to obtain employment during the fall term. In 1983, plaintiff obtained work as a part-time teacher at Columbia College. Plaintiff was employed by Columbia College during the spring terms from 1983 through 1985, and during the fall term of 1984. Plaintiff also worked at Prairie State College in September 1984, and as both a part-time and a full-time teacher at Chicago State University in the fall of 1984. Plaintiff later taught two courses at Chicago State University from January to April 1985. In addition, plaintiff taught two courses at Malcolm X College in Chicago from February to May 1985. During that same period of time, plaintiff taught one course at Columbia College from February to June 1985, and two courses in the fall of 1985 at the same institution.

Plaintiff’s contention in his reply brief that section 612 of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 442) is inapplicable to the instant case because the statute was not “openly presented” as a means of rendering plaintiff ineligible for unemployment compensation does not pass muster. Section 612 was “openly presented” and discussed as a basis for plaintiff's ineligibility for benefits during his hearing before Referee Kot.

In addition, plaintiff’s employment or lack of employment during the summer months is irrelevant because the applicable Federal and State statutes (26 U.S.C. §3304(a)(6)(A)(i) (1988); Ill. Rev. Stat. 1987, ch. 48, par. 442(B)(1)) were designed to address the common academic practice of instructors not teaching during the summer months.

Finally, we find that the board of review did not err when it considered plaintiff’s employment history at three educational institutions, rather than limiting the scope of its analysis to plaintiff’s employment history at Columbia College. The relevant statutes do not limit the consideration of a claimant’s employment history to one educational institution. Therefore, the board of review’s actions were appropriate.

Accordingly, we find that the decision of the board of review was just and reasonable in light of the evidence presented and was not contrary to the manifest weight of the evidence. (See Basketfield v. Police Board (1974), 56 Ill. 2d 351, 358; Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471.) We affirm the trial court’s finding with respect to this issue.

Finally, plaintiff argues that he should not have to pay recoupment because the Department and the trial court erred when they failed to give plaintiff an explanation as to why he was classified ineligible to receive benefits.

Defendants properly maintain that plaintiff’s contention with respect to recoupment may not be considered by this court because the Department has not yet considered whether the recoupment issue of absence of fault for overpayment or whether recoupment would be against equity and good conscience.

When an individual receives benefits for which he is determined to have been ineligible, the benefits paid to him may be “recouped.” (Ill. Rev. Stat. 1987, ch. 48, par. 490(A).) “No recoupment shall be begun *** if an appeal has been filed, until the decision of a Referee has been made thereon affirming the decision of the Claims Adjudicator.” (Ill. Rev. Stat. 1987, ch. 48, par. 490(B).) Recoupment may be waived upon an individual’s request if the benefits were “received by the individual without fault on his part and if such recoupment would be against equity and good conscience.” Ill. Rev. Stat. 1987, ch. 48, par. 490(A)(2).

There is no evidence in the record that plaintiff ever requested a statutory waiver of recoupment. The record indicates that plaintiff limited his appeals to the issue of ineligibility. On May 30, 1986, plaintiff filed an application for reconsideration of the claims adjudicator’s determination of plaintiff’s ineligibility. On July 21, 1986, plaintiff was granted a hearing before Referee Arzadon at which he contested the finding of ineligibility. On April 29, 1988, plaintiff appeared before Referee Kot. The hearing before Referee Kot was a hearing on the merits with respect to plaintiff’s eligibility for benefits in light of section 612 of the Unemployment Insurance Act. (Ill. Rev. Stat. 1987, ch. 48, par. 442.) Plaintiff failed to specifically request a waiver of recoupment at any of the aforementioned proceedings. Plaintiff also failed to make this request during his appeal to the trial court. Therefore, plaintiff has failed to exhaust his administrative remedies with respect to this issue. We cannot relieve plaintiff of his obligation to pay recoupment because he failed to raise the waiver issue below.

For the aforementioned reasons, we affirm the decision of the trial court.

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE McNAMARA

text:
    GEORGE PALMER, Plaintiff-Appellant, v. MYRTIS MINOR, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—2319
    Opinion filed March 28, 1991.
    Benjamin & Shapiro, Ltd., of Chicago (Fred I. Benjamin and Laurence M. Landsman, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis and Linda L. Stinauer, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, George Palmer, appeals from an order of the trial court granting summary judgment in favor of defendant and barring his witness, Reba Shavers, from testifying as a sanction pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). The trial court also found that Shavers was a person “directly interested in the action” under the Dead Man’s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8—201), and thus barred her as a witness under that act.

On April 20, 1988, plaintiff filed this complaint against Myrtis Minor, as executrix of the estate of Quincy Boles, deceased, seeking $15,000 in damages arising out of an intersectional automobile accident that occurred in Chicago. Plaintiff was the driver of one automobile while the deceased drove the other vehicle. Defendant filed an answer to the complaint denying all allegations of negligence.

In answer to defendant’s first set of interrogatories filed on June 5, 1989, plaintiff identified Sadie Haywood and Michael Pamphlet as occurrence witnesses, in addition to the parties. On January 24, 1990, defendant served supplemental interrogatories which remained unanswered at the time trial was to begin on April 3, 1990. These interrogatories also asked for the names of occurrence witnesses. On April 3, the trial court granted defendant’s motion to bar the testimony of the previously disclosed occurrence witnesses, Haywood and Pamphlet, and plaintiff does not dispute the propriety of that order. (Nor does plaintiff challenge the fact that under the Dead Man’s Act he may not testify at trial.)

At the hearing on April 3, plaintiff’s counsel for the first time orally disclosed the name of Reba Shavers as an occurrence witness. Plaintiff had not identified her as a witness either in his answers to interrogatories or at his discovery deposition. Plaintiff’s counsel subsequently filed an affidavit stating that on March 28, 1990, plaintiff came to his office to sign his answers to the supplemental interrogatories. At that time, counsel first became aware of Shavers as an occurrence witness. Counsel’s affidavit further recited that he drafted answers to the supplemental interrogatories naming Shavers as a witness, but due to a clerical error the answers were not typed and thus were not filed with the court or mailed to opposing counsel. Over defendant’s objection, Judge Ian Levin ordered the deposition of Shavers to take place and continued the trial to May 31,1990.

At Shavers’ deposition, it was disclosed that she and plaintiff lived together and that while they were not married, she was the mother of his child. Shavers also testified as follows:

“Q. How is it that you became aware that a lawsuit was pending because of this accident?
A. Well, George asked if I had, you know, saw [sic] the accident and you know, at that time of the accident when he was getting his witnesses together he asked if I’d be available in case, you know, something — the other two weren’t, you know, just in case.
Q. When was that?
A. When was it?
Q. Yes.
A. When I spoke to him?
Q. When he asked if you’d be available?
A. That was after the accident.
Q. How long after the accident?
A. Well, this was like when everyone was leaving.
Q. At the time?
A. At the scene when it was clearing up.”

On May 31, 1990, the case was continued until the following day. On June 1, defendant asked the present trial judge to bar the testimony of Shavers as a Rule 219(c) violation. After several continuances during which time both sides filed pleadings concerning the issue, on July 18, 1990, the trial court granted defendant’s motion to bar Shavers as a witness. On July 19, 1990, the trial judge stated that he granted the motion for the following reasons:

“Failure to disclose Reba Shavers as a witness constitutes a gross violation of Supreme Court Rule 219(c), due to the close relationship of the plaintiff to the witness, the court finds the plaintiff has failed to exercise good faith for the following reasons:
* * *
The witness is known to the plaintiff; the witness is the mother of the plaintiff’s child; the witness was present at the scene of the accident at the time of the occurrence; the plaintiff failed to mention Reba Shavers as a witness at the time of his discovery deposition, although he was asked.”

The trial court also barred Shavers’ testimony on the grounds of the Dead Man’s Act. Since Shavers was the only witness who could testify, the court granted summary judgment in favor of defendant.

Plaintiff initially contends on appeal that the trial court abused its discretion in barring Shavers from testifying as a Rule 219(c) sanction. We do not agree.

Supreme Court Rule 219(c) provides in pertinent part:

“(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreasonably refuses to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
* * *
(iv) that a witness be barred from testifying concerning that issue.” 134 Ill. 2d R. 219(c).

Imposition of any Rule 219(c) sanction is within the sound discretion of the trial judge. Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243; Trippel v. Lott (1974), 19 Ill. App. 3d 936, 312 N.E.2d 369; Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 606, 289 N.E.2d 439.

We recognize that in barring Shavers from testifying, the court barred plaintiff’s only testifying witness. However, in view of plaintiff’s gross violation of the rule, the record fully supports that disposition. Plaintiff maintains that under the holding of Blakely v. Johnson (1976), 37 Ill. App. 3d 112, 345 N.E.2d 814, the trial court must look to several factors to determine whether and which sanction should be imposed: (1) surprise of the testimony to the opposing party; (2) the prejudicial effect of the testimony; (3) the diligence of the opposing party in seeking discovery; (4) timely objection to the testimony; and (5) good faith of the party calling the witness. Yet, in our view, the presence or absence of the above factors either separately or together fails to demonstrate an abuse of discretion on the part of the judge in this case.

Plaintiff had a close relationship with Shavers. They lived together; she was the mother of his child; she was present at the scene of the accident; plaintiff knew that Shavers was a witness; and indeed they had discussed her role as a witness. Yet despite all these facts, plaintiff deliberately and repeatedly withheld the identity of Shavers as a witness. Plaintiff failed to disclose her name in his sworn answers to interrogatories. At his discovery deposition, plaintiff insisted that there were only two witnesses, persons whom he did not know prior to the accident. It was only on the day scheduled for the commencement of trial, after the judge barred the use of the two witnesses he had disclosed, that plaintiff revealed the name of Shavers as a witness. And to compound all the foregoing concealment, it is undisputed that plaintiff informed Shavers she would be a “spare” witness, apparently only to be used in an emergency. It is difficult to imagine how there could be a more gross violation of the rule than that perpetrated by plaintiff here.

We acknowledge that barring a witness from testifying is a drastic sanction and should be exercised sparingly. That is particularly true when the witness barred is a party’s only witness. Nevertheless, we find that under the circumstances before us, the trial judge exercised an appropriate sanction.

In view of our holding, it is unnecessary to consider the propriety of the court’s ruling that Shavers should be barred from testifying as a “party directly interested in the action” under the Dead Man’s Act.

Since Reba Shavers was the only witness available to plaintiff, the trial court properly granted summary judgment in favor of defendant.

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

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.