author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIA CAMDEN, Defendant (Law Offices of Robert L. Douglas, Ltd., Appellant).
    Fifth District
    No. 5—89—0298
    Opinion filed November 21, 1990.

      Robert L. Douglas and Fred W. Johnson, both of Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellant.
    Jon C. Anderson, State’s Attorney, of Robinson (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On July 22, 1983, the defendant, Julia Camden, was charged by information with two counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, pars. 12—4(a), 12—4(b)(1)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A—2) and attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8—4(a), 9—1(a)(1)) as a result of an incident that occurred in a tavern in Crawford County. Defendant was acquitted of the attempted murder charge, and a verdict of guilty but.mentally ill was returned on the remaining charges. Defendant’s attorney, Robert Douglas, raises the issue of whether his law firm, which was privately retained to represent the defendant, is entitled to compensation where defendant was declared indigent and the law firm continued to represent defendant beyond the terms of the private representation agreement.

The law firm of Robert L. Douglas, Ltd. (Law Firm), was retained to represent defendant in defense of the charges filed against her. An initial retainer of $10,000 was paid to the firm. Subsequently the Law Firm received an additional $9,000 from bond money held in deposit.

The case proceeded to trial on June 25, 1984, and a mistrial was declared. Defense counsel thereafter filed a motion to bar further prosecution and enter a judgment of acquittal on the ground of double jeopardy. The trial court found that defendant had consented to the mistrial and denied the motion. Defendant appealed to this court (People v. Camden (1986), 140 Ill. App. 3d 480, 488 N.E.2d 1082), and we reversed and remanded with directions that defendant be discharged. The Illinois Supreme Court granted the People’s petition for leave to appeal and reversed and remanded the decision of this court. People v. Camden (1987), 115 Ill. 2d 369, 504 N.E.2d 96.

The Law Firm petitioned for certiorari to the United States Supreme Court. The petition was denied, and the cause was remanded to the circuit court for retrial. (Camden v. Illinois (1987), 481 U.S. 1070, 95 L. Ed. 2d 873, 107 S. Ct. 2464.) While State court proceedings were pending, the Law Firm filed a petition for writ of habeas corpus with the Federal district court. Defendant’s petition was denied, and the Law Firm appealed to the United States Court of Appeals on September 20, 1989. The court of appeals affirmed the district court’s denial of defendant’s petition for writ of habeas corpus, finding that defendant impliedly consented to the trial court’s mistrial declaration by failing to object. Camden v. Circuit Court of Second Judicial Circuit (7th Cir. 1989), 892 F.2d 610.

On July 2, 1987, defense counsel filed a motion to withdraw from the case, alleging that the defendant was indigent and was no longer able to pay attorney fees. This motion was not heard.

On February 22, 1988, defense counsel filed a motion to withdraw, and a motion for payment of expert witness fees. At a hearing on the motions held March 31, 1988, Fred Johnson, an attorney with the Law Firm arguing on behalf of the defendant, advised the court:

“We’re agreeable to continue this matter at our own expense in terms of attorneys’ fees, but we’re not going to run into the hole on this matter paying our experts to come in and testify. * * *
We’re willing to try this free of charge other than having our expenses covered. * * *
*** [A]ll that I’m asking *** is that I be permitted to either withdraw or continue on with an order that the county pay the reasonable *** expenses of our experts and trial expenses.”

The court granted counsel’s motion for payment of expert witness fees and denied the motion to withdraw.

On January 23, 1989, attorney Fred Johnson filed a third motion to withdraw, noting that Crawford County had recently created the office of public defender, and requesting that the public defender be appointed to represent the defendant. At a hearing held on this motion on January 25, 1989, Judge McLaughlin denied the motion to withdraw because (1) the public defender would be exposed to a conflict of interest because he had previously represented the defendant’s husband in a domestic matter, and (2) the public defender’s contract limited his appointment to cases commencing after the date on which he took office. At the hearing Judge McLaughlin stated on the record that “it should not be intended [sic] that I am expressing any opinion *** to whether you have a right to be compensated at anytime in the future. [I]f that needs to be raised in the future it should be disposed of by the particular judge handling the matter at that particular time.” Shortly after this hearing the case was assigned to Judge Bruce Irish.

On February 14, 1989, Fred Johnson filed a motion requesting the appointment of his Law Firm as public defender to represent the defendant as an indigent. This motion was heard by Judge Bruce Irish, who deferred ruling on the motion until after defendant’s trial. At the sentencing hearing before Judge Irish, defense counsel renewed his motion to have his Law Firm retroactively appointed as public defender. Attorney Johnson calculated that from the date of May 8, 1988, his attorney fees and expenses totaled $9,106.95. The amount of attorney fees was based on an hourly rate of $75. The trial judge denied defense counsel’s motion in its order of April 10, 1989.

On April 17, 1989, defense counsel filed a motion for reconsideration, asserting that defense counsel never agreed to waive attorney fees. At the hearing on this motion, the court inquired of defense counsel why he should not be held in contempt for requesting attorney fees which defense counsel had agreed to waive. After hearing attorney Johnson’s argument on the matter, Judge Irish found “that the omission of the material fact of prior waiver was willful and calculated to mislead the court.” Judge Irish cited Fred Johnson and the Law Firm with direct criminal contempt, and fined both Johnson and the firm $500 each. Defense counsel appeals from the order entered April 10,1989.

The State does not contend that defense counsel’s representation was either unnecessary or inconsistent with defense counsel’s obligation to defend. (In re Petition for Fees (1983), 117 Ill. App. 3d 744, 747, 453 N.E.2d 949, 951 (Wilson).) The State contends, however, that when defense counsel undertakes representation pursuant to the payment of a retainer, counsel is not entitled to remuneration by the county after the retainer is exhausted. Although the attorney-representation agreement between Julia Camden and the Law Firm is not a part of the record, defense counsel maintains that it was contractually obligated to represent the defendant through trial and through one appeal. Defense counsel argues that its contractual obligation was fulfilled and that it was not required to represent defendant in a second trial or in the extensive appeals which it has taken in this case. The State in its brief appears to acquiesce in the representations made by the Law Firm as to the terms of the attorney-client contract. We will presume the veracity of the same.

Section 113—3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 113—3(c)) provides for the payment of a reasonable fee to the court-appointed counsel of an indigent defendant. No statutory provision is made for the payment of attorney fees to those other than court-appointed counsel. Nonetheless, in Wilson the court determined that although defense counsel was not appointed by the court, his representation of the defendant was court-authorized and was necessary and consistent with appointed counsel’s duty to defend. The Wilson court thereupon sanctioned the trial court’s award of attorney fees to defense counsel. (Wilson, 117 Ill. App. 3d at 748, 453 N.E.2d at 952.) Defense counsel in the case at bar also represented defendant with the court’s approval. In fact, counsel at bar petitioned three times to withdraw from representing the defendant after defendant became indigent, but the court, even with knowledge of defendant’s indigency, either did not rule on defendant’s motion or denied counsel’s requests to withdraw. While an actual finding of defendant’s indigency does not per se appear of record, there is sufficient evidence in the record to infer the existence of defendant’s unfortunate economic situation.

At the hearing on March 31, 1988, an affidavit of defendant’s assets and liabilities was filed with the court. Defendant declared in this sworn affidavit that she is divorced with five children; is unemployed; has a monthly income of $350 from social security which ceases October 1988; and has assets totaling $100 and liabilities of $1,200. The report of proceedings evidences the court’s acknowledgment of defendant’s indigency where the court granted defendant’s motion for payment of witness fees after considering the affidavit of defendant and the representations of defense counsel that defendant had no resources with which to pay them.

We are aware that at the hearing on January 25, 1989, the court stated that no declaration of indigency had been made. We are also mindful of the fact that the trial judge at that hearing declined to rule whether defendant was indigent or not. An affidavit of assets and liabilities filed February 14, 1989, shows that defendant’s economic situation had not significantly changed from the date the first affidavit was filed. We find it significant that although the court made no specific finding as to indigency at the January 25, 1989, hearing, the court’s ruling on defendant’s motion to withdraw supports the conclusion that defendant is' indigent since it implies that were it not for the public defender’s conflict of interest and contractual limitations, the motion would have been granted. In light of the affidavits of assets and liabilities filed by the defendant, and the court’s rulings of February 22, 1988, and January 25, 1989, we find the record sufficiently demonstrates that defendant was indigent as of at least March 31,1988.

With the question of defendant’s indigency resolved, we are left to decide the questions of whether defense counsel is entitled to remuneration as a public defender, and if so, from what date the remuneration should be calculated. The parties on appeal, in.support of their respective positions, cite cases involving the award of attorney fees to court-appointed counsel. (People v. Kinion (1983), 97 Ill. 2d 322, 454 N.E.2d 625; People v. Johnson (1981), 87 Ill. 2d 98, 429 N.E.2d 497; People ex rel. Conn v. Randolph (1966), 35 Ill. 2d 24, 219 N.E.2d 337; In re Petition for Fees (1983), 117 Ill. App. 3d 744, 453 N.E.2d 949.) Our research has failed to reveal any cases directly on point with the factual scenario in this case, but we find the case of People v. Kinion (1983), 97 Ill. 2d 322, 454 N.E.2d 625, insightful in resolving the issue at bar.

In Kinion, privately retained counsel was subsequently appointed to represent the defendant in the same case after the defendant was declared indigent. Following trial, defense counsel filed a motion for attorney fees which was granted in part. The appellate court affirmed the award, but the supreme court reversed. In holding that counsel was estopped from requesting payment, the supreme court found it significant that counsel, in requesting that the court appoint him instead of the public defender, represented that he would not seek payment of attorney fees from the county. (Kinion, 97 Ill. 2d at 333, 454 N.E.2d at 629.) The supreme court also found that under the private representation agreement between counsel and the defendant, counsel agreed to accept the equity in defendant’s home as payment in full for his services. The supreme court reasoned that under such circumstances counsel should not be permitted to burden the county with his demand for fees.

Unlike Kinion, the private representation contract in the instant case did not require counsel to defend beyond a trial and one appeal. It is obvious that counsel here represented defendant in proceedings well beyond the contemplation of the attorney-client contract. The State makes much of the fact that defense counsel received $19,000 to represent the defendant, while counsel in Kinion received no compensation from the defendant. While a retainer was paid in this case, the amount received was in consideration of defense counsel’s representation at one trial and on one appeal. We do not believe counsel is trying to burden the county with something he would not otherwise have been entitled to. Under the circumstances related thus far, it seems that once the terms of the attorney-client contract were satisfied, counsel was entitled to remuneration as a public defender. In this case, however, other factors persuade us to find that counsel is only entitled to reimbursement from the county from the date Crawford County acquired a public defender.

We find it significant that defense counsel did not seek payment of attorney fees from the county until February 14, 1989. In fact, counsel waived any right it may otherwise have had to payment at the March 31, 1988, hearing. At the hearing on defendant’s second motion to withdraw, defense counsel’s statements to the court that his Law Firm would not seek attorney fees estopped counsel from seeking fees at that point in time. (See Kinion, 97 Ill. 2d at 331, 454 N.E.2d at 629.) It was not until January 23, 1989, when counsel sought to have the newly acquired public defender appointed, that counsel was released from his prior agreement to waive fees. The change in circumstances — the acquisition of a county public defender-warranted a release of defense counsel's prior waiver of fees which was made at a time when the parties did not contemplate the availability of a public defender.

At the January 25, 1989, hearing, Judge McLaughlin stated on the record that notwithstanding the court’s decision hot to appoint the public defender, the court was not precluding compensation for defense counsel should that matter be brought before the court in the future. We see no reason to preclude remuneration to counsel from the date Crawford County acquired a public defender. Based on the foregoing, we find that the trial court’s denial of defense counsel’s request to be appointed public defender was an abuse of discretion. We reverse the trial court’s decision and remand this cause so that defense counsel may be retroactively appointed as public defender for this case, and a determination may be made as to the proper fee to which defense counsel is entitled for services from the date Crawford County acquired a public defender.

Defense counsel also requests that we enter an order remanding this cause to a judge other than Judge Irish. As counsel has not cited any authority for such request, we decline to enter such an order.

Reversed and remanded with directions.

WELCH and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    APOLLO LABEL COMPANY, Plaintiff, v. CURTIS T. SCHULTZ, Defendant-Appellee and Cross-Appellant (Jerome S. Babik et al., Plaintiffs-Appellants and Cross-Appellees; Insurance Benefit Administrators, Inc., et al., Defendants).
    First District (5th Division)
    Nos. 1—89—0165, 1—89—0250 cons.
    Opinion filed November 9, 1990.

      Much, Shelist, Freed, Denenberg, Ament & Eiger, P.C., of Chicago (Howard M. Cohen, Sharon Swarsensky Bilow, and Wendy B. Kahn, of counsel), for appellants.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. Denardo, Samuel A. Purves, and Christine L. Olson, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, Jerome S. Babik and Eileen M. Grady, appeal from the trial court’s entry of judgment notwithstanding the verdict on count VI of their amended complaint and from the court’s judgment in favor of defendant, Curtis T. Schultz, on count VII. Defendant cross-appeals from the denial of his motion for remittitur and new trial. We address the following two issues: (1) whether the evidence, viewed in a light most favorable to plaintiffs, so overwhelmingly favored defendant that judgment notwithstanding the verdict on count VI was proper; and (2) whether judgment in defendant’s favor on count VII was against the manifest weight of the evidence. For the following reasons, we dismiss appeal number 1 — 89—0165 and affirm appeal number 1 — 89—0250.

Plaintiffs’ amended complaint sought recovery for the denial of life insurance benefits under a policy in the name of William F. Grady. Grady’s employer, Apollo Label Company (Apollo), obtained the policy. Plaintiffs, the president of Apollo and Grady’s widow, were the beneficiaries of the policy.

Plaintiffs voluntarily dismissed Boston Mutual Life Insurance (Boston Mutual) and, due to settlements, agreed to the dismissal with prejudice of New York Life Insurance Company (New York Life) and Insurance Benefits Administrators, Inc. (IBA). On defendant’s motion, the trial judge dismissed Apollo as a plaintiff.

The remaining counts of the complaint were directed against defendant. In count VI, plaintiffs alleged that defendant breached his fiduciary duty to Apollo for failing to obtain $50,000 of life insurance coverage on Grady with New York Life. In count VII, plaintiffs alleged defendant violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.) because defendant misrepresented that the coverage on the policy with New York Life was $50,000. Count VI was tried before a jury, and count VII was tried before the trial judge. The following evidence was presented.

The parties stipulated that Grady worked at Apollo from 1969 through July of 1982 and was a participant in its life insurance plan. On June 1, 1982, Apollo changed its group life insurance coverage from Boston Mutual to New York Life. Grady died on August 7, 1982. Plaintiffs were the beneficiaries under his life insurance policy.

One of the plaintiffs, Jerome Babik, the president of Apollo, testified that Grady was vice-president of the company. Defendant was Apollo’s insurance agent and he obtained its insurance policies. IBA was the administrator of the policy but Babik did not communicate with the company directly. Babik communicated with defendant, whom he trusted.

Apollo had life insurance coverage with Boston Mutual on Grady for $10,000. Effective October 1, 1981, that coverage was increased to $50,000. Defendant sent Apollo certificates of insurance issued by Boston Mutual verifying that the coverage on Grady was raised to $50,000.

Subsequently, Babik received a letter dated April 30, 1982, from IBA, which stated that effective June 1, 1982, its coverages would be underwritten by New York Life. The letter stated that the insurance coverage with New York Life was identical to the former coverage with Boston Mutual. To effect the change in companies, Apollo was required to complete the participation request form and pay the premium no later than June 1. Babik testified that he complied with these requirements. The letter further stated that benefit payments would be processed by IBA but checks would be issued by New York Life. Defendant processed the transfer of companies and told Babik that the coverage would be identical. However, Babik also testified that defendant did not misrepresent any facts regarding Apollo’s insurance coverage.

After Grady’s death, plaintiffs prepared a New York Life claim form for life insurance benefits in the amount of $50,000 and sent it to IBA. In response, Babik received a letter from IBA dated September 21, 1982, which stated that it could not process the claim as requested. The letter stated, “[i]n lieu [sic] of the fact that the life schedule is $10,000 for each employee, the written amount of $50,000 on the claim form is in error.” IBA requested plaintiffs to submit the claim for $10,000. Without objection from defendant, this letter was admitted in evidence.

On defendant’s instruction, plaintiffs prepared another New York Life claim form dated October 20, 1982, for $50,000 which was sent to the insurance company. In December of 1982, defendant informed Babik that the $50,000 claim would not be honored because the transfer to New York Life was not handled properly.

After plaintiffs filed suit, New York Life tendered plaintiffs $10,000 plus interest and costs for a total of $11,900 and, subsequently tendered an additional $12,000.

Defendant, who was called as an adverse witness in plaintiffs’ case in chief, testified he was an insurance broker for Apollo. IBA handled the transfer of Apollo’s life insurance coverage from Boston Mutual to New York Life. Defendant told Babik that the coverage would be identical but he did not check with New York Life to determine whether Grady was still covered for $50,000. Defendant believed the coverage with New York Life was $50,000.

After plaintiff rested, defendant testified in his case in chief. Defendant agreed with Babik’s testimony that Apollo satisfied IBA’s requirements to transfer its coverage from Boston Mutual to New York Life. After the transfer, defendant did not receive a certificate of insurance from New York Life verifying that Grady was covered for $50,000.

The parties stipulated to the admission of a letter dated March 3, 1983, from New York Life to plaintiffs’ attorney which stated in part:

“Please be advised that we have conducted a review of this claim and have concluded that no [l]ife benefit is payable. According to the facts as we understand them to be, Mr. Grady last worked in March of 1982. As you are aware, New York Life became the insurance carrier for Apollo *** on June 1, 1982. Our Group Policy Employees to be Insured Provision states in pertinent part that an employee will not be eligible for insurance coverage until which time he satisfies an actively-at-work requirement. Since Mr. Grady did not return to work prior to his death and thus never fulfilled the contractual requirement, no [l]ife benefit is payable. * * *
Of course, *** if you feel our decision is based on misinformation, or if you are in possession of additional information you would like to present for our consideration, please write me promptly.”

The parties also agreed that the letter was incorrect because Grady was working at Apollo on June 1,1982.

The jury returned a verdict in plaintiffs’ favor on count VI, which alleged breach of fiduciary duty, and awarded $65,800 in damages, interest, and attorney fees. However on December 8, 1988. in ruling on defendant’s post-trial motion, the trial judge set aside the jury’s verdict on count VI and entered judgment notwithstanding the verdict in defendant’s favor. The trial judge entered judgment in defendant’s favor on count VII, which alleged defendant violated the Consumer Fraud and Deceptive Business Practices Act.

Plaintiffs’ post-trial motions were denied as well as defendant’s remaining post-trial request for attorney fees, remittitur, and new trial.

On January 6, 1989, plaintiffs filed their second post-trial motion pursuant to section 2—1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1202(c)), asking the court to vacate the entry of judgment notwithstanding the verdict on count VI. On the same day, plaintiffs also filed a notice of appeal (No. 1—89—0165) from the December 8, 1988, order. Plaintiffs’ post-trial motion was denied on January 13. Defendant filed a cross-appeal on January 17. On January 19, plaintiffs filed a second notice of appeal (No. 1—89—0250), from the December 8 and January 13 orders. On January 27, defendant filed a second cross-appeal.

Opinion

Initially, we must dismiss plaintiffs’ first appeal (No. 1—89—0165), which was filed on the same day as their second post-trial motion. As a result, defendant’s first cross-appeal is also dismissed. Plaintiffs’ appeal was premature because their post-trial motion was pending and, therefore, the notice of appeal had no effect. 134 Ill. 2d R. 303; Chand v. Schlimme (1990), 138 Ill. 2d 469.

Turning to the merits of the appeal, plaintiffs argue that the trial judge erroneously entered judgment notwithstanding the verdict on count VI in defendant’s favor. Count VI alleged defendant breached his fiduciary duty by failing to obtain $50,000 of life insurance coverage from New York Life. The jury returned a verdict for plaintiffs but the judge set aside the verdict stating that plaintiffs failed to prove that New York Life did not insure Grady for $50,000. On appeal, plaintiffs contend that the evidence at trial established New York Life did not insure Grady for $50,000 and, therefore, judgment notwithstanding the verdict was improper.

Judgment notwithstanding the verdict should be entered when all of the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Owens v. Stokoe (1986), 115 Ill. 2d 177, 503 N.E.2d 251, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) If the evidence demonstrates a substantial factual dispute or if the assessment of witnesses’ credibility or a resolution of conflicting evidence may be decisive to the outcome, the trial judge should not set aside the jury’s verdict. Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.

In this case, the evidence presented at trial does not reveal a substantial factual dispute and there is no issue presented concerning the credibility of witnesses or resolution of conflicting evidence. The parties stipulated to the admission of relevant evidence and the witnesses’ testimony was basically consistent.

Primarily, the parties disagree as to whether the evidence presented established that New York Life insured Grady for $10,000 rather than $50,000. Plaintiffs rely on the letter from IBA to Babik, refusing to process their claim for $50,000 because the life schedule was $10,000 for each employee. Plaintiffs contend that because IBA administered Apollo's insurance, the letter was the equivalent of New York Life stating that the policy coverage was $10,000. Plaintiffs also argue that although New York Life initially denied plaintiffs’ claim because Grady was not actively at work when the policy was transferred, its subsequent settlement with plaintiffs, initially for $10,000, established the amount of the policy coverage was only $10,000. Further, plaintiffs relied on the parties’ stipulation that Grady worked at Apollo through July 1, 1982, and therefore, he was actively at work when the coverage transferred to New York Life.

Despite plaintiffs’ claim, New York Life’s initial settlement with them for $10,000 did not establish that its coverage on Grady was $10,000. Settlement is not proof of liability. Pientka v. Board of Fire Commissioners of the North Main Fire Protection District (1984), 125 Ill. App. 3d 124, 465 N.E.2d 677.

However, this issue is not decisive. Whatever the coverage limit on the policy, the evidence established that New York Life denied plaintiffs’ claim based on its belief that Grady was not actively at work at the time the policy was transferred. Although the parties agreed at trial that New York Life’s belief was incorrect, there is no dispute that New York Life denied plaintiffs’ claim for that reason. The evidence, when viewed in a light most favorable to plaintiffs, established that even if defendant was negligent in failing to obtain $50,000 of coverage, New York Life denied the claim for failure to fulfill the policy requirements. Plaintiffs did not present evidence that any negligence on defendant’s part resulted in the denial of their claim. Accordingly, the entry of judgment notwithstanding the verdict on count VI was proper.

Plaintiffs also argue that the trial judge, as the trier of fact on count VII of their complaint, improperly entered judgment in defendant’s favor. Count VII alleged defendant violated the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq) when he misrepresented that Grady had life, insurance coverage with New York Life for $50,000. On appeal, plaintiffs argue that the evidence at trial established the essential elements of a cause of action under the Act.

The trial court’s judgment will not be disturbed unless it was against the manifest weight of the evidence. First National Bank v. Wolfe (1985), 137 Ill. App. 3d 929, 485 N.E.2d 46.

The parties argue whether or not a public injury is required to recover under the Act; however, this issue was resolved with a recent amendment in section 10a(a) of the Act stating, “[pjroof of a public injury, a pattern, or an effect on consumers generally shall not be required.” Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a).

Under the Act, plaintiffs were required to establish that defendant’s alleged misrepresentation caused them damage. (Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a); Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) However, as noted previously, because New York Life denied plaintiffs’ claim based on its belief that Grady did not fulfill the policy requirements, plaintiffs could not prove that defendant’s alleged misrepresentation caused them to lose $50,000 in coverage. Therefore, the judgment in defendant’s favor on count VII was not against the manifest weight of the evidence.

Based on our decision, it is not necessary to address plaintiffs’ remaining arguments and defendant’s cross-appeal.

Appeal number 1—89—0165 is dismissed, and appeal number 1—89—0250 is affirmed.

No. 1—89—0165, Dismissed.

No. 1—89—0250, Affirmed.

MURRAY and GORDON, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY WHITE, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—2807
    Opinion filed November 9, 1990.

      Frederick De Pasquale, of Naperville, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Michele I. Lavin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial defendant was convicted of driving a truck on a highway with a gross weight in excess of that permitted by statute (Ill. Rev. Stat. 1987, ch. 95½, par. 15 — 111(g)) and was fined $16,000. On appeal defendant raises several questions regarding the sufficiency of the evidence, statutory interpretation and the propriety of the police to have stopped him and then weighed his vehicle.

About noontime on November 27, 1987, Illinois State Police officer Tony Rapaz was on patrol driving on 91st Street near Interstate 94 (1-94) when he saw a large semitrailer truck carrying a huge steel beam and being driven by defendant. The truck appeared “too large” to be there, and the officer saw smoke emanating from the left rear tandem of the vehicle about the time he stopped defendant. After the officer stopped the truck, defendant gave him a permit issued to defendant’s employer, Norwood Transport, Inc., to transport the load listing a gross weight of 205,000 pounds. The route specified in the permit did not list 1-94 as the proper route; nor did defendant have a police escort as specified in the permit. The permit also provided that defendant was to comply with provision “A” of Form BT — 993 promulgated by the Illinois Department of Transportation (IDOT), which provides restrictions on trucks in Cook County prohibiting vehicles in excess of 88,000 pounds of gross weight on Cook County expressways with exceptions for certain expressways not applicable to this case. Defendant was ticketed for being in violation of the permit.

Because it was Friday following Thanksgiving the officer could not have the truck weighed, so defendant was required to park the truck. The following Monday an IDOT employee used a portable scale which showed that the truck weighed 212,080 pounds.

The defense presented evidence concerning the accuracy of a portable scale and the specific weighing procedure conducted in this case. Defendant also presented evidence that his truck was then taken to two certified State weigh stations, but it was too wide to be weighed at either station. The truck was eventually taken to a stationary scale at a steel company where it showed a gross weight of 205,360 pounds.

The trial court convicted defendant. In assessing the fine, the court utilized defendant’s evidence of weight obtained at the steel company. By subtracting 88,000 pounds from the gross weight of 205,360 pounds, the trial court found that defendant was 117,360 pounds overweight. The trial court assessed a fine which it then reduced to $16,000 in consideration of the fact that the truck was impounded for several days, costing defendant’s employer a substantial sum.

Defendant argues that the trial court erred in finding him in violation based on gross weight rather than merely exceeding the weight specified in the permit. Defendant claims that the permit allowing him to drive a vehicle with a gross weight of 205,000 pounds should prevail. He was, therefore, only 8,000 pounds overweight by the State’s evidence or 360 pounds overweight if the steel company scale’s weight is accepted. Defendant relies on section 15 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 15 — 301), which allows IDOT to issue permits for vehicles exceeding normal size and weight classification to operate on highways under IDOT jurisdiction. Defendant points to certain provisions of section 15 — 301. These sections authorize IDOT to establish the route to be taken by the permitted vehicle, and the sections further state that violation of the permit does not revoke the permit. (Ill. Rev. Stat. 1987, ch. 951/2, pars. 15 — 301(c), (f), (g).) Defendant concludes that violation of the permit subjects the permittee only to a minimal fine as set forth in section 15 — 301(j) of the Illinois Vehicle Code. Ill. Rev. Stat. 1987, ch. 951/2, par. 15 — 3010(j).

The State argues that acceptance of defendant’s theory would lead to an absurd result because a driver could obtain a permit to drive an otherwise overweight vehicle on a certain roadway and then drive anywhere, knowing that he could be fined only based on the weight in excess of the permitted weight. This, says the State, could also allow a driver to obtain a permit to drive a vehicle weighing a specific amount above that weight normally allowed. As long as the weight specified in the permit was not exceeded, the otherwise overweight vehicle could be driven on any road in this State without subjecting the driver to a fine.

We agree with the State that acceptance of defendant’s argument would be a disincentive for operators of overweight vehicles to obey regulations which govern the movement of such vehicles. (See People v. Ullrich (1990), 135 Ill. 2d 477, 486-87, 553 N.E.2d 356.) It would lead to an absurd result, and in interpreting statutes, courts should avoid such an outcome if possible. Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 363, 489 N.E.2d 1374.

Section 15 — 301(j) of the Illinois Vehicle Code provides that whenever a person operates or moves a vehicle in violation of a permit, he shall be guilty of a petty offense. (Ill. Rev. Stat. 1987, ch. 95½, par. 15—301(j).) The final provision of section 15 — 301 then states that “[penalties for violations of this Section shall be in addition to any penalties imposed for violation of other Sections of this Act.” (Ill. Rev. Stat. 1987, ch. 95½, par. 15—301.) Section 15—113.1 of the Illinois Vehicle Code allows for additional penalties when an overweight vehicle is operated “under a fraudulent permit or under a permit not specifically covering the move.” (Ill. Rev. Stat. 1987, ch. 95½, par. 15—113.1.) Sections 15—113.2 and 15—113.3 provide additional penalties when the overweight permitted vehicle exceeds the axle weight or gross weight authorized by the permit. (Ill. Rev. Stat. 1987, ch. 95½, pars. 15—113.2, 15— 113.3.) While these three last-mentioned sections deal with overweight vehicles purportedly operating pursuant to permit, none expressly deal with the situation where the permitted vehicle has deviated from the route specified in the permit.

We recognize that vehicles of excessive weight and size can damage a roadway and pose a danger to other motorists. (People v. Slonski (1976), 40 Ill. App. 3d 319, 322, 352 N.E.2d 292.) Based on this recognition and the various statutory provisions we have considered, we conclude that the driver of a vehicle, which exceeds normal weight requirements, can be prosecuted under section 15 — 111(g) of the Illinois Vehicle Code even when he had secured a permit for the overweight vehicle if he violates the specific and clear route restrictions set forth in the permit. Here, defendant did not comply with the route restrictions and the trial court properly convicted defendant under section 15 — 111(g).

Defendant next places great import in the weight discrepancies obtained when the police weighed the truck on a portable scale and when the truck was later weighed on the steel company scale. The Illinois Vehicle Code permits use of such portable scales. (Ill. Rev. Stat. 1987, ch. 95½, par. 15 — 112(a).) Moreover, the fine in this case was based on the weight provided by defendant’s witness, and defendant cannot claim prejudice. In reaching this conclusion we reject defendant’s claim that the trial court should have dismissed the charge based on the weight variations.

Defendant further claims that Officer Rapaz had no reason to believe that the truck was overweight and should not have stopped him. In reaching this belated argument defendant calls into question the officer’s limited experience in such matters. The officer testified that defendant’s truck was “too big” for the expressways. Photographs in the record show defendant’s vehicle bearing a gigantic steel girder. Even one of limited experience in such matters could easily have reason to believe that defendant’s vehicle was substantially overweight. See Slonski, 40 Ill. App. 3d at 321.

Defendant next argues that the police conduct in this case caused great hardship requiring dismissal of the charge. Defendant says that the stop occurred on Friday and the truck could not be weighed until the following Monday, thereby prohibiting use of the truck during the interim and causing a financial loss to defendant’s employer. The State points out correctly that defendant’s assertion was not timely presented in the trial court, and section 114—1 of the Code of Criminal Procedure of 1963 does not set forth the basis defendant now advances as grounds for dismissal. (Ill. Rev. Stat. 1987, ch. 38, par. 114—1.) The failure to promptly weigh the truck is not grounds for dismissal. (People v. Altobelli (1971), 1 Ill. App. 3d 524, 525, 275 N.E.2d 209.) In fact in this case we note that the truck was eventually taken to two weigh stations, but it was too wide to be weighed at either location.

Defendant finally asserts that the fine was improperly calculated based on the statute, although in his brief defendant does not urge any specific remedy. The State agrees with the claim that the trial court assessed a fine contrary to statute but reaches a conclusion clearly to defendant’s detriment. The State argues that we should remand this cause to the trial court to raise defendant’s fine from $16,000 to $19,320. The State notes that the trial court lowered the fine to account for some of the costs the trucking company incurred between November 27, 1990, and November 30, 1990, before the truck was weighed. The State observes that the Illinois Supreme Court has held that trial courts do not have the discretion to impose a fine in an amount less than that required by section 15—113(a) of the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 15—113(a); People v. Ullrich (1990), 135 Ill. 2d 477, 553 N.E.2d 356.) The State says that defendant was fined pursuant to section 15—113 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 15—113) for violations of section 15—111 (Ill. Rev. Stat. 1987, ch. 95½, par. 15—111). Section 15—113 provides that a truck which is overweight by 5,001 pounds or more requires the fine to be $75 for each 500 pounds overweight or fractions thereof. Calculating this amount, the State says that there are 234 increments of 500 in 117,000 (defendant was not fined for the extra 360 pounds), and multiplying $75 by 234 gives a total of $17,550. Next, the State argues that a 10% surcharge is added for a total of $19,305. Finally, the State seeks a fee of $15 to be added for a final total of $19,320. After "making this argument the State then requests that alternatively the judgment be affirmed. Given the fact that the State does not claim that it advanced this argument in the trial court (see People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561) and now proposes affirmance as a disposition, we will not consider the State’s argument.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and EGAN, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NON-PAYMENT OF GENERAL TAXES AND SPECIAL ASSESSMENTS FOR THE YEAR 1983 AND PRIOR YEARS (Marquette Blackwell et al., Petitioners-Appellants, v. Park Place Investment, Respondent-Appellee).
    First District (6th Division)
    No. 1—89—3161
    Opinion filed November 9, 1990.

      Anthony B. Bass & Associates, of Chicago (Anthony B. Bass, of counsel), for appellants.

      Robert J. Dempsey, of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Petitioners, Marquette, Sanford and Candie Blackwell (the Black-wells), appeal a trial judge’s order that denied their section 2—1401 petition to vacate the issuance of a tax deed. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) The deed was issued pursuant to section 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1985, ch. 120, par. 747) to Park Place Investments on land Marquette and Sanford Blackwell purchased in 1978. Candie Benita Blackwell was subsequently identified as a party with interest in the land. The Blackwells contend the trial court had no jurisdiction to order issuance of the tax deed because Park Place Investments failed to comply with section 271.1 of the Revenue Act (Ill. Rev. Stat. 1985, ch. 120, par. 752.1). Section 271.1 blocks issuance of tax deeds until reimbursement has been made to any city that has advanced public funds as authorized by its police and welfare power.

In 1978, Marquette and Sanford Blackwell purchased a three-story, 18-unit, brick apartment building at 1020-1026 E. 62nd Street and 6156-6168 S. Greenwood in Chicago. Their daughter, Candie Blackwell, also holds some interest in the property. Because the Blackwells failed to maintain the heat for the building, the City of Chicago filed three housing court actions to bring the premises into compliance with minimum health and safety standards. A temporary receiver was appointed as permitted under section 11—31—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11—31—2). The court approved “receiver’s certificates,” which permitted the city to advance money for the building’s upkeep. These advances, as authorized by the State statute, occurred on May 20, 1982, April 20, 1986, April 30, 1987, and April 11, 1988. The city paid money to heat the building so it would comply with minimum health and safety standards. The city thus acquired liens on the property for its advances in the total sum of $30,727.75.

During the time period when the money advances were made by the city, the Blackwells failed to pay their property taxes and the county offered the land at a sheriff’s sale. Park Place Investments purchased the property November 19, 1985, for delinquent taxes; a redemption date of November 19, 1987, was extended voluntarily by Park Place Investments to April 13, 1988. The Blackwells were given proper notice but did not exercise the right to redeem the property.

On April 25, 1988, Park Place Investments petitioned the circuit court to order issuance of a tax deed, giving notice to the Blackwells, the city and other lien holders. After the court found it had jurisdiction and that no one had redeemed the property, it ordered issuance of a tax deed. The court specifically found Park Place had complied with all notice requirements, paid all general taxes which had come due and complied with all provisions of the law entitling it to a tax deed. The order for the tax deed to be issued to Park Place Investments was entered on May 20, 1988, and the deed subsequently issued.

On November 3, 1988, the Blackwells filed a petition under section 2—1401 of the Illinois Code of Civil Procedure to set aside the tax deed. The Blackwells contend the court had no jurisdiction to order issuance of the tax deed on May 20, 1988, because Park Place Investments failed to meet its statutory obligation to pay the City of Chicago for liens the city held on the property. The Blackwells alleged that section 271.1 of the Revenue Act imposed that duty because it provides that “[n]o order for the issuance of a tax deed *** shall be entered affecting the title in any land in which a city *** shall have an interest under the police and welfare power by advancements made from public funds until the claimant shall make reimbursement to the city.” (Ill. Rev. Stat. 1985, ch. 120, par. 752.1.) The Blackwells’ petition also alleged fraud and conversion but those allegations were later withdrawn.

On December 2, 1988, seven months after the tax deed was issued, the City of Chicago also filed a section 2 — 1401 petition asking the trial court to vacate its May 20, 1988, order. The city argued that, pursuant to section 271.1 of the Revenue Act, no tax deed could be ordered until the city was reimbursed and the liens satisfied. In further support of its position, the city pointed to section 266 of the Revenue Act, which states, in part, that a tax deed cannot be issued until “petitioner has complied with all the provisions of law entitling him to a deed.” (Ill. Rev. Stat. 1987, ch. 120, par. 747.) The city’s petition noted that both the trial court and Park Place Investments recognized liens still were outstanding at the time the order was entered.

On August 24, 1989, the City of Chicago and Park Place Investments entered into a stipulation that provided Park Place Investments would pay the city $18,000 to release the liens. On October 26, 1989, the trial judge accepted the stipulation and the city’s petition was dismissed voluntarily and with prejudice in accordance with the stipulation. The court at the same time denied the Blackwells’ petition to vacate. The trial judge issued a memorandum order reviewing arguments presented by both the city and the Blackwells. The court stated that it had jurisdiction over the subject matter and had the inherent power to sign the order.

The trial court found “uncontested” the fact that the tax deed petitioner complied with all aspects of the Revenue Act with the exception of its failure to satisfy Chicago’s interest as established by various liens for outstanding receiver certificates. The trial judge commented that the city was notified but failed to appear at the May 20, 1988, hearing so the “court was satisfied that the City must no longer wish to pursue its interest.”

In addition, the trial court held that section 271.1 of the Revenue Act did not apply to this case because the receiver certificates did not constitute expenditures under Chicago’s police power but rather were an investment on the city’s part. The court held that .the city, like any other lien holder, lost its interest when the tax deed was issued. The court stated “[t]he City of Chicago could have *** enforced its interest, waived its interest or settled its interest,” through silence or an affirmative action.

The court noted that, even if section 271.1 did apply, it would still find the tax deed valid because the injured party, the City of Chicago, had withdrawn its challenge to issuance of the deed. The court held that the Blackwells, a third party, cannot enforce the city’s rights. The court noted that the Blackwells failed to provide heat for the building or satisfy the receiver’s liens. The court stated in its denial of the Blackwells’ petition that equity would not allow the “wrongdoer to take advantage of his own wrongdoing.”

The Blackwells appealed, and we affirm the trial court’s decision.

The Blackwells contend on appeal that the trial court did not have jurisdiction to order issuance of the tax deed and therefore its order was void. Under Illinois law, a judgment entered by a court is void if the court had no jurisdiction and can be attacked at any time. Oak Park National Bank v. Peoples Gas Light & Coke Co. (1964), 46 Ill. App. 2d 385, 395, 197 N.E.2d 73, 77.

Park Place Investments contend the court obtained jurisdiction over the property when the county collector applied to have the property sold for tax delinquency. (Cherin v. R. & C. Co. (1957), 11 Ill. 2d 447, 143 N.E.2d 235.) Jurisdiction, once acquired, continues through the entire proceeding, including the order to issue the deed. City of Bloomington v. John Allan Co. (1974), 18 Ill. App. 3d 569, 573-74, 310 N.E.2d 437, 441.

Petitioners argue that the court never had jurisdiction to issue the tax deed. When a court exercises statutory jurisdiction, that jurisdiction is limited to the language of the act. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895-96.) The Blackwells rely on Vulcan Materials v. Bee Construction Co. (1981), 101 Ill. App. 3d 30, 427 N.E.2d 797, rev’d on other grounds (1983), 96 Ill. 2d 159, 449 N.E.2d 812, for its finding that if a party files a petition pursuant to a special statute and misrepresents facts required to be alleged by the statute before the court can proceed to act, then that party commits fraud in the procurement of the court’s jurisdiction. Vulcan, 101 Ill. App. 3d at 40.

The Blackwells allege a fraud occurred on the court when Park Place Investments misrepresented that it had met the statutory requirements. But before the order was entered to issue the tax deed, the court and a Park Place Investment representative both stated on the record that the city’s liens were outstanding. In denying the Blackwells’ section 2 — 1401 petition, the trial court memorandum order stated this as a fact. Petitioners have not shown facts of any intent to deceive by the tax purchaser. The burden of proof is upon the petitioners, and the evidence must be clear and convincing and not merely suspicion. In re Application of County Collector (1978), 66 Ill. App. 3d 437, 447, 383 N.E.2d 1224, 1232; see also Exline v. Weldon (1974), 57 Ill. 2d 105, 110, 311 N.E.2d 102, 105.

We note that the Vulcan case on which petitioners rely presents different facts altogether. There the appellate court found several facts were unknown to the trial judge at the time the tax deed was issued. In addition, we note that Vulcan also found that fraud, if any, subsequent to the initial jurisdiction would render a tax court’s order voidable, but not void for lack of jurisdiction. Vulcan, 96 Ill. 2d at 165.

We rely on Cherin and find the trial court had jurisdiction to order issuance of a tax deed. The trial court correctly found that any challenge to the issuance of the deed would make its order voidable, but not void, ab initio.

Since the trial court had jurisdiction to issue a tax deed, we must now consider whether the court was in error when it found section 271.1 of the Revenue Act inapplicable to the Blackwells’ section 2— 1401 petition. The Revenue Act of 1939 was amended in 1969 to include section 271.1. The trial court here held that section 271.1 of the Revenue Act did not apply to this case because the receiver certificates did not constitute expenditures under Chicago’s police power but rather were an “investment” on the city’s part, since the city took assignment of the certificates from the receivers on the building. The court held that the city, like any other lien holder, lost its interest when the tax deed was issued.

A tax deed creates a new and independent title, free and clear from all previous titles and claims of every kind. (People v. Cottine (1959), 20 Ill. App. 2d 562, 572, 156 N.E.2d 774, 779.) But section 271.1 of the Revenue Act was enacted in 1969 to specifically protect the city’s interest and require reimbursement for expenditures by the city. (Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 93, 315 N.E.2d 218, 223.) Section 271.1 does not protect the claim of any other party who might allege an interest; specifically, it does not protect the Blackwells here.

In prosecutions for building code violations prohibited by municipal ordinances, the municipality is exercising its regulatory police power. (City of Chicago v. Provus (1969), 115 Ill. App. 2d 176, 185, 253 N.E.2d 182, 186.) Here, that is exactly what the City of Chicago was doing. Actions for building code violations were brought against the Blackwells and a receiver was appointed in an effort to maintain heat in the building as required under State law. (Ill. Rev. Stat. 1981, ch. 24, par. 11—31—2.) The trial judge found that the city’s purchase of receiver certificates for $1 each was a mere “investment” of city funds. To support the trial judge’s view would require a belief that the receiver intended to risk his or her own money. State law provides for the appointment of a receiver and permits the receiver to expend income and incur liens on the property on the city’s behalf. Contrary to the trial court finding, we believe the city’s actions were within its regulatory police power and therefore section 271.1 was applicable.

The primary purpose of the Revenue Act is to render tax deeds incontestable, but it is also the duty of the court to closely scrutinize the record to determine that there has been statutory compliance before issuing a tax deed. In re Application of County Collector for Judgment & Order of Sale Against Certain Lands & Lots (1972), 7 Ill. App. 3d 124, 127, 287 N.E.2d 81, affd In re Application of County Treasurer (1982), 92 Ill. 2d 400, 442 N.E.2d 216.

In this case, the trial court also held that, even if section 271.1 did apply, the city waived its rights under the section by its failure to appear once notified of the tax deed hearing. The court, in denying section 2 — 1401 relief to the Blackwells, noted that the city was served but failed to file its appearance and therefore “the court was satisfied that the city must no longer wish to pursue its interest.” The Blackwells contend the city cannot waive its interest through silence.

In a 1974 case from the fourth district, the appellate court was faced with a similar set of facts after the City of Bloomington sought to vacate a tax deed nearly three years after the deed was issued. (City of Bloomington, 18 Ill. App. 3d 569, 310 N.E.2d 437.) In that case, the city expended funds for repairs and held liens on the property. It was properly notified of the tax deed hearing but failed to appear. The appellate court found that laches weighed strongly against any recovery for the city. In addition, the court found pertinent the public policy considerations found in section 266 of the Revenue Act, which states that tax deeds when issued are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. That section also states that it shall be liberally construed so that tax deeds provided for shall convey merchantable title. Ill. Rev. Stat. 1973, ch. 120, par. 747.

The court there stated that the city’s efforts to vacate the order “clearly undermine those goals where the tax purchaser had relied on the security of the prior procedures which had been complied with, giving merchantable title.” (Bloomington, 18 Ill. App. 3d at 581.) A distinguishing factor between the Bloomington case and the case at issue here, however, is that no Bloomington liens appeared on the property’s title at the time the purchaser bid on the property. Instead, the liens were approved between the time the purchaser acquired the tax sale certificate and the issuance of the tax deed. In addition, the purchaser bid on the property and the redemption period expired before section 271.1 even went into effect. In the Blackwells’ case, the first city lien on the property attached in 1982, long before Park Place Investments entered the picture and long after section 271.1 was in effect.

A recent Macon County case considered the trial judge’s obligation under section 271.1 and held that the court must deny motion for issuance of the tax deed if certain municipal liens exist, unless the claimant for the tax deed reimburses the municipality. (In re Delinquent Taxes for the Year 1985 (1990), 202 Ill. App. 3d 665, 669.) That case involved interpretation of the last sentence of section 271.1, which permits a purchaser to back out of his purchase. But the court looked at section 271.1 as a whole and found that the plain language of the statute prohibits issuance of a tax deed until reimbursement is made.

Under the facts of this case, however, we need not determine whether the city’s silence constituted a waiver on its part. The city here had the power to waive its right and did so by voluntarily dismissing its section 2 — 1401 petition with prejudice.

Since the circuit court erred by not applying section 271.1 of the Revenue Act, we now must consider whether petitioners can set aside the tax deed based on that error. It is a general rule that an error harmful to others not appealing cannot be charged as error by a party not affected by the error. (In re Akers (1974), 17 Ill. App. 3d 624, 626, 307 N.E.2d 630, 631.) A person not affected by a court’s alleged errors cannot avail himself of those errors on appeal. People v. Confleur (1920), 294 Ill. 139, 128 N.E. 339.

Park Place Investments argues that section 271.1 was designed to protect the city, not petitioners, and any failure to comply with the section touches only upon the city’s rights. Park Place argues that once the redemption period expired April 13, 1988, the Blackwells had no economic or legal interest left to protect. Whether a decree is binding upon someone else is not a matter about which a third party can complain. Clark v. Zaleski (1911), 253 Ill. 63, 97 N.E. 272.

We agree and find the subsequent order for issuance of the tax deed on May 20 occurred after the Blackwells’ interest in the property was extinguished. The proper time for petitioners to act to block issuance of the tax deed was during the redemption period and certainly prior to or at the May 20, 1988, hearing where order for the issuance of a tax deed was entered. In the Macon County case, the court interpreted section 271.1 with section 271, a section that deals with the time within which a deed must be requested. “[W]e conclude the legislature intended requests for section 271.1 relief were to be made in the course of proceedings for the issuance of a tax deed.” (In re Delinquent Taxes for the Year 1985, 202 Ill. App. 3d at 669.) Objections that would have been appropriate in the original proceeding for judgment and sale for taxes are not proper here. First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 437, 202 N.E.2d 26, 29.

Petitioners did not appear or voice any objections at the time the order for issuance of a tax deed was entered though they were on notice. In In re Application of County Treasurer (1982), 92 Ill. 2d 400, 409, 442 N.E.2d 216, 220, the supreme court cited one of its earlier cases with approval. The court stated: “[A] party may not avail himself of the remedy provided by [section 2 — 1401] ‘unless he shows that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. [Citations.] Such a motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence.’ ” Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 467, 236 N.E.2d 719, 720, quoting Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.

We agree with the trial court that, regardless of the city’s rights, a third party cannot now seek to intervene and repair an injury it believes was done to another. The Blackwells have no standing to appeal the order of the trial court.

We find that the trial court properly held that it had jurisdiction to order issuance of a tax deed. Since the tax purchaser here had not reimbursed the city for the liens it held, the trial court was in error to order issuance of a tax deed as barred by the provisions of section 271.1. But since the city withdrew its objection to the court’s order when the tax purchaser settled the liens, the order, which at best was voidable, remained in full force and effect. We affirm the trial judge’s order that denied the Blackwells’ section 2 — 1401 petition. The trial court properly found the Blackwells had no standing to appeal the trial judge’s order.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE McNAMARA

text:
    ELIZABETH BRANDEIS, a Minor, by Arlene Brandeis, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. IRA SALAFSKY, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—3471
    Opinion filed November 9, 1990.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon, of counsel), for appellants.

      Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Leonard S. Kurfirst, and Mary Elisabeth Ruether, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs appeal from the trial court’s award of summary judgment in favor of defendant Dr. Ira Salafsky.

This medical malpractice action was filed on August 13, 1985, on behalf of Elizabeth Brandéis, a minor, by her mother, Arlene Brandéis. The minor’s parents, Alvin and Arlene, sued as individual plaintiffs. Plaintiffs alleged that Dr. Salafsky, along with other defendants, including North Suburban Pediatrics S.C., Leonard T. Carr, M.D., North Suburban Psychiatric Associates, Ltd., Jeffrey Teich, M.D., David Engels, M.D., Steven A. Lipschultz, M.D., and Evanston Hospital, negligently treated the 12-year-old minor from January 24, 1985, through March 17, 1985, for a condition involving persistent regurgitation.

Plaintiffs alleged that during the course of the hospitalization and treatment, defendants incorrectly concluded that Elizabeth’s condition was psychological and failed to consider a physiological basis for her condition. Plaintiffs further alleged that as a result of a behavioral modification treatment program prescribed by the defendants, the patient suffered an aggravation of a preexisting condition, internal and external injuries, and mental distress. The parents’ amended complaint alleged the loss of their daughter’s society and companionship.

On December 6, 1985, defendants Dr. Salafsky and North Suburban filed interrogatories requesting plaintiffs to identify any consulting experts they expected to call at trial. Plaintiffs’ original counsel was substituted on March 18, 1986. In April 1987 and May 1987, respectively, plaintiffs responded that no expert had been consulted or retained for trial.

Dr. Salafsky filed a motion for summary judgment on December 23, 1987. He attached the affidavit of Dr. William H. Dietz, a pediatrician specializing in nutrition, which stated that Dr. Salafsky’s treatment of the minor patient conformed with the applicable standard of care. On March 10, 1988, the first hearing date, the motion judge ordered plaintiffs to name their expert and respond to defendant’s summary judgment motion by May 15, 1988.

In the meantime, the case appeared on the pretrial calendar. On October 22, 1987, the pretrial judge continued the case to January 20, 1988. At the next pretrial date, April 25, 1988, the judge ordered that plaintiffs be allowed to depose Dr. Salafsky, which proceeded as scheduled on July 1, 1988. On July 26, 1988, the case was set for pretrial on December 2, 1988. On September 8, 1988, defendants propounded interrogatories to plaintiffs.

At the next summary judgment hearing before Judge Lassers on July 25, 1988, plaintiffs requested an additional 28 days to respond. Judge Lassers continued the motion to September 19, 1988, and gave them until September 2 to respond. On September 14, 1988, plaintiffs filed an emergency motion for more time to respond to the summary judgment motion. According to plaintiffs, they needed 90 additional days because they believed that Elizabeth had Ehlers-Danlos Syndrome, an uncommon organic disease that manifests itself as an eating disorder, and that she should have been tested for this disease. Plaintiffs’ counsel indicated that a trained medical person on his staff had been researching the disease for two months and had been in contact with various university professors across the nation, attempting to define their case and locate an expert. Judge Lassers granted plaintiffs 60 additional days to respond to the summary judgment motion and set the case for status on November 14,1988.

On November 14, plaintiffs again requested an extension to respond to the interrogatories and the summary judgment motion. Plaintiffs’ counsel stated that although his staff was in contact with two pediatricians from the Ehlers-Danlos Foundation, these doctors could not yet render an opinion. Counsel indicated that they would be able to formulate a theory of the case “within a relatively short period of time.” Judge Lassers granted a 90-day extension and placed the case on his February 1989 call.

Meanwhile, the pretrial judge ordered plaintiffs to identify their expert witness by July 24, 1989. Defendant moved to bar plaintiffs from naming an expert at trial on the ground that despite repeated extensions of time, plaintiffs failed to disclose their experts as ordered by the court on November 14, 1988. On March 29, 1989, Judge Lassers ordered plaintiffs to identify experts by July 24, 1989, paralleling the pretrial judge’s order, and specifically indicating that this continuance for the identification of experts was final. On July 24, 1989, the pretrial judge granted the motion of defendants Drs. Salafsky, Engels, Carr, Teich and Evanston Hospital to bar plaintiffs from naming Rule 220 (107 Ill. 2d R. 220) experts.

At the July 31 hearing on defendant’s summary judgment motion, plaintiffs’ attorney failed to appear. Defense counsel informed Judge Lassers that the pretrial judge had barred plaintiffs from naming experts. Defense counsel requested that the court grant summary judgment to Dr. Salafsky, clarifying that the motion was substantive and was supported by an affidavit from Dr. Dietz which alleged that defendant did not act negligently. Judge Lassers granted summary judgment in favor of Dr. Salafsky, but ordered defense counsel to file an additional motion to make the order final and appealable according to Supreme Court Rule 304(a)(107 Ill. 2d R. 304(a)).

Plaintiffs filed a motion to vacate the summary judgment order on August 14, 1989. On August 23, 1989, Judge Lassers heard Dr. Salafsky’s motion to make the summary judgment order final and appealable and plaintiffs’ motion to vacate the summary judgment order. Plaintiffs’ counsel indicated that although he had an expert, he did not yet have an opinion because he gave the records to his expert only a week before. Again, plaintiffs requested a continuance of their motion. Plaintiffs’ counsel suggested that Judge Lassers postpone his decision until the pretrial judge decided plaintiffs’ motion to vacate, which was set for September 19, 1989. Judge Lassers subsequently continued the motions before him to October 5, 1989, and then to November 15, 1989.

Meanwhile, on November 13, 1989, after continuing plaintiffs’ motion to vacate the order barring experts, the pretrial judge granted plaintiffs until November 28, 1989, to answer the Rule 220 interrogatories regarding experts. However, on November 15, 1989, the parties again appeared before Judge Lassers for continued hearings regarding the summary judgment. Plaintiffs’ counsel explained that the pretrial judge had granted plaintiffs 15 additional days to answer defendants Rule 220 interrogatories and requested that Judge Lassers further continue the matter until after that date. Again, counsel stated that although he now had an expert, he still had no opinion regarding Dr. Salafsky’s negligence. The court concluded that plaintiffs had received enough time and granted Dr. Salafsky’s request to make the summary judgment order final and appealable.

On appeal, plaintiffs contend that the grant of summary judgment was improper. Plaintiffs essentially make three arguments: First, plaintiffs contend that the order granting summary judgment was a discovery sanction and, as such, was an excessive penalty. Plaintiffs also argue that summary judgment in favor of Dr. Salafsky was improper because the delays in the discovery process were caused by harassment and intimidation by defense counsel. Finally, plaintiffs argue that the motion judge failed to consider Dr. Salafsky’s deposition prior to granting the order. We conclude, however, that summary judgment was neither granted as a discovery sanction against plaintiffs nor was it granted improperly.

Disposition of a medical malpractice case through summary judgment is appropriate when no genuine issue of material fact remains to be resolved. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48.) In considering whether summary judgment should be granted, the court must consider the pleadings, depositions, admissions and the affidavits, if any, to determine whether a genuine issue as to any material fact remains or whether the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In a medical malpractice case, after a defendant files a summary judgment motion and affidavit which establishes that he was not negligent, “it is incumbent on the plaintiff to substantiate his allegations through expert testimony.” (Diggs v. Suburban Medical Center (1989), 191 Ill. App. 3d 828, 834, 548 N.E.2d 373, 377-78.) As our supreme court stated in Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, 304-05:

“[T]he plaintiff, by the use of expert testimony, must establish the standards of care against which the defendant doctor’s conduct is measured. The plaintiff must then further prove by affirmative evidence that, judged in light of these standards, the doctor was unskillful or negligent and that his want of skill or care caused the injury to the plaintiff.”

We first address plaintiffs’ contentions that summary judgment was granted as a discovery sanction for plaintiffs’ failure to comply with the court’s numerous discovery orders and that they needed the depositions of all defendants before they could adequately respond to Dr. Salafsky’s summary judgment motion. We agree that granting summary judgment as a discovery sanction would be improper, especially given the more appropriate sanctions authorized by Rule 219(c). (107 Ill. 2d R. 219(c); Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 533 N.E.2d 22.) However, we conclude that the trial court properly granted summary judgment in this case because plaintiffs failed to respond and, thus, failed to raise any genuine issue of material fact as to Dr. Salafsky’s alleged negligence.

In Gordon v. Nasr (1989), 182 Ill. App. 3d 964, 538 N.E.2d 843, a medical malpractice case, Judge Kelly barred plaintiffs from naming expert witnesses SW years before defendants filed their summary judgment motion. After several continuances, Judge Berman granted the motion for summary judgment. Plaintiffs had not responded to the summary judgment motion and informed Judge Berman that they were not ready to respond. The record shows that before granting summary judgment, the judge clarified that the award was based on plaintiffs’ failure to respond and was not a discovery sanction. Judge Berman later denied plaintiffs’ motion to vacate and reconsider.

On appeal, plaintiffs argued that Judge Berman’s summary judgment order was improperly based on Judge Kelly’s order barring plaintiff’s experts, a discovery sanction, and, as such, was an abuse of discretion. This court rejected the argument concluding that summary judgment was not granted as a discovery sanction, but rather because plaintiffs failed to present a prima facie case of negligence. The court concluded that, in fact, the trial judge had “no option” (Gordon, 182 Ill. App. 3d at 967, 538 N.E.2d at 845), but “merely ruled on defendants’ motion for summary judgment on the basis of the evidence properly before the court.” (Gordon, 182 Ill. App. 3d at 968, 538 N.E.2d at 846.) Since the evidence failed to demonstrate a genuine issue of material fact, we affirmed the summary judgment.

Gordon is apposite to this case. Here, 23 months passed from the date the summary judgment motion was originally filed until it was made final and appealable. During this time, plaintiffs failed to respond to defendant’s motion and affidavit and, thus, failed to establish any genuine issue of material fact as to his alleged negligence. As in Gordon, the trial judge in the present case simply ruled on defendant’s motion for summary judgment based on the evidence before him.

Indeed, the record demonstrates that the court granted summary judgment as a substantive motion, not as a discovery sanction. At the July 31, 1989, hearing, at which summary judgment was granted, defense counsel informed the judge that the pretrial judge had barred plaintiffs from naming any expert at trial. The following dialogue ensued:

“THE COURT: Well, you don’t need any more orders from me.
MR. KURFIST [Defendant’s attorney]: Well, the order I would request would be granting our motion for summary judgment with the final language so I can go ahead and close out the case as far as my client is concerned.
THE COURT: Well, failure today óf the expert may bar them, but it’s not a substative [sic] motion, is it?
MR. KURFIST: Well, what happened, your Honor, initially it was a substative [sic] motion. It is a motion for summary judgment that was — .
THE COURT: On what basis?
MR. KURFIST: On the basis that we have experts who have signed affidavits attesting.
THE COURT: I see, there was no negligence? * * *
THE COURT: I tell you what I will do. I will grant your motion for summary judgment. You want 304(a) language, come in separately.”

The above dialogue shows that the judge clarified before granting summary judgment that it was a substantive motion, not a discovery sanction. Thus, although the pretrial judge's order barring plaintiffs experts was a discovery sanction, the summary judgment was not.

Plaintiffs also argue that they could not respond until they deposed all defendants, contending that given the interrelatedness of defendants’ conduct, plaintiffs needed these depositions to determine whether Dr. Salafsky met the requisite standard of care. In fact, during the pendency of the summary judgment motion, plaintiffs never indicated to the court that they could not respond without all the defendants’ depositions.

Moreover, in Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552, plaintiff named four treating doctors as expert witnesses, pursuant to Rule 220 interrogatories. The defendants filed summary judgment motions and attached experts from the four doctors’ depositions, in which each doctor testified that he had no opinion as to the defendants’ care of the patient and had not reviewed the medical records. In response to defendants’ summary judgment request, the plaintiff filed his attorney’s affidavit which stated that the attorney intended to call another doctor at trial, but did not indicate that the doctor had any opinion as to the defendants’ negligence. Following a hearing, the trial court granted the defendants’ motion for summary judgment. The appellate court reversed, finding that a genuine issue of material fact existed. Addison v. Whittenberg (1987), 159 Ill. App. 3d 585, 512 N.E.2d 76.

The supreme court, however, reversed this court, stating, “[T]he possibility of further disclosures of expert opinion *** will [not] enable a party to avoid a summary judgment to which the movant is otherwise entitled at the time the motion is heard.” (Addison, 124 Ill. 2d at 296, 529 N.E.2d at 556.) Rather, the court noted, the pleadings, depositions, admissions and affidavits on file are the basis for determining whether an issue of material fact, sufficient to prevent entry of summary judgment, exists.

The Addison analysis by the supreme court applies equally here. Whether plaintiffs could have named an expert witness within the 15 days granted by the pretrial judge is irrelevant. The motion judge properly granted summary judgment because plaintiffs still had not filed a response to Dr. Salafsky’s summary judgment motion that raised a genuine issue of fact. Further, when the court made the order final and appealable 3½ months later, plaintiffs did not indicate that they would be able to obtain an expert opinion to refute defendant’s motion and affidavit. See Hill v. Lutheran Hospital (1978), 58 Ill. App. 3d 1003, 374 N.E.2d 1147; Sanders v. Frost (1969), 112 Ill. App. 3d 234, 251 N.E.2d 105.

We also reject plaintiffs’ argument that the court should have reviewed Dr. Salafsky’s deposition before granting summary judgment. Although a court must consider all pleadings, depositions, admissions on file and affidavits before determining whether a genuine issue of material fact exists (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c)), it is the plaintiffs’ burden to respond to a motion for summary judgment. In this case, plaintiffs simply failed to meet their burden; they never responded. Indeed, Dr. Salafsky’s deposition was never made a part of the record. As such, the trial court could not consider the deposition, nor should it be considered by this court on appeal. See R.J.N. Corp. v. Connelly Food Products, Inc. (1988), 175 Ill. App. 3d 655, 529 N.E.2d 1184.

Finally, we consider plaintiffs’ argument, not raised in the trial court, that the court’s obligation to protect minors supports reversal of summary judgment. Although we recognize the court’s power and duty to protect minors’ interests (Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 506 N.E.2d 1279), the record indicates that the court afforded plaintiffs ample time to respond and locate an expert. Judge Lassers granted plaintiffs five continuances in order to allow plaintiffs to respond to Dr. Salafsky’s motion and to name experts. Further, the motion was granted almost four years after the complaint was filed, 19 months after summary judgment was sought, and did not become final and appealable until four months later.

For the foregoing reasons, the judgment of the circuit court of Cook County entering summary judgment in favor of Dr. Salafsky is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.