text:
    JESS LONG, Plaintiff-Appellant and Cross-Appellee, v. THE GREAT CENTRAL INSURANCE COMPANY, Defendant and Third-Party Plaintiff-Appellee (Bloomington Insurance Marketing Agency, Inc., Third-Party Defendant-Appellee and Cross-Appellant).
    Fourth District
    No. 4—89—0314
    Opinion filed October 31, 1989.

      Jerry N. Raymer, of Raymer Law Office, of Bloomington, for appellant.
    John P. Fleming, of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee Great Central Insurance Company.
    Jack C. Vieley, of Peoria, for appellee Bloomington Insurance Marketing Agency, Inc.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This litigation arose as a result of the failure of an insured to deliver documents relevant to a lawsuit against him to his insurer, contrary to the requirements of the applicable insurance policy. Instead, the insured purportedly delivered these documents to the insurance agency from which he purchased the policy in question. The principal issues on appeal are (1) whether the insurance agency was the agent of the insurer for purposes of accepting notices and documentation of lawsuits against its insureds, and (2) whether the insurer had actual notice of the lawsuit against its insured sufficient to impose upon it a duty to defend the suit.

The insurance policy in question is a dramshop policy issued by defendant Great Central Insurance Company (Great Central) to plaintiff Jess Long (Long). Long purchased the policy through Blooming-ton Insurance Marketing Agency, Inc. (BIMA). On March 2, 1984, Long was served with a complaint and summons in a dramshop action. The plaintiff in that lawsuit is Neva R Gipson, administrator of the estate of decedent Bobby D. Gipson. Long delivered the complaint and summons to BIMA, but BIMA apparently did not forward them to Great Central. No appearance was filed on behalf of Long, and on March 28, 1985, a default judgment in the amount of $23,645.65 was entered against him.

Only two counts of Long’s complaint — second-amended count III and count IV — are here at issue. Count III requests damages for breach of Great Central’s obligation to defend the lawsuit against Long on the basis that delivery of the suit papers to BIMA, Great Central’s purported agent, was the same as delivery of those documents to Great Central. Count IV requests damages for failure to defend the Gipson lawsuit on the basis Great Central possessed in its files information which should have disclosed to it the fact that this lawsuit had been filed. The circuit court entered summary judgment in favor of Great Central as to second-amended count III and dismissed count IV. Long appeals these orders.

In addition to Long’s claims against Great Central, this case also involves a third-party action by Great Central against BIMA. Great Central alleged any damages to Long are attributable to BIMA’s failure to transmit the summons and complaint in Gipson’s lawsuit against Long to Great Central. BIMA denied these allegations and specifically denied ever receiving the summons and complaint in that lawsuit. BIMA also filed an affirmative defense to Great Central’s third-party complaint and filed a cross-claim against Long. In its affirmative defense, BIMA asserted Long had a valid defense to Gipson’s lawsuit and Great Central should therefore have sought to vacate the default judgment entered against Long pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). BIMA alleged Great Central’s failure to do so barred any recovery by it, since this amounted to a failure on its part to mitigate its damages.

BIMA also filed a motion to recuse counsel for Long on the basis that Long’s counsel, Mike McElvain, ought to be called as a witness for Long.

The circuit court dismissed BIMA’s affirmative defense and cross-claim. BIMA argues on appeal that the dismissal of its affirmative defense and cross-claim, as well as the denial of its motion for recusal of Long’s counsel, should be reversed.

We first consider the circuit court’s entry of summary judgment as to second-amended count III of Long’s complaint. The dramshop policy which Great Central issued to Long provides in pertinent part:

“2. NOTICE OF CLAIM OR SUIT. Upon the happening of any occurrence likely to give rise to a claim under this policy, or upon the receipt by the insured of notice or knowledge of • any claim or of any suit or proceeding, notice in writing with full particulars shall be given to Great Central Insurance Company, immediately after same comes to the knowledge of the Insured or Insured’s representative and every letter, claim, writ, summons or process shall be forwarded to Great Central Insurance Company immediately upon receipt by the insured.”

In his argument, Long refers to policy language providing for delivery of notice of losses to Great Central or “any of its authorized agents,” but this language is contained in a property insurance policy issued to Long by Great Central. It is not included in the dramshop policy here at issue. In opposition to Great Central’s motion to strike from Long’s brief, the reference to the language of the property insurance policy, Long states the latter policy has the same number as the dramshop policy here at issue, and thus these two policies are in fact one policy. However, the full number of the property insurance policy is SMPGR 1431318, while the full number of the dramshop policy is LLGR 1431318. If anything, the similarity of these numbers simply indicates Great Central assigns the same numerals to all policies held by a particular insured. Without more, the similarity in the policy numbers does not signify the issuance to Long of a single policy providing both property coverage and dramshop liability coverage.

Moreover, the property insurance policy containing the language quoted by Long was not part of any affidavit, deposition, admission, exhibit, or pleading on file in the circuit court. It is contained in the record solely because it was filed in response to a discovery request. Therefore, there was no basis for the circuit court to consider the property insurance policy in ruling on Great Central’s motion for summary judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) For this reason, we allow Great Central’s motion to strike from Long’s brief the quotation from the property insurance policy which Great Central issued to Long.

During the relevant time period, there was in force an agency agreement between BIMA and Great Central. However, this agreement pertained only to such matters as sales of insurance policies, the generation of new insurance business, and the collection of premiums. The agency agreement contained no language concerning BIMA’s supplying to Great Central information or documents relating to claims against Great Central’s insureds.

At a deposition, Long stated that approximately one year to 18 months prior to being sued by Gipson, he gave documents pertaining to a different lawsuit to BIMA in the same manner as he did the documents pertaining to the Gipson lawsuit. Long stated that the former lawsuit was “taken care of,” and that he did not have to pay anything for the defense. Long also testified that prior to Gipson’s filing suit against him, he received a letter from Gipson’s attorney, which he took to BIMA. Also, Long made premium payments to BIMA, and he understood BIMA was Great Central’s agent. Furthermore, a Mr. Tinervin of BIMA described during deposition testimony a standard procedure that BIMA had for handling “suits *** received from policyholders.” Finally, Great Central’s claims manager stated that in 1983, over 50% of liability claims were reported to the company by agents, and that there is no difference in the company’s approach to liquor liability claims compared to other liability claims.

Long asserts that with respect to second-amended count III, the above matters create a genuine issue of fact whether BIMA was authorized to accept notices of claims and papers pertaining to lawsuits on behalf of Great Central. Long argues that at a minimum, Great Central’s allowing BIMA to accept claim information from its insureds, and specifically from Long involving earlier, unrelated lawsuits, created an apparent agency on the part of BIMA to accept such information on Great Central’s behalf.

Great Central argues there have been no words or acts on its part which would establish an agency relationship under which BIMA was authorized to accept notices of claims and lawsuit papers on Great Central’s behalf. Great Central notes that under Illinois law, the actions of purported agents are of no consequence with regard to the creation of an agency relationship unless they have their source in some word or act of the purported principal. (Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 222 N.E.2d 561.) Great Central asserts its passive acceptance from its agents of notices and papers pertaining to claims is insufficient to support a finding of an agency relationship between it and BIMA with regard to the delivery of these materials, since otherwise postmen or other delivery men could be deemed Great Central’s agents simply because Great Central accepted suit papers from them. Furthermore, Great Central notes the degree of control exercised over the purported agent by the purported principal is an important' factor in determining whether an agency relationship existed. Great Central states, in this case, there is no evidence it held or exercised control over BIMA with regard to the handling of materials pertaining to claims.

In his reply argument, Long asserts that Great Central created, by its conduct, an apparent agency in BIMA to receive information and documents concerning claims, which Great Central is now estopped to deny.

Summary judgment is properly entered when the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In ruling upon a motion for summary judgment, the evidence must be construed strongly against the movant and liberally in favor of the opponent. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 434 N.E.2d 50.

Generally speaking, proof of the formal appointment of an agent is not necessary in order to establish an agent-principal relationship. Circumstantial evidence of the conduct and statements of the parties is sufficient for this purpose. (American Home Assurance Co. v. City of Granite City (1978), 59 Ill. App. 3d 656, 375 N.E.2d 969, quoting 3 Am. Jur. 2d Agency §351 (1962).) In instances where an insurer repeatedly accepted notices of loss through entities other than agents which it had authorized to accept such notices, courts have held the insurer created in those entities an apparent agency to accept notices of loss, which the insurer was estopped to deny. Empire Fire & Marine Insurance Co. v. Faith Truck Lines, Inc. (1988), 178 Ill. App. 3d 356, 533 N.E.2d 441.

In the present case, there is evidence BIMA on a prior occasion accepted documents from Long which concerned a dramshop claim and that Great Central in turn accepted those documents from BIMA. Also, BIMA had established a standardized procedure for handling and submitting to Great Central information concerning losses sustained by, or lawsuits against, Great Central’s insureds, and a large percentage of liability claims, including dramshop claims, were received by Great Central from agents. On the basis of similar evidence, the court in Empire held the entity to which an insured delivered documents pertaining to a lawsuit was an apparent agent for the receipt of claim information, and the insurer was estopped to deny the agency relationship. Also, on the basis of the same type of evidence, the court in American Home Assurance Co. held an insurance broker was an insurer’s agent for the limited purpose of accepting notices of claims. We hold the evidence in this case presents a genuine issue of material fact as to whether BIMA was Great Central’s agent or apparent agent for the purpose of accepting proofs of loss and documents relating to lawsuits against Great Central’s insureds.

As Great Central points out, the insurance policies involved in Empire and American Home Assurance Co. provided, unlike the policy at issue in the case at bar, that notices of lawsuits had to be presented to the insurer or its agent. In those cases, however, notice of a pending lawsuit was not given to a duly authorized agent within the meaning of the policy language. Thus in those cases, as in the present case, the crucial question was whether the facts supported a conclusion that an entity, other than an agent designated in the insurance policy, was an agent of the insurer for the purpose of accepting notice or documentation of claims or lawsuits against its insureds.

Also, as Great Central observes, the principal is the source of an agent’s power, and the agent’s authority may only be established by tracing it to some word or act of the alleged principal. (E.g., Fredrich v. Wolf (1943), 383 Ill. 638, 50 N.E.2d 755.) However, a trier of fact could reasonably find that Great Central’s acceptance of documents and information pertaining to losses delivered to it by BIMA amounted to conduct sufficient to cloak BIMA with at least apparent authority to accept proofs of loss and documentation with respect to lawsuits on Great Central’s behalf. If Great Central did not wish to accept proofs of loss and lawsuit documentation through BIMA, it could easily have indicated this position by returning all such materials submitted to it in this manner and requesting that the materials be resubmitted in the proper manner.

The cases on which Great Central principally relies do not support a finding summary judgment was properly entered as to Long’s second-amended count III. In Ledbetter v. Crudup (1983), 114 Ill. App. 3d 401, 449 N.E.2d 265, there was simply no evidence, such as that present in the case at bar, that insureds regularly submitted materials pertaining to claims to the insurer through agents. The court distinguished American Home Assurance Co. on the basis of the statements of an employee of the insurer involved in that case with regard to the insurer’s course of dealings with an insurance broker. The court in American Home Assurance Co. found the broker was the insurer’s agent for the limited purpose of accepting service of notices of claims.

In Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 345 N.E.2d 172, the emphasis was on the distinction between an insurance broker (who acts on behalf of the purchasers of insurance policies) and an insurance agent (who acts on behalf of the insurance companies which he represents). The court concluded an individual to whom a summons in a lawsuit against an insured was delivered was a broker as opposed to an agent of the insurer and thus could not be deemed the insurer’s agent for purposes of receiving notices of lawsuits against its insureds. In reaching this conclusion, the court noted the person it held to bé a broker had no fixed and permanent relationship with the insurer. In the present case, by contrast, Great Central had a fixed agency relationship with BIMA.

Finally, Clapp v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 469, 484 N.E.2d 918, involved claims for damages based on the serving of spoiled food at a restaurant located in a shopping mall. The plaintiffs sought to impose liability for their injuries on the shopping mall based on their claim, among others, that the restaurant was the agent of the shopping mall. The court noted that although one aspect of agency is the right of the principal to control the agent’s actions, in a true agency relationship, the agent’s function is to carry out the principal’s affairs. The court held the plaintiffs could have no cause of action against the mall based on an agency relationship because there was nothing to suggest the restaurant’s relationship with the mall involved its tending to the mail’s affairs.

Clapp thus stands for the rule that a principal has the right to control its agent’s actions but does not necessarily have to exercise its right of control in order for there to be an agency relationship. The most significant indicia of an agency relationship is the agent tending to the principal’s affairs with the principal’s acquiescence. In the present case, there is sufficient evidence BIMA, with Great Central’s approval, tended to the handling of materials relating to claims against Great Central’s insureds to at least create a question of fact as to whether the relationship of apparent agency existed between BIMA and Great Central with regard to this matter.

In count IV of Long’s complaint, it is alleged: (1) Long delivered the complaint and summons in Gipson’s lawsuit against him to BIMA upon his receiving them on March 19, 1989, with a request “for an appropriate defense”; (2) no appearance was entered on his behalf; and (3) a default judgment was entered against him. In count IV, Long further alleged Great Central, through its claims representative, was aware of Gipson’s claim against Long, conducted an investigation of the claim, and communicated with the attorney for the Gipson estate. Long asserted, “Great Central Insurance Company was aware or possessed in its files information that should have disclosed to it, that suit had in fact been filed against its insured, Jess Long, giving rise to their duty of defense.” Count IV concludes with an allegation that Great Central’s failure to provide a defense was a proximate cause of the default judgment entered against Long, as well as of Long’s incurring various attorney fees.

Long argues the circuit court improperly dismissed count IV because it alleges Great Central had information sufficient to make it aware he had been sued. Long maintains in view of Great Central’s allegedly having actual notice of Gipson’s lawsuit against him, it was not necessary he forward the summons or complaint in that lawsuit to Great Central in order to create a duty on its part to defend the suit on his behalf.

Great Central argues count IV does not state a cause of action because it contains no allegation of a request for defense or a tender of defense of Gipson’s lawsuit against Long. Great Central contends all of the following events are required in order to trigger a duty to defend a lawsuit on the part of an insurer: (1) notice of the suit, (2) a tender or request for defense of the suit, and (3) a comparison of the suit allegations to the policy coverages in order to determine if the suit is potentially within the coverage of the policy. Great Central contends that prior to tender of the summons and complaint to the insurer and absent an express request for defense of a lawsuit, an insurer has no duty to act. Great Central suggests an insurer defending a lawsuit against one of its insureds without the insured having properly tendered defense of the suit would render the insurer an inter-meddler in the affairs of others.

Also, Great Central argues that a holding that mere knowledge that a lawsuit has been filed against one of its insureds requires an insurer to appear and defend the suit would obligate insurers to appear and defend any lawsuits filed against their insureds, “regardless of the cause of action, the theory, the damages sought or the policy provisions regarding the extent of coverage.” Great Central concludes since count IV does not allege a proper tender to it of the defense of Gipson’s lawsuit against Long, it does not state a cause of action.

A count of a complaint should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 466 N.E.2d 224.) In order to survive a motion to dismiss, a count must allege facts which, when considered together, establish and substantiate the cause of action which plaintiff seeks to state. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

“It is accepted in Illinois that an insured’s failure to forward to his insurer process received by him does not preclude recovery on the policy where the insurer has ‘actual notice’ of suit.” (Olivieri v. Coronet Insurance Co. (1987), 173 Ill. App. 3d 867, 872, 528 N.E.2d 986, 989, citing Johnson v. Samuels (1963), 40 Ill. App. 2d 417, 420, 189 N.E.2d 780, 781.) “Actual notice” means notice sufficient to permit the insurer to locate the suit and defend it. (Keepers v. Powell (1971), 131 Ill. App. 2d 423, 268 N.E.2d 488; Johnson, 40 Ill. App. 2d 417, 189 N.E.2d 780.) In the present case, Great Central’s communications with the attorney for the Gipson estate, if such actually occurred, along with its alleged investigation of Gipson’s claim against Long, would provide a basis for holding Great Central had sufficient information concerning Gipson’s lawsuit against Long to permit it to locate and defend the suit. In view of this alleged knowledge on the part of Great Central, Long’s failure to forward the summons and complaint to Great Central would be immaterial with respect to the existence of a right on his part to recover under the policy.

The cases cited by Great Central do not support the circuit court’s dismissal of count IV. Neither Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104, nor Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, involved questions as to whether an insurer received proper notice of a lawsuit against one of its insureds. In Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 194 N.E.2d 489, which Great Central cites in support of its contention insurers defending lawsuits absent a tender of defense renders them intermeddlers in the affairs of others, the statement relied upon by Great Central was made in the context of a discussion of whether an insurer has a duty to engage in negotiations for a settlement in excess of policy limits, where it is apparent the claims cannot be settled within the policy limits. The court held an insurer engaging in such settlement negotiations would amount to its furnishing services beyond its contractual obligations and becoming “ ‘an intermeddler in the contests of others.’ ” Oda, 44 Ill. App. 2d at 253, 194 N.E.2d at 499.

Hartford Accident & Indemnity Co. v. Gulf Insurance Co. (7th Cir. 1985), 776 F.2d 1380, did involve a question as to whether an insured, which was a large municipality, had properly tendered the defense of a lawsuit to the insurer which, the municipality contended, had a duty to defend the suit. The court concluded the municipality did not properly tender the defense of the suit. In reaching this conclusion, the court emphasized the party which asserted a duty to defend was a large municipality:

“Here the insured is a large and sophisticated governmental entity that is advised and assisted by its own counsel, who is a City official. While we need not decide what the appropriate procedure for tender, if any, should be for unschooled laymen (who may be excused from any sort of active tender), clearly tender by a sophisticated city requires something more than a letter from a rival insurance company 10 months after the process of litigation has begun.” (Hartford Accident & Indemnity, 776 F.2d at 1383.)

In the present case, there is nothing to indicate Long was other than an “unschooled layman” who was not obligated to make an active tender to Great Central of the defense of Gipson’s lawsuit against him.

Because this cause must be remanded for further proceedings, we must consider whether the circuit court properly dismissed BIMA’s first affirmative defense to Great Central’s third-party complaint against BIMA. The gravamen of this pleading is that Great Central should have mitigated its damages by requesting vacation of the default judgment against Long pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) on the basis of a purported meritorious defense which Long had to Gipson’s lawsuit.

We agree with BIMA the circuit court should not have dismissed its affirmative defense. It is well established a plaintiff has a duty to mitigate its losses. This duty applies to virtually every type of case in which a money judgment or award may be recovered. (Kelly v. Chicago Park District (1951), 409 Ill. 91, 98 N.E.2d 738; Pagel v. Yates (1984), 128 Ill. App. 3d 897, 471 N.E.2d 946.) BIMA’s allegations of Great Central’s failure to pursue a means available to it of vacating the default judgment against Long, if true, would be sufficient to establish Great Central did not mitigate its damages stemming from entry of the default judgment against Long.

BIMA’s notice of cross-appeal refers only to the circuit court’s April 5, 1988, order which dismissed its first affirmative defense to Great Central’s third-party action. It makes no reference to the denial of BIMA’s motion for recusal of Long’s counsel or to the dismissal of BIMA’s cross-claim against Long. In order to confer jurisdiction on a reviewing court, a notice of appeal must “specify the judgment or part thereof appealed from.” (107 Ill. 2d R. 303(c)(2).) Although notices of appeal are to be liberally construed (Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 442 N.E.2d 311), a notice of appeal from only a specified order generally does not confer jurisdiction on the reviewing court to review an order not specified in the notice of appeal unless the unspecified order “is a step in the procedural progression” to a later order which is specified in the notice of appeal. (Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 640, 536 N.E.2d 125, 130; Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 495 N.E.2d 1304.) Because BIMA’s notice of appeal does not specifically mention the denial of its motion for recusal of Long’s counsel or the dismissal of its cross-claim, and neither of those orders is a step in the progression to the dismissal of BIMA’s affirmative defense, this court lacks jurisdiction to consider those two orders.

The orders of the circuit court which granted summary judgment as to second-amended count III of Long’s complaint and dismissed count IV of Long’s complaint and BIMA’s first affirmative defense to Great Central’s third-party claim are reversed. This cause is remanded to the circuit court for further proceedings consistent with the views expressed herein. Great Central Insurance Company’s motion to strike portion of plaintiff’s brief allowed.

Reversed and remanded.

LUND and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT F. EMERY, Defendant-Appellant.
    Fourth District
    No. 4—89—0042
    Opinion filed October 26, 1989.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Robert V. Shuff, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial in Macon County, defendant, Robert E Emery, was convicted in absentia of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1402(b)) and unlawful possession of a controlled substance (less than one gram of a substance containing cocaine) with intent to deliver (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(c)). The court entered judgment on only the conviction of unlawful possession of a controlled substance with intent to deliver, and the defendant was sentenced in absentia to five years’ imprisonment. Defendant appeals, arguing that (1) the sentence imposed was excessive and (2) he is entitled to credit for time served of $5 a day against the $60 fine imposed upon him.

We disagree and affirm.

Defendant was convicted of a Class 2 felony. He was eligible to be sentenced to probation or, in the trial judge’s discretion, to a term of imprisonment of not less than three years nor more than seven years. Since the defendant at the time of his conviction was already on felony probation for forgery and had skipped out on his obligation to appear at trial, he was a rather unlikely candidate for further probation. Accordingly, defendant does not argue on appeal that he should have been sentenced to probation; instead, he argues that the court should have imposed the minimum sentence of three years.

The gist of defendant’s appeal is that his criminal behavior in this case was “completely non-violent,” and that even though he had had several misdemeanor and traffic convictions, “none of these offenses indicated that the defendant was a dangerous individual.” Based upon these characterizations, we are invited to second-guess the trial court and reduce the defendant’s sentence to three years’ imprisonment, which, defendant claims, “would adequately reflect the nature of this crime.” We emphatically decline.

The record shows that the trial judge carefully considered the nature and circumstances of the offense as well as the history, character, and condition of the offender. The sentence imposed was within statutory limits, and we find no abuse of discretion. See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Reid (1987), 160 Ill. App. 3d 491, 513 N.E.2d 517.

The trial court imposed a street value fine of $60 (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1). Citing section 110 — 14 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14) and People v. Joseph (1988), 176 Ill. App. 3d 636, 531 N.E.2d 432, defendant argues that he is entitled to a $5-a-day credit against this $60 fine for the 46 days he spent in jail on this bailable offense. Section 110 — 14 of the Code provides:

“Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon application of the defendant. The clerk of the court shall notify the defendant in writing of this provision of the Act at the time he is convicted. However, in no case shall the amount so allowed or credited exceed the amount of the fine.” Ill. Rev. Stat. 1987, ch. 38, par. 110 — 14.

Normally, a defendant’s failure to apply for credit will not preclude application of this statute upon appeal where, as here, the record fails to indicate that the defendant was informed by the circuit clerk of his entitlement. (People v. Bratcher (1986), 149 Ill. App. 3d 425, 500 N.E.2d 954.) However, this is not the normal case. Here the defendant was tried in absentia, and giving him the benefits of this statute would be contrary to legislative intent.

In 1977, the Illinois General Assembly amended section 110 — 14 in two significant ways: (1) the clerk of the court was required to notify the defendant in writing of the provisions of that section at the time he is convicted; and (2) the defendant is entitled to the benefits of that statutory provision only “upon application of the defendant.” (Pub. Act 80 — 666, eff. Oct. 1, 1977 (1977 Ill. Laws 2036) (amending Ill. Rev. Stat. 1975, ch. 38, par. 110 — 14).) The clear purpose of this amendment was to put the defendant on notice of the statutory benefits available to him so that he may request them. In the absence of his request, those benefits are waived.

While it is true that here no notice was sent to the defendant by the Macon County circuit clerk, it is equally true that this omission could not have prejudiced this defendant. After all, he failed to appear both for his trial and his sentencing hearing. Requiring the circuit clerk to send notice pursuant to section 110 — 14 under these circumstances would be to require a nugatory act. The loss to the defendant of benefits otherwise available under section 110 — 14 may be viewed as one additional cost of his wilful failure to appear for trial as directed. See Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1(a).

Judgment affirmed.

SPITZ and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    RUTH SEMMENS et al., Indiv. and as representatives of a class of teachers employed at Central Elementary School, Lincoln Elementary School and Washington Elementary School, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF PONTIAC COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 429, LIVINGSTON COUNTY, Defendant-Appellee.
    Fourth District
    No. 4—89—0284
    Opinion filed October 31, 1989.

      Ralph H. Loewenstein, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellants.

      Allen D. Schwartz and Timothy A. Bridge, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

At all times pertinent in this case, section 24 — 9 of the School Code has stated:

“Teachers duty free lunch period. Every teacher in any school house where 2 or more teachers are employed whose duties require attendance at the school for 4 or more clock hours in any school day shall be entitled to and be allowed a duty free lunch period equal to the regular local school lunch period but not less than 30 minutes in each school day.” Ill. Rev. Stat. 1985, ch. 122, par. 24-9.

On October 6, 1987, plaintiffs Ruth Semmens, Dee Raube, and Peg Melvin filed suit in the circuit court of Livingston County against defendant, Board of Education of Pontiac Community Consolidated School District No. 429, Livingston County, Illinois (District). Plaintiffs alleged they were teachers employed by the District and meeting the requirements of section 24 — 9. They maintained the District had not afforded them the lunch period required by section 24 — 9 and requested injunctive relief requiring compliance by the District and damages for the period they had served while section 24 — 9 was being violated.

Plaintiffs’ complaint also alleged they represented a class of teachers employed in several schools of the District whose statutory rights in regard to a lunch period were also being violated. Subsequently, the parties stipulated a class action was appropriate and the court certified a class. At the same time, Dee Raube and Peg Melvin were dismissed as plaintiffs and replaced by Marjorie Legner and Sharon Baremore. On October 7, 1988, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), the District filed a motion to dismiss upon the basis that under the terms of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.), the circuit court had no jurisdiction of the case as the matter should be decided by the Illinois Educational Labor Relations Board (IELRB). The motion was supported by various documents but neither the motion nor any of the documents were verified.

On October 17, 1988, plaintiffs filed an “Opposition to Motion to Dismiss.” That document noted that defendant’s motion was made pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure, which provides for dismissals of complaints for lack of subject-matter jurisdiction and requires that “[i]f the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a).) The document contended the complaint did not set forth facts on its face which showed an exclusive jurisdiction in IELRB. The document further asserted that even if all of the allegations of the District’s motion and supporting material were considered, exclusive jurisdiction in the IELRB would not be shown. A hearing on the motion to dismiss was heard and, on March 10, 1989, the circuit court entered an order dismissing the complaint. Plaintiffs have appealed. We reverse and remand to the circuit court.

For reasons we will explain, we hold exclusive jurisdiction of the dispute involved here was not shown on the face of the complaint to reside in IELRB. That reason alone would require us to reverse and remand. However, we also hold that even if the District’s unverified motion and supporting material were verified, the District would still have failed to make a showing that exclusive jurisdiction was vested in IELRB.

The parties do not dispute that plaintiffs’ complaint shows them to be “educational employees” (Ill. Rev. Stat. 1987, ch. 48, par. 1702(b)) and the District to be an “educational employer” (Ill. Rev. Stat. 1987, ch. 48, par. 1702(a)) all within the meaning of the Act. The motion to dismiss alleged Pontiac Education Association — 429 IE A/ NEA (Association) is plaintiff’s exclusive bargaining representative, and the District and the Association entered into a collective-bargaining agreement for the 1986-88 period which contains a procedure for filing grievances and taking a matter through arbitration. Section 11.1(a) of that article specifically defines a “grievance” as “any claim by the Association or an employee that there has been a violation, misinterpretation or misapplication of the terms of this Agreement.” (Emphasis added.) The agreement contains a section entitled “Lunch Period — Certified” but leaves that section entirely blank except for the heading. The contract further contains a “zipper clause” which states the terms and conditions of the agreement represented the full and complete understanding of the parties.

The District’s motion to dismiss made the further following allegation. The District and the Association executed a “side letter” in which the parties agreed to form a committee to discuss the current school lunch and recess program. The committee met but failed to reach an agreement. The District notified the Association of its intent to implement a policy of giving teachers a 30-minute, duty-free lunch period followed by a period of duties during the remainder of the school lunch-recess period. A letter attached to the motion indicated the District informed the Association it could “make a request for impact bargaining over the proposed change.” The documents supporting the District’s motion indicated that, previously, some teachers undertook supervisory responsibilities during the final 15 minutes of a lunch period but were not required to do so and others had the full 45 minutes free.

Another letter attached to the motion to dismiss showed the Association demanded an opportunity to bargain about the new policy. However, according to the District’s motion, the Association failed to negotiate further. The attorney for the Association wrote the District of his intent to take legal action to protect the teachers’ rights if they were not given a 45-minute, duty-free lunch period. A copy of that letter is also attached to the District’s motion.

When a matter can be decided by an administrative agency, courts are generally required to defer to the appropriate agency. (Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 493 N.E.2d 1045, cert. denied (1986), 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434.) The purpose of this rule is to enable matters which require specialized or technical expertise to be decided by a tribunal possessing those qualities. (Kellerman, 112 Ill. 2d at 444, 493 N.E.2d at 1052; Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.2d 737.) Here, papers filed in support of the District’s motion to dismiss indicate the District contends the pupils in the schools involved do not actually have a 45-minute lunch period but have a 30-minute lunch period followed by a 15-minute supervised recess. Thus, making the ultimate decision in the case could well require some knowledge of school practices.

The District points out that the stated purpose of the Act is to “regulate labor relations between educational employers and educational employees” and to resolve “disputes arising under collective bargaining agreements.” (Ill. Rev. Stat. 1985, ch. 48, par. 1701.) The District also relies on Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149, and Board of Education, Benton Consolidated School District No. 47 v. Benton Federation of Teachers, Local No. 1956, IFT/AFT (1988), 165 Ill. App. 3d 514, 518 N.E.2d 1257, where courts have implied broad powers in the IELRB which are not expressly stated in the Act. In Compton, the supreme court held that the stated purpose of the Act and the need to avoid confusion as to the appropriate tribunal for disputes over arbitration proceedings required a construction of the Act which deprived courts of their common law power to determine the arbitrability of disputes arising under collective-bargaining agreements between educational employers and employees. That court held the appropriate procedure for a party forced to arbitration on an issue it deemed inarbitrable was to await the award and then, if dissatisfied, defy the award giving rise to a charge of an unfair labor practice under section 15 of the Act.

We conclude the broad reach of the Act does not cover the instant dispute. The District, realizing the problems arising by the lack of verification in regard to its motion to dismiss, maintains the face of the complaint shows a dispute over which only IELRB has jurisdiction. The complaint merely alleges the existence of an educational employer and educational employees and the failure of the employer to comply with section 24 — 9 of the School Code. No mention is made of a collective-bargaining agreement requiring arbitration or providing for a grievance procedure.

The sole remedy given by the Act to employees, where no collective-bargaining agreement is shown to be in force, is to seek a determination under section 15 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1715) that the employer has commited an unfair labor practice. Thus, the issue we must first decide is whether any educational employee has an action for an unfair labor practice if his or her employer is violating a right concerning a working condition which arises from another statute.

Section 14(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)) lists the various kinds of conduct by an educational employer which constitute an unfair labor practice. Section 14(a)(1) of the Act makes “[interfering, restraining or coercing employees in the exercise of the rights guaranteed under this Act” by an employer an unfair labor practice. (Ill. Rev. Stat. 1987, ch. 48, par. 1714(a)(1).) Here, the only rights set forth on the face of the complaint are those that of the plaintiffs under section 24 — 9 of the School Code. Thus, that provision is not applicable. Other unfair labor practices described in section 14(a) of the Act concern formation of unions, elections, hiring or firing, refusing to bargain, or failure to comply with a binding arbitration award. None of those matters are involved here. Accordingly, we hold that the matters alleged on the face of the complaint did not justify the dismissal of the complaint. This reason, alone, is sufficient to require us to reverse the judgment of dismissal and remand to the circuit court.

We recognize that to decide this case merely upon the basis of the lack of verification is likely to result in this case returning to us with a similar judgment after the District supplies sufficient verification to the motion to dismiss and supporting documents. Although the record presents more difficult problems if we consider the unverified matter presented by the District, we deem it desirable for us to do so because we conclude that even if that information were properly before us, we would rule that the circuit court complaint should not have been dismissed.

In ruling that the plaintiffs had a remedy under the Act, the circuit court keyed upon the fact indicated in the unverified material, that the District had made an alteration in the lunch period for teachers which changed the amount of the free time from 45 minutes to 30 minutes. This allegedly made their free time less than that of the pupils and violated section 24 — 9 of the School Code. The court then considered section 10(b) of the Act, which prohibits parties to a collective-bargaining agreement providing or implementing a provision in a collective-bargaining agreement if “that provision would be in violation of *** any statute” of the State. (Ill. Rev. Stat. 1987, ch. 48, par. 1710(b).) The circuit court’s order then noted that the IELRB has held that action of an employer implementing a contract provision which conflicts with or diminishes employee rights under a statute is a violation of a right under section 10(b) of the Act and, therefore, interferes with rights guaranteed under the Act resulting in an unfair labor practice pursuant to section 14(a)(1) of the Act. (Chicago Board of Education, 3 Pub. Employee Rep. (Ill.) par. 1085, case No. 86— CA — 0069 (Illinois Educational Labor Relations Board, June 24, 1987).) The circuit court then concluded its order by stating:

“If it is an unfair labor practice for an employer to violate a state law in implementing a term of a collective bargaining agreement, it is also an unfair labor practice for an employer to unilaterally implement a working condition not covered by the collective bargaining agreement when that condition is a violation of state law.”

Assuming arguendo the propriety of Chicago Board of Education, we cannot agree to the analogy drawn by the trial court. Section 14(a)(1) of the Act concerns violations of the Act. Section 10(b) of the Act concerns implementation of collective-bargaining agreements. A violation of section 10(b) occurs when a collective-bargaining agreement is implemented in violation of other statutes. The theory that such a violation gives rise to an unfair labor practice under section 14(a)(1) of the Act is based on the theory that the section 10(b) violation is a violation of a right created under the Act, thus triggering application of section 14(a)(1). The implementation of a working condition not covered by a collective-bargaining agreement does not bring section 10(b) of the Act into play and thus does not create a “right guaranteed under [the] Act” within the meaning of section 14(a)(1) of the Act.

We have an additional concern about a characterization of plaintiffs’ claim as one for an implementation of a working condition or a modification of a prior working condition even if the evidence would prove such an implementation or such a modification took place, and either constituted an unfair labor practice under section 14(a)(1). Plaintiff brought an action for a statutory violation which would be easier to prove than would either of the former types of supposed misconduct upon the part of the District. Moreover, section 15 of the Act states that the IELRB may not issue any order on a charge which was filed more than six months after the occurrence of the unfair labor practice. (Ill. Rev. Stat. 1987, ch. 48, par. 1715.) Here, the statutory violation would appear to be a continuing one and, if any limitation period is applicable as to part of the relief requested, that period would appear to be the five-year period of section 13 — 205 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 13— 205.) The action which plaintiffs sought to bring differs materially from the action which the District maintains can only be brought as an unfair labor practice.

Even after considering all of the unverified material, no indication is given that plaintiffs should have grieved the issue upon which they complain or requested the Association to submit it to arbitration, because the question of a free lunch period was not covered by the collective-bargaining agreement. No question of improper refusal to bargain was possible, because no collective-bargaining agreement could provide for a lunch period violating section 24 — 9 of the School Code.

For the reasons stated we hold that the circuit court had jurisdiction to proceed with plaintiffs’ complaint even if the unverified information presented by the District were properly before the court. We reverse the judgment of dismissal and remand to the circuit court of Livingston County for further proceedings.

Reversed and remanded.

KNECHT and SPITZ, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. ROBERT DREHER et al., Defendants-Appellees.
    Third District
    No. 3—88—0662
    Opinion filed September 5, 1989.
    Rehearing denied December 4, 1989.
    Bozeman, Neighbour, Patton & Noe, of Moline (James R. Patton, of counsel), for appellant.
    Joseph F. Ryan, of East Moline, for appellees Henry Laleman and Dorothy Laleman.

      G. Trent Marquis, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellee Craig W. Jones.
    Sidney S. Deutsch, of Deutsch & Deutsch, of Rock Island, for appellee Robert Dreher.
    Craig L. Kavensky, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellee Mary Jo Ryan.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The plaintiff, State Farm Mutual Automobile Insurance Company (hereinafter State Farm), appeals the judgment entered by the trial court following a bench trial.

On February 21, 1987, defendant Robert Dreher (Robert) was involved in a motor vehicle accident while driving his mother’s automobile. Robert was insured under a State Farm auto policy for the operation of his 1985 Chevrolet. However, the automobile that Robert was operating at the time of the accident belonged to Betty Dreher and was not insured under the same automobile insurance policy. Robert’s auto policy contained the following exclusion of coverage:

“Section I — Liability Coverage A of the policy states: The liability coverage extends to the use, by AN INSURED, of a NEWLY ACQUIRED CAR, a TEMPORARY SUBSTITUTE CAR, or a NON-OWNED CAR.
Further qualifying the term non-owned car, (DEFINED WORDS WHICH ARE USED IN SEVERAL PARTS OF THE POLICY), NON-OWNED car means a CAR NOT:
a. Owned by,
b. Registered in the name of, or
c. Furnished or available for the regular or frequent use of:
YOU, YOUR SPOUSE, or any RELATIVES.”

State Farm filed a- declaratory judgment action alleging that Robert was uninsured for the use of his mother’s vehicle under the exclusionary clause contained in his policy.

In September 1986, Denise, Robert’s wife, became employed, and in November, Robert’s hours increased to 45 hours per week due to a promotion. Betty (Robert’s mother) would baby-sit every day while Robert and Denise worked. Betty was the only baby-sitter used, and she normally sat for an entire work day at a time. After his promotion, Robert frequently used Betty’s or her boyfriend’s car, depending upon which vehicle Betty brought over to the defendants’ home when she baby-sat. Denise would normally use the family car for the majority of the time. Robert would also use his mother’s car for personal errands, but only after obtaining her permission. When Betty vacationed, she permitted Robert to use her car since she would not need it during her absence. There were other occasions when Robert would use his mother’s car, e.g., when he performed mechanical work on the car. During this time, Robert and Denise attempted to save money so that they could purchase a second car, but in the meantime, Betty’s car served as their second car.

On the date of the accident in question, Robert took his mother’s car to work because his car was unavailable. He stated that he may have been driving his mother’s car everyday for about four to five months preceding the accident.

In a recorded statement made shortly after the accident, he admitted that he did not need permission to use his mother’s car and did not regularly ask Betty’s permission each time he used her car. At trial, Robert testified that permission to use his mother’s car was more of an implied understanding and it was routine for him to use her car. Robert stated that he would use Betty’s car or her boyfriend’s car two to three times a week. Betty Dreher did not restrict her son’s use of her car, nor did she indicate when her permission for Robert to use her car would terminate.

After the conclusion of the trial, the trial court issued its decision and found that Betty Dreher’s car was not available or furnished for the regular or frequent use of Robert Dreher, and therefore, State Farm was liable to insure damages arising out of Robert’s accident. State Farm filed its notice of appeal and this appeal follows.

State Farm contends that the trial court’s judgment was erroneous due to the uncontested evidence that Betty Dreher’s car was available for Robert’s regular and frequent use and that he so used it. We agree with State Farm and reverse the trial court’s judgment.

All parties agree that if Betty’s vehicle was available for the regular and frequent use of Robert Dreher, State Farm would not be liable to cover Robert’s accident. It is apparent that Denise primarily used their family auto, which was directly covered by State Farm’s policy. Robert used his mother’s vehicle for a four- to five-month period while she baby-sat Robert and Denise’s child. Robert normally would use Betty’s vehicle two to three times a week, sometimes daily, without asking permission, and he enjoyed 24-hour access to her vehicle when Betty was vacationing.

Ordinarily, the findings of fact of the trial judge are given great deference and will not be set aside on appeal unless they are against the manifest weight of the evidence. (Wanless v. Rothballer (1985), 136 Ill. App. 3d 321, 483 N.E.2d 899.) In cases involving declaratory judgment actions, the trial court’s exercise of discretion is not given the same deference as in other proceedings, and the appellate court is given a greater latitude in reviewing a declaratory judgment issued by a trial court. Chicago & Eastern Illinois R.R. Co. v. Reserve Insurance Co. (1981), 99 Ill. App. 3d 433, 425 N.E.2d 429.

The grant or denial of declaratory relief is discretionary, and absent an abuse of that discretion, the trial court’s determination will not be disturbed on appeal. (Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 518 N.E.2d 270.) The evidence in this matter is basically undisputed. The evidence seems clear on its face that Betty Dreher’s vehicle was available for the regular and frequent use of Robert, whenever he wished to use it.

The insured has the burden of proving coverage by a preponderance of the evidence when the insurance company asserts the “regular use” exclusion. Illinois courts have repeatedly denied insurance coverage for accidents involving a nonowned vehicle which was “available for the regular and frequent use” of the insured. (Economy Fire & Casualty Co. v. Gorman (1980), 84 Ill. App. 3d 1127, 406 N.E.2d 169.) The Gorman case is analogous to the present case. The trial court held that the insurance company should cover the insured because the vehicle involved in the accident was not available for the regular or frequent use of the insured. The Fourth District Appellate Court reversed the trial court as a matter of law and held there was no coverage. In Gorman, the period of usage of the nonowned vehicle was two months and the frequency was daily. In this case, the period was four or five months and the frequency was nearly daily, fluctuating slightly week by week. In Gorman, the driver’s use of the non-owned vehicle was restricted to the driver’s employment, and Betty Dreher did not impose any restrictions on Robert’s use of her automobile. Therefore, State Farm is entitled as a matter of law to prevail and is not liable to cover. Robert Dreher in this accident. Other Illinois courts have consistently held this position, e.g., State Farm Mutual Automobile Insurance Co. v. Bundy (1988), 165 Ill. App. 3d 260, 519 N.E.2d 109, Continental National American Group v. Vaicunas (1975), 26 Ill. App. 3d 835, 325 N.E.2d 747, and State Farm Mutual Automobile Insurance Co. v. Berke (1970), 123 Ill. App. 3d 455, 258 N.E.2d 838.

State Farm also contends that the trial court should have considered Robert Dreher’s frequent use of Betty’s boyfriend’s car when deciding whether State Farm is liable to cover Robert for his accident. The exclusion clause is not limited to the availability of a specific automobile for regular and frequent use. The evidence presented revealed that Robert frequently used his mother’s boyfriend’s car when his mother brought that over to baby-sit. No restrictions were placed on Robert’s use of said vehicle, and it only depended on which vehicle Betty Dreher brought as to which one Robert drove. See Rodenkirk v. State Farm Mutual Automobile Insurance Co. (1945), 325 Ill. App. 421, 60 N.E.2d 269.

Therefore, the uncontested facts indicate Betty Dreher’s car was available to Robert for “regular and frequent use” and he was permitted to operate her vehicle without restriction or asking for permission.

Based on the foregoing, the circuit court of Rock Island County is reversed.

Reversed.

HEIPLE and BARRY, JJ., concur.


text:
    THOMAS A. HICKEY, Trustee, Plaintiff-Appellee, v. UNION NATIONAL BANK & TRUST COMPANY OF JOLIET, as Trustee, et al., Defendants (Robert J. Pruim et al., Appellants).—THOMAS A. HICKEY, Trustee, Plaintiff-Appellant, v. UNION NATIONAL BANK & TRUST COMPANY OF JOLIET, as Trustee, et al., Defendants (Robert J. Pruim et al., Appellees).
    Third District
    Nos. 3—88—0603, 3—88—0635 cons.
    Opinion filed September 5, 1989.
    Rehearing denied December 4, 1989.

      W. Robert Blair, of Chicago, and Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (George E Mahoney III, of counsel), for Robert J. Pruim, Norine R. Pruim, Edward H. Pruim, and Bernetta Pruim.
    John F. O’Meara and Cyriac D. Kappil, both of Chicago, for Thomas A. Hickey.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

In February 1983, the defendant corporation, Will-Cook Waste, Inc. (hereinafter Will-Cook) executed a contract to purchase certain real estate in Joliet, Illinois. The real estate comprised just under five acres, and was valued at $330,000. In April of that same year a land trust was created naming Union National Bank of Joliet (hereinafter Union National Bank) as trustee and designating Will-Cook as sole beneficiary.

In April of 1984, Will-Cook received a $250,000 loan from Union National Bank. To secure the loan, Union National Bank gave its trust deed to Thomas Hickey, the bank’s president. Mr. Henry Bechstein and Mr. Robert Pruim, Will-Cook’s president and secretary, respectively, executed an installment note in the amount of $250,000, payable to the bank. Several individuals, including Robert Pruim, Norine Pruim, Edward Pruim, Bernetta Pruim, Henry Bechstein, Barbara Bechstein, Geraldine Foschi and Edward Foschi, guaranteed repayment of the note by signing a guarantee.

Will-Cook defaulted on repayment. In July 1985, Mr. Hickey filed a one-count complaint for foreclosure of the trust deed. The summons for Will-Cook was served at the home of Mr. Bechstein and received by his daughter, Kelly. Each of the guarantors received personal or substitute service.

A foreclosure judgment was issued by the trial court on December 19, 1985. Mr. Anthony Christafaro was assigned the judgment on December 27, 1985. The consideration for the assignment was $275,000.

A foreclosure sale was held the subsequent February, and Mr. Hickey purchased the realty for $199,007.40, after fees and expenses were accounted for.

The trial court approved the sale on March 18, 1986. The trial court order recited the fact that Mr. Christafaro was entitled to a deficiency judgment in the amount of $129,940.50. Pursuant to this order, Mr. Christafaro began citation proceedings against Mr. Robert Pruim, a guarantor on the note.

Thereafter, the filing of various motions by each party ensued. The trial court disposed of each motion, and certain orders thereon are now under review.

The principal holdings of the trial court can be summarized as follows: (1) No deficiency judgment was entered against the guarantors of the note secured by the trust deed being foreclosed. The lack of a separate second count in the complaint against the guarantors thereby precluded the citation proceedings. (2) The trial court lacked jurisdiction over Will-Cook, the beneficiary of the land trust, due to invalid return of service by the sheriff. (3) The judgment of foreclosure was proper in spite of the failure to serve Will-Cook. Will-Cook, as trust beneficiary, was deemed not to be a necessary party to the action.

The Pruims appeal, contending that the foreclosure judgment is void because Will-Cook, in its status as beneficiary, was not served. Mr. Hickey filed a separate appeal, which we shall refer to as a cross-appeal, contending that the March 18, 1986, order should be amended to expressly name the Pruims, as guarantors, liable for a deficiency judgment. Further, he contends that Will-Cook was properly served when service was made upon Mr. Bechstein’s daughter.

I

Initially we consider the Pruims’ contention that the trial court erred in holding that the defendant, Will-Cook, was not a necessary party to the foreclosure proceeding. Mr. Pruim asserts that vacature of the judgment of foreclosure is warranted due to the fact that Will-Cook was not served.

It is the general rule that all persons interested in the subject matter of a suit should be made parties thereto. There is an exception in the case of the foreclosure of a mortgage or trust deed. The rule enunciated in precedential case law does not confer joinder to land trust beneficiaries.

The beneficiary of a land trust is not a necessary party in a foreclosure proceeding, unless the trustee cannot fully protect his interests. The beneficiary may be a proper party if his rights and liabilities respecting management and control, use, or possession of the property are involved. Marathon Finance Co. v. Pioneer Bank & Trust Co. (1988), 168 Ill. App. 3d 148, 522 N.E. 2d 248.

The Pruims enumerate several specific points of conduct on the part of Union National Bank, which allegedly indicate that the bank, in its capacity as trustee, did not protect the rights of Will-Cook, as beneficiary. We note that, in litigation involving land trusts, the courts have determined the propriety of a proceeding by a beneficiary by examining the rights and duties established by the trust agreement. After reviewing the evidence of record in light of the trust agreement, we believe it would be in contravention of legal precedent to allow Will-Cook, after having chosen the advantage of the land trust form of ownership, to intervene in the foreclosure proceeding as if it held equitable and legal title.

Summarily, we believe that the foreclosure proceeding was properly instituted, and there exist no grounds upon which to vacate it.

II

We now turn to the issues raised by Mr. Hickey in his cross-appeal, the first of which requires an examination of the propriety of the trial court’s order declining to make an amendment to the order of March 18, 1986, to expressly name the Pruims liable for a deficiency judgment.

The trial court’s order of March 18, 1986, approving the sheriff’s sale, stated, “Anthony J. Christafaro is entitled to a deficiency judgment in the amount of $129,940.50, and the issuance of a deed.” The order failed to name the individuals against whom the alleged deficiency judgment was entered.

The court subsequently ruled that the subject order did not constitute a judgment against the guarantors, because their names did not appear in the judgment. Mr. Hickey’s motion to amend the subject order nunc pro tunc to expressly name the defendants was subsequently denied when the trial court determined that the single-count foreclosure complaint was not sufficient to warrant subject matter jurisdiction over the guarantors of the note.

The subject complaint filed by Mr. Hickey was a single-count statutory foreclosure complaint. It did not contain a separate count seeking a judgment on the guarantee.

Prior to the merger of actions based in equity with those in law, there existed a marked distinction between the power of a court of equity to decree mortgage foreclosures and its power to enter a personal deficiency judgment.

Today, there remains a consistent rule that in a foreclosure suit a deficiency judgment cannot be entered against the guarantor of a note secured by a trust deed, without separately pleading for such relief. (Mortgage Syndicate, Inc. v. Do & Go Equipment, Inc. (1972), 7 Ill. App. 3d 106, 286 N.E.2d 520.) Of great import is the fact that a mortgage and accompanying promissory note constitute separate contracts. A legal remedy upon each instrument cannot be pursued in a single-count foreclosure action.

Furthermore, a nunc pro tunc order is an entry made on a judgment previously rendered in order to make the record “speak now for what was actually done then.” (In re Marriage of Hirsch (1985), 135 Ill. App. 3d 945, 955, 482 N.E. 2d 625.) A nunc pro tunc order, however, may not be used to supply omitted judicial action, to correct judicial errors or to cure jurisdictional defects. (Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E. 2d 1182.) The trial court properly declined to alter its earlier order; relief in the form of an order nunc pro tunc would have been a legally impermissible remedy.

Mr. Hickey next contends that the trial court erred in its determination that service of process was defective against Will-Cook. Mr. Hickey asserts that statutory directives were complied with when service was made upon an agent of Will-Cook. The service in the instant case was made at the home of Will-Cook’s president, Henry Bechstein. The summons was received by his daughter, Kelly. Mr. Hickey offered to the trial court an affidavit signed by Mr. Bechstein which stated that his daughter was authorized to accept service of process.

The affidavit does not state that Kelly Bechstein was an agent, or employee, of Will-Cook. Under the applicable provision of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 204), which governs the procedure for service on private corporations, the subject affidavit lacks sufficient legal evidence of an agency relationship between Kelly and Will-Cook. The burden is upon the plaintiff to prove the existence of an agency relationship. The proffered affidavit is conclusory in nature, and fails to meet the requisite burden of proof.

For all of the foregoing reasons, the orders of the circuit court of Will County, entered in this cause on January 5, 1988, March 4, 1988, April 14, 1988 and August 16, 1988, the same being the subject matter of this appeal, are hereby expressly affirmed.

Affirmed.

SCOTT and STOUDER, JJ„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM ALEXANDER, Defendant-Appellant.
    Third District
    No. 3—88—0504
    Opinion filed October 13, 1989.
    Rehearing denied December 6, 1989.

      William Alexander, of East Moline, appellant pro se.

    John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of Ottawa, for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The trial court found the defendant, William Alexander, guilty of burglary, aggravated battery, and criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1(a), 12 — 4(b)(8), 21 — 1(a)). The court then sentenced him to concurrent terms of 12, 5, and 6 years, respectively. The pro se defendant appeals.

According to the trial record, Carol Able testified that shortly after midnight on March 6, 1987, she was driving south on old Route 45 from Kankakee to Ashkum. When she was between Kankakee and Chebanse, she noticed a car driven by the defendant following her. He followed her through Chebanse and out of town. Outside of Chebanse, he repeatedly pulled up to her rear bumper and backed off. He also pulled even with her and fell back several times. During this, he flashed his high-beam headlights on and off. Finally, he pulled even ■with Abie’s car and turned back into her lane, striking the rear of her car and causing her to lose control. Her car spun completely around and went into a ditch on the opposite side of the road. It came to rest on top of a guardrail, with its fuel tank impaled on a post.

Able testified that she smelled, gasoline fumes, so she turned off her engine. She had difficulty getting out of the car, but had managed to get one leg out when she saw the defendant walking toward her carrying a car jack. He ordered her to exit the car and said that he was going to kill her. She asked him who he was, and he told her not to look at him. He tried pulling her from the car, but she resisted.

Able further testified that a car then approached from the north. The defendant went to the rear of Abie’s car and crouched down. Able flashed her high-beam headlights at the approaching car, but it did not stop. The defendant then returned to the front of the car and told Able to open the door because he was going to kill her. After he assumed a stance as if he were going to swing his car jack at the window, she moved to the passenger side of the car to shield herself. The defendant then shattered the window. He again tried to pull her out of the car, but was unsuccessful.

Able stated that the defendant then went to the other side of the car. After she voluntarily handed him her purse, he looked at her for a few seconds, then threw it into the ditch. He told her to exit the car through the driver’s side. As she did so, she heard the rear window shatter and, at the same time, saw a car approaching from the south. The defendant went back to his car. Able ran towards the other car and quickly got in it.

Diane Ducat testified that she was heading south on old Route 45 when she passed the scene of what appeared to be an accident. She drove about a half mile up the road and then turned around. As she approached the scene, she slowed down and pulled up to the defendant’s car. She saw the defendant standing next to his car holding a tire jack over his head. She began slowly pulling away when she noticed Carol Able running towards her. She allowed her to get in her car.

The defendant argues on appeal that the information was insufficient. He contends that the burglary count should have contained the elements of the intended offense of aggravated battery as well as a statutory reference to that offense. He further asserts that the failure to do so hampered him in the preparation of his defense. He states that since the aggravated battery count alleged that he had committed battery on a public way or on public property (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(8)), he assumed that the intended felony in the burglary count must also have been the same form of aggravated battery. He claims that if he had known that he could be convicted of burglary based on another form of intended aggravated battery, he might have chosen to testify.

As the information is being attacked for the first time on appeal, the proper standard of review is whether it apprised the defendant with sufficient specificity to prepare his defense and whether a resulting conviction would serve as a bar to future prosecutions based on the same conduct. (People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437.) Since the primary concern in a burglary indictment is with the unlawful entry, the intended felony does not have to be described with the same specificity that would be required in an indictment for the felony itself. People v. Peck (1963), 29 Ill. 2d 480, 194 N.E.2d 245.

The instant burglary count alleged that the defendant knowingly entered Carol Abie’s motor vehicle with the intent to commit aggravated battery. Since the focus in a burglary charge is on the unlawful entry, we find that the charge was sufficient to allow the defendant to prepare his defense and to serve as a bar to future prosecutions based on the same conduct. (See People v. Smith (1973), 15 Ill. App. 3d 61, 303 N.E.2d 525.) We also find unpersuasive the defendant’s argument that he relied on the charge in deciding not to testify. His assumption that the intended aggravated battery in the burglary count had to be the same type of aggravated battery charged in a separate count was unreasonable. The burglary count did not refer to the aggravated battery count, nor is there any legal authority stating that the intended felony could be determined in that manner. Accordingly, we find no error.

The defendant also contends that the burglary charge was insufficient because it did not name the person the defendant intended to batter. In People v. Peck (1963), 29 Ill. 2d 480, 194 N.E.2d 245, the supreme court rejected a similar claim. There, the court stated that where a defendant is charged with burglary for unlawful entry with the intent to commit a theft, it is not necessary to identify the owner of the goods the defendant intended to steal. Additionally, the instant charge did name the owner of the vehicle the defendant entered. We therefore find that the State did not need to name the victim of the intended battery.

The defendant next argues on appeal that his burglary conviction should be reversed because he was convicted on a theory that was not argued or proved at trial. He again notes that the aggravated battery charge stated that he committed battery on a public way or on public property. He asserts that the State was limited to using this form of aggravated battery as the intended felony for the burglary conviction. The trial court stated after the conclusion of the trial, however, that the evidence showed that the defendant had committed burglary by entering Abie’s vehicle with the intent to cause her great bodily harm (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1(a), 12 — 4(a)). The defendant contends that the State did not argue that he had intended to commit great bodily harm and that the trial court was precluded from finding him guilty of burglary under this theory. The defendant also argues that the evidence failed to establish that he entered the vehicle with the intent to cause great bodily harm.

A trial court may find a defendant guilty of an offense based on more than one theory and need not specify the theory under which it found him guilty. (People v. Hudson (1988), 165 Ill. App. 3d 375, 519 N.E.2d 28.) In a burglary prosecution in which the defendant has been charged with entry with jthe intent to commit a felony, a trial court’s finding of guilt will be sustained if the evidence supports the finding that the defendant intended to commit any felony. (People v. Fico (1985), 131 Ill. App. 3d 770, 476 N.E.2d 47.) In reviewing the propriety of a conviction, all of the evidence should be viewed in the light most favorable to the State. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Applying the foregoing principles, we find that the State presented evidence establishing beyond a reasonable doubt that the defendant entered Abie’s vehicle while it was on a public way and with the intent to cause her great bodily harm. The trial court could therefore find the defendant guilty under either theory. Accordingly, the court did not err in finding that the defendant had committed burglary by entering Abie’s vehicle with the intent to cause her great bodily harm.

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

Affirmed.

HEIPLE and STOUDER, JJ., concur.