author: JUSTICE REINHARD

text:
    NEW HORIZONS ELECTRONICS MARKETING, INC., Plaintiff-Appellant, v. CLARION CORPORATION OF AMERICA, Defendant-Appellee (Stephen Feuer, Defendant).
    Second District
    No. 2— 89—1172
    Opinion filed September 21, 1990.

      Robert W. Queeney and Steven B. Varick, both of McBride, Baker & Coles, of Chicago, for appellant.
    Peter Carlson and Carolyn Quinn, both of Kelly, Drye & Warren, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, New Horizons Electronics Marketing, Inc., filed a three-count complaint in the circuit court of Lake County against defendant, Clarion Corporation of America (Clarion), and its employee, Stephen Feuer, alleging that Clarion’s termination of a sales representation agreement constituted both the tort of retaliatory discharge (count I) and a breach of contract (count II). As to Feuer, plaintiff alleged an intentional interference with contractual relations and prospective business relations with Clarion (count III). Pursuant to Clarion’s motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), the circuit court dismissed count I of the complaint, alleging retaliatory discharge, and it later granted summary judgment in favor of Clarion on count II, asserting a breach of contract. The written order of summary judgment in favor of Clarion also stated that summary judgment was granted in favor of defendant Feuer, although the record filed on appeal does not contain any filing of pleadings or appearance by Feuer. Plaintiff’s appeal addresses only counts I and II relating to the rulings against it on the claims against Clarion.

At issue on appeal is (1) whether an independent contractor can assert a claim based on the tort of retaliatory discharge; and (2) whether under California law Clarion breached an implied covenant of good faith and fair dealing.

The facts underlying this action can be briefly summarized. Plaintiff is an Illinois corporation with its principal place of business in Bannockburn, Illinois, and Clarion is a California corporation with an Illinois office. Defendant Stephen Feuer is Clarion’s Midwest regional sales manager employed by Clarion at its Illinois office. In 1983, plaintiff and Clarion entered into a written sales representation agreement (the agreement) whereby plaintiff was to act as Clarion’s sales representative in Illinois, eastern Wisconsin, and two counties in Indiana. The agreement was terminable by either party upon 30 days’ notice, and it was also subject to termination if plaintiff failed to meet its assigned sales quota for any two consecutive quarters. The agreement was expressly to be governed by California law.

Plaintiff’s complaint alleged that, on several occasions during the term of the agreement, Feuer asked plaintiff for bribes and kickbacks, but plaintiff refused. In a letter dated March 1, 1985, Feuer informed plaintiff that, “based on New Horizons’ failure to achieve quota for the last 17 months,” Clarion would terminate the agreement effective April 1, 1985. Clarion’s upper management denied plaintiff’s request to overrule Feuer’s decision.

In an amended complaint, plaintiff set forth three counts, counts I and II against Clarion and count III against Feuer. Count I sought recovery under the tort of retaliatory discharge because plaintiff was allegedly terminated for its refusal to participate in illegal bribes and kickbacks. Count II alleged that Clarion breached an implied covenant of good faith and fair dealing both by terminating plaintiff due to its refusal to engage in illegal conduct and by failing to afford plaintiff an opportunity to cure any defects in its performance. Count III alleged that Feuer intentionally interfered with plaintiff’s contractual relationship with Clarion.

Clarion filed a motion under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) seeking dismissal of count I of the amended complaint for failure to state a cause of action. The trial court granted the motion based on its finding that “plaintiff does not fall within the principles of employee at-will retaliatory discharge.” The order setting forth this ruling notes that plaintiff admitted that it was not an employee of Clarion but was an independent contractor.

Clarion subsequently filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) on count II of the amended complaint with supporting excerpts from depositions and other materials. Clarion argued that it had given plaintiff the required 30-day notice before terminating the agreement and also that it had the right to terminate the agreement because of plaintiff’s failure to meet its sales quotas. Clarion further argued that, under California law, no covenant of good faith and fair dealing could be implied in the contract. Plaintiff filed a memorandum in opposition to the motion.

In a memorandum opinion issued October 10, 1989, the trial court ruled that the agreement did not require that termination be for cause, and the court noted that Clarion had given plaintiff the required 30-day notice of cancellation. The court also ruled that there was no “special relationship between the corporate parties” which would give rise to an implied covenant of good faith and fair dealing under California law.

We first address the trial court’s dismissal of count I of the amended complaint for failure to state a cause of action. The trial court concluded that plaintiff could not assert a retaliatory discharge claim because it was an independent contractor and not an employee of Clarion. A court reviewing the dismissal of a complaint for failure to state a cause of action must determine the legal sufficiency of the complaint. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 516, 513 N.E.2d 387.

As a general rule, an employment relationship without a fixed duration is terminable at will by either party. (Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489, 505 N.E.2d 314, 317.) In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357, the Illinois Supreme Court recognized the tort of retaliatory discharge as an exception to the rule of at-will employment. The court held that an employee who is terminated for asserting his rights under the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) may maintain an action for retaliatory discharge against his employer. The supreme court expanded the tort in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130, 421 N.E.2d 876, 878-79, holding that an employee may maintain an action for retaliatory discharge when his termination violates a clearly mandated public policy. To allege a valid claim for retaliatory discharge, a plaintiff must allege (1) a discharge; (2) the discharge was in retaliation for his activities; and (3) the discharge violates a clear mandate of public policy. Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.

Plaintiff argues that it was a violation of public policy for Clarion to terminate the agreement because plaintiff refused to engage in illegal conduct. Plaintiff further contends that the rationale for the tort is to deter the violation of public policy and that such rationale applies equally to employees and independent contractors.

The supreme court recognized the tort of retaliatory discharge as an exception to the rule of at-will employment. (Kelsay, 74 Ill. 2d at 181, 384 N.E.2d at 357.) Although the tort has been extended beyond at-will employees (see Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280, 1283-84 (employees under union contract may assert retaliatory discharge claim and recover punitive damages)), the court has not expanded the tort outside of the employment setting. The rationale underlying the tort is based on the recognition that “employer and employee do not stand on equal footing,” and a proper balance must be maintained among the employee’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood and society’s interest in seeing its public policies carried out. (Palmateer, 85 Ill. 2d at 129, 421 N.E.2d at 878.) Moreover, our review of other jurisdictions indicates that the only State to address the question has determined that an independent contractor cannot assert a claim of retaliatory discharge. See Wilmington v. Harvest Insurance Cos. (Ind. App. 1988), 521 N.E.2d 953, 956; Morgan Drive Away, Inc. v. Brant (Ind. App. 1985), 479 N.E.2d 1336, 1338, rev’d on other grounds (Ind. 1986), 489 N.E.2d 933, 934.

Here, plaintiff is not an employee but an independent contractor. We hold, therefore, that plaintiff cannot assert a claim of retaliatory discharge against Clarion, and we affirm the trial court’s dismissal of count I of the amended complaint.

The second issue raised by plaintiff is that the trial court, in entering summary judgment for Clarion on the breach of contract claim in count II, erred in ruling that Clarion’s termination of the agreement did not breach any implied covenant of good faith and fair dealing under California law. Plaintiff argues that the agreement contained such an implied covenant, and it argues that Clarion breached the covenant by (1) terminating the agreement because of plaintiff’s refusal to engage in illegal conduct instead of for good cause; and (2) refusing to give plaintiff the opportunity to cure any deficiencies in its performance.

A trial court may grant summary judgment where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In ruling on a motion for summary judgment, the trial court must consider all of the evidence before it and construe it strictly against the movant and liberally in favor of the nonmovant. Summary judgment is a drastic means of disposing of litigation and should be granted only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) As the agreement at issue here expressly provided that it was to be governed by California law, our examination of this question is made with regard to the laws of that State. See Potomac Leasing Co. v. Chuck’s Pub, Inc. (1987), 156 Ill. App. 3d 755, 757-58, 509 N.E.2d 751, 753-54.

Under California law, there exists in every contract an implied covenant of good faith and fair dealing. Each party to the contract impliedly covenants not to do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. (Kendall v. Ernest Pestaña, Inc. (1985), 40 Cal. 3d 488, 500, 709 P.2d 837, 844, 220 Cal. Rptr. 818, 825.) The California Supreme Court has recognized that a breach of the covenant of good faith and fair dealing also can give rise to a tort cause of action. (Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984), 36 Cal. 3d 752, 768-69, 686 P.2d 1158, 1166, 206 Cal. Rptr. 354, 362.) More recently, the California Supreme Court has emphasized that such tort actions arise in only very limited circumstances where the contracting parties are engaged in a “special relationship.” (Foley v. Interactive Data Corp. (1988), 47 Cal. 3d 654, 687, 765 P.2d 373, 392, 254 Cal. Rptr. 211, 230.) Where the tort action does not apply, a party’s only remedy for a breach of the implied covenant of good faith and fair dealing is in contract. See Foley, 47 Cal. 3d at 696-97, 765 P.2d at 398-99, 254 Cal. Rptr. at 236-37 (only a contract remedy is available for breach of the covenant in the employment setting).

In Foley v. Interactive Data Corp. (1988), 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211, the California Supreme Court noted:

“An allegation of breach of the implied covenant of good faith and fair dealing is an allegation of breach of an ‘ex contractu’ obligation, namely one arising out of the contract itself. The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purposes.” {Foley, 47 Cal. 3d at 690, 765 P.2d at 394, 254 Cal. Rptr. at 232.)

The court further stated that, pursuant to traditional contract-law principles, the motive of the breaching party has no impact on the scope of damages the injured party can recover for a breach of the implied covenant of good faith and fair dealing. Foley, 47 Cal. 3d at 696-97, 765 P.2d at 398-99, 254 Cal. Rptr. at 238-39.

In Abrahamson v. NME Hospitals, Inc. (1987), 195 Cal. App. 3d 1325, 1326, 241 Cal. Rptr. 396, 397, a contract between the plaintiff, a physician, and a hospital was terminable by either party “without cause upon ninety (90) days written notice.” The hospital exercised the termination option in accordance with its terms, but the plaintiff alleged the action was taken in violation of the implied covenant of good faith and fair dealing. In this regard, plaintiff alleged that he was terminated because he charged the hospital with poor practices in the healing arts and that his termination for this reason was contrary to public policy. (Abrahamson, 195 Cal. App. 3d at 1328, 241 Cal. Rptr. at 397.) The court of appeal concluded that the plaintiff, an independent contractor, could not state a cause of action for breach of the covenant of good faith and fair dealing. The court refused to read into the contract an implied covenant which would negate the explicit terms of the termination provision. Abrahamson, 195 Cal. App. 3d at 1330, 241 Cal. Rptr. at 399.

We believe that the termination provision here is equivalent to the one at issue in Abrahamson. Plaintiff states that the agreement “gave Clarion the right to terminate on thirty-days notice for a failure to reach sales quotas,” implying that termination was to be exercised only for cause. As we noted above, however, the agreement contained two separate provisions regarding termination. One gave Clarion the right to terminate if plaintiff failed to meet sales quotas, while the other gave both parties an unqualified right to terminate upon 30 days’ notice. Thus, although this agreement does not expressly state that the termination provision could be exercised “without cause,” we find the provision to be essentially the same as that at issue in Abrahamson.

We conclude, therefore, that the approach taken in Abrahamson is also appropriate here. The agreement at issue here expressly provided that either party could terminate it upon 30 days’ notice, and plaintiff does not dispute that such notice was given. Because the “covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract” (Foley, 47 Cal. 3d at 690, 765 P.2d at 394, 254 Cal. Rptr. at 232), we agree with the court in Abraham-son that it would be improper to imply the covenant in a manner which would change the meaning of an explicit contractual provision.

Plaintiff contends that Abrahamson is inapposite here because that case dealt with termination for no cause as opposed to the termination in alleged bad faith at issue here. We are not persuaded that this distinction compels us to reach a different result. It remains true that plaintiff would have us apply the covenant of good faith and fair dealing to the termination provision in such a way as to alter its specific terms. The approach followed in Abrahamson indicates that this would not be warranted under California law.

Thus, there being no disputed issue of fact that plaintiff was given the 30-day notice of termination as required in the agreement, plaintiff cannot maintain a cause of action for breach of the implied covenant of good faith and fair dealing, and summary judgment was properly entered for Clarion.

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

Affirmed.

WOODWARD and DUNN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    DIANE P. SCANLAN et al., Plaintiffs-Appellants, v. MARYLAND CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2— 89—1289
    Opinion filed September 21, 1990.

      Joseph C. Fenech and D. Scott Boomershine, both of Fenech, Toussaint, Boomer shine & Barts, P.C., of Oakbrook Terrace (Bruce W. Craig, of counsel), for appellants.
    Timothy J. Fagan, of Querrey & Harrow, Ltd., of Chicago (Victor J. Piekarski, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Diane P. Scanlan, and her parents, William and Phyllis Scanlan, filed a declaratory judgment action in the circuit court of Du Page County seeking a determination as to whether plaintiff was entitled to uninsured motorist coverage for bodily injury under an automobile insurance policy issued by defendant, Maryland Casualty Insurance Company, to William and Phyllis Scanlan. The circuit court granted defendant’s motion for judgment on the pleadings, finding that plaintiff was not entitled to coverage under the uninsured motorist provision of the policy where there was no physical contact between the vehicle plaintiff was driving and the unidentified vehicle which she swerved off the roadway to avoid.

The central issue on appeal is whether plaintiff is entitled to uninsured motorist coverage where there was no contact, direct or indirect, between her vehicle and an alleged hit-and-run vehicle.

The facts relevant to this appeal contained in the pleadings are as follows. On June 20, 1987, plaintiff was driving east on Route 38 in De Kalb County, Illinois, when an unidentified motor vehicle swerved across the center line into plaintiffs lane of traffic. The unidentified vehicle collided with the vehicle immediately in front of plaintiff and then headed toward plaintiff’s vehicle. Plaintiff was forced to swerve off the road and suffered personal injuries as a result. The unidentified vehicle did not stop, and the identity of its driver is unknown. Neither the unidentified vehicle nor the vehicle immediately in front of plaintiff made physical contact with plaintiff’s vehicle.

Following the accident, plaintiff filed a claim with defendant as a family member covered under her parent’s automobile insurance policy. Defendant paid plaintiff the policy limits under the medical payment provision but denied coverage under the policy’s uninsured motorist provision. The uninsured motorist coverage at issue provides in pertinent part:

“A. We will pay damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ because of ‘bodily injury:’

* * *

C. ‘Uninsured motor vehicle’ means a land motor vehicle or trailer of any type:

* * *

3. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:

a. you or any ‘family member;’

b. a vehicle which you or any ‘family member’ are ‘occupying;’ or

c. ‘your covered auto.’ ”

In lieu of filing an answer, defendant filed a motion for judgment on the pleadings pursuant to section 2 — 615(e) of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615(e)). Following the submission of written memoranda by the parties, the circuit court granted defendant’s motion, finding that under existing case law physical contact by the hit-and-run vehicle with the insured’s vehicle was required before plaintiff could recover for personal injury under the uninsured motorist provisions of the policy.

Plaintiff first contends on appeal that the policy limitation requiring that a hit-and-run vehicle actually “hit” an insured’s vehicle before the insured can recover for personal injuries under the uninsured motorist provision is contrary to the language in that part of section 143a of the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a), which only allows such a limitation to apply to claims for property damage under section 143a(2)(i) as follows: “[a]n insurance company issuing uninsured motor vehicle property damage coverage may provide that: (i) Property damage losses recoverable thereunder shall be limited to damages caused by the actual physical contact of an uninsured motor vehicle with the insured motor vehicle.” Ill. Rev. Stat. 1987, ch. 73, par. 755a(2)(i).

Section 143a of the Insurance Code requires uninsured motorist coverage be provided in automobile insurance policies and states, in pertinent part, as follows:

“755a. Uninsured or hit and run motor vehicle coverage
§143a. (1) On or after July 1, 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, except that the named insured shall have the right to reject such coverage only on policies delivered, renewed or issued for delivery before July 1, 1967. ***
(2) On or after January 1, 1985, no policy insuring against loss resulting from liability imposed by law for property damage arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, which motor vehicle is used as a private passenger or recreational vehicle and is not covered by collision insurance under the provisions of such policy, unless coverage is made available in the amount of the actual cash value of the motor vehicle described in the policy or $10,000, whichever is less, subject to a $250 deductible, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit- and-run motor vehicles because of property damage to the motor vehicle described in the policy.
There shall be no liability imposed under the uninsured motorist property damage coverage required by this subsection if the owner or operator of the at-fault uninsured motor vehicle or hit- and-run motor vehicle cannot be identified. This subsection shall not apply to any policy which does not provide primary motor vehicle liability insurance for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle.
* * *
An insurance company issuing uninsured motor vehicle property damage coverage may provide that:
(i) Property damage losses recoverable thereunder shall be limited to damages caused by the actual physical contact of an uninsured motor vehicle with the insured motor vehicle.
(ii) There shall be no coverage for loss of use of the insured motor vehicle and no coverage for loss or damage to personal property located in the insured motor vehicle.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 73, par. 755a.

It is clear that section 143a(l) requires that policies insuring against losses resulting from liability for bodily injury or death also must provide coverage for similar losses sustained by the insured which are caused by an uninsured or hit-and-run motorist. Decisions of our supreme court have determined that such policies may, consistent with the provisions of section 143a, require actual physical contact between the insured vehicle and an unidentified hit-and-run driver as a condition precedent to recovery. (Lemke v. Kenilworth Insurance Co. (1985), 109 Ill. 2d 350, 353, 487 N.E.2d 943; Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 111, 317 N.E.2d 550.) Plaintiff argues, however, that the legislature impliedly disavowed the physical-contact rule enunciated in these decisions by amending the statute in 1984 to require “physical contact” for property damage claims under section 143a(2) while omitting a physical-contact requirement for bodily injury claims under 143a(l). See Pub. Act 83 — 1465, eff. Sept. 19, 1984 (amending Ill. Rev. Stat. 1983, ch. 73, par. 755a).

We believe that the absence in section 143a(l) of “physical contact” language such as that in section 143a(2)(i) does not indicate a legislative intention to alter the physical-contact rule set forth in the supreme court decisions. It is true that, as a matter of statutory construction, the expression of one thing in an enactment excludes any other even if there are no negative words prohibiting it. (City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill. 2d 609, 612, 162 N.E.2d 345.) It is also true, however, that portions of a statute which have been judicially construed keep their same meaning in any subsequent amendments absent a clear legislative intent to the contrary. Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill. 2d 146,155, 549 N.E.2d 578.

We believe that if the legislature wished to express its disapproval of the physical-contact requirement in hit-and-run occurrences in bodily injury cases expressed in the supreme court decisions, it could easily have done so within section 143a(l), the provision which mandates uninsured motorist policies covering damages from bodily injury. Section 143a(2), which provides for optional uninsured motorist coverage of property damage, allows an insurance policy to require physical contact with the uninsured motor vehicle. (111. Rev. Stat. 1989, ch. 73, par. 755a(2)(i).) Such a physical-contact provision in an insurance policy covering property damage would apply to physical contact with an uninsured motor vehicle as well as to physical contact with an unidentified hit-and-run motor vehicle. This language in section 143a(2)(i), which provides for only optional uninsured motorist coverage for property damage, does not demonstrate a clear legislative intention to abandon the judicial interpretation of the physical-contact requirement for only hit-and-run motor vehicles in section 143a(l), which deals with bodily injury cases.

This conclusion is consistent with the supreme court’s decision in Lemke v. Kenilworth Insurance Co. (1985), 109 Ill. 2d 350, 487 N.E.2d 943, where the court addressed the question of whether the legislature had rejected the judicial construction of the physical-contact requirement. The court examined all statutory amendments to section 143a through those taking effect September 19, 1984, which would have included the amendatory language which upon which plaintiff’s argument rests in the instant case. The court concluded that “legislative inaction subsequent to Ferega indicates approval of the reasoning and holding in that case.” Lemke, 109 Ill. 2d at 354, 487 N.E.2d at 945.

Plaintiff next argues that, because sections 11 — 401 and 11— 403 of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, pars. 11 — 401, 11 — 403) require a driver involved in a motor vehicle accident resulting in personal injuries to stop, render aid, and provide information without distinguishing between accidents involving physical contact and those which do not, it would be inconsistent to read section 143a of the Insurance Code to require physical contact. We disagree. These two statutes address different concerns. In any event, the law is established, as cited above, that uninsured or hit-and-run vehicle coverage required by section 143a was not intended to include occurrences with unidentified vehicles without either direct or indirect physical contact with such vehicles. Lemke, 109 Ill. 2d at 353-54, 487 N.E.2d at 945; Ferega, 58 Ill. 2d at 111, 317 N.E.2d at 552.

We also disagree with plaintiff’s next contention that the hit requirement was satisfied by physical contact between the hit-and-run vehicle and a third vehicle without any contact with plaintiff’s vehicle, citing Hartford Accident & Indemnity Co. v. LeJeune (1986), 114 Ill. 2d 54, 499 N.E.2d 464. In LeJeune, the supreme court held that a physical-contact limitation did not preclude coverage where the hit- and-run vehicle struck a third vehicle which in turn struck the insured’s vehicle and where there was a direct connection through to the insured’s vehicle by a continuous and contemporaneously transmitted force from the hit-and-run vehicle. LeJeune, 114 Ill. 2d at 59, 499 N.E.2d at 466.

In the present case, however, plaintiff’s vehicle was not physically contacted by the alleged hit-and-run vehicle, nor was it hit by the third vehicle as in LeJeune. Consequently, under the provisions of the uninsured motorist coverage, plaintiff was not entitled to recover for her personal injuries. We believe this result is consistent with the language of section 143a as well as those supreme court cases, including LeJeune, interpreting similar uninsured motorist provisions. Plaintiff asserts that the policy underlying LeJeune is to relax the physical-contact requirement whenever there is no likelihood that the insured has concocted the existence of a “phantom” hit-and-run driver to obtain a fraudulent recovery. Following this approach, however, would effectively eliminate the physical-contact rule which our supreme court has adopted. We, accordingly, reject plaintiff’s further arguments that plaintiff’s injuries were proximately caused by the hit-and-run vehicle because of its contact, with the third vehicle and that the contact requirement violates public policy because it unfairly restricts plaintiff’s opportunity to prove that a hit-and-run vehicle proximately caused her injuries.

Finally, plaintiff suggests that we follow recent decisions in other jurisdictions which have struck down insurer-imposed physical-contact requirements for uninsured motorist coverage under similar uninsured motorist statutes. We decline to do so, however, in view of the established precedent to the contrary in this State which it is our duty to follow. Agricultural Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 27, 116 N.E.2d 863.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DUNN, JJ., concur.


author: JUSTICE INGLIS

text:
      In re MARRIAGE OF SHERRY CESARETTI, Petitioner-Appellee, and DARYL CESARETTI, Respondent-Appellant.
    Second District
    No. 2— 89—1205
    Opinion filed September 21, 1990.

      Michael T. Smith, of Law Offices of Michael T. Smith, of Hanover Park, for appellant.
    No brief filed for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Daryl Cesaretti, appeals from the judgment entered by the trial court dissolving the marriage between himself and petitioner, Sherry Cesaretti. On appeal, Daryl raises the following issues: (1) whether the trial court’s order granting Daryl temporary custody of the couple’s minor child must be interpreted as an order granting him permanent custody; (2) whether the trial court’s division of the savings account Daryl had with his employer was against the manifest weight of the evidence; (3) whether the trial court erred in awarding Sherry $3,000 as an adjustment to the marital debts; and (4) whether the trial court erred in awarding Sherry $75 per week for the support of the couple’s minor child. We affirm in part, reverse in part and remand.

Daryl and Sherry Cesaretti were married on October 26, 1984. Two months later, Sherry got pregnant, and on September 2, 1985, a daughter, Jaymie, was born to the marriage. On January 21, 1986, Sherry filed a petition for dissolution of marriage. At that time, she was 24 years of age and Daryl was 29. Sherry alleged that she and Daryl had stopped living together through the sole fault of Daryl. Sherry claimed that Daryl had been guilty of extreme and repeated acts of physical cruelty. Sherry requested, among other things, that she be awarded custody of Jaymie and support for her.

Daryl responded on February 11, 1986, by filing a counterpetition for dissolution of marriage. In the counterpetition, Daryl alleged that during the time the parties lived together as husband and wife, he always conducted himself as a good, true, faithful and affectionate husband. He claimed that Sherry conducted herself with extreme and repeated acts of mental abuse by embarrassing and intimidating him through her alcoholism, infidelity and continued association with known drug users. Daryl requested that he be awarded the sole care, custody and control of their daughter. He also sought temporary and permanent support for the child.

Thereafter, Daryl moved back in with Sherry until September 1986 when Sherry moved out. On October 8, 1986, Daryl filed a petition for temporary custody. On October 9, 1986, a conciliation order was filed referring both parties to a psychologist for counseling on the issue of custody and/or visitation.

On June 6, 1988, a hearing was held on Daryl’s petition for temporary custody. At the hearing, it was revealed that Daryl works for the United Parcel Service in the early morning hours and for the Village of Schaumburg and Rolling Meadows part time as a meter reader. Sherry works part time as a waitress. Since the couple’s separation, Sherry has had another child, Maria, with her boyfriend, Salvadore Medina. Maria was eight months old at the time of the hearing. Sherry testified that Salvadore does not live with her, but they are intending to get married. Prior to the hearing, Sherry had custody of Jaymie, and Daryl was paying her $75 a week. At the conclusion of the hearing, the trial judge ruled that custody should temporarily remain with Sherry. Daryl was granted visitation from Friday 3 p.m. to Monday 3 p.m. and the $75 a week for support was ordered to continue. Daryl filed a petition for leave to appeal the trial court’s order, which this court denied on September 7, 1988.

On July 5, 1989, trial on the parties’ petitions for dissolution of marriage commenced and was not concluded until July 21, 1989. At the hearing it was revealed that Daryl is a born-again Christian and has allegedly given up his prior use of drugs and alcohol. Daryl alleged, however, that Sherry did not similarly give up her use of the substances and that apparently caused some friction in their relationship. In contrast, Sherry claims that Daryl himself did not give up his use of the substances, and the cause of the friction was his rigid religious beliefs, physical abuse, and jealousy.

Daryl claimed that after the parties separated, Sherry’s life became very unstable. She was evicted from her apartment twice and had difficulty maintaining employment. Sherry argued that her poor employment record was due in part to the fact that Daryl would harass her at work.

Daryl works early morning hours at his job with United Parcel Service and has since quit his job for the Village of Schaumburg. Because of his hours, his mother baby-sits Jaymie while Daryl is working. Sherry claimed that Daryl and his mother have prevented her from seeing Jaymie. Sherry recalled one incident in September 1988 when the police were called to escort her to Daryl’s mother’s house to pick up Jaymie.

Daryl maintained that Sherry is allowed to see the child whenever she wants; however, he claimed that that is not very often. Daryl recalled a confrontation that occurred between him and Sherry’s boyfriend, Salvadore, in April 1988 when Daryl went to pick up Jaymie from Sherry’s apartment. The police were called, and Daryl was not permitted to take the child. Sherry claims that the reason Daryl was not permitted to take the child was because Jaymie was sick.

Sherry testified that she wants her two daughters to grow up together as a family. She admitted that Salvadore physically abused her, and as a result they are now separated, and he is seeking counseling.

On September 11, 1989, the trial judge announced her decision dissolving the marriage. Daryl was awarded temporary custody of Jaymie for six months at which time custody was to be reviewed. The judge stated that during that time Jaymie was to spend approximately equal time with each parent and set forth a schedule indicating so. Both parties were ordered to attend counseling. Sherry was awarded $750 representing one-half of a savings account Daryl had with United Parcel Service. In addition, Daryl was ordered to pay Sherry $3,000 as and for an adjustment to the marital debts, payable over an 18-month period in equal monthly payments. Daryl was also ordered to pay Sherry $75 per week for the support of Jaymie. A written judgment incorporating the judge’s rulings was filed October 17, 1989. On that same day, Daryl filed a motion to reconsider, which was denied. Thereafter, Daryl filed a timely notice of appeal. Sherry filed a motion to dismiss the appeal for lack of jurisdiction, and Daryl filed objections to the motion. This court ordered both the motion and objections to be taken with the case.

Thus, before we consider the merits of the appeal, we will first address the issue of whether this court has jurisdiction. Sherry contends that because the judgment for dissolution provided for temporary custody to be reviewed in six months, it was not a final and appealable judgment. Sherry cites to In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, wherein this court held that in dissolution actions the issues of support, property division, dissolution and custody are considered to be ancillary parts of the single claim for dissolution, and to avoid piecemeal review, orders determining only a single issue are not appealable until all other issues in the dissolution action are finally resolved. (Ryan, 188 Ill. App. 3d at 681.) However, in the case at bar all issues other than custody have been resolved, and thus the policy against piecemeal appeals will not be significantly served by denying this judgment finality status. (See In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 3-4; In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 908-09.) To hold otherwise would preclude review of any issue raised by the dissolution judgment until the issue of custody is conclusively and permanently decided; we find this to be an untenable proposition. (See In re Marriage of Cannon (1986), 112 Ill. 2d 552, 555.) Accordingly, we deem the trial court’s custody award to be “final” so as to be appealable, but subject to the trial court’s later review. (In re Marriage of Lawrence (1986), 146 Ill. App. 3d 307, 310.) Thus, Sherry’s motion to dismiss the appeal is denied, and we will consider the issues raised.

We note that Sherry has not filed an appellee’s brief. Nevertheless, this court will decide the merits of this appeal because the record is clear and the claimed errors are such that the court can easily decide them without the aid of the appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

We first address Daryl’s contention that the trial court intended sole and permanent custody to be placed with him. We find no support in the record for this contention. In fact, after noting both parties’ faults, the trial judge specifically stated that she was intending to split the custody as close to 50% with each parent as possible. She explained that the purpose of the temporary custody was essentially to see whether the parties could conform to the court’s order, which she had found not to be the case in the past. The judge commented that “the question of legal custody is only for the sake of having one person at this time to make certain decisions, and it’s because of the instability at the present time of Sherry’s life. And when that is straightened out, then the Court can address it.” In the dissolution judgment, the trial court further held that “neither parent has demonstrated the ability and maturity to provide for the total care of the child and insure that the best interest of the minor child is served.” Thus, a review of the record indicates that the trial court clearly did not intend for Daryl to have sole, permanent custody of Jaymie.

Because we find that the trial court awarded Daryl temporary custody of Jaymie to be reviewed in six months, we must now consider Daryl’s contention that in making such a temporary order the trial court committed error. In Carroll v. Carroll (1978), 64 Ill. App. 3d 925, the appellate court held that while custody cases require careful decision and should turn upon the best interest of the child, a trial court cannot avoid the possible consequences of an order by making nil orders temporary “experiments” to see which set of circumstances will result in the best living conditions for the children. (Carroll, 64 Ill. App. 3d at 929.) In Carroll, a dissolution of marriage case, the trial judge originally granted temporary custody of the parties’ minor children to the mother. One and a half years later when an oral judgment for dissolution was granted, the trial court told the parties that they were to have joint custody of the children, and the judge left the children in the physical custody of their mother. The judge stated, “[w]hat I intend to do in this case is to grant joint custody of these children. And I am going to work out the terms of that joint custody. I have not worked that out yet.” (Carroll, 64 Ill. App. 3d at 926.) Later, in modifying physical custody upon petition of the father, the trial judge stated, “[a]t the time the case was decided before *** I wanted to see whether or not my order that was entered at that time would work.” (Carroll, 64 Ill. App. 3d at 928.) The judge continued the joint custody, but transferred the physical custody of the children from their mother to their father. The written order for divorce was then entered and the marital property distributed. The mother appealed. In order to determine the appropriate standard of review, the appellate court had to decide whether the trial court’s modification of custody was from a permanent or temporary order. In holding that the order was permanent, the court noted:

“ ‘[T]he children and the parents are certainly entitled to a certain degree of finality and conclusiveness when an order of custody is entered. Custody of children is the most important aspect of divorce, and this matter should not be subject to frequent modifications where the order was not conditional with respect to such changes.’ ” (Emphasis added.) Carroll, 64 Ill App. 3d at 930, quoting King v. Vancil (1975), 34 Ill App. 3d 831, 834-35.

In the case at bar, the custody order was, in fact, expressly made conditional upon the stability of Sherry’s life, and, thus, we find that it was a temporary order but final for purposes of review. In making the order temporary, the trial judge clearly circumvented the effect of section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 610), which provides that custody awards are generally not modifiable for two years and then are only modified by use of the more stringent standards set forth in section 610(b) (Ill. Rev. Stat. 1989, ch. 40, pars. 610(a), (b); In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 1000-01). The legislative intent behind section 610 is to make custody arrangements as permanent as possible. (Gibbons, 158 Ill. App. 3d at 1001.) We find that a trial court should not be allowed to evade the effects of section 610 by making a custody order temporary, especially where all the other issues in the case have been resolved and all the. evidence is in. A trial judge must make a permanent decision based on the evidence presented and cannot continue temporary custody from time to time either to avoid making a difficult decision or to avoid the requirements of section 610. Thus, in the interest of the child in the case at bar, we remand the cause to the trial court with directions to enter an order deciding the issue of permanent custody.

Next, Daryl argues that the trial court’s decision granting Sherry $750 from his savings account is against the manifest weight of the evidence. In his brief, Daryl admits that $750 represents one-half of an account he kept with his employer at United Parcel Service. He further admits that this money was earned during the marriage, but after the parties’ separation, and that $800 of the $1,500 account was previously withdrawn by him. Daryl contends that there was no argument or evidence set forth showing that Sherry was entitled to the sum awarded and that because the trial court did not make any factual findings in support of its ruling, the reviewing court is left to guess as to the basis of its judgment, which Daryl argues is improper. Hanaman v. Davis (1959), 20 Ill. App. 2d 111, 114-15.

A review of the record, however, reveals that the trial court did indeed make factual findings, and they were basically those set forth by Daryl in his appellant’s brief. In addition, the record indicates that the savings account to which the trial court and Daryl referred is actually a “thrift plan” Daryl has set up with United Parcel Service. Under section 503(b) of the Illinois Marriage and Dissolution of Marriage Act, all property acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property. (Ill. Rev. Stat. 1989, ch. 40, par. 503(b).) In the instant case, Daryl admitted that the $1,500 was earned prior to the judgment of dissolution. He has submitted no argument as to why the money should not be considered marital property or that it was improperly divided. It is well settled that the distribution of marital property rests with the sound discretion of the trial courtt and its decisión will not be reversed absent an abuse of discretion. (In re Marriage of Dali (1989), 191 Ill. App. 3d 652, 663.) We find that no abuse of discretion has been shown and thus decline to disturb the trial court’s ruling.

Daryl next contends that the trial court erred in awarding Sherry the sum of $3,000 as and for an adjustment of marital debts. Daryl argues that he had been discharged from personal liability on those debts through a chapter 7 bankruptcy and thus the State erred in making him responsible for them. The record reveals that in 1987 Daryl, without informing Sherry, filed a petition for bankruptcy. While Daryl was discharged from debts that were incurred during the parties’ marriage, no arrangements were made for Sherry to be similarly discharged. Thus, credit information submitted by Sherry indicates that she remains liable for those debts. As an adjustment for that liability, the trial court awarded her $3,000. Daryl contends that this is improper as it violates the “fresh start” policy of the Bankruptcy Code. In re Marriage of Lytle (1982), 105 Ill. App. 3d 1095, 1099.

In support, Daryl cites to LaRue v. LaRue (1950), 341 Ill. App. 411. In LaRue, the wife had loaned her husband $1,300, and as part of the divorce decree entered January 6, 1948, the husband was ordered to repay the loan. On April 18, 1949, the husband was adjudicated bankrupt, and his wife was named as a creditor in the proceedings. On April 29, 1949, the wife filed a petition for rule to show cause why the husband should not be punished in contempt for his refusal to pay the loan. After a hearing on the issue, the trial court found in favor of the wife and held the husband in contempt. The appellate court reversed the order of contempt, noting that upon an adjudication in bankruptcy, title to the bankrupt property vests in the trustee of bankruptcy as of the date of filing the petition and the bankruptcy court has exclusive jurisdiction, possession, and control of the estate of the bankrupt which cannot be affected by proceedings in the State court. (LaRue, 341 Ill. App. at 414.) The court held that the repayment of the loan was a civil debt, rather than alimony, and thus was dischargeable in bankruptcy. LaRue, 341 Ill. App. at 415.

An analysis of the facts in the case at bar indicates that this case is clearly distinguishable from LaRue. In LaRue, the wife was named as a creditor and was notified of the bankruptcy proceedings which occurred subsequent to the divorce. In contrast, Daryl declared bankruptcy while the parties were still married, yet Sherry was not informed, nor was she named as a creditor. Thus, the debts from the marriage remained even though Daryl was discharged from liability to the creditors of those debts. The $3,000 awarded to Sherry was compensation for her liability. It is well settled that marital debts as well as marital assets must be distributed equitably. (In re Marriage of Go-forth (1984), 121 Ill. App. 3d 673, 680; In re Marriage of Block (1982), 110 Ill. App. 3d 864, 868.) Requiring Daryl to pay Sherry for a portion of the marital debts he left her with is not contrary to the Bankruptcy Code. While Daryl’s liability to the creditors was obviously discharged by the bankruptcy proceedings, we do not find that those proceedings discharged his liability to the marriage resulting from the subsequent divorce.

Lastly, Daryl contends that the trial court erred in requiring him to continue paying child support when he was awarded custody of their child. Section 505(a) of the Illinois Marriage and Dissolution of Marriage Act provides that “[i]n a proceeding for dissolution of marriage *** the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a).) The necessity for child support, as well as the amount of the award, are decisions within the sound discretion of the trial court and will not be set aside unless found to be contrary to the manifest weight of the evidence. In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 1014.

In arguing that the trial court erred in its award, Daryl contends that once legal and physical custody is placed in one parent, that custodial parent has no obligation to pay child support to the noncustodial parent. (Shoff v. Shoff (1989), 179 Ill. App. 3d 178, 186.) In Shoff the father was granted temporary physical custody of the parties’ minor child. Because the mother lived out of State and rarely visited the child, the father provided for all of the child’s financial needs. Consequently, the trial court found, and the appellate court agreed, that, as a matter of equity and fairness, the father’s obligation to pay child support to the mother terminated when the temporary custody order was granted. Shoff 179 Ill. App. 3d at 186.

We find the principle announced in Shoff to be inapplicable to the case at bar. Here, the trial court awarded Daryl temporary custody of Jaymie, but specifically stated that she shall spend approximately equal time with each parent as indicated by a schedule set forth in the decision. Because of the equal amount of time spent with the child, and hence the relative financial contribution, we do not find the trial court’s award of support to be manifestly erroneous.

In addition, we note the disparity in the financial conditions of the parties. While the financial responsibility for the support of a child is the joint obligation of the parents, it is only equitable that the parent with the disproportionately greater income should bear a greater share of the costs of support. {In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 413.) At trial, Daryl testified that he has a yearly gross salary of over $20,000 working at two jobs, his monthly expenses total approximately $1,000, and he has approximately $1,500 in assets. Sherry testified that she earns approximately $7,000 a year working as a waitress, her monthly expenses total over $2,000, and she is in debt over $20,000. Given these circumstances, we cannot say that the trial court’s award of $75 per week for child support was erroneous.

For the above-stated reasons, we affirm the judgment of the trial court and remand the cause for a decision on the issue of permanent custody.

Affirmed in part; reversed in part and remanded.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
      In re JACQUELYN LONG, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Jacquelyn Long, Respondent-Appellant).
    Second District
    No. 2— 89—1154
    Opinion filed September 21, 1990.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, and Sandra Kopels, of Legal Advocacy Services, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

The respondent, Jacquelyn Margaret Ann Gardener Long, appeals the order of October 27, 1989, in which the circuit court found her to be a person subject to involuntary admission and ordered her hospitalized in the Department of Mental Health and Developmental Disabilities. The respondent contends that the order must be reversed because the State did not comply with the provisions of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 911/2, par. 1 — 100 et seq.) inasmuch as the respondent was not served with a notice of hearing set by the court, there was no current treatment plan on file with the court, and the trial court did not make specific findings of fact for the record. The respondent also contends the court’s conclusion that she was a person subject to involuntary admission was not supported by the evidence in the record.

These proceedings were commenced on May 19, 1989, when Michael Long signed a petition in which he asserted the respondent was a person subject to involuntary admission, and the respondent was thereafter accepted for treatment. On October 16, 1989, Dr. Gross, a psychologist, filed a petition under section 3 — 813 of the Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 813), in which he alleged she continued to be a person subject to involuntary admission. He also alleged that she was a person who was mentally ill and who, because of her illness, was unable to provide for her basic physical needs so as to guard herself from serious harm and that she was in need of immediate hospitalization for the prevention of such harm. He further alleged that on October 13, 1989, she was told she would be taken to court on October 20, 1989, at the expiration of her previous court-ordered term and that she then demanded a form which she would not sign. Dr. Gross then stated that these events demonstrated her inability to take simple actions (i.e., signing a form) or to understand what she needed to survive on her own.

The petition was filed with a certificate in which a ward physician stated his opinion that the respondent was a mentally ill person reasonably expected to inflict serious harm upon herself or another person in the near future and unable to provide for her basic physical needs. On October 17, 1989, a second certificate was filed in which a board-certified psychiatrist stated that the respondent had been refusing to eat and had been losing weight and stated his opinion that she was unable to care for herself at that time.

On October 16, 1989, a notice of hearing was filed which contained a notice that a hearing would be conducted on October 20, 1989, at 9 a.m. The notice was not signed by the clerk of the court but by an employee of the medical records department. The notice included a certificate of service which the same medical records assistant signed and swore to that she served the notice on the respondent personally on October 16, 1989, as acknowledged by a notary public. The record does not contain any information regarding how October 20, 1989, was set as a hearing date.

On Friday, October 20, 1989, the matter was heard by the court. The State moved for a continuance because its witness was not present. The respondent, her attorney and her friend, Marilyn Weiss, were present. Ms. Weiss was the executive director of the Manic Depressive and Depressive Association, a support group of lay people, and had worked with the respondent to attempt to resolve the respondent’s problems. She thought the respondent should be treated in an intermediate care facility. She also testified regarding the respondent’s appearance and stated that she understood respondent’s hesitancy in taking medication since they both had had toxic reactions to lithium in the past. The proceedings were then continued for the State to present its case.

On October 27, 1989, Dr. Peter Gallagher testified that the respondent suffered from a bipolar illness with psychotic features. In response to a question whether she could provide for her basic needs so as to guard herself from harm, the doctor answered it “would be a very problematic thing” and that “she would have difficulty negotiating reality.” In response to the question whether she could take care of herself, the doctor answered that the medical charts stated that she had on a number of occasions refused to eat. He reported that as of October 16, 1989, she was taking the medication Haldone. The doctor believed that a treatment plan was in the file but was not aware of its provisions.

The respondent testified on her own behalf and stated that she could find employment and could reside with a church organization. She confirmed Ms. Weiss’ statement that Ms. Weiss would help her. She stated that she did not want to take medication against her will and that the medication put her in a severe depression.

Following arguments by counsel, the court found that the respondent suffered from a mental illness, namely, the bipolar illness with psychotic features. The court refused to consider her refusal to take medication as :a ground to continue involuntary admission because it was a statutory right to refuse such drugs. The court then found that the State had met its burden of proof by presenting clear and convincing evidence that the respondent “as a result of the mental illness cannot provide for her own basic physical needs so as to guard herself from serious harm.” The court initially intended to continue the proceedings until a current treatment plan was filed, but the State pointed out that a plan was filed October 5, 1989. After reviewing it, the court entered a finding that her admission to the Elgin Mental Health Center was the least restrictive environment suitable for her and then ordered her continued admission.

The respondent first contends the order for involuntary admission must be reversed because the provisions of the Code were not followed. The respondent specifically refers to the fact the court did not set the hearing date or direct the notice to be served. Section 3— 706 of the Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 706) states that the court shall set the hearing and direct service of a notice after receipt of a second certificate or after a respondent is admitted to a facility, whichever is earlier. The respondent cites In re Price (1987), 152 Ill. App. 3d 960, 961-62, and In re King (1986), 148 Ill. App. 3d 741, 746, for the proposition that the order of involuntary admission must be reversed when the exact requirements of section 3 — 706, which states the court must set the hearing, are not met. The State acknowledges that the rule enunciated in King and Price controls this situation but requests us to reconsider the rule, in light of the fact that the respondent received actual notice four days in advance, there was a properly acknowledged certificate of service, the respondent was actually prepared and had obtained the presence of her attorney and her friend, and that no party objected to the notice. However, this court has recently reviewed the rule of King and Price and concurred that any noncompliance with the statutory admission procedures renders the involuntary admission judgment erroneous and ineffective. (In re Splett (1990), 194 Ill. App. 3d 391, 393, appeal allowed (1990), 132 Ill. 2d 553.) The requirements of the Code are not merely empty formalities but meaningful protections against potential abuses by the State. (194 Ill. App. 3d at 393.) We decline to reconsider the well-reasoned decisions of King, Price and Splett. See also In re Lamb (1990), 202 Ill. App. 3d 725, 728-29; In re Clarke (1990), 200 Ill. App. 3d 365, 368.

We note at this point that the respondent argues that the State is collaterally estopped from contesting the issue of improper notice. However, since we have already decided the matter against the State on the ground of stare decisis et non quieta movere (see Lamb, 202 Ill. App. 3d at 728), it is not necessary to address this argument.

The State has filed a motion to strike the respondent’s citation to an order rendered by this court under Supreme Court Rule 23 (107 Ill. 2d R. 23), and the respondent has filed an objection to the motion. We ordered that the motion and objection be taken with the case. Rule 23 provides that such orders are not precedential but may be invoked to support contentions of res judicata or collateral estoppel. It was unnecessary to address respondent’s argument that the State was collaterally estopped from arguing that the notice provided to the respondent was ineffectual because the issue was resolved on the basis of stare decisis. Therefore, it is not necessary to refer to the Rule 23 opinion cited by the respondent because it is not relevant to any issue under consideration by this court. Therefore, the motion and the objection are moot.

Respondent next argues that the judgment must be reversed because the State failed to file a current treatment plan as required by section 3 — 813(a) of the Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 813(a)). The treatment plan in the record was filed October 5, 1989, but it was prepared on September 5, 1989. Thus, it was 41 days old at the filing of the petition and 45 days old at the time of the hearing. Treatment plans of a patient must be reviewed and updated as the clinical condition warrants but not less than every 30 days. (Ill. Rev. Stat. 1989, ch. 9I1/2, par. 3 — 209.) Because a petition under section 3 — 813 requires the filing of a current treatment plan, and there was no current treatment plan on file, the trial court erred in granting the petition. (In re Plank (1988), 169 Ill. App. 3d 411, 415.) In addition, the State did not present any testimonial evidence which could have supplemented or updated the plan (see In re Blume (1990), 197 Ill. App. 3d 552, 558), and, in fact, the State’s only witness was not even aware of what the plan provided.

The next contention relates to the finding that respondent, as a result of her mental illness, could not provide for her own basic physical needs so as to guard herself from serious harm. A person is subject to involuntary admission if he is mentally ill and because of the illness is unable to provide for his basic physical needs so as to guard himself from serious harm. (Ill. Rev. Stat. 1989, ch. 911/2, par. 1 — 119(2).) The State has the burden of proving he was subject to involuntary admission by clear and convincing evidence. (111. Rev. Stat. 1989, ch. 911/2, par. 3 — 808.) A trial court’s decision deciding an involuntary admission proceeding is given great deference and will not be set aside unless it is manifestly erroneous. (In re Cutsinger (1989), 186 Ill. App. 3d 219, 223.) The respondent contends that insufficient evidence was presented to support this conclusion. The State counters that the trial court erred by refusing to accept the respondent’s refusal to take medication as a ground for continuing an involuntary admission. The Act provides that a patient may refuse medication. (Ill. Rev. Stat. 1989, ch. 911/2, par. 2 — 107.) The refusal to take prescribed drugs may actually be a rational decision. (See In re Orr (1988), 176 111. App. 3d 498, 513.) Even if we accepted the State’s argument that the refusal to take drugs could be held against her, there is no evidence in the record that the respondent did not make an informed and rational decision regarding the medication. Moreover, Dr. Gallagher did testify that the respondent had taken some medication as of October 16, 1989. In the cause before the court, the State’s witness gave clear testimony, by way of opinion and specific facts, to support a conclusion that the respondent was mentally ill and in need of further institutionalization. Since the finding of the court was not manifestly erroneous, we determine that no error was committed as to this contention.

The last contention raised by the respondent alleged a violation of section 3 — 816 of the Code (111. Rev. Stat. 1989, ch. 91V2, par. 3 — 816). The respondent claims that the trial court’s order was not accompanied by a statement on the record of the court’s finding of fact. At the end of the hearing, the court made the following statement:

“Now, focusing on the evidence that I have heard, the burden is on the petitioner and the burden of course is clear and convincing evidence.
I find that the petitioner has met that burden with respect to the mental illness; that being the bipolar illness with psychotic features.
I find also that the petitioner has met that burden with respect to showing that the respondent as a result of the mental illness cannot provide for her own basic physical needs so as to guard herself from serious harm.
* * *
Having reviewed the treatment plan I will now enter the finding that this is presently the least restrictive environment for this respondent; and I will therefore, order her continued admission to this facility on an involuntary basis.”

We determine that the court did make a statement on the record of the court’s findings of fact and conclusions of law. See In re Grimes (1990), 193 Ill. App. 3d 119,122-23.

In conclusion, we must remind the parties that the provisions in the Code are included to protect our society from the intrusions of government while still providing protection to society and its citizens who need help. These requirements are important safeguards to insure the mental health system does not become a tool to oppress, rather than to serve, society. The Code demands strict compliance with its procedural safeguards to justify the intrusive nature of the Code. (See In re Lamb, 202 Ill. App. 3d at 729.) The failure of the parties to seek and force compliance at the trial court level does not serve either party’s interests.

For the above reasons, the order of the circuit court of Kane County is reversed.

Reversed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE VILLAGE OF SOUTH ELGIN, Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF ELGIN, Defendant-Appellant and Cross-Appellee (721 Partnership et al., Intervening Petitioners-Appellants).
    Second District
    Nos. 2— 90—0029, 2—90—0030 cons.
    Opinion filed September 21, 1990.

      Daniel P. Blondín and Kathleen A. McCarthy, Assistant Corporation Counsel, of Elgin, and Bradtke & Zimmermann, of Mt. Prospect (Erwin W. Jentsch, of counsel), for appellant City of Elgin.
    Siegel & Warnock, of Chicago (Jack M. Siegel, of counsel), for other appellants.
    Kenneth E Miles, of Elgin, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of

the court:

Defendant, the City of Elgin, appeals from an order of the circuit court of Kane County enjoining its annexation of approximately eight acres of land located at the southeast corner of a 150-acre tract of land, known as the Zale property, in unincorporated Kane County. The 150-acre tract, which is contiguous to the City of Elgin on its southern boundary, was the subject of a proposed annexation agreement between the city and the legal and beneficial owners of the property, the Harris Bank and Trust Company, as trustee under trust agreement No. 42491, and Nancy, Kelly Ann, Kathy Ann and William Branch, Jr.

The Village of South Elgin filed the instant suit for declaratory and injunctive relief, contending the eight-acre corner portion of the property could not be annexed by the City of Elgin because it was situated on South Elgin’s side of the median line equidistant from its boundary and that of Elgin which is prescribed in section 11 — 12—9 of the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—9). That section provides that municipalities which have adopted official plans “may agree upon a line which shall mark the boundaries of the jurisdiction of each of the corporate authorities who have adopted such an agreement.” Elgin and South Elgin have each adopted official plans, but they have not agreed upon a jurisdictional-boundary line as permitted under section 11 — 12—9. That section further provides that “[i]n the absence of such agreement, the jurisdiction of any one of the corporate authorities shall extend to a median line equidistant from its boundary and the boundary of the other corporate authority nearest to the boundary of the first corporate authority at any given point on the line.” (Emphasis added.) Ill. Rev. Stat. 1987, eh. 24, par. 11 — 12—9.

The median line equidistant referred to in italics above, South Elgin argues, marks the point beyond which neither it nor the City of Elgin may annex unincorporated territory and establishes a “buffer zone” of sorts between the two municipalities. During the course of the proceedings, the trial court denied petitions to intervene filed by the contract purchasers of the property who intended to develop it, the 721 Partnership, and the property owners, Harris Bank as trustee and the Branches (collectively referred to hereafter as intervenors).

Upon Elgin and South Elgin’s cross-motions for summary judgment, the court agreed with South Elgin’s construction of section 11 — 12—9, and it enjoined the City of Elgin from annexing the eight-acre portion of the property which lies on South Elgin’s side of the equidistant line. It is from that judgment that the City of Elgin appeals. Intervenors appeal from the denial of their petitions to intervene and the judgment enjoining annexation of the eight-acre portion of the subject property. The trial court denied South Elgin’s post-trial motion to modify the judgment to enjoin Elgin permanently from annexing any property lying beyond the median line equidistant between the municipalities regardless of any subsequent annexation of unincorporated territory on the Elgin side of the equidistant line. Elgin’s appeal and South Elgin’s cross-appeal were consolidated with the intervenors’ appeal.

Sua sponte, we note South Elgin’s citation of authority in its brief violates Supreme Court Rule 341 in numerous instances in that citation to the official reports is not given. (113 Ill. 2d R. 341(d).) Appellate counsel are expected to abide by the civil appeals rules uniformly throughout the course of a brief, not simply when it is convenient for them to do so. Further, we strike that portion of South Elgin’s cross-appellant’s reply brief which presents argument in response to Elgin’s appellant’s reply brief, and which includes matters de hors the record. South Elgin is the appellee in Elgin’s appeal, and nothing in Supreme Court Rule 341 permits surreply by an appellee. 113 Ill. 2d R. 341.

Generally, when no material facts are in dispute, questions of law are properly decided on a motion for summary judgment. (Bohnen International, Inc. v. Liberty Mutual Insurance Co. (1983), 120 Ill. App. 3d 657.) The construction of a statute is a question of law which may be construed independently of the trial court’s judgment. (Whiteco Metrocom Division v. Village of Downers Grove (1990), 197 Ill. App. 3d 174, 181.) As in the trial court, this court’s duty in construing a statute is to ascertain and give effect to the legislative intent underlying the statute. (Brown v. Union Tank Car Co. (1990), 197 Ill. App. 3d 357, 361.) We do this by looking at the statute as a whole, taking into consideration its nature and its purposes and ascribing to each word, clause or sentence therein some reasonable meaning. (Whiteco, 197 Ill. App. 3d at 181.) Absent any contrary legislative intent, the same or substantially the same words appearing in different parts of the same statute will be consistently interpreted. (People v. Yarbrough (1988), 166 Ill. App. 3d 782.) We need not resort to extrinsic construction aids where the legislative intent can be ascertained from the statutory language itself. Whiteco, 197 Ill. App. 3d at 181.

It is undisputed here that (1) there is unincorporated territory within 1 1/2 miles of the boundaries of the City of Elgin and the Village of South Elgin; (2) both municipalities have adopted official plans; (3) although permitted to do so under section 11 — 12—9, Elgin and South Elgin have not agreed “upon a line which shall mark the boundaries of the jurisdiction of each of the corporate authorities who have adopted such agreements”; and (4) an imaginary median line drawn equidistantly between the two municipalities as prescribed by section 11 — 12—9 when there is no boundary-line agreement between the municipalities shows that approximately eight acres of the southeast corner of the Zale property which is sought to be annexed to Elgin is located on the South Elgin side of the median line.

It was and is South Elgin’s position that the eight acres lying on the South Elgin side of the imaginary median line cannot be annexed by Elgin because Elgin’s “jurisdiction” to annex extends only as far as the median line. It was and is the position of the City of Elgin and the interveners that the term “jurisdiction” used in the last paragraph of section 11 — 12—9 refers to planning jurisdiction only and does not purport to regulate its “jurisdiction” to annex unincorporated territory which otherwise is contiguous with its boundary and meets the requirements for annexation prescribed in article 7 of the Code. Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 et seq.

In granting summary judgment for South Elgin and enjoining Elgin’s annexation of the eight-acre portion of the subject property, the trial court adopted South Elgin’s construction of the statute. Based on its belief that “[t]he right to plan absent the corollary right to enforce is useless,” the court found that the term “such agreement” in the last paragraph of section 11 — 12—9 relates, by common usage, “back to the annexation agreements referred to in the amendment” to the statute. We cannot concur in the court’s plainly incorrect construction of the statute and, therefore, reverse its judgment enjoining Elgin’s annexation of the eight-acre portion of the subject property.

The error in the court’s construction of section 11 — 12—9 is apparent when the statute is viewed in context and the case which prompted amendments to it is considered. In construing the provisions of a statute, it is proper, and often necessary, to consider the provisions of other statutes relating to the same subject matter for the purpose of determining legislative intent. (Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 243.) In context, section 11 — 12—9 appears in Division 12, “Plan Commissions,” of article 11, “Corporate Powers and Functions,” of the Code. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—4 et seq.) One of the general powers which may be exercised by municipal plan commissions and planning departments is to prepare and recommend to the corporate authorities a comprehensive plan for the present and future development or redevelopment of the municipality. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—5(1).) If and when such comprehensive plan is adopted, the plan becomes the official comprehensive plan of that municipality. The plan may be made applicable by its terms “to land situated within the corporate limits and contiguous property not more than one and one-half miles beyond the corporate limits and not included in any municipality.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—5(1).) The plan may be implemented by ordinances establishing reasonable standards of design for subdivisions, resubdivisions and redevelopment areas including reasonable requirements governing, inter alia, public streets, sidewalks, parks, school grounds, residential lot sizes, and water and sanitary sewer services. The plan may also designate land suitable for annexation to the municipality. The plan is advisory and in and of itself shall not be construed to regulate or control the use of private property in any way except to the extent it has been implemented by duly enacted ordinances. Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—6.

In instances where unincorporated territory lies between the boundaries of two or more corporate authorities which are situated less than V-k miles from each other, the jurisdiction of the corporate authorities with respect to the applicability of each of their official plans as permitted in section 11 — 12—5 extends either (1) to a line which they have agreed upon or, (2) “[i]n the absence of such agreement” as to a boundary line, “to a median line equidistant” from the boundary of one of the corporate authorities and the boundary of the other corporate authority nearest to the boundary of the first corporate authority at any given point on the line. Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—9.

South Elgin’s assertion, and the trial court’s belief, that these two jurisdictional alternatives relate to the respective corporate authority’s jurisdiction to annex unincorporated territory within IV2 miles of its boundary rather than simply include it in the area to which its official plan is applicable derives, incorrectly we believe, from amendments made to section 11 — 12—9 which were prompted by this court’s opinion in Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979.

In Kildeer, the Village of Long Grove sought to enforce a jurisdictional-boundary agreement between itself and the Village of Kildeer. The 1964 agreement included a provision prohibiting either village from annexing territory beyond the jurisdictional boundary line fixed by them without the consent of the other. In 1977, Kildeer adopted an ordinance repealing the agreement, and, in 1985, it annexed a contiguous 32-acre parcel of land which overlapped the Long Grove side of the jurisdictional-boundary line. Upon Long Grove’s complaint for declaratory and injunctive relief to enforce the 1964 agreement, the circuit court, without deciding the validity of the agreement, granted Kildeer’s motion to dismiss on the ground Kildeer had terminated the agreement in 1977.

On appeal, this court affirmed the judgment, concluding the agreement between the villages prohibiting annexation was invalid as an unauthorized assumption of municipal power. Long Grove contended there that the authority for its prohibitory annexation agreement with Kildeer was the statute which is at issue here as well, section 11 — 12—9 of the Code. Observing that non-home-rule units possess only those powers which are granted to them by law or those necessarily implied from or incident to such powers, we construed section 11 — 12—9 as being concerned solely with jurisdictional boundary lines relating to planning, not annexation. (146 Ill. App. 3d at 981.) We reached this same conclusion under virtually identical circumstances in Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 568, where we found the boundary-line agreement between the two villages prohibiting acts to annex beyond the boundary line invalid and unenforceable inasmuch as there was — at the time the agreement was made — no statutory authority for such an agreement.

Subsequent amendments to section 11 — 12—9, effective on and after September 24, 1987, now expressly provide that boundary-line agreements which have been entered into “may provide that one or more of the municipalities shall not annex territory which lies within the jurisdiction of any other municipality, as established by such line.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—9.) Section 11 — 12—9 now also provides that the boundary-line agreements shall be valid for the term of years agreed upon, but not to exceed 20 years. If no term is stated in the agreement, it is valid for 20 years.

It is clear that the legislative intent underlying section 11— 12 — 9 was simply to prescribe what the limits of the planning jurisdiction provided for in section 11 — 12—5 would be in those instances where there was unincorporated territory lying between municipalities which were less than V-k miles from each other. Both before and after the amendments to section 11 — 12—9, there were and still are only two planning jurisdiction options: the municipalities can either agree on the location of the jurisdictional-boundary line, or, if they do not, a median line equidistant between them will be deemed to be the planning jurisdiction boundary. Annexation of contiguous, unincorporated territory lying within the respective municipalities’ planning jurisdiction boundaries is prohibited only if (1) the boundary line was an agreed-upon one and (2) the boundary-line agreement also included the annexation prohibition.

Because Elgin and South Elgin had no boundary-line agreement, Elgin’s authority to annex the Zale property was subject only to the provisions of division 1 of article 7 of the Code. (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 et seq.) In light of our construction of section 11 — 12—9, we conclude South Elgin was not entitled to judgment as a matter of law on its cross-motion for summary judgment and that the court erred in enjoining Elgin’s annexation of the eight-acre portion of the Zale property situated on the South Elgin side of the median line equidistant. Accordingly, we reverse the court’s judgment, dissolve the injunction, and remand the cause for entry of summary judgment in favor of the City of Elgin.

We next consider South Elgin’s cross-appeal from the trial court’s denial of its post-trial motion to modify the summary judgment order. South Elgin’s post-trial motion requested the court modify its order so as to enjoin Elgin permanently from ever annexing any property situated on the South Elgin side of the median line equidistant as that line was shown on the Elgin township map. A copy of the relevant portion of the map was submitted in the trial court as exhibit C attached to the affidavit of Steve Larson, a registered professional engineer, in support of South Elgin’s cross-motion for summary judgment and included in the record as South Elgin exhibit No. 1. South Elgin argues the court abused its discretion in denying its post-trial motion because its denial “made the amendment to said section 11 — 12—9 unworkable and insured getting a ridiculous result with respect to the median equidistant line.” The “ridiculous result” anticipated by South Elgin is that if the equidistant line is not fixed — frozen in time — forever as shown on exhibit No. 1, “[y]ou could easily have a situation where the annexing municipality annexes up to the median equidistant line as originally established *** [and] could then claim that the equidistant line had shifted *** and then any remaining territory could be annexed, piecemeal, up to such [shifted] median equidistant line,” until the two municipalities adjoin each other.

This result, South Elgin asserts, would “defeat the intention of the legislature and make a mockery of the stability and sanctity of any median equidistant line.” In response to Elgin’s and the interveners’ argument that it has failed to cite any authority in support of its contention that the trial court abused its discretion, South Elgin replies none can be cited because the amendments to section 11— 12 — 9 are so new and have not yet been construed, and, further, that section 11 — 12—9 “is not going to work unless there is a ‘freeze’ with respect to a specific map or territory placed in evidence the first time that a court is cognizant of the application of section 11— 12 — 9 by a municipality’s bringing suit to protect its interest under said section.”

Having construed section 11 — 12—9 as set forth above, we find no merit in South Elgin’s contention that the trial court abused its discretion. There is nothing ridiculous about the “domino”-type effect South Elgin claims will obtain if the trial court’s denial of its modification motion is not reversed. Rather, as Elgin asserts, it is only South Elgin’s “tortured interpretation” of the statute which creates a conflict between the planning jurisdiction statute and the annexation statute. South Elgin’s interpretation, had we accepted it, would result in the inability of a property owner to petition successfully for annexation of his property to any one municipality in a circumstance where the property is partly within the planning jurisdiction of one municipality, although not contiguous to it, while the remainder of its territory is contiguous to another municipality.

The Code clearly contemplates and provides for the annexation of unincorporated territory which is contiguous to already incorporated territory. (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 et seq.) The extraterritorial planning jurisdiction power given to municipalities recognizes that a municipality’s concerns do not end at its borders (Village of Lake Bluff v. Jacobson (1983), 118 Ill. App. 3d 102, 110) and that a municipality has a legitimate interest in regulating the development of land near its borders to protect the health and safety of its people (City of Urbana v. County of Champaign (1979), 76 Ill. 2d 63, 70) and to provide uniformity and continuity (Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 246).

Section 11 — 12—9 encourages nearly adjoining municipalities to agree on planning jurisdiction boundaries and, if possible, annexation limits as well, which take into account the natural flow of storm water drainage and the common ownership of any single tract of land. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 12—9.) Absent such agreement, it establishes an equal division of planning jurisdiction based on the municipalities’ boundaries as they exist. Section 11 — 12—9 promotes developmental harmony between incorporated municipalities and contiguous unincorporated territories which may ultimately be annexed.

The modification to the court’s judgment suggested by South Elgin is not supported by law or logic, and we conclude the trial court did not abuse its discretion in denying South Elgin’s post-trial motion. Accordingly, in that respect, its judgment is affirmed.

Finally, intervenors concede that reversal of the trial court’s judgment would render their appeal from its denial of their petitions to intervene moot. We agree. They urge, however, that the court’s judgments as to them nevertheless should not be allowed to stand.

The relief intervenors urge was afforded the intervening petitioner-appellant in Hollobow v. Energy Resources Corp. (1981), 94 Ill. App. 3d 339. The court there observed that dismissal of the intervenor’s appeal — which had been rendered moot by reversal of the judgment in the cause in which she sought to intervene — would make the judgment of the trial court res judicata on the issues raised in the intervenor’s appeal which issues may be relevant to another controversy presented in another proceeding. Cognizant of the general rule that an appellate court will not review a case merely to decide moot or abstract questions, to establish precedent, or to render a judgment to guide potential future litigation, the court determined that the appropriate disposition of the intervenor’s appeal was to set aside the order of the trial court denying the petition to intervene. Accordingly, it vacated the trial court’s order and remanded the cause with directions to dismiss the petition to intervene.

We agree with the reasoning in Hollobow. Accordingly, the judgments of the circuit court denying intervenors’ petitions to intervene are vacated and the cause remanded with directions to dismiss the petitions.

To summarize, in appeal No. 2 — 90—0029, the judgment of the circuit court of Kane County granting summary judgment for South Elgin is reversed, the injunction dissolved, and the cause remanded with directions; its judgment denying South Elgin’s post-trial motion is affirmed.

In appeal No. 2 — 90—0030, the judgments of the circuit court of Kane County denying intervenors’ petitions to intervene are vacated and the cause remanded with directions to dismiss the petitions to intervene.

No. 2 — 90—0029, Judgments reversed in part and affirmed in part; cause remanded with directions.

No. 2 — 90—0030, Judgments vacated; cause remanded with directions.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. WILLIAM H. HARDIN, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2— 89—1105
    Opinion filed September 25, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Daniel J. Norton, of Belvidere, for appellee William H. Hardin.
    Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Jim Edgar, the Secretary of State, appeals from the order of the circuit court of Boone County directing him to issue a judicial driving permit (JDP) to the defendant, William H. Hardin. The Secretary contends that the defendant was not eligible for a JDP because he was not a “first offender” within the meaning of section 11 — 500 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 500).

On May 7, 1989, the defendant was arrested and charged with driving under the influence of alcohol (DUI) in violation of section 11 — 501(a) of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)). A test indicated that the defendant’s blood-alcohol content was in excess of .10 when he was arrested; accordingly, on June 22, 1989, the defendant’s license was suspended for one year pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1). The defendant subsequently petitioned the circuit court of Boone County for the issuance of a JDP, and the court ordered the Secretary to issue a JDP.

The Secretary objected to the issuance of a JDP and asked the court to reconsider its order. The defendant’s driving record reveals that on January 11, 1984, the defendant received a six-month implied consent suspension of his driver’s license pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1). The Secretary argued that, because the definition of a “first offender” in section 11 — 500 specifically excludes any individual who has had a driver’s license suspension under section 11 — 501.1 after January 1, 1982, the defendant was ineligible for a JDR (See Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 500.) On September 28, 1989, the trial court reissued its order directing the Secretary to issue the defendant a JDP, and the Secretary now appeals. Our jurisdiction over the appeal is proper pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301). See People v. Pine (1989), 129 Ill. 2d 88, 99.

Section 6 — 206.1 of the Code empowers the circuit court to order the Secretary to issue a JDP for restricted driving privileges so long as that person is a “first offender” as defined in section 11 — 500. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 206.1.) We note, however, that both parties on appeal apparently misconceive which version of section 11 — 500 was in effect when the trial court made its ruling. The trial court ruling from which the Secretary appeals was made on September 28, 1989. The version of section 11 — 500 in effect on that date provides that a “first offender” does not include “any person who has *** had a driver’s license suspension for Section 11 — 501.1 within 5 years prior to the date of the current offense.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 500 (eff. Sept. 21,1989).

It is settled that new legislation may be applied in pending cases. In the absence of legislative intent to the contrary, a court is to apply the law in effect at the time of its decision, unless to do so results in manifest injustice. (General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 383.) The law in effect at the time the trial court finally ordered the Secretary to issue a JDP provided that the defendant’s prior suspension would make him a second offender only if it occurred within five years of the current offense. The prior suspension was effective on January 11, 1984; the current offense did not take place until May 7, 1989, more than five years later. Thus, the trial court correctly determined that the defendant is a first offender within the meaning of the law in effect when the ruling was made.

The order of the circuit court is affirmed.

Affirmed.

INGLIS and GEIGER, JJ., concur.