author: JUSTICE SCARIANO

text:
    BRIAN K. FLISK et al., Plaintiffs-Appellants, v. CENTRAL AREA PARK DISTRICT et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1 — 89—0443
    Opinion filed September 18, 1990.
    Edward A. Berman, P.C., of Chicago (Edward A. Berman, of counsel), for appellants.
    Carney & Brothers, Ltd., of Chicago (Ellen E. Douglass, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs charge that defendants wrongfully terminated their employment as police officers and seek both equitable relief and damages. After a default judgment was entered in favor of plaintiffs, defendants filed a petition to vacate pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401), which itself was subsequently dismissed for want of prosecution. However, the trial judge granted a second section 2 — 1401 petition filed by defendants approximately six months later. Plaintiffs appeal from this ruling. We reverse.

On June 30, 1987, plaintiffs filed a complaint seeking declaratory relief, an injunction, and damages from the Central Area Park District (Park District) and its board of commissioners, alleging that they had been wrongfully dismissed from their positions as part-time police officers for the Village of Maywood. On July 1, 1987, the parties appeared in court to argue plaintiffs’ motion for a temporary restraining order. Defendants were represented at that hearing by attorney Robert Grundin, who did not file an appearance at that time. After denying the plaintiffs’ motion, the court ordered defendants to file an appearance and to answer or otherwise plead within 15 days. Defendants were served with the complaint on July 11 and 13.

On August 24, 1987, plaintiffs filed a notice of motion and motion indicating that they would seek a default judgment on September 8, 1987, on the ground that none of the defendants had filed an appearance or pleading of any kind. The certificate of service indicates that the notice of motion and the motion were mailed to defendants on that same date. The motion was granted on September 9, 1987, to which date the matter had been continued. On November 4, 1987, defendants Sharp, Dabney, and Wade, this time represented by attorney Luther Spence, filed a petition to vacate the default judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), alleging that Grundin had resigned without notice, that defendants did not learn of the resignation until after the rendition of the default judgment, and that they did not receive a copy of the judgment until the middle of October, two days after a prove up hearing on damages. Accompanying affidavits executed by the petitioners stated that Spence was hired on or about October 6, 1987, and that defendants had no knowledge of plaintiffs’ employment status with the Park District.

An amended petition filed on November 9, 1987, read together with the accompanying affidavits, alleged that plaintiffs did not have an employment contract with the Park District, and that this constituted a meritorious defense. The petition also asserted that the Park District “was without funds to retain representation to do a thorough investigation until on or about Oct. 15, 1987,” and that defendants did not receive a copy of the judgment order until October 15, after a prove up hearing had been held. Neither the amended petition nor the accompanying affidavits mentioned anything as to when defendants first learned of Grundin’s resignation. An order was entered on March 31, 1988, dismissing the amended petition for want of prosecution.

Defendants once more retained new counsel in June 1988, and a new section 2 — 1401 petition was filed on October 11, 1988, on behalf of the Park District and defendants Sharp, Dabney, and Wade. The petition alleged in substance that attorneys Grundin and Spence mishandled the case, that defendants should not be penalized for their attorneys’ incompetence, and that failure to grant the petition would lead to an unjust result. Contrary to explicit statements contained in the affidavits accompanying the original November 4, 1987, petition, it was conceded in the October 11, 1988, petition that Spence was first hired by the Park District “on or about” September 15, 1987, six days after the default order was entered. These allegations were repeated in affidavits signed by the defendants. A number of defenses, alleged to be meritorious, were set forth, including the absence of a valid employment contract with plaintiffs and that one of the plaintiffs had submitted a letter of resignation.

On November 30, 1988, defendants’ petition to vacate the default judgment was granted. After plaintiffs’ motion to vacate the November 30,1988, order was denied, this appeal followed.

The petitioner in a section 2 — 1401 proceeding is required to demonstrate by a preponderance of the evidence (1) a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition. (In re Petition of Village of Kildeer (1988), 124 Ill. 2d 533, 530 N.E.2d 491; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381; Duded, Inc. v. Shred Pax Corp. (1990), 196 Ill. App. 3d 720, 554 N.E.2d 1002.) In reviewing the grant of a section 2— 1401 petition to vacate a judgment, reversal is proper only if the petitioner can show an abuse of discretion. Airoom, 114 Ill. 2d 209, 499 N.E.2d 1381.

The Airoom decision instructs us that “[d]ue diligence requires the section 2 — 1401 petitioner to have a reasonable excuse for failing to act within the appropriate time.” (114 Ill. 2d at 222, 499 N.E.2d at 1386.) We first observe that there was a clear lack of due diligence in defendants’ contesting the underlying action in the trial court. The record contains an affidavit signed by plaintiff Louden Flisk on December 19, 1988, in connection with plaintiffs’ motion to reconsider the November 30, 1988, order. The affidavit, which has not been controverted by defendants, attaches, as a part thereof, a July 2, 1987, letter from Robert Grundin to David Sharp and the board of commissioners stating that Grundin was resigning as attorney for the district effective immediately. It is also undisputed that defendants were properly served with the complaint and were aware of the pendency of the lawsuit. Further, the record indicates defendants hired attorney Spence within 30 days of the entry of the default judgment and were therefore certainly in a position to file a timely and appropriate motion for relief. Even if we were to assume arguendo that defendants did not learn of Grundin’s resignation until after the entry of the default judgment, to find due diligence on these facts would be to ignore numerous Illinois decisions holding that it is the duty of all litigants to follow the progress of litigation to which they are a party, and that the misdeeds of their attorney do not excuse them from this obligation. E.g., Dudek, Inc. v. Shred Pax Corp. (1990), 196 Ill. App. 3d 720, 554 N.E.2d 1002; Dassion v. Homan (1987), 161 Ill. App. 3d 141, 514 N.E.2d 41, appeal denied (1988), 118 Ill. 2d 542, 520 N.E.2d 384; American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 400 N.E.2d 102; Bartolini v. Popovitz (1969), 108 Ill. App. 2d 89, 246 N.E.2d 834.

We similarly find defendants have failed to exercise due diligence in instituting a section 2 — 1401 proceeding. We note that defendants did not file their first section 2 — 1401 petition until November 4, 1987, almost four weeks after the trial court lost jurisdiction over the underlying action, despite the fact that defendants hired an attorney to replace Grundin on September 15, 1987, only six days after the default judgment was entered. Moreover, defendants cannot avoid the consequences flowing from the dismissal of their first petition for want of prosecution. Due to the equitable nature of a section 2 — 1401 proceeding, we cannot say there are no circumstances in which the filing of successive petitions would be permissible. However, the filing of the second petition in this case was clearly improper.

Defendants attempt to disengage themselves from their difficulties by asserting that procedural bars such as laches and estoppel are relaxed when used as a defense to a suit brought by a governmental body, and that the due diligence requirement should similarly be relaxed in this case. (See Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415, cert, denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957; County of Cook v. Chicago Magnet Wire Corp. (1987), 1-52 Ill. App. 3d 726, 504 N.E.2d 904; Pavlakos v. Illinois Department of Labor (1984), 128 Ill. App. 3d 783, 471 N.E.2d 547, affd (1985), 111 Ill. 2d 257, 489 N.E.2d 1325.) However, all of these decisions are authority only for the proposition that laches and estoppel may not apply against a governmental entity which seeks to enforce an important public right. They are therefore inapposite to the instant case, which involves no such element.

We recognize that in a proper case, “where justice and good conscience may require it a default judgment may be vacated even though the requirement of due diligence has not been satisfied.” (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225, 499 N.E.2d 1381, 1388; see also Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 471 N.E.2d 221; Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 386 N.E.2d 291.) Defendants assert in a most conclusional fashion that “[t]o allow a potentially large and unwarranted judgment amount to be lodged against the Park District and to subject the taxpayers of Maywood to damage and a squanderance of their tax dollars would be inequitable.”

We find this argument to be unpersuasive on these facts. Defendants have cited no cases suggesting that holding litigants responsible for the errors of their attorney is somehow unfair, unjust, or unconscionable. A stronger showing is needed to overcome the due diligence requirement. (Airoom, 114 Ill. 2d at 227-29, 499 N.E.2d at 1389-90.) For example, in Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348, after obtaining a default judgment, plaintiff presented fraudulent documentation of damages to the court in an ex parte proceeding. In Ellman v. DeRuiter (1952), 412 Ill. 285, 106 N.E.2d 350, plaintiff’s attorney obtained a default judgment and subsequently made representations to defendant’s attorney creating the impression that the action was still pending, thus preventing a motion to vacate within the 30-day jurisdictional period. Similarly, in Bonanza International, Inc. v. Mar-Fil, Inc. (1984), 128 Ill. App. 3d 714, 471 N.E.2d 221, after obtaining a default judgment, plaintiff’s attorney failed to advise the court at an ex parte hearing on damages that defendant was entitled to a substantial offset credit. In each of these cases, the petition to vacate was granted based on the court’s equitable powers, without consideration of the petitioner’s due diligence.

Here, defendants point to no affirmative misconduct on the part of plaintiffs or their counsel which would overcome their lack of due diligence or which would otherwise bring their case within the facts of such decisions as Elfman and Ellman. Defendants have repeatedly claimed that they did not receive notice of the default judgment until the middle of October 1987, over 30 days after the trial court had entered the judgment. However, we note that “the failure to provide a defendant with notice of entry of a default order does not by itself invalidate the default.” (Kaput v. Hoey (1988), 124 Ill. 2d 370, 379, 530 N.E.2d 230, 234; Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1302(a).) Furthermore, while delaying notification over 30 days is one factor to be considered in determining whether plaintiff has acted so unfairly as to justify relaxation of the due diligence requirement, it is not by itself sufficient basis for doing so. Airoom, 114 Ill.,2d at 227, 499 N.E.2d at 1389.

On the other hand, as we have noted above, defendants have each filed affidavits contradicting their own earlier affidavits as to when the Park District first hired attorney Spence. Moreover, although the amended petition filed November 9, 1987, stated that defendants were not notified of the default judgment until after a prove up hearing on damages was held, our examination of the record fails to disclose any indication that such a hearing ever took place. Finally, defendants’ initial assertions that they did not learn of Grundin’s resignation until after rendition of the default judgment on September 9, 1987, were omitted from their amended petition and from their second petition; these assertions also conflict with Grundin’s unchallenged, unrebutted, July 2 letter.

Thus, the equities in no -way support defendants’ position in this case for, in all fairness to plaintiffs, we cannot condone (1) the failure of defendants to exercise due diligence in defending against the underlying action; (2) neglecting to seek relief from the default judgment within 30 days of its entry, although their attorney had the opportunity to do so; (3) a similar lack of diligence in their filing for section 2 — 1401 relief; (4) their dismal display of negligence in permitting their first section 2— 1401 petition to be dismissed for want of prosecution; and (5) their inexcusably taking almost 6V2 months after this latest demonstration of carelessness to file a second section 2 — 1401 petition, assuming the filing of a second such petition to be proper. To grant relief to parties who so blithely pyramid their negligence presents but a clinical case of an abuse of discretion.

Reversed.

HARTMAN and BILANDIC, JJ, concur.

      Plaintiffs state in their complaint that defendants Dilworth and McKinnon are not being sued in their individual capacities, reflecting the fact that these commissioners did not vote for their suspension.


source: Caselaw Access Project

author: JUSTICE BILANDIC

license: Public Domain

text:
    HARRIS TRUST AND SAVINGS BANK, as Trustee, Plaintiff-Appellee, v. JOHN M. DONOVAN et al., Defendants (Hallam Thomas Donovan, Defendant-Appellant).
    First District (2nd Division)
    No. 1— 89—0984
    Opinion filed September 18, 1990.
    Rehearing denied October 16, 1990.
    Michael J. Dolesh, Barbara J. Mulvanny, and Fred J. Posont, all of Keck, Mahin & Cate, of Chicago, and Frank J. Roan, of Sarasota, Florida, for appellant.

      James J. Carroll and Karen K. Melbinger, both of Sidley & Austin, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Harris Trust and Savings Bank, as trustee of the marital trust and the family trust under the Thomas J. Donovan trust dated July 25, 1982 (hereinafter Trustee), filed a complaint for declaratory judgment asking the court to declare that the family trust be divided into two separate trusts, one for the benefit of defendant John M. Donovan, and one for the benefit of defendant Patricia D. O’Rourke. Defendants John and Patricia filed an answer which agreed with the relief sought by the Trustee. Defendant Hallam Thomas Donovan filed an answer which disagreed with the Trustee and requested that the family trust be divided into three equal trusts for the benefit of himself and defendants John and Patricia. All of the pleadings are verified and had attached to them exhibits relevant to the disposition of the controversy between defendant Hallam and the Trustee.

The Trustee moved for judgment on the pleadings pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 615). After hearing arguments of counsel, the trial court entered an order on March 15, 1989, which made the following findings:

(1) that there was no ambiguity in the Thomas J. Donovan trust dated July 26, 1982;

(2) that settlor intended, after the death of his wife, that the family trust be divided into two trusts for the benefit of John and Patricia; and

(3) that the settlor did not intend that Thomas, Jr. (not a party here), or defendant Hallam be beneficiaries of the family trust.

The court then ordered that the Trustee’s motion for judgment on the pleadings be granted and that the family trust be divided into two trusts for the benefit of John and Patricia. Defendant Hallam Thomas Donovan filed a timely notice of appeal.

The verified pleadings and attached exhibits reveal the following pertinent facts. Thomas J. Donovan’s estate plan is based upon two testamentary instruments. The first is the trust dated July 26, 1982. The second is his will dated July 29, 1982 (three days later). Harris Trust was named as trustee of the trust and executor of the will. The estate plan instruments appear to have been drafted by the law firm of Sidley & Austin, who are the attorneys for the trustee and executor. Thomas J. Donovan died on August 24, 1982, which is less than 30 days after the execution of his trust and will.

Probate proceedings were instituted shortly after his death. The order declaring heirship determined that the heirs at law and next of kin of the decedent were his wife, Marie Donovan, and his children, John Donovan, Patricia O’Rourke and Thomas J. Donovan, Jr.

By the terms of the trust instrument, upon the settlor’s death, the trust estate was divided in a marital trust and a family trust. The settlor’s wife, Marie, was the sole beneficiary of the net income from both trusts during her lifetime. Marie was granted a general testamentary power of appointment over the marital trust. If Marie failed to exercise this power upon her death, the trust instrument caused any part of the marital trust remaining after payment of certain expenses to be added to the family trust.

The trust instrument directs the trustee to “divide the Family Trust into separate trusts of equal value, creating one trust for each child of mine other than Thomas J. Donovan, Jr. then living and one trust for the descendants then living, collectively, of each deceased child of mine other than Thomas J. Donovan, Jr. I intentionally make no provision for my son, Thomas J. Donovan, Jr., or his descendants under this paragraph.” The settlor defined the terms “children” and “descendants,” as used in the trust instrument, to “include only lawful blood children and descendants and legally adopted children and descendants.”

By the terms of his will the settlor bequeathed his personal effects to his wife, if she survived him, and if she did not survive him, “to my children other than Thomas J. Donovan, Jr. who are then living, to be divided between them in shares of substantially equal value as they agree ***. My only children now living are John M. Donovan, Patricia D. O’Rourke and Thomas J. Donovan, Jr.” After disposing of his personal effects, the settlor’s will then poured the residue of his estate into the Thomas J. Donovan trust.

Shortly after the settlor’s death, in a letter dated November 18, 1982, Hallam notified Harris Trust as trustee, also executor of the settlor’s estate, of his status as heir to the settlor’s estate. Hallam included a 1964 California judgment adjudging Thomas J. Donovan to be his father and ordering the settlor to pay child support until Hallam reached the age of 21 years. The record discloses that the settlor did pay monthly child support to Hallam’s mother and also paid Hallam’s medical and educational expenses.

Thereafter, Hallam retained counsel in Chicago who caused the original order declaring heirship to be vacated. An amended order declaring heirship was entered in the probate proceedings on February 24, 1983, which determined the decedent’s heirs at law and next of kin to be his wife, Marie Donovan, and his children, John Donovan, Patricia O’Rourke, Thomas J. Donovan, Jr., and Hallam Thomas Donovan.

Marie died on April 27, 1988, without having exercised the general power of testamentary appointment over the marital trust. The remaining assets of the marital trust were then added to the family trust.

It is undisputed by the parties to this action that the settlor’s son, Thomas J. Donovan, Jr., was clearly and unequivocally disinherited by his father. Thomas Jr. is not involved in this appeal.

The issue involved in this appeal is whether the trial court properly granted the trustee’s motion for judgment on the pleadings under the facts of this case.

I

The trustee moved for judgment on the pleadings pursuant to section 2 — 615 of the Code of Civil Procedure. (111. Rev. Stat. 1987, ch. 110, par. 2 — 615.) In arriving at its decision, in the case sub judice, the trial court may only consider the verified pleadings and the exhibits attached thereto and incorporated into the pleadings. (Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill. App. 3d 142, 145, 404 N.E.2d 1104.) The court must construe the pleadings most strongly against the moving party and uphold the trial court’s judgment only if there is no factual issue which, if determined against the moving party, would prevent entry of the judgment on behalf of the moving party. Seefeldt v. Millikin National Bank (1985), 137 Ill. App. 3d 841, 842-43, 485 N.E.2d 30.

The rules of will construction apply with equal force to the construction of a trust instrument. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 3-4, 513 N.E.2d 833.) The cardinal rule of will and trust construction, to which all other rules of construction yield, is the ascertainment of a testator’s or settlor’s intention, to be gleaned from the four corners of the instrument itself. (Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 127, 163 N.E.2d 523; In re Estate of Smith (1982), 107 Ill. App. 3d 1038, 1042, 438 N.E.2d 553.) In determining the settlor’s intention, however, it is proper to read the words of the instrument in light of the circumstances under which the instrument was made, including the relations to his family and to the beneficiaries named in the instrument. (Dahmer v. Wensler (1932), 350 Ill. 23, 30, 182 N.E. 799.) The natural heirs of a settlor cannot be disinherited upon mere conjecture, and when the settlor intends to disinherit a natural heir, he must indicate that intention clearly either by express words or by necessary implication. 350 Ill. at 28.

A

The first testamentary instrument executed by Thomas J. Donovan was the trust dated July 26, 1982. Paragraph 3.2 of the trust provided for disposition of the family trust after the death of his wife:

“3.2 Upon my wife’s death, or upon my death if she does not survive me, the Trustee shall divide the Family Trust into separate trusts of equal value, creating one trust for each child of mine other than THOMAS J. DONOVAN, JR. then living and one trust for the descendants then living, collectively, of each deceased child of mine other than THOMAS J. DONOVAN, JR. I intentionally make no provision for my son, THOMAS J. DONOVAN, JR., or his descendants under this paragraph. The Trustee, subject to the following article, shall distribute each trust created for the descendants of a deceased child per stirpes to such descendants.”

The trustee and trial court relied on article 5.7 to determine that Hallam was unambiguously disinherited by his father:

“5.7 For purposes of this instrument, ‘children’ and ‘descendants’ include only lawful blood children and descendants and legally adopted children and descendants; and the ‘income beneficiaries’ of a trust are the persons eligible to receive current income distributions.”

Three days later, Thomas J. Donovan executed his last will and testament dated July 29, 1982. In paragraph 1, the testator states: “My only children now living are JOHN M. DONOVAN, PATRICIA D. O’ROURKE and THOMAS J. DONOVAN, JR.” No mention is made of Hallam.

The trust provides for “each child of mine other than Thomas J. Donovan, Jr.” The will executed three days later clearly states that “[m]y only children now living are JOHN M. DONOVAN, PATRICIA D. O’ROURKE and THOMAS J. DONOVAN, JR.” What then is the purpose of the definition of “children” in section 5.7 of the trust?

It appears that the same draftsman prepared the trust and the will. Was section 5.7 superfluous boilerplate or did it have a significant role in the estate plan?

The answer to some extent may appear in the original declaration of heirship which did not include defendant Hallam as the son and an heir of the decedent. This raises the possibility that the decedent did not advise the draftsman of the trust and will of Hal-lam’s existence and relationship. If the draftsman was not aware of the fact that Hallam was the son and an heir of the decedent, how could he possibly provide for his disinheritance?

Clearly, there is an ambiguity in the testamentary instruments under the circumstances of this case. We, therefore, conclude that the trial court erred when it found “that there is no ambiguity in the Thomas J. Donovan Trust dated July 26, 1982.” We further conclude that the trial court erred in finding that the settlor “did not intend that *** defendant Hallam” be a beneficiary “of the Family Trust.”

B

By the terms of the testamentary instruments, the settlor did not expressly disinherit Hallam, unlike his legitimate child and namesake, Thomas Jr. In both testamentary instruments, the settlor demonstrated that he is both capable and willing to expressly disinherit a natural heir. Therefore, to uphold the trial court’s determination, we must find that the settlor disinherited Hallam by necessary implication. Necessary implication is an implication which is so strong a probability as to the settlor’s meaning that an intent contrary to that imputed cannot be supported. Shea v. Lyons (1964), 47 Ill. App. 2d 187, 192, 198 N.E.2d 151, appeal denied (1964), 30 Ill. 3d 627.

The trustee argues that the settlor manifested his intention to disinherit Hallam by the terms of his will, wherein he stated that his only living children were Thomas Jr., John and Patricia. The trustee reasons that the exclusion of Hallam from his list, by necessary implication, indicates the settlor’s intent to disinherit Hallam. However, the settlor’s statement is factually incorrect. Hallam was also a living child of the settlor at the time the will was drafted.

It is possible that the settlor’s wife, Marie, and the children born of their marriage (John, Patricia and Thomas Jr.) were not aware of the fact that the settlor had a fourth child (defendant Hal-lam). However, the settlor had to be aware of the fourth child because he was named in a California judicial proceeding that determined that Hallam is his son. For 21 years he paid for Hallam’s support in accordance with the California judgment and voluntarily paid for his medical care and education. If he intended to disinherit Hallam, which he had the absolute power and right to do, he could have done so just as he did with his son, Thomas Jr. Ignoring or forgetting Hallam’s existence less than 30 days prior to settlor’s death by stating in his will on July 29, 1982, “My only children now living are [John, Patricia and Thomas Jr.]” does not manifest an intent to disinherit. (Emphasis added.)

The reference is not to the children of the marriage of the settlor and Marie, but to “my only children now living.” This is an obvious factual error and not an express or implied disinheritance of his son, Hallam.

The trial court’s finding that the settlor intended to disinherit his son Hallam, just as he did disinherit his son Thomas Jr. is error.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DiVITO, P.J., and SCARIANO, J., concur.


author: PRESIDING JUSTICE DiVITO

text:
    BENJAMIN BELDEN et al., Plaintiffs-Appellants, v. HOWARD EMMERMAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1— 89—1118
    Opinion filed September 18, 1990.

      John D. Brennan, of Chicago, for appellants.
    Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago (Alan R Solow and Mindy B. Gordon, of counsel), for appellees.
    James T. Ferrini, Gary Kostow, Suanne Hirschhaut, and Sonia V. Odars-. zenko, of Clausen, Miller, Gorman, Caffrey & Witous, of Chicago, for Michael Weissman and Weissman & Pond.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Benjamin Belden (Belden) and Adler Center for Behavior Modification (Adler) brought this action against their former attorneys alleging legal malpractice, breach of contract, breach of fiduciary duty, and fraud. The circuit court granted defendants’ motions to dismiss plaintiffs’ third amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (September 18, 1990. Rev. Stat. 1987, ch. 110, par. 2 — 619), on the basis that the complaint was time barred. On appeal, plaintiffs contend that the circuit court erred in holding that the statute of limitations had run on their claims.

The underlying facts of this case are as follows. Belden was the president of Adler, which was in the business of providing psychotherapy. Its offices were located at 310 South Michigan Avenue in Chicago. On May 2, 1982, Adler was notified that its lease would be terminated. On May 20, 1982, Adler’s lease was terminated following a dispute over storage space. Thereafter, the landlord accepted Adler’s rent payments for the months of May, June, and July.

On July 7, 1982, Adler retained defendants Howard Emmerman and Rudnick & Wolfe (jointly Rudnick & Wolfe) to represent it in the lease dispute. On July 12, Adler’s electricity was cut off. On July 13, some of its office fixtures were removed and its employees were locked out. That same day, Rudnick & Wolfe obtained a temporary restraining order against the landlord; despite that order, the landlord continued to oust Adler from possession of the leased office space.

On July 14, a rule to show cause was filed against the landlord and the hearing was continued until the following day. Rudnick & Wolfe then discovered that it had previously represented the landlord and filed a motion to withdraw as counsel. Rudnick & Wolfe recommended as substitute counsel defendants Michael Weissman and Weissman & Pond (jointly Weissman). On July 15, Belden and Weissman appeared for the scheduled hearing. However, no hearing occurred; instead, a settlement conference was held.

Belden, accompanied by attorneys from Rudnick & Wolfe, remained in the courtroom while settlement negotiations occurred in the judge’s chambers. Belden and Weissman conferred during the negotiations. Following the discussions in chambers, the circuit court vacated the temporary restraining order; ordered Adler to vacate the leased space in five days; ordered the landlord to pay Adler $9,500 as damages, $500 as a partial refund for July’s paid rent, and $1,050 as a refund of the security deposit; dismissed Adler’s complaint with prejudice; ordered the landlord to return all of Adler’s property; and ordered the parties to execute mutual general releases. Belden refused to execute a release and maintains that, despite the advice of Weissman and Rudnick & Wolfe, he did not consent to the settlement agreement.

Plaintiffs contend that on July 21, 1982, Rudnick & Wolfe continued to advise plaintiffs to execute the release, even though the firm had withdrawn from the litigation approximately one week earlier. Belden refused to act upon that advice.

On August 13, 1982, Weissman moved to vacate the July 15, 1982, settlement order and also moved to withdraw as counsel. The circuit court continued the motion to vacate and granted the motion to -withdraw. Thereafter, another law firm filed an appearance on Adler’s behalf. On September 24, 1982, an amended motion to vacate was filed and was subsequently denied.

Adler appealed from the circuit court’s order denying its amended motion to vacate. Adler argued that the negotiations were adversely affected by Rudnick & Wolfe’s presence, resulting in a gross disparity in bargaining positions because of its former representation of the landlord and that Weissman was the “alter ego” of Rudnick & Wolfe. (Adler Center for Behavior Modification, Inc. v. Chicago Title & Trust Co. (1984), 129 Ill. App. 3d 1024, 1027, 473 N.E.2d 378, 380.) We affirmed on December 18, 1984, and on January 22, 1985, we denied Adler’s motion for a rehearing.

On August 7, 1987, plaintiffs’ new attorneys filed this action. On May 20, 1988, following an amended pleading, these attorneys withdrew. Thereafter, plaintiffs’ present counsel filed a third amended complaint alleging legal malpractice, breach of contract, breach of fiduciary duty, and fraud. Defendants filed motions to dismiss under section 2 — 619 asserting that plaintiffs’ claims were untimely and that they were collaterally estopped from relitigating the validity of the settlement order. On March 31, 1989, the circuit court dismissed the complaint with prejudice based upon the period of limitations bar. This appeal followed.

I

Plaintiffs first maintain that the five-year statute of limitations period (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 205 (eff. July 1, 1982)) did not commence until January 22, 1985, the day we denied Adler’s motion for a rehearing. Plaintiffs argue that the damage element of their legal malpractice claim was not present or known to them prior to that day.

Initially, we note that the elements of a claim of legal malpractice are: (1) the existence of an attorney-client relationship, (2) a breach of a duty arising from that relationship, (3) causation, and (4) damages. (Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1990), 199 Ill. App. 3d 728, 732-33, (and cases cited therein); Coughlin v. SeRine (1987), 154 Ill. App. 3d 510, 514, 507 N.E.2d 505, 508; Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 465, 475 N.E.2d 1035, 1041.) The various districts of the appellate court of this State have taken different views in determining when a cause of action for legal malpractice accrues under section 13 — 205 of the Code of Civil Procedure. Compare Dolce v. Gamberdino (1978), 60 Ill. App. 3d 124, 126, 376 N.E.2d 273, 275, with Tucek v. Grant (1984), 129 Ill. App. 3d 236, 240, 472 N.E.2d 563, 566.

The first district has held that legal malpractice actions ordinarily accrue “when the attorney breaches its duty.” (Jackson Jordan, Inc., 199 Ill. App. 3d at 733; Zupan v. Berman (1986), 142 Ill. App. 3d 396, 399, 491 N.E.2d 1349, 1351, citing West American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126, 132, 370 N.E.2d 804, 807; Dolce v. Gamberdino, 60 Ill. App. 3d at 126, 376 N.E.2d at 275.) The second district has taken the position that “ ‘a cause of action for legal malpractice does not accrue until the client discovers, or should discover, the factors establishing the elements of his cause of action.’ ” (Tucek v. Grant (1984), 129 Ill. App. 3d 236, 240, 472 N.E.2d 563, 566, quoting Kohler v. Woollen, Brown & Hawkins (4th Dist. 1973), 15 Ill. App. 3d 455, 460, 304 N.E.2d 677, 681.) The first district has also recognized the discovery rule in determining when the statute of limitations commences on a legal malpractice claim. (Jackson Jordan, Inc., 199 Ill. App. 3d at 735.) In this district, however, the application of the discovery rule has been limited only to those instances where “the discovery occurs after the statute of limitations has run or when discovery occurs at a time so near the running that the action, for all practical reasons, has been barred before a party has learned of the accrual.” (Dolce v. Gamberdino, 60 Ill. App. 3d at 128, 376 N.E.2d at 276.) Nevertheless, given the facts in this case, we conclude that the limitations result would be the same under either the Dolce or Tucek analysis.

Plaintiffs argue that because the circuit court’s order could have been reversed on appeal, they did not know whether they had been damaged by the actions of defendants on July 15, 1982. However, given the nature of defendants’ alleged activities and plaintiffs’ knowledge of them at the time of the alleged breach, we conclude that they had knowledge of damages as of July 15, 1982.

In Zwpan, the court rejected the same argument under a similar fact pattern. In that case, the plaintiff-client had been a defendant in a dramshop action. The jury returned a verdict for $69,400 against her. On July 22, 1977, the trial court entered an order reducing that amount to $23,600. Plaintiff filed post-trial motions and an appeal. On January 22, 1979, the court affirmed the judgment, modified the award of damages, and remanded. On October 4, 1982, the plaintiff-client filed a malpractice action against her attorney arising out of the dramshop litigation. (Zupan v. Berman, 142 Ill. App. 3d at 397, 491 N.E.2d at 1350.) The trial court dismissed the complaint as untimely. On appeal, the plaintiff in that case, just as the plaintiffs in this case, argued:

“[Bjecause the damages determined by the trial court were subject to possible reversal in whole or in part as a result of either the post-trial motions or the appeal, she could not have known with certainty what damages, if any, she had incurred at the time judgment was entered by the trial court. Thus, plaintiff argues that her cause of action against defendant could not accrue until all avenues of appeal had been exhausted.” (Zupan, 142 Ill. App. 3d at 398, 491 N.E.2d at 1351.)

The court affirmed the trial court’s order dismissing the complaint and found that the lines of reasoning in Dolce and Tucek intersected with the facts in that case. (Zupan, 142 Ill. App. 3d at 399, 491 N.E.2d at 1352.) The court reasoned that under the Dolce rationale, “the adverse result at the time of the end of the trial is the operative factor” in determining when the statute of limitations commenced. (Zupan, 142 Ill. App. 3d at 399.) In that case, the operative factor occurred on July 22, 1977. In applying the Tucek rationale, the court found that “plaintiff admitted that she was reasonably aware that defendant had wrongfully caused her injury at the time judgment was entered.” (Zupan, 142 Ill. App. 3d at 399.) The court, therefore, rejected the argument that the element of damages was unknown until either affirmance or reversal.

As applied to the case at bar, plaintiffs’ argument that the element of damages was not present until we affirmed the trial court’s order is unpersuasive. Following the rationale in Zupan, the alleged breach of duty was actionable on July 15, 1982, and the element of damage was known or should have been known to plaintiffs on that day. Given the fact that defendants had allegedly entered into a settlement agreement over Belden’s objection, plaintiffs’ knowledge of the elements of this cause of action was established as a matter of law. See Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.

Plaintiffs allege that due to their attorneys’ conduct, they had to abandon the leased space and were forced out of business. We believe that plaintiffs should have realized that even if the circuit court’s orders were reversed and the settlement were set aside, damages would still be present. A reversal of the settlement order between Adler and the landlord would not have alleviated the additional damages occasioned by the loss of the business or the additional expenses caused by defendants’ alleged malpractice. In short, the only difference between affirmance and reversal is the amount of damage sustained. The discovery rule may be employed where “uncertainty exists as to the fact of damage” but not where uncertainty exists only as to the amount of damage. (Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1990), 199 Ill. App. 3d 728, 734.) Moreover, plaintiffs waited over 2xlz years after our affirmance to file this action. Plaintiffs had ample time to bring this action within the period prescribed by law.

Accordingly we hold that the limitations period commenced on July 15, 1982, and lapsed five years later. The circuit court, therefore, properly held that plaintiffs’ complaint, filed on August 7, 1987, was untimely.

II

Plaintiffs next argue that the element of damages in the breach of contract, breach of fiduciary duty, and fraud claims was unknown prior to January 22, 1985. However, because we have rejected this argument above, we need not discuss it again here.

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

Affirmed.

HARTMAN and SCARIANO, JJ„ concur.


text:
    DON GOTSCH, d/b/a J & D Amusement, et al., Plaintiffs-Appellants, v. THE CITY OF BURBANK et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1— 90—0340, 1—90—0341 cons.
    Opinion filed September 18, 1990.

      Gierach, Schussler & Walsh, Ltd., of Oak Lawn (James E. Gierach, of counsel), for appellants.
    Louis F. Cainkar, Ltd., of Chicago (Michael G. Cainkar, of counsel), for appellees.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs sought declaratory and injunctive relief from the enforcement of an ordinance which prohibits poker machines, card machines, games or similar devices capable of awarding prizes or money from being located on the premises of licensed liquor establishments. Plaintiffs contended that their video poker machines are incapable of awarding prizes or money and, therefore, are not within the class of machines prohibited by the ordinance. In the alternative, plaintiffs contended that the ordinance is unconstitutional. Following an evidentiary hearing on plaintiffs’ petition for preliminary injunction, the circuit court denied all relief sought by plaintiffs. This appeal followed.

On December 13, 1989, the City of Burbank enacted Ordinance number 50 — 3—9—14—89, which provides, in pertinent part, that “[i]t shall be unlawful for any [liquor] licensee to have, locate or possess on the licensed premises a poker machine, card machine, or any game or similar machine or device capable of awarding prizes, including money.” (Burbank, 111., Municipal Code ch. 3, §3 — 12(m) (1989).) Plaintiff Don Gotsch (Gotsch), d/b/a J & D Amusement, is in the business of leasing coin-in-the-slot electronic amusement devices, including electronic video poker machines. Plaintiff Joseph Kasper (Kasper), d/b/a The Delta Lounge, holds a liquor license provided by the City of Burbank. Two of Gotsch’s electronic “Turbo Poker” machines are located in Kasper’s tavern. Gotsch’s remaining machines are located in Maggie McGuires, Mr. Kays, and Castle Inn Tap & Liquors, which are also situated in Burbank.

On December 14, 1989, John W. Fitzgerald, as Burbank’s local liquor control officer, issued letters to all holders of liquor licenses in Burbank informing them of the ordinance and that “[t]he use of poker machines, card machines, or any game or similar machine or device must be abated immediately.” Fitzgerald also sent a letter to Gotsch informing him of the ordinance. On December 29, 1989, Gotsch filed this action in the circuit court.

The court conducted an evidentiary hearing on Gotsch’s motion for preliminary injunction on January 11, 1990, and on January 25, 1990. Gotsch brought one of his electronic poker machines to the January 11 hearing and demonstrated the machine’s function. The poker machine simulates the game of draw poker. The player inserts 25 cents and receives one point. Cards appear on the screen, and the player chooses the cards to be discarded by pushing one of a number of buttons. If the player is successful, the machine awards points. The game ends when the points are used up. Gotsch testified that his poker machines are not equipped with a switch to erase accumulated points. Further, he demonstrated that the accumulated points cannot be erased by turning the machine off. Each machine has an amusement sticker provided by the City of Burbank.

Gotsch also brought an electronic video trivia machine to the hearing. He testified that this machine awards points in the same manner as the poker machine. Skill is also used to accumulate points. Once the points are used up, the player must insert another coin to continue the game.

Defendants called Officer Steve Dillon of the Cook County sheriff’s police department. He was assigned to the vice and intelligence division and investigated gambling, pornography, and dramshop violations. Dillon had performed undercover work in taverns relating to gambling and observed bartenders pay players based on the points accumulated on poker and blackjack machines. The points were valued at 25 cents each. On cross-examination, Dillon testified that he never conducted a gambling investigation involving a poker machine in Burbank. He further testified that during his investigations of other machines in other localities, he observed that the accumulated points were always removed after the payoff. He never observed a situation where points were left on a machine after an award of money.

Defendants next called Chief William Kujawa of the Burbank police department. He authorized undercover investigations regarding gambling with poker or blackjack machines which were prompted by the complaint of the co-owner of Manhattan’s Lounge. The owner informed Fitzgerald and Kujawa that her partner was paying out on a poker machine. Kujawa also knew of an investigation involving poker machines and gambling in an establishment known as the Rib House. He had been informed by the investigating officer in that case that the owner admitted paying out on poker machines. The circuit court admitted this testimony over plaintiff’s objection, for the purpose of “understanding] what the officials of the City of Burbank were confronted with when they passed the ordinance.” Kujawa further testified that it was difficult to catch a poker machine payoff because tavern owners were able to recognize police officers.

The parties stipulated to the following: (1) the sole purpose of the ordinance was to prevent gambling in liquor establishments, (2) the ordinance was not intended to control the consumption of alcoholic beverages, (3) the ordinance was not intended to control or affect juveniles, (4) plaintiff’s poker machines do not return prizes or money, (5) plaintiff’s poker machines involve the element of skill, (6) poker machines such as plaintiff’s are permitted in places that do not serve alcohol, (7) no ordinance prohibits patrons in licensed liquor establishments in Burbank from playing card games with a deck of cards, including poker and blackjack, providing the game is not for money, (8) Fitzgerald attempts to enforce the ordinance as against all poker machines located in taverns regardless of whether the machines return money or prizes or are equipped with reset buttons to erase accumulated points, and (9) no public hearing was held prior to the enactment of the ordinance.

At the close of the hearing, Gotsch moved for leave to add Kasper as a plaintiff. The court granted the motion and continued the hearing until January 25, 1990. On that date, an amended complaint was filed naming Kasper as an additional plaintiff.

On January 25, plaintiffs argued that their electronic video poker machines did not fall within the class of machines defined by the ordinance in that their machines were incapable of awarding prizes or money, could not be reset to erase accumulated points, and involved the element of skill. Plaintiffs also argued that the ordinance was unconstitutional.

After hearing the arguments of counsel, the circuit court found that plaintiffs’ poker machines were capable of awarding prizes. The court stated that “[t]he machine would not itself discharge money or prizes, but I think that a common sense reading of the ordinance is that the machine in connection with some person could award money or prizes depending on the function of the machine.” The court based its finding on the testimony of Officer Dillon, who, he said, “pointed out that such machines can be used to collect quarters from the bartender.” The court rejected plaintiffs’ constitutional challenges to the ordinance.

The circuit court denied plaintiffs’ petition for a preliminary injunction. The parties then stipulated that the evidence adduced at the hearing would be the same evidence at trial. Based on the stipulation, the court entered an order denying all relief sought in plaintiffs’ complaint and entered judgment in favor of defendants.

Plaintiffs filed two notices of appeal, captioned as Nos. 1— 90 — 340 and 1 — 90—341. Under the former, plaintiffs seek to invoke appellate jurisdiction under Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) through an interlocutory appeal. Upon the latter, plaintiffs seek to invoke jurisdiction under Supreme Court Rule 301 (107 Ill. 2d R. 301). Before proceeding to the merits of plaintiffs’ claims, we note that the court’s order of January 25, 1990, denies all relief requested in the complaint. Therefore, jurisdiction is conferred pursuant to Supreme Court Rule 301 based on the circuit court’s final order denying all relief.

Plaintiffs maintain that their electronic video poker machines are not within the class of machines covered by the ordinance. Defendants respond that plaintiffs’ machines are prohibited by the ordinance because it was intended to prohibit all video poker machines regardless of whether they are capable of awarding money or prizes. In the alternative, defendants argue that the ordinance was intended to prohibit any machine capable of awarding money or prizes through a third person.

“[I]t is well settled that when construing statutes this court must give effect to legislative intent.” (Gittleman v. Create, Inc. (1989), 189 Ill. App. 3d 199, 202, 545 N.E.2d 237, 239, citing Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 5, 424 N.E.2d 1239, 1242.) “ ‘In ascertaining legislative intent, the entire statute must be considered [citation] as well as giving effect to “the evil to be remedied and the object to be attained” [citation].’ ” (Gittleman, 189 Ill. App. 3d at 202, quoting Chastek v. Anderson (1981), 83 Ill. 2d 502, 511, 416 N.E.2d 229, 233.) Generally, “ ‘courts apply the same rules of construction to municipal ordinances as they do to statutes.’ ” (Weldon v. Hawkins (1989), 183 Ill. App. 3d 525, 533, 539 N.E.2d 229, 233, quoting Franberg, 99 Ill. App. 3d at 5.) In this case, the parties stipulated that the ordinance was intended to prevent gambling. Therefore, we broadly construe the language of the ordinance to give effect to its broad purpose.

Ordinance number 50 — 3—9—14—89 provides, in pertinent part, that “[i]t shall be unlawful for any licensee to have, locate or possess on the licensed premises a poker machine, card machine, or any game or similar machine or device capable of awarding prizes, including money.” (Burbank, Ill., Municipal Code ch. 3, §3 — 12(m) (1989).) Initially, we reject defendants’ arguments that the ordinance was intended to prohibit all poker machines irrespective of whether they are capable of awarding money or prizes. A fair construction of the ordinance does not, in our view, create a separate prohibition on poker machines. The language “poker machines” is not isolated from the qualifying language “capable of awarding prizes, including money.” Further, the parties stipulated that the ordinance was intended to prevent gambling. No evidence was offered to sustain the proposition that the ordinance was intended to create an ipso facto prohibition on all poker and card machines incapable of awarding prizes or money. Moreover, the circuit court did not construe the ordinance in the manner that defendants advance on appeal.

The parties stipulated that plaintiffs’ poker machines are incapable of awarding money or prizes in and of themselves and are dependent upon the skill of the player. We therefore consider whether plaintiffs’ machines are capable of awarding money or prizes through the intervention of some other person. Based on the record before us, we conclude that the evidence failed to establish that plaintiffs’ machines are capable of facilitating gambling through an agency.

The features of an electronic machine have been considered by several courts in determining whether it was a gambling device per se or was capable of facilitating gambling through an agency. As to the latter, two related, key features the courts have considered are the machine’s ability to keep a reliable point total and its ability to erase accumulated points after each player has played. (Yasin v. Byrne (1984), 121 Ill. App. 3d 167, 171, 459 N.E.2d 320, 323; White v. Ogilve (1964), 51 Ill. App. 2d 181, 184-85, 201 N.E.2d 122, 123-24; People v. One Machine Known as “Circus Days” (1960), 23 Ill. App. 2d 480, 483-84, 163 N.E.2d 223, 225-26.) In this case, plaintiffs demonstrated that their machines do not have a reset button to eliminate accumulated points. They further demonstrated that these points cannot be eliminated by turning the machine off. Dillon testified that he had never observed a payoff involving a poker machine that did not have the ability to erase accumulated points.

Clearly, no person would pay off on a machine’s accumulated points where those points cannot be erased after a payoff. An owner or employee would be required to continually monitor these machines, observe each person who inserts a coin, determine how many coins were inserted, and keep a running tabulation of the accumulated points throughout the hours of operation. Although testimony was offered to establish that payoffs were made on other machines located in Manhattan’s and the Rib House, those machines were not owned by Gotsch and no evidence was offered describing those machines or establishing any similarity to those owned by Gotsch.

Based on the foregoing, we conclude that the circuit court’s finding was against the manifest weight of the evidence and that plaintiffs’ machines fall outside the class of machines prohibited by the ordinance.

Plaintiffs also challenge the constitutionality of the ordinance; “however, a reviewing court will decide a constitutional question only where it is essential to disposition of the case.” (In re Application of County Collector of Kane County for Judgment for Delinquent Taxes for the Year 1985 (1988), 172 Ill. App. 3d 897, 902, 527 N.E.2d 141, 143.) We therefore need not consider the constitutional issues.

For the reasons stated, the judgment of the circuit court denying declaratory relief is reversed.

Reversed.

HARTMAN and SCARIANO, JJ., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN RAY HENRY, Defendant-Appellant.
    First District (3rd Division)
    No. 1— 86—2861
    Opinion filed September 19, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry and Kim A. Novi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, John Ray Henry, was charged by information with theft of a motor vehicle and possession of a stolen motor vehicle. After a bench trial, the trial judge found defendant guilty of both offenses. Defendant was sentenced to three years’ imprisonment on the possession offense, the theft offense having merged into that offense. He appeals.

The evidence at trial revealed that defendant took a 1979 Cadillac from the parking lot of a 7-11 store at 106th and Cicero in Oak Lawn, Illinois, on March 5, 1986. The owner of the car had left it with its engine running. Defendant was identified by the store cashier as the individual who entered the Cadillac and drove it away. After responding to the car owner’s call, Oak Lawn police officer James Martin broadcast a radio message regarding the theft.

Shortly thereafter, Hickory Hills police officer Jeffrey Jamraz, who was patrolling in the vicinity of 87th and Roberts Road, heard the message regarding the stolen Cadillac. Upon hearing the message, Officer Jamraz observed the Cadillac in a gas station and he parked behind it. The car pulled out of the gas station, and Jamraz stopped it about a block away. Upon approaching the car, Jamraz asked the driver, defendant, for his driver’s license. Defendant responded that he did not have it on him. Jamraz then asked defendant if the Cadillac were his. Defendant said it belonged to a friend. Jamraz asked defendant his friend’s name. After defendant failed to respond, Jamraz placed him under arrest. After reading defendant his rights, Jamraz asked him who the car belonged to and defendant stated he did not know. Jamraz then asked defendant where he got the car and defendant told him that he saw the car while walking down 106th and Cicero and decided to take it for a joyride.

I

On appeal, defendant first contends that the State failed to prove beyond a reasonable doubt that he intended to permanently deprive the Cadillac’s owner of its possession, a necessary element for both a theft and a possession of stolen motor vehicle conviction. Specifically, defendant cites the following as proving that, instead, he merely intended to take the car for a joyride: (1) his statement to Officer Jamraz to that effect; (2) the car had been left with its engine running; (3) he was stopped within 15 to 20 minutes of taking the car; and (4) the lack of any evidence that he obtained possession of the car forcibly, either by breaking into it or by using burglary tools to gain entry.

Defendant’s argument is meritless. Intent to permanently deprive may be inferred simply from the act of taking another’s property. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568.) That intent may also be inferred from the lack of any evidence of an intent to return the property or to leave it in a place where the owner could safely recover it. (People v. Eatherly (1979), 78 Ill. App. 3d 777, 397 N.E.2d 533.) In Eatherly, defendant abandoned the car in which he was allegedly joyriding when it became stuck in a swamp. Defendant, here, was forced to surrender possession and control of the car only upon being stopped by a police officer. Moreover, while an inference of an intent to permanently deprive may be rebutted by proof of an incompatible state of mind, the finder of fact is not required, in light of the totality of the circumstances shown by the evidence, to accept the defendant’s version of the facts. (See Heidorn, 114 Ill. App. 3d 933, 449 N.E.2d 568.) In this case, the totality of the circumstances supports defendant’s convictions.

The first fact in the totality of the circumstances which we believe tends' to indicate defendant’s intent to permanently deprive the Cadillac’s owner of the vehicle is the fact that he was arrested, as he concedes, just 15 to 20 minutes after he took the Cadillac near the intersection of 87th and Roberts Road. That intersection, according to the uncontradicted testimony of Officer Martin, is about seven to eight miles from 106th and Cicero. Another crucial fact in that totality tending to prove the requisite intent on defendant’s part is his act of driving away from the gas station when Officer Jamraz pulled in behind him. However, the most crucial facts therein relate to what defendant did once he was stopped by the officer. Defendant first told the officer that he did not have his driver’s license when, in fact, it had been suspended. Defendant then told the officer that the car belonged to a friend and stood mute when asked his friend’s name. After being placed under arrest, defendant told the officer he did not know to whom the car belonged. This last statement was undoubtedly true. Moreover, defendant had a right, at this point, to refuse to answer any of the officer’s questions. However, having decided to answer the officer, defendant took the risk that the inference permissible from this half-truth, viz., that he intended to permanently deprive the car’s owner of it, could be used against him in a court of law. Cf People v. Price (1967), 81 Ill. App. 2d Ill, 225 N.E.2d 453 (intent to permanently deprive automobile’s owner thereof was proved where defendant, when arrested, claimed he was owner of car, produced a sales contract containing owner’s name and claimed he had borrowed the car from him but, at trial, denied any knowledge of the car and where car was found many miles from where the owner had parked it four days before).

Moreover, we find unavailing the facts or nonfacts upon which defendant relies in support of a finding of mere joyriding. None of those facts or nonfacts, except for defendant’s statement to Officer Jamraz that he was joyriding, are incompatible with the offenses of which he was convicted. As to defendant’s statement to Officer Jamraz, we have already noted that a finder of fact is not required to accept a defendant’s version of the facts.

The only case law upon which defendant relies is People v. Woods (1974), 17 Ill. App. 3d 835, 308 N.E.2d 856. Woods, which involved a defendant who pleaded guilty to the offense of theft of an automobile, dealt, in pertinent part, with whether the trial court had complied with Supreme Court Rule 402(c). (107 Ill. 2d R. 402.) This rule requires a trial court to determine that there is a factual basis for a guilty plea before accepting the plea. In deciding the issue, the appellate court noted that when the trial court had sought to determine whether the defendant understood the nature of the charge against him, the defendant had stated that he and his friends were going joyriding on the night of the offense. The court reasoned that the defendant’s use of the term “joyriding” suggested that the intent element of the offense of theft did not exist. The court thus concluded that, because the trial court had relied entirely upon the defendant’s statement to establish a factual basis for his guilty plea, it had not complied with rule 402(c). Woods, 17 Ill. App. 3d at 837-38.

Woods is clearly distinguishable from this case. As the Woods court noted, joyriding is to be treated as criminal trespass to vehicles rather than theft. However, in this case, unlike Woods, the defendant’s statement to Officer Jamraz was not the only evidence of intent before the court. It cannot be said that here, as in Woods, the only conclusion permissible from the evidence before the trial court on that issue was that defendant was merely borrowing the Cadillac rather than intending to permanently deprive its owner of it.

II

Next, defendant contends that the trial court erred in sentencing him under the Unified Code of Corrections and in denying him a substance abuse evaluation as provided for in the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1985, ch. 111½, par. 6302 et seq.), after being advised of his chronic drug use and prior drug overdose.

Section 4.1 of the Act defines an addict as a “person who habitually uses any drug, chemical, substance or dangerous drug other than alcohol so as to endanger public morals, health, safety or welfare or who is so far addicted to the use of a dangerous drug or controlled substance other than alcohol as to have lost the power of self control with reference to his addiction.” Ill. Rev. Stat. 1985, ch. 111½, par. 6304.1.

Section 21 provides that an addict charged with or convicted of a crime is eligible to elect treatment under the supervision of certain drug abuse programs instead of prosecution or probation. The addict may elect treatment unless the crime with which the defendant is charged, or of which he stands convicted, or his prior criminal history meet certain criteria, or unless he had previously been admitted to treatment under the Act. Ill. Rev. Stat. 1985, ch. 111½, par. 6321.

Section 23 provides that, if a court has reason to believe that a defendant convicted of a crime is an addict or if he states that he is an addict, and the court finds that he is eligible to make the election provided for under section 21, the court “shall” advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a drug abuse program. Section 23 further provides that, if the defendant elects to undergo treatment or is certified for treatment, the court “shall” order an examination by a drug abuse program to determine whether he is an addict and is likely to be rehabilitated through treatment. Ill. Rev. Stat. 1985, ch. 111½, par. 6323.

Section 23 further provides that, after such an examination and a recommendation of whether the defendant should be placed on probation and supervision for treatment, the court, if it determines that the defendant is an addict and is likely to be rehabilitated through treatment, “shall” place the defendant on probation and under the supervision of the drug abuse program. However, the court may deny such a disposition if, having regard to the nature and circumstance of the offense, and the history, character and condition of the defendant, it is of the opinion that his addiction and the crime committed are not significantly related or that his imprisonment is necessary for the protection of the public. In the latter case, the court must specify on the record the particular evidence, information or other reasons that led to that opinion. In that case, or if the court finds, ab initio, that defendant is either not an addict or likely to be rehabilitated, it is to pronounce sentence as in all other cases. Ill. Rev. Stat. 1985, ch. 111½, par. 6323.

At defendant’s sentencing, his attorney stated to the trial court that he was concerned with the fact that defendant had a drug overdose in 1985. He further stated that, although defendant had been in custody since the time of his arrest, defendant still felt that he had “a dependency on drugs.” For those reasons, defense counsel requested the court to order an evaluation of defendant to determine if he was an addict and, thus, his eligibility for treatment in a drug abuse program as provided for under the Act.

In response, the trial court initially stated its belief that defendant was not “eligible” for the sentencing alternative provided under the Act. In expressing that belief, the trial court did not clarify whether it was referring to defendant’s eligibility for drug abuse treatment in terms of being an addict or in terms of meeting the eligibility criteria of section 21 of the Act, even if he was an addict. However, the trial court’s subsequent concession that defendant “may be eligible” and its reference to the fact that defendant was charged with a Class 2 felony and had not been previously admitted to treatment make it clear that it was referring to defendant’s eligibility in the latter sense.

After conceding that defendant “may be eligible” for drug abuse treatment and referring to the facts above noted, the court nevertheless concluded:

“But I don’t see any — I don’t see putting him on probation [for drug abuse treatment]. I think he can obtain the same treatment through the *** Department of Corrections, maybe even better because he wouldn’t be subject to temptation while he was out. So I’m not going to consider that.”

In defending the denial of an evaluation under the Act, the State asserts that the trial court, being cognizant of the Act and having considered it in sentencing defendant, properly exercised its discretion in sentencing him to a term of imprisonment absent any affirmative evidence that he was an addict. In so doing, the State concedes defendant’s assertion, prior to sentencing, of a prior drug overdose and a drug dependency and a statement in the presentencing report that he used Valium, cocaine and PCP from 1976 to the date of his arrest but notes that he admitted not having sought treatment while in jail on the offense charged and denied a current use of drugs in the presentencing report. The State asserts that the former assertions of defendant were self-serving statements and thus insufficient to prove him an addict. It further asserts that the latter denial by defendant clearly demonstrated that he was not an addict.

Initially, we cannot agree with the State that the trial court’s denial of an evaluation under the Act was the result of a proper exercise of discretion. Putting aside, for the moment, our beliefs that the Act does not require “affirmative” evidence of addiction and that a trial court has no discretion to exercise in deciding whether to grant an evaluation if the statutory prerequisites therefor are met, we believe that the questions whether defendant adduced such evidence and whether the court properly exercised its discretion in ruling upon a request for an evaluation under the Act are separate and unrelated. That is, we do not believe that a denial of an evaluation under the Act is defensible as a proper exercise of discretion simply because the defendant failed to present affirmative evidence of addiction. Rather, we believe that, regardless of the amount and quality of evidence presented in support of an evaluation request, a trial court would properly exercise its discretion in denying such a request only where it actually considered that evidence before doing so. Where it does not even consider the evidence in denying an evaluation request, we do not believe it can be held to have properly exercised whatever discretion it had with respect thereto simply because there was insufficient evidence of addiction.

More importantly, however, we disagree with the State that a trial court has any discretion in deciding whether to grant an evaluation under the Act where the statutory prerequisites therefor have been met, i.e., where a defendant has stated that he is an addict or the trial court is given reason to believe that is the case. Thus, we must determine whether defendant stated that he was an addict or whether the court otherwise had reason to believe that he was an addict, even if the trial court did not reach those questions. People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961.

As we noted above, in requesting an evaluation under the Act, defendant’s counsel expressed his concern with the fact that defendant had a drug overdose in 1985. He also stated that although defendant had been in custody since the time of his arrest, defendant still felt that he had “a dependency on drugs.” Additionally, defendant’s presentence report stated that he admitted using Valium, cocaine and POP from 1976 to the date of his arrest. We believe that this evidence was sufficient to have given the trial court reason to believe that defendant was an addict and, thus, to have required it to grant defendant an evaluation under the Act whether or not it constituted “affirmative” evidence of addiction. People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, which we discuss below, is dis-positive of this issue.

In so concluding, we find no support for the State’s position in the case law which it cites. As a general matter, we find all but two of those cases distinguishable on the ground that they were decided under the pre-1979 version of section 10 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 911/2, par. 120.10). That statute and section were the predecessors of the Act and section 23 thereof, respectively. Prior to 1979, section 10 of the Dangerous Drug Abuse Act merely provided that, where a defendant stated that he was an addict or the court had reason to believe that he was an addict, it “may” advise him of the drug-treatment option. (Ill. Rev. Stat. 1977, ch. 9172, par. 120.10.) Before 1979, the Dangerous Drug Abuse Act, unlike the Act, thus allowed a trial court to exercise its discretion in deciding whether to allow a defendant to elect evaluation and treatment, even where he had stated that he was an addict or it had reason to believe he was an addict. Concomitantly, it allowed the State to defend a denial of an evaluation as a proper exercise of discretion even where that was the case. (See, e.g., People v. Warren (1977), 69 Ill. 2d 620, 373 N.E.2d 10; People v. Braje (1985), 130 Ill. App. 3d 1054, 474 N.E.2d 1364; People v. Rentas (1980), 83 Ill. App. 3d 543, 404 N.E.2d 479; People v. Miller (1976), 43 Ill. App. 3d 290, 356 N.E.2d 1345.) Given the mandatory language of the Act after 1979, however, a denial of an evaluation cannot be so defended where the requirements to invoke a trial court’s duty to advise a defendant of his right to elect treatment have been met. (See People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.) That is the case here.

Moreover, we also reject the State’s related argument, in reliance upon the same case law, that a defendant’s self-serving statement that he is an addict is insufficient to prove him an addict. (People v. Knowles (1977), 48 Ill. App. 3d 296, 362 N.E.2d 1087; People v. Miller. (1976), 43 Ill. App. 3d 290, 356 N.E.2d 1345; People v. Belleville (1974), 20 Ill. App. 3d 1088, 314 N.E.2d 35.) The foregoing cases, in so holding, ignore the plain and unambiguous language of the Act to the effect that all that is required to raise a trial court’s duty to advise a defendant of his right to elect treatment thereunder is that he state that he is an addict or that it have reason to believe that he is an addict. Rather than the foregoing cases, we believe that this court’s opinion in People v. Beasley (1982), 109 Ill. App. 3d 446, 440 N.E.2d 961, provides the better-reasoned rule of decision in cases such as this.

In Beasley, this court reasoned, in addressing the same issue raised by defendant here, that:

“We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation and treatment possibilities under the Act, and believe that consistent with this statutory scheme little should be required to give a court reason to believe defendant is an addict. Here Banks testified under oath that he was 23 years old. While in high school he used marijuana. He had used heroin, cocaine, and ‘tees and blues’ with regularity until his incarceration. This testimony was sufficient to give the court reason to believe Banks was an addict, to require the court to inform him of his election rights under the Act, and to order his examination *** if he so elected.” (Beasley, 109 Ill. App. 3d at 454.)

This court thus found error in the trial court’s denial of an evaluation on the basis of its finding that, in view of certain statements by the defendant concerning his subsequent abstention from drugs, it could be inferred that he was not an addict. We held that the Dangerous Drug Abuse Act required that the expertise of the Department of Mental Health, the body then charged with making evaluations under the Dangerous Drug Abuse Act, be employed in making such a finding. Beasley, 109 Ill. App. 3d at 454.

From Beasley, we conclude that, notwithstanding their self-serving nature, a trial court must consider a defendant’s statements which, while not affirmative statements that he is an addict, are tantamount thereto, in determining whether there is reason to believe that that is the case. (See also People v. Melson (1976), 36 Ill. App. 3d 71, 343 N.E.2d 258 (defendant contended that the trial court had reason to believe that he was an addict and appellate court found that the presentence report disclosed a reason to believe that defendant was an addict and contained what were, in effect, statements by defendant that he was an addict).) Applying the rationale of Beasley and Melson here, the record conclusively reveals that the trial court ignored defendant’s statements to the effect that he was an addict or in simply failing to make that determination. This was error.

We also reject the State’s defense of the denial of an evaluation under the Act on the basis of defendant’s denial in the presentence report of a “current” use of drugs. In view of the other indications in the record of defendant’s possible addiction to drugs, his denial of a current use of drugs was insufficient to support a finding that there was no reason to believe that defendant was an addict. (See People v. Miller (1976), 43 Ill. App. 3d 290, 356 N.E.2d 1345.) Moreover, in so arguing, the State ignores the fact that defendant had been incarcerated from the date of his arrest to the date of his sentencing. We do not believe that a defendant’s inability to obtain and use drugs due to his incarceration has any bearing on whether there is reason to believe, given his drug-related conduct prior thereto, that he is an addict. The fact that an incarcerated defendant does not use drugs during his incarceration should not be used against him in determining whether he is entitled to an evaluation under the Act.

Finally, we reject the State’s argument that, even assuming defendant sufficiently proved he was an addict, the trial court properly denied him an evaluation based on the factors established in section 23 of the Act, which allow a court to deny a defendant the drug-treatment option. Specifically, the State argues that as provided in section 23, the trial court was aware of defendant’s criminal history, viz., a prior conviction for burglary, and that defendant’s alleged addiction was not significantly related to the crime charged. In so arguing, the State ignores the fact that the trial court, if it relied upon those factors to deny defendant an evaluation, failed to state on the record the particular evidence, information or other reasons for reaching the latter conclusion, as required under section 23 of the Act. More importantly, however, the State also ignores that the factors provided in section 23 become relevant only after examination of a defendant by a drug abuse program and a finding that he is an addict and likely to be rehabilitated through treatment. (Ill. Rev. Stat. 1985, ch. HV-k, par 6323.) As such, we do not believe that they can be ■ properly relied upon to justify the denial of an evaluation under the Act in the first instance.

In conclusion, we find that the trial court had sufficient reason to believe that defendant was an addict and was thus required to order an evaluation of defendant under the Act, given his obvious attempt to elect that option. The court’s failure to order an evaluation, whether based on its failure to find sufficient reason to believe defendant was an addict or its failure to even reach that question, was error and not sustainable as a proper exercise of discretion. Therefore, we vacate defendant’s sentence and remand for resentencing.

For all of the reasons stated herein, we affirm defendant’s conviction, vacate his sentence of imprisonment and remand for a new sentencing hearing consistent herewith.

Conviction affirmed; sentence vacated and cause remanded.

RIZZI and WHITE, JJ., concur.

      This court previously reversed defendant’s conviction under Supreme Court Rule 23 (107 Ill. 2d R. 23) solely on the basis of the unconstitutionality of the possession of stolen motor vehicle statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1). That judgment was reversed by the supreme court’s reversal of the judgment in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1228. On remandment, we now address the remaining issues raised by defendant.

      It is unclear from this statement whether the trial court found no reason to believe that defendant was an addict and thus ineligible to elect treatment for drug abuse, notwithstanding that he was otherwise eligible under section 21 of the Act, or whether it simply failed to determine whether such reason did or did not exist. Regardless of this ambiguity in the record, it is the ultimate denial of an evaluation under the Act which is before us.

      In this regard, we disagree with the two remaining cases cited by the State, People v. Rohman (1983), 117 Ill. App. 3d 55, 452 N.E.2d 898, and People v. Braje (1985), 130 Ill. App. 3d 1054, 474 N.E.2d 1364, to the extent that, although they were decided after the above-noted amendment of section 10 of the Dangerous Drug Abuse Act, they nonetheless phrased the trial court’s duty to advise a defendant of his right to elect treatment thereunder in terms of “discretion.” (Rohman, 117 Ill. App. 3d at 58; Braje, 130 Ill. App. 3d at 1060.) The error of the Rohman and Braje courts in so doing is traceable to the reliance of the court in Rohman, which the Braje court cited, upon People v. Melson (1976), 36 Ill. App. 3d 71, 343 N.E.2d 258, which was decided when trial courts still had discretion in that regard under the Dangerous Drug Abuse Act.

      In so arguing, the State concedes too much. Neither defendant nor his counsel affirmatively stated at his sentencing hearing that he was an addict nor does defendant contend on appeal that he did so. The trial court’s denial of an evaluation under the Act is thus not assailable on that ground. However, the question remains whether defendant’s arguably self-serving statements concerning his drug abuse, nonetheless, gave the court reason to believe that he was an addict. It is in relation to that issue that we will evaluate the State’s “self-serving” statement argument.