author: JUSTICE GOLDENHERSH JUSTICE CHAPMAN,

text:
      In re MARRIAGE OF BARBARA ANN HARDY, Petitioner-Appellant, and BOBBY JOE HARDY, Respondent-Appellee.
    Fifth District
    No. 5—87—0060
    Opinion filed December 15, 1989.

      CHAPMAN, J., dissenting.
    Thomas E. Hildebrand, Jr., of Brandt, Slate & Hildebrand, of Granite City, for appellant.
    Terry L. Peebles, of Cahokia, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On July 1, 1981, the St. Clair County circuit court dissolved the parties’ marriage. The court ordered respondent, Bobby Joe Hardy, to pay child support for each of his minor children at $70 per week per child. In addition, the court ordered that in the event respondent received any increase in income, he must pay 35% of any said increase to petitioner, Barbara Ann Hardy, as child support. Respondent must also pay any and all medical expenses incurred by the children. On June 11, 1986, petitioner filed a petition for citation of contempt of court against respondent for failing to pay child support and unreimbursed medical expenses. Petitioner also requested the court award attorney fees and costs. On July 18, 1986, respondent filed a petition to modify child support payments, requesting a decrease in respondent’s monthly support payment.

The circuit court held a consolidated hearing on the petitions. The court’s order of August 28, 1986, found respondent in arrears on child support in the amount of $15,500, and medical expenses in the amount of $700, and issued a judgment in favor of petitioner against respondent. The court also entered judgment against respondent in the amount of $400 for attorney fees incurred by petitioner in pursuing said citation for contempt. The court further ordered:

“4) That due to Bobby Joe Hardy’s economic condition and substantial change in circumstances execution is stayed on the child support arrearages and the unreimbursed medical expenses until further order of the Court;
5) That due to a substantial change in circumstances as of September 1, 1986 Bobby Joe Hardy shall pay the sum of $600.00 per month, nondivisible and nonallocated child support, said amount to be paid in equal installments of $300.00 bimonthly through the Clerk of the Circuit Court of St. Clair County;
6) That during the month of September, 1987 this Court shall review this order in regards to child support payments and liquidation of the arrearages as heretofore entered.”

Petitioner contends on appeal that the trial court erred in several respects:

“(1) in refusing to find respondent in contempt for failure to pay past due support.
(2) in reducing child support payments.
(3) in staying execution of the attorneys fees, child support and unreimbursed medical expenses.”

With regard to the first contention, whether a party is guilty of contempt is a question of fact for the trial court. A reviewing court will not disturb the finding unless It is against the manifest weight of the evidence or the record reflects an abuse of discretion. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 286-87, 469 N.E.2d 167, 176; In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 615, 501 N.E.2d 1015, 1019.) In this case, the undisputed evidence that respondent was in arrears in his child support payments in the amount of $15,500 and medical expenses of $700 is a prima facie showing of contempt. The burden then shifted to respondent to show that his failure to pay was not wilful or contumacious, but due entirely to his inability to pay. (In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 817, 534 N.E.2d 1356, 1362-63; In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 1018, 481 N.E.2d 1095, 1097; In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 420, 464 N.E.2d 795, 807.) Respondent can meet his burden only through a showing of definite and explicit evidence. (In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 615, 501 N.E.2d 1015, 1020.) Testimony of a general, indefinite nature with regard to financial status does not meet this burden. Where a party seeks to show that the failure to pay is due to inability, the party must show, with reasonable certainty, the amount of money he has received since the order was issued. He must then show that the money was disbursed in the payment of expenses which, under the law, he should pay before making any payment on the decree. (Houston, 150 Ill. App. 3d 608, 501 N.E.2d 1015; In re Marriage of Ramos (1984), 126 Ill. App. 3d 391, 398, 466 N.E.2d 1016, 1022.) Respondent testified that he used a portion of his earnings to pay the children's medical bills, and also a substantial tax liability which he incurred while self-employed. Copies of respondent’s tax returns admitted into evidence at the hearing in the circuit court showed respondent’s adjusted gross income for each of the five years since his divorce as follows:

1981— $28,417
1982— $31,884
1983— $29,272
1984— $19,439
1985— $31,192

Respondent testified that his projected adjusted gross income for 1986 was $37,066.

The record further shows that due to an employment layoff in 1983, respondent was paying self-employment tax to the Internal Revenue Service in the amount of $301 per month to satisfy a tax liability of $9,860 which he had incurred. Respondent willingly admitted his child support obligation in open court, and showed that he was indebted to the Internal Revenue Service and petitioner. In addition, the circuit court had available to it, as per local rules, an affidavit of assets and liabilities of both petitioner and respondent.

The trial court must review the peculiar facts of each case to determine whether the conduct complained of is contemptuous. An appellate court will reverse the decision of the circuit court only if that court’s judgment is against the manifest weight of the evidence. (Hilkovitch, 124 Ill. App. 3d at 420, 464 N.E.2d at 807; Houston, 150 Ill. App. 3d at 615, 501 N.E.2d at 1019.) As a defense to a contempt action, the respondent need show simply that his failure to comply with the order was not a wilful or contumacious refusal to pay. (Ellingwood v. Ellingwood (1975), 25 Ill. App. 3d 587, 593, 323 N.E.2d 571, 576.) Although reasonable minds can differ, taking into consideration the matters sworn to in the affidavit of the assets and liabilities of respondent, along with the other evidence presented at the hearing, we hold that the trial court did not err in finding that respondent’s failure to pay was not wilful or contumacious. The trial court did not abuse its discretion.

Secondly, petitioner argues that the trial court erred in reducing the amount of child support respondent must pay. Section 510(a) of the Marriage and Dissolution of Marriage Act (the Act) provides in pertinent part:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial
change in circumstances.” Ill. Rev. Stat. 1987, ch. 40, par. 510(a).

The circuit court’s findings as to the modification of the child support rest in the sound discretion of the court and a reviewing court will not interfere with the exercise of such discretion in the absence of its abuse. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) Illinois cases have held that economic reversals as a result of changes in employment or bad investments, if made in good faith, may constitute a material change in circumstances sufficient to warrant a modification of a child support order. In re Marriage of Eisenstein (1988), 172 Ill. App. 3d 264, 270, 526 N.E.2d 496, 500; Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790.

In determining whether a change in status was made in good faith, the crucial consideration is whether the change was prompted by a desire to evade financial responsibility for supporting the children or otherwise jeopardize their interests. (Coons, 93 Ill. App. 3d at 132, 416 N.E.2d at 790; In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 47, 400 N.E.2d 995, 997.) Certainly this court cannot find that an employment layoff and an attempt to become self-employed are attempts to evade financial responsibility. The circuit court is in a much better position to make a finding on such matter. In view of the circumstances noted above, it is apparent that the circuit court’s decision was not against the manifest weight of the evidence and we will not interfere with the exercise of its discretion. Logston, 103 Ill. 2d 266, 469 N.E.2d 167.

As for staying execution of child support and unreimbursed medical expenses, past-due installments are a vested right and the court has no authority to modify them. In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 914, 483 N.E.2d 692, 698; In re Marriage of Burrows (1984), 126 Ill. App. 3d 752, 757, 467 N.E.2d 987, 991; In re Marriage of Williams (1983), 115 Ill. App. 3d 55, 57, 450 N.E.2d 34, 35.

A substantial number of cases extend the rule noted above. These cases hold the expectation of past-due installments a vested right and the trial court without authority to modify them either as to amount or time of payment. (Jones v. Meade (1984), 126 Ill. App. 3d 897, 902, 467 N.E.2d 657, 661; Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 958, 447 N.E.2d 1345, 1348; In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1050, 425 N.E.2d 442, 447; Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 821, 408 N.E.2d 752, 757; Schmitt v. Woods (1979), 73 Ill. App. 3d 498, 500, 392 N.E.2d 55, 56.) When these cases say that the trial court cannot modify the “time” of payment, they are not ordering the debtor to pay in full immediately. The courts are saying that the date is set and vested for four separate functions. Each support or maintenance payment is vested on the date it becomes due, this date becoming the default/vesting date. The default/vesting date is important for (1) calculating the total arrearage, (2) calculating the interest owed, if any (see Finley v. Finley (1980), 81 Ill. 2d 317, 331-32, 410 N.E.2d 12, 19), (3) an indicator or factor in determining whether the conduct was wilful or contumacious, and (4) calculating attorney fees under section 508 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 508). In the instant case, the circuit court did not modify either the amount of past-due support installments or the date upon which they vested. Its order dealt with the discharge procedure of the previously vested obligations.

In Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12, 19, the supreme court held that dissolution proceedings are substantially similar in nature to a chancery proceeding, and, as such, are governed by the rules of chancery. The court stated:

“In a chancery proceeding, the allowance of interest lies within the sound discretion of the trial judge and is allowed where warranted by equitable considerations and is disallowed if such an award would not comport with justice and equity. [Citations.] As stated in Groome [v. Freyn Engineering Co. (1940), 374 Ill. 113, 131, 28 N.E.2d 274, 283], ‘In a proper case, equitable considerations permit a court of equity to allow or disallow interest as the equities of the case may demand.’ (374 Ill. 113, 131.) We therefore conclude that the allowance of interest on past-due periodic support payments is not mandatory as contended by the plaintiff, but lies within the sound discretion of the trial judge, whose determination will not be set aside absent an abuse of that discretion.” (Finley, 81 Ill. 2d at 332, 410 N.E.2d at 19.)

As the allowance of interest lies within the sound discretion of the trial judge, so, too, does the discharge procedure of vested support payments. The setting of this procedure, as in the awarding of interest, is governed by equitable considerations of chancery. There is no indication in the record that the circuit court intended to alter or reduce the arrearage in question. The circuit court’s concern was with the manner of discharging voluminous obligations, not the vacation of any vested right. We therefore conclude that the setting of a procedure for discharging vested support and maintenance payments which are in arrears lies within the sound discretion of the trial judge. We will not set aside his discharge procedure absent an abuse of that discretion. In reviewing the record, we cannot say that the circuit court abused that discretion.

As to attorney fees, the Act provides for an award of fees under certain conditions (Ill. Rev. Stat. 1987, ch. 40, par. 508). Neither side contests the award of attorney fees, just the stay. Petitioner concedes that the stay is within the court’s discretion under its general equity powers. As noted above, the determination of the equities of discharge of obligations is within the province of the circuit court. This court will not invade that province without a showing of a clear abuse of discretion.

In light of the record before the court, the rulings of the circuit court were essentially discretionary. Although reasonable minds can differ on any given decision in what is perhaps the harshest and most problematic area of the law, the reconciliation of irreconcilable problems in domestic relations, the trial court did not abuse its discretion.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK, J., concurs.

JUSTICE CHAPMAN,

dissenting:

The factual matters and the general principles of law set forth in the majority opinion are accurate, but the conclusions drawn are, in my judgment, incorrect.

With regard to the requested contempt finding, the evidence clearly established that respondent was over $15,000 in arrears in child support over an approximate five-year period. During that same period respondent’s income was certainly sufficient to meet his support obligations. Indeed, his only excuse for not meeting them was the fact that he had incurred a Federal tax obligation during a time period that he was self-employed. This is not the type of extreme misfortune which justifies a nonpayment of child support (Betts v. Betts (1987), 155 Ill. App. 3d 85, 507 N.E.2d 912), and even if it were, the record does not show that respondent has significantly reduced the tax obligation with the funds he has withheld from his children.

The majority’s reference to an affidavit of assets and liabilities to justify respondent’s conduct is not persuasive. The affidavit of Bobby Joe Hardy shows he has an average monthly salary of $1,037. His estimated monthly expenses total $1,033, which does not include any expenses incurred on behalf of his children. Mr. Hardy estimates the expenses he incurs on behalf of his children to equal $751 per month. It is not clear from the affidavit whether these expenses are for the children of his marriage to Barbara Hardy or to his present wife. Barbara Hardy’s purported monthly salary as shown by her affidavit is $866. She declares that the average monthly expenses incurred by her and her children for which she is responsible total $1,556.

Considering Bobby Joe Hardy’s asset-to-liability ratio is $1,037/ $1,032, and Barbara Hardy’s asset-to-liability ratio is $866/$!,556, it is clearly evident that Barbara Hardy’s liabilities greatly exceed Bobby Joe Hardy’s liabilities, and that reliance on the affidavits as justification for Bobby Joe Hardy’s conduct is not well-founded.

Turning to the issue of the reduction in child support ordered by the trial court, respondent argues that petitioner’s earnings had increased since the divorce, while his earnings had decreased. Such an argument has little merit where although petitioner’s earnings had in fact increased since the divorce, her five-year average earnings since the divorce equalled only $10,800, whereas respondent’s five-year average earnings equalled $28,050. In comparison, petitioner’s gross wage in 1981, the year the initial order of support was entered, was $4,483, as compared to her earnings of $13,421 in 1985. Respondent’s gross wage in 1981 was $28,417 as compared to his earnings of $31,192 in 1985. It was only in 1984 that respondent’s income fell below the amount he was earning the year of the divorce. In fact, respondent’s average income based on earnings received in 1981 through 1985 and respondent’s projected earnings of 1986 total $29,545. This amount exceeds respondent’s 1981 income on which the trial court relied in entering the initial order of support.

The only showing respondent made of diminished resources with which to pay the child support was the tax liability due the Internal Revenue Service. The record shows that the tax liability was incurred due to his failure to withhold while he was self-employed. The record also reveals that respondent has remarried and that of that marriage, a physically impaired son was born so that respondent has incurred additional medical expenses. The remarriage of respondent and a child by the second marriage do not present, in and of themselves, a change of conditions sufficient to warrant a modification. Although the effect may be to deprive a second wife of support, from a legal standpoint the first obligations must be met before the second obligations can or will be considered. (Gregory v. Gregory (1964), 52 Ill. App. 2d 262, 268, 202 N.E.2d 139, 143; Roqueplot v. Roqueplot (1980), 88 Ill. App. 3d 59, 63, 410 N.E.2d 441, 445.) The record does not show evidence of default or missed payments on respondent’s other debts or obligations; thus, I infer that respondent was current on his other debts.

I conclude that in view of the evidence the only change in circumstances was an increase in ability to pay which could never warrant a reduction in child support. It is not necessary for me to reach the issue whether the trial court erred in ordering a stay, since I find that the trial court’s conclusion was against the manifest weight of the evidence. I would reverse the decision of the trial court.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    URDUJA B. PULIDO, Plaintiff-Appellant, v. ST. JOSEPH MEMORIAL HOSPITAL, Defendant-Appellee.
    Fifth District
    No. 5—88—0470
    Opinion filed December 15, 1989.

      Norma J. Beedle, of Beedle & Isaacs, of Carbondale, for appellant.
    William G. Ridgeway, of Ridgeway, McMeen & Miller, of Murphysboro, and Gary Mayes and Conny Davinroy Beatty, both of Thompson & Mitchell, of St. Louis, Missouri, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This action was brought by appellant, Dr. Urduja B. Pulido, M.D. (hereinafter doctor), against appellee, St. Joseph Memorial Hospital in Murphysboro, Illinois (hereinafter hospital), after hospital summarily suspended doctor’s privileges to practice at hospital. In her complaint, filed March 21, 1988, doctor alleges that hospital breached the contract of employment between the parties when it summarily suspended doctor’s privileges without complying with the medical staff bylaws of the hospital, which were incorporated into the contract of employment. Doctor’s complaint seeks reinstatement of her hospital privileges, money damages for lost income and “any other appropriate relief.”

On May 20, 1988, hospital filed a motion for summary judgment or, in the alternative, a motion to strike doctor’s prayer for monetary relief and doctor’s jury demand. In its supporting memorandum of law, hospital argues that it is immune from money damages pursuant to section 10.2 of the Hospital Licensing Act (Ill. Rev. Stat. 1987, ch. 111½, par. 151.2), that doctor’s action lies in equity rather than law and therefore she is not entitled to trial by jury, and that hospital complied with its bylaws in summarily suspending doctor’s privileges.

By order dated July 5, 1988, the circuit court of Jackson County granted hospital’s motion for summary judgment, finding that it had jurisdiction over the subject matter and the parties, that no genuine issue as to any material fact exists, that hospital is entitled to judgment as a matter of law, and that hospital complied with its bylaws in summarily suspending doctor from its medical staff. Doctor appeals. We affirm.

The facts do not appear to be in dispute. The medical staff bylaws provide for two different methods of suspending a doctor’s privileges. The first, a nonsummary procedure, provides that whenever the activity or conduct of a doctor is considered to be deficient, corrective action may be requested by certain designated representatives of the hospital or its medical staff. When such a request for corrective action is received, the chief of staff must immediately appoint an ad hoc committee to investigate the matter. The ad hoc committee reports to the executive committee on the results of its investigation. As part of its investigation, the ad hoc committee must allow the doctor under investigation to appear before the committee to refute or explain the charges.

After receiving the report of the ad hoc committee, the executive committee must act on the request for corrective action. Again, before any action is taken, the doctor must be allowed to appear before the executive committee. Any recommendation by the executive committee for suspension of privileges entitles the doctor to the procedural rights provided in article VIII of the bylaws.

With respect to a summary suspension, the bylaws provide that certain representatives of the hospital or its medical staff may, whenever such action must be taken immediately in the best interest of patient care in the hospital, summarily suspend the privileges of a doctor. Such a doctor may request the executive committee to hold a hearing on the matter in accordance with article VIII of the bylaws. The executive committee may recommend modification, continuance or termination of the summary suspension. If an adverse recommendation is made, the doctor is entitled to request appellate review by the governing body in accordance with article VIII.

Article VIII provides that when any doctor receives notice of a recommendation of the executive committee which, if ratified by the board of trustees, will adversely affect his status on the medical staff, that doctor is entitled to a hearing before an ad hoc committee of the medical staff. If, after that hearing, the recommendation of the executive committee is still adverse, the doctor is entitled to an appellate review before the board of trustees.

Article VIII also provides certain other procedural rules. It provides that within seven days after receipt of a request for hearing from a doctor, the executive committee must serve the doctor with a notice of hearing which states in concise language the acts or omissions with which the doctor is charged, a list of specific or representative charts being questioned, and/or any other reason or subject matter that was considered in making the adverse recommendation or decision. Article VIII also provides that where a hearing is held before an ad hoe committee, no staff member who actively participated in the consideration of the adverse recommendation may be a member of the ad hoc committee unless it is impossible to select a representative group due to the size of the medical staff.

The procedures followed in the instant case are as follows. On February 25, 1986, a special meeting of the executive committee of the hospital medical staff was held to discuss specific disciplinary action and the process of addressing problems associated with a suspected impaired physician. The committee agreed to temporarily suspend the suspected doctor’s privileges with offer of a treatment plan, and, if the treatment plan was refused, impose a permanent suspension.

At the regular meeting of the executive committee, held March 11, 1986, it was decided that the doctor in question would be contacted by letter and phone to set up a meeting with a consultant expert on substance abuse and physician impairment. The doctor’s privileges would be temporarily suspended and a treatment plan offered. If the treatment plan was refused, the doctor’s privileges would be permanently suspended.

By letter dated March 17, 1986, doctor was notified that the executive committee felt that it had sufficient evidence to indicate some type of impairment on the part of the doctor, resulting in activities that were lower than the standards and aims of the medical staff and that pose potential harm to patients. Doctor was requested to attend a meeting to discuss the specifics of any disciplinary action to be taken. That meeting was apparently held March 28, 1986. By letter dated April 11, 1986, doctor was informed that, since the hospital had not heard from doctor, it was assumed that she had decided not to accept a treatment plan. “On a decision by the Executive Committee of the Medical Staff, ratified by the Board of Trustees, we hereby advise you of summary permanent suspension of your privileges at *** Hospital.” The suspension was to take effect April 15, 1986, at 7 a.m. This letter was sent by Sister Cunegunda Mueller, chief executive officer of hospital.

By letter dated April 15, 1986, and through her attorney, doctor objected to the summary suspension on the basis that immediate summary action had not been necessary. The letter requested that the hospital remove the summary suspension and proceed with the non-summary procedures. The letter also requested a hearing before an ad hoc committee of the medical staff in accordance with article VIII. This attorney later withdrew from representation, and by letter dated April 24, 1986, doctor’s new attorney stated, “In his letter of April 15, 1986 to Sister Mueller, Mr. Hines requested that a hearing be scheduled before an ad hoc committee of the medical staff. My review of *** Hospital’s Bylaws indicates that the first step in the review of summary suspension may be a hearing before the executive committee of the medical staff ***. In any event, *** we would appreciate having the appropriate hearing scheduled as soon as possible.”

On May 1, 1986, a notice of hearing was sent to doctor. The hearing was scheduled before the executive committee on May 13, 1986. The notice detailed the acts or omissions which led to the suspension. The first such act or omission was generally called “Behavioral Concerns.” Under this heading were listed five specific medical cases containing instances of alleged unusual behavior by doctor. The next general category was called “8:00 a.m. scheduled cases: Dr. Pulido late.” Under this category were four specific medical cases in which doctor had allegedly been late. The next category was “Excessive blood loss — surgical procedures.” Four medical cases were listed in which there was allegedly excessive blood lost by the patient during surgery performed by doctor. The final category was called “Inability to reach physician when she was on ER call.” Three specific instances of doctor’s unavailability were listed.

On May 13, 1986, a hearing was held before the executive committee of the medical staff. Both doctor and hospital were represented by counsel. Members of the executive. committee were Dr. Treece, Dr. Strack, Dr. Macaraeg and Dr. Porter. Also present were Sister Mueller, chief executive officer of the hospital, and doctor. Witnesses were presented by both sides and both attorneys made closing statements. The executive committee presented its recommendation on May 20, 1986. The executive committee found the acts or omissions charged to be proven and recommended that the summary permanent suspension be modified to a temporary suspension pending a complete medical examination, a complete psychiatric evaluation, a substance abuse evaluation of doctor and a request for reconsideration from doctor.

Doctor requested appellate review, and an appellate review hearing was held before the board of trustees on June 19, 1986. On June 23, 1986, the board notified doctor that it found the recommendation of the executive committee was justified and was not arbitrary and capricious and affirmed that recommendation.

The instant action was filed in the circuit court of Jackson County. It comes before us on appeal from a summary judgment entered in favor of hospital.

On review of a trial court’s entry of summary judgment, a reviewing court’s sole function is to determine whether the trial court correctly determined that there were no genuine issues of material fact, and if there were none, whether judgment for the moving party was correctly entered as a matter of law. (Hennessy v. Foley (1987), 154 Ill. App. 3d 1039, 1042, 507 N.E.2d 1258, 1260.) Hospital correctly points out that our review is even more limited in this case by the “rule of non-review” pertaining to medical staff decisions made by a private hospital. Decisions of private hospitals respecting the termination or curtailment of existing privileges of doctors on their medical staffs are subject only to limited judicial review to determine whether such decisions were rendered in compliance with the bylaws of the institution. (Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1018, 531 N.E.2d 989, 993.) Furthermore, a doctor claiming that a private hospital violated its bylaws in rendering a decision regarding his staff privileges is only entitled to relief requiring the hospital to .comply with those bylaws before it renders its decision. The doctor is not entitled to monetary damages or to reinstatement of his staff privileges. (Knapp, 176 Ill. App. 3d at 1021, 531 N.E.2d at 995.) Because doctor in the instant case prayed not only for money damages and reinstatement to her staff privileges, but also for “any other appropriate relief,” we will exercise our jurisdiction to determine whether the trial court properly granted a summary judgment on the basis that hospital complied with its bylaws in suspending doctor from its staff.

On appeal, doctor outlines five areas in which she argues the hospital breached the medical staff bylaws. She first argues that the notice of hearing did not sufficiently set forth the acts and omissions with which doctor was charged, in- violation of the bylaws. The bylaws require that the doctor be served with a notice of hearing which states in concise language the acts or omissions with which doctor is charged, a list of specific or representative charts being questioned, and/or any other reason or subject matter that was considered in making the adverse recommendation or decision. The notice of hearing served upon doctor in the instant case satisfies this requirement. The notice of hearing lists four general areas of doctor’s alleged deficiencies, with several specific instances or cases under each category. For example, under the general category “Behavioral Concerns,” the notice of hearing states:

“Medical Record No. 55152, (patient name deleted), 8/14/85— Patient scheduled for Fractional D&C and cold cone biopsy.
Dr. Pulido arrived at 0820 looking ‘wild’, speech was muffled and incomprehensible. During surgical procedure, Dr. Pu-lido probed at the opening with the uterine sound, missing on most attempts. Dr. Pulido tried to clamp a needle with a tenaculum instead of a needle holder (happened twice during the procedure). After the attempted D&C, Dr. Pulido tried unsuccessfully to apply suture to the outer rim of cervix. When she couldn’t do this she then started cutting on the cervix with a stab blade. This resulted in a large amount of bleeding.
Throughout the case she acted as if she couldn’t see well, was confused, and would reach for instruments and miss them. She talked continuously in circles making no sense.
Chief of Staff, Physician Advisor for surgery, and Vice President of Medical Staff spoke to Dr. Pulido regarding this case.
Surgical procedure took 1 hour. Patient was scheduled as Same-Day-Surgery, but had to be admitted for additional observation.”

This is only one representative example listed in the notice of hearing of specific instances or cases in which doctor’s actions were allegedly deficient. Furthermore, doctor was aware that hospital suspected her alleged problems might be related to substance abuse, as she previously had been asked to consult with a substance abuse and impaired physician expert. The notice of hearing served upon doctor substantially complied with the medical staff bylaws.

The next area in which doctor argues hospital did not comply with the bylaws relates to the conduct of the suspension hearing before the executive committee. Doctor argues that the suspension hearing was not conducted under the rules of evidence, “nor under any other type of rules of admissibility.” She argues that the record of the hearing is replete with inadmissible hearsay and conclusions.

The bylaws provide that the hearing need not be conducted strictly according to rules of law relating to the examination of witnesses or presentation of evidence. “Any relevant matter upon which responsible persons customarily rely in the conduct of serious affairs shall be considered, regardless of the existence of any common law or statutory rule which might make evidence inadmissible over objection in civil or criminal action.” Doctor does not point to any specific instances where evidence not meeting the above standard was admitted against her, and we find no violation of the bylaws in the admission of evidence at doctor’s suspension hearing.

Doctor also argues that the bylaws were violated because the results of the hearing were determined before the hearing took place. Prior to the hearing, the hospital attorney submitted to the committee a draft recommendation adverse to doctor. Doctor’s attorney objected. Hospital’s attorney clarified that the draft was only a proposal and that the committee was not bound to concur in it. Doctor argues that this indicates that the committee had no intention of providing her a fair hearing. Doctor concedes in her brief, however, that the committee did not concur in the proposed draft, but modified it after the hearing. The record as a whole does not indicate that doctor did not get a fair hearing or that the committee had prejudged her. We find no substantial violation of the bylaws.

Doctor next argues that hospital denied her a hearing before a fair and impartial tribunal, and that we may look beyond the bylaws in deciding this issue. Doctor is correct that a narrow exception to the “rule of non-review” exists allowing review of hospital proceedings to determine whether the decision-making tribunal was impartial and unbiased. Maimon v. Sisters of the Third Order of St. Francis (1983), 120 Ill. App. 3d 1090, 1094, 458 N.E.2d 1317, 1319.

Doctor first argues that she was entitled to a hearing before an ad hoc committee consisting of members of the medical staff who were not members of the executive committee and who had not actively participated in the executive committee’s decision to summarily suspend her. The medical staff bylaws do provide that when any doctor is notified of an adverse recommendation of the executive committee, that doctor is entitled to a hearing before an ad hoc committee of the medical staff. If the recommendation of the executive committee is still adverse following this hearing, the doctor is entitled to appellate review before the board of trustees. The bylaws further provide that no staff member who has actively participated in the consideration of the adverse recommendation of the executive committee shall be a member of the ad hoc hearing committee.

Hospital argues that the section of the bylaws which provides for a hearing before an ad hoc committee does not apply to a summary suspension. We agree. The bylaws provide for separate and distinct procedures for nonsummary suspension of privileges and summary suspension of privileges. The section of the bylaws pertaining to non-summary suspension provides for an initial investigation by an ad hoc committee and action by the executive committee, which may include a recommendation for suspension. That section further provides that any recommendation for suspension entitles the doctor to the procedural rights provided in article VIII of the bylaws.

Article VIII provides for a hearing before an ad hoc committee, the members of which must not have actively participated in the adverse recommendation of the executive committee. The section of the bylaws pertaining to nonsummary suspension does not mention a right to appellate review, as that right is granted under article VIII.

The section of the bylaws pertaining to summary suspension provides for a different procedure. Upon notification of a summary suspension, a doctor is entitled to a hearing before the executive committee in accordance with article VIII. The executive committee may recommend modification, termination or continuance of the summary suspension. If the recommendation of the executive committee is adverse, the doctor is entitled to appellate review by the governing body. The doctor is not entitled to the intermediary step of a hearing before an ad hoc committee, as the section of the bylaws pertaining to summary suspension provides for immediate appellate review of the action of the executive committee. Thus, the bylaws did not require a hearing before an ad hoc committee in the instant case and were not violated in this respect. Nor do we think that the denial of a hearing before an ad hoc committee in itself constituted a denial of a hearing before a fair and impartial tribunal. Doctor must demonstrate that the tribunal which actually decided her case was in some way biased or partial, or that it otherwise deprived her of a fair hearing.

Doctor also argues that she was denied a hearing before a fair and impartial tribunal because she was denied the right to challenge members of the tribunal for cause. However, the record reflects that doctor never made any request to do so. Without attempting to challenge a committee member for cause, doctor is in no position to complain that she was denied the right to do so. She was not denied a hearing before a fair and impartial tribunal on this basis.

Doctor next argues that two of the hearing committee members participated in her prosecution and testified against her, demonstrating bias. She argues that Dr. Strack encouraged the hospital prosecutor to press forward on skirted issues when Dr. Strack asked, “Sister, do you feel that your concerns about your inability to communicate with [Dr. Pulido] have been adequately addressed? I think you skirted the issue.” Doctor also argues that both Dr. Treece and Dr. Strack testified against her concerning their personal participation in the matters charged. During the hearing, doctor was asked whether any other doctors had talked to her about some of the alleged problems. Doctor denied that any doctor had ever talked to her. Dr. Treece and Dr. Strack interjected that they had both talked to doctor. Doctor’s counsel then inquired as to whether doctor had appeared to be under the influence of drugs and alcohol. Drs. Treece and Strack proceeded to answer doctor’s counsel’s questions. Drs. Treece and Strack also questioned doctor about matters of which they had personal knowledge relating to the charges against doctor.

Due process does not require that every member of the decision-making tribunal be completely unfamiliar with the factual issues presented at a hearing. (Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 95, 394 N.E.2d 770, 774.) Where members of the tribunal have personal knowledge of facts at issue, they should be permitted to bring those facts to light. Furthermore, members of the tribunal may properly ask questions of the witnesses. There is no evidence in the record of actual personal bias. See Ladenheim, 76 Ill. App. 3d at 95-96, 394 N.E.2d at 774.

Finally, doctor argues that Dr. Strack was personally biased against her, and points to her complaint, which, she states, recites a history of personal and professional conflict between the two. Again, there is no evidence of actual personal bias in the record.

Doctor next argues that the hospital’s refusal to reconsider her request for reinstatement was in violation of the bylaws because it was arbitrary, unreasonable and capricious. Doctor’s complaint alleges that on December 9, 1987 (more than one year after doctor’s suspension was affirmed by the board of trustees), doctor submitted reports of a complete medical examination, complete psychiatric examination and substance abuse evaluation, as well as a request for reconsideration of her status. On February 21, 1987, doctor received a letter from hospital indicating that her request for reinstatement of privileges would not be reconsidered. Doctor argues that this decision violates the bylaws because it was arbitrary, unreasonable and capricious. The decision was unreasonable, she argues, because the recommendation of the executive committee modifying her permanent summary suspension states that upon receipt of the above-mentioned documents, the committee would review same and render a decision on doctor’s request for reconsideration of her privilege status. However, hospital’s memorandum in support of its motion for summary judgment states that hospital advised doctor that it had refused to consider doctor’s request for reconsideration because doctor’s appointment to the medical staff had expired June 30, 1986, that doctor had not requested reappointment, and that if she wished to be considered for medical staff membership, she should submit an application. This reveals that hospital’s action was not arbitrary, unreasonable or capricious, but was actually in compliance with hospital’s normal procedures. We find no violation of the bylaws in this respect.

Doctor also argues in her brief on appeal that the written recommendation of the executive committee violates the Illinois Hospital Licensing Act because it does not explain or give reasons for the adverse decision. This issue was not before the trial court, and we will therefore not review it on appeal. It is axiomatic that questions not raised before the trial court are deemed waived and may not be raised for the first time on appeal. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.

The last argument raised by doctor is that summary suspension was not appropriate in this case because the 50-day delay in imposing the suspension demonstrates that action need not have been taken immediately in the best interest of patient care. She argues that the hospital imposed a summary suspension in order to circumvent her due process rights.

Whether the action of summary suspension must be taken immediately in the best interest of patient care is a medical question to be addressed to the discretion of medical professionals. It is not subject to judicial review. Rao v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1986), 140 Ill. App. 3d 442, 460, 488 N.E.2d 685, 697.

We agree with the trial court that there are no disputed questions of material fact. The only questions before the trial court were ones of law, and the trial court properly found that hospital was entitled to judgment as a matter of law.

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

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON

text:
    PEOPLES INDEPENDENT PARTY et al., Appellees, v. THOMAS G. PETROFF, SR., Appellant.
    Fifth District
    No. 5—89—0140
    Opinion filed December 18, 1989.
    George E. Marifian, of Mathis, Marifian & Richter, Ltd., of Belleville, for appellant.

      Ellen A. Dauber, of Cook, Shevlin, Keefe & Ysursa, Ltd., of Belleville, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Petitioners formed a new political party, the Peoples Independent Party, by filing organization papers and a nomination petition with the Canteen Township clerk and were listed with their party affiliation as candidates for township positions for the consolidated election to be held April 4, 1989.

Respondent Thomas Petroff, Sr., filed an objection to the petition, alleging that petitioners had failed to attach to their nomination petitions a certificate stating the names and addresses of the party officers authorized to nominate or fill vacancies.

Respondent did not object to the individuals being on the ballot, but objected to the ballot also carrying their party affiliation.

The Electoral Board of Canteen Township, impaneled pursuant to the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10—9), struck petitioners from the ballot. Petitioners filed for judicial review in accordance with the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10—10.1). The circuit court reversed the Board and ordered the Peoples Independent Party and all its candidates be placed on the ballot.

The respondent appeals and we affirm.

The pertinent statute provides:

“All petitions for nomination shall, besides containing the names of candidates, specify as to each:
1. The office or offices to which such candidate or candidates shall be nominated.
2. The new political party, if any, represented, expressed in not more than 5 words. ***
3. The place of residence of any such candidate or candidates with the street and number thereof, if any. ***
* * *
In addition, a new political party petition shall have attached thereto a certificate stating the names and addresses of the party officers authorized to fill vacancies in nomination pursuant to Section 10—11.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 46, par. 10—5.

The question this case presents is whether the expression “shall have attached” is mandatory or directory. If it is mandatory, the Electoral Board was correct in removing petitioners from the ballot; if it is directory, then the circuit court was correct in ordering petitioners be placed on the ballot.

Respondent contends that because the word “shall” appears in the statute, it must be considered mandatory.

Petitioners argue that the statute is not mandatory, but directory, and therefore, that a failure to attach to their nominating petitions a certificate stating the names and addresses of the party officers authorized to nominate or file vacancies should not preclude them from being placed on the ballot.

We agree with petitioners and affirm the circuit court for two reasons: (1) the statute is directory, not mandatory; and (2) the provision of the statute in question is not applicable because it does not become operative until a vacancy is created and an attempt to fill it is made.

When the word “shall” appears in a statute it may be interpreted to mean “must” or “may” depending upon the context and intent of the legislature. Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 268, 356 N.E.2d 59, 62.

In all of the cases relied upon by respondent to support his argument that the statute is mandatory, the failure to comply with a provision of the Election Code impaired the integrity of the election. See Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 509 N.E.2d 509 (candidates’ failure to subscribe and swear to a statement of candidacy held to be fatal, given that oaths activate the perjury provisions of the Election Code); Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292 (candidates’ failure to file statements of economic interest and to include sworn statement of person circulating nominating petition required striking candidates from ballot, since these provisions are necessary to protect the integrity of the electoral process); Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App. 3d 926, 446 N.E.2d 256 (candidate stricken from ballot for failure to file statement of economic interest, and for placing title “Reverend” on nominating papers, because these provisions are necessary to protect the integrity of the nominating and electoral process).

In this case, however, petitioners’ failure to file a certificate of officers to fill vacancies in no way affected the integrity of the electoral process.

Where, as here, a statute does not provide sanctions for failure to comply with the provision in dispute, the requirement in the statute may be interpreted as being merely directory rather than mandatory. This would appear to be especially true where there is an absence of fraud and no showing that the integrity of the election would be affected adversely. See People ex rel. Harris v. Powell (1966), 35 Ill. 2d 384, 387, 221 N.E.2d 274, 275; People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 39, 219 N.E.2d 617, 620.

We, therefore, hold that this provision is directory, not mandatory.

We affirm also for another reason. An examination of the statutory scheme compels the conclusion that the provision of the statute relied upon by respondent is not applicable to this case.

Respondent makes no claim that petitioners failed to follow requirements contained in section 10—2 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 10—2) that appear to be mandatory to formation of a new political party; respondent concedes that the Peoples Independent Party was formed properly and legally is in existence.

Respondent instead claims that petitioners’ failure to follow section 10—5 of the Election Code forces removal from the ballot of the party affiliation of the individual candidates. Ill. Rev. Stat. 1987, ch. 46, par. 10—5.

Section 10—5 sets out what is required to make up a valid petition for nomination, and requires attachment of a statement of economic interest, an oath, and a statement of candidacy. It further requires a new political party to attach to the petition for nomination the names and addresses of the party officers authorized to fill vacancies that may occur in candidacies for election to office. The intent of this section is clear. The name of the party, the names of the candidates, their residences, the offices they seek, their oaths, statements of candidacy, and statements of economic interest all are conditions precedent to access to the ballot. However, attachment of the certificate of the names and addresses of the persons authorized to fill vacancies is not a condition precedent to access to the ballot.

We are persuaded by the statutory scheme that the legislature simply intended to provide to a new political party an orderly and specific method for filling vacancies, but in no way intended to penalize the party or its candidates by striking them from the ballot solely because the certificate was not filed. In so doing, the legislature recognized that the political ferment that welds new political alliances tends also to concoct rival factions. The power to fill vacancies is no insignificant power, but in the case of a fledgling political party, it most likely represents complete control. The statute represents legislative intent to prevent those rival factions from bringing to the courthouse their conflicts thereby immersing courts in disputes that have mainly political rather than legal ingredients. The statute marches these rival factions away from the courthouse door and back into the political arena where, in a democratic society, they and their disputes so rightfully belong.

Petitioners’ failure to file a certificate stating the names and addresses of the party’s officers authorized to fill vacancies in nomination fostered no fraud; petitioners’ failure to file the certificate did not harm the integrity of the election. The appropriate sanction for the failure to comply with the statutory provision would be to prohibit the new political party from nominating anyone to fill any vacancies that may occur, rather than to void the nominations of the candidates of the new political party. No vacancies occurred here. No sanction need be imposed. Therefore, section 10 — 5 has no application to the facts of this case.

The circuit court is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE GILLER, Defendant-Appellant.
    Fifth District
    No. 5—88—0312
    Opinion filed November 2, 1989.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mount Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This cause comes before us on appeal for the second time following a judgment entered on a jury verdict in the circuit court of Montgomery County finding defendant Eddie Giller guilty on three counts of aggravated criminal sexual assault. Both appeals have presented questions concerning sentencing.

In the first appeal, People v. Giller (1987), 162 Ill. App. 3d 209, 514 N.E.2d 1206, we vacated the trial court’s imposition of an extended-term sentence. We ruled that an extended-term sentence violated the principle that a trial court may not rely upon a factor inherent in an offense as an aggravating factor at sentencing because such reliance results in a double enhancement of the allowable punishment for the underlying crime.

On remand to the trial court for a new sentencing hearing, the court found that the three counts of aggravated criminal sexual assault were not part of the same course of conduct. Additionally, the court noted that the defendant was out on parole at the time the offenses were committed. The court sentenced defendant to 30 years of imprisonment for each count. Counts I and III were ordered to be served concurrently, and count II was ordered to be served consecutively. In the present appeal, defendant argues that because the trial court did not order consecutive sentences at defendant’s first sentencing, the imposition of consecutive sentences at the second sentencing was improper.

Section 5—5—4 of the Unified Code of Corrections provides that once a sentence has been set aside on review or collateral attack, “the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—4.) On remand for a new sentence, the trial court should not construe the order vacating its original sentence as a mandate from the appellate court instructing that on resentencing a lesser sentence should be imposed; rather, the trial court should simply consider that matter anew without relying on any factors which were considered improper by the reviewing court. People v. Morton (1981), 102 Ill. App. 3d 280, 282, 430 N.E.2d 383, 384.

In the case now before us, defendant’s sentence on remand was no more severe than his original sentence. His original sentence was for an extended term of 60 years’ imprisonment, and his re-sentence totaled 60 years’ imprisonment. The imposition of consecutive terms of 30 years’ imprisonment was consistent with section 5—8— 4 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4) and could have been imposed in the original sentencing. Therefore we are unable to find any impropriety in defendant’s sentence on remand.

The cases cited by defendant are inapposite to the instant appeal because they involve situations in which the sentence imposed on remand was either a more severe sentence for the same conduct, or a sentence of the same severity for an offense which was reduced on remand. For instance, in People v. Cunitz (1978), 59 Ill. App. 3d 701, 375 N.E.2d 1020, the defendant was originally sentenced to consecutive terms of 40 months to 10 years’ imprisonment for convictions of felony theft and felony escape. The reviewing court found that the facts were only sufficient to support misdemeanor theft, not felony theft, along with the felony escape. On remand, the misdemeanor theft was given a 364-day prison term, but the felony escape count was increased significantly to a term of 5 to 20 years’ imprisonment. This resulted in a doubling of the maximum possible term from 10 to 20 years’ imprisonment, in contravention of the dictates of section 5—5— 4. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—4.) No such increase is present in the instant case.

For these reasons, we affirm the order of the circuit court of Montgomery County.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE McLAREN

text:
      In re PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN TERRITORY (The Village of Kildeer, Petitioner-Appellee and Cross-Appellant, v. Robert Schwake et al., Respondents-Appellants and Cross-Appellees).
    Second District
    No. 2—89—0364
    Opinion filed December 13, 1989.

      James S. Gordon and Edward Slovick, both of James S. Gordon, Ltd., of Chicago, for appellants.
    John M. Mullen, of Conzelman, Schultz, Snarski & Mullen, of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The petitioner in these consolidated cases, the Village of Kildeer (the Village), sought to annex certain properties pursuant to the annexation provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7—1—1 et seq.). The Village filed three annexation ordinances with the circuit court of Lake County, which in turn found the annexations valid. Certain affected property owners (the objectors) moved pursuant to section 2—1401 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) to vacate the prior orders validating the annexation ordinances. The trial court granted the motions to vacate, and the Village appealed to both this court (In re Petition of Village of Kildeer (1987), 162 Ill. App. 3d 262) and subsequently to the Illinois Supreme Court (In re Petition of Village of Kildeer (1988), 124 Ill. 2d 533). After the cause was remanded to the trial court, the Village filed a motion to voluntarily dismiss the annexation proceedings pursuant to section 2—1009 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009). At the same time, the objectors filed a motion pursuant to section 2—611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) seeking sanctions against the Village.

The trial court granted the Village’s motion to dismiss the proceedings and also awarded the objectors their previously incurred deposition transcript costs. Subsequently, the trial court denied the objectors’ section 2—611 motion for sanctions and also denied the objectors’ motion to amend their section 2—611 motion. The objectors now appeal from the entry of both orders, and the Village cross-appeals from the trial court’s award of deposition costs. At issue on appeal is the propriety of the trial court’s denial of the objectors’ motions to amend their section 2—611 motion and also the trial court’s award of deposition costs in favor of the objectors. We reverse the trial court’s determinations on both issues and remand for further proceedings on the objectors’ section 2—611 motion.

The facts surrounding the Village’s annexation proceedings are set out in both of the previous opinions filed in these cases on review (In re Petition of Village of Kildeer (1987), 162 Ill. App. 3d 262, 265-67, aff’d (1988), 124 Ill. 2d 533, 536-42), and so only a short summary is necessary here. In February 1986, the Village enacted three annexation ordinances. Each ordinance sought to annex an area equal to approximately 10 acres but, if annexation of each of the three parcels of land had been successful, a much larger tract of land would have been effectively circumscribed by the newly annexed areas. Moreover, though each ordinance sought to annex less than 10 acres, more than 10 acres of the property of certain individual landowners would have been included in the total amount of property covered by the three ordinances. Such an annexation could not legally have been undertaken without each landowner’s consent. (See Ill. Rev. Stat. 1985, ch. 24, par. 7—1—2; In re Petition of Village of Kildeer, 162 Ill. App. 3d at 277.) The Village filed the three annexation petitions, and each was assigned to a different circuit court judge. Notification of the ordinances was published in the Chicago Sun-Times, even though the Village admitted that such notice is normally made in local newspapers.

In March 1986, different circuit court judges separately approved each of the three ordinances, and a referendum on each petition was set for November 4, 1986 (see Ill. Rev. Stat. 1985, ch. 24, pars. 7—1— 4, 7—1—6). Before the referenda, in August 1986, the objectors, who are owners or trustees of affected properties, filed petitions in each case pursuant to section 2—1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) seeking to vacate the three orders. All three orders were thereafter vacated, and the Village appealed in all three cases. The objectors cross-appealed from the findings in Nos. 86—MC—3 and 86—MC—4 that the Village had complied with statutory notice requirements. The three petitions were consolidated for appellate review.

On appeal, this court affirmed the trial courts’ granting of the section 2—1401 petitions to vacate in Nos. 86—MC—4 and 86— MC—2. We reversed and remanded with regard to No. 86—MC—3 in order that the Village might be allowed to file a response to the objectors’ section 2—1401 petition. We also reversed the trial court’s determination in No. 86—MC—4 that the Village had complied with the statutory notice requirements. The cross-appeal in No. 86—MC—3 was not timely filed, and therefore, we did not rule on it. (162 Ill. App. 3d at 280.) The Village again appealed, but the supreme court affirmed the decision of this court. 124 Ill. 2d at 551.

After remand from the supreme court, the Village sought to voluntarily dismiss all proceedings pursuant to section 2 — 1009 of the Code. The other parties objected to dismissal, and, on the same day that the Village filed its motion to dismiss, the objectors filed a section 2—611 motion seeking sanctions against the Village and its attorney based on the improper annexation proceedings. On December 12, 1988, the trial court granted the Village’s motion to dismiss the proceedings and assessed against the Village only the deposition transcript costs previously incurred by the objectors. After setting the question of the section 2—611 motion for hearing, the court received written memoranda from both parties. Also, the parties subsequently stipulated that the section 2—611 motion was withdrawn to the extent that it sought sanctions against the Village’s attorney.

In relevant part, the memoranda and replies of the Village asserted that the objectors’ section 2—611 motion was insufficient because it failed to specify the improper conduct upon which it was based and also because it failed to specify the costs to be assessed. The objectors responded that the motion, combined with the more specific allegations contained in supporting memoranda, was sufficient to properly entitle them to recovery under section 2—611. The objectors’ memorandum filed March 14, 1989, also noted that, if the trial court found the motion to be insufficiently specific, then the objectors should be given leave to amend the section 2—611 motion.

A hearing on the objectors’ section 2—611 motion was held on March 20, 1989. The Village’s surreply memorandum was not filed with the court until March 20, and the objectors asked that they be allowed to file additional material if the court denied their motion based on the Village’s surreply memorandum. The trial court suggested that the hearing might be continued until a later date, but counsel for the objectors asked that the hearing proceed. The Village pressed its contention that the section 2—611 motion was insufficient because of its lack of specificity. The objectors argued that the motion, combined with its supporting memoranda, was sufficiently specific. Counsel for the objectors also again asked that they be allowed to amend their motion if the court determined that the motion was not sufficiently specific.

On the basis of this court’s holding in Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, the trial court denied the section 2—611 motion for its failure to specify the conduct on which it was based and the costs the objectors sought to recover. After the trial court so ruled, the objectors again asked the court to allow them to amend their section 2—611 motion to make it more specific. The court ruled that the objectors’ request to amend the motion was not timely, and thus it was denied. A written order denying the section 2—611 motion was filed the same day. On April 10, the objectors filed a motion seeking leave to file an amended section 2—611 motion. This motion was accompanied by the objectors’ amended section 2—611 motion, but the trial court again refused to grant the objectors leave to file the amended motion. The objectors now appeal from both the March 20 order denying their original section 2—611 motion and the April 10 order denying them leave to file an amended motion. The Village cross-appeals from the trial court’s award of deposition costs to the objectors.

Though an order granting a party’s motion to dismiss proceedings pursuant to section 2—1009 of the Code is generally a final and appealable order (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 466), the pendency of the section 2—611 motion here prevented the December 12, 1988, order from becoming final and appealable (Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1095; Hise v. Hull (1983), 116 Ill. App. 3d 681, 683). The trial court’s order denying the objectors’ section 2—611 motion disposed of all remaining issues between these parties, thus making it a final and appealable order. The objectors’ subsequent motion seeking leave to file an amended section 2—611 motion, which was filed after the final order, must be considered a post-trial motion per section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203). (See Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 868-69.) This motion, having been filed within 30 days of the final judgment, was timely. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1203.) Our jurisdiction over the appeal is therefore proper pursuant to Supreme Court Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1)), and jurisdiction over the cross-appeal is proper pursuant to Supreme Court Rule 303(a)(3) (107 Ill. 2d 303(a)(3)).

The issue raised by the objectors’ appeal of both orders is whether the trial court correctly denied their motions seeking leave to amend their section 2—611 motion. The propriety of the trial court’s dismissal of the section 2—611 motion on its merits is not at issue. Initially, we reject the Village’s contention that we may not review the trial court’s denial of the defendant’s oral motions at the March 20 hearing seeking leave to amend their section 2—611 motion. The defendant asserts that the order issued following the hearing does not reflect the oral motions and, therefore, that an appeal from the order cannot encompass the oral motions. The transcript of the hearing, however, clearly shows that such motions were made and that they were inextricably linked to the resulting order. In any event, an appeal from a final judgment will draw into question all prior nonfinal rulings and final but nonappealable orders which produced the judgment. First National Bank v. St. Charles National Bank (1987), 152 Ill. App. 3d 923, 930.

The parties on appeal are in disagreement as to which version of section 2—611 applies in this case. The statute in effect when the annexation proceedings began, in March 1986, allowed for the imposition of sanctions against a party. The statute reads in relevant part:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—611.)

The most recent version of the statute differs somewhat. It provides that sanctions can also run against a party’s attorney, and the statute applies to “[e]very pleading, motion and other paper” filed. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) The statute provides that the signature of a party or an attorney constitutes a certificate that, among other things, the document in question “is well grounded in fact and is warranted by existing law *** and that it is not interposed for any improper purpose.” Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

We believe that the resolution of the objectors’ section 2—611 motion does not depend upon which version of the statute is applied. First, the substantive obligations of the parties are the same under both versions. (See Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 40.) For example, here the gist of the objectors’ section 2—611 motion is that the Village initiated illegal annexation proceedings and that it advanced specious arguments in defense of these proceedings in the circuit court and on appeal. Though this conduct, if proved, would be redressable under the more recent version of section 2—611, it would also be so under the prior version. It has long been recognized that this section is designed to “penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit.” (Emphasis added.) Ready v. Ready (1961), 33 Ill. App. 2d 145, 161.

Second, as we shall proceed to show, the question presented here, namely, whether the trial court should have allowed the objectors to amend their motion, must be answered according to the general rules pertaining to the amendment of pleadings. As such, the answer to the question would be the same under either version of section 2—611.

We believe that the objectors’ initial requests to amend their section 2—611 motion must be reviewed according to the standards set out in section 2—616 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—616). This provision allows amendments “on just and reasonable terms” at any time before final judgment. As we have already noted, the trial court’s denial of the objectors’ section 2—611 motion comprised the final judgment in this case. Since the objectors orally requested leave to amend their motion before the actual entry of the final order, the oral motion was brought before final judgment. (Schwaner v. Belvidere Medical Building Partnership (1987), 155 Ill. App. 3d 976, 989.) Section 2—616 applies to an attempt to amend “in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable *** the defendant to make a defense or assert a cross claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—616.) Though a motion under section 2—611 is not precisely a cross-claim, we believe that the provisions of section 2—616 are broad enough to include a section 2—611 motion for the imposition of sanctions.

The decision whether to allow a motion requesting leave to amend under section 2—616 rests within the sound discretion of the trial court, and its decision will not be disturbed on appeal absent an abuse of that discretion. (Schwaner, 155 Ill. App. 3d at 988.) Among the factors to be considered in determining whether the trial court properly exercised its discretion is whether the proposed amendment would cure the defective pleading, whether it could cause prejudice or surprise to other parties, the timeliness of the proposed amendment, and whether previous opportunities to amend could be identified. Schwaner, 155 Ill. App. 3d at 988.

Here, these factors all weigh in favor of allowing the objectors to amend their section 2—611 motion. First, it is clear from the contextual history of this litigation that the objectors could have amended their motion sufficiently to cure the defect of which the Village complained. The original section 2—611 motion sought to impose sanctions based on the underlying illegality of the annexation actions and for the arguments advanced by the Village in proceeding with them. To redress the lack of specificity in the motion, counsel for the objectors requested that they be allowed to amend their claim to specify the particular pleadings underlying the cause. The history of the underlying action, which is well known to both this court and the trial court, clearly indicates that the objectors could have amended their motion to specify the underlying pleadings upon which the illegal annexations were based. Similarly, because the objectors sought to recover their attorney fees for the entire action, calculation and specification of this amount could have been easily accomplished had amendment of the motion been allowed.

Second, there is no indication whatsoever that an amendment of the pleadings would have caused prejudice or unfair surprise to the Village. The memoranda the objectors submitted in support of their section 2—611 motion spelled out, inter alia, their allegations that the Village intentionally split into three proceedings an annexation scheme which was, as a whole, clearly illegal; that it filed the annexation ordinances with three different judges to allow the scope of the total annexation to go undiscovered; and that it published notice designed to maintain the secrecy the Village created to obscure the annexation actions. This sufficiently apprised the Village of the nature of the amendment sought. The Village took the position that the objectors’ section 2—611 motion was not specific enough; allowing amendment of the motion to make it more specific would prevent, not promote, unfair surprise.

Third, as we have already noted, the objectors’ oral motion seeking leave to amend the section 2—611 motion was timely because it was made before the issuance of the final order.

Finally, we believe that the objectors did not pass up previous opportunities to amend their motion. The March 20 hearing constituted the trial court’s first and only consideration of the section 2—611 motion. Though the objectors argued in their memoranda that their motion was legally sufficient, they did not merely stand on the motion as it existed. The objectors made it clear that, if the trial court found the motion to be insufficiently specific, then they should be allowed to amend it to correct such a defect. We do not accept the Village’s assertion that the objectors rejected the trial court’s offer to allow them to amend their section 2—611 motion. A review of the transcript of the March 20 hearing indicates that the parties were more likely discussing the possibility that the objectors might wish to file an additional memorandum in support of their motion because the Village had filed its last memorandum only on the day of the hearing. Though the objectors opted to proceed with the hearing without filing an additional memorandum, they cannot be said to have abandoned their position that they should be allowed to amend the motion itself if it was subsequently found to be lacking.

The test as to whether a trial court has properly exercised its discretion in ruling on a request to amend pleadings “is whether the amendment furthers the ends of justice.” (DiBenedetto v. County of Du Page (1986), 141 Ill. App. 3d 675, 681.) Indeed, this is “the paramount consideration.” (Hoffman v. Nustra (1986), 143 Ill. App. 3d 259, 266.) Here, denial of the opportunity to amend their section 2—611 motion would mean that the objectors had one, and only one, opportunity to file the motion correctly, and their failure to do so on the first effort would effectively bar their claim forever. This, we believe, is patently unjust. We conclude, therefore, that the trial court abused its discretion by denying the objectors’ oral motion seeking the opportunity to amend their section 2—611 motion. This conclusion is only strengthened by the written motion the objectors subsequently filed which not only reiterated their prior position, but also was accompanied by the amended motion the objectors wished to file.

Finally, we must resolve the Village’s cross-appeal from the trial court’s award of deposition transcript costs to the objectors. The Village cites Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, in support of its contention that the trial court erred by assessing against the Village the objectors’ deposition costs because the depositions were not used at trial. The objectors contend that the hearings on their section 2—1401 petitions essentially constituted trials and, therefore, that the trial court properly awarded them their deposition costs.

In Galowich v. Beech Aircraft Corp., the supreme court held that Supreme Court Rule 208(d) (73 Ill. 2d R. 208(d)) authorizes the trial court to tax as costs the expenses arising from the taking of depositions only if they are used at trial; therefore, such costs could not be assessed against a plaintiff who voluntarily dismissed an action before trial. (Galowich, 92 Ill. 2d at 166.) The use of a deposition transcript at trial is necessary to authorize the trial court’s award of costs pursuant to Rule 208(d). (Howell v. Thompson (1987), 161 Ill. App. 3d 466, 468.) The objectors’ characterization of the hearings on the section 2—1401 petitions as “trials” is simply at odds with the clear language of the supreme court. Since these cases never came to trial, the trial court erred by taxing deposition costs against the Village. We therefore reverse the order of the trial court granting these costs, but we also note that such costs may properly be recovered under a section 2—611 motion. See Galowich, 92 Ill. 2d at 168.

The judgment of the trial court denying the objectors leave to file an amended section 2—611 motion is reversed, and the cause is remanded for further proceedings. We also reverse the trial court’s order taxing against the Village the deposition costs of the objectors.

Reversed and remanded.

REINHARD and WOODWARD, JJ., concur.

       Newly enacted Supreme Court Rule 137 (134 Ill. 2d R. 137) also pertains to the issue of sanctions against a party or attorney for the bringing of frivolous or baseless suits or the filing of false pleadings. Since this appeal preceeded the August 1, 1989, effective date of Rule 137, we need not consider whether and to what extent the rule supercedes section 2—611 of the Code. See Rule 137 (June 28, 1989) Official Reports Advance Sheet No. 13 (eff. Aug. 1, 1989).


author: JUSTICE SCOTT

text:
    SHARON CHOI et al., Plaintiffs-Appellees, v. CHARMAINE MESSER et al., Defendants-Appellants.
    Third District
    Nos. 3—89—0144, 3—89—0147 cons.
    Opinion filed November 29, 1989.
    Rehearing denied January 11, 1990.

      James W. Springer and Julian E. Canned, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for appellants.
    Andrew W. Covey, of Baymiller, Christison & Radley, of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiffs, Dr. Sharon Choi and Dr. Cynthia Alexander, filed separate small claims suits against the defendants, Charmaine and Richard Messer, to collect medical fees. The trial court granted the plaintiffs’ motions for summary judgment. The defendants appeal.

The record reveals that on December 18, 1987, the plaintiffs filed their complaints against the defendants, requesting judgments for $220 each and costs. Attached to each complaint was an invoice showing an amount allegedly owed by Charmaine. Choi’s $220 invoice listed services provided on March 12, 1987, and Alexander’s $220 invoice listed services provided on March 21, 1987.

Around December 31, 1987, Charmaine delivered to the collection agency retained by the plaintiffs to collect the instant debt two checks for $220 each. Both of the checks contained the phrase “paid in full” on the front and back. Upon receipt of the checks, the collection agency informed the defendants that the checks would not be accepted as full payment because they did not include court costs. The collection agency retained the checks, eventually depositing them and applying them to the defendants’ account on February 25,1988.

On January 6, 1988, Charmaine failed to appear for her hearing and a default judgment was entered against her in favor of each plaintiff for $220, plus costs of $46.25. At that same hearing, Richard entered his appearance pro se and demanded a jury trial. Later, Charmaine filed motions to vacate the default judgments, and the trial court granted the motions. The defendants then filed motions to dismiss and for attorney fees plus costs. The plaintiffs each filed responses to the defendants’ motions to dismiss. Additionally, each plaintiff filed a motion for summary judgment. Attached to each plaintiff’s motion for summary judgment was an affidavit of Mort Hoffman, the president of the collection agency retained by the plaintiffs.

The trial court granted each plaintiff’s motion for summary judgment and entered judgment in each case against the defendants for costs only, in the amount of $46.25. In addition, the court denied the defendants’ motions to dismiss and for attorney fees and costs. In reaching its decision, the court noted that if there was a bona fide dispute regarding the amount owed, the creditors’ subsequent cashing of the checks would have been an accord and satisfaction. However, the court found that in the instant case there was no dispute regarding the amount due and cited Sweetland v. Tuthill (1870), 54 Ill. 215, for the proposition that where a defendant tenders the precise amount for which prayer is made in a complaint after suit is filed, such a tender is considered an admission of liability for the underlying debt in the definite amount set forth in the complaint and the creditor is entitled to court costs associated with the filing of the suit.

On appeal, the defendants argue that the trial court erred in granting summary judgment for the plaintiffs. The defendants maintain that an accord and satisfaction occurred when the plaintiffs cashed the checks, thereby extinguishing the original demand and barring an action thereon.

To constitute an accord and satisfaction, there must be an honest dispute between the parties, a tender with the explicit understanding of both parties that it is in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted as full payment. (Polin v. Major (1986), 150 Ill. App. 3d 854, 502 N.E.2d 355.) An accord is a settlement of an existing demand which presupposes a disagreement as to the amount due; however, the partial payment of a fixed and certain demand which is due and not in dispute is not a satisfaction of the whole debt even where the creditor agrees to receive a part for the whole and gives a receipt for the whole demand. (Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567.) Where there is a bona fide dispute regarding the amount due, even if the creditor protests that he is not accepting the check as full payment or a compromise, his actions in negotiating the check bind him to an accord and satisfaction. (Nelson v. Fire Insurance Exchange (1987), 156 Ill. App. 3d 1017, 510 N.E.2d 137.) However, if after suit is filed the defendant tenders to the plaintiff-creditor the precise amount alleged in the plaintiffs complaint, the plaintiff may nevertheless maintain an action to recover the costs associated with the filing of his suit and the obtaining of a judgment thereon. Sweetland v. Tuthill (1870), 54 Ill. 215.

We note that a motion for summary judgment should be granted “if 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. 1987, ch. 110, par. 2—1005(c).) In ruling on the motion, the trial judge should construe the pleadings, affidavits, exhibits, and depositions most strictly against the moving party and most liberally in favor of the opponent. Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612.

In the instant case, the defendants tendered the exact amount the plaintiffs requested in their complaints for medical fees. Further, the defendants did not attach affidavits to their motions to dismiss contending that the checks were intended and accepted as payment in full for both the underlying medical fees and the costs. Therefore, we find that there was no bona fide dispute regarding the $220 debt alleged in each plaintiff’s complaint. As such, the defendants’ tender of the precise amount of the alleged debt, without expressly stating that the amount included costs, resulted in an admission of liability regarding that debt, and the plaintiffs could properly maintain an action for the costs associated with the filing of their suits. We find unpersuasive the defendants’ argument that the Sweetland decision was based on a statute no longer in effect. Accordingly, we find that the trial court properly granted the plaintiffs’ motions for summary judgment and properly denied the defendants’ motions to dismiss and for fees and costs.

Next, we turn to the plaintiffs’ motion for an award of attorney fees incurred on appeal, filed pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Since we do not find the instant appeal to be a needless extension of a baseless lawsuit, we hereby deny the plaintiffs’ motion for fees. Wiley v. Howard (1989), 180 Ill. App. 3d 721, 536 N.E.2d 186.

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

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


author: JUSTICE STOUDER

text:
    JOHN T. HEITZ et al., Plaintiffs-Appellants, v. CIRCLE FOUR REALTY CO., INC., f/k/a Countryside Development Company, Inc., Defendant-Appellee.
    Third District
    No. 3—89—0018
    Opinion filed October 5, 1989.
    Rehearing denied January 16,1990.

      Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Phillip B. Lenzini and James W. Springer, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Frederick G. Hoffman and Frank M. Calvert, both of Thomas & Hinshaw, Culbertson, of Peoria (Kathryn A. Spalding, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

William and Helen Moynan, executors for the estate of John W. Willhardt, filed this action in the circuit court of Tazewell County, seeking inter alia a declaratory judgment that a land contract between Willhardt and Circle Four Realty Co., Inc., had terminated. Willhardt’s grandchildren, John T. Heitz and Cathy Heitz Schanes, subsequently replaced the Moynans as parties in interest when the Moynans, pursuant to the provisions of Willhardt’s will, deeded to Heitz and Schanes the real property at issue. After the circuit court entered judgment for Circle Four, Heitz and Schanes brought this appeal.

The record indicates that on December 9, 1966, Donald Smelz, president of Circle Four, entered into a contract with Willhardt for the development of two tracts of Willhardt’s farmland. Under the contract Willhardt was to convey to Circle Four, either directly or through an escrow, deeds to any lots that Circle Four had subdivided. Circle Four was to pay for the lots at the rate of $1,600 per acre. By its terms the contract was to terminate at the first to occur of either the full payment of purchase price for the tracts of land, the failure of Circle Four to pay for the lots as agreed, or on January 1, 1969, unless at least 10 lots had been “sold and settled for” since January 1, 1968, in which case the contract would be automatically extended annually so long as an average of at least 10 lots per year had been “sold and settled for.”

Circle Four proceeded to develop the land, and it sold a sufficient number of lots to keep the contract in force through 1971. Between 1971 and 1975 Circle Four did not subdivide the land, but during each of those years and every year thereafter until 1981, it tendered and Willhardt accepted the sum of $5,000.

In 1975, the Commercial National Bank in Peoria deeded to Circle Four approximately 11 acres of the land which had been placed in its trust by Willhardt in 1969. Circle Four did not pay any money for the deed at the time of or after the transaction.

In March and April of 1976, Helen Moynan, Commercial National Bank’s trust officer Robert Cochran and the attorneys for Willhardt and Circle Four corresponded with one another regarding the drafting of an addendum to the 1966 contract to reflect what was actually being done by the parties. The addendum, which was drafted by Willhardt’s attorney, provides that if Circle Four fails to sell and settle an average of 10 lots per year as was required for annual extension of the 1966 contract, Willhardt would have the right but not the obligation each year to accept $4,800 in exchange for a deed for three acres, which exchange would annually extend the 1966 contract. Neither Willhardt nor Smelz signed the addendum. Smelz’s attorney testified that Smelz refused to sign the addendum because the clause giving Willhardt the right to refuse tender constituted a new term.

Sometime thereafter, Willhardt became aware of the fact that Commercial had transferred the 11 acres to Circle Four. In response, Willhardt revoked the trust and in October 1976 made his neighbor friends, the Moynans, trustees for the land. Neither Willhardt nor the Moynans took any action against Commercial for the transfer of the deed to Circle Four.

On December 30, 1976, Helen Moynan, Willhardt and his attorney, and Smelz and his attorney, Melvin O. Moehle, met to discuss the agreement between Willhardt and Smelz. Moehle’s notes of the meeting were admitted into evidence. The notes purport to identify terms of an agreement between Willhardt and Smelz, generally suggesting the annual exchange of $5,000 for 3.07 acres of Willhardt’s land. However, no written agreement resulted from the meeting, and neither party signed Moehle’s notes.

In October of 1980 Smelz deeded back to the Moynans in trust for Willhardt the 11 acres which he received from Commercial in 1975 in exchange for a trust deed from the Moynans for 13.6 acres of Willhardt’s land. The trustee’s deed was signed by both William and Helen Moynan, and their signatures were notarized by Willhardt’s attorney, Rudolph J. Westphal. Smelz gave no additional consideration for the receipt of the additional 2.6 acres. The parties agree that the exchange was made because the 13.6 acres were more suitable for development. Circle Four subsequently developed the property received as a result of the 1980 deed.

On February 20, 1981, Willhardt and the Moynans returned a $5,000 check to Smelz, with a letter indicating that they agreed to waive the payment of $5,000 for the years 1980, 1981, and 1982. On November 11, 1983, Willhardt and the Moynans sent a letter to Smelz indicating that they agreed to waive the $5,000 payment for the years 1983 and 1984.

Willhardt died on March 11, 1985. Thereafter, Westphal, the attorney for Willhardt’s estate, rejected Circle Four’s annual tender of $5,000.

The Moynans, as executors for the estate of Willhardt, then brought this action, seeking a declaration that the 1966 agreement was terminated and seeking return of the 13 acres conveyed in 1980. Circle Four defended, asserting that the plaintiffs were estopped from claiming Circle Four’s breach of the contract by virtue of the plaintiff’s 15-year course of conduct of accepting or waiving the $5,000 payments. The plaintiffs subsequently raised the defense of the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.).

Following a trial, the circuit court entered judgment for Circle Four, holding that the 1966 contract was modified by the parties’ oral agreement to extend the contract by the annual exchange of Circle Four’s payment of $5,000 for the conveyance of 10 lots or the acreage equivalent. The court held that the oral contract was evidenced by their mutual performance and conduct, particularly the payment history. The court also held that the contract, as modified, is invulnerable to the Statute of Frauds and remains in force and is enforceable against the plaintiffs. The plaintiffs, Heitz and Schanes, then brought this appeal.

Heitz and Schanes argue first that the circuit court erred in finding that an oral modification of the written agreement had occurred. We disagree. Questions involving the existence of an orally modified contract involving the sale of land, the intent of the parties and the terms and conditions of the contract involve factual determinations (Nelson v. Estes (1987), 154 Ill. App. 3d 937, 941, 507 N.E.2d 530, 532; Hodgman, Inc. v. Feld (1983), 113 Ill. App. 3d 423, 428, 447 N.E.2d 450, 455), which will not be disturbed unless clearly contrary to the manifest weight of the evidence. See Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 727, 434 N.E.2d 786, 790.

In this case the circuit court found that the parties orally modified the written contract to provide that subdivision was no longer a prerequisite to the parties’ being able to extend the contract by Circle Four’s annual tender of $5,000 in exchange for the transfer of deeds to the acreage equivalent of 10 lots. Its finding is supported by the evidence that from the year 1971 (the first year in which Circle Four ceased to subdivide the land), Circle Four has tendered to Willhardt the amount of $5,000, approximately the same amount needed to purchase the acreage equivalent of 10 lots. Its finding is further supported by the fact that Willhardt took no legal action against either Commercial or the Moynans for conveying trustee’s deeds of Willhardt’s land to Circle Four. Moreover, there is no evidence that Willhardt had anything to gain from the condition that Circle Four subdivide the land prior to Willhardt’s conveyance of deeds. It thus appears that the parties did, in fact, orally modify the 1966 contract to eliminate subdivision as a prerequisite to Circle Four’s obtaining the acreage equivalent of 10 lots in exchange for its annual payment of $5,000. While there exists some evidence, namely the testimony of Helen Moynan, to suggest that the $5,000 payment was made merely to keep the contract open, we do not consider such evidence to be of a magnitude sufficient to compel us to conclude that the finding of the circuit court was against the manifest weight of the evidence.

Heitz and Schanes argue, next, that the Statute of Frauds prevents specific performance of the contract as orally modified. We disagree. Ordinarily, contracts for the sale of land and modifications thereof must be in writing to be enforceable. (Ill. Rev. Stat. 1985, ch. 59, par. 2; Nelson, 154 Ill. App. 3d at 940, 507 N.E.2d at 532.) However, a court may grant specific performance of an oral contract otherwise unenforceable under the Statute of Frauds where (1) the court has found the terms of the contract to be clear, definite and unequivocal, (2) the contract has been at least partially performed by the party seeking its enforcement, and (3) the acts done in performance are positively attributable exclusively to the contract. Blaise v. Stein (1979), 75 Ill. App. 3d 793, 796, 394 N.E.2d 836, 839.

In this case the circuit court found the clear and definite terms of the contract in the conduct, particularly the payment history, of the parties, and we have already concluded that its finding as to those terms was not against the manifest weight of the evidence. Additionally, Circle Four tendered annual payments of $5,000 to Willhardt, and it took actual possession and made valuable improvements on the land when it developed the land deeded to it by the Moynans in 1980. Such acts are sufficient to constitute part performance. (Anastaplo v. Radford (1958), 14 Ill. 2d 526, 538, 153 N.E.2d 37, 43.) Moreover, the circuit court found that such acts were attributable to the contract between Circle Four and Willhardt, and we conclude that such a finding is not against the manifest weight of the evidence. Thus, the circuit court had sufficient basis to grant the award of specific performance.

Heitz and Schanes argue that specific performance is, nonetheless, inappropriate because the legal remedy of money damages is available to compensate Circle Four and because the contract provides for future performance. We are persuaded, however, that the subject matter of the contract at issue has an intrinsic value sufficiently unique to render the award of money damages inadequate (Stevens v. Protectoseal Co. (1975), 27 Ill. App. 3d 724, 730, 327 N.E.2d 427, 432) and that the terms of the contract are not so detailed that court supervision would be complex. Forman v. Benson (1983), 112 Ill. App. 3d 1070, 1078, 446 N.E.2d 535, 541.

Therefore, because the findings of the circuit court as to the existence of the oral modification of the contract were not against the manifest weight of the evidence, and because the circuit court had sufficient basis upon which to award specific performance of the contract, we affirm its judgment.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.