text:
    LYLE SIMPSON, as Adm’r of the Estate of Jerry J. Simpson, Deceased, Plaintiff-Appellant, v. BYRON DRAGWAY, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0631
    Opinion filed March 18, 1991.

      Peter E Ferracuti and Mark A. Schindler, both of Law Offices of Peter F. Ferracuti, P.C., of Ottawa, for appellant.
    Paul C. Cozzi, John Edwin Norton, and James L. DeAno, all of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Lyle Simpson, as administrator of the estate of Jerry Simpson (decedent), appeals from an order of the circuit court of Winnebago County, which granted summary judgment in favor of defendants, Byron Dragway, Inc. (Dragway), and The National Hot Rod Association (NHRA). Plaintiff contends that there are genuine issues of material fact which preclude the granting of summary judgment. We affirm in part, reverse in part and remand.

On August 3, 1986, decedent, a licensed and experienced race car driver, was killed when his dragster collided with a deer during a race at the Dragway. On April 3, 1987, his estate filed a three-count complaint against the Dragway which sought damages for wrongful death, pain and suffering, and property loss. On May 20, 1988, the estate filed a nine-count amended complaint which added the NHRA as a defendant and sought damages based upon negligence and willful and wanton conduct.

On January 31, 1990, the Dragway filed a motion for summary judgment, with the NHRA doing the same nearly two months later. Both defendants alleged that they owed no duty to decedent to protect him against stray deer and, more importantly, were not liable as a matter of law due to releases which decedent executed. Plaintiff filed responses to both summary judgment motions, and the court heard arguments on June 1, 1990. Following arguments of counsel, the trial court granted the motion of each defendant. The court determined that the release effectively precluded liability against the Drag-way and, furthermore, that there were no facts submitted to support plaintiff’s willful and wanton counts. With respect to the NHRA, the court held that it did not exercise ownership or control over the Drag-way. Thus, the court determined that summary judgment was proper for both defendants. Plaintiff filed a timely notice of appeal.

The following statement of facts was gathered from the pleadings and evidence adduced during the numerous depositions. On August 3, 1986, decedent registered to race at the Dragway. Prior to entering the racetrack, he executed the following release of liability:

“This release limits your right to recovery of damages in case of accident. Read it before signing.

In applying to enter this race I promise that I will inspect the track prior to running on it, will assure myself that the track and adjacent areas are properly designed and maintained, and further agree that I will not participate in this race until I have completed an inspection which satisfies me that these areas are safe for race purposes. I will further note existing weather conditions and do agree that I voluntarily assume all risks arising from conditions related to use of the track area by myself or others.

I do agree to hold harmless and indemnify the owners and possessors of this track for any loss, cost, expense, damages or injury arising from my participation in this event.”

After executing the release, decedent proceeded to prepare for a time run. The time run took place before the actual elimination races were held.

According to track announcer Roger Millsap, decedent began his time run shortly before 1 p.m. Approximately midway through the run, Millsap observed a deer leave the wooded area beyond the race track and start to run toward the track. Shortly after decedent’s dragster passed the finish line, it hit the deer. Millsap described the impact as “a big burst of red, blood, and the dragster seemed to come to a stop quite quickly.” After the impact, Millsap announced to the spectators that he “knew this was going to happen.” Millsap indicated that he made the statement because he could see that the dragster and the deer were going to “make impact.”

Millsap left the control tower and went down to decedent’s dragster. Terry Simpson, decedent’s brother, had managed to pull decedent out of the dragster when Millsap arrived. An ambulance crew was also present. Decedent was still alive at this time, but was coughing and, according to Millsap, the left side of his body appeared to be crushed. However, decedent died shortly thereafter. Millsap made an announcement to the spectators, and all races were cancelled for the day.

It was Millsap’s belief that decedent never saw the deer before the impact. Millsap, who was also a race car driver, explained that a dragster restricts the driver’s vision to “just straight ahead” due to the limited amount of room in the car. In addition, he did not see decedent attempt any evasive maneuvers before the accident. Millsap pointed out that decedent did not apply his brakes before the impact because he completed the quarter-mile run in 8.95 seconds.

Millsap further indicated during his deposition that the length of the race track was 1,320 feet (one-quarter mile) from start to finish, with another 1,000 feet beyond the finish line to enable the cars or dragsters to slow down. A guardrail ran the entire length of the one-quarter-mile track and a four-foot-high chain link fence protected the grandstand and pit areas. There were no guardrails or fences beyond the finish line.

Millsap stated that he had seen deer near the finish line during the summer of 1986, approximately two months before decedent’s accident. Millsap did not stop the racing at that time because the deer were not on the dragstrip. However, he was at the Dragway in 1984 as a spectator when races were halted due to the presence of deer “in the vicinity” of the track. Millsap did not personally see the deer at that time.

Ronald Leek, the president and general manager of the Dragway, stated that he was working at the track on the day of decedent’s accident but did not actually see the accident. Leek observed decedent about three or four minutes after the accident and determined that he was “fatally injured.”

Leek indicated that he saw deer at the edge of the racetrack on one other occasion before August 3, 1986. However, the deer did not enter the track, and the racing was not halted. Leek denied stopping any races in 1984 due to the presence of deer, stating that he did not see any deer near the Dragway prior to 1986. However, Leek did remember seeing a group of dogs from a nearby “hound club” approach the track in 1984, but the racing was not stopped because the dogs appeared during intermission.

Terry Simpson, decedent’s brother, stated that he was also a race car driver and was participating in the time runs on August 3, 1986. Terry indicated that he drove in the time run immediately before decedent made his final run. Terry was in a position to see decedent’s entire time run, including the impact with the deer. Terry estimated decedent’s speed to be 150 miles per hour at the time of the impact.

Terry also stated that he had been to races at the Dragway during the previous 10 years and had never seen any deer or other wild animals in the woods near the racetrack or on the track itself.

The trial court relied on these facts to determine that summary judgment was proper in this case. The court stated:

“It appears to me that the release signed by [decedent] is very specific, it is certified that he had inspected the track and the adjoining areas and satisfied himself that the premises was [sic] safe in that the area was properly designed and maintained and that he was voluntarily assuming all risks and would hold the drag way harmless against any liability for loss or injury resulting from his participation.
The design and maintenance of the track are apparently the basis for the plaintiff’s allegation of negligence in this suit. I find, therefore, that as a matter of law the plaintiff’s action is barred by reason of his voluntarily entering into the exculpatory agreement as a preagreement participation in the race, and I find no material issue of fact to be determined on that issue.
Since willful and wanton conduct by the defendant might be actionable even in the face of the signed release, I would rule on the defendant’s summary judgment contention that there is no material issue of fact on that count. I find that there are no facts submitted by plaintiff to support a theory of willful and wanton conduct by the defendant. * * *
To complete the picture in the event of any appeal, I would rule that the plaintiff’s claim of simple negligence would survive the drag way’s summary judgment motion. I find that there are material issues of fact, particularly concerning the questions of knowledge by the defendant and foreseeability of the danger.
Therefore, I would grant the motion by Byron Dragway for summary judgment.
As to the Hotrod Association’s motion, I will also grant summary judgment. It appears to me that no action could be maintained for any theory of premises liability against the Hotrod Association. I find nothing in the summary judgment materials to suggest that the association had or exercised ownership or control over the facilities or had any significant control over the conduct of the race which would render them liable for the injury.”

On appeal, plaintiff contends that there are genuine issues of material fact present in this case, namely, whether the release of liability, which decedent signed, encompassed the risk of striking a deer during the course of a race and whether the Dragway’s failure to take preventive measures after it became aware of the deer’s presence on the racetrack constituted willful and wanton conduct. We will address each of plaintiff’s contentions in turn.

A motion for summary judgment should be granted only if the pleadings, depositions, and admissions on file demonstrate that no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) The granting of a motion for summary judgment is a drastic measure and should be used only when the evidence construed strictly against the movant clearly establishes the right thereto. (Purtill, 111 Ill. 2d at 240; Wadden v. Village of Woodridge (1990), 193 Ill. App. 3d 231, 236-37.) We will reverse a trial court’s order granting summary judgment only if we determine that a genuine issue of material fact exists. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294; Wadden, 193 Ill. App. 3d at 237.

We find it necessary to address each defendant separately on our review of the trial court’s order granting summary judgment in this case. With respect to the NHRA, the court determined that it did not exercise ownership or control over the Dragway or the race itself. Absent any ownership or control, the court found that “no action could be maintained for any theory of premises liability” against the NHRA. We agree with the court’s reasoning with respect to this defendant.

In a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140; Dinges v. Gabardi (1990), 202 Ill. App. 3d 732, 735.) The existence of a duty is a question of law for the trial court to determine. (Dinges, 202 Ill. App. 3d at 735; Romano v. Bittner (1987), 157 Ill. App. 3d 15, 23.) A defendant does not owe a duty to a plaintiff if the defendant does not control or intend to control the land. Collins v. Mid-America Bag Co. (1989), 179 Ill. App. 3d 792, 794; Stedman v. Spiros (1959), 23 Ill. App. 2d 69, 86.

The Collins decision is particularly illustrative to the situation present in this case. In Collins, the defendant organized a softball game in which the plaintiff participated and was injured. The plaintiff filed a negligence action against the defendant, alleging that the defendant had a duty to provide a safe playing field. The trial court dismissed the lawsuit, and we affirmed, holding that the defendant only had permission to use the land and did not actually control or intend to control the land. (Collins, 179 Ill. App. 3d at 794.) Thus, the defendant could not be held liable as a possessor of the land because it did not owe a duty to plaintiff with respect to the condition of the land. 179 Ill. App. 3d at 794.

Likewise, defendant NHRA did not own or control the land in the case at bar. Instead, the NHRA at most sanctioned the event, which meant that it awarded points for performance at the event. The NHRA did not own the track or otherwise control the track on the day in question. Absent any evidence of ownership or control, we find that the NHRA did not, as a matter of law, owe decedent a duty of care. Thus, the trial court properly granted the NHRA’s motion for summary judgment as to all counts.

We will now address plaintiff’s contentions as they relate solely to the Dragway. Plaintiff first contends that summary judgment should not have been granted because the release which decedent executed did not contemplate the risk of striking a deer during a race. Plaintiff points out that the danger of hitting a deer does not ordinarily accompany the risks associated with the sport of auto racing.

The Dragway disagrees with plaintiff’s characterization of this issue, instead asserting that our inquiry should focus on whether the design and maintenance of the dragway were sufficient to prevent the unexpected entry of “any moving object onto the track.”

In general, exculpatory agreements are enforceable unless it would be against the settled public policy of this State to do so or there is something in the social relationship of the parties which militates against upholding the agreement. (Harris v. Walker (1988), 119 Ill. 2d 542, 548; Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 602.) We note that such agreements have been upheld in an auto racing context where an injured driver or participant has brought suit against an owner or operator of a raceway. (See Schlessman v. Henson (1980), 83 Ill. 2d 82, 86; Lohman v. Morris (1986), 146 Ill. App. 3d 457, 460; Morrow v. Auto Championship Racing Association, Inc. (1972), 8 Ill. App. 3d 682, 685-86.) Plaintiff does not contend that the agreement in this case is per se unenforceable, but that it should not be enforced under these specific facts because the risk was not foreseeable.

An exculpatory agreement, such as the release of liability form in the present case, constitutes an express assumption of risk in that one party is consenting to relieve another party of a particular obligation. (Falkner, 178 Ill. App. 3d at 602; Russo v. The Range, Inc. (1979), 76 Ill. App. 3d 236, 238.) In order to effectively assume the risk of some occurrence, it must be demonstrated that the danger which caused the injury was one which ordinarily accompanied the activity and that the plaintiff knew, or should have known, that both the danger and the possibility of injury existed before the occurrence. (Falkner, 178 Ill. App. 3d at 602; Larsen v. Vic Tanny International (1984), 130 Ill. App. 3d 574, 576.) Thus, foreseeability of a specific danger is an important element of the risk which a party assumes and will often serve to define the scope of an exculpatory agreement. Larsen, 130 Ill. App. 3d at 577.

Plaintiff argues that the “striking of a deer while operating a race car on a drag strip is not the type of risk which ordinarily accompanies the sport.” Plaintiff relies on Larsen to support his argument that, at the very least, reasonable minds could differ on this issue such that summary judgment should not have been granted.

In Larsen, the plaintiff, a member of the defendant health club, was injured while exercising at the club as a result of inhaling gaseous vapors. The plaintiff signed a release as a part of his membership agreement which relieved the defendant of liability for “any damages arising from personal injury sustained *** on or about the premises of the said gymnasiums or as a result of their using the facilities and the equipment therein.” (Larsen, 130 Ill. App. 3d at 575.) The trial court denied the defendant’s motion for summary judgment, and the appellate court affirmed. The appellate court determined that the plaintiff could only assume the risks of a danger which he could reasonably foresee, such as the possibility of slippery surfaces near a swimming pool or steam room. (130 Ill. App. 3d at 578.) If the plaintiff could reasonably foresee the danger, then he or she could exercise a higher degree of caution in order to minimize the risks associated with the danger. (130 Ill. App. 3d at 578.) The court determined that, as a matter of law, the plaintiff could not reasonably foresee the possibility that dangerous vapors would be released while he was exercising at the health club. 130 Ill. App. 3d at 578.

We agree with plaintiff that Larsen supports his contention that summary judgment should not have been granted in this case. Whether a particular injury is one which ordinarily accompanies a certain activity and whether a plaintiff appreciates and assumes the risks associated with the activity often constitute a question of fact. (See Falkner, 178 Ill. App. 3d at 602; Russo, 76 Ill. App. 3d at 239-40.) We believe this is such a case.

In making this determination, we are mindful of Schlessman and its progeny, which the Dragway cites in support of its position. In Schlessman, our supreme court reviewed a broadly worded exculpatory agreement in which a race car driver acknowledged that he had inspected the “restricted area” (which included, but was not limited to, the “pit area, racing surface and infield, including walkways, concessions and other appurtenances therein”) and found these areas to be “safe and reasonably suited for the purposes of the racing program.” (Schlessman, 83 Ill. 2d at 84-85.) During the race, a portion of the track collapsed and caused the plaintiff to crash his car. The supreme court determined that the exculpatory clause effectively barred any recovery from the racetrack. The court stated:

“The racing of automobiles at a high speed in limited areas gives rise to various situations which have resulted in the death or injury to drivers, mechanics and spectators at these events. These accidents may occur because of factors involving mechanical failures, defective design of guardrails, driver error or weather conditions affecting driving surfaces. In sum, a myriad of factors, which are either obvious or unknown, may singly or in combination result in unexpected and freakish racing accidents. Experienced race drivers, such as plaintiff, are obviously aware of such occurrences and the risks attendant to the sport of auto racing. The parties may not have contemplated the precise occurrence which resulted in plaintiffs accident, but this does not render the exculpatory clause inoperable.” 83 Ill. 2d at 86.

The Dragway argues that the accident in the present case, like that in Schlessman, was “unexpected and freakish.” Defendant contends that decedent, by virtue of his participation in an inherently dangerous activity, was deemed to have contemplated a wide range of incidents which could give rise to an injury, including the possibility that an animal would run onto the racetrack. We disagree.

Although Schlessman held that the parties to an exculpatory agreement could contemplate that a wide range of accidents occur in auto racing, it did not hold that the range of accidents contemplated is without limit. The specific accident involved in Schlessman occurred as a result of a defective portion of the track. While the parties may not have contemplated that this section of the track would collapse during the race, they could contemplate a “broad range of accidents which occur in auto racing.” (Schlessman, 83 Ill. 2d at 86.) Problems with the racetrack surface are the type of risk which the exculpatory agreement was obviously intended to cover, even if it resulted in a “freakish” accident.

We also note that the Dragway correctly points out that other court decisions have upheld exculpatory agreements which have precluded recovery for various injuries. (See Harris, 119 Ill. 2d at 549-50 (horseback riders and falling from horse); Garrison v. Combined Fitness Centre, Ltd. (1990), 201 Ill. App. 3d 581, 585-86 (weightlifter and injury from weights); Falkner, 178 Ill. App. 3d at 602-03 (sky diver and entangled parachute during jump); Lohman, 146 Ill. App. 3d at 460-61 (pit crew member at racetrack struck by race car).) However, in each of these cases, the danger which caused the injury or fatality was one which ordinarily accompanied the activity, even if the parties themselves may not have anticipated the precise circumstances which resulted in the accident.

In the present case, the danger which caused decedent’s accident was not the type of risk which ordinarily accompanied the sport of auto racing. As such, a question of fact remains on this issue, and the trial court erred in granting summary judgment. See Larsen, 130 Ill. App. 3d at 577-78 (question of whether danger which the plaintiff was subjected to was a type which the parties intended to be excused by the exculpatory agreement was a question of fact); Russo, 76 Ill. App. 3d at 239-40 (question of fact existed as to whether the plaintiff assumed the risk of injury); see also Calarco v. YMCA (1986), 149 Ill. App. 3d 1037, 1043-44.

We next consider whether the trial court erred in granting the Dragway’s motion for summary judgment on the willful and wanton counts of the amended complaint. Plaintiff asserts that a question of fact exists as to whether the Dragway’s conduct constituted an “utter indifference to or conscious disregard for a person’s safety” by failing to provide barriers to prevent deer and other animals from entering the racetrack.

A complaint for willful and wanton conduct must allege the existence of a duty, a breach of that duty, and an injury proximately caused by the breach, along with an allegation that the defendant either intentionally injured the plaintiff or acted in reckless disregard for his safety. (Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 187; Breck v. Cortez (1986), 141 Ill. App. 3d 351, 359-60.) Whether conduct amounts to willful and wanton negligence is normally a question of fact for the jury to determine. Breck, 141 Ill. App. 3d at 359; Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1075.

The dispute between the parties on this issue concerns whether deer had been observed on or near the racetrack in the past. We will review the deposition testimony available to the trial court to determine if a question of fact exists on this issue.

Roger Millsap, the track announcer, testified that he saw three deer on the spectators’ side of the track, near the woods, in the summer of 1986. The races were not stopped at this time. He did state, however, that races were stopped during the summer of 1984 because deer were in the track’s vicinity. Millsap was at the track that day, but was not an employee of the track at that time. Although he did not actually see the deer, he indicated that it was Ron Leek’s decision to stop the races and “see what happens.”

Ron Leek testified that he saw deer near the racetrack approximately two months before the accident, but the races were not stopped. He indicated that the races were not stopped during 1984, or any other year, due to the presence of deer. He did note, however, that dogs from a nearby hound club approached the end of the track on one occasion in 1984, but no races were stopped because the dogs arrived during intermission.

Thus, it is apparent that the Dragway knew that deer and dogs had been sighted near the racetrack on at least two occasions prior to the accident. The question becomes whether the Dragway’s failure to take precautionary measures to prevent the animals from entering the track constituted willful and wanton negligence. We believe that this is a question for the trier of fact to answer. It is the trier of fact’s function to weigh the evidence, judge the credibility of the witnesses, and draw ultimate conclusions of fact. (Braun v. Board of Education of Red Bud Community Unit School District No. 132 (1986), 151 Ill. App. 3d 787, 793.) As we previously indicated, the question of whether a defendant’s conduct amounts to willful and wanton negligence is normally a question of fact for the fact finder to decide. (Braun, 151 Ill. App. 3d at 793; Breck, 141 Ill. App. 3d at 359.) Given that a question of fact exists, the trial court’s order must be reversed.

For these reasons, the judgment of the circuit court of Winnebago County is reversed with respect to the Dragway, and the cause is remanded for a trial on the merits of the amended complaint. The court’s order granting summary judgment in favor of the NHRA is affirmed.

Affirmed in part; reversed in part and remanded.

WOODWARD and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
      In re T.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.M., Respondent-Appellant).
    Second District
    No. 2 — 89—0134
    Opinion filed March 12, 1991.

      G. Joseph Weller, Robert C. Cooper, and Thomas A. Lilien, all of State Appellate Defender’s Office, of Elgin, for appellant.

      Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

T.M., the minor respondent, was charged by a petition to revoke probation, stating that he was a delinquent minor (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 3) and had committed criminal damage to property under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)). Following a joint trial with D.C., minor corespondent, T.M. was found guilty and, after a dispositional hearing, committed to the Department of Corrections (DOC).

Defendant raises two issues on appeal: (1) his appointed attorney had a conflict of interest which denied him a fair trial, and (2) his sentence to the DOC was an abuse of the court’s discretion.

T.M. and D.C. were represented by separate public defenders, both of whom were employed by the Lake County public defender’s office. Upon T.M.’s case being called for hearing, the State moved to consolidate T.M.’s case with that of D.C. While the hearing record does not reflect an objection by either public defender, the judge stated the cases would be joined over objection of the attorneys.

The State’s evidence revealed that T.M. and D.C. were students attending Reach Program classes at Waukegan East High School. Pursuant to program rules a teacher’s aide escorted T.M. and D.C. to a boy’s washroom. Ten seconds after they entered, the teacher’s aide heard loud banging noises lasting a few seconds. She entered the washroom and observed T.M. on his way out and D.C. standing at the urinal. She noticed a metal stripping torn off a stall door and the stall itself damaged. The damage was not present when she was last inside the washroom a couple of days earlier. A dean of students testified he was in the washroom several hours earlier and the stall was undamaged. He observed damages to the stall door, commode, and sink. He estimated repair costs at $295. After the State rested its case in chief, T-M.’s and D.C.’s attorneys argued motions for directed findings. The court denied the motions, stating that the circumstantial evidence was sound and, based on its extent and the loud banging noises, all of the damage could not have been done by one person alone. T.M. and D.C. presented no evidence and were found guilty.

After T.M. was committed to the DOC, his attorney filed a motion for a new trial and pointed out for the first time the following: after the alleged offense, T.M. and D.C. had each given school authorities statements exculpating themselves and implicating the other. According to the motion T.M. initially had told his attorney that he wished to testify that D.C. alone committed the damage. However, during the joint trial, D.C. was given the opportunity to testify first but refused to do so. Thereafter, T.M. also declined to testify. T.M.’s attorney argued that T.M. declined to testify because D.C.’s presence in the courtroom had a “chilling” effect on him, and he buckled to peer pressure because D.C. declined to .testify.

The court denied the motion, commenting that the joinder was proper under the evidence presented and that T.M. was not prejudiced.

T.M., in support of his theory that his attorney had a conflict of interest, points out the following: both attorneys were employed in the same small public defender’s office; mirror defenses were presented; his attorney failed to present evidence of his exculpatory statement to school officials.

The Illinois Supreme Court has refused to find that representation of multiple defendants by attorneys from the same public defender’s office gives rise to a per se conflict of interest that deprives the defendant of effective assistance of counsel. (People v. Banks (1987), 121 Ill. 2d 36; People v. Robinson (1979), 79 Ill. 2d 147.) To prevail on a claim of ineffective assistance of counsel due to joint representation, a defendant must show an actual conflict of interest manifested at trial. (People v. Berland (1978), 74 Ill. 2d 286, 299-300; People v. Vriner (1978), 74 Ill. 2d 329, 341.) The determination of an actual conflict is made on a case-by-case basis. (People v. Nelson (1980), 82 Ill. 2d 67, 73.) When incompetency of trial counsel is alleged, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within a wide range of professional assistance. (People v. Albanese (1984), 104 Ill. 2d 504, 526.) Mere hypothetical or speculative conflicts will not suffice. People v. Berland, 74 Ill. 2d at 301.

Respondent cites People v. Black (1987), 154 Ill. App. 3d 1076, in support of his premise that the antagonistic defenses of T.M. and D.C., asserting innocence and implicating each other, created an actual conflict of interest. In Black, the office of the Fifth District State Appellate Defender (OSAD) represented codefendants Roby and Brooks on separate appeals. The court found that OSAD’s fifth district office, which employed 11 attorneys, labored under an actual conflict of interest in its representation of Roby based on the antagonism of its appellate defense in relation to Brooks and the limited number of attorneys working in close proximity in that office. People v. Black, 154 Ill. App. 3d at 1080.

We recognize that appellate representation, like that in Black, does not implicate to the same extent the risk attendant on trial representation that confidential communications will be abused or that divided loyalty will interfere with an attorney’s ability to develop a favorable trial record. (People v. Rogers (1981), 101 Ill. App. 3d 614, 617.) Accordingly, we also acknowledge that appellate representation cases call for a less vigorous standard than that which is applicable when a trial representation situation is involved. (Rogers, 101 Ill. App. 3d at 617.) Nevertheless, we do not believe Black requires a finding of an actual conflict in this case. The Black court did not rely solely on the fact that the codefendants presented antagonistic defenses. The court made clear that the limited number of attorneys, who worked in close proximity to one another, was also a significant factor in its decision. In contrast, there is nothing in the record now before us to show the number of attorneys employed in the Lake County public defender’s office or their working relationship. We find it highly questionable whether, absent information regarding the number and work conditions of the attorneys involved there, the Black court would have found an actual conflict of interest. In our opinion, this case is not controlled by Black.

T.M. relies also on People v. Vaughn (1990), 200 Ill. App. 3d 765, in support of his claim that his counsel had a conflict which denied him effective legal assistance. In Vaughn, defendant filed a pro se motion to withdraw a guilty plea, alleging his public defender attorney failed to explain the particular aspects of his case before he pleaded guilty and thereby provided ineffective assistance of counsel. At the motion hearing to withdraw his plea of guilty, defendant refused to accept another public defender from the same office because, according to defendant, that particular public defender had been defendant’s trial attorney’s partner when his case was first heard and therefore had a conflict of interest. The trial court refused defendant’s request to appoint a nonpublic defender as his attorney. Thereafter, defendant proceeded pro se. His motion to withdraw the guilty plea was denied.

Potential conflict of interest evidence available to the reviewing court was (1) defendant’s statement that the public defender the court offered to appoint had been defendant’s trial attorney’s partner when defendant’s case was first heard, (2) defendant was alleging incompetency of his trial attorney and did not want that attorney’s partner representing him, and (3) the court records reflected the two public defenders had provided joint representation to various defendants in other cases before the same trial judge who heard defendant’s plea and motion to withdraw it. The reviewing court ruled the trial court erred when it failed to conduct a hearing on the evidence presented to determine whether a conflict of interest did in fact exist and remanded the case to the trial court with a mandate to conduct such hearing. In reliance on Vaughn, defendant asks we remand the case to the trial court to determine if his attorney had a conflict of interest based on the premise that the trial court record strongly indicates the existence of such conflict. The evidence in Vaughn specifically points to a potential conflict of interest between two public defenders who worked in the same courtroom and participated in a number of joint trials when one is asked to represent a defendant who charges the other public defender with a conflict of interest. Similar facts are not present in respondent’s case, and we disagree with respondent’s contention that the trial and post-trial conduct coupled with the fact that both public defenders are employed in the same office strongly indicates the existence of a close, personal relationship between respondent’s and D.C.’s public defenders.

T.M. next argues that failure of his attorney to bring forth evidence of his exculpatory statement during cross-examination of the State’s witnesses was proof of less than vigorous representation which supports his claim that the attorney conflict resulted in ineffective assistance of counsel. Implicit in this argument is that T.M.’s attorney did not cross-examine on this point because of an allegiance owed to D.C. or D.C.’s attorney as a public defender from the same office. A more reasonable alternative rational to explain the absence of such evidence is the hearsay rule which, absent a recognized exception, would make T.M.’s exculpatory statements to school officials inadmissible. It should be noted that T.M. does not raise the issue of ineffective assistance of counsel based on standards established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

Respondent focuses also on indication in the record that, although T.M.’s attorney was prepared to have him testify in support of his exculpatory position, T.M. declined to testify when given the opportunity. T.M. claims that he did not testify because of the “chilling” effect of D.C.’s presence and the peer pressure resulting from D.C.’s refusal to testify. It is undisputed that respondent’s attorney did not make an objection to a joint trial on the specific basis that T.M. would be intimidated if tried together with D.C. T.M. argues that his attorney’s failure to make such an argument reflects a lack of vigorous representation which, in turn, is indicative of an attorney conflict. We find that respondent’s argument regarding the chilling effect of a joint trial, while novel, fits well into the category of speculation and conjecture. As such it is insufficient to support a finding of an actual attorney conflict.

In denying T.M.’s motion for a new trial, the court stated the joinder of the corespondents was consistent with section 114 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 7) (joinder of related prosecutions) and that T.M. was not prejudiced. We agree.

Although the hearing would have flowed along lines of higher professional standards if the details of the antagonistic defenses had been fully explained to the court initially, the irrefutable fact is that they were later made fully known to the court, which concluded in retrospect that no actual prejudice resulted to the minor.

Next, T.M. alleges that his commitment to the DOC was an abuse of the court’s discretion. The choice of a dispositional order rests within the sound discretion of the trial court, and, absent a showing of abuse, the trial court’s determination should not be reversed on review. (In re Griffin (1982), 92 Ill. 2d 48, 54; In re Napier (1980), 83 Ill. App. 3d 503, 506.) After reviewing the record, we find no abuse of the trial court’s discretion.

The dispositional hearing evidence showed that T.M., age 13, had been adjudicated a ward of the court in 1986 for attempted residential burglary and two counts of theft and had violated probation by committing the offense of burglary to a motor vehicle. In 1987, respondent had been charged with attempted theft and aggravated battery, readjudicated a ward of the court, and placed in S.T.A.Y. for one year. In November 1988 he had been placed on intensive probation for the offense of misdemeanor theft and three weeks later had violated probation by committing the offense of criminal damage to property. T.M.’s mother had tried but was unable to control his behavior. Although T.M. did not have a drug or alcohol problem, he had had 27 police contacts since 1984. While in juvenile custody awaiting a dispositional hearing in this case, his conduct had been relatively well behaved. Three residential placement agencies evaluated T.M. for purposes of the dispositional hearing in this case. One rejected T.M. based on his negative criminal behavior, low IQ, and lack of impulse control. The other two agencies would accept T.M. only on a 30-day probationary status. Cumulatively, the evidence supports the sentence imposed by the trial court.

Respondent argues the court erred in failing to place him in a residential treatment center which indicated he would be conditionally acceptable and cites in support of Ms position In re B.S. (1989), 192 Ill. App. 3d 886, and In re M.D.B. (1984), 121 Ill. App. 3d 77. We distinguish In re B.S. wherein experts testified B.S. would best respond to a residential placement treatment, and commitment to the DOC would be, at the least, inappropriate and, at worst, extremely destructive. In committing B.S. to the DOC, the trial judge stated he had no other option because none had been provided. The hearing record indicated the attorneys for the State and respondent were not fully prepared to advise the court of all possible placement alternatives and the case was therefore remanded to the trial court for a new dispositional hearing. In the case sub judice, the court was fully advised of alternative placements at the dispositional hearing.

The only finding specifically necessary before making a commitment to the DOC of a minor declared a delinquent and a ward of the court are those stated in the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.; In re S.R.F. (1980), 80 Ill. App. 3d 738, 740). Prior to 1983, Illinois law permitted a minor to be committed to the DOC only if the court found (a) his parents are unable, for some reason other than financial circumstances alone, to care for, protect, train, or discipline the minor, and the public would not be served by placement under section 5 — 7 of the Act. (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 10(1); see In re M.D.B., 121 Ill. App. 3d 77.) A 1983 amendment to the Act enlarged the court’s discretion in committing an adjudicated ward to the DOC. Pursuant to that amendment:

“When any delinquent has been adjudged a ward of the court under this Act, the court may commit him to the Department of Corrections, Juvenile Division, if it finds that (a) his parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the best interests of the minor and the public will not be served by placement under Section 5 — 29; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 805-33(1).

We note the distinction described above because T.M. has cited case law, i.e., In re M.D.B. (121 Ill. App. 3d 77), which uses language interpreting the Illinois statutes relating to commitment of minors to the DOC as it existed prior to 1983.

In committing T.M., the hearing judge noted that T.M.’s mother, for reasons other than financial, was willing but unable to care for, protect, train or discipline him, and that it was in the best interest of the minor and the public that he be deterred from committing other crimes and that commitment was necessary to protect the public from the consequences of his criminal activity. The finding of the hearing judge is consistent with both the evidence presented at the dispositional hearing and the provisions of section 5 — 33(1)(b) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 33(l)(b)). We find no abuse of the court’s discretion in T.M.’s sentence to the DOC.

For these reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

REINHARD, P.J., and DUNN, J., concur.


author: JUSTICE UNVERZAGT

text:
    MAUREEN HOTH, f/k/a Maureen Prondzinski, Plaintiff-Appellant, v. WILLIAM J. STOGSDILL, JR., et al., Defendants-Appellees.
    Second District
    Nos. 2 — 90—0014, 2 — 90—0498 cons.
    Opinion filed February 15, 1991.
    — Rehearing denied June 4, 1991.

      Hedberg, Tobin, Flaherty & Whalen, of Chicago (Edward J. Whalen, of counsel), for appellant.
    William F. Martin, of Ruff, Weidenaar & Reidy, Ltd., of Chicago (James R. Quinn, of counsel), for appellees William J. Stogsdill, Jr., Kowalczyk & Stogsdill, Ltd., and Andrew Carter.
    Patrick K. Bond, of Schirott & Associates, P.C., of Itasca, for appellee Mark Kowalczyk.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

In this consolidated appeal, plaintiff, Maureen Hoth, formerly known as Maureen Prondzinski, appeals from the orders of the circuit court of Du Page County dismissing her complaint for legal malpractice against defendants, William J. Stogsdill, Jr.; William J. Stogsdill, Jr., P.C., a professional corporation; Kowalczyk and Stogsdill, Ltd., a professional corporation; Andrew Carter and Mark Kowalczyk.

On or about March 28, 1984, plaintiff engaged defendants to represent her in an action filed by Du Page National Bank (the bank) in the circuit court of Du Page County. The action arose out of a loan made by the bank in May 1978 to plaintiff’s former husband and his business partner. The two men used the proceeds of the loan to purchase a parcel of real estate in West Chicago. The loan was secured by a mortgage on the property. At the time of the closing on the loan, plaintiff executed and delivered her personal guarantee of the loan.

Some time in 1981, the two men defaulted on the repayment of the loan. In December 1983 the bank filed a two-count complaint seeking, in count I, foreclosure against the real estate and, in count II, a judgment against the plaintiff on her guarantee of the loan. On May 15, 1984, the court entered a judgment in favor of the bank and against plaintiff in the amount of $79,042.84.

When the bank commenced supplementary proceedings against plaintiff to enforce the judgment, plaintiff retained new attorneys. Pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401), counsel for plaintiff filed a motion to vacate the May 15, 1984, judgment. On January 14, 1986, the trial court entered an order vacating the judgment. On July 28, 1987, this court in DuPage National Bank v. Jackson (1987), 156 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23), reversed the trial court’s decision and remanded the case for reinstatement of the judgment. On December 28, 1987, plaintiff filed a voluntary petition in bankruptcy.

On May 11, 1989, plaintiff filed a complaint against defendants alleging that defendants were negligent in their representation of her and that their negligence caused the judgment to be entered against her and in favor of the bank. Plaintiff had not listed this cause of action in the schedule listing all property of the plaintiff on her petition in bankruptcy.

Defendants moved to dismiss plaintiff’s complaint on the ground that she lacked standing to bring the action because of her pending bankruptcy. Plaintiff filed a response to defendants’ motion which included an affidavit from the bankruptcy trustee, stating that he consented to plaintiff’s filing of the action while awaiting a determination by the bankruptcy court regarding whether the cause of action was property of the bankrupt’s estate. Plaintiff’s response also included an amendment to her petition in bankruptcy, listing her cause of action against defendants as personal property. Plaintiff also submitted an October 10, 1989, letter from the trustee establishing the trustee’s intention to abandon the claim. On October 11, 1989, the trial court denied defendants’ motion to dismiss the complaint.

On November 9, 1989, defendants filed a motion to reconsider the court’s October 11, 1989, order denying their motion to dismiss. To their motion to reconsider, defendants attached the amendment to plaintiff’s bankruptcy petition which listed plaintiff’s cause of action as personal property and which had been previously submitted to the court by plaintiff prior to the trial court’s October 11, 1989, order denying defendants’ motion to dismiss. Defendants also submitted a copy of a notice from the bankruptcy court setting a hearing for November 17, 1989, on the trustee’s application to settle and compromise the adversary proceeding brought by him against plaintiff. That settlement included the proposed transfer to plaintiff of the trustee’s right, title, and interest in the instant cause of action. Based on the attachments to their motion to reconsider, defendants argued that plaintiff’s cause of action was an asset in the bankruptcy matter and that until there was an abandonment of the cause of action by the trustee, plaintiff had no standing to bring the action.

At a November 16, 1989, hearing on defendants’ motion to reconsider, the trial court granted defendants’ motion and dismissed plaintiff’s complaint with prejudice due to lack of standing.

Following the bankruptcy court's November 17 hearing on the trustee’s application to settle and compromise, that court entered an order on November 22, 1989, authorizing, among other things, the trustee to transfer to plaintiff his interest in plaintiff’s action against defendants. On November 30, 1989, plaintiff filed a motion to reconsider the trial court’s November 16, 1989, order dismissing the complaint. To that motion plaintiff attached a copy of the bankruptcy court’s November 22 order. Plaintiff maintained that, in dismissing plaintiff’s complaint, the trial court unduly relied on the bankruptcy court’s November 17 notice of hearing to rule that plaintiff’s claim belonged to the bankruptcy estate. Additionally, plaintiff asserted that the November 17 notice pertained to matters other than the instant cause of action and that the bankruptcy court’s November 22 order, while making no determination regarding whether plaintiff’s legal malpractice claim against defendants was property of the bankruptcy estate, authorized the trustee to assign his interest, “if any,” in the action to plaintiff.

Relying on the bankruptcy court’s November 22 order, plaintiff argued that the claim was never a part of the bankruptcy estate but asserted that, even if it had belonged to the estate, plaintiff had the right to file her cause of action against defendants. It was plaintiff’s position that, if she had not filed and preserved her cause of action while awaiting the trustee’s decision whether to pursue or abandon the claim, the statute of limitations on bringing her action could have run and she would have lost her right to bring the action. On December 19, 1989, the trial court denied plaintiff’s motion to reconsider. Plaintiff filed a timely notice of appeal.

Prior to the trial court’s December 19 order, the trustee in a letter dated December 12, 1989, assigned his interest in the instant cause of action to plaintiff. The trustee’s assignment included his rights under section 108 of the Bankruptcy Reform Act of 1978 (11 U.S.C. §108 (1978)) to commence a cause of action within two years from the commencement of the order for relief signified by plaintiff’s filing of her bankruptcy petition on December 28,1987.

On December 22, 1989, plaintiff filed another complaint which was, in large part, identical in content to the complaint dismissed on November 16, 1989. The latter complaint differed from the former complaint in that it asserted the assignment from the trustee to plaintiff of the trustee’s interest in plaintiff’s claim of legal malpractice against defendants. Attached to the complaint was the trustee’s December 12, 1989, letter, assigning his interest in the claim to plaintiff, as well as the bankruptcy court’s November 22, 1989, order, authorizing the trustee to assign such interest. Plaintiff had not possessed this assignment at the time the earlier complaint was dismissed on November 17,1989.

On February 22, 1990, defendants filed a motion to dismiss the latter complaint, stating that the allegations in the complaint were identical to those set forth in plaintiff’s former complaint, that the dismissal of plaintiff’s former complaint was on appeal, and that since another action was pending between the same parties for the same cause, plaintiff’s latter complaint should be dismissed pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)). On April 26, 1990, the trial court granted defendants’ motion and dismissed the complaint with prejudice.

Plaintiff appeals from the trial court’s April 26 order, contending that the trial court erred in dismissing the complaint because plaintiff’s appeal of the dismissal of her former complaint, case No. 2— 90 — 0014, does not constitute a prior action pending between the parties. Before addressing this issue, however, we first consider the issues raised in plaintiff’s appeal of the dismissal of her former complaint.

In that appeal, plaintiff contends: (1) that she possessed standing to bring her cause of action for legal malpractice against defendants because the action was not property of the bankruptcy estate and (2) that the trial court abused its discretion in denying plaintiff’s motion for reconsideration of its order dismissing plaintiff’s complaint.

In her first contention plaintiff admits that, if a cause of action is property of the bankruptcy estate, the bankruptcy trustee is the proper party to bring the action but asserts that her cause of action for legal malpractice against defendants is not property of the estate because the action is personal to her and nonassignable. Therefore, plaintiff argues, only she possessed the standing to bring her claim against defendants.

Conversely, defendants contend that plaintiff’s filing of her bankruptcy petition created a bankruptcy estate consisting of all her assets, including her cause of action against defendants, and that, once the bankruptcy estate was created, the bankruptcy trustee became the estate's sole representative empowered to pursue any legal action. Thus, defendants argue, the trustee, and not plaintiff, was the only one who had standing to bring the cause of action for legal malpractice against defendants.

In Christison v. Jones (1980), 83 Ill. App. 3d 334, plaintiff, trustee of a bankruptcy estate, sued defendant, an attorney, based upon his negligent representation of the bankrupt in litigation occurring prior to the bankruptcy. Plaintiff maintained that the cause of action for legal malpractice was an asset of the bankruptcy estate and that, as trustee, he was owner of the cause of action. Defendant filed a motion to dismiss the malpractice complaint, arguing that the malpractice claim was not assignable. The trial court granted the motion to dismiss, finding that the cause of action did not pass to the trustee.

On appeal, the court analyzed whether, under the Bankruptcy Act (the former Bankruptcy Act) (11 U.S.C. §110(a)(5) (1964)) and Illinois law, the right to file an action for legal malpractice was an asset of the bankrupt’s estate which the trustee could pursue in court. Section 70(a) of the Bankruptcy Act, which the court determined was applicable to the case before it, provided:

“(a) The [T]rustee of the estate of a bankrupt *** shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this [act] *** to all of the following kinds of property wherever located * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered: Provided, That rights of action ex delicto for libel, slander, injuries to the person or the bankrupt or of a relative, whether or not resulting in death, seduction, and criminal conversation shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process.” (Emphasis added.) 11 U.S.C. §110(a)(5) (1964).

Relying on the personal nature of the relationship between attorney and client and public policy considerations surrounding that relationship, the court determined that the decision to institute a malpractice action was one for only the client to make. Accordingly, the court concluded that under section 70(a) of the Bankruptcy Act (11 U.S.C. § 110(a) (1964)), a cause of action for legal malpractice was not transferable and, therefore, not part of the estate of the bankrupt.

Under the holding in Christison, plaintiff here is correct in asserting that her cause of action for legal malpractice against defendants was personal and nonassignable and, therefore, not property of the bankruptcy estate. However, defendants point out, and correctly so, that the Christison decision was based on section 70(a) of the former Bankruptcy Act. (11 U.S.C. §110(a) (1964).) Section 70(a) was the predecessor statute to section 541 of the Bankruptcy Reform Act of 1978 (the Reform Act) (11 U.S.C. §541 (Supp. II 1978)), the statutory section applicable to the instant case.

Whereas under section 70(a)(5) of the former bankruptcy statute the bankruptcy trustee only got title to property that, prior to the debtor’s filing a bankruptcy petition, creditors could have reached by judicial process or the debtor could have transferred under State law (11 U.S.C. §110(a)(5) (1964)), under section 541(a)(1) of the Reform Act, all property of the debtor is included in the estate. Section 541(a)(1) defines property of the bankruptcy estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.” (11 U.S.C. §541(a)(1) (Supp. II 1978).) The parties have not directed us to, nor have we discovered through our own research, any Illinois cases which, since the Reform Act eliminated the restrictive language of section 70(a)(5) of the former Act, have considered whether a bankruptcy trustee can take title to a debtor’s cause of action for legal malpractice. However, the congressional reports on the Reform Act indicate that the scope of section 541(a)(1) is broad and includes causes of action. (See United States v. Whiting Pools, Inc. (1983), 462 U.S. 198, 205, 76 L. Ed. 2d 515, 522, 103 S. Ct. 2309, 2313-14; Sierra Switchboard Co. v. Westinghouse Electric Corp. (9th Cir. 1986), 789 F.2d 705, 707.) Furthermore, it is no longer relevant whether property is assignable under State law. (Sierra, 789 F.2d at 709.) All property, even property which would have formerly been considered exempt, becomes part of the bankruptcy estate under section 541.11 U.S.C. §541(a)(1) (Supp. II 1978).

We question whether, in some circumstances, it would be undesirable, on public policy grounds, to transfer certain property interests to the bankruptcy trustee. A claim for legal malpractice would appear to be that type of interest. Congress, however, provided for public policy considerations when it included section 522 in the Reform Act. (11 U.S.C. §522 (Supp. II 1978).) Under section 522, a debtor is permitted to exempt certain property after it has been included in the bankruptcy estate. (11 U.S.C. §522 (Supp. II 1978).) Section 522(b) provides in relevant part:

“Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate *** —
*** any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that
is applicable on the date of the filing of the petition ***.” n U.S.C. §522(b)(2)(A) (Supp. II1978).

Illinois prohibits a debtor from using the Federal exemptions provided in section 522(b) of the Reform Act. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 1201.) Thus, whether plaintiff’s malpractice claim in the instant case is exempt from the bankruptcy estate depends on whether Illinois law allows an exemption for such claims. A legal malpractice action, however, is not included in the list of personal property exemptions permitted by Illinois statute. See Ill. Rev. Stat. 1987, ch. 110, par. 12 — 1001.

It is not entirely clear whether the exemptions referred to in section 522 are only statutory in nature. If common law exemptions apply, then plaintiff’s legal malpractice claim would constitute exempt property, as, in Illinois, a common law action for legal malpractice is personal to the client and not assignable. (Clement v. Prestwich (1983), 114 Ill. App. 3d 479, 480.) Such an action arises from the personal relationship which exists between attorney and client and is a claim that the client’s attorney has breached his personal duty and trust to that client by failing to exercise the requisite degree of care and skill or by failing to give the utmost loyalty and fidelity to the client’s interest (Christison v. Jones, 83 Ill. App. 3d at 338), and that the client has been injured as a result of the breach. (Clement, 114 Ill. App. 3d at 480.) “[Sjound public policy prohibits the assignment of [legal malpractice] claims since an assignee would be a stranger to the attorney-client relationship, who was owed no duty by the attorney and who suffered no injury from the attorney’s actions.” (114 Ill. App. 3d at 480-81.) Based on this finding and if common law exemptions are permitted to exclude certain property from the bankruptcy estate, a bankruptcy trustee could not possess an action for legal malpractice even though it was an asset of the bankruptcy estate. Nevertheless, whether plaintiff’s legal malpractice claim constituted property which could be found exempt from the bankruptcy estate based on Illinois common law was a determination to be made by the bankruptcy court. However, such a determination was never reached by that court.

At the initial hearing on defendants’ motion to dismiss plaintiff’s complaint, the trial court ruled against defendants, stating that the evidence was insufficient to show that plaintiff’s malpractice claim was property of the bankruptcy estate. In our view, it was untimely for the trial court to rule on defendants’ motion to reconsider the trial court’s denial of its motion to dismiss until the bankruptcy court had made a determination regarding whether the plaintiff’s malpractice action belonged to plaintiff or to the bankruptcy estate, especially in light of the fact that a hearing before the bankruptcy court on that matter was scheduled for November 17, 1989, the day immediately following the November 16 hearing on defendants’ motion for reconsideration.

At the November 16 hearing, defendants presented to the trial court the notice of the bankruptcy court’s November 17 hearing wherein that court stated that on November 17 it would consider the transfer by the bankruptcy trustee to plaintiff of any interest the trustee “may have” in the malpractice action. In light of this fact, the trial court should have continued the matter before it until after the bankruptcy court’s hearing. Instead, the trial court, apparently relying on the November 17 notice’s reference to the trustee’s possible interest in plaintiff’s malpractice action and ignoring that the malpractice claim had been listed as an exemption on plaintiff’s bankruptcy petition, determined that the cause of action was property of the bankruptcy estate and, therefore, could be brought only by the trustee.

Although the bankruptcy court’s order of November 22, 1989, specifically stated that it was making no determination whether the legal malpractice claim was property of the bankruptcy estate, it did order the trustee to transfer his interests, “if any,” in the claim to plaintiff in exchange for plaintiff’s payment of $2,500 to the trustee. The payment represented a compromise between the trustee and plaintiff of the trustee’s objections to plaintiff’s claimed exemptions. Among those objections was the trustee’s objection to plaintiff’s claimed exemption to her right, as opposed to the trustee’s, to bring the legal malpractice action against defendants. That objection, as well as others which the trustee had filed in the bankruptcy court against plaintiff’s claimed exemptions, was ordered withdrawn by the bankruptcy court in its November 22 order. In effect, therefore, the trustee assigned the malpractice claim to plaintiff in return for a payment of $2,500. The effect of the bankruptcy court’s order was to take the cause of action for legal malpractice out of the bankruptcy court and give it to the plaintiff, who then had standing to proceed with the action.

At the December 19, 1989, hearing, on plaintiff’s motion for reconsideration of the trial court’s November 16 order dismissing plaintiff’s complaint, plaintiff presented the bankruptcy court’s November 22 order to the trial court. Given that order, it was evident at the hearing on plaintiff’s motion for reconsideration that plaintiff had standing to bring the malpractice claim. As defendants’ main premise in their motion to dismiss was plaintiff’s lack of standing, the trial court should have granted plaintiff’s motion to reconsider and vacated its November 16,1989, order dismissing plaintiff’s complaint.

Defendants argue that the court’s December 19 order, denying plaintiff’s motion to reconsider, is not properly before this court because plaintiff failed to appeal that order. Therefore, defendants assert, plaintiff cannot raise in this court the issue of the trial court’s abuse of discretion in denying plaintiff’s motion to reconsider. However, as plaintiff correctly points out, although an order denying a post-judgment motion is not appealable (Sears v. Sears (1981), 85 Ill. 2d 253, 258), an appeal from the underlying judgment, which plaintiff has filed here, carries with it the ruling denying the post-judgment motion (Ingle v. Hospital Sisters Health System (1986), 141 Ill. App. 3d 1057, 1060). Thus, plaintiff’s December 19 motion to reconsider is properly before this court. Moreover, the motion did bring new information to the trial court’s attention, i.e., that, as of November 22, 1989, plaintiff owned the legal malpractice claim. The trial court abused its discretion in denying plaintiff’s post-judgment motion, and we, therefore, reverse that denial.

In view of our disposition in the instant case, it is not necessary to review the issues raised in case No. 2 — 90—0498 of this consolidated appeal.

In case No. 2 — 90—0014, the judgment of the circuit court of Du Page County dismissing plaintiff’s complaint is reversed, and the cause is remanded for further proceedings.

In case No. 2 — 90—0498, the circuit court’s judgment dismissing plaintiff’s complaint on the ground that another action between the same parties for the same cause was pending is affirmed.

No. 2 — 90—0014, Reversed and remanded.

No. 2 — 90—0498, Affirmed.

REINHARD, P.J., and WOODWARD, J., concur.


author: JUSTICE McLAREN

text:
    FRED J. ORTEGEL et al., Plaintiffs-Appellants, v. ITT THORP CORPORATION, Defendant-Appellee.
    Second District
    No. 2 — 90—0827
    Opinion filed March 18, 1991.

      Michael W. Gantar, of Gantar & DeMartini, Ltd., of Antioch, for appellants.
    Scott H. Kenig, of O’Neill & Bockelman, P.C., of Lake Forest, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Fred and Lucille Ortegel, appeal from an order of the circuit court which denied their motion for summary judgment and granted summary judgment in favor of defendant, ITT Thorp Corporation, on its cross-motion. The sole issue on appeal is whether the Illinois Interest Act (Ill. Rev. Stat. 1989, ch. 17, par. 6401 et seq.) prohibits loan charges from being computed on the basis of the “Rule of 78’s” when the loan is a residential real estate mortgage in excess of $25,000. We affirm.

Plaintiffs filed a complaint in the circuit court based on a note executed by plaintiffs on December 29, 1983, and held by defendant. According to the terms of the note, defendant loaned to plaintiffs $44,554.67. The note was to accrue interest at a rate of 19.93%. This resulted in plaintiffs agreeing to pay total finance charges of $43,991.41. Therefore, the total amount of the note was $88,546.08. The note stated in relevant part:

“I promise to pay the Lender the Total of Payments beginning on the due date of the first payment and on the corresponding date of each succeeding month ***. The final payment is equal to the entire amount remaining unpaid. ***
* * * I may prepay in any amount at any time. Upon prepayment in full, I shall be entitled to a credit of any unearned Interest Charges computed according to the Rule of 78. No portion of the Prepaid Finance Charge is refundable.” (Emphasis in original.)

The monthly payment amount was $750. The last payment, due on January 4,1989, was to be in the amount of $44,296.08.

In their amended complaint, plaintiffs alleged that the terms and conditions of the note were in violation of the Interest Act in that: (1) section 4(2)(a), which applies to loans bearing an interest rate in excess of 8%, prohibits prepayment penalties or charges (see Ill. Rev. Stat. 1989, ch. 17, par. 6404(2)(a)); (2) section 5 prohibits any charge for a loan except as authorized by statute (see Ill. Rev. Stat. 1989, ch. 17, par. 6412); (3) section 4a(f)(13) only allows interest to be computed according to the “Rule of 78’s” if the residential mortgage loan is less than $25,000 (see Ill. Rev. Stat. 1989, ch. 17, par. 6410(f)(13)); therefore, sections 4a and 5 of the Interest Act prohibit computation according to the “Rule of 78’s” for any residential mortgage loan in excess of that amount; and (4) section 6 of the Interest Act provides that, where one knowingly contracts for unlawful interest or charges in connection with any loan, the obligor may recover an amount equal to twice the total of all interest and charges, plus attorney fees and costs (see Ill. Rev. Stat. 1989, ch. 17, par. 6413). According to plaintiffs, they were entitled to recovery under section 6 of the Interest Act.

Defendant filed a motion for sanctions, in which it alleged that on October 6, 1989, it filed a complaint for foreclosure on plaintiffs’ residence and that, in response to the foreclosure suit, plaintiffs filed the instant action. Defendant believed it was entitled to sanctions because plaintiffs alleged defendant violated sections 4(2) and 4a of the Interest Act, but those paragraphs did not apply to the note. Defendant also filed a motion for summary judgment in which it argued that section 4(a) of the Interest Act only applies to loans of not more than $25,000. Defendant further argued that under Illinois case law, the Rule of 78’s does not violate section 4(2)(a) of the Interest Act.

Plaintiffs, in their motion for summary judgment, argued that they were entitled to judgment as a matter of law based on their interpretation of sections 4, 4a, and 6 of the Interest Act.

The court ruled on the cross-motions in a written order. The court first noted that there were no genuine issues of material fact, and the court could rule as a matter of law. The court recognized that the use of the Rule of 78’s in long-term consumer credit transactions has been widely criticized, since a “disproportionate share of the finance charge is allocated to the creditor in the early portion of the transaction, and the refund of the unearned finance charge is lower than when the actuarial method is utilized.” The court opined that, in general, the Rule of 78’s favors creditors. However, the court did not believe the fairness of the rule was the issue. Rather, the court believed the issue was whether the Interest Act precluded the use of the Rule of 78’s in this cause.

The court examined the relevant case law and statutory history to conclude that section 5 of the Interest Act did not apply. The court then considered, in light of Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, and Currie v. Diamond Mortgage Corp. (7th Cir. 1988), 859 F.2d 1538, whether the prohibition against prepayment penalties applied to the instant cause. The court found that, under Lanier and Currie, the Rule of 78’s did not constitute a prepayment penalty, since the interest charges were assessed at the beginning, and plaintiffs would have paid them regardless of early payment.

The court also decided that the 1986 amendment to subsection 3 of section 4 of the Interest Act had prospective application only and, since the mortgage here was entered into prior to the subsection’s enactment, the subsection did not apply. The court also denied defendant’s motion for sanctions because the state of the law was not certain on the issue presented. Plaintiffs filed a motion to reconsider, which was denied. This timely appeal followed.

Summary judgment is an appropriate means of disposing of a cause where, as here, there are no genuine issues of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112.) Since the facts are not in dispute and the only question is one of statutory interpretation, we may review the issue as a matter of law.

The proper interpretation of a statute must reflect the intent of the legislature. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151.) The starting point for this determination is the statutory language itself. (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) Where the language of the statute is certain and unambiguous, the court must enforce the law as written without resorting to supplemental principles of statutory construction. Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533, 541.

Plaintiffs argue that the Interest Act does not authorize the use of the Rule of 78’s for determining interest in this case. Specifically, plaintiffs claim that since section 4a of the Interest Act authorizes such a computation method for loans of $25,000 or less and section 4(2)(a) prohibits any charge for prepayment, the use of the Rule of 78’s is prohibited in residential mortgages over $25,000.

Defendant responds that section 4a is inapplicable here because that section is limited to loans of $25,000 or less, and the loan here was in excess of $88,000. We agree with defendant that section 4a, by its express terms, applies only to loans secured by a mortgage which is of an “amount not more than $25,000.” See Ill. Rev. Stat. 1989, ch. 17, par. 6410(a).

The section which applies to the note at issue, section 4(2)(a) of the Interest Act, provides:

“Whenever the rate of interest exceeds 8% per annum on any written contract, agreement or bond for deed providing for the installment purchase of residential real estate, or on any loan secured by a mortgage on residential real estate, it shall be unlawful to provide for a prepayment penalty or other charge for prepayment.” (Ill. Rev. Stat. 1989, ch. 17, par. 6404(2)(a).)

Plaintiffs contend that computation of interest via the Rule of 78’s constitutes a prepayment penalty or charge for prepayment.

Before we can determine the validity of plaintiffs’ assertion, we must first examine the Rule of 78’s. Our supreme court, in Lanier (114 Ill. 2d 1), has explained the Rule of 78’s as follows:

“Under the Rule of 78’s, which is also known as the sum-of-the-digits method, a higher percentage of the total finance charge for a loan is attributable to the first months of the loan than is attributable to the last months.” (Lanier, 114 Ill. 2d at ,6.)

The simplest example of the operation of the rule is premised on a 12-month loan. The numbers 1 through 12 are added together for a total sum of 78. Then, the finance charges are distributed in increments of 78ths, so that in the first month, the debtor will pay 12/78 of the total finance charge, 11/78 of the total in the second month and so on, until the last payment, which is only 1/78 of the charge.

The effect of this allocation is that if the debtor prepays after the first month, the creditor will have earned 12/78 of the finance charge, and the debtor will be credited 66/7s of the total finance charge. However, if the loan is prepaid after six months, the debtor is only entitled to a credit of 21/78. The detriment of prepaying is less at the beginning and end of the term than during the middle of the loan term. As the supreme court recognized, the Rule of 78’s does not provide an accurate approximation of unearned finance charges. Lanier, 114 Ill. 2d at 7.

Unlike the actuarial method of computation, the Rule of 78’s does not reflect a direct correlation between the value of the time charged as interest for the use of the money and the actual time accrued. In the present case, plaintiffs agreed to pay $43,991.41 in finance charges over a period of five years. Because the unearned amount of the finance charge was computed according to the Rule of 78’s, plaintiffs agreed to pay off that finance charge in increments of V1830. Plaintiffs paid 60/i83o, in the first month, 59/i83o in the second month and so on. It is not clear from the record at what point plaintiffs prepaid on the note.

Plaintiffs believe that the Rule of 78’s is an interest charge on early prepayment because it, in effect, results in interest being collected for a period of time beyond the payoff date. Plaintiffs rely on Dechow v. Sko-Fed Credit (1989), 181 Ill. App. 3d 367, in support of the proposition that the Rule of 78’s is a prepayment penalty.

In Dechow, the court held that the application of the Rule of 78’s to residential mortgages in excess of $25,000 was prohibited by the Interest Act. (Dechow, 181 Ill. App. 3d at 372-73.) Plaintiffs rely on the court’s statement that “[i]t is only when the borrower seeks to prepay the loan that the Rule of 78’s is invoked to attribute a greater portion of the finance charge to the early periods of the loan, resulting in additional interest owing upon prepayment.” (Dechow, 181 Ill. App. 3d at 372.) Dechow is indistinguishable from the present case in all but the most crucial respect: the issue in Dechow was whether the use of the Rule of 78’s was prohibited by section 4(3) of the Interest Act. That section provides:

“In the event of a prepayment of the indebtedness which is made on a date after the date on which interest on the indebtedness was last computed, calculated, charged, or collected ***, the lender may calculate, charge and collect interest on the indebtedness for the period which elapsed between the date on which the prepayment is made and the date on which interest on the indebtedness was last computed *** at a rate equal to of the annual rate for each day which so elapsed, which rate shall be applied to the indebtedness outstanding as of the date of prepayment.” (Ill. Rev. Stat. 1989, ch. 17, par. 6404(3).)

Section 4(3) was added in 1985, and it specifically states, “[t]he provisions of this amendatory Act of 1985 shall apply only to contracts or loans entered into on or after the effective date of this amendatory Act.” (Ill. Rev. Stat. 1985, ch. 17, par. 6404(3).) Plaintiffs signed the note in 1983. By its express terms, section 4(3) does not apply to this case, and Dechow is therefore inapplicable. Consequently, plaintiff’s reliance on Dechow is misplaced.

Furthermore, contrary to plaintiffs’ assertion, Dechow did not hold that the Rule of 78’s constitutes a prepayment penalty. Dechow was only concerned with whether the Rule of 78’s reflected an accrual of interest. (See Dechow, 181 Ill. App. 3d at 371.) Significantly, Dechow recognized that Lanier held the use of the Rule of 78’s did not constitute a prepayment penalty. Dechow, 181 Ill. App. 3d at 370.

In Lanier, our supreme court was required to determine whether computation of interest via the Rule of 78’s constituted a prepayment penalty. Although this determination was made in the context of an action based on truth in lending, we believe its discussion of the Rule of 78’s applies in other contexts. The Lanier court was required to determine initially whether the use of the Rule of 78’s was a prepayment penalty because, if it was, the court would then have to consider whether the loan at issue complied with the Federal disclosure requirements in consumer transactions. (Lanier, 114 Ill. 2d at 11, 15.) In reaching its conclusion, the court quoted from an official Federal Reserve Board staff interpretation of a Federal statute which explained that “ ‘although in a precomputed obligation the finance charge rebate to a customer may be less when calculated according to the “Rule of 78’s” *** than if calculated by the actuarial method, such difference does not constitute a penalty charge for prepayment.’ ” (Lanier, 114 Ill. 2d at 16.) Lanier held that under the Federal section at issue, “the lesser rebate of unearned interest resulting from the Rule of 78’s is not a penalty.” Lanier, 114 Ill. 2d at 16.

The general rule was, in the absence of an agreement regarding interest on a loan, interest was allowed only from the time the principal became due. (In re Estate of Nelson (1929), 254 Ill. App. 484, 488.) Thus, under plaintiffs’ logic, if the use of the Rule of 78’s constitutes a penalty, so does the actuarial method, since the use of the latter method results in the lender having the value of the interest paid in advance. Therefore, the lender would earn more than it would have if the interest had been paid when the principal became due.

We do not interpret the phrase “prepayment penalties” as used in the Interest Act as applying to any differences based on methods of computing interest. Like the court in Warren v. Darnell (1987), 164 Ill. App. 3d 273, we accept the Federal Reserve Board’s definition of prepayment penalties as “ ‘charges assessed in connection with obligations which do not involve precomputed finance charges included in the obligation,’ but which involve instead computation of the finance charge ‘from time to time by application of a rate to the unpaid principal balance.’ ” (Warren, 164 Ill. App. 3d at 282.) Under this definition, the computation of interest via the Rule of 78’s does not constitute a prepayment penalty.

Further support for this conclusion is provided by the discussion of the nature of prepayment penalties in Currie v. Diamond Mortgage Corp. (7th Cir. 1988), 859 F.2d 1538. As the court there explained, “[p]repayment penalties are assessed at the time of early payment of the loan, rather than at the initiation of the original loan or as an addition to the loan principal,” and a charge is not a prepayment penalty if it must be paid regardless of whether the loan is paid off before the time it is due. (Currie, 859 F.2d at 1541.) Under the Currie definition, the Rule of 78’s is not a prepayment penalty because it is made a part of the loan at its inception and the borrower must pay the interest even if the loan is not prepaid. See 859 F.2d at 1541.

We therefore conclude that section 4(2)(a) of the Interest Act does not prohibit the use of the Rule of 78’s in the present cause. As noted above, section 4(3), which would preclude the use of the Rule of 78’s to similar loans entered into after its effective date, does not apply. Thus, the trial court correctly entered judgment in favor of defendant.

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

Affirmed.

BOWMAN and GEIGER, JJ., concur.


text:
    CONTRACT DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. STANLEY BECK et al., d/b/a/ Star Development Company, et al., Defendants-Appellants (Contract Development Corporation, Plaintiff; Chicago Title Insurance Company, Third-Party Defendant).
    Second District
    No. 2 — 90—0818
    Opinion filed March 20, 1991.

      Dean A. Dickie and Victor P. Henderson, both of Phelan, Pope & John, Ltd., of Chicago, for appellants.
    Werner A. Sabo, of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Stanley and Charlotte Beck (Becks), appeal from an order of the circuit court dismissing their counterclaim alleging slander of title. Defendants contend the court erred by (1) denying their motion to dismiss plaintiffs complaint; (2) not holding a hearing on their motion to dismiss; and (3) dismissing their counterclaim.

On July 18, 1988, plaintiff, Contract Development Corporation (CDC), entered into an agreement with the Becks. The agreement required CDC to provide services as a construction manager and contractor for property owned by the Becks. The agreement also contained an arbitration clause.

A dispute arose, and the Becks chose not to pay CDC. CDC then filed a mechanics’ lien against the property. On August 25, 1989, the Becks sent CDC a 30-day notice (see Ill. Rev. Stat. 1989, ch. 82, par. 34) demanding that CDC file suit to foreclose its mechanics’ lien. The Becks also demanded that the issues be submitted to arbitration pursuant to the agreement.

On September 25, CDC filed a complaint against the Becks. Count I of CDC’s complaint requested foreclosure of the mechanics’ lien. Count II was based upon breach of contract, and count III sought relief pursuant to the doctrine of quantum meruit.

On October 11, the Becks filed a motion to dismiss CDC’s complaint pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)). The Becks’ motion alleged the trial court lacked jurisdiction to hear the matter; CDC’s claim for monies was nonlienable; and CDC failed to fulfill its obligations under the agreement. On November 27 the court denied the Becks’ motion to dismiss and stayed the proceedings pending arbitration.

On February 23, 1990, an arbitration hearing was held. As a result of this hearing, CDC was awarded $56,851. On April 9 the trial court confirmed this award.

On May 16, the trial court denied the Becks’ motion to dismiss CDC’s complaint without a hearing. The court also granted the Becks leave to file a counterclaim. The Becks then filed a counterclaim alleging slander of title. The court set June 20 as a status date.

On June 14, CDC filed a motion to strike and dismiss the Becks’ counterclaim. On June 20, pursuant to CDC’s request, the court granted CDC leave to withdraw its mechanics’ lien claim, which CDC did. The court also withdrew its previous grant of leave for the Becks to file their counterclaim. The court struck the Becks’ counterclaim “without prejudice to refile as a separate action.” The court concluded all matters in controversy were disposed of. The Becks appeal from the court’s order.

CDC filed a motion to strike the appeal as moot. This court ordered the motion taken with the case. We determine the issues are not moot and deny CDC’s motion to dismiss the appeal.

The Becks first claim the trial court erred by not granting their motion to dismiss. Once a valid arbitration agreement is established, the trial court has no discretion and must order arbitration. (First Condominium Development Co. v. Apex Construction & Engineering Corp. (1984), 126 Ill. App. 3d 843, 849.) The court is not to consider the merits of the arbitrable issue but must summarily determine whether an arbitration agreement exists. (See Ill. Rev. Stat. 1989, ch. 10, par. 102; Geldermann, Inc. v. Mullins (1988), 171 Ill. App. 3d 255, 258.) An action involving an issue subject to arbitration shall be stayed with respect to that issue if arbitration has been ordered. First Condominium, 126 Ill. App. 3d at 849.

In the case at bar, the trial court found that the issues presented in CDC’s complaint were subject to an arbitration agreement. This fact was brought to the court’s attention by the Becks in their motion to dismiss CDC’s complaint. At that instant, the trial court had no discretion and correctly ordered arbitration. The court was correct in not granting the Becks’ motion to dismiss.

For the same reason as above, the court did not err by not conducting an evidentiary hearing on the motion to dismiss.

The Becks also argue that the court erred by dismissing their counterclaim. On May 16, 1990, the court granted the Becks leave to file a counterclaim. The Becks’ counterclaim for slander of title was filed on June 1. On June 14, CDC filed a motion to dismiss the counterclaim pursuant to section 2 — 615, alleging the counterclaim failed to state a cause of action. On June 20, the court allowed CDC to withdraw the only remaining count of its complaint, and the court withdrew its previous grant to the Becks for leave to file a counterclaim. The court then struck the counterclaim “without prejudice to refile as a separate action.” The court did not rule on CDC’s section 2 — 615 motion to dismiss.

We determine that, when the correct labels are used, the trial court allowed CDC to voluntarily dismiss the only remaining count of its complaint and then dismissed the Becks’ counterclaim. CDC’s complaint was not dismissed with prejudice, and the Becks were not given the option to replead as is normally the case in section 2 — 615 proceedings. Section 2 — 1009 of the Illinois Code of Civil Procedures states:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. *** After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” Ill. Rev. Stat. 1989, ch. 110, par. 2-1009.

The Becks filed a counterclaim against CDC seeking damages based upon slander of title. Additionally, the Becks did not consent to the voluntary dismissal of CDC’s complaint. Therefore, section 2— 1009 prevents CDC’s voluntary dismissal of the complaint. (See Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 1061.) The trial court did not determine that the Becks’ counterclaim failed to state a cause of action and then dismiss it. The court simply got rid of the complaint and then tossed the counterclaim out with it. This was error. (See Highway Industries, Inc. v. Trailer Leasing Co. (1977), 48 Ill. App. 3d 235, 237 (dismissal of the complaint does not carry the counterclaim with it).) The trial court erred in allowing CDC to voluntarily withdraw its complaint in the face of a counterclaim and then dismissing the counterclaim.

CDC argues that the Becks’ slander of title claim should have been considered by the arbitrator. CDC points out the parties entered into a stipulation prior to the arbitration hearing which provided, “A final award will consider or address the underlying claim by CDC, and defenses by Beck, regardless of the theory of recovery.” Since the Becks had the opportunity to present this claim to the arbitrator, CDC argues the Becks are barred by res judicata from pursuing their counterclaim.

We disagree. The stipulation also provided, “A final award will not address issues of lienability.” The Becks’ counterclaim was based entirely upon lienability. Additionally, a counterclaim is not a defense but a separate complaint. Therefore, it was not covered by the clause in the stipulation noted by CDC. The Becks’ counterclaim was not barred by res judicata.

CDC also argues this issue is moot because the Becks are not prejudiced by the court’s dismissal of the Becks’ counterclaim as the Becks have the ability to refile a new and separate action. We believe that prejudice is inherent in a court’s failure to abide by the requirements of section 2 — 1009. Additionally, there is no indication CDC has agreed to, inter alia, waive service, pay costs or refrain from executing on the judgment received on the previously adjudicated counts of its complaint until this “new” action is resolved. Forcing the Becks to file a new action instead of continuing in an already existing action does prejudice the Becks.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

BOWMAN and GEIGER, JJ., concur.