author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF DENNIS D. KENIK, Petitioner and Counterrespondent-Appellant, and IRENE T. KENIK, Respondent and Counterpetitioner-Appellee.
    First District (2nd Division)
    No. 1—88—0386
    Opinion filed March 28, 1989.

      Mammas & Goldberg, Ltd., and Grant & Grant, both of Chicago (Jerry S. Goldberg and Evan James Mammas, of counsel), for appellant.
    Schiller, DuCanto & Fleck, Ltd., of Chicago (Charles J. Fleck and Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner/counterrespondent, Dennis D. Kenik (Dennis), appeals from circuit court orders denying his motions to strike respondent/ counterpetitioner’s, Irene T. Kenik’s (Irene’s), petition for bifurcated judgment of dissolution of marriage and to change venue, and granting a bifurcated judgment of dissolution of marriage. We are asked to determine whether: (1) this court lacks jurisdiction to review the circuit court’s denial of Dennis’ motions to change venue and to dismiss Irene’s petition for a bifurcated judgment; (2) the circuit court erred in denying Dennis’ motion to change venue, assuming we have jurisdiction; (3) the circuit court erred in finding proper grounds existed to enter a judgment of dissolution of marriage; (4) the circuit court erred in failing to follow its own procedures for the transfer and reassignment of cases; and (5) the circuit court abused its discretion in granting Irene’s petition for a bifurcated judgment of dissolution of marriage.

On May 7, 1985, Dennis filed a petition to dissolve his 1978 marriage to Irene. The Keniks have one child, Scott, born in 1983. Irene filed a verified response and a verified counterpetition for dissolution of marriage on July 30, 1985, to which Dennis responded on February 13, 1986. On November 9, 1987, Irene petitioned for entry of a bifurcated judgment of dissolution of marriage, asserting that “appropriate circumstances” for bifurcation existed, as mandated by section 401(b) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 401(b)).

By order entered November 18, 1987, the circuit court judge assigned to the case recused himself and directed the case to the presiding judge for reassignment. On December 15, 1987, the present trial judge entered two orders. First, he assigned the case to himself. Second, he granted Dennis seven days to respond to the petition for bifurcation of judgment.

Dennis moved on December 21, 1987, to strike the petition for bifurcation of judgment for failure to state a cause of action and to withdraw his petition for dissolution of marriage. On December 29, 1987, Dennis petitioned the court “for [substitution of [j]udges,” insisting that he “[feared] *** he [would] not receive a fair and impartial hearing in the court in which this cause is now pending due to this [court] being prejudiced against him,” and that he filed the petition prior to trial and before the “ruling on any substantive issue.” Both the motion to dismiss and the motion to change venue were denied on December 31, 1987.

Following a hearing, the court granted a bifurcated judgment of dissolution on January 21, 1988, explicitly reserving “[a]ll other issues of child custody and visitation, property division and attorneys’ fees.” In its January 21 order, the court found an irretrievable breakdown of the marriage due to irreconcilable differences between the parties and that appropriate circumstances existed for the entry of a bifurcated judgment, namely: (1) “[Irene] has learned she is presently pregnant by her fiancee [sic] whom she earnestly wishes to marry as soon as possible”; and (2) “[Ijnsurance coverage for birth and all other maternity expenses can be had under the medical insurance coverage held by [Irene’s] fiancee [sic]; however, if [Irene] and her fiancee [sic] are not married at the time of the birth, none of said expenses will be covered, with the resulting imposition of large medical bills on [Irene].” The court further determined that “[t]he likelihood that any *** equities [sic] and complications *** will result in this case is very remote.” Dennis appeals.

I

Dennis asserts first that the circuit court erred in failing to grant his motion to change venue. Prior to the filing of his motion, Dennis contends, the court ruled only on his request to file a response to Irene’s petition for bifurcation of judgment, and therefore, entered no substantive rulings precluding a substitution of judges.

Irene counters that this court lacks jurisdiction to entertain an appeal of the December 31 order, denying Dennis’ motions to change venue and to dismiss the petition for a bifurcated judgment. Citing In re Marriage of Bogan (1986), 116 Ill. 2d 72, 76, 506 N.E.2d 1243, Irene correctly observes that the appellate court may review an appeal from an entry of a bifurcated judgment of dissolution but may determine only the propriety of the bifurcation itself; all other issues ancillary to the dissolution claim must be disposed of by the lower court before any are susceptible to appeal. (See In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119, 449 N.E.2d 137.) The statement in the December 31 ruling that “there is no just reason to delay appeal or enforcement of this order” does not necessarily invest this court with jurisdiction to review an otherwise nonappealable order. In re Marriage of Koch (1983), 119 Ill. App. 3d 388, 389, 456 N.E.2d 644.

Assuming, arguendo, that the appeal is properly here, Dennis’ argument also fails on the merits. The right to a change of venue is absolute where a party alleging prejudice of the presiding judge moves to transfer venue before a trial or hearing commences and before the judge to whom the motion is presented enters a substantial ruling. In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 366, 510 N.E.2d 559; Ill. Rev. Stat. 1987, ch. 110, par. 2—1001(c).

The record evidence in the case at bar demonstrates that the trial judge entered a protective order on October 27, 1987, which reserved for a later date a ruling on temporary custody of Scott and ordered that Dennis have access to Scott from 4 p.m. on October 30, 1987, to 7 p.m. on November 1, 1987. Dennis’ request for joint custody in his petition for dissolution and Irene’s request for sole custody in her response, as well as Dennis’ October 27, 1987, petition for temporary custody, illustrate that the protective order addressed substantial issues contested by the parties.

When attorneys for Irene and Dennis appeared before the court on December 15, 1987, moreover, each engaged in argument concerning the existence of appropriate circumstances to bifurcate judgment of dissolution. Irene’s attorney enumerated factors supporting her petition for bifurcation, including: her pregnancy; Dennis initiated the divorce proceedings; public policy encourages the legitimization of children; the parties filed no joint tax returns for the two preceding years; and lack of medical insurance for Irene or the unborn child. Dennis’ attorney objected to bifurcation and challenged Irene’s representations regarding the legitimacy of children born in wedlock, but not to their natural mother and father. This exchange presented Dennis the opportunity to form an opinion as to the court’s reaction to his claim, thereby additionally foreclosing Dennis’ automatic right to a change of venue. (See In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530-31, 463 N.E.2d 719; In re Marriage of Birt, 157 Ill. App. 3d at 366.) The entry of the order denying Dennis’ motion was not in error.

II

Dennis next assigns error to the circuit court’s failure to follow its own rules and general orders pertaining to assignment of cases. Dennis argues that pursuant to the November 18, 1987, order recusing the first assigned judge from the case and returning it to the presiding judge of the domestic relations division, “random electronic assignment to a new calendar, excluding the calendar letter of any judge to whom the cause has been assigned, was required,” citing Cook County-Circuit Court Rule 13.8 (Cook County Circuit Court R. 13.8 (as amended July 1, 1988)) and Cook County Circuit Court General Order 15.3 (Cook County Circuit Court General Order 15.3 (as amended July 1, 1988)). Instead, the trial judge assigned the case to himself on December 15, 1987.

Irene insists Dennis waived this issue, by failing to object to the circuit court’s actions on December 15 (McElroy v. Force (1967), 38 Ill. 2d 528, 535, 232 N.E.2d 708); however, Dennis registered timely objections before the court on December 29, 1987, thus preserving the issue for appeal.

Irene additionally observes that Dennis neither argues nor demonstrates what prejudice, if any, adhered to his claim by the court’s contravention of its own procedure. The mere failure of the court to follow an order to receive all matters from an assignment judge does not require automatic reversal of a dissolution judgment or order of legal separation. (See Kocis v. Kocis (1964), 47 Ill. App. 2d 68, 73, 197 N.E.2d 460; Payne v. Payne (1961), 31 Ill. App. 2d 141, 150, 175 N.E.2d 614.) A successful claim of reversible error must be supported by evidence of actual prejudice to appellant’s claim. Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 86, 392 N.E.2d 628.

Decisions Dennis offers as authority do not persuade. In each, the alleged error arises from a failure to follow notice provisions contained in court rules. (See Feldott v. Featherstone (1919), 290 Ill. 485, 488, 125 N.E. 361; North Avenue Building & Loan Association v. Huber (1918), 286 Ill. 375, 383, 121 N.E. 721; Swiercz v. Nalepka (1930), 259 Ill. App. 262, 265.) Each decision also makes plain the materiality of the alleged error to the outcome of the case. Here, Dennis never suggested how the court’s actions might have prejudiced his claim. We find no reversible errors in assignment by the judge of the case to himself.

Ill

Did the circuit court err in granting the judgment of dissolution where, admittedly, the parties physically did not live “separate and apart” continuously for two years as required by section 401(a)(2) of the IMDMA? (Ill. Rev. Stat. 1987, ch. 40, par. 401(a)(2).) There was uncontradicted testimony at the January 21, 1988, hearing that Dennis and Irene resided in the same house until August or September of 1986.

Illinois courts have yet to construe “separate and apart” within the context of section 401(a)(2). Susceptibility of the phrase to discordant readings justifies consideration of extrinsic evidence to resolve its meaning. Spinelli v. Immanuel Evangelical Lutheran Congregation, Inc. (1986), 144 Ill. App. 3d 325, 330, 494 N.E.2d 196.

Legislative debates surrounding the statute’s enactment clearly reveal its sponsors intended an expansive reading of the provision. State Senator William A. Marovitz declared that a court could exercise its discretion in determining whether parties exist “separate and apart”:

“If the judge determines that living separate and apart they have to be living in separate households, so be it. If the judge determines that living *** apart *** they can be living under the same roof but there is [sic] no conjugal visits, they *** are living in separate bedrooms, they are doing *** their own laundry, their own meals, whatever, that’s up to the judge and that’s *** what the case law is today.” (83d Ill. Gen. Assem., Senate Proceedings, November 3,1983, at 60).

This interpretation finds support in In re Marriage of Uhls (Mo. App. 1977), 549 S.W.2d 107, where the court, construing a no-fault divorce provision similar to the Illinois statute, held “separate and apart” to mean “separate lives” as opposed to “separate roofs.” (In re Marriage of Uhls, 549 S.W.2d at 112.) The Uhls court found the parties lived “separate and apart” for several years, although they shared the same home, because they ceased marital relations four years before filing the petition for divorce, maintained separate bedrooms and ate meals at different times. The parties also took separate vacations, did their laundry in different washing machines and avoided “[a]ll conversation or other communication.” In re Marriage of Uhls, 549 S.W.2d at 112.

Testimony adduced in the case sub judice revealed Dennis and Irene not only ended all marital relations a year before Dennis filed his petition for dissolution of marriage, but also that they used separate bedrooms and had “no meaningful communication’ ’ with each other. Irene swore as well that she exhausted her credit union account to meet household expenses, to which Dennis contributed nothing. Though Dennis responds he donated whatever he was “able to give,” the record demonstrates that the circuit court entered an order in February 1986, pursuant to Irene’s petition for temporary support and maintenance, establishing a detailed schedule of financial obligations for each party. Dennis was ordered to pay “one-half of all average monthly expenses of the parties and minor child (except for food and telephone),” and for Scott’s food when caring for him. Dennis could receive incoming calls on the home telephone, but was forbidden to make outgoing calls. Each party, further, was responsible for individual personal expenses such as “clothing, grooming, medical, *** work *** commuting, social obligations, vacations and automobile.”

Dennis mistakenly relies on Smith v. Aaron, Aaron, Schimberg & Hess (1983), 112 Ill. App. 3d 653, 655, 445 N.E.2d 67, and In re Marriage of Eltrevoog (1982), 92 Ill. 2d 66, 69, 440 N.E.2d 840, where the courts were called upon to interpret the phrase “separate abode” in the pre-1982 section 402 of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 402). As noted in Rich v. Rich (1975), 24 Ill. App. 3d 1083, 1085-86, 321 N.E.2d 480, furthermore, “separate and apart” must be construed in the context in which it is used: if the theory animating the dissolution claim is, for instance, desertion, physical separation of the parties is an inherent element of the cause of action. Under the no-fault provisions of section 401(a)(2), dissolution is predicated upon a finding of “irretrievable breakdown” of the marriage due to “irreconcilable differences.” (Ill. Rev. Stat. 1987, ch. 40, par. 401(a)(2).) In our opinion, this is a state which can be realized without physical distance between the parties.

Equally unavailing to Dennis’ claim are cases he cites from foreign jurisdictions. In Pangallo v. Pangallo (1984), 329 Pa. Super. 25, 477 A.2d 885, the parties occupied the same farm compound but were rarely in their marital residence simultaneously, and the court expressly reserved for “another day” the question of whether persons occupying the same home live “separate and apart.” (Pangallo v. Pangallo, 477 A.2d at 888 & n.4.) The court in Wife v. Husband (Del. Super. 1968), 238 A.2d 606, 607, denied the possibility that nonconjugal cohabitants of a single house lived “separate and apart”; however, the petitioner sought a divorce on the grounds of “voluntary separation,” which, under the reasoning of Rich v. Rich, could not be achieved while the parties occupied the same dwelling.

No error arose from thé finding in the present case that the parties lived “separate and apart.”

IV

Dennis lastly contends it was an abuse of the circuit court’s discretion to enter a bifurcated judgment of dissolution where “appropriate circumstances” to enter the judgment did not exist.

Illinois law encourages resolution of all issues ancillary to dissolution, as well as dissolution itself, in a single proceeding, for reasons of certainty, financial security (In re Marriage of Cohn (1982), 93 Ill. 2d 190, 198-99, 443 N.E.2d 541; In re Marriage of Britton (1986), 141 Ill. App. 3d 588, 591, 490 N.E.2d 1079), and judicial economy. (In re Marriage of Leopando, 96 Ill. 2d at 120.) Upon a finding of “appropriate circumstances,” however, section 401(b) of the IMDMA allows a court to enter a judgment of dissolution while reserving for later determination such issues as maintenance, child support, and property disposition. (Ill. Rev. Stat. 1987, ch. 40, par. 401(b).) No attempt has been made to compile an exhaustive list of facts justifying a bifurcated judgment (In re Marriage of Bogan, 116 Ill. 2d at 80; In re Marriage of Cohn, 93 Ill. 2d at 199), but the supreme court has identified the following “appropriate circumstances”: the court lacks personal jurisdiction over the respondent; a party is unable to pay child support or maintenance if so ordered; the court has created an adequate fund for child support pursuant to section 503(g) of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)); the parties’ offspring do not reside with either parent (In re Marriage of Cohn, 93 Ill. 2d at 199); or any other reason of “the same caliber” (In re Marriage of Bogan, 116 Ill. 2d at 80).

At bar, James McPartlan (McPartlan) testified that he and Irene met in March 1986, he commenced sexual relations with her in January 1987 and, in April 1987, he began living with her, together with Irene’s son, Scott. McPartlan testified to the following material facts: (1) he and Irene plan to marry as soon as she obtains a divorce; (2) he is the father of Irene’s unborn child; (3) he intentionally impregnated Irene; and (4) no other males have been involved with Irene sexually or romantically during the pendency of her divorce. He possessed no medical evidence that he is the father of Irene’s child. McPartlan owns medical insurance which provides coverage for his dependents, including his children.

Irene testified that she met McPartlan in March 1986. She had no sexual relations with men in 1987 other than McPartlan, was pregnant, and was due to give birth on February 24, 1988. She described the marital estate shared with Dennis as follows: (1) approximately $12,000 to $13,000 in proceeds from the sale of the marital residence in August 1986, held in an escrow account; (2) Dennis’ pension fund; (3) a diamond given to Irene as a gift; (4) diamond earrings; (5) a diamond engagement ring; and (6) Irene’s TWA credit union account. Regarding the last item, Irene insisted the account contained approximately $50,000 in 1984 and that, beginning in the summer of 1984, the funds were “dissolved over several years, using it to live on and other necessities, vacations and *** so forth,” because Dennis contributed no money for mortgage payments or payments for utilities, food or clothing from summer 1984 until they separated in August 1986. She denied that Dennis failed to contribute to household expenses for only a few months in 1985 and that he turned his unemployment compensation over to her. Irene admitted prior deposition testimony that she gave the $50,000 to Dennis to invest for her was untrue; she swore she lied because she was “scared” and “had no other financial backing.”

Irene averred that in 1975 she acquired a one-quarter, beneficial interest in a building in Elmwood Park, Illinois. She directed that interest to one of her brothers in 1984 or 1985, prior to the filing of Dennis' divorce petition, as compensation for care rendered by her brother for her invalid father. She received no remuneration for the transfer. Irene never had her interest in the property appraised, although she knew the building was later sold for $300,000.

Irene maintained she filed tax returns independent of Dennis in 1986 and 1987, is currently unemployed, last worked in July 1987 as a part-time waitress, lived with her brother from September 1986 until April 1987, and is currently covered by Dennis’ medical insurance. She is aware that Dennis possesses a pension and an IRA account, and that the pension continues to grow each year. She is also cognizant that, if the court enters a bifurcated judgment, she has no claim to any increase in the pension’s value. Irene denied entry of any court order directing her to comply with the February 1986 order requiring each party to pay one-half of the household expenses.

Dennis insisted Irene’s statement that he failed to contribute to household expenses was untrue. The company he worked for in 1985 went bankrupt and he was not always able to pay one-half of the household costs, yet he contributed what he was “able to give.” Approximately one month elapsed between the time Dennis was laid-off in 1985 and the time he found a new full time job. He now is employed as a truck driver.

Dennis swore he made support payments in 1985 and paid some family bills that year, and could not remember January 30, 1986, deposition statements that he hadn’t paid any household expenses for “over a year” or that money he earned “from working out of the union” went to his “self-expenses.” When he was out of work in 1985, he cared for his son three to four days per week while his wife worked as a flight attendant, payment for both his and his son’s expenses during those days.

He acknowledged possession of a pension and an IRA account and that he owns group medical insurance which covers his “wife and children.” To maintain the insurance, he must pay $10 to $11 per day any day he does not work. Should Irene give birth to her child prior to the dissolution of their marriage, Dennis said, he would be “financially responsible” and he believed the insurance company providing his coverage similarly would be “responsible” because he and Irene are still married. When asked if he would consider the child his own, Dennis responded, “I’ll look upon any child as a child. The child is to be loved.” He further “[believes] that we as adults are all responsible for children.” Dennis would pay child support “if they can’t handle it.”

Irene admits the testimony related above establishes none of the four factors enumerated in In re Marriage of Cohn (93 Ill. 2d 190) as “appropriate circumstances” for a bifurcated judgment; nevertheless, she cites Zepeda v. Zepeda (1963), 41 Ill. App. 2d 240, 255-58, 190 N.E.2d 849, and the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.) as evidence of this State’s interest in having its residents recognized as legitimate at birth. Irene’s speedy marriage to McPartlan should therefore be encouraged so that their child may be bom legitimate, she contends. This argument ignores the presumption of legitimacy attaching to any child born in wedlock. (People ex rel. Valle v. Valle (1983), 113 Ill. App. 3d 682, 686, 447 N.E.2d 945.) A child born to unwed parents, moreover, is legitimized by their subsequent marriage. Ill. Rev. Stat. 1987, ch. 40, par. 303.

Irene persuasively argues, however, that the reasons advanced by the Cohn court to discourage bifurcated judgments do not exist here, i.e., (1) the court may be required to adjudicate marital property rights that have become entangled with the supervening rights of third parties, including subsequent spouses; (2) dissolving the marriage prior to property disposition would complicate matters with respect to the rights of a surviving spouse in the event of an intervening death; and (3) the loss of: (a) the ability to file joint income tax returns; (b) medical insurance coverage; and (c) marital property treatment for property accumulated during the intervening period between the entry of the judgment of dissolution and the final disposition of property rights. In re Marriage of Cohn, 93 Ill. 2d at 198-99.

In this case, the marital property consists of the proceeds of the sale of the marital residence held in escrow, certain jewelry, Dennis’ pension, an IRA account, and Irene’s credit union account, items all readily identifiable and easily divided between the parties. Irene’s uncontested testimony demonstrated she relinquished her interest in the Elmwood Park property prior to the filing by Dennis of his petition to dissolve the marriage. In 1988, Irene was 36 and Dennis 49, and both apparently in good health, rendering unlikely complications arising from the “intervening death” of either spouse. The parties, moreover, ceased filing joint tax returns in 1986, and the relative meagerness of the parties’ finances made further acquisition of marital property highly improbable. Irene would almost certainly benefit from Dennis’ medical insurance as long as she remained married to him; however, Dennis acknowledged he was not sure if a child not his own could similarly share in that coverage.

Evidence adduced at bar illumines as well the precarious position in which the baby would be placed if Dennis remained responsible for its welfare. Dennis expressed little genuine interest in caring for the child and instead described his obligation in purely “societal” terms. Furthermore, his erratic contributions to household expenses prior to the parties’ separation necessitated, in February 1986, a court order to ensure he paid one-half of the family’s most fundamental financial obligations. In contrast, McPartlan expressed eagerness to marry Irene and unequivocally acknowledged the child as his own. Once married to Mc-Partlan, Irene and the baby would enjoy insurance protection as Mc-Partlan’s dependents.

Finally, we note that Dennis’ objections to bifurcation manifested themselves late in the litigation chronology. Dennis initiated the dissolution proceedings and did so with an apparent eagerness to terminate the marriage: he stated in his verified petition his “[belief] that the requirement of living separate and apart shall be waived by both parties in accordance with the statute.” Indeed, the transcript of a hearing conducted December 15, 1987, illustrates that, until that date, Dennis had led Irene to believe that the hearing would be a “prove-up” only and that the parties would that day conclude the dissolution of the marriage.

The relative absence of “complications” and “entanglements” arising from the bifurcation of this particular judgment, combined with the exigencies created by Irene’s pregnancy, raise these circumstances to the “same caliber” of those cited in In re Marriage of Cohn (93 Ill. 2d 190). The court did not abuse its discretion in bifurcating the judgment of dissolution of marriage.

For the reasons above-stated, we affirm.

Affirmed.

EGAN, P.J., and SCARIANO, J., concur.

      Dennis’ May 1985 verified petition for dissolution, which contends the parties “lived separate and apart for a continuous period of not less than six months” and ceased cohabitation in August 1984, explicitly supports the finding urged by Irene. Dennis moved to withdraw the petition on December 21, 1987; no order disposing of the motion appears of record, however, and Dennis is therefore bound by factual allegations set forth in the petition. Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 905, 392 N.E.2d 126.


source: Caselaw Access Project

license: Public Domain

text:
      In re ESTATE OF DANIEL BARTH, A Disabled Person (Magdalena Barth, Petitioner-Appellant, v. First National Bank of Chicago, Respondent-Appellee).
    First District (2nd Division)
    No. 1—88—611
    Opinion filed March 28, 1989.

      Peter Burban, of Law Firm of Peter Burban, of Chicago, for appellant.
    John L. Kienlen, of Chuhak, Tecson, Kienlen, Feinberg & Grasso, P.C., of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner Magdalena Barth (Magdalena) appeals the dismissal of her amended section 2 — 1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401), which sought to (1) vacate an order that appointed respondent First National Bank of Chicago (Bank) as the successor guardian of the estate of her son, Daniel Barth (Daniel), a disabled person; and (2) reinstate petitioner as his plenary guardian. Raised as issues are whether the circuit court: (1) properly considered the applicability of a section 2 — 1401 petition in this case; and (2) erred in dismissing the petition for failure to allege sufficient facts.

On November 12, 1986, Magdalena was appointed plenary guardian of Daniel’s estate and person. On or about February 17, 1987, she resigned her office as guardian of Daniel’s estate and nominated the Bank as the successor guardian of the estate. On February 17, 1987, the court accepted Magdalena’s resignation as guardian of the estate and appointed the Bank to act as successor guardian. Letters of office for the Bank were issued the same day.

On March 12, 1987, the Bank, as guardian of Daniel’s estate, filed a petition for leave to purchase residential real estate in Isaquah, Washington, alleging that Magdalena entered into a real estate contract for the purchase of a single-family home there in Daniel’s best interests. The circuit court granted the petition. According to Magdalena, it was this intention to relocate that caused her to resign as guardian of Daniel’s estate and nominate the Bank as successor guardian because, under the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llO1^, par. 1 — 1 et seq.), a plenary guardian of the estate cannot be a nonresident of Illinois.

Magdalena filed with the court a guardian’s first and final accounting, for her term as guardian of the estate, on July 6, 1987. She was discharged as guardian of the estate by order on the same day.

On October 22, 1987, Magdalena filed a petition “to terminate nomination of guardian for a disabled person and to reinstate prior guardian,” alleging that she no longer desired the services of the Bank as guardian, because she decided against relocating in Washington and planned to remain in Illinois.

Several motions were then filed on December 12, 1987. Magdalena filed: (1) a combined petition, pursuant to section 2 — 1401, to vacate the February 17, 1987, order appointing the Bank as successor guardian and, further, to order her reinstatement as guardian of Daniel’s estate; (2) a petition to discharge and remove the Bank as guardian and modify the guardianship order; and (3) a response to the Bank’s petition for the sale of the Isaquah real estate.

On the same day, the Bank filed: (1) a petition for the sale of the Isaquah real estate; (2) a petition for approval of successor guardian’s fees and an amended petition for fees; (3) a motion to strike the petition to discharge and remove the Bank as guardian of Daniel’s estate; and (4) a section 2 — 615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2— 615) to dismiss Magdalena’s section 2 — 1401 petition to vacate. Various responses and replies to these motions and petitions also were filed.

On December 12, 1987, the circuit court issued the following orders: (1) granted the Bank leave to list the Washington property for sale; (2) denied the petitions to discharge the guardian and to terminate the nomination of the successor guardian and reinstate the prior guardian; (3) dismissed the section 2 — 1401 petition to vacate because of insufficient pleading; and (4) denied the section 2 — 615 motion to dismiss. Magdalena was given leave to file an amended section 2— 1401 petition to vacate.

An amended section 2 — 1401 petition to vacate the February 17, 1987, order was filed on January 11, 1988, and the Bank filed a responsive section 2 — 615 motion to dismiss. On January 27, 1988, after argument, the circuit court granted the Bank’s motion on the ground that the amended petition failed to allege any facts necessary for the court to vacate the February 17,1987, order. Magdalena appeals.

We will first consider whether sections 23 — 2 and 23 — 3 of the Probate Act (Ill. Rev. Stat. 1985, ch. 1101/2, pars. 23 — 2, 23 — 3) provide the exclusive means for removing a guardian from office, as claimed by the Bank. Section 23 — 2 enumerates 10 causes for removing a representative from office, and section 23 — 3 describes the procedure for such a removal. The Bank argues that these statutory provisions are the exclusive means for removing a guardian and Magdalena’s section 2 — 1401 petition is an attempt to circumvent the strict procedural guidelines provided by the legislature. The Bank urges this court to affirm the dismissal of Magdalena’s amended petition, because the circuit court had no jurisdiction to consider it under section 2 — 1401.

The Bank’s argument is without merit. The Code of Civil Procedure applies, with certain exceptions not relevant here, to all proceedings under the Probate Act. (Ill. Rev. Stat. 1985, ch. 110½, par. 1—6; In re Estate of Ariola (1979), 69 Ill. App. 3d 158, 167, 386 N.E.2d 862.) There is no statutory exclusion of section 2 — 1401 petitions in article 23 of the Probate Act. Ill. Rev. Stat. 1985, ch.110½, par. 23 — 1 et seq.

The Bank’s reliance upon pre-1964 cases for the proposition that section 23 — 3 provides the exclusive means for removal of a guardian is misplaced. Prior to 1964, the probate court was a court of restricted jurisdiction under the 1870 Illinois Constitution. These “special” courts were effectively abolished in 1964, however, and their jurisdiction, judicial functions, powers, and duties were transferred to and assumed by the circuit courts. See Ill. Const. 1870, art. VI, Sched. pars. 5(a), 5(c).

Illustrative of the point is In re Estate of Knoes (1983), 114 Ill. App. 3d 257, 448 N.E.2d 935, appeal denied (1983), 96 Ill. 2d 540, where a petitioner brought a section 72 (now section 2 — 1401) petition to reopen her father’s estate. The issue raised was whether section 24 — 9 of the Probate Act (Ill. Rev. Stat. 1981, ch. 110½, par. 24 — 9) provided the exclusive method for the reopening of a decedent’s estate. Noting that the purpose of a section 72 petition is to bring before the court matters of fact which, if they had been known to the court, would have precluded entry of the judgment from which relief was sought, the court held that such a petition was a proper vehicle by which to obtain relief from an order closing an estate. (Estate of Knoes, 114 Ill. App. 3d at 263.) The appellate court held that the circuit court’s jurisdiction was not statutorily limited in any fashion. (Es tate of Knoes, 114 Ill. App. 3d at 262-63.) This allowed the Knoes court to distinguish Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 415-16, 243 N.E.2d 236, which had held that a section 72 petition could not circumvent section 8 — 1 of the Probate Act. Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1; see also In re Estate of Bilotti (1978), 56 Ill. App. 3d 552, 372 N.E.2d 122, aff'd sub nom. Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 389 N.E.2d 163.

Article 23 provides no jurisdictional limits on a removal procedure, which may be brought at any time during the guardian’s representation of the disabled person’s estate. The Bank’s supplemental citation of post-1964 cases provides no stronger support for its exclusivity argument. (In re Estate of Chapman (1982), 104 Ill. App. 3d 794, 433 N.E.2d 313; In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500; In re Estate of O’Brien (1988), 166 Ill. App. 3d 285, 519 N.E.2d 969.) Each involved utilization of section 23 — 2 grounds for removal. None held that section 23 — 3 procedures are exclusive. Since, by its terms, section 2 — 1401 applies without distinction to actions and other proceedings, statutory or otherwise (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401(a)), it can be used to obtain relief from an order appointing a guardian as long as section 2 — 1401 prerequisites are met and grounds for relief bear a relationship to, are commensurate with, or are otherwise relevant to those set forth in section 23 — 2. The circuit court did not err in considering the section 2 — 1401 petition.

We next consider whether the circuit court erred in dismissing Magdalena’s amended section 2 — 1401 petition as legally insufficient. The court granted the Bank’s section 2 — 615 motion to dismiss Magdalena’s petition, determining that it failed to allege sufficient facts upon which to grant the relief requested. Magdalena argues that this finding was erroneous and asks that this decision be reversed and the cause remanded for further proceedings.

Section 2 — 1401 provides a comprehensive statutory procedure by which final orders may be vacated after 30 days from their entry. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381.) Under this section, a petitioner may bring before the court matters of fact which, if known to the court at the time the order was entered, would have prevented entry of the order. When a motion to dismiss is filed against a petition for section 2 — 1401 relief, all well-pleaded facts are admitted for purposes of the motion and the legal sufficiency of the petition comes under scrutiny. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 839, 449 N.E.2d 560.) A legally sufficient petition must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d at 220-21.

Because this is a section 2 — 1401 petition to vacate the order of February 17, 1987, which approved Magdalena’s resignation as guardian of the estate and appointed the Bank as successor guardian. Magdalena’s petition was required to allege facts that, if known to the court on February 17, 1987, would have prevented the entry of that order. Initially, we note that when selecting a guardian the best interest and welfare of the disabled person is of paramount concern. (In re Estate of Robertson (1986), 144 Ill. App. 3d 701, 712, 494 N.E.2d 562.) Such factors as past actions and conduct of the proposed guardian, business experience, and family situations also may be considered. In re Estate of Robertson, 144 Ill. App. 3d at 712.

Magdalena essentially raises two grounds for the Bank’s removal in her amended section 2 — 1401 petition. First, she asserts that John L. Kienlen, an attorney who formerly represented her as attorney for guardian of Daniel’s estate, and now represents the Bank as attorney for such guardian, and the Bank repeatedly assured her that her own resignation and nomination of the Bank as her successor were only temporary and could be terminated by her at any time, and claims that had she known she could not revoke her resignation and nomination, she would not have resigned. Her second reason for the Bank’s removal is that the alleged nondisclosure by Kienlen of dual representation and possibly conflicting interests constituted a breach of fiduciary duty. She suggests that if she had known of the dual representation, she would not have resigned as guardian of Daniel’s estate. Further, she claims that she was tricked by the false representations made to her by Kienlen.

A review of Magdalena’s amended petition demonstrates that the circuit court correctly dismissed it as legally insufficient under section 2 — 1401. Assuming that a representation had been made to Magdalena that her resignation as guardian of Daniel’s estate and her nomination of the Bank was temporary, it would afford no basis for the Bank’s removal as successor guardian by the circuit court. The asserted conflict of interest is conclusional; absent are any allegations of abuse of confidence by Kienlen, and she does not allege how she was damaged by Kienlen’s conduct. Nor does Magdalena allege that Kienlen failed to act in Daniel’s best interest. In the absence of allegations charging actual, conflicting or inconsistent duties owed by Kienlen to Magdalena as attorney for the guardian of the estate compared to those duties owed by Kienlen to the Bank as attorney for the successor guardian, the prohibition against representing conflicting interests is inapplicable. (In re Estate of Kapraun (1959), 21 Ill. App. 2d 231, 242, 157 N.E.2d 700.) The omission of such facts in the petition concerning the dual representation and conflict of interest by Kienlen, that would have prevented the entry of the February 17, 1987, order, supports the court’s dismissal.

Magdalena also claims that the false representations by Kienlen and Eckersall, the Bank’s representative, “tricked” her into resigning the guardianship of the estate. Evidence of fraudulent conduct in prior dealings between a proposed guardian and the disabled person will preclude its selection as guardian. (In re Estate of Robertson, 144 Ill. App. 3d at 712.) A section 2 — 1401 petition can be used to set aside agreements, orders, or judgments procured as a result of fraud. (See Ridgway v. Ridgway (1986), 146 Ill. App. 3d 463, 465, 497 N.E.2d 126.) Here, Magdalena was required to allege that the Bank made false representations of material fact, which it knew to be false, which were made to induce Magdalena’s reasonable reliance upon them, and that she relied on them to her injury. (See Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 249, 483 N.E.2d 1263.) No such facts were alleged in Magdalena’s amended petition to support a claim for fraud. There was no error.

In light of our disposition with respect to the sufficiency of Magdalena’s amended section 2 — 1401 petition, we need not address the Bank’s alternative argument relating to Magdalena’s failure to allege facts showing the exercise of due diligence in filing the petition.

Accordingly, the dismissal of Magdalena’s amended section 2— 1401 petition to vacate the February 17, 1987, order must be affirmed.

Affirmed.

BILANDIC and SCARIANO, JJ., concur.

      Although denominated by Magdalena as a motion, the document will be referred to as a petition, as does the statute.


text:
    ANTHONY GRASSO, Plaintiff-Appellee and Counterdefendant-Appellee, v. MID-CENTURY INSURANCE COMPANY, Defendant-Appellant and Counterplaintiff-Appellant (Farmers Insurance Group of Companies et al., Defendants; Bonnie Hlevyack, Defendant).
    First District (2nd Division)
    No. 1—88—1262
    Opinion filed March 28, 1989.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John L. Kirkland, Stephen R. Swofford, and Bruce L. Carmen, of counsel), for appellant.
    Thomas D. Fazioli and Paul B. Episcope, Ltd., both of Chicago, for ap-pellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This is an appeal from orders of the circuit court granting plaintiff/ counterdefendant Anthony Grasso’s (Grasso’s) complaint for declaratory judgment and post-trial motion, and denying defendant/counter-plaintiff Mid-Century’s (Mid-Century’s) counterclaim for declaratory judgment. We are asked to determine whether the court entered these orders in error.

On August 13, 1985, Grasso filed a complaint for declaratory judgment against defendant Bonnie Hlevyack (Bonnie) and Mid-Century, one of defendant Farmers Insurance Group of Companies (Farmers), alleging: Mid-Century issued to James Hlevyack (James) an automobile liability insurance policy, effective February 27, 1982, to August 27, 1982; on June 23, 1982, to James’ daughter, Bonnie, collided with Grasso’s motorcycle while driving a jeep owned by her boyfriend, Walter J. Henely, Jr. (Henely); and the jeep was insured in Henely’s name by the Home and Auto Insurance Company (Home and Auto). Grasso further asserted: he filed a negligence action against Bonnie in September 1983; the policy issued by Mid-Century to James “provided excess coverage for [Bonnie]” for the collision between Grasso and Bonnie; and Mid-Century declined to provide coverage for the occurrence. Grasso sought a judgment declaring that the policy issued by Mid-Century to James provides excess coverage for Bonnie for any liability to Grasso as a result of the June 23,1982, accident.

By answer filed June 2, 1986, Mid-Century denied that James’ policy provided coverage for the collision. On September 17, 1986, Mid-Century filed a four-count counterclaim for declaratory judgment, naming Bonnie as a defendant and Grasso as a counterdefendant and insisting in the first count that: the subject policy requires that the insured provide Mid-Century with written notice of an “accident, occurrence, or loss *** as soon as practicable” after the event and forward “immediately” to the company “every demand, notice, summons or process” received by the insured; notice of the June 23, 1982, accident was not tendered to Mid-Century until December 18,1984; Bonnie never forwarded any summons or complaint from the underlying cause to Mid-Century; and the two-year delay in providing notice to Mid-Century violates the policy’s notice provision and therefore relieves Mid-Century of any duty to defend or indemnify Bonnie with respect to the underlying claim. Counts II through IV similarly requested findings and declarations of noncoverage arising from the breach of other policy provisions not relevant to the instant appeal.

Grasso answered the counterclaim twice. Bonnie’s September 22, 1987, answer to Grasso’s complaint admitted all “allegations contained therein;” on the same day, Bonnie filed an answer to Mid-Century’s counterclaim for declaratory judgment.

Following a trial, the court entered an order on November 9, 1987, finding: (1) for Farmers and Mid-Century and against Grasso and Bonnie on Grasso’s complaint for declaratory judgment; (2) for Mid-Century and against Grasso and Bonnie on count I of Mid-Century’s counterclaim; and (3) against Mid-Century on counts II and III of its counterclaim.

Pursuant to Grasso’s post-trial motion filed December 7, 1987, the court entered another order on March 29, 1988, finding: (1) against Farmers and Mid-Century and for Grasso and Bonnie on Grasso’s complaint; (2) against Mid-Century and for Grasso and Bonnie on count I of the counterclaim “pertaining to notice”; and further concluding that Farmers and Mid-Century are obligated to furnish a defense for Bonnie and to pay any judgment, “to the extent of the coverage afforded under its policy of insurance,” entered against her as a result of Grasso’s claim. Mid-Century appeals.

Mid-Century initially urges that the circuit court erroneously denied count I of its counterclaim for declaratory judgment, because Bonnie’s neglect to tender prompt notice of the June 23, 1982, incident precludes coverage under James’ policy. The notice clause states in pertinent part:

“In the event of accident, occurrence, or loss, written notice containing particulars shall be given by or for the insured to the Company or any of its authorized agents as soon as practicable. *** If claim is made or suit is brought against the insured, he shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.”

Policy provisions establishing when the insured must notify the insurer concerning covered occurrences require notification “within a reasonable time,” considering all relevant facts and circumstances. (Barrington Consolidated High School v. American Insurance Co. (1974), 58 Ill. 2d 278, 281, 319 N.E.2d 25; Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 299, 388 N.E.2d 253.) Where, as here, the material facts are undisputed, the insured’s diligence in forwarding notice to the insurer becomes solely a question of law. Country Mutual Insurance Casualty Co. v. Van Duzen (1953), 351 Ill. App. 112, 120, 113 N.E.2d 852; INA Insurance Co. v. City of Chicago (1978), 62 Ill. App. 3d 80, 83, 379 N.E.2d 34.

Bonnie testified at trial that although she knew she possessed an insurance policy for her own Mustang and she assumed her father purchased automobile liability insurance for the car he owned, she believed the primary insurance for the jeep was the only coverage available to her after the accident. She notified Home and Auto immediately following the incident, making a claim against Henely’s policy. Representatives of Home and Auto charged her to speak to no one outside the agency regarding the incident and to forward all pertinent documents to them, directions with which she complied. In September 1983, Bonnie received a summons and complaint for the underlying cause of action and forwarded them to Home and Auto; thereafter, attorney Ed McCabe (McCabe) contacted Bonnie; told her “he would take care of it”; reminded her to continue sending “any memos or anything to do with the accident to him”; and told Bonnie not to speak to anyone regarding the case. McCabe mailed her copies of Grasso’s interrogatories, with the answers “already typed-in,” directing her to sign them only. Neither McCabe nor anyone at Home and Auto told her potential coverage was available under her own Home and Auto policy for her Mustang or under her father’s policy.

Bonnie averred she had never read an insurance policy before June 1982. She had not seen the insurance policy purchased by her father from Mid-Century. She never had been in an auto accident before nor had she had any dealings with insurance agencies other than receiving from them cancellation and premium notices. It was further revealed that Bonnie was 19 years old at the time of the accident.

Mid-Century argues that the court’s consideration of such facts as Bonnie’s youth, inexperience and accident-free driving record imper-missibly exceeded the objective standard of reasonableness established in Illinois; however, courts will examine all facts tending to prove or disprove the reasonableness of the late notice. (See Del Grosso v. Casualty Insurance Co. (1988), 170 Ill. App. 3d 1098, 1101, 524 N.E.2d 1042; INA Insurance Co. v. City of Chicago, 62 Ill. App. 3d at 84-85; Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 920-21, 364 N.E.2d 337; International Harvester Co. v. Continental Casualty Co. (1962), 33 Ill. App. 2d 467, 472-73, 179 N.E.2d 833.) Mid-Century’s reliance on City of Chicago v. United States Fire Insurance Co. (1970), 124 Ill. App. 2d 340, 343, 260 N.E.2d 276, moreover, is misplaced. The court there attached “no significance” to the fact the insured was a municipal corporation, only as that fact affected the insured’s duty to honor its contractual obligations. The court also quoted with approval International Harvester Co. v. Continental Casualty Co. (1962), 33 Ill. App. 2d 467, 179 N.E.2d 833, cited above as authority for a reasonable standard which examines “all facts and circumstances” surrounding the insured’s failure to notify the insurer.

Assuming, arguendo, Bonnie’s youth and inexperience were excluded from consideration, the evidence nevertheless demonstrates the reasonableness of her actions. Bonnie immediately notified the insurance carrier for the automobile she drove at the time of the accident and cooperated completely with its instructions concerning the claim and the suit ultimately filed by Grasso. Her ignorance of potential coverage under a policy held by another for a car she neither owned nor operated when the accident occurred is not, under Illinois law, unreasonable. See Farmers Automobile Insurance Association v. Hamilton (1976), 64 Ill. 2d 138, 142, 355 N.E.2d 1; Rivota v. Kaplan, 49 Ill. App. 3d at 920-21.

Nor does Mid-Century’s argument find support in Allstate Insurance Co. v. Hoffman (1959), 21 Ill. App. 2d 314, 324, 158 N.E.2d 428, where the court rejected Hoffman’s contention that he was unaware of available insurance coverage. In Allstate, however, the insured’s ignorance was reinforced by the concurring opinion of his superior officer in the National Guard, and not by an actual insurance company and insurance defense attorney, facts critical in the instant case to the determination that Bonnie acted reasonably. Additionally, the Allstate court reached its conclusion without citation to authority; we elect to follow Rivota and Hamilton as representative of the actual state of Illinois law on this issue.

Grasso concedes that Mid-Century bears no burden to prove prejudice visited upon it by the insured’s failure of prompt notification (see Del Grosso v. Casualty Insurance Co., 170 Ill. App. 3d at 1100; City of Chicago v. United States Fire Insurance Co., 124 Ill. App. 2d at 348; Country Mutual Casualty Co. v. Van Duzen, 351 Ill. App. at 120); however, he urges that the circuit court’s finding of no prejudice to Mid-Century can be “justified on the basis of the total lack of prejudice” here and the application of the “cold trail principle.” As noted here by the circuit court, James Radecki, branch claims manager for Farmers, testified that he had never stated that Mid-Century was prejudiced by the late notice and that, if presented with a claim such as the underlying cause of action, the insurer’s investigation would consist of obtaining a copy of the police accident report, transcribing the statements of the insured and the injured party, and obtaining photographs of the vehicles. Furthermore, Radecki conceded that the receipt of late notice doesn’t automatically mean Mid-Century is prejudiced in its attempt to defend and evaluate a claim. Interestingly, Mid-Century evidently never issued a reservation of rights letter to Bonnie in connection with the claim.

Mid-Century lastly contends that, even if the facts and circumstances preceding Bonnie’s receipt of the summons and complaint for the underlying claim reasonably excuse her untimely notice to Mid-Century, no facts or circumstances after that date justify her tardy response. After Grasso filed his complaint against Bonnie in September 1983, Home and Auto appointed counsel, McCabe, to represent Bonnie, denying her from that point on the excuses of unsophistication and unfamiliarity with the insurance claims process, Mid-Century maintains. A client cannot escape the consequences of his counsel’s negligence and is bound by the errors and omissions of his lawyer-agent. (Danforth v. Checker Taxi Co. (1969), 114 Ill. App. 2d 471, 476, 253 N.E.2d 114.) Where, however, as in this case, the insurer provides the insured with an attorney and assumes control over defense of the claim, the attorney’s negligence may not be imputed to the insured, as no principal-agent relationship exists between them. Petersen v. Farmers Casualty Co. (Iowa 1975), 226 N.W.2d 226, 230, citing National Farmers Union Property & Casualty Co. v. O’Daniel (9th Cir. 1964), 329 F.2d 60, 65; Attleboro Manufacturing Co. v. Frankfort Marine, Accident & Plate Glass Insurance Co. (1st Cir. 1917), 240 F. 573, 581.

Bonnie’s testimony in the case sub judice indicated Home and Auto supplied her with counsel for the underlying claim in that McCabe contacted Bonnie after she forwarded Grasso’s summons and complaint to the insurance company and she identified him at trial as the “lawyer representing [her] from Home and Auto.” Furthermore, McCabe told Bonnie “he would take care of it,” not to discuss the case with anyone, and to forward all pertinent documents to him. Coupled with appellant counsel’s admission at oral argument that Bonnie did not retain Mc-Cabe and that she could neither direct the conduct of her defense nor fire him, we clearly cannot impute to Bonnie any negligence which may or may not have occurred in the course of McCabe’s representation.

No doubt, absent conflicting interests, the attorney’s duty of loyalty to the insured is no less compelling than the duty owed the insurance company (Nandorf Inc. v. CNA Insurance Cos. (1985), 134 Ill. App. 3d 134, 137, 479 N.E.2d 988), yet the essence of agency is control, and where the purported principal lacks control over the putative agent, no agency exists. Morgan v. Kobrin Securities, Inc. (N.D. Ill. 1986), 649 F. Supp. 1023, 1032.

Decisions cited by Mid-Century are inapposite. In both Pawtucket Mutual Insurance Co. v. Dolby (D. Mass. 1969), 305 F. Supp. 703, and Hawkeye-Security Insurance Co. v. Davis (8th Cir. 1960), 277 F.2d 765, the court recognized applicability of the law of agency to the lawyer-client relationship, but never extended the principle to an attorney hired by an insurer to defend a suit brought against an insured.

The court did not err in finding Mid-Century obligated to defend and, if necessary, indemnify Bonnie pursuant to the policy.

For the reasons stated herein, we affirm.

Affirmed.

BILANDIC and SCARIANO, JJ., concur.

      Though the designation and identification of parties in the pleadings and orders of record vary, it appears that: (1) Mid-Century issued the auto liability insurance policy to James Hlevyack; and (2) only Mid-Century filed a counterclaim in this action. The facts stated in this opinion reflect these conclusions.

      Mid-Century maintains that Illinois decisions have found notice delays of 6 and 16 months sufficient to breach notice provisions in insurance contracts. (Illinois Valley Minerals Cop. v. Royal-Globe Insurance Co., 70 Ill. App. 3d at 299; INA Insurance Co. v. City of Chicago, 62 Ill. App. 3d at 83.) One of the cases cited by Mid-Century, however, emphasizes that “[a] lengthy passage of time is not an absolute bar to coverage.” (See Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co., 70 Ill. App. 3d at 299.) Courts focus instead on the reasonableness of the excuse offered by the insured for the delay. Rivota v. Kaplan, 49 Ill. App. 3d at 920.

      Counsel for Mid-Century noted at oral argument that Bonnie “will never face an excess judgment in this case,” citing correspondence attached to Mid-Century’s reply brief. These documents do not appear in the record on appeal, however, and therefore are beyond our consideration. Bee Jay’s Truck Stop, Inc. v. Department of Revenue (1977), 52 Ill. App. 3d 90, 95, 367 N.E.2d 173.


text:
    BRUCE THOMPSON, Plaintiff-Appellant, v. IFA, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—1754
    Opinion filed March 28, 1989.

      Michael W. Pinsof, of Martin Cohn & Associates, Ltd., of Chicago, for appellant.
    Steven B. Varick, of McBride, Baker & Coles, of Chicago, for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from the circuit court’s denial of his petition to vacate an order of dismissal and from the denial of his motion for reconsideration. The issue raised is whether the circuit court abused its discretion in denying his petition to vacate an agreed order of dismissal because it was an agreement of the parties and not a “judicial determination.”

Plaintiff became the owner of one-third of the issued and outstanding stock of defendant IFA, Inc. (IFA), on December 31, 1981. Codefendants Raymond Harding and Paul Sheedy owned the remaining two-thirds of the shares in equal amounts. On March 6, 1984, plaintiff, Harding, and Sheedy entered into a written shareholder’s agreement providing, inter alia, that any shareholder who resigned or was terminated was obliged to sell his shares back to the company for a price established by an agreed-to formula; further, the company was obligated to purchase those shares for the determined price. Upon full payment of the purchase price, the shares were to be delivered to the corporation.

On March 21, 1984, IFA terminated plaintiff’s employment, pursuant to a resolution of Harding and Sheedy. Soon thereafter IFA undertook to repurchase his shares. Plaintiff refused to assign and deliver his stock certificates, however, and IFA, pursuant tc the shareholder’s agreement, cancelled plaintiff’s shares.

Plaintiff, on May 6, 1985, commenced an action to compel production of IFA’s books and records and for damages. On September 30, 1985, the circuit court dismissed the case with prejudice, entering an “Agreed Order of Dismissal” which expressly made references to a settlement agreement entered into by the parties which provided, in part, that IFA terminated plaintiff’s employment and acquired his shares pursuant to the shareholder’s agreement and, in consideration for the dismissal of the lawsuit and release of all defendants, plaintiff would receive $90,000.

According to plaintiff, several months after the agreed order was entered, he discovered that IFA had been acquired by another company and that, unknown to him, Harding and Sheedy were negotiating with the Bank of Scotland to sell IFA prior to the execution of the settlement agreement. On July 16, 1987, plaintiff filed a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) to vacate the agreed order of dismissal entered September 30, 1985. The petition, supported by an affidavit, alleged that Sheedy and Harding concealed from and failed to disclose to plaintiff the negotiations for the sale of IFA, with the intent to deceive and defraud him. Plaintiff also claimed he never would have entered into the settlement agreement if he had known about the negotiations. The affidavit was sworn to by one Lawrence Kancius, who averred: he was formerly vice-president of IFA; in that capacity, he arranged negotiations between representatives of IFA and the Bank of Scotland; prior to the settlement agreement with plaintiff, a deal had been reached whereunder 75% of the stock of IFA would be sold to the Bank of Scotland; he was sworn to secrecy and requested by Sheedy not to disclose the pendency of the sale to plaintiff under any circumstances; and the transaction with the Bank of Scotland was delayed until plaintiff’s lawsuit against IFA was officially dismissed.

In response, IFA moved to strike the petition for failure to state a claim upon which relief could be granted and, alternatively, that it was not legally sufficient.

At the hearing, the circuit court addressed neither the legal sufficiency nor the merits of the petition or affidavit. Purportedly following Stanley A. Nelson & Co. v. Modular Interiors (1973), 13 Ill. App. 3d 634, 301 N.E.2d 40, the court held that the agreed order was an agreement of the parties, and not a judicial determination; therefore, the court concluded, it had no basis for reviewing or vacating the order. The court then entered an order that denied plaintiffs petition and, subsequently, his motion for reconsideration. He appeals.

Decisions involving petitions to vacate under section 2 — 1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2 —1401) will not be disturbed on review absent abuse of sound legal discretion by the circuit court. (Lubowsky v. Skokie Valley Community Hospital (1979), 79 Ill. App. 3d 909, 916, 398 N.E.2d 1037; City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 443-44, 292 N.E.2d 154.) Here, plaintiff contends that the circuit court abused its discretion by declining to consider the merits of his section 2 — 1401 petition to vacate.

The order sought to be vacated was entitled “Agreed Order of Dismissal”; was signed by the attorneys representing all involved parties; states that the parties had entered into a settlement agreement; and dismisses the case with prejudice. The order thereby fits the description of a consent order. See City of Des Plaines, 9 Ill. App. 3d at 442-43.

A consent order is generally regarded as one entered by the court that recites a settlement agreement reached as an independent undertaking by the parties, which may supersede pleadings and evidence and limit the relief to be granted. (Lubowsky, 79 Ill. App. 3d at 913.) As a general rule, a consent order is an agreement of the parties which cannot be vacated on motion by one of them. (Lubowsky, 79 Ill. App. 3d at 912; Peters v. Hokin (1976), 41 Ill. App. 3d 995, 997, 355 N.E.2d 205; Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 127, 309 N.E.2d 356.) Because it is not a judicial determination of the rights of the parties and does not purport to represent the judgment of a court, a consent order ordinarily cannot be reviewed. In re Haber (1981), 99 Ill. App. 3d 306, 309, 425 N.E.2d 1077; Lubowsky, 79 Ill. App. 3d at 913.

Certain exceptions to the general rule are recognized, however. A court will vacate a consent decree on the motion of only one party upon a showing of fraudulent misrepresentation or coercion in the making of the agreement, the incompetence of one of the parties, gross disparity in the position or capacity of the parties, errors of law apparent on the face of the record, or newly discovered evidence. (In re Haber, 99 Ill. App. 3d at 309; Lubowsky, 79 Ill. App. 3d at 913-15; Peters, 41 Ill. App. 3d at 997; Filosa, 18 Ill. App. 3d at 127; City of Des Plaines, 9 Ill. App. 3d at 443.) Relief can be granted with respect to consent orders under section 2 — 1401 and “ ‘must be judged by the broad equitable considerations which govern all Section 72 [now 2—1401] petitions.’ ” Lubowsky, 79 Ill. App. 3d at 914, quoting City of Des Plaines, 9 Ill. App. 3d at 443.

In the instant case, plaintiff claims newly discovered evidence revealed fraudulent misrepresentation surrounding the settlement agreement. He alleges that Harding and Sheedy fraudulently concealed the negotiations regarding the imminent sale of IFA, and states that he would not have settled if he had known of those negotiations. He concludes that the circuit court, before ruling, should have at least considered the showing of fraud in his petition.

It is apparent from the transcript of the instant proceedings that the circuit court considered the general rule barring vacatur of consent judgments as absolute, allowing no exceptions. As the following examples demonstrate, the court refused to hear any argument concerning the “fraud exception” to the general rule prohibiting vacatur:

“THE COURT: I have always stated whenever there is a settlement agreement between the parties, that is not a judicial determination, and not being a judicial determination there is nothing for the court to determine. *** That ends it, as far as this court is concerned. *** There is nothing left.
[PLAINTIFF’S COUNSEL]: *** Here we’re alleging facts, material facts of which the plaintiff had no knowledge and could not have obtained knowledge that were affirmatively concealed by the defendant in connection to induce him to execute the settlement agreement.
THE COURT: I won’t vacate it, I’ll tell you that right now. I’m not going to vacate it. *** [A] settlement agreement is not a judicial determination, nothing. The court hasn’t decided anything. People decide to settle the case, they settle it. Once it’s settled, as far as I am concerned, that ends it. We haven’t made any judicial determination. There is nothing for us to vacate.
[PLAINTIFF’S COUNSEL]: *** If what the court is saying is true, then one could never vacate an order of dismissal as a result of a settlement of a case. *** It would in effect divest the court of jurisdiction ever to vacate an order of dismissal where the underlying claims are settled.
THE COURT: *** There is no way that this court will vacate that order. And I’ll stand by that.” (Emphasis added.)

As a result, the circuit court abused its discretion by declining to consider the allegations of fraud as a possible ground to vacate the consent order.

The circuit court’s comments at the hearing indicate that its reliance on one particular case may have led to its misapplication of the law. The court expressly relied on Stanley A. Nelson & Co. v. Modular Interiors (1973), 13 Ill. App. 3d 634, 301 N.E.2d 40, an abstract opinion, for the proposition that it had no authority to vacate a settlement agreement on motion by one party; however, the Nelson judgment was not subject to vacation on the ground that it was a product of fraud, but was the result of mutual mistakes of law and fact induced by the appellee. Here, plaintiff has raised the issue of fraudulent misrepresentation in the procuring of the settlement order. The circuit court should have considered plaintiff’s allegations of fraud; refusal to do so was error.

IFA contends that even if the circuit court erroneously failed to consider the fraudulent concealment “exception,” petitioner’s con-clusory assertions of fraud were insufficient to support a section 2— 1401 petition to vacate the agreed order. IFA suggests that this court may consider the legal sufficiency of the section 2 — 1401 petition even though not considered or ruled on below. An appellee may urge any point in support of judgment on appeal even though not directly ruled on by the circuit court, as long as the factual basis for the point was before the circuit court. Shaw v. Lorenz (1969), 42 Ill. 2d 246, 246 N.E.2d 285; Mortell v. Insurance Co. of North America (1988), 165 Ill. App. 3d 915, 921, 520 N.E.2d 847.

Initially, it should be noted that the circuit court precluded the parties from presenting argument on the issue of the petition’s legal sufficiency. Further, the court did not make a ruling on the merits of defendant’s motion to strike the petition, explicitly finding that it had no basis to review or vacate the agreed order. The function of a reviewing court on a section 2 — 1401 petition is to consider whether the circuit court abused its discretion. The first examination of the merits, considering the complete factual basis of the issues, was never undertaken by the circuit court. The case must be reversed and remanded to the circuit court for further proceedings.

We note, in passing, that a legally sufficient section 2 — 1401 petition must affirmatively set forth specific factual allegations supporting each of the following elements: (1) a meritorious claim or defense; (2) due diligence in presenting the claim in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381.) It is insufficient merely to assert that the basis for relief was fraudulent concealment; rather, petitioner must allege facts, supported by affidavit, demonstrating affirmative acts or representations by respondent designed to prevent discovery of the purported grounds for relief. See Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 227, 507 N.E.2d 1.

The circuit court on remand should consider whether plaintiff alleged sufficient facts to support a claim of fraudulent concealment and the sufficiency of plaintiff’s attached affidavit. The court also should consider whether the shareholder’s agreement reasonably may be interpreted in more than one way under the circumstances. Since the procedural posture of this case in the circuit court was a motion to strike or dismiss, all well-pleaded facts in the section 2 — 1401 petition are deemed admitted. (Manning v. Meier (1983), 114 Ill. App. 3d 835, 839, 449 N.E.2d 560.) A petition should not be dismissed unless it clearly appears that no set of facts could be proved under the pleadings, or amended pleadings, which would entitle petitioner to relief. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449, 434 N.E.2d 476.) Dismissal is improper if plaintiff’s well-pleaded facts sufficiently allege fraudulent concealment.

Under Illinois law, when stock purchases are made by the corporation itself (as is the case here), corporate insiders such as Sheedy and Harding have a duty to disclose facts that would render the bargain with the minority shareholder unconscionable. (Guy v. Duff & Phelps, Inc. (N.D. Ill. 1987), 672 E Supp. 1086, 1090-91; see also Melish v. Vogel (1975), 35 Ill. App. 3d 125, 135, 343 N.E.2d 17 (a purchase by a director or shareholder of a corporation of the stock of another shareholder of that corporation may be set aside if the purchaser fraudulently misleads the other party by withholding material information).) Plaintiff in the present case alleges that he remained a shareholder; if so, this fact raises a possible duty to disclose.

IFA contends that any misrepresentation was immaterial; however, the materiality of a misrepresentation for purposes of fraud is a question of fact (Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 607, 470 N.E.2d 1047), which must be determined by a trier of fact (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 286, 433 N.E.2d 253).

Questions of plaintiffs lack of due diligence in bringing the section 2 — 1401 petition also should be considered by the circuit court on remand.

Reversed and remanded for further proceedings consistent with this opinion.

EGAN, P.J., and BILANDIC, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD A. HUGHES, Defendant-Appellee.
    Second District
    No. 2—87—1168
    Opinion filed February 3, 1989.
    — Modified on denial of rehearing February 23, 1989.

      Robert F. Casey and Gary V. Johnson, State’s Attorneys, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, and Vincent C. Argento, of Argento & Malcolm, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from the trial court’s order granting defendant’s mid-trial motion to suppress evidence.

On July 3, 1987, at approximately 5:30 p.m., defendant, Donald A. Hughes, was involved in a traffic accident in which the truck he was allegedly driving tipped over near an intersection. Several police officers arrived and defendant was taken into custody. Defendant was charged with driving under the influence of alcohol (DUI) and five other traffic offenses. After defendant refused to take the breathalyzer test, he was read his Miranda rights. The defendant filed a mid-trial motion to suppress all statements made before the Miranda rights were given. Although the State agreed to hold a hearing during the trial, the State argued at the close of the evidence that the motion was not timely.

The trial court conducted the hearing on defendant’s motion and granted the motion to suppress. The trial court determined that defendant was in custody shortly after the officers arrived at the scene of the accident and thus should have been given his Miranda rights before any questioning took place. The court also found that, under the circumstances of the case, the mid-trial motion to suppress was timely filed. This appeal followed.

The State called three eyewitnesses to the stand before calling deputy sheriff Thomas L. Bumgarner. Deputy Bumgarner testified that he responded to a call concerning the accident. After arriving at the scene, a fellow police officer from a different jurisdiction informed Deputy Bumgarner that the defendant was in his custody. It was at this point in the trial that counsel for defendant made a motion to suppress. Counsel stated that he was not aware defendant was in custody and, as such, defendant was entitled to be given his Miranda rights. The trial judge decided to hear the motion in conjunction with the trial.

The testimony of Deputy Bumgarner resumed, and he testified that he informed defendant that he was investigating the accident. After questioning, defendant informed Deputy Bumgarner that he was the driver of the vehicle. The deputy then administered a field sobriety test, which defendant failed. Defendant admitted drinking “some beers” at lunch. Defendant was then arrested by Bumgarner and taken to the jail, where he was read his Miranda rights. After being read his rights, defendant admitted to drinking four or five beers at lunch and also stated that he was not the driver of the vehicle. Defendant stated that the passenger, Danny Salazar, paid defendant $100 to admit being the driver when initially questioned.

Defendant also testified at the suppression hearing. Defendant stated that Officer Dick Rust advised him that he was under arrest at the scene of the accident. Defendant testified:

“Q. [Defense counsel]: What did he [Officer Rust] say?
A. [Defendant]: He asked me for my driver’s license.
Q. And what did you do then?
A. I — I—I had given — I gave him my driver’s license.
Q. And what else did he say to you?
A. He told me to stand by the squad car.
Q. And did he say anything else?
A. I asked him if I was being [sic] under arrest. He said yes.”

Deputy Bumgarner also testified that defendant was under arrest, stating: “Yes, he [the defendant] was not allowed to — to—his freedom, so, under the letter of the law, I guess he was under arrest.”

At the conclusion of the above testimony, the trial judge granted defendant’s motion to suppress. The trial court noted that all facts indicated that defendant was in custody such that he should have been given his Miranda warnings. The court also noted that the motion was timely filed given the fact that counsel for defendant was not aware of the ground for the motion prior to trial.

On appeal, the State contends that the trial court erred in allowing defendant’s motion to suppress for two reasons: (1) the motion was not timely filed; and (2) Miranda warnings do not apply to a detainee at a routine traffic stop.

The State initially contends that defendant’s motion to suppress was not timely filed and should not have been considered in the court below. Both parties agree that the Code of Criminal Procedure of 1963 requires such a motion to be made before trial unless there was not an opportunity to do so or unless the defendant was not aware of the ground for the motion before trial. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 11(g).) The motion was not filed before the trial began. Thus, the dispute arises as to whether one of the two exceptions applies in this case.

The Illinois Supreme Court has held that it is within the sound discretion of the trial court to entertain a motion to suppress evidence after the trial has begun. People v. Hoffman (1981), 84 Ill. 2d 480, 485, 419 N.E.2d 1145; People v. Flatt (1980), 82 Ill. 2d 250, 262, 412 N.E.2d 509.

It is evident, and both parties agree, that defendant had an opportunity to present the motion before trial. Thus, the inquiry focuses on whether defendant was aware of the ground for the motion before the trial began. Defendant’s counsel claims that he was not aware that defendant was in custody when the statements were made until such testimony was elicited at trial. The State contends that defendant’s attorney (Mr. Morelli) had to have some uncertainty in his own mind regarding whether defendant was in custody such that he should have filed a pretrial motion to suppress the statements. It is apparent that, during the trial, attorneys for both parties were surprised at Deputy Bumgarner’s testimony. The assistant State’s Attorney stated:

“Secondly, I — I was not aware of any custody beforehand, that’s the reason the State did not supply anything to Mr. Morelli ***. I understand that if, in fact, Mr. Morelli is just finding this out now, that it may have caught him by surprise * * * M

The court then responded:

“[A]t this point, what the record shows, Mr. Morelli, is surprise, that all of a sudden it appears that his client was in custody, and based upon the discovery that he received, he didn’t have the faintest idea that his client was in custody.”

The State’s Attorney then agreed with the trial judge and stated:

“That’s accurate, Judge, and I think he’s entitled to have a hearing.”

At the close of the evidence, the State renewed its objection as to timeliness. The trial court determined that the motion to suppress was timely filed during the trial because defense counsel could not have been aware of the ground for the motion prior to trial. We disagree. The Illinois legislature enacted section 114 — 11 to allow for mid-trial motions to suppress in limited circumstances. The Illinois Supreme Court noted that this provision is necessary to prevent the prohibition against filing a motion to suppress during the trial from prevailing over defendant’s constitutional rights. (Flatt, 82 Ill. 2d at 262.) However, this case is not one in which the defendant should be allowed to claim surprise by the testimony of Officer Bumgarner regarding whether defendant was in custody at the time the statements were made.

We conclude that to not hold a mid-trial hearing in this case would not work to deprive defendant of his constitutional rights. This is especially true given that defendant should not have been surprised by Deputy Bumgarner’s testimony stating that defendant was in custody. Defendant knew he was in custody when he asked Officer Rust if he was under arrest and received an affirmative response. Counsel for defendant certainly should have found out whether defendant was in custody at the time the statements were made before the trial began. We cannot allow defendant to forego filing a pretrial motion to suppress the statements when defendant knew, by way of his own testimony, for certain that he was in custody at the time the statements were made. There is no question that defendant was aware of the ground for the motion before trial, and consequently, there appears to be no justification for making the motion during trial rather than before the trial. People v. White (1985), 134 Ill. App. 3d 262, 290, 479 N.E.2d 1121, cert. denied (1986), 475 U.S. 1126, 90 L. Ed. 2d 194, 106 S. Ct. 1650.

Defendant contends that he was not aware of the ground for the motion prior to the inception of the trial. Defendant notes that both the assistant State’s Attorney and his own counsel were caught by surprise by Deputy Bumgarner’s testimony. However, we fail to see how the surprise to the attorneys can overcome defendant’s in-court admission that he was under arrest. Section 114 — 11 places the inquiry on whether the defendant, not defendant’s counsel, was aware of the ground for the motion before the trial began. It is difficult to comprehend how defendant could not be aware of the ground when he knew he was under arrest and not free to leave the accident site.

Defendant last contends that to file a pretrial motion to suppress would have been frivolous and would have left him open to sanctions. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Such an argument is without merit. Defendant clearly knew he was in custody long before the trial began. Filing a pretrial motion to suppress the statements would not only have been not frivolous, it would have been the proper procedure. Furthermore, section 2 — 611 relates to civil, not criminal, cases and has no application here.

We hold that defendant had the opportunity to file the motion to suppress before trial and also had knowledge of the ground of the motion to adequately do so. The trial judge abused his discretion in holding that the motion was timely filed. Because of our disposition on this issue, we find it unnecessary to consider whether the Miranda warnings were required before the statements were made.

For the reasons stated above, the circuit court of Kane County should not have entertained and granted defendant’s mid-trial motion to suppress. We reverse and remand.

Reversed and remanded.

INGLIS and REINHARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. EDWARD E. YPMA, Ex’r of the Estate of Catherine Ypma, et al., Defendants-Appellants.
    Second District
    No. 2—88—0788
    Opinion filed March 29, 1989.

      Charles J. Siemon and James N. Azim III, both of Siemon, Larsen & Purdy, of Chicago (Gerald P. Callaghan, of counsel), for appellant.
    Fuqua, Winter, Wysocki & Stiles, Ltd., of Waukegan, James E. Lentz, of Coffield, Ungaretti, Harris & Slavin, of Chicago, and Russell V. Ray, of Ray & Glick, Ltd., of Libertyville (Bernard Wysocki, of counsel), for appel-lees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Town of Libertyville (Libertyville), brought this eminent domain action, pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.), in the circuit court of Lake County against defendants, Edward E. Ypma, executor of the estate of Catherine Ypma, and unknown owners. Libertyville sought to acquire an approximately 19-acre parcel of land located on the southwest corner of the intersection of O’Plaine Road and Buckley Road in Libertyville Township. Defendants filed a traverse and motion to dismiss which the trial court granted. This appeal is taken from that judgment.

On appeal, Libertyville contends: (1) that the 19-acre subject property is “open land” within the meaning of the Act; (2) that the plain language of the Act does not contain a contiguity requirement; (3) that even if the Act contained a contiguity requirement, the subject property is part of a contiguous area of more than 50 acres of open land; and (4) that the trial court erred in disregarding uncontroverted expert testimony and in rendering a decision inconsistent with the uncontested facts established in that testimony.

Libertyville instituted this eminent domain proceeding pursuant to the Township Open Space Act (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.), which authorizes Illinois townships to establish open-space programs. Under the Act, a township with an open-space program has the power to acquire interests in open land or open space by purchase, condemnation, or other means. (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.) Section 2(b) of the Act defines “open land” or “open space” as “any space or area of land or water of an area of 50 acres or more” which meets certain open-space criteria. Ill. Rev. Stat. 1987, ch. 139, par. 322(b).

In response to the condemnation complaint, defendants filed a motion to dismiss, alleging that Libertyville had failed to state a claim and that the subject property may not be condemned pursuant to the authority granted under the Act since the property was less than 50 acres in size. The trial court denied defendants’ motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) and struck defendants’ motion to dismiss pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The trial court granted defendants leave to amend the latter motion.

In their amended section 2 — 619 motion defendants asserted that Libertyville’s condemnation complaint should be dismissed because the subject property “consists of 19 acres which is an amount clearly not contemplated by the Township Open Space Act.” The trial court denied defendants’ amended section 2 — 619 motion, finding that “the fact that the subject parcel is less than 50 acres does not, in and of itself, preclude plaintiff from condemning the subject parcel.”

Defendants’ motion for reconsideration was denied, but the court granted defendants leave to file a traverse and motion to dismiss. In support of their motion, defendants argued that other parcels of open land could not be combined with the subject property to reach the 50-acre requirement of section 2(b) of the Act. The trial court considered defendants’ argument in a hearing limited, pursuant to an agreed pre-hearing order, to the “fifty acre issue.”

At the hearing Libertyville offered the testimony of a private land planner, Lane Kendig, whose firm drafted the Libertyville township open-space plan. Kendig’s testimony established that the subject property is located at the southwest corner of the intersection of Buckley Road and O’Plaine Road; that to the north of the parcel and across Buckley Road is Ascension Cemetery, owned by the Catholic Archdiocese of Chicago; that on the east, west, and south sides of the subject property are residential developments in the Village of Green Oaks; and that located kitty-corner, but across Buckley Road, from the subject property is a three-acre parcel. At the time of the hearing this parcel was also under condemnation by Libertyville.

During his testimony, Kendig opined that the subject property met the criteria for open land as defined by the Act and that the preservation or restriction of the development of the subject property would advance the open-space criteria. Kendig testified that Ascension Cemetery also met the open-space criteria and that land planners considered it “borrowed open space” which, by its very nature, is likely to be preserved as open space.

At the conclusion of the hearing, the court stated that although the subject property was less than 50 acres, it could be considered open space under certain circumstances. By use of example, the court implied that if the subject property was contiguous to existing open space owned by Libertyville or at least to property under condemnation, so that combined, the subject property and the other property totaled at least 50 acres in area, Libertyville could condemn the subject property. In the court’s opinion the subject property did not adjoin any open land owned by Libertyville or any property under condemnation with the exception of the three-acre parcel located kitty-corner from the subject property.

The court found that Ascension Cemetery could not be considered open space under the terms of the Act and, therefore, could not be used in combination with the subject property to make an area of 50 acres or more. Additionally, the court found that the Act did not permit Libertyville to “leap frog” over the cemetery to create contiguity between the subject property and other parcels of open land to the north of the cemetery.

In the light of these findings, the trial court granted defendants’ traverse and motion to dismiss. Libertyville appeals.

In an election held pursuant to section 3 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 323), Libertyville was authorized to institute an open-space program. In establishing this program, the board of trustees of Libertyville was empowered “[t]o acquire by gift, legacy, purchase, [or] condemnation *** [an] interest in real property that is open land, as defined in Section 2 [Ill. Rev. Stat. 1987, ch. 139, par. 322(b)]” of the Act. (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.) The Act defines “open land” as “any area of land *** of an area of 50 acres or more.” Ill. Rev. Stat. 1987, ch. 139, par. 3220a).

It is Libertyville’s contention that the “50-acre” language in section 2(b) of the Act does not preclude Libertyville from condemning an interest in the 19-acre subject property because a parcel of land with an area of less than 50 acres can be considered open land if it is part of an area of 50 acres or more which meets the open-space criteria of section 2(b). This court in a very recent case, Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, rejected this same contention by Libertyville. In First National Bank, Libertyville argued that section 4.02 and section 2(b) of the Act were only intended to impose a minimum acreage requirement upon a township’s entire open-space program and that, therefore, a parcel of land with an area of less than 50 acres could be considered open land. Here, Libertyville makes an identical argument, contending that the logical construction of the definition of open land, as set forth in section 2(b), is that a parcel is open land if it is part of an area of 50 acres or more which meet the open-space criteria. Because Libertyville holds an interest in well over 50 acres in the northeastern quadrant of the township, it maintains that the property in question is subject to its condemnation.

In construing statutory provisions, the role of this court is to examine the entire statute for guidance as to the legislative intent, determine the objective the statute sought to attain and the evils it desired to remedy, and upon ascertaining the legislature’s intent, give it effect. (Krall v. Secretary of State (1988), 168 Ill. App. 3d 478, 483.) To determine that intent a court should first look to the statutory language itself. (In re Marriage of Grabarek (1988), 175 Ill. App. 3d 1045, 1047.) If the statutory language is clear, the court must give it effect and should not read into the statute exceptions, limitations, and conditions. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 917.

We have already determined in First National Bank that the statutory language of section 2(b) of the Act is clear and that it provides that a parcel of land with an area of less than 50 acres cannot be considered open land. Consequently, we find the subject property here, which consists of less than 50 acres, cannot be condemned merely because at the time of the eminent domain action against defendants, Libertyville’s open-space program was comprised of well over 50 acres.

In the instant case, however, Libertyville also contends that even if the subject property is less than 50 acres, it may be acquired by condemnation if it is part of a contiguous area of more than 50 acres of open land. This court also recently addressed this question in a case decided after First National Bank. In Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, Libertyville sought to acquire a 10-acre parcel of land from defendant, pursuant to the Act. The trial court dismissed Libertyville’s complaint for condemnation, finding that the property in question was not open land because it was less than 50 acres. This court reversed the lower court, finding that defendants’ 10-acre tract of land was subject to Libertyville’s right of eminent domain if defendants’ land was a portion of a tract 50 acres or more being contemporaneously condemned by Libertyville, or if defendants’ land abutted or adjoined a tract 50 acres or more already owned by Libertyville as part of its open-space program.

In Blecka, defendants’ property abutted 285 acres of existing township open space on its eastern border and also adjoined a 70-acre tract of land on its western border which Libertyville had made the subject of a separate condemnation action. In the light of these facts, this court remanded the cause with directions that the lower court consider these facts in determining whether Libertyville’s taking was in compliance with the definition of open land.

A similar finding was not, and could not, have been reached by this court in First National Bank. In First National Bank Libertyville sought to condemn a 2.985-acre parcel. A 90-acre parcel of land and an 18-acre parcel adjoined defendants’ property. However, although Libertyville had made offers to purchase these two parcels, it had not initiated eminent domain proceedings against the owners of the parcels at the time it brought its condemnation action against the defendants in First National Bank. Under these circumstances, Libertyville could not argue that the defendants’ 2.985 acreage was a portion of a tract of 50 acres or more being contemporaneously condemned by Libertyville or that defendants’ land adjoined or abutted a tract of 50 acres or more already owned by Libertyville as part of its open-space program. Accordingly, since the subject property in First National Bank consisted of less than 50 acres, the only decision this court could reach in that case was that the subject property could not be considered open land under section 2(b) of the Act.

We must reach a similar decision in the instant case. The evidence before this court shows that the subject property measures approximately 19 acres. Libertyville, however, argues that the subject property can be taken because it is contiguous or adjacent to Ascension Cemetery, which constitutes open land under the Act. As the cemetery is owned by the Archdiocese of Chicago, and not by Liber-tyville, and as property owned by a religious organization cannot be condemned (see Pub. Act 85 — 1140, eff. July 29, 1988 (amending Ill. Rev. Stat. 1987, ch. 139, par. 324.02)), the cemetery, under our holding in Blecka, cannot be considered in determining whether Libertyville’s taking of the subject property complies with section 2(b) of the Act. Taking into account this conclusion, we find it unnecessary to address Libertyville’s contention that the trial court disregarded the uncontroverted testimony of Libertyville’s expert that a cemetery constitutes open space within the meaning of the Act.

Finally, we find Libertyville’s argument that the subject property is contiguous to parcels 21, 20 and 205 of Libertyville’s open-space plan to be without merit. These parcels are located north of the cemetery. The subject property neither abuts nor adjoins these parcels. Under Blecka, the property to be condemned must abut or adjoin a tract of 50 acres or more already owned by Libertyville or it must be a portion of a tract of 50 acres or more being contemporaneously condemned by Libertyville. As the subject property does not abut, adjoin, or even lie adjacent to parcels 21, 20 and 205, and is not a portion of a 50-acre tract being contemporaneously condemned, it does not meet these requirements.

Accordingly, based on our holdings in First National Bank and Blecka, we find that the subject property did not satisfy the open-space criteria set forth in section 2(b) of the Act. In construing the Act as we have, we have considered the evil to be remedied and the object to be attained by the legislature. Under our holding, Liber-tyville cannot piece together totally unrelated pieces of property to meet the 50-acre requirement of section 2(b) of the Act. Yet, in our view, our decision does not needlessly restrict Libertyville’s means of meeting the acreage minimum of section 2(b).

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

Affirmed.

DUNN and McLAREN, JJ., concur.