author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DAVID L. FALES, Respondent-Appellant.
    Third District
    No. 3—92—0382
    Opinion filed July 16, 1993.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joan Scott, State’s Attorney, of Lewistown (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

On January 20, 1989, the respondent, David L. Fales, was adjudicated a sexually dangerous person. He was also ordered to pay $80 in court costs and a $25 “crime victims fund” fine. In August of 1991, Fales filed a recovery petition that was denied.

On appeal from the denial of his petition, Fales argues that the order for costs and the crime victims’ fund fine must be reversed because they are void. The State concedes that the orders for costs and the crime victims’ fund fine must be reversed. Accordingly, we reverse that portion of the trial court’s judgment.

Initially, we note that the imposition of costs was unknown at common law and is therefore totally a matter of statutory construction. (People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.) The statutory provisions regarding costs must be strictly construed. (People v. Bratcher (1986), 149 Ill. App. 3d 425, 500 N.E.2d 954.) The costs statute pertinent to this case states, “When any person is convicted of an offense *** the court shall enter judgment that the offender pay the costs of the prosecution.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 180—3.) Thus, courts of review have noted that a conviction is a prerequisite for the imposition of costs. (People v. Palmer (1983), 120 Ill. App. 3d 707, 458 N.E.2d 1044.) Accordingly, a cost order must be vacated when there is no underlying conviction upon which the assessment can rest. People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205.

With regard to the crime victims’ fund fine, the pertinent statute calls for a mandatory assessment “[w]hen any person is convicted *** of an offense.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 70, par. 510(c).) Thus, a conviction is also a prerequisite for imposition of a crime victims’ fund fine.

Based on the foregoing principles, we find that Fales’ fine and costs order must be reversed. A prosecution under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1991, ch. 38, par. 105—1 et seq.) is not a criminal prosecution and does not result in a conviction. (People v. Allen (1985), 107 Ill. 2d 91, 481 N.E.2d 690.) Since Fales was not convicted of a crime, the trial court could not impose the fine and costs order.

Parenthetically, we note that Fales’ argument may appear to be waived because he did not appeal the original judgment imposing the fine and costs. However, since the trial court lacked authority to impose the fine and costs, the order was void ab initio. Such an order may be attacked at any time. (In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910.) We therefore conclude that Fales did not waive his argument.

For the reasons indicated, Fales’ costs order and crime victims’ fund fine are reversed. The judgment of the circuit court of Fulton County is otherwise affirmed.

Affirmed in part and reversed in part.

BARRY and LYTTON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD LILLARD, Defendant-Appellant.
    Third District
    No. 3-92-0949
    Opinion filed July 16, 1993.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Clarke Erickson, State’s Attorney, of Kankakee (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Richard Lillard, was convicted of retail theft and sentenced to three years’ imprisonment. On appeal, the defendant argues that his sentence should be vacated and his cause remanded for resentencing because of the trial court’s failure to advise him of his right to elect treatment for alcoholism under the Illinois Alcoholism and Other Drug Dependency Act (Act) (Ill. Rev. Stat. 1991, ch. 1111/2, par. 6351—1 et seq.). We agree and reverse.

Section 10 — 102 of the Act states in relevant part:

“If a court has reason to believe that an individual *** convicted of a crime is an addict or alcoholic and the court finds that he is eligible to make the election provided for under Section 10 — 101, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a designated program.” (Ill. Rev. Stat. 1991, ch. 1111/2, par. 6360-2.)

The language of this Act is mandatory, not discretionary. People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024.

The issue in this case is whether the evidence before the trial court was sufficient to give the court “reason to believe” that the defendant was an alcoholic.

Section 1 — 103 of the Act states:

“ ‘Alcoholic’ means a person who suffers from an illness characterized by preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments as a direct consequence of loss of control over consumption of alcohol and demonstrated by persistent and excessive use of alcohol such as usually leads to intoxication if drinking is begun; by chronicity, by progression, and by tendency toward relapse.” Ill. Rev. Stat. 1991, ch. 1111/2, par. 6351-3.

In the case at hand, the record shows that the defendant testified that he had been an alcoholic for 12 years and had suffered from blackouts for about six years. In addition, he told the presentence investigation officer that he had twice received treatment for alcoholism. Other evidence showed that the defendant suffered from cirrhosis of the liver and had to seek medical attention while incarcerated because he was vomiting blood.

The record also shows that the trial judge asked the defendant how long he had been an alcoholic. In addition, the judge noted that the defendant’s substance abuse had affected his memory.

Based on this evidence, we find that sufficient evidence was presented to give the trial court “reason to believe” that the defendant was an alcoholic. As such, the court was required to inform the defendant that he could elect to submit to treatment. Since the court failed to do this, we remand this cause and order the trial court to advise the defendant of his option of probation if he elects to submit to alcohol treatment.

We note that our decision does not reach the question of whether the defendant should be given treatment as an alternative to a prison term. That decision is for the trial court to make after it has evaluated the information concerning the defendant’s examination.

The defendant also argues on appeal that the trial court erred in sentencing him to three years of imprisonment. Specifically, he contends that the court failed to take into consideration the fact that he only attempted to steal a $5 bottle of wine and that his actions were affected by his alcoholism.

Although we are remanding this case, we would note that the defendant’s sentence appears to be proper. Sentencing is largely a matter of judicial discretion and, absent an abuse of that discretion, it will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Here, the record shows that the defendant has a criminal record dating back to 1966 which included eight prior theft convictions, four possession of cannabis convictions, a possession of a controlled substance conviction, and a disorderly conduct conviction. Based on the defendant’s extensive criminal record, we cannot say that the trial court abused its discretion in sentencing the defendant to three years’ imprisonment.

The judgment of the circuit court of Kankakee County is reversed and the cause remanded for proceedings consistent with this decision.

Reversed and remanded.

BARRY and LYTTON, JJ., concur.


author: JUSTICE McLAREN

text:
    LORI ROWE et al., Plaintiffs-Appellants, v. STATE BANK OF LOMBARD et al., Defendants-Appellees.
    Second District
    No. 2—92—0758
    Opinion filed August 9, 1993.

      Brian J. Diamond and Edward J. Walsh, Jr., both of Walsh, Knippen, Knight & Diamond, of Wheaton (Thomas L. Knight, of counsel), for appellant Lori Rowe.
    Walter P. Maksym, Jr., of Walter P. Maksym & Associates, of Oak Brook, for appellant Andrew Serpico.
    Thomas R. Weiler, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton (John E. Norton, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal arises from a negligence action filed by plaintiffs, Lori Rowe and Andrew Serpico, for the wrongful death and personal injuries occurring to decedent and Rowe while on property owned and managed by defendants. A jury in the Du Page County circuit court rendered a verdict for defendants. On appeal, plaintiffs argue that the trial court erred (1) by refusing to give plaintiffs’ jury instructions on the matter of duty and proximate cause; (2) by allowing a third party’s admission into evidence; (3) by failing to exclude hearsay statements which did not qualify as exceptions to the hearsay rule; and (4) by allowing defendants to dismiss their contribution claim at the close of evidence. We reverse and remand.

Shortly before midnight on the evening of April 23, 1978, Lori Rowe arrived at the M-2 service center to begin her night shift as a key punch operator. She was met by her co-worker and supervisor, Bonnie Serpico, who had arrived earlier and was already in the building. Serpico admitted Lori through a locked door.

At approximately 4 a.m., James Free entered the building through a door which opened directly into the office space. Free encountered Rowe and Serpico, held them at gunpoint, tied Rowe’s hands behind her back, and led Serpico into another room. The women struggled to escape. Free shot both of them, and then he fled from the building. Serpico died as a result of her injuries. Rowe sustained serious injuries. Subsequently, Free was arrested, tried, and sentenced to death.

The M-2 service center is located at the Glen Hill Office Park, in Glen Ellyn. This office park contains eight separate commercial office buildings. The office space was leased from Paramount, which held beneficial interest to the property under a land trust. The State Bank of Lombard held title to the property and served as trustee.

Rowe, along with Serpico’s estate, brought an action against defendants for damages resulting from a breach of the duty defendants had undertaken with respect to providing security measures for the office park. The complaint alleged, among other things, that defendants (1) undertook and covenanted to keep the locks and doors on its property in repair; (2) provided keys for the exclusive use of the lessees; (3) maintained and controlled master and grand master keys capable of opening all the doors on the office park property; (4) investigated and authorized modification of its lock and master key system; (5) purchased and obtained possession of materials and lock parts which would render unaccounted for master keys inoperative; (6) failed to maintain proper control over those in possession of master keys or grand master keys; (7) failed to install locks for new tenants which would prevent access by past tenants; (8) failed to notify decedent and others that master and grand master keys were outstanding and unaccounted for; and (9) proximately caused the plaintiffs’ damages through their negligent acts.

Defendants filed motions for summary judgment. The trial court granted defendants’ motions for summary judgment pointing out that defendants were under no duty to protect the plaintiff from the criminal actions of James Free. We affirmed this decision, but the supreme court reversed and concluded that there were questions of fact with respect to certain matters which would give rise to the creation of a duty which could lead to a judgment favoring plaintiffs if the breach of such a duty proximately caused plaintiffs’ damages. (Rowe v. State Bank (1987), 153 Ill. App. 3d 788; Rowe v. State Bank (1988), 125 Ill. 2d 203.) Specifically, our supreme court held the summary judgment to be improper where circumstances created “a triable issue of fact as to whether the danger of criminal conduct by individuals possessing passkeys was sufficiently probable and predictable to create a duty upon the defendants to take reasonable precautionary measures, and whether their failure to do so was a proximate cause of the plaintiffs’ damages.” (Rowe, 125 Ill. 2d at 228.) The facts presented at trial which led to the instant appeal will be discussed at greater length in the context of addressing the issues raised by plaintiff.

Plaintiffs first argue that the trial court erred in refusing to give plaintiffs’ tendered duty instructions. Plaintiffs’ instruction No. 14 read:

“If you find that, prior to April 24, 1978, the defendants were aware, or in the exercise of ordinary care should have been aware, of a risk of unauthorized entries into the Glen Hill Office Park buildings by persons using outstanding and unaccounted for master or grand master keys, then the court advises you that the defendants also had a duty to either warn the plaintiffs of that risk or to take reasonable precautions to prevent such unauthorized entries.”

The trial court refused plaintiffs’ instruction and, instead, accepted IPI Civil 2d No. 10.04, which instructed the jury:

“[I]t was the duty of defendants, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiffs. That means it was the duty of the defendants to be free from negligence.” See Illinois Pattern Jury Instructions, Civil, No. 10.04 (2d ed. 1971) (hereinafter IPI Civil 2d).

The determination of proper jury instructions lies within the discretion of the trial court, and the exercise of such discretion will not be disturbed on review unless it has been clearly abused. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1087.) Jury instructions should be sufficiently clear to avoid misleading the jury, and they should fairly and correctly state the law. (Villa, 202 Ill. App. 3d at 1087-88.) According to Supreme Court Rule 239: “[T]he IPI instruction shall be used, unless the court determines that it does not accurately state the law.” (Emphasis added.) (134 Ill. 2d R. 239(a).) In light of applicable case law and the language used by our supreme court in Rowe, we determine that the trial court did not abuse its discretion when it accepted defendants’ tendered IPI duty instruction rather than plaintiffs’ tendered duty instruction.

The instruction tendered by plaintiffs is phrased in such a way that the existence of defendants’ duty is made dependent upon the finding of certain facts. However, the earlier supreme court decision in Rowe does not indicate that this expression of a conditional duty is warranted. According to Rowe, “[wjhether under the facts of the case there is a relationship between the parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court.” (Rowe, 125 Ill. 2d at 215.) After making this statement of law, the Rowe court devoted significant attention to the question which asks whether, under the circumstances of the case, a duty existed. (Rowe, 125 Ill. 2d at 217.) The Rowe court does not analyze the duty as one which is conditioned upon finding certain facts.

The Rowe court initially rejects several arguments plaintiffs made with respect to the attachment of a duty. For example, the court rejected plaintiffs’ argument that security measures voluntarily undertaken were negligently performed and that the parties in control of the building failed to maintain the premises in a reasonably safe condition.

However, the court does determine that a duty existed in light of the following facts. James Free, who was formerly employed in the office park, had access to master and grand master keys to all of the buildings in the office park. In addition, witnesses saw Free on the premises entering a locked door one day prior to the murder. Finally, in response to Rowe’s call for help after the murders, the police were forced to break the door down when they came to assist Rowe. This evidence supported plaintiffs’ theory that Free used a key to gain entry into the office that night.

Robert Davis was the building engineer for the Glen Hill Office Park at the time of the assault and murder. In an affidavit, Davis indicated that he obtained authorization to purchase parts to rekey all the locks in the complex because he was concerned about the number of outstanding and unaccounted for master and grand master keys to the building. However, before the parts could be installed, ownership of the office park was transferred from Leland Stahelin to Paramount. Davis was instructed by the former owner not to use the parts to carry out the rekeying. Davis testified that he informed the new owners about his concerns, but his request to rekey the locks was rejected because it would cost approximately $2,500.

Moreover, 17 incidents of criminal activity occurred in the office complex during the two years preceding the assault on Rowe and Serpico. These incidents, which included theft and burglary, had been the subject of investigation by the Glen Ellyn police department. Two of the incidents showed no sign of forced entry, prompting a detective to inform a building manager that the locks should be changed.

The supreme court accepted plaintiffs’ argument that Paramount, by retaining access to the individual office units and manufacturing master and grand master keys to facilitate entry, assumed a duty to take reasonable precautions to prevent unauthorized entries by individuals possessing those keys. (Rowe, 125 Ill. 2d at 221.) The court asserted that plaintiffs “had a right to rely upon Paramount and its agents to exercise reasonable care over who was given keys and to take preventive measures to ensure that individuals who were given keys would not make unlawful use of them.” (Rowe, 125 Ill. 2d at 222.) The court also determined:

“Fennessey [the office park manager] had a duty either to warn those rightfully on the premises of the danger or to take reasonable precautions to prevent foreseeable unauthorized entries by those with a master or grandmaster key. [Citations.] Having failed to do so, [defendants] breached their duty and can be held responsible for the reasonably foreseeable criminal acts of third persons which are proximately caused by their negligence.” (Rowe, 125 Ill. 2d at 223.)

Thus, the summary judgment granted below was reversed because of a material issue of fact as to the breach of this duty and the damages proximately caused by the breach.

In its holding, the supreme court in Rowe made the following statement:

“We judge that the circumstances here create a triable issue of fact as to whether the danger of criminal conduct by individuals possessing passkeys was sufficiently probable and predictable to create a duty upon the defendants to take reasonable precautionary measures, and whether their failure to do so was a proximate cause of the plaintiffs’ damages.” (Rowe, 125 Ill. 2d at 228.)

This language could be interpreted as indicating that there was a question of fact as to whether a duty existed. However, in light of a long line of cases interpreting and applying Rowe as a case standing for the proposition that the existence of a duty is a question of law, we cannot say that Rowe intended to create a conditional duty the existence of which required the finding of certain facts. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411; Hill v. Chicago Housing Authority (1992), 233 Ill. App. 3d 923, 929; Lutz v. Goodlife Entertainment, Inc. (1990), 208 Ill. App. 3d 565, 568; Almendarez v. Keller (1990), 207 Ill. App. 3d 756, 759; Jones v. Chicago Transit Authority (1990), 206 Ill. App. 3d 736, 739; Wasserman v. City of Chicago (1989), 190 Ill. App. 3d 1064, 1066.) None of these cases in any way supports a determination that the Rowe court intended the existence of a duty to be conditioned upon the finding of certain facts. Moreover, our supreme court itself cites Rowe for the proposition that a summary judgment is proper and no recovery is possible as a matter of law where plaintiffs fail to show evidence from which the court can infer the existence of a duty. (Vesey, 145 Ill. 2d at 411.) Thus, the plaintiffs in Rowe must have shown sufficient evidence to support the existence of a duty because, if they had not, our supreme court would have affirmed the summary judgment granted below. Vesey does not indicate that Rowe intended to create a special conditional duty on the finding of certain facts.

With these decisions in mind, we cannot now say that the Rowe court intended to create a duty only if certain facts were found by the jury. Therefore, we determine that the trial court did not abuse its discretion by refusing plaintiffs’ tendered duty instruction.

Plaintiff next argues that the trial court erred when it refused plaintiffs’ jury instruction No. 17 on the issue of proximate cause. This instruction read as follows:

“Conduct of the defendants which facilitates the criminal acts of a third person may be a proximate cause of injuries resulting from those criminal acts if the acts are within the scope of a •reasonably foreseeable risk known to the defendants, even if what exactly could develop and the extent of the injuries or loss therefrom are not foreseeable.”

Plaintiffs argue that this instruction was mandated by our supreme court in Rowe.

Defendants argue that Rowe did not mandate the tendering of this instruction, that plaintiffs failed to demonstrate the inadequacy of the IPI instruction on proximate cause, and that the instruction, therefore, was unnecessary. We agree with defendants on this issue.

The sole issue confronting the court in Rowe was whether the trial court erred in granting summary judgment to defendants on the ground that defendants owed no duty to plaintiffs as a matter of law. The court only tangentially addressed the issue of proximate cause. We cannot say that such treatment rendered the long form IPI instruction on proximate cause inadequate. The instruction given read as follows:

“When I use the expression ‘proximate cause,’ I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

In our view, this instruction adequately instructs the jury on the matter of proximate cause.

Plaintiffs next argue that the trial court erred in allowing defendants to introduce into evidence admissions made by Free which resulted from Free’s failure to answer defendants’ Rule 216 request. (134 Ill. 2d R. 216(a).) Plaintiffs assert that Free’s admissions should not have been admitted against them but rather against Free himself. Plaintiffs also assert that the court improperly advised the jury of the nature and weight of the admission evidence. Initially, Free had been involved in the case as a direct defendant. However, plaintiffs dismissed their action against Free prior to trial. Defendants subsequently filed an action seeking contribution from Free, thus bringing him back into the case as a third-party defendant.

On May 7, 1984, defendants sent Free a request to admit facts. The facts requested to be admitted were as follows:

"The admissions are that James P. Free admits he did not have in his possession any keys which could open any of the doors of any office buildings or offices located in the Glen Hill Office Park, Glen Ellyn, Illinois on or about April 24, 1978;
That James P. Free admits he did not use any key to gain entrance to Building No. 1, Glen Hill Office Park, when he entered that building on or about April 24,1978.
James P. Free admits that the outside entrance door to Building No. 1 of the Glen Hill Office Park was unlocked when he first tried to open it and entered the building when Bonnie Leanne Serpico and Lori Rowe were inside on April 24,1978."

Free never responded to this request. However, on July 13, 1984, plaintiffs’ attorney made a similar request of Free which asked Free to admit that he did have keys in his possession which he used to gain entrance into the building. Free specifically denied plaintiffs’ request. Over plaintiffs’ objection, the trial court held that Free’s admissions may be used by any party to the action other than Free himself and that the plaintiffs’ action in nonsuiting Free as a direct defendant did not affect the admissibility of the admissions because they are relevant to the issues between the remaining parties and the action in chief.

On the last day of evidence, the court permitted defendants’ attorney to read a statement that James Free admitted he did not have a key in his possession, did not use a key to gain entry, and that he entered through an unlocked door on the night of the crime. The judge advised the jury that these admissions were made by operation of law. At the instructions conference, which was held on the same day, defendants dismissed their contribution claim against Free. Over plaintiffs’ objection, the trial court allowed the dismissal, denied plaintiffs’ motion for a mistrial, and did not instruct the jury as to the nature of Free’s admission.

According to Supreme Court Rule 216:

“A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.
* * *
*** Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. ***
***
*** Any admission made by a party pursuant to request under this rule is for the purpose of the pending action ***. It does not constitute an admission by him for any other purpose and may not be used against him in any other proceeding.” (Emphasis added.) (134 Ill. 2d Rules 216(a), (c), (e).)

In our view, Rule 216 is intended to apply to situations where the party makes an admission which is then used against him in the pending action. (134 Ill. 2d R. 216(e).) We have found no cases which would indicate otherwise.

In the present case, two separate Rule 216 requests were made of Free. Thus, Free’s denial of the request made by plaintiffs could be used by plaintiffs in the context of the dispute between plaintiffs and Free, and Free’s absence of a denial with respect to defendants’ request could be used in the context of the contribution claim. However, defendants could not use Free’s admissions against plaintiffs. While Free’s admissions could be used for impeachment purposes, the trial court should not have admitted them substantively against the plaintiffs. See Rusher v. Smith (1979), 70 Ill. App. 3d 889 (where a defendant was permitted to use a codefendant’s admission as impeachment of the codefendant, but not as substantive evidence in defendant’s defense).

Defendants argue that they should be allowed to use Free’s admission against plaintiffs because there is no express provision in Rule 216 requiring adversity between parties before an admission can be received into evidence. Thus, defendants wish us to interpret the term “party” as it is used in Rule 216 such that any party’s admission can be used against any other party. We cannot accept this interpretation of Rule 216, and defendants fail to cite a case to persuade us otherwise. The simple fact that any party may request an admission does not mean that the admission can then be used against any other party.

A party cannot submit a request for an admission to himself. The dangers of such an absurd situation are readily apparent. Likewise, a party should not be able to solicit an admission from a similarly aligned party. In the present case, Free and defendants are similarly aligned in that plaintiffs seek to place fault upon both by establishing that Free committed the crimes using a key which he had in his possession as a result of defendants’ negligence. Thus, if Free made Rule 216 admissions to defendants, those admissions may only be used in the contribution claim between Free and defendants.

We believe the language in Rule 216(e) supports our decision. Subsection (e) discusses the effect of an admission and addresses the proceedings in which an admission can be used. The rule states that a party’s admissions cannot be used “against Mm” in any other proceedings besides the instant one. This language is consistent with our interpretation that an admission is to be used against the party who made it and not against other parties in the suit.

In the present case, a third-party plaintiff obtains an admission from a contribution defendant, dismisses that contribution defendant and then uses the admission against the principal plaintiffs. We do not deem these maneuvers to be within the ambit of Rule 216. If we allowed such to occur, then the parties opposing a plaintiff (or a defendant) could obtain admissions from each other and then use those admissions to their benefit against the party they mutually oppose. According to the historical and practice notes:

“[T]he request to admit should be used to obviate the necessity of proof of facts as to which there is no real dispute, such as delivery of a deed or ownership of property. Using it to blanket the case and to cover matters that are fairly disputed is a waste of the time of counsel for both sides and the court.” (Ill. Ann. Stat., ch. 110A, par. 216, Historical & Practice Notes, at 366 (Smith-Hurd 1985).)

The facts regarding Free’s entry into the office building are fairly in dispute and should not have been the subject of a Rule 216 admission request.

In addition, a party waives his right to rely on an admission if he introduces evidence on the issues which would be controlled by the admissions. (People ex rel. Reynolds v. Aldridge (1982), 107 Ill. App. 3d 679.) Thus, notwithstanding the admission’s invalidity for the reasons outlined above, defendants waived their right to use the admission because they introduced other evidence that Free entered the office building through an unlocked door. For example, on cross-examination of a detective who arrested Free, defense counsel elicited testimony which indicated that, on the night of his arrest, Free did not have in his possession a key to the office complex.

We may reverse a trial court’s ruling on matters relating to Rule 216 admissions if the court abused its discretion. (See Smoot v. Knott (1990) , 200 Ill. App. 3d 1082.) In our view, the trial court abused its discretion in allowing Free’s admissions to be used against plaintiffs.

Plaintiffs next assert error because the trial court admitted hearsay statements into evidence. The statements were made by Free to a fellow prisoner (Gillen) in the Du Page County jail. Gillen testified at trial that Free initially denied committing the crime. However, the inmates had heard about the crime on television, and one of the inmates said he was related to one of the victims and that Free had better talk. Gillen acknowledged that he swore at Free and called him a liar when Free had initially denied knowledge of the crime. According to Gillen, Free then asserted that the door he used to enter the building was unlocked and that he did not use a key to gain entrance. According to Gillen, Free claimed that the crime was not planned and that he had been high on drugs at the time.

At trial, plaintiffs filed a motion in limine to exclude any part of the evidence deposition or trial testimony of Gillen with respect to the statements allegedly made by Free. The trial court found the statements made by Free to Gillen to be admissible because they constituted party admissions or, alternatively, because they amounted to hearsay exceptions as declarations made against penal and financial interests.

Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted in court and is generally inadmissible unless it falls within a hearsay exception. (People v. Lawler (1991), 142 Ill. 2d 548, 557.) Free’s statements to Gillen were clearly hearsay because they were offered to prove that a key was not used to gain entry into the office complex. However, if the statements amounted to admissions of a party opponent, then they are principal exceptions to the hearsay rule and consequently are admissible against their maker unless barred by other evidentiary considerations. (People v. Bryant (1976), 36 Ill. App. 3d 298, 300.) An out-of-court statement made by a party which tends to establish or disprove a material fact is admissible in evidence against that party. (Emphasis added.) Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 385; Jones v. DeWig (1974), 25 Ill. App. 3d 423.

In the present case, defendants attempted to use Free’s admission for their own benefit. Thus, Free’s admission is affecting the interests of plaintiffs as if plaintiffs, themselves, had made the admission. Generally, it is improper to use an admission in such a way as to affect those not in privity with the maker. See Belfield v. Coop (1956), 8 Ill. 2d 293 (applies this principle in the context of an estate distribution).

The trial court alternatively determined the statements to be hearsay exceptions because they qualified as declarations against interest. We determine that this characterization is equally flawed. In order for a declaration against interest to qualify as an exception to the hearsay rule, the declarant (1) must be excusably unavailable at the time of trial; (2) must have possessed competent knowledge of the facts about which this declaration was made; (3) must have been against his pecuniary interest; and (4) must have had no motive to falsify his statement. Seward v. Griffin (1983), 116 Ill. App. 3d 749, 758.

In our view, we cannot say that there were no motives which compelled Free to falsify his statement. Gillen testified that Free was reluctant to come forward with or to admit that he committed the crime. According to Gillen, Free only came forward with details of the crime after some prodding by fellow inmates. From this testimony, it is apparent that Free was not eager to accept responsibility for the crime. He had been arrested and knew his liberty was at stake. Free could have continued to proclaim his innocence, but he did not. This indicates that the circumstances under which Free told his story were not highly conducive to truth or accuracy. Free may have decided that his fellow inmates would not accept his professions of innocence. Therefore, he chose to accept responsibility for the act but reduced his culpability by claiming a lack of intent resulting from a drug-induced state. Free’s claim that he passed through an unlocked door would be consistent with this factual scenario. Thus, we cannot say that there was no probable motive to falsify the facts declared.

Likewise, Free’s claim that he was drugged and did not use a key to gain entry would be a mitigating factor in his upcoming trial, if he believed he would be convicted. A statement made with a view towards establishing intoxication as a defense or as mitigation may not necessarily be one which is against the speaker’s pecuniary interest. (Jones, 25 Ill. App. 3d at 426.) Free’s claim that he did not use a key is consistent with a mitigating defense because it shows that he did not specifically intend to enter the building unlawfully and commit this crime. Therefore, we cannot say that Free’s declarations were necessarily against his interest. Thus, it was error for the trial court to admit this testimony as a hearsay exception.

Finally, we note that Free’s unavailability was not discussed by either party on appeal. However, it is a requirement which must be met in order to admit Gillen’s testimony. Thus, our ruling will not be based on this particular issue.

Plaintiffs next argue that the trial court erred in allowing hearsay evidence to be admitted as to matters concerning Robert Davis’ credibility. Based upon our reversal and the possibility of a retrial, we will consider the merits of these evidentiary issues for the sake of judicial economy, although they do not serve as the basis for our reversal.

In August 1976, ownership of the Glen Hill Office Park was transferred from Leland Stahelin to Paramount. In connection with that transfer, Todd Fennessey was promoted from lead office manager to office park manager. Davis retained his position as building engineer in charge of general maintenance, heating, air conditioning, electricity, etc. After the transfer, Davis reported to Fennessey on a day-to-day basis rather than to the building owner, as he had previously done. Martin Panek was Fennessey’s superior and served as the general property manager under the new ownership. Defendants presented testimony of Stahelin and Panek in order to attack Davis’ credibility by showing that he was dismayed about the change in ownership and upset about his position in the organization. The central purpose of this testimony was to bring forth information about Davis’ prejudice or bias. Davis was an important witness for plaintiffs because his testimony tended to establish that defendants knew that the building needed to be rekeyed.

At trial, defense counsel asked Stahelin if he and Fennessey ever discussed Davis’ attitude towards Fennessey after the sale of the property. Over plaintiffs’ objection, the court allowed the testimony, ruling that “it goes to the state of mind as to Todd Fennessey as to the relationship he was having with Robert Davis which goes to the interest, bias, prejudice Robert Davis might have.” Stahelin responded in the following manner:

“He was — there was [sic] some problems that Bobby was having with the management of — the new management, and they had made him promises and different things like that; and so Bobby became quite upset, I guess, with this situation.
I think there was [sic] some promotions he was supposed to get at one time or other and they didn’t develop the way Bobby felt that they should, and he was quite upset about that.”

In essence, Stahelin’s conversations with Fennessey are being offered to elucidate Fennessey’s conversations with Davis in order to prove Davis’ prejudice or bias. In our view, there is an inherent unreliability in admitting testimony of one person’s state of mind in order to gain insight into another person’s state of mind.

Plaintiffs also object to Panek’s testimony regarding his knowledge about a conflict between Fennessey and Davis. At trial, defense counsel asked Panek if he was aware of any differences of opinion between Fennessey and Davis with respect to the operations of the office park. Panek testified that his knowledge about this matter was based upon conversations he had with Fennessey, Davis, and a secretary at the property. Plaintiffs’ attorney objected to this testimony because of its hearsay nature.

The trial court then instructed the jury that the testimony is being admitted to show:

“ [Knowledge to this individual about some problems that existed between Messrs. Davis and Fennessey, not to prove the truth of the matter, but just there is some friction there and is being made aware of it.”

Panek then proceeded to testify that: (1) Davis félt money could be saved by purchasing more items for the office park; (2) Davis felt he should have the authority, rather than Fennessey, to negotiate certain aspects of tenants’ leases; (3) Davis felt he needed more authority; (4) Davis felt he should not have to report directly to Fennessey on some decisions; (5) Davis felt the on-site bookkeeper was not an adequate secretary; and (6) that there was friction between Fennessey and Davis with respect to requests Fennessey made of Davis to perform certain functions in a timely manner. Without knowing who made these statements to Panek, their reliability is inherently suspect. Furthermore, they are self-serving and, if not submitted to prove the truth of the matter, are irrelevant.

Plaintiffs’ argument that Stahelin’s and Panek’s testimony is not relevant is correct because their testimony serves to attack Davis’ credibility as a witness and is, therefore, inadmissible as impeachment on collateral matters. Thus, defendants’ impeachment of Davis should have occurred on cross-examination and not by introduction of other evidence. Poole v. University of Chicago (1989), 186 Ill. App. 3d 554, 561.

Plaintiffs finally argue that the trial court committed error when it allowed defendants to dismiss their contribution claim against Free during the instruction conference. A motion for voluntary dismissal after the trial has begun is addressed to the discretion of the trial court, whose decision is reversible only for abuse of that discretion. (Newlin v. Foresman (1982), 103 Ill. App. 3d 1038, 1045.) Unless the underlying motives for the dismissal manifest themselves in prejudicial acts, there is no basis for reversal. (Newlin, 103 Ill. App. 3d at 1046.) In our view, the combination of Free’s dismissal, along with the improper use of his admissions as discussed above, resulted in prejudice to plaintiffs. The dismissal of Free from the case without further instructions on the matters relating to the admissions created a situation where the admissions were used beyond their permissible scope, that is, they served as evidence in defendants’ favor against plaintiffs where they should have only been used as evidence in the dispute between defendants and Free. Thus, while Free’s dismissal from this suit was not error in and of itself, the absence of adequate instruction to the jury on matters relating to this dismissal was an abuse of discretion. Once Free was no longer in the suit, the jury should have been instructed to disregard those aspects of the evidence which related to Free’s admissions.

As a final matter, defendants filed a motion to strike plaintiffs’ statement of facts because it contained improper argument and comments and made inaccurate reference to the record in violation of Supreme Court Rule 341(e)(6). (134 Ill. 2d R. 341(e)(6).) We deny this motion because plaintiffs’ violation of the rule was not so flagrant as to hinder or preclude our review. Knight v. Haydary (1992), 223 Ill. App. 3d 564.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT and QUETSCH, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re PETITION TO FORM A NEW PARK DISTRICT, to be Known as the Riverwoods Park District (Paul R. Brunton et al., Petitioners-Appellants, v. American National Bank and Trust Company of Chicago, as Trustee, et al., Objectors-Appellees).
    Second District
    No. 2—91—1443
    Opinion filed July 22, 1993.

      Jack M. Siegel, Bruce Kevin Huvard, and Clara Rubinstein, all of Altheimer & Gray, of Chicago, for appellants.
    John M. Sullivan, of Staehlin, Jantorni & Sullivan, Ivan P. Kane, of Mayer, Brown & Platt, Donald J. Kreger and Ruth E. Krugly, both of Schiff, Hardin & Waite, Michael Duffy and Charles J. Byrum, both of Gardner, Carton & Douglas, John H. Mays, Amy Blumenthal, and Louis D. Bernstein, all of Gould & Ratner, and Patrick A. Lucansky, Janet Northrop Petsche, and Arthur C. Thorpe, all of Klein, Thorpe & Jenkins, Ltd., all of Chicago, Murray R. Conzelman, of Conzelman, Snarski & Stepanich, of Waukegan, William G. Raysa, of Raysa & Skelton, P.C., of Oak Park, and Richard H. Levy, of Arlington Heights, for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

This action began on September 23, 1991, with the filing of a petition to form a new park district in the circuit court of Lake County. The territory to be incorporated into the new district consisted of approximately 14 square miles or 9,250 acres (Riverwoods Territory). Answers and objections were filed by owners of several properties included in the petition. Following discovery, the objectors filed a motion for summary judgment alleging that the Riverwoods Territory contained at least four parcels of property which were already part of other park districts. Specifically, Vernon Hills Park District had adopted ordinances annexing a two-acre site and a 13-acre site on June 20, 1991. The ordinances were recorded on September 10, 1991. Deerfield Park District had adopted a similar ordinance, annexing 10 acres, on August 15, 1991, and recorded it on August 22, 1991. Finally, the Buffalo Grove Park District had adopted an ordinance, annexing 16 acres, on September 16, 1991. That ordinance was not recorded until November 4, 1991. Certified copies of each of these annexation ordinances, and certification of their recording, were attached to the motion.

Also attached to the summary judgment motion were portions of the deposition testimony of Douglas Howard, the surveyor who prepared the plat and legal description included in the petition. In his deposition Howard acknowledged that the Riverwoods Territory encompassed parcels of property already included in the other park districts. The inclusion of the four parcels was also set forth in the affidavit of Brian Lounsbury, an Illinois professional land surveyor who had prepared the plat of annexation of the 16 acres previously annexed by the Buffalo Grove Park District. The objectors alleged that, inasmuch as it included land lying within other park districts, the Riverwoods petition was invalid and should be dismissed.

The petitioners filed an answer to the motion for summary judgment as well as a motion to amend the petition by deleting the properties which had been annexed to other park districts. Petitioners argued essentially that the properties had been included inadvertently and should not be allowed to defeat the petition since they were either subject to a motion to amend or de minimis in nature.

The trial court found that there was no factual controversy that the territory described in the petition contained properties already included in incorporated park districts. Further finding that inclusion of those lands was not de minimis, the court denied petitioners’ motion to amend the boundaries of the proposed park district. The court then determined that the petition was fatally defective and granted the objectors’ motion for summary judgment. Petitioners timely filed this appeal.

Before we address the merits of this matter, we must dispose of a motion and answer. In their appellate brief petitioners noted, without discussion, an amendment to the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 1—1 et seq.). Objectors, in their answering brief, argued that the amendment was applicable and that it barred any action by the trial court on the petition. In their reply brief petitioners responded that, among other things, the new law was unconstitutional. Objectors filed a motion to strike this argument or, in the alternative, for leave to file a response. Objectors alleged that petitioners challenged the constitutionality of the new statute for the first time in their reply brief, thereby violating various supreme court rules and depriving them of the right to respond to a new argument. A response to the constitutional argument was attached to objectors’ motion. Petitioners filed an answer to the motion in which they expressed the belief that objectors should be able to respond to the constitutional argument and indicated they had no objection to the filing of objectors’ response. Petitioners also attached to their answer a reply to objectors’ argument that the amendment at issue was constitutional. We ordered the motion and answer taken with the case.

The objectors filed with their motion a fully developed argument in response to petitioners’ position. Not only did petitioners not object to the filing of this responsive argument, but they affirmatively indicated that filing should be allowed. Furthermore, petitioners filed a full reply to the objectors’ argument. Under the circumstances, we think the filing of objectors’ response is proper. The motion for leave to file a response to the constitutional argument in petitioners’ reply brief is allowed.

We turn now to the substantive issues. The record reflects that the trial judge granted the motion for summary judgment on the ground that the court lacked jurisdiction over the petition. The court believed it lacked jurisdiction because the petition included land lying within other park districts. While petitioners do not dispute the inclusion of four parcels previously annexed by neighboring park districts, they adamantly insist that the court did not thereby lack jurisdiction. Rather, they contend that the petition, on its face, met the requirements of the controlling statute and vested jurisdiction in the court at the time it was filed. Alternatively, petitioners contend that inclusion of the parcels was de minimis and not sufficient to preclude the jurisdiction of the court. We reverse and remand.

A motion for summary judgment should be granted when the pleadings, depositions, and affidavits demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21.) Inasmuch as petitioners do not contest that some of the property delineated in their petition lies within incorporated park districts, there is no genuine issue of material fact. Therefore, we need only resolve the legal issues arising from the fact that inappropriate parcels were included in the petition.

Formation of a park district is governed by provisions of the Park District Code (Ill. Rev. Stat. 1989, ch. 105, par. 1—1 et seq.). Section 2—2 of the Park District Code sets forth the requirements for a petition to form a new district. In pertinent part, section 2 — 2 provides that such a petition must be signed by not less than 100 legal voters residing within the proposed district and must “clearly define the territory intended to be embraced in such district” (Ill. Rev. Stat. 1989, ch. 105, par. 2—2). The petition here stated that it was signed by more than the requisite 100 legal voters, set forth the legal description and included a plat of survey of the territory to be incorporated, and alleged that the proposed district did not include territory contained in any currently existing park district. Objectors do not attack the sufficiency of the petition on its face. Rather, they challenge it only because, in fact, it included parcels lying within existing park districts.

It is true that the Code prohibits incorporation or annexation of property previously incorporated in other park districts. According to section 2—1 of the Park District Code, a territory having a population under 500,000 and forming one connected area, “no portion of which shall be already included in an incorporated park district,” may be incorporated as a park district. (Ill. Rev. Stat. 1989, ch. 105, par. 2—1.) Petitioners contend, however, that the property at issue was included inadvertently and that the trial court should have allowed them to amend the petition to exclude the four sites and bring the petition into conformity with the statute. Objectors respond that the inclusion of the improper parcels rendered the petition void ab initio and the court, therefore, lacked jurisdiction to consider its amendment. While we do not decide whether the motion to amend should have been granted, we opine that the trial court could and should have at least entertained the motion, rather than deny it at the outset, absent any consideration, on jurisdictional grounds. In essence, we believe the petition was sufficient to confer jurisdiction on the court for purposes of subsequent amendment.

The Park District Code sets forth not only the requirements for a petition to form a new park district, but also much of the procedure to be followed for a hearing and referendum on such a petition. It does not, however, provide for amendment of a petition. The petitioners nevertheless urge that the trial court could have considered their motion under the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 1—101 et seq.). We agree.

The provisions of the Park District Code control to the extent that they regulate procedure, but the Code of Civil Procedure applies as to matters not regulated by the Park District Code. Section 1— 108(b) of the Code of Civil Procedure sets forth this principle as follows: “In proceedings in which the procedure is regulated by statutes other than those contained in this Act, such other statutes control to the extent to which they regulate procedure but Article II [Civil Practice] of this Act applies to matters of procedure not regulated by such other statutes.” (Ill. Rev. Stat. 1989, ch. 110, par. 1—108(b).) The statute has been applied in various contexts. (See In re Petition of the Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 543 (annexation by village under Municipal Code); In re Petition to Annex Certain Property to the City of Wood Dale (1993), 244 Ill. App. 3d 820, 833, 611 N.E.2d 606, 616 (petition to annex to city under Municipal Code); In re Disconnection of Certain Territory from the Village of Machesney Park (1984), 122 Ill. App. 3d 960, 969 (disconnection under Municipal Code); Bank of Hickory Hills v. Hammann (1982), 108 Ill. App. 3d 834, 837-38 (venue in supplementary proceedings generally regulated by supreme court rule).) The Park District Code is not contained in the Code of Civil Procedure. Hence, section 1 — 108(b) applies where the park district statute is silent.

In re Petition for Annexation of Territory in the County of Kankakee (1961), 30 Ill. App. 2d 391, involved a petition for annexation to the Village of Bradley which included territory lying within the City of Kankakee. This court permitted amendment of the petition pursuant to the Revised Cities and Villages Act (Ill. Rev. Stat. 1957, ch. 24, par. 7—1 et seq.). The objectors, however, complained that the statute did not apply to the particular overlapping lands. As objectors in this case correctly point out, it was in dicta in Kankakee County that we said, even if the cities and villages statute did not apply, the Civil Practice Act would control in all matters of procedure when the special statute is silent and would permit amendment of the petition. (Kankakee County, 30 Ill. App. 2d at 396.) Objectors assert that the Park District Code is not silent since it provides that no portion of the land in the petition shall be in an incorporated park district. In almost the same breath, however, objectors also state that the Park District Code has no provision allowing any territory to be excluded by amendment. As we see it, this is precisely where the statute is silent. That we said it in dicta in Kankakee County makes the principle no less effective. Where matters of procedure, such as amendment,. are not regulated by the special statute, the Code of Civil Procedure is applicable.

Section 2 — 616(a) of the Code of Civil Procedure provides: “At any time before final judgment amendments may be allowed on just and reasonable terms, *** in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a).) In addition, according to section 2 — 616(c): “A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1989, ch. 110, par 2—616(c).) In our view, absent any mechanism for or limitation on amendment in the Park District Code, the court could have considered the petitioners’ motion to amend pursuant to the Code of Civil Procedure.

Insisting that the court lacked jurisdiction because the petition as filed was defective, the objectors take the position that we should not even reach the questions of applicability of the Code of Civil Procedure or whether the petition could be amended. Objectors rely heavily on People ex rel. Hoyne v. Stumpf (1916), 275 Ill. 81, for the proposition that a defective petition does not confer jurisdiction on the court, and such a petition, therefore, cannot be amended. Hoyne involved a collateral attack, in the form of a quo warranto complaint, on a petition to form a new park district. Similar to this case, the original petition in Hoyne unknowingly included some territory which was contained in a petition filed two weeks earlier. The trial court had granted leave to amend the original petition by excluding the overlapping territory. The amended petition, however, had been signed only by the petitioners’ attorney. The supreme court observed that the proceeding for forming a park district was purely statutory and that, if the petition lacked any of the essential requirements, it would not vest the court with jurisdiction to act. The court also noted that the statute nowhere provided for amendment of a petition. Hence, according to the Hoyne court, when the petitioners realized the initial petition included improper territory, the jurisdictional problem could not be corrected by amendment. Rather, the petitioners should have withdrawn the defective petition and presented another, signed by the requisite number of resident legal voters and correctly defining the territory intended to be organized into a park district, in compliance with the statutory requirements. The amended petition, signed only by the attorney, did not give the trial court jurisdiction to act.

We have no quarrel with the rules that a proceeding to form a park district is statutory and the jurisdiction of the court over such proceedings must be exercised in accordance with the statute. We are not, however, convinced by Hoyne that the trial court in this case lacked jurisdiction over the petition for purposes of allowing amendment. The Hoyne court specifically noted that the statute involved there, Hurd’s Stat. 1916, page 1880, which was a predecessor of the present Park District Code, did not provide for amendment of a petition. No other provision for amendment was available, either, since the case was decided in 1916, and the general rules governing civil procedure were not yet applicable to those special statutory proceedings which set forth much, but not all, of their own procedure.

It was only with adoption of the Civil Practice Act of 1933 (Civil Practice Act or Act) that Illinois had a complete and comprehensive revision of its civil procedure. (Ill. Ann. Stat., ch. 110, History, Source & Effect of the Civil Practice Law, at XI (Smith-Hurd 1983).) The relevant section of the present Code of Civil Procedure, section 1 — 108, originally appeared as section 1 of the Civil Practice Act. The section initially did not expressly deal with the relationship between the Act and separate statutes which only partially prescribed a special procedure. That matter was covered to a limited extent by a supreme court rule. It was not until a 1955 revision that material from the supreme court rule was incorporated into the Act. (Ill. Ann. Stat., ch. 110, par. 1—108, Historical & Practice Notes, at 36 (Smith-Hurd 1983).) The rules themselves were adopted by the supreme court in 1933, the same year the original Civil Practice Act was adopted. See Rules of Practice & Procedure of the Supreme Court of Illinois (355 Ill. 13).

As can be seen, in 1916, when Hoyne was decided, the only statute which could be invoked by the court was the statute providing for the organization of park districts. Since the court could exercise jurisdiction only in accordance with the statute, and the statute did not include any provision for amendment, amendment was not possible. The Hoyne court properly concluded that the original petition did not conform, and could not be made to conform, to the statute, and the trial court, therefore, had no power to act upon it. Consequently, the only remedy was to file a new petition which conformed in all respects to the statutory requirements.

In contrast to the situation in Hoyne, amendment of the defective petition in this case was possible. We do not dispute the principle, as shown in Hoyne, that the trial court cannot take any affirmative action with regard to the formation of a new park district as long as the petition for such a district does not conform to the requirements of the statute. We believe this is what the Hoyne court meant when it said the filing of a proper petition is jurisdictional. Accordingly, like the trial court in Hoyne, the court in this case could not have granted the requests set forth in the petition once the defect was discovered. This is not the same as saying the petition itself could not be amended. The petition in Hoyne could not be amended because there was no authority for the court to allow amendment. Here, authority for amendment is found in the Code of Civil Procedure.

The other authorities cited by objectors are no more persuasive than Hoyne. Like Hoyne, People ex rel. Curtin v. Heizer (1967), 36 Ill. 2d 438, arose from a complaint in quo warranto. The complaint challenged the formation of a fire protection district. The proposed district, as set forth in the petition, included land which was located in Missouri and, thus, beyond the jurisdiction of the court. Finding that the trial court had had no power to act affirmatively upon the petition because it was defective, the Curtin court remanded with directions to enter judgment of ouster. The challenge to the petition in People ex rel. Goldsbery v. Zoller (1929), 337 Ill. 362, was also brought in quo warranto questioning the formation of a drainage district. The lower court had lacked jurisdiction because notice had not been given in compliance with the statute, and the petition embraced property already annexed by another drainage district. Accordingly, the judgment of ouster was affirmed.

Neither Curtin nor Goldsbery requires the result the objectors seek here. Both of those cases sounded in quo warranto and involved proceedings which occurred after the trial court had taken affirmative action which resulted in the formation of a municipal district. Apparently, amendment had never been sought in the trial court as the issue was not discussed on appeal in either case. Furthermore, Goldsbery, like Hoyne, was decided prior to the adoption of the Civil Practice Act, and amendment would not have been possible even if it had been raised. Since the Curtin and Goldsbery petitions neither conformed initially nor were amended to conform to statutory requirements, the respective trial courts had not had power to act on them. In contrast, the trial court here had taken no action on the petition at the time petitioners moved to amend, and amendment was possible pursuant to the Code of Civil Procedure.

We find the posture of this case more similar to that of Kankakee County, which we discussed above, where amendment was allowed prior to a hearing on the validity of the petition and, therefore, well before the annexation was an accomplished fact. The challenges in Goldsbery and Curtin were in quo warranto, after the new districts were formed and operating, and it was evident the trial court had acted without jurisdiction.

In re Petition for the Establishment of a Fire Protection District (1968), 98 Ill. App. 2d 32, was another case where the petition included territory which had already been incorporated into an existing fire protection district. While petitioners sought to show that taxes had been neither extended against the overlapping property on behalf of the existing fire protection district, nor paid by the landowner, they did not seek amendment. Accordingly, the defective and unamended petition was not sufficient to empower the court to act. In People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, a petition for annexation, challenged in quo warranto, was invalid and ineffective for purposes of priority over a competing petition because it included territory lying within another municipality. However, the petition there had been filed by landowners with the village rather than the court, and the question of its amendability never presented itself.

In sum, while we agree with the cited authorities that jurisdiction over the incorporation of a park district is conferred by the Park District Code, we reject the argument made by objectors based on those authorities. We do not believe that a petition, defective only because it mistakenly includes territory not subject to incorporation, precludes jurisdiction even for purposes of amendment. That the Park District Code does not authorize amendment is not fatal to a petition like the one here, since the Code of Civil Procedure is meant to pick up where special statutes, like the Park District Code, leave off in terms of procedure. To decide otherwise, in our view, would be inconsistent with the intent and purposes of the Code of Civil Procedure.

The Civil Practice Act, now codified in articles I and II of the Code of Civil Procedure, is to be liberally construed “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1989, ch. 110, par. 1—106.) The Civil Practice Act was designed to eliminate the formalized rules of common-law pleading and to establish procedures whereby substantive rights could be determined with a minimum of delay, technicality, and expense. (Dorin v. Occidental Life Insurance Co. (1971), 132 Ill. App. 2d 387, 391.) Too, the basic purpose of the Civil Practice Act is to remove barriers which prevent the trial of a case on its merits and to facilitate procedures to accomplish that goal. (Miller v. Enslen (1978), 60 Ill. App. 3d 865, 868; Thomas v. Gouwens (1975), 25 Ill. App. 3d 663, 665.) As we see it, to hold that the trial court here could not even consider the petitioners’ motion to amend, solely because the petition unwittingly embraced some improper territory, would result in little other than frustration of the fundamental ends sought by the Code of Civil Procedure.

We find support for application of the Code of Civil Procedure to this case in Graves v. Needham (1942), 379 Ill. 25, and Lang v. Board of Education of Community School District No. 16 (1969), 109 Ill. App. 2d 195. Graves involved an election contest in which the petition was amended after the 30-day time period for filing a petition had expired. The amendment involved very minor clarification changes in the affidavit verifying the statement of issues. The court acknowledged the appellant’s argument that a proceeding to contest an election was wholly statutory and the jurisdiction of courts over election contests had to be exercised only in accordance with the statute. Thus, the court recognized that if the statement of issues in a petition was not sworn to, as required by the statute, the court would have no jurisdiction of the cause. The Graves court did not, however, hold that the initial petition, even if it was defective, failed to confer jurisdiction on the trial court. Rather, the court took note of amendments to the general election statute which indicated that (1) the statement of issues was to be verified in the same manner as complaints in other civil cases were verified and (2) the case was to be tried in like manner as other civil cases. Then the court invoked the provisions of the Civil Practice Act for verification and amendment of pleadings. After determining that the amendment at issue met the relation back requirements of the Civil Practice Act and, therefore, was not barred by the 30-day limitation of the general election law, the Graves court held that the defect in the original petition, if any, had been cured by the amendment. Of its decision the court said: “To hold otherwise would render nugatory the ameliorative provisions of section 46 [amendment provision] of the Civil Practice act.” Graves, 379 Ill . at 28.

Lang involved a petition contesting a school bond election. The petition was defective in that it named the wrong party as respondent and failed to make a necessary allegation. Petitioners successfully moved to amend after the statutory period for filing an election contest had expired. Respondent contended that since the contest was not brought against the proper party within the time allowed by law, and since the original petition failed to state a cause of action, the court lacked jurisdiction to allow petitioner’s amendments after the time for bringing the contest had passed. The Lang court, however, believed the original petition was sufficient to confer jurisdiction for purposes of subsequent amendment. The court noted that the procedure for maintaining a school election contest was .set forth in the Election Code (Ill. Rev. Stat. 1967, ch. 46, pars. 23 through 24) and that the Election Code controlled to the extent to which it regulated procedure. However, the Civil Practice Act applied as to matters of procedure not regulated by the Election Code. The court then applied the Civil Practice Act and found that the trial court had not abused its discretion either in allowing a substitution of respondents or in allowing the language of the petition to be amended. In support of its conclusion, the Lang court cited authority for the proposition that the amendment provisions of the Civil Practice Act are to be liberally construed in furtherance of justice and to the end that the merits of the controversy may be decided.

It appears that the jurisdictional argument made by the objectors in this case was also made in both Needham and Lang. In neither instance did the court find that the original, defective petition failed to confer jurisdiction on the court ah initio, despite the fact that a proceeding to contest an election was wholly statutory. It is true that the Graves court noted language in the election law implying that procedural aspects of such contests should be handled like other civil cases. We are unable to find comparable language in the Park District Code. On the other hand, the Civil Practice Act in effect in 1942, when Graves was decided, did not include the present-day provision for application of the Code of Civil Procedure to special statutory proceedings, to the extent the special statutes themselves do not regulate procedure. (See Ill. Rev. Stat. 1989, ch. 110, par. 1—108(b).) Like the Needham and Graves courts, we are convinced that to hold otherwise than we do would undermine the liberal amendment provisions of the Code of Civil Procedure as well as the directive that the code should be liberally construed.

The conclusion we reach is particularly compelling in the circumstances of this case. The petition was filed on September 23. Vernon Hills had annexed its two overlapping parcels, consisting of a total of 15 acres, on June 20, well before the petition was filed. However, those annexations were not recorded until September 10, only 13 days before petitioners filed. Deerfield had recorded its annexation ordinance, involving 10 acres, on August 22. Buffalo Grove had annexed 16 overlapping acres on September 16, just a week before petitioners filed, but did not record the annexation until November 4, well after the petition was filed. In only one of these instances had the annexation been recorded for so much as a month prior to the filing by petitioners. Inasmuch as annexation of 16 of the approximate total of 41 acres was not recorded until after September 23, even a search of the records would not have enlightened petitioners as to that particular overlap in a timely fashion. While petitioners might have discovered the conflict involving the remaining 25 acres, as a practical matter it would have been difficult to do so.

Although Douglas Howard, petitioners’ surveyor, indicated at his deposition that he was not sure exactly when it had been submitted, the plat of survey of the Riverwoods Territory is dated August 5, 1991. This date was approximately a month and a half before the petition was filed, a period of time which appears reasonable to us to allow for proper preparation of all the documents which were filed with the petition. These included, besides the plat and the petition itself, the legal descrip-' tion and all the sheets containing signatures of the petitioners.

Under the position taken by objectors, the only way petitioners could ever have prevailed was to verify with the county recorder, right up to the date of filing the petition, that no overlapping annexation ordinances had been recorded. Further, objectors assert that annexation is effective upon adoption of an ordinance, even without recordation of the ordinance. We do not address this issue, but, assuming for the sake of argument that objectors are correct, petitioners would have had the additional burden of insuring that none of the surrounding park districts had adopted annexation ordinances involving overlapping property. Again, assurances, as well as any necessary corrections, would be required right up to the day of filing the petition. We note also the possibility of a nearby park district adopting an annexation and deliberately not recording it for the very purpose of frustrating the attempted formation of a new park district. As we said, the practical aspects of filing a perfect petition could be prohibitive.

Moreover, even if petitioners were required to begin the whole process all over again, by filing a new petition, there would be no guarantee that the new petition would not also be defeated by yet another annexation occurring in the interim. We believe that consideration of the merits of a motion to amend provides a sounder, more reasonable approach to these problems than does outright dismissal, prior to any such consideration, on jurisdictional grounds. We also believe that such an approach is in keeping with the goal of the Code of Civil Procedure to facilitate the determination of substantive rights with a minimum of delay, technicality, and expense. (Dorin, 132 Ill. App. 2d at 391.) Since the court had jurisdiction over the petition, the objectors were not entitled to judgment as a matter of law, and their motion for summary judgment should have been denied.

Having said all of the above, we stress that we pass no judgment on the merits of petitioners’ motion to amend. We are well aware that whether to grant leave to amend a complaint rests within the sound discretion of the trial court (Regas v. Associated Radiologists, Ltd. (1992), 230 Ill. App. 3d 959, 968) and, absent abuse of that discretion, the trial court’s decision will not be disturbed on appeal. (Timm v. Indian Springs Recreation Association (1992), 226 Ill. App. 3d 760, 770.) However, as explained above, the trial court never reached the substance of petitioners’ motion. At the conclusion of the hearing on the objectors’ motion for summary judgment, the trial judge stated: “The inclusion of [the overlapping] pieces within the petition makes the petition fatally defective from a jurisdictional point of view, and the motion of summary judgment will be allowed.” Having decided it lacked jurisdiction, the trial court properly went no further. Consequently, the court never exercised any discretion with regard to the petitioners’ motion, and abuse of discretion is not an issue in this appeal. Upon remand, of course, the lower court will be free to exercise full discretion regarding the motion to amend.

Amendments may be allowed before final judgment “on just and reasonable terms,” and a pleading may be amended to conform the pleadings to the proofs “upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1989, ch. 110, pars. 2—616(a), (c).) It is for the trial court to examine the motion in light of the statutory requirements and fairness to both the petitioners who signed the petition as filed and the objectors. We hold only that the petition was sufficient to confer jurisdiction on the trial court to consider the propriety of amendment of that petition. Should the trial court decide amendment is not proper, and the petition therefore cannot be brought into conformity with the statute, the court would have no power to act, and the petition would have to be dismissed. If, on the other hand, the court allows amendment, and the petition then meets the statutory requirements, the matter may proceed pursuant to the statute.

We turn now to objectors’ additional assertion that the petition was invalid under a recent amendment to the Park District Code. Petitioners filed a notice of appeal on December 20, 1991. On February 5, 1992, while the appeal was pending, a new law affecting the incorporation of park districts went into effect. The new law provides that when property to be organized as a park district includes any portion of a municipality which is not in any park district, the new park district must include within its boundaries all of that municipality. (See Pub. Act 87—847, eff. February 5, 1992.) Contending that the petition embraces only portions, rather than the entirety, of municipalities which are not in any park district, objectors urge that the new law is applicable and that it defeats the petition. Petitioners respond that the new law is not made retroactive and is not applicable to this case or, alternatively, that it is unconstitutional. We decline to decide these issues.

First of all, since the new law was not in effect at the time the petition was filed, the pleadings do not adequately address the matter of the petitioners' improper inclusion of municipal territory in light of that law. This matter involves fact questions which this court cannot resolve on the basis of the record on appeal. Objectors claim that petitioners admit in their appellate brief that the petition does not satisfy the requirements of the new law. While we understand objectors’ inclination to infer an admission on the part of petitioners, we find in the brief only a shadowy implication that the petition does not comply with the new law. In our view such an implication does not amount to an admission of a matter which could prove fatal to petitioners’ cause.

In addition, upon remand the issue may become moot. If the trial court should deny the motion to amend, the petition will have to be dismissed since, as filed, it is not adequate to authorize the court to proceed pursuant to the statutory scheme for the creation of a new park district. On the other hand, if the trial court grants the motion, petitioners may be able to amend the petition to eliminate the alleged nonconformity with the new statute. In either case, questions regarding the applicability of the amendment to the Park District Code would be moot. All in all, we do not think it either proper or productive for this court to determine the effect of the new law at this time.

For many of the reasons just mentioned, we do not think it appropriate, either, to address the constitutional argument made by the petitioners. The resolution of uncertain factual questions and potential mootness may it unnecessary to ever address the issue in the context of this case. A reviewing court will decide constitutional questions only when it is essential to the disposition of the case. (In re Application of the County Collector (1989), 132 Ill. 2d 64, 73; Werner v. Botti, Marinaccio & DeSalvo (1990), 205 Ill. App. 3d 673, 677.) The determination of the issue raised here is not only not necessary to decide the case presently before us, but the need for its future determination as part of this case is highly speculative. In essence, the issue is not ripe for disposition and, therefore, is not justiciable at this time. In re Estate of Hoover (1993), 155 Ill. 2d 402, 420; Freeman Coal Mining Corp. v. Pollution Control Board (1974), 21 Ill. App. 3d 157, 167.

Additionally, the law strongly prefers- that constitutional matters be reviewed initially at the trial court level, as reflected in the rule that questions not raised in the trial court are waived and may not be raised for the first time on appeal. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568; Roberts v. Norfolk & Western Ry. Co. (1992), 229 Ill. App. 3d 706, 717.) Since the constitutional question here did not present itself until after the trial court proceedings, waiver is not a consideration. However, the case is being remanded, and the trial court will have an opportunity to examine the constitutional question, if appropriate. After the trial court renders a decision on the petitioners’ motion to amend, the constitutional issue, if still viable, may again be raised. Since we do not need to resolve the constitutional question, we will leave initial consideration of that matter to the trial court, where it should be, if and when it comes up again.

For the reasons set forth above, that portion of the order of the circuit court of Lake County granting the objectors’ motion for summary judgment is reversed. The portion of the order denying the petitioners’ motion to amend is vacated, and the matter is remanded for further proceedings consistent with this opinion.

Reversed in part; vacated in part and remanded.

INGLIS, P.J., and McLAREN, J., concur.