author: JUSTICE NASH

text:
    SIEANNA MITCHELL, as Adm’r of the Estate of Brian Mitchell, et al., Plaintiffs-Appellants, v. WAYNE CORPORATION, Defendant-Appellee.
    Second District
    No. 2—88—0443
    Opinion filed March 20, 1989.
    Rehearing denied April 21, 1989.

      Edward F. Diedrich, of Law Offices of Edward E Diedrich, of De Kalb, for appellants.

      David G. Mountcastle, of Mountcastle & DaRosa, P.C., of Wheaton, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Brian Mitchell, age seven years, was struck and fatally injured by a car after exiting a school bus. Plaintiffs, Sieanna Mitchell, decedent’s mother and administrator of his estate, and Tara and Eric Mitchell, decedent’s sister and brother, appeal from a summary judgment entered in favor of defendant, Wayne Corporation, the manufacturer of the school bus in which Brian had been riding.

The decedent was fatally injured when he exited his school bus, which was stopped in the eastbound lane of the street, and walked in front of the bus into the westbound lane, where he was struck by an automobile traveling in that lane. Plaintiffs brought actions against the driver of the automobile which struck the decedent as well as the school bus owner, Board of Education of Community School District 427, in February 1984. (Mitchell v. Bush, No. 84 — L—19, Circuit Court of De Kalb County, Ill.) In September 1985, plaintiffs commenced this separate action against defendants Ford Motor Company, Wayne Corporation, and Tallitsch Motors, Inc. Defendants Ford Motor Company and Tallitsch Motors, Inc., were granted summary judgment in July 1986, and plaintiffs have not appealed from those judgments. As the amended complaint stood at the time of the order from which this appeal is brought, it alleged actions sounding in both negligence and strict products liability against the remaining defendant, Wayne Corporation, relating to the manufacture and design of the warning devices on the school bus. The trial court granted the motion for summary judgment of this defendant on the grounds that plaintiffs failed to establish any facts showing that the bus was negligently manufactured or was manufactured in an unreasonably dangerous condition.

Plaintiffs appeal, contending that the trial court improperly barred plaintiffs from using an expert witness at trial and that material facts exist as to whether defendant failed to manufacture the bus in compliance with State safety standards, whether defendant knew or should have known that the warning system’s design was imminently dangerous, and whether the warning system created an unreasonably dangerous condition.

We consider first whether the trial court abused its discretion when it barred plaintiffs from using an expert at trial.

The record reveals the following: On August 18, 1986, defendant served interrogatories on plaintiffs pursuant to Supreme Court Rule 220(c) to learn the identity of any expert witness plaintiff intended to call in trial. (107 Ill. 2d R. 220(c).) Plaintiffs answered that they did not yet have an expert witness. On January 22, 1987, the trial court, on defendant’s motion, ordered plaintiffs to disclose all expert witnesses within 30 days. In its motion, defendant noted that no pretrial hearing was scheduled and requested a schedule of dates for compliance with the discovery of experts, when disclosed, pursuant to Supreme Court Rule 220. Plaintiffs did not disclose experts but instead filed, but did not set for hearing, a motion to continue the question of disclosure of experts. Defendant then noticed plaintiffs’ motion to continue disclosure for hearing, and on April 2, 1987, plaintiffs were ordered to disclose on or before June 1, 1987. Plaintiffs again failed to disclose any expert witnesses but on June 30, 1987, filed another motion for an extension of time to do so. Finally, on July 30, 1987, more than 22 months after plaintiffs’ complaint had initially been filed, and six months after first being ordered to disclose their expert witnesses, defendant moved for sanctions, and the court barred plaintiffs from calling an expert at trial. In November 1987, defendant filed a motion for summary judgment alleging there was no genuine issue of material fact which, after hearing, was granted.

In support of plaintiffs’ response to defendant’s motion for summary judgment, plaintiffs offered the affidavit of Frank J. Gruber IV, an associate professor of technology at Northern Illinois University, who was an expert in the field of safety studies. The trial court found that because plaintiffs were barred from presenting expert witnesses at trial, an affidavit by an expert in opposition to summary judgment would also be barred. (See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 459, 510 N.E.2d 531 (where the court held that if use of an expert is barred from the trial, a party should not be able to circumvent the result under Rule 220 by offering the expert’s report as a counteraffidavit in opposition to summary judgment because such affidavit must only contain facts which affiant could competently testify to at trial if sworn as a witness).) However, the trial court stated that, nevertheless, it had also read and considered the expert’s opinion and found that it did not help the plaintiffs’ case in opposing summary judgment.

We initially note that Supreme Court Rule 341(eX4Xii) now requires that an appellant’s brief contain a statement of jurisdiction (122 111. 2d R. 341(eX4Xü)), and that plaintiffs-appellants have not done so. Compliance will be expected in the future.

Supreme Court Rule 220(b)(1) provides in relevant part:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert -witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. *** Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (107 Ill. 2d R. 220(b).)

The committee comments state in relevant part:

“That provision should, in the vast majority of cases, cause the identity of expert witnesses to be revealed within 90 days following the first pretrial in the case. As a final precaution, however, in the event that the identity of the experts has not theretofore been disclosed, the rule provides that the trial court shall establish a specific schedule under which the experts for all parties must be disclosed, a schedule which insures that all discovery relating to such experts will be concluded not later than 60 days before the date on which the trial court reasonably anticipates that the case will go to trial.” 107 Ill. 2d R. 220(b), Committee Comments, at 355.

In the present case, the trial judge had not set a date for a pretrial conference, and neither party had requested one. At the time the judge issued the order which barred plaintiffs from using an expert at trial, no trial date had yet been set.

The purpose of Rule 220 is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. (Jarmon v. Jinks (1987), 165 Ill. App. 3d 855, 863, 520 N.E.2d 783.) The reason for Rule 220 is that adequate trial preparation requires timely disclosure of expert witnesses. Time is needed prior to trial to investigate and discuss the substance of the testimony of an opponent’s expert with one’s own experts in order to prepare for cross-examination. (McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 911, 511 N.E.2d 912.) Rule 220 was therefore adopted in an attempt to establish a uniform, but not inflexible, framework for the timely revelation of the identity of expert witnesses and the subject matter of their testimony. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 223, 511 N.E.2d 974.) The rule authorizes the establishment of deadlines and requires that the parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using. 107 Ill. 2d Rules 220(b)(l)(i), (bXl)(ii); Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 481, 519 N.E.2d 1069.

In James v. Yasunaga (1987), 157 Ill. App. 3d 450, 456-57, 510 N.E.2d 531, plaintiffs filed a report of an expert in opposition to defendant’s motion for summary judgment on the same day hearing of the motion for summary judgment was held, but after a deadline for disclosure of expert witnesses set by the court at a pretrial conference. Although the court-ordered discovery cutoff date was still a month away, and the scheduled trial was set for three months away, •the reviewing court rejected plaintiffs’ contentions that a witness could be deposed within that time frame without undue prejudice or inconvenience, and without changing the trial date as irrelevant if a schedule for disclosure pursuant to Rule 220 is to have any force and effect.

In Castro v. South Chicago Community Hospital, 166 Ill. App. 3d at 482, the court held that the trial court did not lack the authority to bar an additional expert under Rule 220 even though the court did not suggest that a trial date would be set in the near future. The court stated:

“The language of the rule, however, presents no obstruction to the imposition of a disclosure schedule in a case which is not necessarily approaching the 60-day period before trial. [Citation.] We find nothing in the rule’s language restricting the time for barring a witness to the eve of trial. As part of the court’s function in pretrial proceedings and in preparing all parties for a fair and efficient trial, Rule 220 authorizes the trial court to schedule disclosure prior to the eve of trial and to bar the testimony of any expert not disclosed under that schedule.” Castro, 166 Ill. App. 3d at 482.

In response to plaintiffs’ argument that the trial court could not bar their expert because they had 90 days after learning the substance of their expert’s opinion to disclose that information, the court in Castro (166 Ill. App. 3d at 482) stated that to follow plaintiffs’ construction of the 90-day provision would permit parties to purposely avoid learning the substance of their expert’s opinion in order to extend the time in which they had to identify their expert and his opinion. Clearly, there is some point in time prior to commencement of trial by which the identity of all expert witnesses must be disclosed. Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 570, 525 N.E.2d 1172.

The use of discovery sanctions as a general deterrent provides a strong incentive for all. litigants to fully and accurately comply with discovery rules. Whenever a trial court finds that an expert witness has not been disclosed in violation of Rule 220, the witness should be debarred from testifying unless to do so would create manifest injustice. (Phelps v. O’Malley, 159 Ill. App. 3d at 224.) The decision to impose sanctions under Rule 220 rests within the sound discretion of the trial court (Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 172, 497 N.E.2d 1022) and will not be interfered with absent a clear showing of abuse. Castro, 166 Ill. App. 3d at 482.

Plaintiffs contend for the first time in their reply brief that their delay in securing an expert witness was due to an inability to find an expert within their financial means. We need not consider an argument presented for the first time in the reply brief. 107 Ill. 2d R. 341(g).

In the present case, more than 22 months after the initial complaint was filed and after more than 11 months of requests for disclosure by defendant, and the expiration of two court-imposed deadlines for disclosure of experts, the trial court barred plaintiffs from calling an expert at trial pursuant to Rule 220. We conclude that the court did not abuse its discretion in doing so and that the affidavit by plaintiffs’ expert in opposition to summary judgment did not need to be considered. James v. Yasunaga, 157 Ill. App. 3d at 459.

We next consider whether the trial court properly granted defendant’s motion for summary judgment. Summary judgment should only be granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) While use of the summary judgment procedure is encouraged as an aid in the expeditious disposition of a lawsuit, it is nevertheless a drastic means of disposing of litigation and should only be allowed where the right of the moving party is clear and free from doubt. (James v. Yasunaga, 157 Ill. App. 3d at 459.) The trial court must construe the documents presented most strongly against the moving party and most liberally in favor of the opposing party. Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 620, 480 N.E.2d 1204.

The trial court granted defendant’s motion for summary judgment after both parties had submitted affidavits, deposition transcripts and transcripts of testimony from the trial of defendant, John Bush, Sr., the driver of the automobile that struck the decedent. Several witnesses testified concerning the operation of warning devices on the bus. Jim Pfeifer, who was driving westbound immediately following Bush’s car, stated that the lights on the bus were flashing and the stop sign on the left side of the bus was extended. In his deposition,

Pfeifer stated he couldn’t remember the color of the lights, but in trial recalled they were red. Mark Volkening, who was driving behind the school bus, stated he saw the yellow lights flashing before the bus stopped, and he stopped behind it. The bus was stopped about 22 seconds before the child got off, and the stop sign was extended, and the red lights were flashing before he was hit by the car.

John Bush, Sr., the driver of the car that struck Brian, was traveling westbound and stated he did not see the child until he heard the impact and that he did not see the stop sign on the bus. In his deposition he said he could not remember if there were any red flashing lights on the bus. However, the investigating police officer stated that when interviewed at the scene, Mr. Bush admitted that when he was between 400 and 450 feet away from the bus, he saw the red lights flashing but did not observe the stop sign extended.

The bus driver stated that as soon as the bus door begins to open, the red lights and stop arm are automatically activated; both the red lights and the stop arm operated on the day of the accident. The bus driver stated that after Brian exited, he remembered that Brian had been carrying a jar and asked if he had taken it with him, to which the child replied, “Yes, I have it, Sarge,” and showed it to him. This conversation occurred while Brian was standing outside of the bus by the door. Brian then proceeded to walk around the front of the bus.

Jim Pfeifer, who was following the Bush car, also observed that after Brian exited the bus, he stopped for a second before he walked in front of the bus and into the westbound lane.

In support of its motion for summary judgment, defendant also presented affidavits of Steve Slagal, the product safety manager of defendant, Wayne Corporation. He stated that the school bus fully complied with all standards and specifications set forth in “Illinois Minimum Safety Standards for Construction of Type-1 School Buses’’

(see 111. Rev. Stat. 1983, ch. 95V2, pars. 12 — 800 through 12 — 820). He further stated that it is impossible for anyone to exit the school bus before the red flashing lights commence operating and the stop arm is extended.

In opposition to the motion, plaintiffs presented the affidavit of Frank J. Gruber IV, an associate professor of technology at Northern Illinois University, who stated that even if the standards referred to in Mr. Slagal’s affidavit were complied with, the vehicle may not be safe for the purposes for which it was constructed. He did not express any opinion as to what, if anything, was unsafe about the vehicle in which the child had been riding.

The trial court granted defendant’s motion for summary judgment after argument. Plaintiffs have not included transcripts of the arguments or the trial judge’s reasoning in the record on appeal.

Plaintiffs claim that summary judgment was improperly granted because defendant failed to comply with the State specifications; the design as set forth in the specifications was imminently dangerous; and the failure to provide a safe and timely warning system was the proximate cause of the decedent’s death.

Plaintiffs contend that defendant is liable for the negligent manufacture of the school bus. To succeed on their negligence action, plaintiffs must prove defendant breached a duty which was the proximate cause of injuries. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 493, 429 N.E.2d 1267.) In Hunt v. Blasius (1978), 74 Ill. 2d 203, 209, 384 N.E.2d 368, our supreme court stated that to recover against a contractor on a negligence theory, a plaintiff must demonstrate either noncompliance with specifications which proximately caused plaintiff’s injury or that the specifications were so defective that a contractor of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury.

Plaintiffs argue the school bus was not manufactured according to specifications; however, the specifications were submitted with defendant’s motion for summary judgment, and plaintiffs fail to note how the bus failed to meet them. Instead, plaintiffs argue defendant should have been aware that a young child could exit defendant’s bus before the red flashing lights and stop signal arms were properly activated, causing an inadequate warning to oncoming motorists that a child was exiting the bus. Plaintiffs claim there is a factual issue as to how much pressure the deceased could exert to open the doors and exit the bus before the warning devices were fully functioning. However, there is no evidence to support plaintiffs’ argument, and the only evidence relating to this issue is the affidavit of Steve Slagal that, “It is absolutely impossible to exit the school bus before the red flashing lights are operating and the stop arm is extended.”

Plaintiffs make the same argument in attempting to show that the school bus specifications were so imminently dangerous that defendant would have been justified in refusing to follow them and, under these specifications, a child could rapidly exit a bus before the warning system was activated. Again, there is no evidence that this is true or, if such defect was found to exist, that it has any relevance to this case.

Plaintiffs also argue that defendant’s negligence was a proximate cause of plaintiffs’ injury, stating that, “Brian exited bus number twelve (12) before the warning system was in full effective operation.” However, plaintiff offered no evidence supporting that possibility, and it was negated by defendant’s affidavits. Plaintiffs have also failed to present any counterevidence that defendant did not comply with specifications or that plaintiffs’ cause of action falls within the “imminently dangerous” exception that defendant owed decedent a duty to refuse to follow the specifications established by the State of Illinois. Hunt v. Blasius, 74 Ill. 2d at 208-09.

Plaintiffs finally argue that defendant is strictly liable for the decedent’s fatal injuries. To recover in strict liability in tort, plaintiffs must prove that the injuries resulted from an unreasonably dangerous condition of the product and that the condition existed at the time the product left the manufacturer’s control. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111, 454 N.E.2d 197.) They argue that the warning system was defective because of its inadequate and untimely operation which affected its use (to timely warn oncoming motorists and to provide safety to its young passengers) and therefore caused an unreasonably dangerous condition to exist. In the absence of any facts that this warning system subjected school children to any unreasonable or unexpected risks, plaintiff has failed to raise a controverted question of fact so as to withstand defendant’s summary judgment motion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    ROMAN WEISSINGER, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Second District
    No. 2—88—0472
    Opinion filed March 20, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Alan J. Marco, of Marco & Stefanos, of Downers Grove, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Roman Weissinger, was convicted of reckless homicide in 1983. On May 19, 1987, the defendant, the Secretary of State (Secretary), notified Weissinger that an order reflecting his 1983 conviction had been received and that his driver’s license would be suspended effective May 26, 1987. In a formal hearing before the Secretary, plaintiff sought reinstatement of his driving privileges; this relief was denied on September 10, 1987. On November 6, 1987, plaintiff filed a complaint in the circuit court of Du Page County seeking to enjoin the Secretary from revoking his driver’s license. On April 21, 1988, after a bench trial, the trial court entered an order granting plaintiff’s request for injunctive relief.

The Secretary then timely appealed, raising three issues: (1) whether the Administrative Review Law (111. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) provides the method of review of the Secretary’s determination under the circumstances of this case; (2) whether the trial court erred in placing the burden of proof upon defendant; and (3) alternatively, whether the plaintiff sustained his burden of proof if it was properly placed on defendant. We vacate the judgment of the circuit court and remand the cause with directions.

In 1978, plaintiff was arrested after he was involved in a traffic accident which resulted in a fatality. Pursuant to a guilty plea entered in 1983, plaintiff was convicted of the offense of reckless homicide.

In a letter dated May 19, 1987, the Secretary notified plaintiff that a report of his conviction had been received and that the Secretary was compelled to comply with the Illinois statute providing for the mandatory revocation of an individual’s driver’s license upon receipt of a notice of conviction for reckless homicide. (Ill. Rev. Stat. 1985, ch. 95V2, par. 6 — 205.) The letter indicated that an order of revocation was being entered and that Weissinger was entitled to a formal hearing on the matter if he desired one.

On May 26, 1987, plaintiff’s license was officially revoked. On July 21, 1987, a formal hearing was held before the Secretary. Subsequently, on September 10, 1987, plaintiff was denied reinstatement of his driving privileges. Consequently, on November 6, 1987, plaintiff filed a complaint in the circuit court of Du Page County seeking to temporarily and permanently enjoin the Secretary from revoking his driver’s license. Plaintiff also asked the court to order the Secretary to restore his driving privileges. The essence of plaintiff’s complaint was that the Secretary had not acted “forthwith” in revoking his driver’s license because more than four years had elapsed from the date of conviction to the date of revocation.

The Secretary responded by filing a motion to dismiss along with a supporting memorandum on January 28, 1988. Initially, the Secretary argued that plaintiff’s complaint should be dismissed because venue was improper. The Secretary contended that the Administrative Review Law (Act) (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) specifically designated Cook County or Sangamon County as the appropriate places of venue for the review of a decision of the Secretary involving the suspension, revocation or denial of a driver’s license. Thus, plaintiff’s selection of venue in Du Page County was improper.

The Secretary also argued that the proper procedure to judicially review the revocation of one’s driver’s license was set forth in the Act. The Secretary averred that plaintiff had acted improperly because he had sought relief in the form of a complaint for injunctive relief and, therefore, had not complied with the mandates of the Act. Noting that plaintiff was trying to supersede the legislative intent of the Act by filing a complaint for injunctive relief, the Secretary contended that plaintiff’s complaint should be dismissed for failure to comply with the Act.

Finally, the Secretary argued that plaintiff’s complaint should be dismissed because the time for review of the administrative decision had expired. The Secretary pointed out that the Act specifies that every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of a summons within 35 days from the date a copy of the decision sought to be reviewed was served upon the party affected thereby pursuant to section 3 — 103 of the Act (111. Rev. Stat. 1987, ch. 110, par. 3 — 103). Because plaintiff had failed to file a complaint within the mandatory time period, having commenced his action some 61 days after the Secretary’s final decision, the Secretary argued that his complaint should be dismissed as it was barred by the statute. 111. Rev. Stat. 1987, ch. 110, par. 3-102.

On March 1, 1988, plaintiff filed his answer to the Secretary’s motion to dismiss, stating that his complaint was not brought under the Act. Without citing authority, plaintiff argued that where an agency renders a decision that is not authorized by law, a complaint for an injunction of that act is proper. Plaintiff stated that in this matter the Secretary had not acted “forthwith” in revoking his driver’s license in accordance with the revocation provisions of the Illinois Vehicle Code (111. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(a)) and, therefore, had not acted within his statutory authority. Accordingly, plaintiff argued that his complaint was proper.

At trial, Shari Mansker, supervisor of the Driver Control Division of the Secretary of State’s office, testified that her division was responsible for reviewing driving records and entering the driver control action as deemed appropriate by the law. Mansker stated that her division received various conviction reports and entered the information from these reports on the Secretary’s computer data base; once the information has been placed in the computer, a determination as to the appropriate order of revocation or suspension is made and subsequently entered on the particular individual’s driving record.

Mansker testified that her division date-stamps the documents which it receives from the courts during the normal course of business. Mansker was then asked whether plaintiff’s conviction report for reckless homicide was date-stamped; she responded that it was stamped May 18,1987.

Upon cross-examination, Mansker was questioned as to the date that plaintiff’s conviction report for reckless homicide was sent to the Secretary. Mansker replied that the circuit court of Du Page County had failed to enter such a date on the conviction report; although a space was provided on the report for the express purpose of entering the date that it was being sent to the Secretary, the circuit court had omitted entering the pertinent date. When Mansker was asked whether she had personally date-stamped plaintiff’s conviction report, she said she had not. She was then asked whether it was possible that the document could have been misplaced in the Secretary’s office and found by someone on May 18, 1987, and date-stamped and processed as she had testified. Mansker replied that such an occurrence was “Mery doubtful.” Plaintiff’s attorney then asked her whether the Secretary ever misplaced anything that came into the office; Mansker opined that it could happen.

At the conclusion of the proceeding, the court granted plaintiff the injunctive relief that he had sought. The court specifically found that the time which elapsed between the date of conviction and the date of revocation was not “forthwith” within a reasonable interpretation of the applicable statute authorizing revocation upon being notified of the conviction for reckless homicide.

The court further stated that the Secretary had acknowledged his burden to show that the Secretary had acted forthwith and that delay in the suspension was occasioned by the clerk of the circuit court of Du Page County in failing, for a period of almost four years and three months, to send the conviction report to the Secretary. Applying this reasoning, the trial court concluded that the State had not met its burden.

We address first whether plaintiff should have proceeded under the Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). We agree with defendant that the Act provides the exclusive remedy to plaintiff under the facts of this case. The final action of the Secretary in revoking or suspending a driver’s license is reviewable only under the provisions of the Act. (People v. McClain (1987), 165 Ill. App. 3d 157, 163-64, appeal allowed (1988), 121 Ill. 2d 580; Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118(e).) Once the legislature expressly adopts the Act as the mode of review for a given agency, Illinois courts have consistently held that the remedy under the Act is exclusive and the alternate methods of direct review or collateral attack are not permitted. (Cypress Lounge v. Town of Cicero (1987), 165 Ill. App. 3d 867, 868.) A party must exhaust its administrative review remedies, including certiorari, before seeking equitable relief. (Newkirk v. Bigard (1985), 109 Ill. 2d 28, 35, cert. denied (1986), 475 U.S. 1140, 90 L. Ed. 2d 335, 106 S. Ct. 1789.) An exception to the rule exists where the agency rule or order is being challenged on its face as not being authorized by statute; this is so because the judicial determination will affect the jurisdiction of the administrative body in all matters, not only the instant circumstances. (Inland Steel Mortgage Acceptance Corp. v. Carlson (1987), 154 Ill. App. 3d 890, 896.) Similarly, if a statute is valid on its face, but is applied in a discriminatory or arbitrary manner, the challenging party must pursue administrative remedies before seeking judicial relief. Inland Steel, 154 Ill. App. 3d at 897.

The purposes of the exhaustion requirement are not served where an administrative assertion of authority to hear or determine a matter is attacked on its face on the ground that the assertion of jurisdiction is not authorized by statute. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 550.) The rationale for the exhaustion doctrine is that: “(1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary.” Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358.

In the present case, plaintiff initially participated in proceedings before the Secretary under the Act and, after receiving an adverse decision, abandoned the Act’s method of review and sought equitable relief instead. This appears to be a transparent attempt to circumvent the procedures of the Act. The Secretary’s order, on its face, was authorized by statute. Section 6 — 205(a) of the mandatory revocation statute provides that the Secretary “shall forthwith revoke the license or permit of any driver upon receiving a report of such driver’s conviction of any of the following offenses: *** reckless homicide.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. dSVz, par. 6— 205(a)(1).) The Secretary did what he was required to do under the statute.

The Secretary had personal jurisdiction, subject matter jurisdiction, and the authority to issue the order in question. An agency’s jurisdiction or authority is not lost merely because its order may be erroneous. Where an order is merely voidable and not void, it is not subject to collateral attack. (Newkirk, 109 Ill. 2d at 37-39.) To accept plaintiff’s argument that defendant wrongfully applied the statute would allow the exception to swallow up the rule that a party cannot collaterally attack an agency order unless the order is void on its face as being unauthorized by statute. If we were to accept plaintiff’s argument, a plaintiff could merely point to any provision of a statute that was not followed to the exact letter and claim that the agency did not have the authority to act unless the provision was strictly complied with, thereby permitting a collateral attack in every such case. Our supreme court has rejected this approach. (Newkirk, 109 Ill. 2d at 29.) Here, the order of the Secretary was not void but merely voidable; plaintiff’s sole and exclusive remedy to question the legal defects in the final order was under the Act. (Moeller v. Department of Public Aid (1988), 170 Ill. App. 3d 634, 637.) Plaintiff failed to exhaust his remedies. Plaintiff could have sought immediate review under the Act, or he could have sought a restricted driving permit under section 6 — 205(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95^2, par 6-205(c)).

The 35-day limit within which a complaint in an action seeking review of a final administrative decision must be filed is a jurisdictional requirement (Ill. Rev. Stat. 1987, ch. 110, pars. 3 — 102, 3 — 103), and the failure to adhere to the time limitations is a complete bar to recovery. Here, plaintiff apparently ignored the statutory time limitations and thereby lost his right to seek review. We cannot be indifferent to plaintiff’s disregard for procedural rules. (Moeller, 170 Ill. App. 3d at 636-37.) We conclude that the circuit court lacked jurisdiction to hear this case; therefore, it is unnecessary to consider the remaining issues on appeal. Cypress Lounge, 165 Ill. App. 3d at 869.

Accordingly, the judgment of the circuit court is vacated, and the cause is remanded with directions that the Secretary’s final orders be reinstated for the time period designated by the applicable statute, subject to plaintiff’s administrative remedies, if any.

Vacated and remanded with directions.

UNVERZAGT, P.J., and NASH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLEN M. PISANI, Defendant-Appellant.
    Second District
    No. 2—88—0272
    Opinion filed March 20, 1989.

      Harlovic & Perko, of West Dundee (Phyllis J. Perko, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Eleesha Pastor O’Neill, of Chicago, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury, defendant, Ellen M. Pisani, was convicted of two counts of the offense of harassment by telephone (111. Rev. Stat. 1985, ch. 134, par. 16.4 — 1(2)) and was sentenced to concurrent one-year terms of supervision and fines of $500 on each count. Defendant’s post-trial motions in arrest of judgment and for a new trial were denied, and she appeals, contending that the complaint and information in which these charges were made were fatally defective as they did not sufficiently inform defendant of the offense charged. We affirm.

In the criminal complaint, it was alleged that on May 9, 1986, defendant, Ellen M. Pisani, committed the offense of harassment by telephone in violation of section 1 — 1(2) of “An Act to prohibit the use of telephone *** lines for the sending of certain messages ***” (Code) (111. Rev. Stat. 1985, ch. 134, par. 16.4 — 1(2)) in that defendant, “with the intent to harass, used telephone communications for the purpose of harassing John Polo.” In the information which was filed as to the other offense, it was alleged that on May 8, 1986, defendant committed the offense of harassment by telephone in that, “Ellen M. Pisani, with the intent to harass, made and used telephone communications for the purpose of harassing John Polo at the called number No. 960-5857,” in violation of section 1 — 1(2) of the Code (111. Rev. Stat. 1985, ch. 134, par. 16.4-1(2)).

Defendant argues that, as the charging instruments merely use the statutory language of the harassment by telephone statute, they do not meet the notice requirements of due process as the charges fail to particularize the criminal conduct involved.

When reviewing the sufficiency of a charging instrument which has been challenged by a motion in arrest of judgment (Ill. Rev. Stat. 1985, ch. 38, par. 116 — 2), the court must determine whether the complaint or information comports with the statutory requirements that the charge be in writing and that it state the name of the offense, the statutory provision alleged to have been violated, and the nature and elements of the offense pursuant to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 111 — 3(a)(1), (a)(2), (a)(3); People v. Easter (1981), 102 Ill. App. 3d 974, 977, 430 N.E.2d 612). Where the sufficiency of a charge is attacked by a motion in arrest of judgment, the standard for determining whether the information is deficient is whether the elements of the offense as outlined in the statute are set out in the information. If so, the information is sufficient to allow defendant to prepare her defense and to serve as a bar to future prosecution arising from the same conduct. (People v. Testa (1983), 114 Ill. App. 3d 695, 700, 449 N.E.2d 164.) To determine whether these standards have been met, reference must be made to the plain and ordinary meaning of the words of the charging instrument as read and interpreted by a reasonable person. People v. Hayes (1979), 75 Ill. App. 3d 822, 824, 394 N.E.2d 80.

Defendant argues that by failing to include a description of the criminal act, the complaint and information here failed to particularize the criminal conduct involved. However, the charging instruments state defendant used the telephone to harass plaintiff on specific dates. In upholding the constitutionality of the telephone harassment statute, the supreme court concluded that by applying the maxim noscitur a sociis (a word is known by the company it keeps), the words “abuse” and “harass” take color from the word “threaten” and acquire more restricted meanings. People v. Parkins (1979), 77 Ill. 2d 253, 257-58, 396 N.E.2d 22, cert. denied (1980), 446 U.S. 901, 64 L. Ed. 2d 254, 100 S. Ct. 1825.

Defendant makes reference to cases where a charging instrument was determined to be defective even though following the language of the statute where it failed to particularize criminal conduct. However, the cases cited deal with offenses such as perjury, communicating with a juror, reckless conduct, disorderly conduct and obstructing justice, where conduct is only generally described in the statute and requires clarification in the charging instrument (see People v. Lyda (1975), 27 Ill. App. 3d 906, 912, 327 N.E.2d 494 (indictment for obstructing justice by destroying physical evidence without describing the physical evidence was held to be insufficient)) or where specific words must be communicated (see People v. Yarbrough (1987), 162 Ill. App. 3d 748, 750, 516 N.E.2d 607 (indictment for communicating with a juror insufficient where it did not allege the communication)). The statute here does not require the communication of specific words and provides that a violation may occur “whether or not conversation ensues.” (Ill. Rev. Stat. 1985, ch. 134, par. 16.4 — 1(2).) There is no requirement that the charging instruments specify the exact means by which this conduct was carried out. People v. Wisslead (1985), 108 Ill. 2d 389, 397, 484 N.E.2d 1081.

The charging instrument is not the sole means of informing a defendant about particulars concerning his case. In the case at hand, defendant conducted extensive pretrial discovery, and, in rejecting defendant’s argument at post-trial proceedings, the trial judge noted that defense counsel was fully aware of alleged statements made by defendant and of the number of witnesses called. The judge also noted that if defendant desired additional specific information, she could have moved for a bill of particulars (Ill. Rev. Stat. 1985, ch. 38, par. 111 — 6), although a bill of particulars would not cure an otherwise void charge. People v. Wisslead (1985), 108 Ill. 2d 389, 397, 484 N.E.2d 1081.

As the indictment and information apprising defendant of the offense charged comported with statutory requirements in outlining the elements of the offense and were sufficiently specific to enable her to prepare her defense and to allow for pleading of the judgment as a bar to future prosecution arising from the same conduct, they were sufficient to withstand defendant’s motion in arrest of judgment.

Next, defendant argues that the jury instructions for telephone harassment were defective as they failed to describe any criminal act or conduct, a material element of the offense. The definitional instruction to the jury was:

“A person commits the offense of harassment by telephone when she makes a telephone call, whether or not conversation ensues, with the intent to abuse, threaten, or harass any person at the called number.” (Illinois Pattern Jury Instructions, Criminal, No. 19.05 (2d ed. 1981).)

The issues instruction given to the jury read:

“To sustain the charge of harassment by telephone, the State must prove the following propositions: First: That the defendant used a telephone; and Second: That the defendant did so for the purpose of making a telephone call, whether or not conversation ensued, with the intent to abuse, threaten, or harass any person at the called number.” Illinois Pattern Jury Instructions, Criminal, No. 19.06 (2d ed. 1981).

No objection was made at trial to these instructions, and defendant did not offer any alternative instructions to the trial court. The failure to object at trial to a claimed error in jury instructions waives the question, and a party may not raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248.) However, defendant argues that the instructions did not describe any criminal act or conduct and resulted in a failure to define a material element of the offense which constitutes plain error, an exception to the waiver rule, requiring our consideration and reversal. (People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861.) Rule 451(c) provides:

“[Substantial defects [in instructions in criminal cases] are not waived by failure to make timely objections thereto if the interests of justice require.” (107 Ill. 2d R. 451(c).)

Our supreme court has emphasized the limited nature of the plain-error exception to the waiver rule. It is restricted to the correction of “grave errors” or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. People v. Huckstead (1982), 91 Ill. 2d 536, 544, 440 N.E.2d 1248.

Defendant argues that the failure of the instructions to describe any criminal act or conduct allowed the jury to convict for a reasonable noncriminal use of the telephone. However, the instructions did not state that the mere making of a telephone call was enough to convict defendant of the charges, as defendant argues. Rather, the instructions informed the jury that to convict defendant of harassment by telephone, it had to find that she used a telephone for the purpose of making a telephone call, whether or not conversation ensued, with the intent to abuse, threaten, or harass any person at the called number. The instructions given do not constitute error affecting the fundamental fairness of the trial, and we conclude that they adequately informed the jury of both the nature of the criminal act and the elements necessary to support a conviction.

Evidence was admitted that telephone traps traced telephone calls which came from defendant’s line and were placed to plaintiff’s residence. Defendant argues that there was not a proper foundation for admission of this evidence.

In People v. Holowko (1985), 109 Ill. 2d 187, 191-92, 486 N.E.2d 877, the court held that the computerized telephone “trap” records printout is not hearsay evidence but represents a self-generated record of its operation. Admission of such records into evidence requires only foundational proof of the method of the recording of the information and the proper functioning of the device by which it was effected.

In the case at hand, to support introduction of the records of the telephone traps, the State called Karen Williams, an employee of Illinois Bell Telephone Company, who, since July 1, 1986, had been employed as keeper of records of the company as the security representative. Williams testified that she had worked with annoyance calls as a service representative, as a supervisor, as an assistant manager, and as a manager for 20 of the 23 years she had been employed at Illinois Bell. She also testified that, when a customer complains of receiving harassing calls, a trained service representative sets up a telephone trap, which works as follows:

“Then, in the office, it provides a dial tone which technically causes the machine to error and keep all incoming calls to your number on recall at a subsequent date. When you get a telephone call that you have identified to be harassing, you then call the next business day, if necessary, tell that annoyance call specialist, hey, I got a call last night at 10 o’clock. She then goes back to the technicians and says, all right, on this number I am looking for a call at 10 o’clock p.m. last night. A technician interrogates the computer providing dial tone, and it will come back with the call or calls that came in.”

The telephone company then receives a document that on a specified day one telephone number dialed another telephone number and provides the time that call was connected.

Williams further testified as to the contents of People’s exhibit No. 1-A, a computer printout generated as a result of the trap and trace and the report of dates and times from the customer kept in the regular and ordinary course of business by Illinois Bell. The computer printout showed that on May 8 there was a call at 23:02, or 11:02 p.m. and 46 seconds, when telephone number 312-964-6519, listed for Ellen Pisani at 430 69th Street in Darien, dialed 312-960-5857, the complainant’s number, and on May 9th at 16:40 or 4:40 p.m. and 16 seconds, telephone number 312-964-6519 dialed 312-960-5857.

No objection to the foundation was made by defendant at the time these records were offered and admitted in evidence. Generally, failing to object at trial operates as a waiver of consideration of the issue on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) In the absence of an objection, a court of review may consider the issue if it amounts to “plain error.” (107 Ill. 2d R. 615(a).) However, plain error in failing to object is a limited exception, applied to correct “grave errors,” or where the case is close factually and the trial error is so prejudicial that it amounts to a denial of real justice. (People v. Smith (1981), 93 Ill. App. 3d 26, 33, 416 N.E.2d 814.) Based upon review of the record, we do not find that admission of the computer-generated telephone traps may be characterized as plain error, and the foundational issue was waived by defendant’s failure to object.

Finally, defendant contends that she was deprived of effective assistance of counsel under the test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In determining whether defendant has made a case for ineffective assistance of counsel, Strickland advances a two-component standard: first, the defendant must prove counsel’s representation fell below an objective standard of reasonableness such that the trial results were unreliable; and second, the defendant must prove that the attorney’s conduct prejudiced him so that but for the attorney’s unprofessional errors, the results of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant alleges that the trial counsel was incompetent based on counsel’s questioning of defendant during direct examination and counsel’s concession during closing arguments that the company’s computer trap records were accurate. Counsel’s questioning of defendant and statements made during closing arguments are points of trial strategy which, in this case, do not establish incompetence and are not subject to review. (People v. Gaines (1984), 105 Ill. 2d 79, 95, 473 N.E.2d 868.) Trial performance is not to be judged by a hindsight perspective. Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.

Defendant’s present attorney states she would have handled the case differently by introducing an expert witness on telecommunications and, therefore, would not have conceded the accuracy of the telephone trap records in closing arguments. Regarding the accuracy of the trap records, defendant argues that trial counsel should have hired a communications expert to testify that someone else could have tapped into defendant’s line and .caused the harassing telephone calls to be made and registered to defendant’s telephone. Defendant did authorize payment of funds for an expert witness, but her trial counsel did not hire an expert. In an affidavit presented with her post-trial motion, defendant points to the deposition of a person working in the telephone-communications field who suggested there was a possibility of invading a telephone terminal box, making it appear that calls had been placed from one residence to another. However, this record does not establish that such testimony would have created a reasonable doubt indicative of a reasonable probability that the outcome of the trial would have been different had there not been the alleged ineffective assistance of counsel. (People v. Wright (1986), 111 Ill. 2d 18, 30, 488 N.E.2d 973.) We do not find that defendant was deprived of effective assistance of counsel.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

DUNN and REINHARD, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CESAR GARZA, Defendant-Appellant.
    Second District
    No. 2—87—0593
    Opinion filed March 20, 1989.

      G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Cesar Garza, appeals from his conviction of delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(b)(2)). The sole issue on appeal is whether evidence of defendant’s absence from trial was improperly commented on by the prosecutor.

On January 31, 1986, defendant was arrested at the Highlake Tap for allegedly delivering cocaine to an undercover police officer. In March 1986, defendant was indicted on three counts of delivery of a controlled substance. Count III was severed from counts I and II. On November 19, 1986, defendant was convicted of count II and sentenced on January 5, 1987, to an extended term of 18 years. Defendant’s bond was not revoked.

Also on January 5, 1987, defendant was informed that the trial on count III was set for January 7, and if he did not appear, he would be tried in absentia. On January 7, 1987, defendant did not appear in court. His attorney stated that after the January 5 hearing, defendant decided that he wanted a jury instead of a bench trial. Defense counsel requested a continuance to prepare for a jury trial, and the cause was continued to February 11. The court issued a warrant for defendant’s arrest. When defendant failed to appear on February 11, the case was set for a jury trial on March 3,1987.

At a pretrial hearing, the court advised counsel that he would inform the jury that although defendant was absent from trial, defendant was to be presumed innocent. The court decided that it would not reveal the details of defendant’s absence.

During opening statements, the prosecutor informed the jury that defendant failed to appear on January 7, 1987; that a warrant was issued for his arrest; and that defendant forfeited a $350,000 bond. Defense counsel failed to object to these statements.

The State’s main evidence against defendant was the testimony of the complaining witness, special agent Emad Eassa. Eassa testified that he met defendant at the Highlake Tap on three occasions to discuss and purchase cocaine from defendant. Eassa testified that he used the name “Eddie” and told defendant that he lived in Chicago. Eassa drove an undercover car with the license plate number YRC 520. Eassa described how each time he met with defendant he would call the bar to contact defendant. Eassa related that on January 31, 1986, he telephoned the bar and was instructed to call the public phone in the lobby of the bar. When Eassa dialed that number, defendant answered. Eassa told defendant that he wanted to buy cocaine. Defendant told Eassa to meet him at the bar.

Eassa further testified that when he arrived at the bar, defendant was not there. Eassa left the bar for about an hour and returned at approximately 8 p.m. At that time, defendant was playing pool in the bar. Eassa bought defendant a drink and then left the bar to inform the undercover officers waiting outside that he was going to try to purchase cocaine from defendant.

When Eassa returned to the bar and approached defendant, defendant told Eassa that he did not want to sell $3,500 worth of cocaine to him because defendant did not know Eassa well enough. Eassa, however, persuaded defendant to sell him $3,500 worth of cocaine. Eassa again left the bar and returned at approximately 9:15 p.m. Defendant then told Eassa to go to the men’s room, where he would find something in the toilet paper roll. Defendant instructed Eassa to leave the money in the toilet paper roll. Defendant told Eassa that no one would be in the bathroom. Eassa found a bag filled with white powder, which subsequently tested positive for cocaine, in a toilet paper roll on top of the toilet tank. At' that point, Eassa gave the signal to the officers waiting outside to arrest defendant.

Upon searching defendant’s pockets, the police found an address book, three small folded paper packets containing a white powdery substance, and $3,255. The white powder also tested positive for cocaine. Copies of pages from the address book were admitted into evidence. One page of the book had the figures YRC 520 written on it. On another page, “Eddie/Chi” was written. The rest of the book was filled with numbers and names.

On cross-examination, Eassa stated that he was the only undercover officer in the bar that night and there were no witnesses to the transaction. He also admitted that he was not searched prior to entering the bar to make the buy.

The State also presented evidence that after defendant failed to appear in court on January 7, 1987, a warrant was issued for his arrest. Police officers went to defendant’s house, but he was not there. Further attempts to locate defendant were limited to police officers driving by defendant’s house several times. The State also presented evidence that defendant forfeited $35,000 he had posted for bond. Defense counsel did not present any evidence.

Out of the presence of the jury, the State notified the court of its intention of commenting on defendant’s absence from court. Over defense counsel’s objection, the court permitted it stating, “Yes, you can make reference [to defendant’s absence], and it already has been done during the course of the trial. My only suggestion would be not to dwell on the issue.” In its closing argument, the State did not mention defendant’s absence from trial. Defense counsel did not raise the issue of defendant’s absence during his closing argument.

During rebuttal argument, the prosecutor argued:

“The Defendant, Cesar Garza, has a right to a fair trial. You have given him a fair trial, even though under our system of justice, he gets that fair trial even when he flees prior to trial. He has been identified through a mug shot photograph that was taken of him the night of his arrest. He has fled. But he still gets a fair trial, and we must give him a fair trial and give him the benefit, the presumption of innocence, and hold us to our burden of proof.
*** However, you can consider his flight and the reasons why he may have fled. He fled from court knowing that he had a trial date coming January 7, 1987. We haven’t seen or heard from him since.”

Defense counsel did not object to this argument. The court did not give the jury a flight instruction when the jury retired. The jury found defendant guilty, and the court entered judgment on the verdict.

Subsequently, the court learned that defendant was in custody in Texas. Sentencing was continued until defendant could be extradited to Illinois. On June 9, 1987, defendant moved for a new trial on the basis of the State’s allegedly improper remarks about defendant’s absence from trial. The court denied the motion, finding that evidence of flight is proper circumstantial evidence of guilt.

At his sentencing hearing, defendant testified that he left Illinois in January because his mother, who lived in Texas, was ill. Defendant decided to visit her because he feared she would die before he would be released from prison. In addition to going to Texas, defendant also went to Mexico to visit relatives. When defendant crossed the border to return to the United States, the border guards arrested him upon their discovery that he was wanted in Illinois. On cross-examination, defendant admitted that he fled to avoid prosecution. The court sentenced defendant to a 26-year term of imprisonment on count III of the charge to be served concurrently with his 18-year sentence on count II. Defendant filed a motion for a new trial, which was denied.

On appeal, defendant contends that the State’s remarks regarding his absence from trial denied him a fair trial. The State contends that defendant waived this issue because defense counsel did not object during the rebuttal argument. In response, defendant argues that since the issue of whether the State could comment on defendant’s absence in its closing argument was decided against defendant prior to closing arguments, any objection during closing arguments would have been futile. Defendant does not cite any cases in support of this proposition. Nonetheless, we agree.

We reject the State’s contention that, because defendant’s counsel failed to object during the prosecutor’s oration, defendant failed to preserve the issue for the purpose of review and thus waived our consideration of it. Although defendant’s counsel failed to object at trial, such an objection would have been futile in light of the court’s earlier in limine ruling that the State could so comment to the jury, and that the jury could consider defendant’s absence from the trial as some evidence of guilt of the offense charged.

In fact, the court had two opportunities to role on whether the State could comment on defendant’s absence from trial. At the motion in limine, a hearing was held, counsel presented legal arguments, and the trial court ruled as a matter of law that evidence of defendant’s flight could be commented on by the State. Defendant also raised this issue in his post-trial motion; thus, the court was given the opportunity to reconsider the alleged error. Given the fact that the issue underlying defense counsel’s original objection was squarely presented and decided by the trial court, the rationale underlying the waiver rule was satisfied. (See People v. Brownell (1984), 123 Ill. App. 3d 307, 462 N.E.2d 936.) The issue on appeal was not waived, and we undertake to resolve it. People v. Krug (1981), 97 Ill. App. 3d 938, 424 N.E.2d 98.

Defendant argues that when he failed to appear for trial, he waived his constitutional right to be present, but when the State informed the jury that it could consider his absence in determining his guilt, the State drew an inappropriate analogy comparing defendant’s absence from trial to flight from a crime scene. Defendant maintains that when the State drew the analogy of absence from trial with guilt of the substantive offense without foundation, that is, without explaining the reasons for defendant’s absence, which were admittedly unknown at the time, it destroyed defendant’s chance of having a fair trial. We note that defendant fails to cite any authority for this proposition, in violation of Supreme Court Rule 341(e)(7) (107 111. 2d R. 341(e)(7)), nor does defendant suggest that he is arguing a novel issue or arguing for a change in existing law. Instead, defendant cites only People v. Gregory (1968), 95 Ill. App. 2d 396, 237 N.E.2d 720, where the appellate court concluded that the defendant had a right to waive his right to be present during the conduct of his trial, and his presence or absence of any time was not a matter for comment or evidence by the State. The court noted that the defendant’s continued absence from the courtroom must have been obvious to the jury during the trial, and, additionally, counsel for the defendant had stated several times before the jury that the defendant stood mute. The Gregory court held that the error was harmless in any event. We conclude that the holding of the Gregory court is distinguishable under the facts of that case, where it was never contended that defendant’s absence was by reason of flight from trial as in the present case. (See People v. Zielinski (1979), 77 Ill. App. 3d 157, 395 N.E.2d 1020.) Here defendant confirmed at sentencing that he wanted to avoid the instant criminal proceedings although he also predicated his absence on the alleged illness of his mother.

In People v. Gary (1976), 42 Ill. App. 3d 357, 356 N.E.2d 135, the appellate court held that no error resulted where the trial court instructed the jury that it might consider the defendant’s absence from trial because flight is a circumstance which can be considered as bearing upon guilt. (Gary, 42 Ill. App. 3d at 359, 356 N.E.2d at 136.) In People v. Zielinski (1979), 77 Ill. App. 3d 157, 395 N.E.2d 1020, the court, citing Gary, held that the prosecutor properly argued to the jury that the evidence, showing the likelihood that the defendant had fled, tended to prove the defendant’s guilt of the substantive offense for which he was being tried.

In People v. Brown (1988), 172 Ill. App. 3d 1044, 527 N.E.2d 629, the appellate court concluded that the trial court should not tell jurors that defendants were willfully absenting themselves, but that it was for the prosecutor to present to the jury evidence concerning the reasons for the absence of the defendants from which the jury would draw its own conclusions. (Brown, 172 Ill. App. 3d at 1047, 527 N.E.2d at 632.) Nonetheless, the court found no error since the court’s statement in that case was not couched in terms indicating that the court was suggesting that the defendants’ absence, though voluntary, was proof of guilt. The error was harmless.

In People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818, the supreme court of Illinois determined that the fact that the defendant had fled the State after indictment for burglary and before trial was some evidence of guilt. But see People v. McInnis (1980), 85 Ill. App. 3d 109, 406 N.E.2d 199 (where the prosecutor made comments on defendant’s absence by stating that the defendant had a responsibility to face the consequences of his actions and that he failed to do so. Additional remarks were made during the prosecutor’s rebuttal. The appellate court characterized the prosecutor’s statements as “ill-advised,” without citation of authority, but stated that they would not automatically warrant a reversal unless they resulted in substantial prejudice).

That defendant had voluntarily absented himself from the trial was a reasonable inference to be drawn by the jury. It was made aware of the fact that defendant failed to appear for trial both on January 7 and January 11, the continued date and that his $350,000 bond had been forfeited. Therefore, we conclude that it was not error for the prosecutor to comment to the jury on the absence of defendant during trial and that it was appropriate for that fact to be brought to the attention of and considered by the jury as evidence of a consciousness of guilt.

The judgment of the circuit court is affirmed.

Affirmed.

McLAREN and DUNN, JJ., concur.


author: JUSTICE McLAREN

text:
    LOWELL KOUSINS et al., on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellees.
    Second District
    No. 2—88—0764
    Opinion filed April 12, 1989.
    Rehearing denied April 21, 1989.
    Larry D. Drury, of Larry D. Drury, Ltd., of Chicago, for appellants.
    Fred L. Foreman, State’s Attorney, of Waukegan (Helen S. Rozenberg and Joseph E. Kolar, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs appeal from the order of the circuit court of Lake County dismissing their amended complaint with prejudice. The trial court held that plaintiffs had an adequate remedy at law and therefore the court lacked jurisdiction in. equity to hear plaintiffs’ claims. Appeal dismissed.

The named plaintiffs, Lowell and Carol Kousins, reside in Lake County, Illinois. Plaintiffs’ real estate taxes for the year 1984 were $3,856.98. This tax liability was to be paid in two equal installments of $1,928.49. The first installment was due on June 2, 1985, and the second installment due on September 3, 1985. Plaintiffs made their first installment payment on July 12,1985.

On or about July 21, 1985, plaintiffs received notice that they were being charged a penalty of $57.85 because their payment was delinquent. This penalty was calculated as lx!z% per month on the unpaid installment, or $28.92 for June and July. Plaintiffs paid the $57.85 penalty on July 21,1985.

Plaintiffs filed a complaint on March 28, 1988, and an amended class action complaint on April 13, 1988. Plaintiffs contended, inter alia, that any penalty imposed after the date of payment is unauthorized. Plaintiffs sought injunctive and declaratory relief. Defendants filed a motion to dismiss.

On June 22, 1988, the court granted defendants’ motion to dismiss with prejudice. The court found that the Revenue Act of 1939 provided plaintiffs with an adequate remedy at law by which they could contest the charge. (111. Rev. Stat. 1987, ch. 120, par. 716.) Also, the court found that, while sitting as a court of equity, it did not have jurisdiction to rule on plaintiffs’ claims.

On June 29, 1988, defendants filed a motion for attorney fees and costs pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (III. Rev. Stat. 1987, ch. 110, par. 2 — 611). On July 11, 1988, plaintiffs filed a motion to dismiss defendants’ motion and their own motion for attorney fees and costs pursuant to section 2 — 611. On July 13, 1988, plaintiffs filed a notice of appeal. Plaintiffs appeal from the June 22, 1988, order dismissing their complaint with prejudice.

Before addressing the merits of this case, we must first determine if this court has jurisdiction to hear this appeal since there are pending section 2 — 611 motions and there is no finding pursuant to Rule 304(a) by the trial court. 107 111. 2d R. 304(a).

Supreme Court Rule 304(a) provides in pertinent part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (107 Ill. 2d R. 304(a).)

Section 2 — 611 of the Illinois Code of Civil Procedure provides in pertinent part:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.” (111. Rev. Stat. 1987, ch. 110, par. 2-611.)

The above language was added to section 2 — 611 when the section was amended by Public Act 84 — 1431, effective November 25,1986.

Prior to the amendment, in Hise v. Hull (1983), 116 Ill. App. 3d 681, the court dismissed an appeal from an order granting a motion to dismiss. A request for section 2 — 611 sanctions was included in the motion and had not been ruled upon prior to the filing of a notice of appeal. The court held that in the absence of a Rule 304(a) finding, it was not an appealable order because it did not dispose of all pending claims. (Hise, 116 Ill. App. 3d at 684.) The court stated, however, that had the section 2 — 611 claim not been included in the motion to dismiss and been timely filed after the judgment was entered, the pending section 2 — 611 claim would not prevent an appeal from the decision on the initial claim absent a Rule 304(a) finding. (Hise, 116 Ill. App. 3d at 684.) This decision was affirmed in Withall v. Capitol Federal Savings of America (1987), 164 Ill. App. 3d 851 (court held that section 2 — 611 claims could be brought as separate actions and would not affect the appealability of the disposition of the underlying claims).) Both Hise and Withall were decided prior to the amending of section 2 — 611.

This court has recently had the opportunity to interpret section 2 — 611 as amended. In Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, we held “that if a section 2 — 611 claim is timely filed, no appeal may be taken from the underlying judgment absent a Rule 304(a) finding until the section 2 — 611 claim is resolved.” (Palmisano, 179 Ill. App. 3d at 1095.) “It is clear *** that section 2 — 611 claims must now be considered part of the civil action which gave rise to the claim and cannot be considered separate actions.” Palmisano, 179 Ill. App. 3d at 1095; see also Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869.

In the case at bar, the motions for sanctions pursuant to section 2 — 611 were timely filed and must be considered part of the underlying claim. Absent a resolution of the section 2 — 611 claims, or the requisite Rule 304(a) finding that there is no just reason to delay enforcement or appeal from the order dismissing the complaint, our jurisdiction is not invoked.

For the above-stated reasons we must dismiss the instant appeal.

Appeal dismissed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE STREAMS CLUB, LTD., Plaintiff-Appellant, v. LELAND THOMPSON, a/k/a Leland J. Thompson, et al., Defendants-Appellees.
    Second District
    No. 2—88—0450
    Opinion filed March 22, 1989.

      Thomas B. Cassidy and David L. Grobart, both of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellant.
    Ronald O. Roeser, of Roeser, Vucha & Carbary, of Elgin, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, The Streams Club, Ltd. (the Club), brought an action in the circuit court of Du Page County against condominium owners Leland and LaVerne Thompson, their condominium association, The Streams Condominium No. 2 (the Association), and others believed to have some interest in the condominium unit owned by the Thompsons. Plaintiff alleged breach of contract as well as the right to foreclose on a lien that plaintiff claimed arose because the Thompsons failed to pay annual dues to the Club.

Defendants answered the complaint and filed a counterclaim for declaratory judgment. Defendants alleged that although article 15 of the “Declaration of Condominium Ownership” (the declaration) originally required membership in the Club, the condominium owners amended the declaration in October 1983 to rescind the membership requirement. Defendants requested an order declaring the rights of the parties pursuant to the amendment.

Defendants moved for summary judgment on their counterclaim. The trial court found that the 1983 amendment was valid and entered summary judgment in favor of defendants. Plaintiff appeals, contending that because there are genuine issues of material fact regarding the validity of the amendment, summary judgment was improperly granted.

The Streams Condominium No. 2 “Declaration of Condominium Ownership” was recorded in April 1972. Article 15 of the declaration provides that the condominium developer would form a sports club adjacent to the condominium development. Upon purchase of a condominium unit, the condominium owner would become a member of the club and would be required to pay an annual fee.

Article 17 of the declaration sets out the procedures for amending the declaration. Article 17 provides in relevant part:

“17.1 Amendment. The provisions of this Declaration may be changed, modified or rescinded by an instrument in writing setting forth such change, modification or rescission, signed by Owners having at least three-fourths (3k) of the total vote, and certified by the secretary of the Board, provided, however, that all lienholders of record have been notified either by personal service or mailing by certified mail of such change, modification or rescission, and an affidavit by said secretary certifying to same is part of such instrument.”

In September 1983, the condominium owners sought to amend the declaration to rescind the Club membership requirement. Defendants attached a copy of the amendment to their counterclaim for declaratory judgment and to their motion for summary judgment. The document sets forth, after preliminaries, that a meeting of unit owners took place on September 12, 1983, for the purpose of amending article 15; that notice of the meeting had been sent to each entity entitled to vote and to all lienholders of record; that 100% of the ownership in the common elements voted in favor of rescinding article 15; and that in consideration of the vote and the signatures of at least 75% of the total percentage of ownership in the common elements (signatures are attached to the amendment as exhibit A), article 15 would be rescinded as of the date that the document was recorded. The amendment was recorded on October 5, 1983. The amendment is signed by Edward R. Kregor, president of the Association.

Below Kregor’s signature on the second page of the amendment the following certification appears:

“The undersigned, as Secretary of The Streams Condominium Number II, being duly sworn, states as follows:

1. That he caused notice of a special meeting of the unit owners called for the purpose of amending the Declaration of Condominium to be mailed or personally delivered to each person entitled to vote sent or delivered not less thant [sic] 10 days prior to the date of the meeting.

2. That he caused notice of such amendment and rescission of Article 15 of the Declaration to be personally served or posted by certified mail to all lienholders of record.

3. That the foregoing Amendment to Declaration of Condominium and its exhibit is true and correct in respect of the premises it represents.” The certification was signed and sworn before a notary by the Association secretary, Betty Bristol.

Also attached to the amendment is a copy of the notice sent to the lienholders, a list of the lienholders, and the secretary’s certification that she sent notice to them. This certification was also signed and sworn before a notary.

In their motion for summary judgment, the defendants contended that the Club did not have standing to bring the lien foreclosure action because it was not a successor in interest of the condominium developer and that the Association met all of the requirements for validly rescinding article 15. Defendants attached copies of the corporate documents of the Club and the original condominium developer and a copy of the amendment to the motion.

In support of the motion for summary judgment, the defendants relied heavily on the case of Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182. The facts in the Richmond case are almost identical to the facts of this case. Richmond involved the same plaintiff and another condominium owner and condominium association within The Streams development. There the club also sought to enforce a lien for unpaid membership dues. The condominium declarations involved are identical. In Richmond, the condominium association had attempted to amend the declaration to make club membership voluntary, not compulsory. The supreme court determined that the obligation to pay dues was a covenant running with the land, was binding on subsequent purchasers of condominium units, and the club’s lien was enforceable. On the issue of whether the association had effectively amended the declaration, however, the court held that there was insufficient evidence to establish whether the amendment was in conformity with article 17 requirements. Quoting the appellate court decision, the court stated:

“ ‘No evidence was taken to determine whether the amendment was passed by three-fourths of the unit owners. A certification by the secretary of the board would have substantiated this fact, but no certification is attached to the amendment. Also, there is no indication that all lienholders of record were notified. It would appear that the amendment would be valid and defeat the cause of action under any count if passed in accordance with the requirements.’ (109 Ill. App. 3d 689, 698.) The record on appeal lacks sufficient proof that the attempted amendment to the condominium declaration was indeed properly made prior to Richmond’s purchase of her condominium. It appears that a valid amendment would defeat the club’s cause of action on all counts, but the record needs to be supplemented by the circuit court in order to accurately resolve this question.” (Richmond, 99 Ill. 2d at 192-93.)

Defendants argued that they provided sufficient proof of a valid amendment in this case.

The trial court was persuaded by this argument and found that there was no “justification for going behind the certification of the Secretary, in the light of comments made by the Supreme Court in the Streams Club case.” The trial court entered summary judgment in favor of defendants on their counterclaim and against plaintiff on its complaint.

On appeal, plaintiff contends that defendants’ motion for summary judgment does not satisfy the requirements of section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005) or Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)), so as to entitle defendant to summary judgment. Plaintiff contends that defendants did nothing more than proffer an uncertified copy of the amendment which the trial court could not have considered as determinative of the disputed issue.

Summary judgment is properly granted only where there is no genuine issue as to a material fact (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380), and this is to be determined from the pleadings, depositions, affidavits and admissions on file in each case. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636.) A reviewing court will reverse an order granting summary judgment if it is determined that a material issue of fact does exist. (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393.) Summary judgment may be granted with or without supporting affidavits (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1005(a), (b)) if there remains no genuine issue as to a material fact. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 323.) If defendant does not produce uncontradicted facts in affidavit form, plaintiff may rely upon his complaint to raise genuine issues of fact and establish a triable cause of action. Cato, 83 Ill. App. 3d at 323.

The pleadings in this case do present an issue of fact. Defendant has alleged that the Association validly amended the declaration; the plaintiff has denied the validity of the amendment. Plaintiff contends that, because defendants failed to offer facts in an affidavit form in support of their motion for summary judgment, its pleadings are sufficient to defeat the motion.

We must determine, therefore, whether the amendment, as certified by the secretary, sufficiently conforms with the requirements for affidavits that it could lend evidentiary support to the motion for summary judgment. We conclude that it does.

Rule 191(a) (107 Ill. 2d R. 191(a)) sets out the requirements for affidavits in support of and in opposition to motions for summary judgment. The rule provides that affidavits shall be made on the personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall consist of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.

Plaintiff complains that the Association’s amendment does not state that it is based on the secretary’s personal knowledge; it does not set forth with particularity the facts upon which the defendants’ claim is based; and it does not show that the secretary, if sworn as a witness, could testify competently to the information contained in the amendment.

The amendment and the secretary’s certification are not in the standard form usually followed in affidavits in support of motions for summary judgment. The amendment, however, was not prepared for litigation purposes. Even if the documents could be considered to contain technical deficiencies, substance, and not form, controls. See Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 612.

The amendment does state with particularity the facts concerning the calling and the holding of the unit owners meeting, the sending of notice, the voting of owners, and the signatures of owners. Although it does not state that it is “made on the personal knowledge of the affiant,” Rule 191 does not require that affidavits so specifically state. The secretary has sworn that the notices of the meeting and the amendment were sent by her and that the amendment and its exhibit are “true and correct in respect of the premises it represents.” The secretary’s certification is signed and sworn before a notary public. A false certification subjects the swearer to the penalty for perjury. Ill. Rev. Stat. 1987, ch. 101, par. 5.

Furthermore, Supreme Court Rule 191 does not demand that the affidavit contain the phrase “that the affiant, if sworn, could testify competently thereto.” The rule is satisfied if it affirmatively appears from the whole of the document that the affiant would be a competent witness if called. (Saghin v. Romash (1970), 122 Ill. App. 2d 473, 477.) The secretary was apparently involved in the entire amendment process, and it does appear that she would be a competent witness if called. We consider that the amendment, as certified by the secretary of the Association, substantially conforms with the affidavit requirements and would have the same degree of reliability as an affidavit.

Plaintiff complains that the photocopy of the amendment is not certified by the recorder of Du Page County as a true and accurate copy of the amendment on file with him. However, a review of the record reveals that the plaintiff did not challenge the authenticity of the amendment in the trial court. Therefore, its contention that the amendment was not certified in a manner sufficient to meet a threshold burden of establishing its authenticity has been waived. An issue raised for the first time on appeal may not be considered, even in a summary judgment action. Anderson “Safeway” Guard Rail Corp. v. Champaign Asphalt Co. (1971), 131 Ill. App. 2d 924, 929.

We conclude that the amendment did set forth facts in an affidavit form, and the trial court properly considered the amendment as a source of evidentiary facts in support of the summary judgment motion.

Plaintiff next contends that even if the amendment is considered an affidavit, genuine issues of fact still exist concerning the validity of the amendment. Plaintiff argues that an issue of fact exists concerning the propriety of some of the unit owners’ signatures on the amendment.

Edward Kregor, president of the Association, signed the amendment as “attorney-in-fact” for many of the unit owners. Plaintiff argues that the amendment itself does not establish the validity of the attomey-in-fact signatures, and there is no evidence to establish that Kregor was properly authorized to act as attomey-in-fact. Plaintiff has, however, failed to attack the amendment with evidentiary facts which might contradict the amendment and certification on this issue.

The amendment states that “its exhibit [the signatures] is true and correct in respect to the premises it represents.” The secretary has, in effect, sworn to the validity of the signatures in her certification. Plaintiff merely challenges the signatures with allegations and not with evidentiary facts which might establish that Kregor did not have proper authorization. Because plaintiff has not presented evidentiary facts demonstrating that any signature is invalid or unauthorized, the secretary’s representation must be taken as true. Where well-pleaded facts are not contradicted by counteraffidavits, the facts must be taken as true notwithstanding the existence of contrary averments by the adverse party which merely purport to establish bona fide issues of fact. Baird & Warner, Inc. v. Stuparits (1977), 53 Ill. App. 3d 338, 343.

Plaintiff also contends that there is a genuine issue of material fact concerning whether the required number of owners signed the amendment. Article 17 of the declaration requires that amendments be in writing and signed by “[ojwners having at least three-fourths (3/<l) of the total vote.” The declaration defines “owners” as:

“The person or persons whose estates or interests, individually or collectively, aggregate fee simple absolute ownership of a Unit. Unless otherwise specifically provided herein, this said word shall include any beneficiary of a trust, shareholder of a corporation or partner of a partnership holding legal title to a Unit.”

Plaintiff concludes, based on the definition of “owners,” that article 17 requires that all holders of any ownership interest in a unit must sign an amendment if their interest is necessary to aggregate fee simple absolute ownership of that unit. Plaintiff points out that the Thompsons’ unit is held in joint tenancy; however, only Leland signed the amendment. Because the amendment does not establish that each signature evidences fee simple absolute ownership or that the signatures represent three-fourths of the total vote, plaintiff asserts that there is a genuine issue as to the validity of the amendment.

Defendants contend, on the other hand, that only one signature per condominium unit was required because the condominium bylaws set forth voting procedures and dictate that “[t]here shall be one person with respect to [each] Unit Ownership who shall be entitled to vote at any meeting of the Owners.” Plaintiff responds that the bylaws only apply to the corporate governance of the Association, and reliance on the bylaws to determine procedures for amending the declaration is improper.

As plaintiff admits, the declaration is a contract. The parties disagree over the interpretation of the contract’s terms as regards voting. The interpretation and construction of a contract is a matter to be determined by a court as a question of law. (Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 992.) Therefore, interpretation of the voting provisions of the declaration is a proper issue for the court’s determination on a motion for summary judgment.

We consider that the declaration and the bylaws are meant to be read together and that a valid amendment requires only one signature per condominium unit.

Article 17 requires that amendments be signed “by Owners having at least three-fourths (3k) of the total vote.” The crucial language in that phrase is “of the total vote.” The amendment does not require the signatures of three-fourths of all the owners; it requires the signatures of owners having three-fourths of the total vote. Plaintiff’s interpretation would render the phrase “of the total vote” meaningless. We cannot ignore the phrase or consider it surplusage if it can be given meaning and harmonized with other provisions in the contract. See Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 906.

The declaration itself does not define “total vote” or “vote.” The bylaws, however, do set forth the voting rights with respect to each unit ownership. The bylaws state:

“1.2 Voting Rights. There shall be one person with respect to such Unit Ownership who shall be entitled to vote at any meeting of the Owners. Such person shall be known (and hereinafter referred to[)] as a ‘voting "member.’ Such voting member may be the Owner or one of the group composed of all the Owners of a Unit Ownership, or may be some person designated by such Owner or Owners to act as proxy ***. *** The total number of votes of all voting members shall be 100, and each Owner or group of Owners shall be entitled to the number of votes equal to the total of the percentage of ownership in the Common elements applicable to his or their Unit Ownership as set forth in ‘Exhibit B’.”

Exhibit “B” simply indicates that there are 40 units in the Streams Condominium No. 2, with varying percentages of ownership in the common elements assigned to each.

Article 7, section 7.1, of the declaration states that administration of the condominium shall be vested in a board of managers or board of directors of the condominium association. Section 7.2 states that the bylaws for the board shall be the bylaws appended to the declaration and made a part thereof. Section 7.2 makes it clear that the bylaws are not completely separable from the declaration as plaintiff suggests. Furthermore, the bylaws were executed together with the declaration as part of one transaction or agreement, and as such they are to be read together and construed as a single instrument. See Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63.

Article 17 indicates that the amendment process is to be administered by the board, as evidenced by the requirements that the board’s secretary send the notices and certify the amendment. It was proper, therefore, for the board to look to the bylaws to determine the procedures it should follow in carrying out the amendment process.

Defendants’ interpretation of the signature requirements, relying on the bylaws, gives meaning to the provisions of the declaration without rendering any part of it ineffective. We consider, therefore, that a valid amendment requires the signatures of voting members representing at least three-fourths of the ownership in the common elements.

The amendment sets forth that the signatures represent “75% or greater” of the total percentage of ownership in the common elements. Plaintiff has not challenged the percentages with any contradictory facts in an affidavit form. It must be taken as true, therefore, that the signatures represent at least three-fourths of the total vote, as article 17 requires.

Finally, plaintiff has alleged that the Club is a third-party beneficiary of the contract (the declaration) between the condominium developer and the unit owners, and, as such, the contract cannot be modified without its approval. We disagree. The contract is, by its own terms, amendable by vote of the unit owners. Article 17 sets forth the procedures for amendment. Even if the Club is a third-party beneficiary of the contract, it is the beneficiary of a contract which allows modification and rescission of its terms by unilateral action of the owners. A third-party beneficiary is bound by the terms of the contract in the same manner as the parties are bound. (See Kessler, Merci & Lochner, Inc. v. Pioneer Bank & Trust Co. (1981), 101 Ill. App. 3d 502, 508.) The contract gave the owners the power to rescind even those provisions which benefitted the third party.

The Richmond case suggests that a valid amendment would defeat the Club’s cause of action on all counts. (Richmond, 99 Ill. 2d at 192-93.) The amendment, as certified by the secretary of the association, appears to meet the requirements of article 17 and is valid on its face. Plaintiff has failed to establish that there are genuine issues of fact concérning its validity; therefore, summary judgment was properly entered in favor of defendants.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS and REINHARD, JJ., concur.