text:
    John MARQUARDT, Plaintiff-Appellee, v. The CITY OF DES PLAINES, a Municipal Corporation, Defendant-appellant.
    No. 1-16-3186
    Appellate Court of Illinois, First District, SECOND DIVISION.
    February 6, 2018
    Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., of Chicago (Lucy B. Bednarek, of counsel), for appellant.
    Morici, Figlioli & Associates, of Chicago (David Figlioli and Carl A. Virgilio, of counsel), for appellee.
   JUSTICE PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 Plaintiff John Marquardt, a former police officer employed by the City of Des Plaines (City), filed a complaint against the defendant City after it denied his request for benefits pursuant to the Public Safety Employee Benefits Act (Act) ( 820 ILCS 320/1 et seq. (West 2010) ). The parties subsequently filed cross-motions for summary judgment contesting Marquardt's eligibility for benefits under the Act, and after considering the filings, the circuit court entered judgment in favor of Marquardt and against the City, concluding that the City erred in finding that Marquardt was ineligible for benefits under the Act and in denying his petition for benefits. The City has appealed the court's ruling. For the reasons explained herein, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 The following facts have been adduced from the pleadings and accompanying exhibits. Marquardt commenced employment as a full-time police officer for the City on July 2, 1984. During his tenure as an officer, Marquardt was assigned to the City's traffic unit. At approximately 11:45 a.m. on August 12, 2010, while on duty, Marquardt pulled over a semitrailer truck that was being driven by George Khoshaba. The truck's tires were compressed, and it appeared to be operating with an overweight load. After effectuating the traffic stop, Marquardt directed Khoshaba to drive to a local weighing station so that his trailer could be weighed. Khoshaba complied, and Marquardt confirmed his suspicion that the truck was, in fact, overweight. After ascertaining the weight of Khoshaba's truck, Marquardt climbed up the truck's ladder to inspect the load. As he was doing so, Marquardt felt a "pop" in his left knee. He then carefully descended the ladder and proceeded to his patrol car, where he completed paperwork on the traffic stop. Marquardt then issued Khoshaba a traffic citation pursuant to section 15-111 of the Illinois Vehicle Code ( 625 ILCS 5/15-111 (West 2010) ), which prohibits a driver from operating a vehicle over the permissible weight on an Illinois roadway. After issuing Khoshaba the citation and completing a "Des Plaines Police Overweight Report," Marquardt used his radio to inform dispatch and his supervisor that he had injured his knee and returned to the police department.

¶ 4 Marquardt was subsequently diagnosed with left medial and lateral meniscus tears in his left knee. He underwent surgery to repair his knee injury on November 22, 2010. Following the surgery, Marquardt completed a year of physical therapy and obtained other treatment; however, his condition did not improve, and he underwent a total knee replacement surgery on March 6, 2012. Following that procedure, Marquardt filed an application for a line-of-duty disability pension pursuant to section 3-114.1 of the Illinois Pension Code ( 40 ILCS 5/3-114.1 (West 2010) ) with the City's Board of Trustees of the Police Pension Fund (Pension Board). A hearing on Marquardt's application subsequently took place, and on October 30, 2012, at the conclusion of that hearing, the Pension Board determined that Marquardt's injury was sustained while he was "on duty as a police officer for the City of Des Plaines and occurred 'in the performance of an act of duty' as defined by the Pension Code." Accordingly, the Pension Board awarded him a "duty disability pension *** in the amount of 65% of the salary attached to his rank as Patrol Officer, effective as of September 22, 2012, the date he last received any pay from the City."

¶ 5 Thereafter, Marquardt completed an application for health insurance benefits pursuant to the Act and submitted his application to the City. On November 21, 2014, Michael Bartholomew, the City's city manager, authored a letter to Marquardt, denying his request for benefits under the Act. In the letter, Bartholomew explained that although Marquardt's injury was "catastrophic" and occurred while on duty, Marquardt was not eligible for benefits under the Act because his injury did not occur under any of the four circumstances delineated in section 10(b) of the Act. That is, Marquardt's injury did not occur during a fresh pursuit, an emergency, a response to an unlawful act perpetrated by another, or an investigation of a criminal act. Bartholomew explained: "Under Section 6 of the City's PSEBA Policy, the City Manager makes the final determination regarding an applicant's eligibility for PSEBA benefits. Accordingly, I have reviewed your application and the administrative record, and it is my determination that your injury did not occur during a fresh pursuit, or as part of or a response to an emergency, or by an unlawful act perpetrated by another, or during the investigation of a criminal act. Because none of the circumstances prescribed in Subsection 10(b) of the PSEBA apply, your application must be denied."

¶ 6 Following the City's denial of his application for benefits under the Act, Marquardt filed a declaratory judgment action against the City. He alleged that his "catastrophic" knee injury was sustained while he was on duty investigating a "criminal act" and that he thus met the requirements for benefits delineated in sections 10(a) and 10(b) of the Act. Accordingly, he sought a declaration of his right to benefits under the Act and an order mandating the City to pay the monthly premiums for coverage under the City's health insurance plan.

¶ 7 The City filed an answer in which it admitted that Marquardt sustained his injury while on duty as a police officer for the City and during the performance of an act of duty. The City further admitted that Marquardt's injury was "catastrophic" within the meaning of the Act. The City, however, denied that Marquardt's injury was the result of his investigation of a criminal act. Moreover, the City asserted, as an affirmative defense, that Marquardt's "injury on August 12, 2010 did not occur in one of the following circumstances: (1) response to fresh pursuit, (2) response to what is reasonably believed to be an emergency, (3) the unlawful act by another, or (4) during the investigation of a criminal act. 820 ILCS 320/10(b)." Given that Marquardt's injury did not occur in the context of any of the four specific circumstances delineated in section 10(b) of the Act, the City contended that he was "not entitled to benefits under [the Act]."

¶ 8 The parties subsequently engaged in discovery, and Marquardt and Khoshaba were both deposed and provided details about the traffic stop that resulted in Marquardt's injury. Marquardt testified, in pertinent part, that he effectuated a traffic stop on Khoshaba because the truck he was driving had compressed tires and appeared to be slow to accelerate. Based on these observations, he believed that Khoshaba's vehicle was overweight and was being operated in contravention of section 15-111 of the Illinois Vehicle Code ( 625 ILCS 5/15-111 (West 2010) ). He further testified that after ascertaining that Khoshaba was driving a truck that exceeded the permissible wheel and axel gross weight loads permitted under the Illinois Vehicle Code, he climbed the ladder of Khoshaba's truck to inspect the load and determined that the truck was hauling broken concrete. Marquardt explained that he was required to identify and describe the load that Khoshaba was hauling in order to complete the requisite "Des Plaines Police Overweight Report" and to issue Khoshaba a traffic citation. He further testified that there was no way for him to inspect the load that Khoshaba was hauling without climbing up the truck to peer down into the open semitrailer. Marquardt explained that he felt something in his left knee pop when he was traversing up the ladder located near the front of Khoshaba's truck. After maneuvering himself down the ladder, he issued Khoshaba the citation, which resulted in a fine, and completed the "Des Plaines Police Overweight Report."

¶ 9 In his deposition, Khoshaba testified that on the date of the traffic stop, he was driving a trailer with an open top. He confirmed that there was no way to open the back of the trailer to show Marquardt the concrete he was hauling. He further confirmed that Marquardt climbed the ladder of his truck in order to identify the type of load that he was hauling. After being issued a traffic citation, Khoshaba testified that he pled guilty to violating the Illinois Vehicle Code and paid a fine.

¶ 10 After engaging in the aforementioned discovery, the parties filed cross-motions for summary judgment. In Marquardt's motion, he argued that there was no dispute that he met the prerequisites for benefits set forth in sections 10(a) and (b) of the Act. Specifically, he argued that there was no dispute his knee injury was "catastrophic" within the meaning of section 10(a) of the Act because it resulted in his receiving a line-of-duty disability pension. He likewise argued that there was no dispute that Khoshaba's conduct in driving a truck with an overweight load constituted both an "unlawful" and "criminal" act within the meaning of the Act and that his catastrophic knee injury was a direct result of Khoshaba's unlawful and criminal conduct, thus satisfying the criteria set forth in section 10(b) of the statute.

¶ 11 In its cross-motion for summary judgment, the City acknowledged that Marquardt had suffered a catastrophic injury, but argued that his injury had not been sustained during the course of one of the four scenarios contemplated by section 10(b) of the Act. Specifically, the City argued that Khoshaba's conduct in driving an overweight truck did not constitute a "criminal act" because it did not result in prison time or any other serious penalty; rather, it simply resulted in a monetary fine. As a result, the City argued that Marquardt's injury was not sustained during an investigation of a criminal act. The City conceded that Khoshaba's conduct in driving his overweight truck on an Illinois roadway constituted an "unlawful act," but argued that Marquardt's injury did not occur as a result of Khoshaba's unlawful act because it did not occur "during the [actual] commission of an unlawful act." Instead, the City reasoned that Marquardt's injury was sustained after the truck had already been stopped and during his subsequent inspection of the truck's load. As such, the City argued that there were no genuine issues of material fact that Marquardt was unable to meet the Act's eligibility requirements and requested the circuit court to enter summary judgment in its favor.

¶ 12 After reviewing the parties' filings, the circuit court entered judgment in favor of Marquardt and against the City. In a detailed written order, the circuit court agreed with the City that Khoshaba's conduct in driving an overweight vehicle did not constitute a "criminal act" pursuant to the Act. In doing so, the court interpreted the term "criminal act" to mean "an act that constitutes a felony or misdemeanor under Illinois law, i.e. , an act for which a sentence of imprisonment may be imposed." It reasoned that Khoshaba's violation of the Illinois Vehicle Code, which resulted in a fine, was not a criminal act within the meaning of the Act. The court, however, agreed with the parties that Khoshaba's violation of the Illinois Vehicle Code constituted an "unlawful act perpetrated by another" as set forth in the Act. The court further found that Marquardt's catastrophic injury was sustained "as the result of" Khoshaba's unlawful act. In doing so, the court observed that the Act did not define the phrase "as the result of" and that the phrase had not been interpreted by any Illinois courts called upon to construe the Act. The circuit court then relied on an Illinois Supreme Court case equating the phrase "as a result of" in the context of the Consumer Fraud and Deceptive Business Practices Act ( 815 ILCS 505/1 et seq. (West 1996) ) with "proximate cause." Oliveira v. Amoco Oil Co. , 201 Ill. 2d 134, 140, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002). Relying on Oliveira , the circuit court construed the phrase "as the result of" as used in the Act to impose a proximate cause requirement on individuals seeking benefits. The court further found that Marquardt's injury was proximately caused by Khoshaba's unlawful conduct because Khoshaba's conduct was both the cause in fact and legal cause of Marquardt's injury. Therefore, the court determined that Marquardt was entitled to benefits under the Act and ordered the City to "pay health insurance premiums for plaintiff pursuant to section 10 of the [Act]."

¶ 13 This appeal followed.

¶ 14 ANALYSIS

¶ 15 On appeal, the City contests the propriety of the circuit court's ruling on the parties' cross-motions for summary judgment. In doing so, the City reasserts the arguments it raised below and contends that "Marquardt's injury occurred after the unlawful act of driving an overweight truck was complete and, therefore, his injury was not the result of an unlawful act perpetrated by another."

¶ 16 Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2010). In reviewing a motion for summary judgment, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party to determine whether a genuine issue of material fact exists. Williams v. Manchester , 228 Ill. 2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008). A genuine issue of fact exists where the material relevant facts in the case are disputed, or where reasonable persons could draw different inferences and conclusions from the undisputed facts. Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). To survive a motion for summary judgment, the nonmoving party need not prove his case at this preliminary stage of litigation; however, the plaintiff must present some evidentiary facts to support each element of his cause of action, which would arguably entitle him to a judgment. Richardson v. Bond Drug Co. of Illinois , 387 Ill. App. 3d 881, 327 Ill.Dec. 240, 901 N.E.2d 973 (2009) ; Garcia v. Nelson , 326 Ill. App. 3d 33, 38, 259 Ill.Dec. 821, 759 N.E.2d 601 (2001). Although summary judgment has been deemed a "drastic means of disposing of litigation" ( Purtill v. Hess , 111 Ill. 2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986) ), it is nonetheless an appropriate mechanism to employ to expeditiously dispose of a lawsuit when the moving party's right to a judgment in its favor is clear and free from doubt ( Morris v. Margulis , 197 Ill. 2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314 (2001) ). Where, as here, the parties file cross-motions for summary judgment, they agree that only a question of law is at issue, and they invite the court to decide that issue based on its review of the record. Pielet v. Pielet , 2012 IL 112064, ¶ 28, 365 Ill.Dec. 497, 978 N.E.2d 1000 ; Morningside North Apartments I, LLC v. 1000 N. LaSalle, LLC , 2017 IL App (1st) 162274, ¶ 11, 412 Ill.Dec. 433, 75 N.E.3d 413. A trial court's ruling on a motion for summary judgment is subject to de novo review ( Weather-Tite, Inc. v. University of St. Francis , 233 Ill. 2d 385, 389, 330 Ill.Dec. 808, 909 N.E.2d 830 (2009) ).

¶ 17 Construction of a statute is similarly subject to de novo review. Village of Vernon Hills v. Heelan , 2015 IL 118170, ¶ 18, 396 Ill.Dec. 111, 39 N.E.3d 937 ; Krohe v. City of Bloomington , 204 Ill. 2d 392, 395, 273 Ill.Dec. 779, 789 N.E.2d 1211 (2003). "The fundamental objective of statutory construction is to ascertain and give effect to the intent of the legislature." Gaffney v. Board of Trustees of the Orland Fire Protection District , 2012 IL 110012, ¶ 56, 360 Ill.Dec. 549, 969 N.E.2d 359. The best indication of the legislature's intent is the plain language of the statute. People ex rel. Madigan v. Wildermuth , 2017 IL 120763, ¶ 17, 418 Ill.Dec. 905, 91 N.E.3d 865 ; Nowak v. City of Country Club Hills , 2011 IL 111838, ¶ 11, 354 Ill.Dec. 825, 958 N.E.2d 1021. When reviewing the plain language of a statute, " 'words and phrases should not be construed in isolation, but must be interpreted in light of other relevant provisions of the statute.' " Senese v. Village of Buffalo Grove , 383 Ill. App. 3d 276, 279, 321 Ill.Dec. 906, 890 N.E.2d 628 (2008) (quoting Chatham Foot Specialists, P.C. v. Health Care Service Corp. , 216 Ill. 2d 366, 382, 297 Ill.Dec. 268, 837 N.E.2d 48 (2005) ).

¶ 18 The Act was passed by the Illinois legislature in 1997. Pub. Act 90-535, § 10 (eff. Nov. 14, 1997). The purpose of the Act is to continue the provision of employer-provided health insurance coverage for public safety employees and their families in the event that an employee is killed or catastrophically injured in the line of duty. Heelan , 2015 IL 118170, ¶ 20, 396 Ill.Dec. 111, 39 N.E.3d 937 ; Nowak , 2011 IL 111838, ¶ 16, 354 Ill.Dec. 825, 958 N.E.2d 1021. In order to effectuate that purpose, section 10 the Act provides, in pertinent part, as follows:

"§ 10. Required health coverage benefits.
(a) An employer who employs a full-time law enforcement, correctional or correctional probation officer, or firefighter, who, on or after the effective date of this Act suffers a catastrophic injury or is killed in the line of duty shall pay the entire premium of the employer's health insurance plan for the injured employee, the injured employee's spouse, and for each dependent child of the injured employee until the child reaches the age of majority or until the end of the calendar year in which the child reaches the age of 25 if the child continues to be dependent for support or the child is a fill-time or part-time student and is dependent for support. ***
* * *
(b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of the officer's response to fresh pursuit, the officer or firefighter's response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another , or during the investigation of a criminal act." (Emphases added.) 820 ILCS 320/10(a), (b) (West 2010).

¶ 19 Based on the plain language of the statute, eligibility for benefits under the Act is limited to those individuals who suffer a catastrophic injury on or after the effective date of the Act as a result of the individual's response to a fresh pursuant, an emergency, an unlawful act perpetrated by another, or during an investigation into a criminal act. Id. The term " 'catastrophic injury' is a term of art, and it means an injury that results in the awarding of a line-of-duty disability pension." Nowak , 2011 IL 111838, ¶ 12, 354 Ill.Dec. 825, 958 N.E.2d 1021 (citing Krohe , 204 Ill. 2d at 398-400, 273 Ill.Dec. 779, 789 N.E.2d 1211 ); see also Bremer v. City of Rockford , 2016 IL 119889, ¶ 26, 412 Ill.Dec. 813, 76 N.E.3d 1271 (emphasizing that a plaintiff cannot establish a catastrophic injury under section 10(a) of the Act simply by showing that he incurred an injury during the course of his employment; rather, the plaintiff "must establish an injury that resulted in a line-of-duty disability pension"); Heelan , 2015 IL 118170, ¶ 23, 396 Ill.Dec. 111, 39 N.E.3d 937 (noting that in construing the term "catastrophic injury," the court has "expressly equated the determination of a catastrophic injury with the award of a line-of-duty disability pension").

¶ 20 As a threshold matter, we note that there is no dispute that Marquardt's 2010 injury was sustained after the effective date of the Act and that his injury was "catastrophic" within the meaning of the Act because it resulted in him being awarded a line-of-duty disability pension. Nowak , 2011 IL 111838, ¶ 12, 354 Ill.Dec. 825, 958 N.E.2d 1021. He thus satisfies the prerequisite for benefits set forth in section (a) of the Act. The relevant inquiry is thus whether Marquardt's injury was sustained in a manner provided for in section (b) of the statute, specifically, whether his injury was "the result of *** an unlawful act perpetrated by another."

¶ 21 The Act does not define the term unlawful act; however, in Senese , 383 Ill. App. 3d 276, 321 Ill.Dec. 906, 890 N.E.2d 628, the Second District construed the term to mean " '[c]onduct that is not authorized by law; a violation of a civil or criminal law.' " Id. at 279, 321 Ill.Dec. 906, 890 N.E.2d 628 (quoting Black's Law Dictionary 1574 (8th ed. 2004) ). The court further determined that in accordance with that definition, violations of the Illinois Vehicle Code constitute unlawful acts within the meaning of the Act. Id. Accordingly, the court found that a police officer who was assigned to monitor traffic and was struck and injured by a driver operating his vehicle in contravention of several provisions of the Illinois Vehicle Code was injured as a result of an unlawful act perpetrated by another and entitled to benefits under the Act. Id. at 280-81, 321 Ill.Dec. 906, 890 N.E.2d 628.

¶ 22 The City acknowledges that under the definition of unlawful act set forth in Senese , Khoshaba's conduct in driving an overweight truck in violation of section of the 15-111 of Illinois Vehicle Code constituted an unlawful act within the meaning of the Act. The City, however, submits that Marquardt's injury was not "the result of" Khoshaba's unlawful act. That is, Marquardt was not injured while Khoshaba was driving his overweight truck on an Illinois roadway; rather, he was injured after he had already stopped and weighed Khoshaba's vehicle. According to the City, "Marquardt's injury occurred after the unlawful act of driving an overweight truck was complete." Because he "was not injured during the actual commission of an unlawful act," the City argues that Marquardt cannot satisfy section 10(b) of the Act. (Emphasis added.)

¶ 23 We disagree. As set forth above, the plain language of section 10(b) of the Act provides that in order to be eligible for benefits, the law enforcement officer's injury must have occurred "as the result of *** an unlawful act perpetrated by another." (Emphasis added.) 820 ILCS 320/10 (b) (West 2014). The parties agree that the Act does not define the phrase "as the result of" and that no Illinois court has expressly defined or construed that phrase as used in the Act. It is well-established that where a statute does not define a specific term or phrase, courts may consult dictionaries to ascertain the plain and ordinary meaning of the otherwise undefined word or phrase. Landis v. Marc Realty, L.L.C. , 235 Ill. 2d 1, 8, 335 Ill.Dec. 581, 919 N.E.2d 300 (2009). Indeed, Illinois courts have routinely consulted dictionaries to ascertain the meaning of undefined terms in the Act. See, e.g. , Gaffney , 2012 IL 110012, ¶¶ 60-61, 360 Ill.Dec. 549, 969 N.E.2d 359 (consulting Webster's International Dictionary to ascertain the plain and ordinary meaning of the word "emergency" as used in the Act); Senese , 383 Ill. App. 3d at 279, 321 Ill.Dec. 906, 890 N.E.2d 628 (utilizing Black's Law Dictionary's definition of "unlawful act" to define that term as used in the Act). We note that Black's Law Dictionary defines the term "result" as "[a] consequence, effect, or conclusion." Black's Law Dictionary (10th ed. 2014). Merriam-Webster Dictionary equates the phrase "as a result" with the phrase "because of something." Merriam-Webster Online Dictionary, https://www.merrian-webster.com/dictionary/asär¨esult (last visited Oct. 3, 2017).

¶ 24 Keeping these definitions in mind, we conclude that Marquardt's catastrophic knee injury was clearly a consequence or effect of Khoshaba's unlawful act of driving an overweight truck on an Illinois roadway and was sustained because of Khoshaba's unlawful conduct. Marquardt's uncontradicted deposition testimony established that after he determined that Khoshaba's truck was overweight, he was required to issue Khoshaba a citation and complete a "Des Plaines Police Overweight Report" in order to fulfill his duties as a traffic officer for the City. The mandatory report, in turn, required Marquardt to specify the weight of the truck, the scales used to weigh the truck, and the "type of load" that the truck had been hauling. Marquardt further testified that in order to ascertain the type of load that Khoshaba's truck contained, he was required to scale the truck's ladder located near the front of the vehicle in order to view the contents of the semitrailer. Marquardt's knee injury occurred during his climb up the truck's ladder. During his own deposition, Khoshaba confirmed that Marquardt climbed the ladder of his truck in order to identify the type of load that he was hauling in his truck. Khoshaba explained that his trailer had an open top and that there was no way to open the back of the trailer in order to show Marquardt the broken pieces of concrete that he was hauling in his truck.

¶ 25 Based on our review of the record, there is no dispute that Khoshaba's unlawful violation of section 15-112 of the Illinois Vehicle Code, triggered Marquardt's duty as a traffic officer employed by the City to effectuate a vehicle stop, and to weigh the vehicle ( 625 ILCS 5/15-112(a) (West 2010) ), and upon confirming his suspicion that Khoshaba's vehicle was overweight, he became duty-bound to complete the requisite "Des Plaines Police Overweight Report." Marquardt was not afforded any discretion regarding the completion of the required report; rather, he was required to provide comprehensive details about the traffic stop, including the "type of load" Khoshaba's vehicle was hauling. There is similarly no dispute that the only means available to Marquardt to ascertain the type of load that Khoshaba was hauling in order to complete the requisite "Des Plaines Police Overweight Report" was to climb the truck's ladder. It is thus clear that Marquardt's knee injury was indisputably a clear consequence and effect of Khoshaba's unlawful act of driving his truck in contravention of the Illinois Vehicle Code and occurred because of Khoshaba's unlawful conduct. We therefore conclude that Marquardt's catastrophic injury was "the result of" an "unlawful act perpetrated by another" within the meaning of the Act.

¶ 26 Although our dissenting colleague suggests that our approach improperly expands a municipality's liability for the cost of a former employee's health care to account for injuries sustained by a police officer, we respectfully disagree with the dissent's construction or interpretation of section 10 of the Act. We also find her hypothetical distinguishable from the facts in our case. Our colleague suggests the manner in which Marquardt sustained his catastrophic injury is akin to a situation in which a law enforcement officer falls down a set of stairs after responding "to a late-night complaint regarding a violation of a municipal noise ordinance." This hypothetical, however, fails to account for the Illinois Vehicle Code that governed Marquardt's acts. Unlike the officer in our dissenting colleague's hypothetical, Marquardt was required by the Illinois Vehicle Code to stop the vehicle and weigh the vehicle. Id. His injury was incurred during the course of an Illinois Vehicle Code inspection, which was triggered by Khoshaba's unlawful act of operating an overweight vehicle on an Illinois roadway. Id. The Illinois Vehicle Code inspection was not complete until after Marquardt ascertained the weight and identified the load of Khoshaba's vehicle (id. ) and completed the requisite "Des Plaines Police Overweight Report." Finally, while we agree with the dissent that subsection 10(b) provides benefits for officers who investigate criminal activities, we find that subsection 10(b) also provides benefits for officers' injuries that occur as a result of a truck driver's unlawful acts. We find that the circuit court properly entered judgment in favor of Marquardt.

¶ 27 In doing so, we note that although we agree with the conclusion reached by the circuit court, we disagree with the approach it utilized. Specifically, we decline to equate the phrase "as the result of," as used in the Act, with proximate cause. In its written order, the circuit court correctly observed that our supreme court has construed the phrase "as a result of" as used in the Consumer Fraud and Deceptive Business Practices Act to mean proximate cause. See Oliveira , 201 Ill. 2d at 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (quoting 815 ILCS 505/10a(a) (West 1996) ). Our supreme court, however, has subsequently cautioned against introducing common law concepts of negligence and proximate cause into a statute when those concepts are not explicitly provided for in a statute. See Robbins v. Board of Trustees of the Carbondale Police Pension Fund , 177 Ill. 2d 533, 543, 227 Ill.Dec. 116, 687 N.E.2d 39 (1997) (finding that the appellate court erred in relying on principles of negligence and proximate cause when interpreting a provision in the Illinois Pension Code that contained the phrase "resulting from" when those concepts were not provided for in the plain language of the statute). Here, Marquardt's claim for benefits is a statutory action, not a common law negligence action. We therefore decline to deviate from the plain language of the statute and introduce a proximate cause element into the statute. See id. at 543-44, 227 Ill.Dec. 116, 687 N.E.2d 39. As set forth above, the plain language of the statute simply required Marquardt to establish that his catastrophic injury was the result of an unlawful act perpetrated by another and we find that he has done so. We thus affirm the judgment of the circuit court.

¶ 28 CONCLUSION

¶ 29 Affirmed.

Presiding Justice Neville concurred in the judgment and opinion.

Justice Mason dissented, with opinion.

¶ 30 JUSTICE MASON, dissenting:

¶ 31 I respectfully disagree with the majority's determination that Marquardt's catastrophic injury occurred "as a result of" Khoshaba's unlawful operation of an overweight truck. Certainly Marquardt would not have been injured but for Khoshaba's unlawful act, but his injury was not a result of that act. Because I believe the majority's interpretation of section 10 of the Act is at odds with settled principles of statutory construction and improperly expands the City's statutory obligation, I respectfully dissent.

¶ 32 Under section 10 of the Act, police officers and other public safety employees who have suffered a catastrophic line of duty injury are entitled to have their municipal employer pay 100% of their health insurance benefits, and those of their spouses and dependents, despite termination of the employment relationship due to the injury. 820 ILCS 320/10(a) (West 2010). Because, in the absence of the statute, the employee would have "no common law right to employer-provided health insurance at all, let alone fully subsidized employer-provided health insurance," our supreme court has found that the Act's mandate, under well-established principles of statutory construction, must be strictly construed in favor of the municipal employer. Nowak v. City of Country Club Hills , 2011 IL 111838, ¶ 19, 354 Ill.Dec. 825, 958 N.E.2d 1021 ; see also Schultz v. Performance Lighting, Inc. , 2013 IL 115738, ¶ 12, 376 Ill.Dec. 448, 999 N.E.2d 331 (to the extent that there is any ambiguity, "statutes that create 'new liabilities' should be strictly construed in favor of persons sought to be subjected to their operation and will not be extended beyond their terms").

¶ 33 Under its home rule powers, the City, as a home rule municipality, would normally be allowed to determine on what terms it would employ and compensate its employees. Ill. Const. 1970, art. VII, § 6 (g), (h)-(i); Schillerstrom Homes, Inc. v. City of Naperville , 198 Ill. 2d 281, 286-88, 260 Ill.Dec. 835, 762 N.E.2d 494 (2001) (home rule municipality generally has broad power to "chart the course of [its] own growth" absent an express limitation by the General Assembly). The Act specifically recognizes that it is a limitation on a municipality's home rule powers under the Illinois Constitution. 820 ILCS 320/20 (West 2010) (home rule municipality that "employs a full-time law enforcement, correctional or correctional probation officer, or firefighter may not provide benefits to persons covered under this Act in a manner inconsistent with the requirements of this Act").

¶ 34 With that framework in mind, subsection 10(b) conditions entitlement to benefits by requiring that the catastrophic injury occur "as a result of" certain events: (i) fresh pursuit, (ii) the officer's response to what was reasonably believed to be an emergency, (iii) an unlawful act perpetrated by another, or (iv) the investigation of a criminal act. The only possible source of Marquardt's entitlement to lifetime health benefits at the City's expense is the provision for injuries sustained as a result of an unlawful act perpetrated by another. Thus, we must determine whether Marquardt was injured as a result of Khoshaba's operation of an overweight vehicle.

¶ 35 The majority concludes that he was. Given that the Act does not define the phrase "as a result of," and because dictionary definitions equate the phrase with "because of something," the majority reasons that Marquardt's disabling injury, sustained when he climbed the truck's ladder to ascertain what type of load the truck was carrying, occurred because of Khoshaba's unlawful act of operating an overweight vehicle. Supra ¶25. In other words, but for Khoshaba's unlawful operation of an overweight truck, Marquardt would not have been injured.

¶ 36 While this is not a facially unreasonable interpretation of the phrase "as a result of," if we change the scenario slightly, the fact that this interpretation expands a municipality's liability for the cost of former employees' health care becomes apparent. Assume an officer is called to respond to a late-night complaint regarding a violation of a municipal noise ordinance. When the officer arrives at the multiunit building, she ascertains the source of the noise, gains access to the building and advises the offender (whose act is "unlawful" under the ordinance) to turn down the music. As the officer leaves, she falls down the interior steps and sustains a catastrophic back injury that necessitates her retirement. That officer would be entitled to a line of duty disability pension, but she would not be entitled to benefits under the Act because it cannot reasonably be said that her injury was sustained "as a result of" the violation of the noise ordinance. Under the majority's analysis, but for the offender's ordinance violation, the officer would not have been injured, and the municipality would therefore have to cover the entirety of her health care benefits, even after retirement. This logical extension of the majority's interpretation substantially increases the municipality's exposure to liability for lifetime health benefits and, according to our supreme court's analysis in Nowak , should be rejected for that reason alone.

¶ 37 Additionally, when the other types of events the legislature determined would give rise to a municipal employer's obligation to pay lifetime health benefits for former employees and their families are considered, the majority's interpretation of "as a result of" becomes more tenuous. See People v. Ringland , 2017 IL 119484, ¶ 13, 418 Ill.Dec. 905, 91 N.E.3d 865 (court should not consider words and phrases in isolation, but instead should interpret each word and phrase in light of the statute as a whole). The other events in subsection 10(b) giving rise to entitlement to lifetime benefits concern activities that pose particular risks to police and other public safety employees: fresh pursuit of a suspect, responding to an emergency situation, and investigating crimes. In this context, catastrophic injuries sustained as a result of the "unlawful acts" of others would reasonably encompass similar law enforcement activities that, while not criminal or emergent in nature, present enhanced risks for catastrophic injuries, i.e. , pursuit of a vehicle that ran a red light, writing tickets on a busy highway, or stepping in to break up an unruly crowd in the street. Viewed in this manner, Marquardt's injury, sustained while the truck was in the weigh station, does not fit the mold.

¶ 38 Further, section 10(b) refers to an unlawful act perpetrated by another. The legislature's use of the word "perpetrated" connotes some active conduct by a third party. When instead the third party's unlawful conduct is not directed at the public safety employee but merely sets in motion a series of events that ultimately leads to the injury, the remote nature of the connection is inconsistent with the concept of an unlawfully perpetrated act.

¶ 39 Finally, Marquardt was injured in connection with his investigation of the type of load Khoshaba was carrying, information that was necessary for him to fill out his report, but which was unrelated to the fact that, whatever the truck was carrying, it was unlawfully overweight. When the legislature wanted to mandate lifetime health benefits for injuries sustained as a result of investigative activities, it expressly specified, as is evident from section 10(b)'s provision for benefits due to injuries sustained as a result of criminal investigations. The fact that the Act does not likewise provide for benefits in the context of injuries sustained as a result of the investigation of unlawful acts of others weighs strongly against the interpretation the majority adopts.

¶ 40 The decision in Senese v. Village of Buffalo Grove , 383 Ill. App. 3d 276, 321 Ill.Dec. 906, 890 N.E.2d 628 (2008), comports with this analysis. There, a police officer monitoring traffic from his squad car at an intersection was struck from behind by a driver operating his vehicle in violation of several provisions of the Illinois Vehicle Code. Specifically, the driver's windshield was obstructed and he failed to reduce speed to avoid a collision, both violations of the Illinois Vehicle Code. Id. at 277, 321 Ill.Dec. 906, 890 N.E.2d 628. The question the court in Senese was called upon to resolve was whether operation of a vehicle in violation of traffic safety laws constituted an "unlawful act" within the meaning of section 10(b). Finding that the village failed to articulate a workable definition of "unlawful act," and given the Act's failure to otherwise define the phrase, the court concluded that a motorist's operation of a vehicle in violation of the law and in a manner that injured the police officer fell within the ambit of the Act. Id. at 281, 321 Ill.Dec. 906, 890 N.E.2d 628. This is entirely consistent with the interpretation I propose above.

¶ 41 Although Senese discounted the village's argument regarding interpretation of the phrase "unlawful act perpetrated by another" in light of section 10(b)'s other provisions, it did so in the context of determining the meaning of "unlawful act." Id. at 280, 321 Ill.Dec. 906, 890 N.E.2d 628. When the issue is instead whether the catastrophic injury was sustained as a result of an act that the parties agree was unlawful, the issue is the relationship between the unlawful act and the injury, which Senese did not address. Moreover, Senese 's risk analysis is ultimately inconsistent with the supreme court's later decision in Nowak , which recognizes strict construction as the touchstone of interpretation of the Act's provisions. Nowak , 2011 IL 111838, ¶ 19, 354 Ill.Dec. 825, 958 N.E.2d 1021. So while I agree that Senese was correctly decided, because the officer's catastrophic injury was sustained as a result of the motorist's operation of his vehicle in an unlawful manner, the decision does not compel a different result here.

¶ 42 I would reverse the trial court's summary judgment order in favor of Marquardt and direct entry of summary judgment in favor of the City.

      Marquardt's complaint also contained a claim seeking administrative review of the City's denial of his request for benefits under the Act; however, that claim was dismissed and is not relevant to this appeal.

      See Des Plaines Ordinance No. M-67-02; Jonah Meadows, Des Plaines Reverses Vote on County Wage, Sick Leave Rules , Des Plaines Patch (updated June 20, 2017, 12:38 p.m.), https://patch.com/illinois/desplaines/des-plaines-vote-again-county-wage-increase.


source: Caselaw Access Project

license: Public Domain

text:
    XCEL SUPPLY LLC, Plaintiff-Appellee, v. Victor HOROWITZ, Defendant
    (Hydra Properties, LLC ; Ahuva Horowitz; and Sundance Methadone Treatment Center, LLC, Third-Party Citation Respondents,
    Hydra Properties, LLC, Third-Party Citation Respondent-Appellant).
    No. 1-16-2986
    Appellate Court of Illinois, First District, FOURTH DIVISION.
    Opinion filed February 8, 2018 Rehearing denied March 9, 2018
    Alan J. Mandel and Antonio D. Flores, of Alan J. Mandel, Ltd., of Skokie, for appellant.
    Carey M. Stein, of Ashman & Stein, of Skokie, for appellee.
   JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 This is an appeal by a third-party citation respondent from a postjudgment proceeding.

¶ 2 In the underlying case, plaintiff Xcel Supply, LLC, obtained a judgment against defendant Victor Horowitz in the amount of $468,021.87. Plaintiff then served a citation on Hydra Properties, LLC (Hydra), the only appellant in this appeal, informing Hydra that it was prohibited from transferring any property to defendant. On September 16, 2015, the trial court entered "a conditional judgment" in favor of plaintiff. On the very next day, Hydra, which is fully owned by defendant's wife, wrote the first of the checks in question to defendant. Between September 17, 2015, and December 17, 2015, Hydra wrote six checks to defendant, totaling $5220, which he admittedly cashed. On October 13, 2016, the trial court ordered Hydra to turnover $5220 to plaintiff within 30 days. On November 14, 2016, Hydra filed a notice appealing this order, as well as an earlier order.

¶ 3 On this appeal, Hydra makes several claims. First, Hydra claims that the trial court failed to hold an evidentiary hearing prior to issuing a turnover order, although (1) the trial court stated repeatedly in written orders that it was going to hold a hearing and did, in fact, hold a hearing, (2) Hydra failed to include in the appellate record a transcript or bystander's report for the hearing date or any other court date, and (3) Hydra stated a week before the scheduled hearing that, in its opinion, it was not limited "in any way" in what it could present at the hearing. Second, Hydra claims that the trial court had no evidentiary basis to find that the six checks were defendant's property, although defendant averred in an affidavit that the checks were made out to "A. Horowitz," that he cashed them and that he spent the money on his family's expenses. Both an order of the trial court and defendant's deposition transcript indicate that he uses the first name "Avigdor," as well as the first name "Victor," and Hydra concedes on this appeal that it issued the checks to defendant. Third, Hydra claims that the trial court abused its discretion by failing to consider his late response to plaintiff's turnover motion. However, we have fully considered it, and we fail to see how this response, which included defendant's affidavit that he received and cashed the checks in question, could have undermined the conclusion that the checks were his property.

¶ 4 For the reasons more fully explained below, we do not find Hydra's claims persuasive and affirm the trial court's turnover order directing Hydra to pay plaintiff $5220. Plaintiff has not asked this court for interest, so we did not consider that issue.

¶ 5 BACKGROUND

¶ 6 On April 22, 2009, plaintiff Xcel Supply, LLC, filed a one-count complaint for breach of contract against defendant Victor Horowitz. Xcel Supply, LLC v. Horowitz , 2017 IL App (1st) 152277-U, ¶ 5, 2017 WL 2855821. After six years of discovery and motion practice, the suit proceeded to a bench trial in 2015. Xcel Supply , 2017 IL App (1st) 152277-U, ¶¶ 15, 22. After trial, the trial court found in favor of plaintiff and awarded it $468,021.87 in damages on July 17, 2015, and $3312.75 in costs and $153,746.25 in attorney fees on October 21, 2015. Xcel Supply , 2017 IL App (1st) 152277-U, ¶¶ 30, 32. On June 30, 2017, this court affirmed. Xcel Supply , 2017 IL App (1st) 152277-U, ¶ 112.

¶ 7 On August 27, 2015, after the bench trial and the damages award, plaintiff served a citation to discover assets on Hydra. The citation stated, in relevant part:

"You are PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from the enforcement of a judgment, a deduction order or garnishment, property belonging to the judgment debtor or to which s/he may be entitled or which may thereafter be acquired by or become due to him or her, and from paying over or otherwise disposing of any monies not so exempt, which are due to the judgment debtor. This prohibition shall remain in effect until further order of court or termination of the proceeding. You are not required to withhold the payment of any monies beyond double the amount of the total sum due the judgment creditor."

¶ 8 After Hydra failed to appear and answer the citation, the trial court entered an order on September 16, 2015, stating "that a conditional judgment in the amount of $468,021.87, is entered in favor of Xcel Supply, LLC and against Hydra Properties, LLC as Third Party Citation Respondent in this proceeding." The order further directed the clerk of the court to "issue a summons to confirm the conditional judgment against Hydra Properties, LLC, commanding Hydra Properties, LLC to show cause why the conditional judgment should not be made final." On October 14, 2015, an attorney filed an appearance on behalf of Hydra.

¶ 9 On November 24, 2015, Hydra filed a response, in which Ahuva Horowitz certified that, on the date of the service of the citation, Hydra did not have in its possession "any personal property or monies belonging to" defendant. Ahuva Horowitz is defendant's wife and the owner of Hydra. At her deposition, Ahuva testified that she was an owner of Hydra, although she did not know how or when it was first organized, who organized it, or whether it did anything or owned anything. She further testified that she had never done anything for Hydra. In his affidavit, defendant averred that Ahuva Horowitz was the sole owner.

¶ 10 On May 12, 2016, plaintiff filed a motion for rule to show cause and for turnover. Attached to its motion was an exhibit containing copies of six cancelled checks. Plaintiff stated in its motion that it had received these copies in an e-mail from Hydra's attorney on January 19, 2016, and plaintiff claimed that they established that defendant was "an authorized signer on Hydra's checking account" and "had signed numerous checks payable to himself."

¶ 11 The copies of the six checks show that they were all payable to "A. Horowitz"; were dated between September 17, 2015, and December 17, 2015; and totaled $5220. As noted above, an order of the court and defendant's deposition transcript indicate that he uses the first name "Avigdor," as well as the first name "Victor." Specifically, the checks were: (1) No. 2014, dated September 17, 2015, for $250; (2) No. 2019, dated October 19, 2015, for $300; (3) No. 2020, dated October 19, 2015, for $1820; (4) No. 2160, dated October 29, 2015, for $570; (5) No. 2162, dated November 13, 2015, for $1780; and (6) No. 2165, dated December 17, 2015, for $500. The copies indicate that the checks were all cashed on the same day that they were written and the signature, which is a series of illegible loops, appears to be the same signature on both the front and back of the checks. In its motion, plaintiff asked the court to order Hydra "to immediately turn over an amount which is not less than $5,220.000 [sic ]" to plaintiff.

¶ 12 In an order dated June 2, 2016, the trial court ordered defendant to file its response by June 30, 2016. Instead, defendant filed its response on July 1, 2016, one day late. The trial court subsequently denied defendant's motion to file its late response.

¶ 13 Although the trial court denied defendant's motion to file its late response, the response is in the appellate record, and one of the issues that Hydra raises on appeal is whether the trial court abused its discretion by not considering it. In its response, Hydra emphasized that "the checks at issue were all made payable to 'A. Horowitz,' " without specifying whether "A."-or the payee-was "Avigdor," defendant, or "Ahuva," his wife. Hydra did concede that the checks were all "negotiated" by defendant, and that it had produced the copies attached to plaintiff's motion. Hydra argued that these checks were "loans or gifts" to defendant, rather than his assets or income.

¶ 14 In its response, Hydra stated that Hydra's manager is Ahuva Horowitz, defendant's wife, and that she owns 100% of the membership interests of Hydra a limited liability corporation.

¶ 15 Similarly, in defendant's affidavit, attached to Hydra's response, defendant averred that Ahuva Horowitz is his wife, that she owns 100% of the membership interests of Hydra, and that he "negotiated" the six checks in question, which "were used to pay expenses related to the health and welfare of our children." Defendant's affidavit used the passive voice, stating that the monies "were used," and thus did not expressly state that he was the one who used the monies to pay the expenses. However, that fact is a reasonable inference, since he admits to being the one who cashed them to use for "our children." Defendant averred that, "[a]t no time between September 17 and December 17, 2015[,] did Hydra owe" him any money.

¶ 16 In his affidavit, defendant argued that, "if the Court rules that such payments were subject to Citation proceedings, then [he] assert[ed] the $4,000 exemption available to [him] pursuant to 735 [ILCS] 5/12-1001(b)." Section 5/12-1001(b) of the Code of Civil Procedure (Code) provides in relevant part that:

"The following personal property, owned by the debtor, is exempt from judgment, attachment, or distress for rent:
* * *
(b) The debtor's equity interest, not to exceed $4,000 in value, in any other property[.]" 735 ILCS 5/12-1001(b) (West 2016).

¶ 17 In addition, defendant averred that "Ashman Law Offices" had filed a prior lien against his assets on June 23, 2015. "Ashman & Stein" was the firm that represented plaintiff in the court below. As noted above, after trial in the underlying matter, the trial court had awarded plaintiff $153,746.25 in attorney fees. Xcel Supply , 2017 IL App (1st) 152277-U, ¶ 32.

¶ 18 On August 2, 2016, the trial court entered an order stating that it had held a "hearing on Motion for Turnover," heard arguments, and would shortly issue a ruling. The appellate record does not contain a transcript or bystander's report for either August 2, 2016, or August 22, 2016, the date when a ruling issued.

¶ 19 On August 22, 2016, the trial court entered an order, stating:

"This matter is before the Court on [plaintiff's] Motion for Rule to Show Cause and for Turnover against Third Party Citation Respondent Hydra Properties, LLC. Hydra allegedly repeatedly violated the Citation served upon it on August 28, 2015. [Plaintiff] requests turnover of $5,220.00, an amount paid to Judgment Debtor Avigdor Horowitz after service of the Citation to Hydra Properties. Hydra failed to respond to [plaintiff's] Motion within the time set by this Court for doing so. It is hereby ordered that:
A. [Plaintiff's] Motion for a Rule to Show Cause is granted.
B. The matter is set for hearing on Thursday, September 29 * * * regarding Hydra Properties, LLC's alleged violation of the Citation."

Thus, "[t]he matter" of Hydra's alleged citation violation was "set for hearing." On September 8, 2016, the trial court entered an order stating that, by agreement of the parties, "the hearing date is re-set to 10/13/16."

¶ 20 A week before the scheduled hearing, Hydra filed a "Motion to Reconsider or Clarify Order," in which it argued, among other things, that "[t]he Court's order does not indicate the nature of the hearing and what evidence will be required either on behalf of the movant or on behalf of [Hydra]. Nothing in the order suggests that [Hydra] will be limited in any way in further defending the petition for Rule to Show Cause and For Turnover."

¶ 21 On October 13, 2016, the trial court issued an order stating in full:

"This matter having come on for hearing pursuant to this court's 8/22/16 Order & Third Party Citation Respondent Hydra Properties' Motion to Reconsider or Clarify Order, the parties having appeared through counsel,
IT IS HEREBY ORDERED
1. Hydra's Motion is granted in part and denied in part.
2. The Order is clarified to require Hydra to turnover to plaintiff $5,220 within 30 days.
3. Hydra's Motion for Leave to File its 7/1/16 opposition instanter is denied.
4. The Court makes no finding of contempt.
5. Plaintiff shall file petition for attorneys' fees by 11/14/16.
6. Status is set for 11/15/16 at 10 a.m."

Although the order observed that the "matter" had "come on for hearing," the appellate record does not contain a transcript or bystander's report for this date or any other date in this case. The order directed Hydra to turnover $5220 to plaintiff within 30 days. Thirty days from the date of the order was Saturday, November 12, 2016.

¶ 22 On Monday, November 14, 2016, Hydra filed a notice of appeal appealing the trial court's orders dated August 22, 2016, and October 13, 2016. Hydra's brief to this court "conceded that Hydra issued checks totaling $5,220 to Horowitz." Earlier in its brief, Hydra stated that when it used "Horowitz," it meant "Defendant Victor Horowitz." Hydra thereby conceded that the payee of the checks, "A. Horowitz," was defendant. After Hydra filed its opening appellate brief on July 31, 2017, plaintiff filed a response on December 5, 2017, in which it stated that, in light of "the de minimus [sic] relief being sought by [Hydra], no opposition briefs will be filed in this matter." This appeal followed.

¶ 23 ANALYSIS

¶ 24 On this appeal, Hydra raises three claims: (1) that the trial court erred by failing to hold an evidentiary hearing, (2) that that the trial court's ruling has no evidentiary basis, and (3) that the trial court abused its discretion by not allowing Hydra to file its response late. For the following reasons, we do not find these claims persuasive and affirm.

¶ 25 I. Jurisdiction

¶ 26 On this appeal, Hydra also makes arguments in its brief as to why this court has jurisdiction. An appellate court always has an independent duty to consider its own jurisdiction and to dismiss an appeal if jurisdiction is lacking. Williams Montgomery & John Ltd. v. Broaddus , 2017 IL App (1st) 161063, ¶ 32, 2017 WL 4891376 (citing Archer Daniels Midland Co. v. Barth , 103 Ill.2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290 (1984) ); In re Marriage of Arjmand , 2017 IL App (2d) 160631, ¶ 17, 412 Ill.Dec. 217, 74 N.E.3d 1140 ; Eclipse Manufacturing Co. v. U.S. Compliance Co. , 381 Ill.App.3d 127, 131, 319 Ill.Dec. 586, 886 N.E.2d 349 (2007) (a reviewing court has a duty to consider sua sponte its jurisdiction and dismiss an appeal if jurisdiction is lacking). Thus, we review Hydra's arguments and find that we do have jurisdiction, for the reasons discussed below.

¶ 27 Hydra argues that this court has jurisdiction pursuant to Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016), which permits appeals from certain final judgments that do not dispose of an entire proceeding. Paragraph (a) specifies the types of judgments where an appeal may be taken if the trial court makes a special finding first. Ill. S.Ct. R. 304(a) (eff. Mar. 8, 2016). Paragraph (b) specifies the types of judgments for which no special finding is required for an appeal. Ill. S.Ct. R. 304(b) (eff. Mar. 8, 2016). Hydra argues that paragraph (b) applies, and specifically its subparagraph (4):

"(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
* * *
(4) A final judgment or order entered in a proceeding under section 21402 of the Code of Civil Procedure." Ill. S.Ct. R. 304(b)(4) (eff. Mar. 8, 2016).

¶ 28 Section 2-1402 of the Code provides in relevant part:

"A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment, a deduction order or garnishment, and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment. A supplementary proceeding shall be commenced by the service of a citation issued by the clerk." 735 ILCS 5/2-1402(a) (West 2016).

¶ 29 In the case at bar, plaintiff commenced a "supplementary proceeding" by serving a "citation" on Hydra, and the trial court issued an order to enforce "payment" of part of "the amount due under the judgment." 735 ILCS 5/2-1402(a) (West 2016). Thus, section 2-1402 of the Code ( 735 ILCS 5/2-1402 (West 2016) ) applies, as well as Illinois Supreme Court Rule 304(b)(4) (eff. Mar. 8, 2016) permitting an appeal. Williams Montgomery & John Ltd. , 2017 IL App (1st) 161063, ¶ 34 ("Citation orders entered in supplementary proceedings pursuant to section 2-1402 become final and appealable upon their entry.").

¶ 30 Illinois Supreme Court Rule 304(b) provides that: "The time in which a notice of appeal may be filed from a judgment or order appealable under this Rule 304(b) shall be as provided in Rule 303." Ill. S.Ct. R. 304(b) (eff. Mar. 8, 2016). Rule 303 provides, in relevant part, that "[t]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." Ill. S.Ct. R. 303(a)(1) (eff. Jan. 1, 2015). Thus, Hydra had 30 days from the October 13, 2016, order to file an appeal. Ill. S.Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

¶ 31 As noted above, 30 days from October 13, 2016, was Saturday, November 12, 2016, and Hydra filed its notice of appeal on Monday, November 14, 2016. Section 1.11 of the Statute on Statutes provides, in relevant part, that

"[t]he time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday * * * and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday * * * is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded." 5 ILCS 70/1.11 (West 2016). Thus, Saturday and Sunday, November 12 and 13, 2016, were excluded, and Hydra's notice of appeal was timely filed on Monday, November 14, 2016.

¶ 32 In addition, we have jurisdiction to review the August 22, 2016, order, since it was one of the steps in the procedural progression leading to the entry of the order on appeal. In re Marriage of O'Brien , 2011 IL 109039, ¶ 23, 354 Ill.Dec. 715, 958 N.E.2d 647 (a reviewing court has jurisdiction if the order was "a step in the procedural progression leading to the final judgment").

¶ 33 Thus, pursuant to the statutes and rules discussed above, we have jurisdiction to hear this appeal.

¶ 34 II. Evidentiary Hearing

¶ 35 Hydra's first claim is that the trial court erred by not holding an evidentiary hearing, as required by section 2-1402 ( 735 ILCS 5/2-1402 (West 2016) ) and Illinois Supreme Court Rule 277 (eff. Jan. 4, 2013).

¶ 36 Since Hydra argues about what section 2-1402 and Rule 277 require, this appeal requires us to interpret a statute and a rule and, thus, to apply the well-known principles of statutory interpretation. When interpreting a supreme court rule, we are governed by the same rules that govern statutory interpretation. A.M. Realty Western L.L.C. v. MSMC Realty, L.L.C. , 2016 IL App (1st) 151087, ¶ 73, 402 Ill.Dec. 681, 52 N.E.3d 602 (citing VC&M, Ltd. v. Andrews , 2013 IL 114445, ¶ 30, 372 Ill.Dec. 16, 991 N.E.2d 323 ("Court rules are interpreted under the same principles that guide our construction of statutes.") ).

¶ 37 The primary objective of statutory interpretation is to give effect to the legislature's intent, which is best indicated by the plain language of the statute itself. State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co. , 2014 IL 116844, ¶ 8, 386 Ill.Dec. 674, 21 N.E.3d 437 (citing Citizens Opposing Pollution v. ExxonMobil Coal U.S.A. , 2012 IL 111286, ¶ 23, 357 Ill.Dec. 55, 962 N.E.2d 956 ). Where the language is plain and unambiguous, we apply the statute without resort to further aids of statutory interpretation. In re Lance H. , 2014 IL 114899, ¶ 11, 388 Ill.Dec. 819, 25 N.E.3d 511.

¶ 38 Questions of statutory interpretation are reviewed de novo . People v. Schlosser , 2017 IL App (1st) 150355, ¶ 28, 415 Ill.Dec. 479, 82 N.E.3d 683 ; People v. Chatman , 2016 IL App (1st) 152395, ¶ 23, 408 Ill.Dec. 623, 66 N.E.3d 415. "De novo review means that we will perform the same analysis a trial court would perform." Trzop v. Hudson , 2015 IL App (1st) 150419, ¶ 63, 397 Ill.Dec. 851, 43 N.E.3d 178.

¶ 39 Section 2-1402(a) permits "a judgment creditor," such as the plaintiff in this case, "to prosecute supplementary proceedings" in order "to discover assets or income of the debtor" and to apply those "assets or income discovered toward the payment of the amount due under the judgment." 735 ILCS 5/2-1402(a) (West 2016). See also Workforce Solutions v. Urban Services of America, Inc. , 2012 IL App (1st) 111410, ¶ 39, 364 Ill.Dec. 778, 977 N.E.2d 267 ; Stonecrafters, Inc. v. Wholesale Life Insurance Brokerage, Inc. , 393 Ill.App.3d 951, 958, 333 Ill.Dec. 530, 915 N.E.2d 51 (2009). The proceedings may be commenced against "the judgment debtor or any other person" who may have information concerning income or assets belonging to the judgment debtor. 735 ILCS 5/2-1402(a), (b-10) (West 2016); Stonecrafters , 393 Ill.App.3d at 958, 333 Ill.Dec. 530, 915 N.E.2d 51 (the proceeding may be initiated "against a judgment debtor or a third party to discover the assets of a judgment debtor").

¶ 40 Section 2-1402 provides a court with broad powers, including the power to "[c]ompel any person cited * * * to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them." 735 ILCS 5/2-1402(c)(3) (West 2016). When a third party is named in a citation, he, she or it is referred to as "a third-party citation respondent." Workforce Solutions , 2012 IL App (1st) 111410, ¶ 39, 364 Ill.Dec. 778, 977 N.E.2d 267. In the instant appeal, for example, the third-party citation respondent is Hydra. When a third-party citation respondent, such as Hydra, is ordered "to deliver up" assets (735 ILCS 5/21402(c)(3) (West 2016) ), the order is called a turnover order. See Workforce Solutions , 2012 IL App (1st) 111410, ¶ 39, 364 Ill.Dec. 778, 977 N.E.2d 267.

¶ 41 The proceedings are "commenced by the service of a citation." 735 ILCS 5/2-1402(a) (West 2016). "The citation may prohibit the party to whom it is directed from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from the enforcement of a judgment therefrom * * * belonging to the judgment debtor or to which he or she may be entitled or which may thereafter be acquired by or become due to him or her * * * until the further order of the court or the termination of the proceedings, whichever occurs first." 735 ILCS 5/2-1402(f)(1) (West 2016). The citation, filed in this case by plaintiff, so advised Hydra. In addition, in the case at bar, the trial court entered "a conditional judgment in the amount of $468,021.87, * * * in favor of Xcel Supply, LLC and against Hydra Properties, LLC," on September 16, 2015, which was the day before Hydra wrote the first of the six checks in question.

¶ 42 The statute provides that "[t]he court may punish any party who violates the restraining provision of a citation" and "may enter judgment against him or her in the amount of the unpaid portion of the judgment and costs allowable under this Section, or in the amount of the value of the property transferred, whichever is lesser." 735 ILCS 5/2-1402(f)(1) (West 2016). In the case at bar, in its August 22, 2016, order, the trial court granted plaintiff's motion which the court described as claiming that Hydra "repeatedly violated the Citation served upon it on August 28, 2015." On October 13, 2016, the trial court entered judgment against Hydra "in the amount of the value of the property transferred" ( 735 ILCS 5/2-1402(f)(1) (West 2016) ), which was $5220 or the total of the six checks that Hydra paid to defendant.

¶ 43 Illinois Supreme Court Rule 277 is titled "Supplementary Proceeding," and it specifies how "[a] supplementary proceeding authorized by section 2-1402" is conducted. Ill. S.Ct. R. 277(a) (eff. Jan. 4, 2013); Workforce Solutions , 2012 IL App (1st) 111410, ¶ 41, 364 Ill.Dec. 778, 977 N.E.2d 267 (the "procedure for conducting supplementary proceedings is prescribed by Illinois Supreme Court Rule 277"). A subsection titled "Hearing" states in relevant part:

"The examination of the judgment debtor, third party or other witnesses shall be before the court, * * * unless the judgment creditor elects, by so indicating in the citation or subpoena or by requesting the court to so order, to conduct all or a part of the hearing by deposition as provided by the rules of this court for discovery depositions. The court at any time may * * * control and direct the proceeding to the end that the rights and interests of all parties and persons involved may be protected and harassment avoided." Ill. S.Ct. R. 277(e) (eff. Jan. 4, 2013).

¶ 44 Rule 277 also provides that "[a]ny interested party may subpoena witnesses and adduce evidence as upon the trial of any civil action." Ill. S.Ct. R. 277(e) (eff. Jan. 4, 2013). In the instant appeal, Hydra argues that this court has interpreted this language to require an evidentiary hearing, and cites in support Workforce Solutions , 2012 IL App (1st) 111410, ¶ 41, 364 Ill.Dec. 778, 977 N.E.2d 267.

¶ 45 However, in the supreme court case of Dowling v. Chicago Options Associates, Inc. , 226 Ill.2d 277, 314 Ill.Dec. 725, 875 N.E.2d 1012 (2007), a four-justice majority of the supreme court found that a trial court could decide a contested supplemental proceeding without an evidentiary hearing ( Dowling , 226 Ill.2d at 285, 314 Ill.Dec. 725, 875 N.E.2d 1012 ), while three justices believed that an evidentiary hearing was needed. ( Dowling , 226 Ill.2d at 302, 305, 314 Ill.Dec. 725, 875 N.E.2d 1012 (Freeman, J. concurring in part and dissenting in part, joined by Kilbride and Burke, JJ.) ). Wilson v. State Employees' Retirement System of Illinois , 336 Ill.App.3d 199, 205, 270 Ill.Dec. 299, 782 N.E.2d 858 (2002) (where an appellate court opinion conflicts with a supreme court opinion, we must decline to follow the intermediary court). The Workforce opinion attempts to distinguish Dowling by stating that, despite the requirement of a hearing, parties are still "free" to choose instead "to proceed by way of summary judgment motion or otherwise stipulate to the facts to allow the court to decide questions as a matter of law." Workforce , 2012 IL App (1st) 111410, ¶ 45, 364 Ill.Dec. 778, 977 N.E.2d 267. The problem with Workforce 's attempt to distinguish Dowling is that none of those events took place in Dowling . There is no mention of a summary judgment motion or a stipulation in Dowling . The Dowling opinion states only that the citation respondent "produced records" and "[o]ral argument was heard." Dowling , 226 Ill.2d at 283, 314 Ill.Dec. 725, 875 N.E.2d 1012. See also Urban Partnership Bank v. Winchester-Wolcott, LLC , 2014 IL App (1st) 133556, ¶ 8, 384 Ill.Dec. 189, 16 N.E.3d 285 (this court affirmed a turnover order that the trial court entered solely "in reliance on the parties' arguments and the record" and "without holding an evidentiary hearing"). Cf. In re Estate of Zagaria , 2013 IL App (1st) 122879, ¶¶ 24, 26, 375 Ill.Dec. 602, 997 N.E.2d 913 (an evidentiary hearing was not required for a turnover order in a supplemental proceeding under the Probate Act ( 755 ILCS 5/16-1 (West 2010) ) ).

¶ 46 Even if Workforce applies in general, it is not clear that it applies on the particular facts of our case.

¶ 47 In Workforce , this court observed that appellate courts have "interpreted this language" in Rule 277, which permits any party to subpoena witnesses and present evidence, "as imposing a requirement on the [trial] court to conduct a trial or evidentiary hearing to determine ownership of a third party's assets where both the judgment creditor and the third-party citation respondent claim entitlement to those assets." (Emphasis added.) Workforce Solutions , 2012 IL App (1st) 111410, ¶ 41, 364 Ill.Dec. 778, 977 N.E.2d 267 (listing and discussing cases); Harmon v. Ladar Corp. , 200 Ill.App.3d 79, 83, 146 Ill.Dec. 110, 557 N.E.2d 1297 (1990) ("[o]rdinarily" a hearing or trial is required).

¶ 48 As noted, it is unclear whether this requirement applies in this case. First, in this case, the third party-in essence, the wife-is not claiming she is entitled to have back those assets spent by her husband on their children. This is not a tug-of-war between the judgment creditor on the one hand and the third-party citation respondent, on the other, as envisioned by the Workforce opinion. This is a contest between the judgment creditor on one hand and a completely united husband and wife, debtor and respondent, on the other. In other words, does the evidentiary hearing requirement apply when the citation respondent is not really a "third party"? Thus, to the extent that a third-party citation respondent has a court-imposed right to an evidentiary hearing, it is unclear whether this requirement applies on the unusual facts of this case, where the third-party citation respondent and the judgment debtor present one united, marital front.

¶ 49 Hydra cites one case involving a husband and wife, in which the appellate court held that the wife should have been allowed "to put in her proofs" at the evidentiary hearing as her attorney had requested. Roy Strom Excavating & Grading Co. v. National Bank of Albany Park , 4 Ill.App.3d 561, 565-66, 281 N.E.2d 427 (1972). However in that case, the wife of the judgment debtor, who was also the third-party citation respondent, filed an answer stating that she and the judgment debtor had not resided together as husband and wife for several years and that the transfer of property to her was made in contemplation of divorce and was the result of the property settlement between her and husband. Roy Strom , 4 Ill.App.3d at 566, 281 N.E.2d 427. Those facts are so diametrically opposed to the facts in our case that Hydra's citation to Roy Strom weakens its argument rather than strengthens it.

¶ 50 Second, the instant case concerns the violation of a citation and the punishment for violating that citation. By contrast, in Workforce , there was no violation. Thus, it is unclear if an evidentiary hearing or trial is also required for a citation violation, where the parties have submitted briefs, affidavits, deposition transcripts, and other documentary exhibits.

¶ 51 However, whether or not an evidentiary hearing was required, Hydra has failed in its burden as an appellant to present a sufficient record from which we could conclude that it lacked the opportunity-as in Roy Strom -"to put in [his] proofs" at a hearing. Roy Strom , 4 Ill.App.3d at 565, 281 N.E.2d 427.

¶ 52 "It is the appellant's burden to provide a sufficiently complete record to support his or her claims." People v. Stephens , 2017 IL App (1st) 151631, ¶ 10 n.3, 2017 WL 6418035. When an appellant fails to provide a transcript or bystander's report for the proceedings at issue, we will generally presume that the resulting order was properly entered. See generally Foutch v. O'Bryant , 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984).

¶ 53 In Roy Strom , the appellate court observed that, initially, its record did not contain any transcripts and, thus, there was "some question" about what had occurred. Roy Strom , 4 Ill.App.3d at 564, 281 N.E.2d 427. However, the appellant sought leave to file transcripts, which the appellate court granted over the appellee's objection, so that by the time the appellate court ruled, it had "true and correct transcripts of all proceedings" on the relevant dates. Roy Strom , 4 Ill.App.3d at 564, 281 N.E.2d 427. As a result, the appellate court found that "at the present time we have a record before us which is sufficient to determine whether" the citation respondent "received the trial or hearing to which she was entitled." Roy Strom , 4 Ill.App.3d at 564, 281 N.E.2d 427.

¶ 54 In contrast to Roy Strom , the appellate record in the case at bar contains no transcripts. Thus, we do not know whether the trial court received evidence or made factual findings at the hearing that it stated repeatedly that it was holding. Hydra's "Motion to Reconsider or Clarify Order," filed a week before the hearing, stated: "The Court's order does not indicate the nature of the hearing and what evidence will be required either on behalf of the movant or on behalf of [Hydra]. Nothing in the order suggests that [Hydra] will be limited in any way in further defending the petition for Rule to Show Cause and For Turnover." We have no reason to doubt Hydra's contemporaneous assertion that it was not "limited in any way" in what it could present at the hearing. Thus, we cannot conclude that Hydra was denied a hearing at which to present its proofs. Urban Partnership , 2014 IL App (1st) 133556, ¶ 8, 384 Ill.Dec. 189, 16 N.E.3d 285 (where "the parties have not included a transcript of the hearing," this court may affirm a turnover order "on any ground that appears in the record").

¶ 55 III. Evidentiary Basis

¶ 56 Hydra's next claim is that the trial court's turnover order lacked any evidentiary basis, and that our standard of review for this claim is de novo .

¶ 57 Where a trial court relies solely on the parties' oral argument and the record, without conducting an evidentiary hearing or making any findings of fact, a reviewing court will employ a de novo standard of review. Eclipse Manufacturing Co. , 381 Ill.App. 3d at 134, 319 Ill.Dec. 586, 886 N.E.2d 349 (citing Dowling , 226 Ill.2d at 285, 314 Ill.Dec. 725, 875 N.E.2d 1012 ). See also Urban Partnership , 2014 IL App (1st) 133556, ¶ 8, 384 Ill.Dec. 189, 16 N.E.3d 285 ("where a trial court enters a turnover order in reliance on the parties' arguments and the record without holding an evidentiary hearing or making findings of fact, our review is de novo "). Thus, for example, in Eclipse , where the turnover order "did not require factual findings or credibility determinations," the reviewing court employed a de novo standard of review. Eclipse Manufacturing Co. , 381 Ill.App. 3d at 134, 319 Ill.Dec. 586, 886 N.E.2d 349. " 'De novo review means that we will perform the same analysis a trial court would perform.' " Horlacher v. Cohen , 2017 IL App (1st) 162712, ¶ 47, 2017 WL 6559632 (quoting Trzop , 2015 IL App (1st) 150419, ¶ 63, 397 Ill.Dec. 851, 43 N.E.3d 178 ).

¶ 58 Hydra's argument that we should employ a de novo standard of review because there was no evidentiary hearing-after it failed to supply us with a transcript or report of that hearing-is like the proverbial orphan who throws him or herself on the mercy of the court after murdering his or her parents.

¶ 59 However, whether we employed a de novo standard of review or a more deferential standard, our result would be the same.

¶ 60 Hydra claims that there was no "evidentiary support demonstrating that those checks constituted property" of defendant, although defendant conceded in his affidavit that he cashed the checks and spent the money. If defendant is the one pocketing a check, without any protest from either Hydra or his wife, Hydra's owner, that is strong evidence that it was his property to dispose of, as he saw fit.

¶ 61 Hydra argues that he spent the money from the cashed checks on family expenses and, since his wife had an obligation as a parent to support their children, this money was spent on her behalf. Obviously, as the father, he was just as responsible for their children's expenses. Therefore, the money was spent just as much to satisfy his obligation as hers. This argument does not negate the fact that these checks were his property. If anything, it supports it.

¶ 62 IV. Hydra's Response

¶ 63 Hydra's final claim is that the trial court abused its discretion by not considering Hydra's response. On this appeal, we have fully considered Hydra's response and find that it would not have changed the outcome of the issue on appeal, namely, whether the six checks were defendant's property. As we stated above we fail to see how this response, which included defendant's affidavit that he received and cashed the checks in question, would have undermined the finding that they were his property. As a result, we cannot find that the trial court abused its discretion by not permitting Hydra to file it. Urban Partnership , 2014 IL App (1st) 133556, ¶ 15, 384 Ill.Dec. 189, 16 N.E.3d 285 (where the surreply would not haved "change[d] the outcome," this court "reject [ed]" the "contention that the trial court abused its discretion in denying leave to file" it).

¶ 64 CONCLUSION

¶ 65 On this appeal, Hydra raised three claims: (1) that the trial court erred by failing to hold an evidentiary hearing, (2) that that the trial court's ruling has no evidentiary basis, and (3) that the trial court abused its discretion by not allowing Hydra to file its response late. For the foregoing reasons, we do not find these claims persuasive and affirm.

¶ 66 Affirmed.

Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.

      In its brief to this court, Hydra conceded that it wrote the checks to defendant. See infra ¶ 22.

      The August 22, 2016, order, which was one of the two orders that Hydra is appealing, states that plaintiff "requests turnover of $5,220.00, an amount paid to Judgment Debtor Avigdor Horowitz after service of the Citation to Hydra Properties."

      The record before us does not start until the end of November 2015. As a result, the facts before then are taken from our prior order in the underlying case or from documents filed as exhibits to subsequently filed motions.

      In its appellate brief, Hydra states that "[t]he facts relevant to the instant appeal are set forth" in plaintiff's May 12, 2016, turnover motion. The fact that Hydra failed to appear is taken from that motion.

      Hydra later conceded on appeal that the checks were written to defendant. Supra ¶22.

      Hydra does not make a claim in its appellate brief that the trial court erred because $4000 was exempt (infra ¶16) or because the Ashman Law Offices had a prior claim. Thus, these issues are not before us.

      As already noted above, defendant uses a first name of both "Victor" and "Avigdor."