text:
    Rita HUSSEY, Plaintiff-Appellant, v. CHASE MANOR CONDOMINIUM ASSOCIATION and Connected Property Management, LLC, Defendants-Appellees,
    No. 1-17-0437
    Appellate Court of Illinois, First District, FOURTH DIVISION.
    June 14, 2018
    Evan M. Smola, of Hurley McKenna & Mertz P.C., of Chicago, for appellant.
    Ellen J. O'Rourke and Craig D. Lederer, of Bruce Farrel Dorn & Associates, of Chicago, for appellees.
   JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 The question is whether an informal pathway behind a condominium building, through and beyond a parking area to the rear entrance of the building, is a "sidewalk" under the Snow and Ice Removal Act's immunity provision for the removal of snow or ice from a "sidewalk." See 745 ILCS 75/2 (West 2012). We hold that it is not a sidewalk. We read the term "sidewalk" as limited to the municipal right-of-way, the part of the public street reserved for pedestrian use that abuts private residential property. We reverse the grant of summary judgment for defendants and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 Plaintiff Rita Hussey slipped and fell on a patch of ice in the rear of her condominium building in Chicago. She sued the condo association, Chase Manor Condominium Association (Chase Manor), and the property-management company. Depending on how you interpret plaintiff's theory of recovery (a subject of dispute), plaintiff blames her fall on either negligent snow removal that created an unnatural, icy surface; a defect in the property-a slope in the pavement-that allowed an unnatural icy surface to form; or both.

¶ 4 The rear of the building, where the accident occurred, looks not very different from a standard alley in Chicago. There is a rear entrance to the condo building, which accesses some of the units but also the building's laundry room, basement, and utility room. Otherwise, the principal function of that rear area is to allow for the condo owners in the 14-unit building to park their cars.

¶ 5 The parking spaces, so to speak, are delineated by concrete parking blocks. Presumably due to space constraints, the cars do not all park in the same direction. Some parallel-park against the rear wall of the building (facing east-west). Others park perpendicular, in a north-south direction. Obviously, there is a middle space between the parallel-parked cars and the north-south parked cars-a space at least wide enough for a vehicle to travel to and from the various parking spaces.

¶ 6 That middle space is also wide enough, of course, for people to walk through. And unit owners sometimes did walk through that middle space, either to reach their cars or to access the building's rear entrance to do laundry or reach the basement. For some of the unit owners, including plaintiff, the easiest way to access the laundry facilities was not to travel within the interior of the building but to walk outside, around to the back, through that parking area, to the rear entrance.

¶ 7 That middle space, between the cars parked parallel to the rear wall and the north-south parking spaces, is where plaintiff slipped and fell while walking to the laundry room. The condo association president referred to that area as a "driveway" in his deposition, as cars obviously drive through that area to and from their respective parking spaces. The person who shoveled the snow, who once lived in that building, considered this area part of the "parking lot." Plaintiff also calls it a "parking lot." So do defendants, though they hasten to add that it was a "parking lot" that was "used as a pathway" or a "walkway" or even a "common-area walkway" for residents to walk to the rear entrance. Indeed, plaintiff herself testified in her deposition that she was using that area as a "pathway" to the laundry room when she slipped and fell.

¶ 8 Whatever characterization may be used, it is undisputed that this area where the accident happened was part of the condo building's private parking area and an area sometimes used by unit owners as a walking path to the rear entrance. So without placing too much emphasis on the precise terminology, for ease of reference, we will refer to it as defendants prefer, as the "parking-lot pathway."

¶ 9 In that area behind the building, there is a slope from the edge of the building down across the parking-lot pathway and onto the flat surface where the north-south cars park. A day or two before March 15, 2014, after a heavy snowfall, the condo association directed the man they hired for snow removal to plow the snow in the rear of the building. He piled the snow up against the wall of the building. Plaintiff estimated that the pile of snow was about 5½ feet high. Given the downward slope of the rear area, this pile of snow against the building's wall was uphill of the parking-lot pathway.

¶ 10 On March 15, plaintiff was walking through the parking-lot pathway to use the laundry room through the rear entrance. She slipped on a patch of ice near one of the parking blocks next to the building. She broke her ankle and required two surgeries.

¶ 11 Plaintiff filed what ended up as a three-count complaint. She alleged negligence against Chase Manor and the management company and added a count against Chase Manor for the alleged negligence of its agent, Jason Jackson, the man Chase Manor hired to shovel the snow.

¶ 12 Plaintiff's theory, argued and supported by an expert's affidavit, is that the snow pile melted when the temperatures warmed; following gravity's course, the melted snow travelled downhill onto the parking-lot pathway; the temperatures dropped again, causing the water to refreeze; and thus ice formed on the parking-lot pathway.

¶ 13 Defendants moved for summary judgment, arguing that the Snow and Ice Removal Act provided them immunity for "remov[ing] or attempt[ing] to remove snow or ice from sidewalks abutting the property." 745 ILCS 75/2 (West 2012). The trial court agreed with defendants that the parking-lot pathway was a "sidewalk" within the Act's meaning, entered summary judgment for defendants, and denied a motion for reconsideration.

¶ 14 ANALYSIS

¶ 15 I

¶ 16 Summary judgment is proper when the record reveals no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012); Mashal v. City of Chicago , 2012 IL 112341, ¶ 49, 367 Ill.Dec. 223, 981 N.E.2d 951. The moving party's right to summary judgment must be clear and free from doubt. Id. We review de novo the trial court's grant of a motion for summary judgment, as well as legal questions such as the construction of a statute. Murphy-Hylton v. Lieberman Management Services, Inc. , 2016 IL 120394, ¶ 16, 410 Ill.Dec. 937, 72 N.E.3d 323.

¶ 17 This case concerns the application of the Snow and Ice Removal Act. The Act is in derogation of the common law-it immunizes certain conduct that, at the common law, would have subjected a defendant to liability. Id. ¶ 29. So before we decide what the Act immunizes and what it does not, we briefly review the common law as it existed before the Act, much as our supreme court recently did in Murphy-Hylton . See id. ¶¶ 19 -23.

¶ 18 It was historically true at the common law that owners or possessors of land owed no duty to remove natural accumulations of snow and ice from their property. Id. ¶ 19. The reason is that Illinois can have harsh, unpredictable, and rapidly-changing winter weather, and it would thus be unreasonable to hold landowners to a duty of immediate and effective removal of snow and ice. Id. ; see Tzakis v. Dominick's Finer Foods, Inc. , 356 Ill. App. 3d 740, 748, 292 Ill.Dec. 551, 826 N.E.2d 987 (2005).

¶ 19 But unnatural accumulations of snow and ice were another story. Owners and possessors of land historically did owe a duty to prevent unnatural accumulations of snow and ice, provided they had notice of the dangerous condition. Murphy-Hylton , 2016 IL 120394, ¶ 20, 410 Ill.Dec. 937, 72 N.E.3d 323. That is, a defendant could be liable if the snow or ice accumulated " 'by artificial causes,' " in an " 'unnatural way,' " or " 'by defendant's own use of the area * * * and creation of the condition.' " Id. (quoting Fitzsimons v. National Tea Co. , 29 Ill. App. 2d 306, 318, 173 N.E.2d 534 (1961) ).

¶ 20 Generally speaking, liability for unnatural accumulations of snow or ice broke down into one of two theories of recovery. One of them was liability for a "defective condition" on the property, often stated as a defendant's "negligent maintenance" of the property for allowing that condition to exist. Id. ¶ 21. For example, certain building defects, such as improper gutters or an improperly pitched roof, could cause an unnatural accumulation of ice. See McLean v. Rockford Country Club , 352 Ill. App. 3d 229, 238, 287 Ill.Dec. 641, 816 N.E.2d 403 (2004) ; Murphy-Hylton , 2016 IL 120394, ¶ 22, 410 Ill.Dec. 937, 72 N.E.3d 323 (citing McLean for this proposition).

¶ 21 The other theory of liability for the unnatural accumulation of snow or ice was the voluntary-undertaking theory, premised on the idea that owners or possessors of land who voluntarily undertake to remove natural accumulations of snow and ice must do so reasonably; if they do so negligently, they are liable for any resulting unnatural accumulation of that snow or ice. Murphy-Hylton , 2016 IL 120394, ¶ 22, 410 Ill.Dec. 937, 72 N.E.3d 323. One example, appropriate to our case, is the owner or possessor of the land piling snow in one area of a parking lot, whereupon it melts, spreads across the lot, and re-freezes, thus causing an unnatural sheet of ice across portions of the lot. See Fitzsimons , 29 Ill. App. 2d at 314, 173 N.E.2d 534 ; Murphy-Hylton , 2016 IL 120394, ¶ 22, 410 Ill.Dec. 937, 72 N.E.3d 323 (citing Fitzsimons as example of voluntary-undertaking case).

¶ 22 The Snow and Ice Removal Act was passed in 1979 (see Pub. Act 81-591 (eff. Sept. 14, 1979) ) and provided the following immunity:

"Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton." (Emphasis added.) 745 ILCS 75/2 (West 2012).

¶ 23 The supreme court recently addressed a question that had divided the appellate courts: While the Act clearly immunized landowners who voluntarily undertook to "remove snow or ice" (id. ), did the Act also immunize landowners for defective conditions on the property that caused unnatural accumulations of snow?

¶ 24 In Murphy-Hylton , 2016 IL 120394, ¶ 29, 410 Ill.Dec. 937, 72 N.E.3d 323, the supreme court held that the Act did not abrogate common-law claims of a defective condition on the property that causes an unnatural accumulation of snow or ice. The supreme court emphasized that statutes in derogation of the common law must be strictly construed so as not to inadvertently abrogate existing common-law causes of action. Id. Thus, while the Act clearly abrogated the common-law claim of voluntary undertaking, the Act did not contain language that clearly abrogated the property-defect claim of the common law, and the supreme court would not read such language into it. Id.

¶ 25 "In keeping with our rules of statutory construction," the court wrote, "we cannot construe a statute that is in derogation of the common law 'beyond what the words of the statute express[ ] or beyond what is necessarily implied from what is expressed.' " Id. (quoting Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 69, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004) ). A statute repealing common-law claims should be limited to its " 'express language, in order to effect the least-rather than the most-change in the common law.' " Id. (quoting Adams , 211 Ill. 2d at 69-70, 284 Ill.Dec. 302, 809 N.E.2d 1248 ). A broad reading would have the effect of repealing common-law claims by implication, which Illinois disfavors. Id.

¶ 26 Though the direct holding of Murphy-Hylton does not govern this case, this recent decision serves as a cautionary note about an overly broad interpretation of the Act. With that in mind, we turn to our question.

¶ 27 II

¶ 28 The question is what section 2 of the Act means when it immunizes snow-removal efforts on "sidewalks abutting the property" of a residential landowner. 745 ILCS 75/2 (West 2012).

¶ 29 The parties cite five appellate decisions that have addressed whether a certain piece of property was a "sidewalk" under the Act. Three of them involved paved walkways on private property leading to a residence, while two of them concerned private driveways. All of them, in various ways, are analogous to the facts before us. We will start with the "driveway" cases.

¶ 30 A

¶ 31 Defendant cites a decision from the First District of our appellate court, on which the trial court also relied, that held that a driveway constituted a "sidewalk" under the Act. In Flight v. American Community Management, Inc. , 384 Ill. App. 3d 540, 541, 323 Ill.Dec. 271, 893 N.E.2d 285 (2008), the plaintiff slipped and fell on ice while walking on the driveway to his condominium unit. The trial court granted summary judgment to the defendants based on the Act, ruling that the driveway was a "sidewalk" because the plaintiff was walking on it when he fell. The appellate court affirmed on a different basis-namely, that there was nothing in the record showing any unnatural accumulation of ice on the driveway surface on which plaintiff allegedly fell. Id. at 544-45, 323 Ill.Dec. 271, 893 N.E.2d 285. Because there was no common-law duty to remove natural accumulations of snow or ice and the record did not support an inference that the ice there was anything but natural, summary judgment was proper on that alternative ground. Id.

¶ 32 Given this conclusion, the court chose to "address only briefly plaintiff's contention that the Act was improperly applied." Id. at 544, 323 Ill.Dec. 271, 893 N.E.2d 285. In doing so, the court held that, because the plaintiff was walking on the driveway toward his unit, the driveway "was sufficiently akin to a sidewalk such that the application of the Act was proper." Id. at 545, 323 Ill.Dec. 271, 893 N.E.2d 285. The court then wrote that it "need not reach plaintiff's related contention that the Act is in derogation of the common law." Id.

¶ 33 Later, a decision of the Second District of this court reached the opposite conclusion and criticized the holding in Flight . In Gallagher v. Union Square Condominium Homeowner's Ass'n , 397 Ill. App. 3d 1037, 337 Ill.Dec. 624, 922 N.E.2d 1201 (2010), the court held that a condominium driveway was not a "sidewalk" within the meaning of the Act. There, the condo association's contractor had "plowed a single, narrow path up the middle of plaintiff's driveway, causing the unnatural formation of a snow mound in front of plaintiff's garage door, which impeded plaintiff's access to the garage by foot or car." Id. at 1039, 337 Ill.Dec. 624, 922 N.E.2d 1201. It also caused unnatural snow mounds on each side of the path, as well as the unnatural formation of a sheet of ice, obscured by freshly fallen snow. Id. Unable to park his vehicle in the garage, the plaintiff parked on the street and walked along the narrow, shoveled path toward the garage, at which point he slipped and fell, sustaining injuries. Id.

¶ 34 The appellate court held that the Act did not immunize the removal of snow on driveways. Id. at 1042, 337 Ill.Dec. 624, 922 N.E.2d 1201. A "sidewalk," it reasoned, is "generally understood to be a 'walk for foot passengers usu[ally] at the side of a street or roadway; a foot pavement.' " Id. (quoting Webster's Third New International Dictionary 2113 (1986) ). But a driveway "is commonly understood to be a surface on which one drives motor vehicles from a street to a private building-'a private road giving access from a public thoroughfare to a building or buildings on abutting grounds.' " Id. (quoting Webster's Third New International Dictionary 692 (1986) ).

¶ 35 The court criticized the Flight decision, writing that Flight did not engage in a strict construction of the Act, as required for statutes in derogation of the common law. Id. at 1045, 337 Ill.Dec. 624, 922 N.E.2d 1201. Indeed, the court complained, the court in Flight "did not engage in any statutory interpretation, apply any of the well-recognized principles of statutory construction, or examine the plain language of the Act." Id. The court also criticized Flight 's reasoning that the driveway there was "sufficiently akin" to a sidewalk because the plaintiff had been walking on it when he fell; by that rationale, "we would be forced to consider any paved surface on which a plaintiff might walk, whether on a regular basis or only once, a sidewalk under the Act." Id. at 1046, 337 Ill.Dec. 624, 922 N.E.2d 1201.

¶ 36 Gallagher provides the more comprehensive and proper analysis. Flight , by its own admission, only "briefly" addressed the statutory question ( Flight , 384 Ill. App. 3d at 544, 323 Ill.Dec. 271, 893 N.E.2d 285 ), did not include that statutory analysis in the summary of its holding at the end because it was unnecessary to its holding ( id. at 545, 323 Ill.Dec. 271, 893 N.E.2d 285 ), and explicitly did not reach the argument that the statute, in derogation of the common law, should be narrowly construed ( id. )-which should have been an indispensable part of any statutory analysis of the Act. See Murphy-Hylton , 2016 IL 120394, ¶ 29, 410 Ill.Dec. 937, 72 N.E.3d 323. As Gallagher held, reading the term "sidewalk" as including the term "driveway" would be a liberal, not strict, construction of a statute in derogation of the common law.

¶ 37 Of course, we are not dealing here with a driveway. The parties agree that the area where the accident occurred was part of the parking area. A parking area, that is, through which unit owners routinely walked to reach the rear entrance of the building, as plaintiff was doing. Does that additional fact make a difference?

¶ 38 We don't see how it could. People walk in every parking lot. Sometimes by necessity-to get from their parked car to their destination. And sometimes by choice-because it is the most direct route from one point to another, even if no car is involved at all (as here, with plaintiff). It is impossible to completely separate walking on foot from a parking lot. If the mere fact that people walked through this parking area made it a "sidewalk," then every residential parking lot in the state of Illinois would be a "sidewalk."

¶ 39 That would be a dubious proposition in and of itself. Just as driveways are predominantly defined by vehicular travel (see Gallagher , 397 Ill. App. 3d at 1042, 337 Ill.Dec. 624, 922 N.E.2d 1201 ), so too are parking areas understood as involving a vehicle-for without one, there is nothing to "park."

¶ 40 But consider further our mandate to narrowly construe statutes in derogation of the common law. Murphy-Hylton , 2016 IL 120394, ¶ 29, 410 Ill.Dec. 937, 72 N.E.3d 323. The result becomes clearer still. If we read the phrase "parking lot" into "sidewalk," we would be engaging in a liberal, not strict construction of the words. Without the General Assembly having ever mentioned the phrase "parking lot"-which it easily could have done-we would be eliminating a common-law remedy for negligent snow removal in parking lots by implication, which is disfavored. See id. We would be doing exactly what Murphy-Hylton directs us not to do: expanding immunity under the statute beyond the express language of the statute and effecting the most-rather than the least-change in the law. Id. ; see Adams , 211 Ill. 2d at 69-70, 284 Ill.Dec. 302, 809 N.E.2d 1248.

¶ 41 We cannot read the word "sidewalk" under the Act as including a condo building's parking lot.

¶ 42 B

¶ 43 Defendants insist that the Second District's decision in Gallagher is distinguishable. They argue that three earlier appellate decisions interpreted the word "sidewalk" under the Act under circumstances more analogous to this case-involving private walkways leading from a parking lot or driveway to the entrance of a residence. That, to be fair, is a reasonable description of the property in question here. So we next consider these three cases cited by defendant and the trial court.

¶ 44 In Yu v. Kobayashi , 281 Ill. App. 3d 489, 493, 217 Ill.Dec. 313, 667 N.E.2d 106 (1996), the court held that a paved area leading from an apartment building to the parking lot, including the stoop on which plaintiff slipped and fell, was a "sidewalk" under the Act. The complaint in that case, at times, referred to the walkway between the parking lot and front entrance as a "sidewalk." Id. at 491-92, 217 Ill.Dec. 313, 667 N.E.2d 106. The predominant dispute between the parties was not whether the walkway, as a whole, was a "sidewalk," but whether the stoop-the front porch where plaintiff slipped-was part of that same walkway. The trial court ruled that, "whether [plaintiff] fell on the stoop or the paved area between the stoop and the parking lot, she fell on the 'sidewalk.' " Id. at 493, 217 Ill.Dec. 313, 667 N.E.2d 106.

¶ 45 The appellate court agreed, reasoning as follows:

"Not only does count IV of the amended complaint itself specifically allege that the accident took place on an improperly plowed sidewalk, but we believe it is undeniable that the scene of the accident was a 'sidewalk' as the Act employs that term. As defendants argue, common sense dictates that, if part of the paved area between the stoop and the parking lot is the sidewalk, all of the paved strip is the sidewalk. Any distinction here between the stoop and the rest of the sidewalk is arbitrary. They are parts of the same continuous walkway. Pedestrians traverse both in quick succession to get from the building to the parking lot or vice-versa. Also, both are made of the same material and the difference in elevation is slight. Together, they form a paved path set aside primarily for pedestrians. Even if the path is not a 'sidewalk' in the traditional sense of a paved area that is part of a municipal street (see City of Elmhurst v. Buettgen , 394 Ill. 248, 252-53 [68 N.E.2d 278] (1946) ), it is sufficiently akin to a traditional sidewalk that to classify it otherwise would be unreasonable." Yu , 281 Ill. App. 3d at 493, 217 Ill.Dec. 313, 667 N.E.2d 106.

¶ 46 This court next had occasion to determine the meaning of a "sidewalk abutting the property" of a residential landowner in Kurczak v. Cornwell , 359 Ill. App. 3d 1051, 296 Ill.Dec. 418, 835 N.E.2d 452 (2005). The plaintiff was injured when he slipped and fell on a paved walkway leading from the driveway to the front porch of the defendant's residence. Id. at 1052, 296 Ill.Dec. 418, 835 N.E.2d 452. The plaintiff argued that the walkway (1) was not a "sidewalk" and (2) did not "abut the property." Id. at 1056, 296 Ill.Dec. 418, 835 N.E.2d 452. This court rejected both arguments, relying in part on the Yu decision.

¶ 47 The court noted that Webster's Dictionary defined "sidewalk" as " 'a walk for foot passengers usu[ally] at the side of a street or roadway: a foot pavement.' " Id. at 1057, 296 Ill.Dec. 418, 835 N.E.2d 452 (quoting Webster's Third New International Dictionary 2113 (1986) ). The court reasoned that the word "sidewalk" encompassed all of the "foot pavements" leading to and from the residence. Id. The court rejected the plaintiff's contention that the word "sidewalk" as used in the Act included only public sidewalks: "Absent a distinction drawn by the legislature that limits the term 'sidewalk' to only public or municipal sidewalks, we must afford 'sidewalk' its plain and ordinary meaning." Id.

¶ 48 The court also rejected the plaintiff's argument that the paved walkway did not "abut" defendant's property because it was located within , rather than at the border of, the property. Id. at 1058, 296 Ill.Dec. 418, 835 N.E.2d 452. The court noted that, while section 2's immunity provision referenced " 'sidewalks abutting the property ,' " section 1 of the Act-the statement of legislative intent-discussed encouraging residents to clear snow and ice from the " 'sidewalks abutting their residences .' " (Emphases in original.) Id. at 1058-59, 296 Ill.Dec. 418, 835 N.E.2d 452 (quoting 745 ILCS 75/1, 2 (West 2000) ). The court noted that "[a] residence is a 'house or other fixed abode.' " Id. at 1059, 296 Ill.Dec. 418, 835 N.E.2d 452 (quoting Black's Law Dictionary 1310 (7th. ed. 1999) ). Reading the two sections together, the court decided that " 'property' encompasses both the residence and the surrounding land." Id. It followed that "the Act applies to any 'sidewalk' that 'abuts' a 'residence' or 'property,' not just a sidewalk that borders the property." Id. Thus, the court concluded, "the paved walkway at issue [was] a 'sidewalk abutting the property' " within the meaning of the Act. Id.

¶ 49 Finally, in Bremer v. Leisure Acres-Phase II Housing Corp. , 363 Ill. App. 3d 581, 299 Ill.Dec. 799, 842 N.E.2d 1151 (2006), the plaintiff slipped and fell on ice as she was walking on a concrete walkway that was entirely within the property lines of the apartment complex and which connected her apartment to the defendants' parking lot. Id. at 582, 299 Ill.Dec. 799, 842 N.E.2d 1151. The court cited the same dictionary definition of "sidewalk" that was cited by the court in Kurczak . Id. at 584, 299 Ill.Dec. 799, 842 N.E.2d 1151. Citing Yu , the court reasoned:

"The walkway in this case is a path that leads from the parking lot to the residence. It is a concrete walk for foot passengers. It is, in ordinary terms, a sidewalk. [Citation.] Absent a clear distinction that limits the term 'sidewalk,' we must afford the word its plain and ordinary meaning." Id.

¶ 50 The court also agreed with Kurczak that the word "abutting" did not mean that the sidewalk had to touch only the border of the residential property. Id. at 584-85, 299 Ill.Dec. 799, 842 N.E.2d 1151. Employing the same analysis as in Kurczak , the court reasoned that the Act's statement of legislative intent in section 1, which encouraged landowners to remove snow from sidewalks " 'abutting their residences,' " had to be harmonized with the language in section 2 that immunized snow shoveling on "sidewalks 'abutting the property' " of residential landowners. (Emphases omitted.) Id. (quoting 745 ILCS 75/1, 2 (West 2002) ). Reading them together, section 1's reference to "residences" modified section 2's reference to "property," and thus, any walkway that touched the border of the property, or the house itself, was a "sidewalk abutting the property" of a residential landowner under the Act. Id.

¶ 51 These three cases, together, stand for the proposition that the Act provides immunity for the removal of snow or ice on any private walkway on residential property that either touches the border of the property or that touches the house on the property.

¶ 52 We cannot reconcile this line of case law with the more recent appellate decision in Gallagher or, more importantly, with the even more recent supreme court decision in Murphy-Hylton . We reach this conclusion for several reasons.

¶ 53 First, none of these three cases even mentioned what is probably the most important aspect of any analysis of a statute that is in derogation of the common law-the need to interpret it strictly, to avoid eliminating by implication a body of common-law claims. Murphy-Hylton , 2016 IL 120394, ¶ 29, 410 Ill.Dec. 937, 72 N.E.3d 323 ; Gallagher , 397 Ill. App. 3d at 1043, 337 Ill.Dec. 624, 922 N.E.2d 1201. None of these cases cited that principle or mentioned the fact that the more liberally they interpreted the immunity provision, the more common-law claims they foreclosed by judicial implication.

¶ 54 None of them applied that principle of strict construction, either. If anything, these courts gave an expansive definition to the term "sidewalk." The court in Yu , 281 Ill. App. 3d at 493, 217 Ill.Dec. 313, 667 N.E.2d 106, as discussed, devoted most of its analysis to whether the front porch (where the plaintiff fell) was part of the same path as the concrete walkway leading to the parking lot, presupposing that the walkway was a "sidewalk" in doing so. It was only at the end of the discussion that the court added, without any analysis: "Even if the path is not a 'sidewalk' in the traditional sense of a paved area that is part of a municipal street (see City of Elmhurst v. Buettgen , 394 Ill. 248, 252-53 [68 N.E.2d 278] (1946) ), it is sufficiently akin to a traditional sidewalk that to classify it otherwise would be unreasonable." Id.

¶ 55 Suffice it to say that a narrow, strict construction of the term "sidewalk" would not include something that is not a sidewalk, but fairly resembles one. That interpretation is more liberal still, given that the court specifically cited a supreme court decision that defined the term "sidewalk" (albeit in a different statute) as "part of the street which the municipal authorities have set apart for the use of pedestrians" ( Buettgen , 394 Ill. at 252, 68 N.E.2d 278 )-but then proceeded to ignore it, because doing so would be "unreasonable." Yu , 281 Ill. App. 3d at 493, 217 Ill.Dec. 313, 667 N.E.2d 106.

¶ 56 The courts in Kurczak and Bremer did not strictly construe the term, either. The court in Kurczak , 359 Ill. App. 3d at 1057, 296 Ill.Dec. 418, 835 N.E.2d 452, reasoned that it would construe the term "sidewalk" in the Act to include a private walkway running from a residence to a parking area "[a]bsent a distinction drawn by the legislature that limits the term 'sidewalk' to only public or municipal sidewalks." See also Bremer , 363 Ill. App. 3d at 584, 299 Ill.Dec. 799, 842 N.E.2d 1151 (court would construe "sidewalk" under Act as including private walkway "[a]bsent a clear distinction that limits the term").

¶ 57 In the context of a statute in derogation of the common law that requires strict construction, that reasoning is backwards. The court's role in that context is not to broadly interpret a provision absent some clear textual limitation; it is to effect the least amount of change to the common law by limiting its construction to what the statute expressly provides and what it necessarily implies. Murphy-Hylton , 2016 IL 120394, ¶ 29, 410 Ill.Dec. 937, 72 N.E.3d 323 ; Adams , 211 Ill. 2d at 69, 284 Ill.Dec. 302, 809 N.E.2d 1248.

¶ 58 Another quarrel with these three appellate decisions is their discussion of the word "abutting" that modifies "sidewalk" in the Act. Recall that the Act immunizes snow-removal efforts on "sidewalks abutting the property" of residential landowners. 745 ILCS 75/2 (West 2012). While Yu did not discuss the issue, the unsuccessful plaintiffs in Kurczak and Bremer argued that the General Assembly must have been referring to municipal sidewalks in this language, because they always "abut"-that is, rest along the border of-private residential property, whereas other private walkways do not border residential property but are, in fact, part of the residential property.

¶ 59 Those courts rejected that reasoning by examining section 2 in light of section 1 of the Act, the statement of legislative intent, which uses different language. The General Assembly said in section 1 that it was the public policy of the State that residential landowners "be encouraged to clean the sidewalks abutting their residences of snow and ice." (Emphasis added.) 745 ILCS 75/1 (West 2012). Because the word "residence" includes the physical abode specifically, these courts reasoned that, when the legislature provided the grant of immunity in section 2 for snow removal on sidewalks "abutting the property," it meant to include the physical home. Kurczak , 359 Ill. App. 3d at 1058-59, 296 Ill.Dec. 418, 835 N.E.2d 452 ;

Bremer , 363 Ill. App. 3d at 584-85, 299 Ill.Dec. 799, 842 N.E.2d 1151. Accordingly, private walkways, though they do not "border" or "abut" the residential property, will constitute "sidewalks" under the Act so long as they "border" or "abut" the house . Kurczak , 359 Ill. App. 3d at 1058-59, 296 Ill.Dec. 418, 835 N.E.2d 452 ; Bremer , 363 Ill. App. 3d at 584-85, 299 Ill.Dec. 799, 842 N.E.2d 1151.

¶ 60 We cannot agree with this reasoning, because again, it is not a strict construction of the phrase "sidewalk abutting the property" of a residential landowner. The word "abut" means " 'to join at a border or boundary; to share a common boundary with' " or " 'to border on: reach or touch with an end.' " Kurczak , 359 Ill. App. 3d at 1058, 296 Ill.Dec. 418, 835 N.E.2d 452 (quoting Black's Law Dictionary 10 (7th ed. 1999), and Webster's Third New International Dictionary 8 (1986) ). Section 2, the operative immunity statute, refers to sidewalks bordering the property. It does not refer to sidewalks bordering the house , which is a far broader reading of the Act that permits the inclusion of all sorts of private walkways leading from the house, not to mention front and back porches. And under no circumstances could those private walkways and porches be considered to be "abutting" the residential property-they are residential property.

¶ 61 Recognizing the spirit and purpose of a statute is always important in considering the operative language of the statute. But the court goes too far if it allows a general statement of legislative intent to materially expand the language of a specific grant of immunity in the statute-especially if that grant of immunity is to be read strictly. See Knolls Condominium Ass'n v. Harms , 202 Ill. 2d 450, 459, 269 Ill.Dec. 464, 781 N.E.2d 261 (2002) (specific statutory provision controls over general provision on same subject). The grant of immunity in section 2, and nothing else, is the source of relief for defendants. Had the General Assembly wished to include within its immunity walkways that abut the house itself, it could have easily used that same language that it used more generically in section 1. It did not.

¶ 62 These specific criticisms aside, on a more fundamental level, these three cases simply did not accurately identify the plain meaning of the term "sidewalk" under the Act. As we explain below, a strict reading of the term "sidewalk" can only lead to the conclusion that the General Assembly was referring in the Act to a municipal sidewalk, the public right-of-way reserved for pedestrians, bordering the property of a residential landowner.

¶ 63 C

¶ 64 Though colloquially, one might use the word "sidewalk" to refer to a paved walkway on private property leading to a house, the General Assembly has always referred to a "sidewalk" as a term of art, and so have the courts interpreting that word-other than in the context of the Snow and Ice Removal Act, as discussed above.

¶ 65 Under the Illinois Vehicle Code, for example, "sidewalk" is defined as "[t]hat portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use of pedestrians." 625 ILCS 5/1-188 (West 2012). And a "street" is "[t]he entire width between boundary lines of every way publicly maintained, when any part thereof is open to the use of the public for purposes of vehicular travel." 625 ILCS 5/1-201 (West 2012). In other words, a "sidewalk" is part of the street-part of the publicly maintained right of way, adjacent to private property, that is intended for pedestrian use.

¶ 66 That definition is consistent with a long line of supreme court decisions holding that a sidewalk is not private property, but rather "is considered a part of the street which has been set aside for pedestrian use." City of Carbondale v. Brewster , 78 Ill. 2d 111, 116, 34 Ill.Dec. 838, 398 N.E.2d 829 (1979) ; see also Lansing v. County of McLean , 69 Ill. 2d 562, 572, 14 Ill.Dec. 543, 372 N.E.2d 822 (1978) (" 'The sidewalk is simply a part of the street which the municipal authorities have set apart for the use of pedestrians.' " (quoting Buettgen , 394 Ill. at 252, 68 N.E.2d 278 ) ); People ex rel. Herman Armanetti, Inc. v. City of Chicago , 415 Ill. 165, 167, 112 N.E.2d 616 (1953) (" 'Sidewalks' have been held to be public ways within the meaning of the word 'streets.' "); Topliff v. City of Chicago , 196 Ill. 215, 217-18, 63 N.E. 692 (1902) (noting that city has "ample power to designate portions of the streets of the city to be used by horsemen and vehicles and other portions to be used by pedestrians," the latter of which "are not improperly known as the sidewalks").

¶ 67 As an appellate decision from 1965 put it:

"[T]he basic purpose of having streets and sidewalks within a municipality is to afford a public way for pedestrian and vehicular traffic. The public is rightfully entitled to the use of such thoroughfares free of all obstructions and impediments which tend to delay or obstruct traffic. [Citation.] An abutting property owner, for his convenience, has a right to make proper and reasonable use of the sidewalk and street, but only to the extent that such use is not inconsistent with the paramount right of the public." Sabath v. City of Chicago , 56 Ill. App. 2d 307, 319, 206 N.E.2d 286 (1965).

¶ 68 A section of the Local Governmental and Governmental Employees Tort Immunity Act provides immunity "for an injury caused by the effect of weather conditions as such on the use of streets, highways, alleys, sidewalks or other public ways, or places ." (Emphasis added.) 745 ILCS 10/3-105(a) (West 2012). As its title implies, that statute does not protect anything but public entities, for injuries occurring on government-controlled-that is, public-property. See id. § 3-101 (defining "public property"); Steinbach v. CSX Transportation, Inc. , 393 Ill. App. 3d 490, 517, 332 Ill.Dec. 622, 913 N.E.2d 554 (2009). This law has been on the books since 1965, following the abolition of sovereign immunity, "to protect local public entities * * * from liability arising from the operation of government." DeSmet v. County of Rock Island , 219 Ill. 2d 497, 505, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006).

¶ 69 In a similar vein, nearly 90 years ago in Graham v. City of Chicago , 346 Ill. 638, 641, 178 N.E. 911 (1931), the supreme court considered the question of "[w]hat, if any, duty devolves upon a city to remove ice from its sidewalks." under the common law. The court answered it:

"[T]here is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes. [Citations.] A municipality is bound only to use reasonable care to keep its sidewalks reasonably safe for the amount and kind of travel which may fairly be expected upon them." (Emphases added.) Id.

¶ 70 The tort-immunity statute and Graham decision are unquestionably premised on the nature of a "sidewalk" as a public right-of-way controlled by the municipality.

¶ 71 Similarly, the Revised Cities and Villages Act, for decades, has permitted cities and villages to regulate "sidewalks." See Ill. Rev. Stat. 1945, ch. 24, ¶ 23-20. A 1924 Elmhurst ordinance, promulgated by authority of that law, prohibited vehicles from driving over "sidewalks." See Buettgen , 394 Ill. at 250, 68 N.E.2d 278. The defendant, convicted of driving his car over the sidewalk onto his driveway, argued that the sidewalk, at least insofar as it intersected his driveway, was part of his private driveway-it was private, not public property-and thus the state law did not vest the municipality with the authority to regulate that private property.

¶ 72 The supreme court found it "absurd" to interpret "sidewalk" to include private property. Id. at 252, 68 N.E.2d 278. Rather, the court wrote, "[t]he sidewalk is simply a part of the street which the municipal authorities have set apart for the use of pedestrians." Id. The court elaborated:

"There can be no question but that the title to all streets and sidewalks is vested in the city in trust for the public, and under the above provisions of the Cities and Villages Act they are under the control, supervision and dominion of the corporate authorities of the city for the purpose of preserving them and promoting their intended use. The city is charged with the duty of keeping its sidewalks, as well as its streets, in a reasonably safe condition for the use of the public." Id.

¶ 73 But most notably of all, the Illinois Municipal Code grants each municipality the right to "regulate the use of sidewalks" and to "require the owner or occupant of any premises to keep the sidewalks abutting the premises free from snow and other obstructions." (Emphasis added.) 65 ILCS 5/11-80-13 (West 2012). This provision had been codified in its present form, unchanged, since 1963, long before the Snow and Ice Removal Act's enactment in 1979.

¶ 74 The supreme court upheld a municipal ordinance adopted pursuant to this section of the Municipal Code in Brewster , 78 Ill. 2d at 116, 34 Ill.Dec. 838, 398 N.E.2d 829. The court held that the state, and by delegation a city, possessed the police power to require residents to clear snow from the "sidewalks" in front of their homes, even though the "sidewalk" was public property, not owned by the private landowner. Id. In so holding, the court overruled its 1884 decision in City of Chicago v. O'Brien , 111 Ill. 532, 537 (1884), which held that a private landowner could not be required to clear the snow from the "sidewalk" fronting the landowner's private property, as doing so would impose a "purely public burden" on a private landowner without just compensation or some special taxation to compensate the private landowner for cleaning that public right-of-way.

¶ 75 The court in Brewster , noting a general change over the previous century in the understanding of the government's police power, disagreed with O'Brien 's holding, but certainly not its premise-that sidewalks are public property, controlled by municipalities. Indeed, the court in Brewster noted a long line of cases holding "that the sidewalk is considered a part of the street which has been set aside for pedestrian use." Brewster , 78 Ill. 2d at 116, 34 Ill.Dec. 838, 398 N.E.2d 829.

¶ 76 Thus, since at least 1884, our supreme court has made it abundantly clear that a "sidewalk" is public property and has interpreted that word as a statutory term accordingly.

¶ 77 It was against this backdrop, following decades if not centuries of statutory law and supreme court case law giving one and only meaning to the word "sidewalk," that the General Assembly enacted the Snow and Ice Removal Act in 1979. We simply cannot accept that when the General Assembly enacted the Act, it intended the word "sidewalk" to mean something materially different than what it had meant in every other statute and inconsistent with a slew of supreme court decisions interpreting that word. And to put it mildly, any attempt to divine some unprecedented distinction would not be an exercise in narrowly and strictly construing the Act.

¶ 78 We recognize that "[c]are must be taken when importing the definition of a term from one statute to another, since 'the context in which a term is used obviously bears upon its intended meaning.' " Cohen v. Chicago Park District , 2017 IL 121800, ¶ 22, --- Ill.Dec. ----, --- N.E.3d ---- (quoting People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc. , 2013 IL 115106, ¶ 29, 378 Ill.Dec. 402, 4 N.E.3d 1 ). But we do not think the term "sidewalk" is being used in a different context under the Act than in the other statutes we have cited-certainly not in a different context than the provision in the Municipal Code that allows municipalities to "require the owner or occupant of any premises to keep the sidewalks abutting the premises free from snow and other obstructions." 65 ILCS 5/1180-13 (West 2012). If "sidewalks abutting the premises" (id. ) means a public right-of-way under the Municipal Code, we cannot fathom that the General Assembly meant "sidewalks abutting the property" to mean something different under the Snow and Ice Removal Act. 745 ILCS 75/2 (West 2012).

¶ 79 Our interpretation fits comfortably into the Act's language, for a municipal sidewalk always "abut[s] the property" of the residential landowner. We need not import a word from the legislative-intent section of the Act to make the word "property" include the "residence" or "house" to make sense of our interpretation. It has the added benefit of a bright-line rule: residential landowners have immunity if they shovel the part of the municipal sidewalk that borders their property. Courts would not be endlessly debating what kinds of shoveled paths are "akin" to a sidewalk, or whether the porch is as much of the sidewalk as the walkway or driveway.

¶ 80 We respectfully disagree with the decisions in Yu , Kurczak , and Bremer . We do not read the phrase "sidewalks abutting the property" of a residential landowner as including walkways on private property. We read the phrase as limited to the municipal right-of-way, the part of the public street reserved for pedestrian use, that abuts private residential property.

¶ 81 Thus, regardless of whether plaintiff's accident occurred in a "parking area," a walkway or pathway on private property, or a hybrid of both, it did not occur on a "sidewalk" within the meaning of the Snow and Ice Removal Act. We find the Act inapplicable to this case. We reverse the grant of summary judgment in favor of defendants and remand for further proceedings.

¶ 82 Reversed and remanded.

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

      When we discuss "immunity" under the Act, we mean immunity for negligent acts, the only acts alleged in this case. The Act does not immunize willful and wanton conduct. 745 ILCS 75/2 (West 2012).


source: Caselaw Access Project

license: Public Domain

text:
    Jessica SANDBERG, Petitioner-Appellee, v. BRIAN B., Respondent-Appellant.
    No. 2-18-0082
    Appellate Court of Illinois, Second District.
    Rule 23 order filed June 21, 2018 Motion to publish allowed July 18, 2018 Opinion filed July 18, 2018
    Brian B., of Vernon Hills, appellant pro se.
    Paul A. Zukowski, of Prairie State Legal Services, of McHenry, for appellee.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Pro se respondent, Brian B., appeals from an order denying his motion to reconsider the trial court's entry of a plenary order of protection in favor of petitioner, Jessica Sandberg. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The record reflects that Brian and Jessica are the parents of a son, J.B., who was born on August 1, 2005. The parties were never married. From 2013 until the event that gave rise to the issuance of the plenary order of protection, Brian had residential custody of J.B. On October 16, 2017, Jessica filed a verified petition for an emergency order of protection in Lake County. The matter was designated as No. 17-OP-2040. In the petition, Jessica explained why she wanted the trial court to issue an order of protection for her and J.B. against Brian:

"On 10-12-17 Brian [B.] took me to court trying to ask for full custody and child support for our son [J.B.]. The judge threw out the motion due to Brian not completing the motion right. Brian got very upset and went to my son's school in Chicago and demanded the principal to give him [J.B.], so the principal called me and asked me if Brian can take [J.B.] from the school and the police were there with Brian because Brian called the police and the police said that they [couldn't] allow Brian to take [J.B.] out. I am wanting this order of protection on Brian because I don't know what he is going to try to do next. My son is terrified of him. Even more than he was. Brian keeps texting me [and] accusing me of taking our son pics [sic ] from his old school. He is also calling my 9-year-old daughter to try to get a hold of me. I'm terrified that he is going to try to come to the school when [J.B.] gets out and try to get him. I'm worried that my son is having a hard time at school because he is scared that his dad could come up there and take him. Also when me and Brian were together he put his hands on me quite a few times."

¶ 4 Based upon the allegations in Jessica's petition, the Lake County circuit court entered an emergency order of protection. Two days later, Jessica filed a motion to modify the allocation of parental responsibilities in McHenry County. That matter was designated as No. 09-FA-190, the case number that was assigned in 2009 when Jessica had residential custody of J.B. and she filed a petition against Brian for child support. In the motion to modify the allocation of parental responsibilities, Jessica alleged that Brian had "put his hands" on J.B. and pushed him to the ground. She also alleged that Brian had been arrested in Lake County and that there was an order of protection requiring Brian to stay away from her and J.B. Jessica requested that Brian receive supervised visitation with J.B. and be ordered to attend anger management classes.

¶ 5 On October 19, 2017, the McHenry County circuit court ordered the parties to notify the Lake County circuit court of the proceedings in case No. 09-FA-190 and to seek to have the Lake County case transferred to McHenry County. The next day, the Lake County court transferred case No. 17-OP-2040 to McHenry County.

¶ 6 On October 25, 2017, the parties were present in McHenry County for a hearing on the extension of Jessica's emergency order of protection to a plenary order of protection. At the hearing, Jessica testified that she lived in Chicago and that Brian lived in Vernon Hills. On September 18, 2017, one of Brian's neighbors called her and told her that she saw Brian push J.B. against a wall. Jessica called the police, and the police took J.B. to the police station. Brian was charged with domestic battery in Lake County case No. 17-CM-2763. The Department of Children and Family Services (DCFS) and the police told Jessica that she had to take J.B. to her home in Chicago. After that, Brian was served with an order prohibiting him from having any contact with J.B., as a condition of his bond. On October 12, 2017, Brian went to the school in Chicago that Jessica had enrolled J.B. in, tried to take him out of the school, and demanded that J.B. come home with him. The police were called. It was a huge scene. Therefore, she filed a petition for an emergency order of protection.

¶ 7 Jessica said that she wanted a plenary order of protection entered against Brian because J.B. was scared for his life. He was terrified that Brian was going to get him and hurt him again. Jessica was concerned about J.B.'s safety. The September 18 incident was not the first time that Brian had hurt J.B. There had been numerous DCFS cases involving Brian and J.B. that were dropped, which surprised Jessica. There was currently a case pending with DCFS relating to Brian's domestic battery charge.

¶ 8 Brian then cross-examined Jessica and asked her why, if she feared for J.B.'s life or safety, she waited "five or seven years" to do anything about it, since J.B. had been in his care since 2012. Jessica said that Brian had put his hands on J.B. only last March and that he had also hit J.B. in the head with a cell phone, which was why she called DCFS. Jessica said that the last five to seven years she had been struggling and she needed Brian to be a good father to J.B., and he was, but that when Brian put his hands on J.B. "that's when it got real" and she had to protect J.B. Brian asked her why she had called DCFS three times in less than 30 days, and she said that she called DCFS only once, last March.

¶ 9 In Brian's case-in-chief, he said that J.B. had been living with him for five years because Jessica got kicked out of her house and she called him for help with J.B. He took J.B. in, and he never asked Jessica for anything. However, after a while he started asking Jessica for child support, but she never paid him any. The only reason Jessica filed for an order of protection was that he "served her at the school in front of officers." He gave the officers the papers right in front of Jessica. Brian said that he could have J.B. at any time because the papers said that he had residential custody of J.B. So he went to the school to get J.B. and he called the police himself and showed them the papers that indicated that he was the residential custodian of J.B. He went to that school to take J.B. out only because Jessica took J.B. out of the school that he had enrolled J.B. in. "And he was doing fine. It was all her doing that she-it got to the point of me getting arrested. I never had no type of cases against me, nothing." After he left the school, he went to his attorney's office. His attorney told him that there was no reason why he should not have residential custody of J.B.

¶ 10 Brian testified that he was arrested on September 18, 2017, but on October 5, 2017, "that's when we had the-that's when they lifted that. And so I asked the attorney, I'm like because I have this [ (the 2014 order giving Brian residential custody of J.B.) ], does that mean does he come back? He says, yes, because the DCFS never took him out of the house. The police did." Finally, Brian said that Jessica's statement that he put his hands on her in the past was false.

¶ 11 The court said that it had heard all of the evidence from both parties and that both parties stated that they had said everything that they wanted to say to the court. It then noted that, at a hearing on an order of protection, a petitioner could testify to past acts of abuse. It said that, although Jessica did not allege past acts of abuse in her petition-specifically, that Brian pushed J.B. into a wall or that he hit J.B. in the head with a cell phone-she testified to those two acts and Brian did not deny them. Based upon those two acts, the court said that it had to issue an order of protection. An order of protection for one year was then entered by the court. Referring to the 2014 order granting him residential custody of J.B., Brian asked the court if that order was not valid anymore. The court informed him that the plenary order of protection usurped the custody order.

¶ 12 Brian subsequently hired counsel, who filed a motion to reconsider the plenary order of protection or, in the alternative, to establish parenting time. In that motion, counsel argued that section 220 of the Illinois Domestic Violence Act of 1986 (Act) ( 750 ILCS 60/220(a)(1) (West 2016) ) was violated when the hearing on the plenary order of protection in McHenry County was held only nine days after the hearing on the emergency order of protection in Lake County. Counsel also claimed that Brian was deprived of due process at the plenary hearing when Jessica provided testimony that was outside the four corners of her verified petition for an emergency order of protection. The motion to reconsider was denied. However, the court modified the plenary order of protection to allow for supervised visitation between Brian and J.B. for one hour per week, one day per week, until further order of the court. The court set a status date of March 5, 2018, but held that its order was final and appealable.

¶ 13 In his reply brief on appeal, Brian alleged that on January 8, 2018, after a jury trial, he was found not guilty on all charges in case No. 17-CM-2763.

¶ 14 II. ANALYSIS

¶ 15 On appeal, Brian argues that the trial court erred (1) in allowing Jessica to "bring evidence and allegations outside the four corners of her petition as set forth" and (2) "due to the violation of section 220 of the Illinois Domestic Violence Act."

¶ 16 A. Allegations Outside the Four Corners of the Petition

¶ 17 First, Brian claims that the trial court erroneously allowed Jessica to testify about allegations that were not contained in her verified petition for an emergency order of protection-specifically, that Brian had recently pushed J.B. and hit him in the head with a cell phone.

¶ 18 Proceedings under the Act are governed by the Code of Civil Procedure (Code) ( 735 ILCS 5/1-101 et seq. (West 2016) ). 750 ILCS 60/205(a) (West 2016). The Code specifically recognizes that no complaint is bad in substance that reasonably informs the defendant of the nature of the claim that he or she is called on to meet. 735 ILCS 5/2-612(b) (West 2016); Chandler v. Illinois Central R.R. Co. , 207 Ill. 2d 331, 348, 278 Ill.Dec. 340, 798 N.E.2d 724 (2003).

¶ 19 Section 214 of the Act, entitled "Order of Protection; remedies," provides, in pertinent part:

"(c) Relevant factors; findings.
(1) In determining whether to grant a specific remedy, other than payment of support, the court shall consider relevant factors, including but not limited to the following:
(i) the nature, frequency, severity, pattern and consequences of the respondent's past abuse, neglect or exploitation of the petitioner or any family or household member, including the concealment of his or her location in order to evade service of process or notice, and the likelihood of danger of future abuse, neglect, or exploitation to petitioner or any member of petitioner's or respondent's family or household; and
(ii) the danger that any minor child will be abused or neglected or improperly relocated from the jurisdiction, improperly concealed within the State or improperly separated from the child's primary caretaker." 750 ILCS 60/214(c)(1)(i), (ii) (West 2016).

¶ 20 A petitioner alleging abuse and seeking an order of protection has the burden to establish by a preponderance of the evidence that abuse has occurred. Best v. Best , 223 Ill. 2d 342, 348, 307 Ill.Dec. 586, 860 N.E.2d 240 (2006). The trial court's determination as to whether the petitioner has met her burden will not be disturbed unless it is against the manifest weight of the evidence. Id. at 348-49, 307 Ill.Dec. 586, 860 N.E.2d 240. "A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented." Id. at 350, 307 Ill.Dec. 586, 860 N.E.2d 240.

¶ 21 In Jessica's emergency petition, she alleged that Brian tried to take J.B. out of his school and that the police informed Brian that he could not do so. She also alleged that J.B. was terrified of Brian and that J.B. was even more afraid of him after Brian tried to take him out of school. She claimed that J.B. was having a hard time at school because "he [was] scared that his dad could come up there and take him." It is clear that the allegations in the petition focused specifically on J.B.'s fear of Brian. Therefore, those allegations were specific enough to reasonably inform Brian of the nature of the claim against him. See 735 ILCS 5/2-612(b) (West 2016).

¶ 22 Also, section 214 of the Act specifically provides that, in determining whether to grant an order of protection, the trial court shall consider the nature, frequency, severity, pattern, and consequences of the respondent's past abuse of the petitioner or any family or household member as well as the danger that any minor child will be abused or neglected. 750 ILCS 60/214(c)(1)(i), (ii) (West 2016). Therefore, the trial court was not only allowed to consider the evidence that Brian had recently pushed J.B. and hit him in the head with a cell phone, it was required to do so. For these reasons, we find that the trial court did not err in allowing Jessica to testify about allegations that were not contained in her petition for an emergency order of protection.

¶ 23 B. Violation of Section 220 of the Act

¶ 24 Next, Brian argues that the trial court granted Jessica a plenary order of protection in violation of section 220 of the Act. Section 220(a) provides, in relevant part:

" § 220. Duration and Extension of Orders.
(a) Duration of emergency and interim orders. Unless re-opened or extended or voided by entry of an order of greater duration:
(1) Emergency orders issued under Section 217 shall be effective for not less than 14 nor more than 21 days[.]" Id. § 220(a)(1) (West 2016).

¶ 25 On appeal, Brian does not allege how the trial court violated section 220 of the Act when it entered the plenary order of protection. Therefore, he has forfeited this claim on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (the appellant's brief shall contain his or her argument and the reasons therefor ). However, the forfeiture rule is an admonition to the parties rather than a limitation on the reviewing court. People v. Normand , 215 Ill. 2d 539, 544, 294 Ill.Dec. 637, 831 N.E.2d 587 (2005). Even though an issue may be forfeited, we may address it based on our obligation to achieve a just result and maintain a uniform body of precedent. In re Jamari R. , 2017 IL App (1st) 160850, ¶ 52, 415 Ill.Dec. 164, 82 N.E.3d 109.

¶ 26 Here, since the plenary order of protection affects Brian's visitation with J.B., we will overlook Brian's forfeiture of this issue in order to achieve a just result. To the extent that Brian is attempting to raise the same argument that his counsel did when he filed his motion to reconsider or in the alternative to establish parenting time, we will consider that argument.

¶ 27 In the motion to reconsider, counsel argued that because the emergency order of protection was entered on October 16, 2017, and the plenary order of protection was entered on October 25, 2017, the interval was less than 14 days, in violation of section 220 of the Act. See 750 ILCS 60/220(a)(1) (West 2016).

¶ 28 The primary objective of statutory interpretation is to ascertain and give effect to the intent of the legislature. People v. Perry , 224 Ill. 2d 312, 323, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). The plain language of the statute is the best indication of the legislature's intent. People v. Christopherson , 231 Ill. 2d 449, 454, 326 Ill.Dec. 40, 899 N.E.2d 257 (2008).

¶ 29 Here, the plain language of section 220 of the Act specifically states that an emergency order of protection shall be effective not less than 14 nor more than 21 days, unless it is reopened, extended, or voided by the entry of an order of greater duration . 750 ILCS 60/220(a)(1) (West 2016). Accordingly, section 220 of the Act was not violated when the emergency order that was entered on October 16, 2017, was extended by the entry of the plenary order on October 25, 2017.

¶ 30 For these reasons, the judgment of the circuit court of McHenry County is affirmed.

¶ 31 Affirmed.

Justices McLaren and Zenoff concurred in the judgment and opinion.

      The record reflects that on August 20, 2013, the trial court ordered that Brian be given residential custody of J.B. until June 1, 2014. On March 11, 2014, the trial court ordered that Brian would continue to have residential custody of J.B. and that placement could be reviewed in five years.


text:
    The HABITAT COMPANY, LLC, as agent for Elm Street Plaza, Plaintiff-Appellee, v. Shun PEEPLES, Defendant-Appellant.
    No. 1-17-1420
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    June 22, 2018
    Bluhm Legal Clinic, of Northwestern Pritzker School of Law, of Chicago (Laurie Mikva, of counsel, and Joseph Becker and Nina Terebessy, law students), for appellant.
    Sanford Kahn, LLP, of Chicago (Michael Griffin, of counsel), for appellee.
   PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Defendant Shun Peeples appeals from an order of the circuit court of Cook County denying her motion to seal her eviction court file pursuant to section 9-121(b) of the Forcible Entry and Detainer Act (Act) ( 735 ILCS 5/9-121(b) (West 2016) ). On appeal, defendant asserts that the circuit court erred in its interpretation of section 9-121(b) of the Act and thus improperly denied her motion to seal. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 This matter commenced as a forcible entry and detainer action initiated by plaintiff, The Habitat Company, LLC, as agent for Elm Street Plaza (a property management company) against defendant (a tenant at a premises managed by plaintiff). In its complaint, plaintiff alleged that defendant breached the terms of her lease. Specifically, plaintiff asserted that on two separate occasions defendant verbally abused and used profanity toward the door staff at the premises in a hostile, threatening, and aggressive manner. Plaintiff maintained that defendant's repeated conduct disrupted the livability of the premises, interfered with management of the premises, and adversely affected the safety of the door staff. Plaintiff further asserted that defendant's actions were criminal and constituted the crime of disorderly conduct.

¶ 4 In lieu of a responsive pleading, defendant filed a motion for summary judgment in which she argued that she did not engage in any unlawful or criminal activities on plaintiff's property in violation of the terms of her lease. Defendant further maintained that the "verbal abuse" and profanity directed toward the door staff did not constitute a material violation of the terms of the lease. In response to the motion for summary judgment, plaintiff argued that defendant was in material noncompliance with her lease where, on two separate occasions, she verbally abused and used profanity towards the door staff at the premises in a hostile, threatening, and aggressive manner. Plaintiff maintained that her conduct disrupted the livability of the premises, interfered with the management of the premises, and adversely affected the safety of the door staff. Plaintiff asserted that a genuine issue of material fact existed regarding whether defendant's conduct constituted material noncompliance under her lease. Plaintiff attached an affidavit of Andrew Floyd (Floyd), a doorman at the premises, to its response. Floyd averred that on December 17 and December 18, 2014, defendant approached the front desk in an irate and aggressive manner, was verbally abusive toward him and his colleague, and stated in a threatening manner that he and his colleague were "b*** a***" and "lazy motherf***" who "don't do s*** all day." Floyd further averred that defendant continued to use inappropriate language and he found her aggressiveness and hostility to be unsettling, threatening, unreasonable, alarming, and disturbing. Plaintiff also attached the affidavit of Nicole Salter (Salter), the community manager for the apartment building. Salter averred that she is "familiar with *** incidents involving tenants, reports of incidents involving tenants, disruptions in the livability of the premises." Salter did, however, attest that defendant's "verbally abusive conduct and use of profanity toward Habitat's door staff on December 17 and 18, 2014, disrupted the livability of the building, adversely affected Habitat's agents' safety and the safety of the premises' tenants, interfered with the management of the building, and, in my determination, constituted the crime of disorderly conduct."

¶ 5 After the matter was fully briefed and argued, the circuit court granted defendant's motion for summary judgment in part and denied it in part. Summary judgment was granted as to plaintiff's allegations that defendant's conduct was criminal or unlawful. Summary judgment, however, was denied as to whether defendant was in material noncompliance with the terms of the lease.

¶ 6 Shortly thereafter, on August 3, 2015, an "agreed settlement order" (agreed order) was entered by the circuit court. The agreed order provided that the matter was dismissed with leave to reinstate and that the circuit court was to retain jurisdiction over the matter until December 31, 2016. Defendant was allowed to continue to reside at the premises. She was, however, prohibited from verbally attacking or using profanity toward any of plaintiff's employees. A motion to reinstate was never filed; the agreed order dismissing the matter thus became final on December 31, 2016. No order was entered memorializing the dismissal with prejudice on December 31, 2016.

¶ 7 In March 2017, defendant filed a motion pursuant to section 9-121(b) of the Act ( 735 ILCS 5/9-121(b) (West 2016) ) to seal the court file. Section 9-121(b) provides:

"Discretionary sealing of court file. The court may order that a court file in a forcible entry and detainer action be placed under seal if the court finds that the plaintiff's action is sufficiently without a basis in fact or law, which may include a lack of jurisdiction, that placing the court file under seal is clearly in the interests of justice, and that those interests are not outweighed by the public's interest in knowing about the record." 735 ILCS 5/9-121(b) (West 2016).

In her motion, defendant maintained that the forcible entry and detainer action against her was sufficiently without a basis in fact or law because, pursuant to the agreed order, the matter had been dismissed and plaintiff could no longer reinstate the case. Defendant further asserted that sealing the court file was in the interest of justice because her ability to obtain alternative housing was being affected by this case. Defendant maintained that the interests of justice are not outweighed by the public's interest in the knowledge contained in the record of the eviction action because the matter was not disposed of against her, rather it was dismissed with prejudice.

¶ 8 In response, plaintiff asserted that its action had a sufficient basis in fact or law, as evidenced by the circuit court's denial, in part, of defendant's motion for summary judgment. Plaintiff stressed the importance of court records being accessible to the public and noted that defendant's claim regarding her failure to obtain alternative housing was incorrect where she was not currently agreeing to vacate the premises.

¶ 9 In reply, defendant maintained that section 9-121(b) did not require her to demonstrate that "both prongs of the statute are met," only that either the action was sufficiently without a basis in fact or law, or that sealing is in the interests of justice and those interests are not outweighed by the public's interest in access to the record. Specifically, defendant asserted that there was no basis in law or fact where (1) plaintiff's action was dismissed with leave to reinstate and plaintiff never moved to reinstate; (2) plaintiff's allegations were never adjudicated, thus they remain unproven and dismissed; and (3) under the terms of the agreed order jurisdiction in the case lapsed on December 31, 2016. Defendant further maintained that sealing the file would serve the interests of justice by allowing her a fair opportunity to find new rental housing. Defendant's affidavit stated she is "a resident in good standing at Elm Street Plaza" but would like to move but is unable to find "alternative housing." Defendant further averred she had applied to lease new housing, but her application was rejected because she had an "Eviction Record Match." Defendant also noted that the public's interest in access to court files is not absolute, particularly where the eviction court file is being used for an improper purpose. Defendant observed that "on the basis of unadjudicated allegations, landlords have already used and will continue to use their knowledge of this file to deny [defendant] access to rental housing."

¶ 10 After hearing argument in the matter, the circuit court initially determined that although the motion was brought over 30 days after the case had been dismissed with prejudice, it had subject matter jurisdiction because section 9-121(b) did not impose any time limit to bringing a motion to seal. Regarding the merits of the motion, the circuit court read section 9-121(b) to set forth "three separate elements" which must be established to seal a court file. The circuit court then concluded that defendant failed to establish the first element, that plaintiff's action was sufficiently without a basis in fact or law. In so concluding, the circuit court relied on the language of the agreed order wherein defendant specifically agreed to control her conduct in regard to plaintiff's employees thereby establishing that plaintiff's action did have a basis in fact and law. The circuit court concluded that since defendant could not establish the first element, it need not make any findings regarding the remaining elements. This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant maintains that the circuit court improperly interpreted section 9-121(b) of the Act and thus erred when it denied her motion to seal. In response, plaintiff first asserts that the circuit court lacked subject matter jurisdiction to consider defendant's motion to seal, and as a result this court lacks jurisdiction. As our jurisdiction is integral to rendering a determination in this matter, we first turn to consider this threshold issue. In re Benny M. , 2017 IL 120133, ¶ 17, --- Ill.Dec. ----, --- N.E.3d ----.

¶ 13 A. Jurisdiction

¶ 14 Plaintiff maintains that the circuit court did not have subject matter jurisdiction to consider the motion to seal because it was filed more than 30 days after the agreed order became final on December 31, 2016. Our review of a circuit court's decision concluding that it has subject matter jurisdiction is de novo . Harper Square Housing Corp. v. Hayes , 305 Ill. App. 3d 955, 959, 239 Ill.Dec. 135, 713 N.E.2d 666 (1999).

¶ 15 The general rule is that a trial court loses jurisdiction over a case and has no authority to vacate or modify a final judgment once 30 days have elapsed, unless a timely postjudgment motion has been filed. Robinson v. Point One Toyota, Evanston , 2012 IL App (1st) 111889, ¶ 18, 368 Ill.Dec. 562, 984 N.E.2d 508. Every final judgment of a circuit court in a civil case is appealable as of right. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Supreme Court Rule 303 provides that the appellate court has jurisdiction to hear an appeal in a civil case when the notice of appeal is filed within 30 days after entry of a final order. Ill. S. Ct. R. 303 (eff. Jan. 1, 2015).

¶ 16 A postjudgment motion must ordinarily be filed within 30 days of judgment. See 735 ILCS 5/2-1202(c) (West 2016) (motions in jury cases); 735 ILCS 5/2-1203(a) (West 2016) (motions in non-jury cases); 735 ILCS 5/2-1301(e) (West 2016) (motion to vacate default judgment). After the expiration of the 30-day period, the trial court lacks the necessary jurisdiction to amend, modify or vacate its judgment. Robinson , 2012 IL App (1st) 111889, ¶ 18, 368 Ill.Dec. 562, 984 N.E.2d 508. Once jurisdiction has been lost, the only means of challenging the judgment is through a collateral attack, by filing a petition under section 2-1401 of the Code of Civil Procedure or by proceeding under section 2-1301(g) of the Code of Civil Procedure. Jones v. Unknown Heirs or Legatees of Fox , 313 Ill. App. 3d 249, 252-53, 245 Ill.Dec. 800, 728 N.E.2d 1157 (2000).

¶ 17 Here, no postjudgment motion was filed within 30 days of December 31, 2016, the date the dismissal became final. Defendant filed her motion to seal pursuant to section 9-121(b) of the Act in March 2017, beyond the 30-day period. Looking purely at the timing of defendant's motion, plaintiff argues that the circuit court lacked jurisdiction to consider the motion.

¶ 18 Defendant, however, maintains she is not attacking the agreed order or the resulting dismissal, but is instead raising a freestanding, collateral action to have her court file sealed. Defendant contends that the circuit court properly determined that it had jurisdiction as section 9-121(b) allows for such an action to be filed and cites People v. Mingo , 403 Ill. App. 3d 968, 344 Ill.Dec. 399, 936 N.E.2d 1156 (2010). While we acknowledge that Mingo is a criminal matter, the pertinent issues therein were primarily ones of statutory construction and subject matter jurisdiction, and we find the analysis in Mingo helpful and relevant to our considerations of the issues here.

¶ 19 In Mingo , the defendant was convicted of robbery and aggravated battery in 2004 and was ordered to pay "an undelineated $243 in '[f]ines, [c]ourt [c]osts, [f]ees [and] [p]enalties' " along with a $200 DNA assessment and awarded a credit of $5 per day spent in presentencing custody, totaling $1565. Mingo , 403 Ill. App. 3d at 970, 344 Ill.Dec. 399, 936 N.E.2d 1156. Four years later, in 2008, the defendant filed a petition for revocation of the fines under section 5-9-2 of the Unified Code of Corrections ( 730 ILCS 5/5-9-2 (West 2008) ). Id. The trial court denied the petition. Id. On appeal, defendant raised only the issue that the presentencing credit fully satisfied the DNA assessment and the judgment should be corrected to so reflect. Id.

¶ 20 Prior to addressing the merits of the defendant's claim, the reviewing court considered whether the trial court lacked jurisdiction to consider the defendant's petition in that the petition was filed more than 30 days after final judgment. Id. The Mingo court observed that the fact 30 days had passed since the judgment was entered does not "restrict the trial court's ability to address freestanding, collateral actions, such as postconviction petitions ( 725 ILCS 5/122-1 (West 2008) ) or petitions brought under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2008) )." Id. at 970-71, 344 Ill.Dec. 399, 936 N.E.2d 1156.

¶ 21 In order to determine if the defendant's petition was a freestanding, collateral action, the Mingo court considered the language and purpose of the statute. Id. at 971, 344 Ill.Dec. 399, 936 N.E.2d 1156. Section 5-9-2 provides: "Except as to fines established for violations of Chapter 15 of the Illinois Vehicle Code, the court, upon good cause shown, may revoke the fine or the unpaid portion or may modify the method of payment." (Internal quotation marks omitted.) Id. (quoting 730 ILCS 5/5-9-2 (West 2008) ). In examining the plain language of section 5-9-2, the reviewing court concluded that "the legislature intended petitions for the revocation of fines to be freestanding actions, collateral to the original action." Id. The court noted that section 5-9-2 "does not impose any time limit on the filing of a petition to revoke fines" and that such a limitation is within the purview of the legislature, not the courts. Id. The Mingo court further noted that, "the legislature has demonstrated, on numerous occasions, its ability to set time limits for the filing of motions and petitions when it has so chosen." Id. The court also observed that "to read section 5-9-2 as requiring the filing of a petition for revocation of fines within 30 days of the judgment would be to make section 5-9-2 duplicative of section 5-8-1(c), thus rendering section 5-9-2 superfluous and meaningless." Id. at 972, 344 Ill.Dec. 399, 936 N.E.2d 1156.

¶ 22 Finally, the Mingo court stated that the good-cause requirement in section 5-9-2 indicated that the legislature intended the statute to "provide a defendant relief from fines when factors, external to the original proceedings, would warrant the revocation of the fines to ease a defendant's financial burden." Id. This, according to the court, would "certainly" arise after 30 days had passed from the imposition of the sentence. Id.

¶ 23 In light of Mingo , in order for us to determine here whether a motion to seal pursuant to section 9-121(b) of the Act is a freestanding, collateral action, we must interpret the language of section 9-121(b), which we do de novo . Bank of New York Mellon v. Laskowski , 2018 IL 121995, ¶ 12, --- Ill.Dec. ----, --- N.E.3d ----. The principles governing statutory interpretation are familiar and well settled. The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. Id. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Id. That said, a court also will presume that the legislature did not intend absurd, inconvenient, or unjust results. Id. Consequently, where a plain or literal reading of a statute renders such results, the literal reading should yield. Id.

¶ 24 The plain language of section 9-121(b) indicates that the legislature intended that motions to seal the court file could be filed while the action was pending or as freestanding actions, collateral to the original action. 735 ILCS 5/9-121(b) (West 2016). As in Mingo , the statute does not impose any time limit on the filing of a motion to seal the court file. See Mingo , 403 Ill. App. 3d at 971, 344 Ill.Dec. 399, 936 N.E.2d 1156. Thus, we cannot read the statute as requiring that the motion to seal must be filed within 30 days of the entry of the judgment as the legislature did not express such a requirement. See Moon v. Rhode , 2016 IL 119572, ¶ 22, 409 Ill.Dec. 8, 67 N.E.3d 220.

¶ 25 In addition, we acknowledge, as the Mingo court did, "the legislature has demonstrated, on numerous occasions, its ability to set time limits for the filing of motions and petitions when it has so chosen." Mingo , 403 Ill. App. 3d at 971, 344 Ill.Dec. 399, 936 N.E.2d 1156. Notably, the Act is procedurally governed by the Code of Civil Procedure (Code) ( 735 ILCS 5/1-101 et seq. (West 2016) ) (in fact it is an act within the Code), which includes time limit prescriptions for the filing of various motions. See 735 ILCS 5/2-1203(a) (West 2016) (a party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief); 735 ILCS 5/2-1301(e) (West 2016) (the court may on motion filed within 30 days after the entry of a final order or judgment set aside any final order or judgment upon any terms and conditions that shall be reasonable). The legislature chose not to impose a time limitation as to a motion to seal under section 9-121(b).

¶ 26 The purpose of section 9-121(b) is to provide tenants protection from the adverse impact of eviction actions which had no sufficient legal or factual basis. The full adverse impact of an eviction action, such as a tenant's inability to find alternative housing due to the eviction record, will most likely come to light after the case has been resolved. The legislature's decision not to include a time limitation thus serves the purpose of section 9-121(b) and demonstrates that the motion should be viewed as an independent proceeding. See Mingo , 403 Ill. App. 3d at 971, 344 Ill.Dec. 399, 936 N.E.2d 1156. Accordingly, we conclude based on the plain language and purpose of section 9-121(b) that the legislature intended that a motion to seal is a freestanding, collateral action not subject to the ordinary 30-day jurisdictional time limit. See id. at 972, 344 Ill.Dec. 399, 936 N.E.2d 1156. Consequently, we find the circuit court did not err when it determined it had subject matter jurisdiction to consider defendant's motion to seal.

¶ 27 Nonetheless, plaintiff maintains that we lack appellate jurisdiction because the order denying the motion to seal was not a final order.

¶ 28 Pursuant to the Illinois Constitution, our jurisdiction is limited to appeals from final judgments. Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Absent a supreme court rule, we lack jurisdiction to review judgments, orders, or decrees that are not final. Blumenthal v. Brewer , 2016 IL 118781, ¶ 22, 410 Ill.Dec. 289, 69 N.E.3d 834 (citing EMC Mortgage Corp. v. Kemp , 2012 IL 113419, ¶9, 367 Ill.Dec. 474, 982 N.E.2d 152 ). "An order is final and thus appealable if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof." BankFinancial, FSB v. Tandon , 2013 IL App (1st) 113152, ¶ 18, 370 Ill.Dec. 817, 989 N.E.2d 205 (citing Wilson v. Edward Hospital , 2012 IL 112898, ¶ 19, 367 Ill.Dec. 243, 981 N.E.2d 971 ).

¶ 29 Here, as discussed, the eviction action was dismissed with prejudice in its entirety on the basis of the agreed order and the motion to seal was an independent, collateral action. We therefore find that the order denying defendant's motion to seal is a final and appealable order as it disposed of the rights of the parties as to the issue of sealing and there were no other pending claims or issues as to the underlying litigation. See Village of Bellwood v. American National Bank and Trust Co. , 2011 IL App (1st) 093115, ¶ 15, 351 Ill.Dec. 775, 952 N.E.2d 148 (finding an order denying a party's motion to abandon eminent domain proceedings was a final and appealable order).

¶ 30 In so finding, we reject plaintiff's argument that by pursuing her motion to seal defendant was attempting to unilaterally modify the agreed order. As we have found, defendant's motion to seal does not attack or contest the agreed order or the resulting dismissal with prejudice; rather, defendant sought only that her court file be sealed, which was a separate and distinct proceeding from the underlying litigation and the agreed order. See id. ¶ 16.

¶ 31 In summary, we thus conclude the circuit court had subject matter jurisdiction to consider defendant's motion to seal and we have jurisdiction to entertain defendant's appeal from the order denying that motion.

¶ 32 B. The Motion to Seal

¶ 33 On appeal, defendant maintains that the circuit court erred (1) in its interpretation of section 9-121(b) and (2) when it denied her motion to seal. We address each claim in turn.

¶ 34 1. Statutory Construction of Section 9-121 (b)

¶ 35 For ease of reference, we again set forth section 9-121(b) :

"Discretionary sealing of court file. The court may order that a court file in a forcible entry and detainer action be placed under seal if the court finds that the plaintiff's action is sufficiently without a basis in fact or law, which may include a lack of jurisdiction, that placing the court file under seal is clearly in the interests of justice, and that those interests are not outweighed by the public's interest in knowing about the record." 735 ILCS 5/9-121(b) (West 2016).

¶ 36 Defendant raises two issues of statutory construction. First, defendant maintains that the trial court improperly read the statute to require a showing of three, instead of two, separate elements. Defendant contends that the second comma in subsection (b) should be construed as an "or" not "and." Thus, defendant asserts that the trial court has the discretion to seal the records either where the movant has demonstrated the matter is without a sufficient basis in fact or law or where the interests of justice outweighs the public's interest in the transparency of the judicial system. Defendant maintains that such a construction of section 9-121(b) gives effect to the legislature's intent, which, according to defendant, is to "make it easier for courts to seal eviction records" and to protect individuals who "find themselves with a black mark on their proverbial permanent record." (Internal quotation marks omitted.) 96th Ill. Gen. Assem., House Proceedings, Apr. 23, 2010, at 22 (statements of Representative Fritchey).

¶ 37 Plaintiff responds that the circuit court correctly determined that under section 9-121(b), the court must make three findings, and not two, before sealing a file.

¶ 38 We agree with plaintiff that the plain language of the statute indicates that the legislature intended for the circuit court judge to render three distinct findings under section 9-121(b). First, the statute expressly states that the circuit court may enter an order sealing the eviction court file upon findings that (1) the action is without a sufficient basis in fact or law, (2) the sealing is clearly in the interests of justice, and (3) those interests of justice outweigh the public's interest in knowledge of the case. 735 ILCS 5/9-121(b) (West 2016). The plain language dictates such a reading. After directing the court to make these certain findings, the statute lists those findings, with each finding preceded by the word "that." These necessary findings are separated by a comma and the word "and" is employed after the final comma. The well established rules of statutory construction require that the word "and" be read "as conjunctive and not disjunctive" and that the use of the word " 'indicates that the legislature intended that all of the listed requirements are to be met.' " (Emphasis in original.) Soh v. Target Marketing Systems , 353 Ill. App. 3d 126, 131, 288 Ill.Dec. 455, 817 N.E.2d 1105 (2004) (citing 1A N. Singer, Sutherland on Statutory Construction § 21.14, at 129 (5th ed. 1993). We conclude that the legislature intended for these findings to be read conjunctively in a series. Accordingly, we decline to adopt defendant's reading of the statute, which would require us to read a word ("or") into the statute that does not exist. See Weather-Tite, Inc. v. University of St. Francis , 233 Ill. 2d 385, 390, 330 Ill.Dec. 808, 909 N.E.2d 830 (2009) ("We will not depart from a statute's plain language by reading into it exceptions, limitations, or conditions that conflict with the legislative intent.").

¶ 39 Second, defendant asserts that the circuit court improperly interpreted the statute to require a determination that plaintiff's eviction action was sufficiently without a basis in fact or law when it was initially filed . Defendant maintains that because the statute uses the word "is" in the phrase "if the court finds that the plaintiff's action is sufficiently without a basis in fact or law," the proper reading of the statute requires the circuit court to consider whether plaintiff's case currently (i.e. at the time the motion to seal is filed) presents a sufficient basis. Defendant further asserts that because the circuit court lacked jurisdiction over the eviction action itself when the motion to seal was filed the action was to be viewed as "currently" being without a sufficient basis in law or fact.

¶ 40 In response, plaintiff argues that a court lacks jurisdiction in "every single case where the time period for taking any legal action has expired." Plaintiff contends that defendant's reading of the statute would lead to absurd results where, just as a consequence of the passage of time, the first element of section 9-121(b) can be satisfied.

¶ 41 We agree with plaintiff that defendant's interpretation (that any time the court lacks jurisdiction over the claim the action would automatically be without a basis in fact or law) would lead to an absurd result. See Christopher B. Burke Engineering, Ltd. v. Heritage Bank of Central Illinois , 2015 IL 118955, ¶ 17, 398 Ill.Dec. 53, 43 N.E.3d 963 (this court "avoids interpreting statutes in a manner that would create absurd results"). Clearly, the legislature did not intend for this first element to be met solely on the basis of the passage of time, e.g., that 30 days had expired since the circuit court rendered a final judgment or a determination on a posttrial motion in the eviction action. To allow such a result would essentially render this element superfluous, for in order to satisfy the first element all a party in an eviction action would need to do is wait until the circuit court no longer had jurisdiction and then file the motion to seal. See Better Government Association v. Illinois High School Association , 2017 IL 121124, ¶ 22, 417 Ill.Dec. 728, 89 N.E.3d 376 ("A reasonable construction must be given to each word, clause, and sentence of a statute, and no term should be rendered superfluous."). This cannot be what the legislature intended.

¶ 42 The inclusion of the phrase "which may include a lack of jurisdiction" thus informs us of the timing of the preceding clause, "if the court finds that the plaintiff's action is sufficiently without a basis in fact or law." 735 ILCS 5/9-121(b) (West 2016). As lack of jurisdiction cannot mean a lack of jurisdiction simply because the matter has concluded at the time the motion to seal is filed, it must therefore mean a lack of personal or subject matter jurisdiction while the case was pending. As previously discussed, the "which may include a lack of jurisdiction" language thus contemplates a defendant challenging subject matter or personal jurisdiction issues at the outset of the matter, but at least before the matter concludes. Id. Therefore, it follows that the circuit court is to examine whether a plaintiff's action is sufficiently without a basis in fact or law on all other ground as well while the matter was pending.

¶ 43 In sum, the plain language of section 9-121(b) of the Act requires the circuit court to render findings regarding three distinct elements, where determination of the first element must be made in consideration of whether the case when pending had a sufficient legal and factual basis.

¶ 44 2. The Propriety of the Circuit Court's Ruling on the Motion to Seal

¶ 45 Having so interpreted the statute, we now turn to consider whether the circuit court correctly denied defendant's motion to seal solely on the first prong of section 9-121(b), when it found that plaintiff's action had a sufficient basis in fact or law. See 735 ILCS 5/9-121(b) (West 2016).

¶ 46 A circuit court's determination as to whether court records should be sealed is reviewed for an abuse of discretion. Skolnick v. Altheimer & Gray , 191 Ill. 2d 214, 233, 246 Ill.Dec. 324, 730 N.E.2d 4 (2000). The threshold for finding an abuse of discretion is a high one and will not be overcome unless it can be said that the circuit court's ruling was "arbitrary, fanciful, or unreasonable, or that no reasonable person would have taken the view adopted by the [circuit] court." Sharbono v. Hilborn , 2014 IL App (3d) 120597, ¶ 29, 382 Ill.Dec. 251, 12 N.E.3d 530. When reviewing for abuse of discretion, the appellate court does not substitute its judgment for that of the circuit court or determine whether the circuit court acted wisely. Andersonville South Condominium Association v. Federal National Mortgage Co. , 2017 IL App (1st) 161875, ¶ 28, 418 Ill.Dec. 703, 91 N.E.3d 404.

¶ 47 On appeal, defendant argues that plaintiff's eviction action had no basis in law because at the time the motion to seal was filed, the eviction action had been dismissed with prejudice and thus the circuit court lacked jurisdiction over the eviction action. We disagree. As previously discussed, this argument is based on a misinterpretation of section 9-121(b). If we were to agree with defendant's argument, any defendant who waited until the circuit court lost jurisdiction over the eviction action would automatically satisfy the first prong of the statute. This cannot be what the legislature intended as there would be no discretion for the circuit court to exercise regarding this element. See Landheer v. Landheer , 383 Ill. App. 3d 317, 321, 322 Ill.Dec. 684, 891 N.E.2d 975 (2008) (a court may not depart from the plain language of the statute and read into it conditions that are inconsistent with the express legislative intent). Defendant has offered no other argument that the case had an insufficient basis in fact or law. It is not "the obligation of this court to act as an advocate or seek error in the record" ( U.S. Bank v. Lindsey , 397 Ill. App. 3d 437, 459, 336 Ill.Dec. 306, 920 N.E.2d 515 (2009) ), nor is it the province of this court to substitute our judgment for that of the circuit court ( Andersonville South Condominium Association , 2017 IL App (1st) 161875, ¶ 28, 418 Ill.Dec. 703, 91 N.E.3d 404 ). Defendant has thus forfeited further review of this issue. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017) (points not argued on appeal are forfeited); see Vine Street Clinic v. HealthLink, Inc. , 222 Ill. 2d 276, 301, 305 Ill.Dec. 617, 856 N.E.2d 422 (2006) (arguments not raised in either the circuit or appellate court are forfeited); Guarantee Trust Life Insurance Co. v. Platinum Supplemental Insurance, Inc. , 2016 IL App (1st) 161612, ¶ 41, 409 Ill.Dec. 628, 68 N.E.3d 481 (declining to consider an argument not raised on appeal). Consequently, we conclude that the trial court did not abuse its discretion when it denied defendant's motion to seal.

¶ 48 CONCLUSION

¶ 49 For the reasons stated above, we affirm the determination of the circuit court of Cook County.

¶ 50 Affirmed.

Justices Lampkin and Rochford concurred in the judgment and opinion.

      As of January 1, 2018, the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2018) ) is now known as the Eviction Act. We will use the title of the Act in effect at the time of the filing of this suit.

      Pursuant to section 9-106 of the Act, a defendant need not file an answer or any other pleading, but instead "may under a general denial of the allegations of the complaint offer in evidence any matter in defense of the action." 735 ILCS 5/9-106 (West 2016).

      We observe that this section was amended effective January 1, 2018. The amendment, however, did not substantively change subsection (b), as only the phrase "forcible entry and detainer action" was changed to "eviction action."