author: PRESIDING JUSTICE WILSON

text:
    ELLIOTTE E. GREENE, Petitioner-Appellant, v. BOARD OF ELECTION COMMISSIONERS OF THE CITY OF CHICAGO, a/k/a Municipal Officers Electoral Board of the City of Chicago, et al., Respondent-Appellees.
    First District (5th Division)
    No. 83—305
    Opinion filed February 18, 1983.
    Ronald S. Samuels, of Washington, Kennon, Hunter & Samuels, of Chicago, for appellant.
    Andrew M. Raucci, of Kusper & Raucci, of Chicago (Mickey Levinson, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Cassandra Holbert (respondent) filed a petition with the Board of Election Commissioners of the city of Chicago (the Board) objecting to the nomination papers of petitioner, Elliotte Greene, who was seeking to run in an upcoming aldermanic election for the sixth ward in Chicago. The Board sustained respondent’s objections. Petitioner appeals the trial court’s affirmance of that decision.

On January 10, 1983, respondent, a registered voter of the sixth ward in Chicago, filed a petition with the Board objecting to petitioner’s nomination papers. Respondent’s petition alleged that petitioner was ineligible to be placed on the ballot because his nomination papers failed to contain 342 valid signatures, the minimum number needed. Respondent requested that petitioner’s name be stricken from the list of candidates for alderman.

On January 13, 18, 21, 22 and 24, 1983, the Board conducted hearings on the objections. Petitioner stated that he was entering a limited and special appearance, that he had never received service of process and that the Board therefore lacked jurisdiction over the hearings. The Board responded that the sheriff’s return indicated that service on petitioner had been attempted four times, an attempt was made to serve him by certified mail and that petitioner had received actual notice in addition thereto because his attorney had appeared for him on the first day of the hearings. Over counsel’s objection, respondent then called petitioner as an adverse witness.

Petitioner’s testimony was conflicting. First, he stated that he had not learned until that morning, January 18, that his nominating petitions had been objected to and that he had never seen a copy of respondent’s objections. Upon further questioning, however, petitioner said that several weeks ago (after the objections had been filed) he called an attorney and they discussed his nominating petitions as well as the objections. The attorney thereafter obtained a copy of the objections and he and petitioner spoke. On cross-examination, petitioner again stated that he had neither personally received a copy of the respondent’s petition nor had he received a notice of the Board’s call. He said that he had not intentionally avoided service of process.

The Board chairman next questioned petitioner. He stated that he was an insurance salesman, that he rarely received business mail at home and that his mother usually checked his mailbox. Petitioner had not looked in his mailbox in a week. The only mail he had received or that had been received for him was a rate announcement from an insurance company. No further questions were asked of petitioner.

Petitioner then reiterated his argument that the Board lacked jurisdiction, whereupon the Board chairman answered that had no one appeared on petitioner’s behalf, the case would have been defaulted but that since an attorney had appeared and went forward, jurisdiction attached. The Board chairman further stated that the law could not be interpreted to permit the defeat of an objector’s petition merely by a candidate’s “going on vacation” in an attempt to avoid service. The Board then permitted respondent to go forward with the case. When petitioner asked whether respondent must make out a prima facie case, respondent interjected that petitioner was now in fact arguing the merits of the case and that by doing so he waived his special and limited appearance. The Board chairman responded that because the Board had jurisdiction and because the respondent’s petition was verified, it would proceed. The Board then ordered a binder check.

The binder check resulted in the disqualification of 165 of the names on petitioner’s nomination petitions. Only 265 valid signatures remained. The statutory minimum number of signatures needed to be placed on the sixth ward aldermanic ballot was 342.

Petitioner challenged the thoroughness, accuracy and relevancy of the binder check procedure. He maintained that a voter’s eligibility for purposes of signing a nominating petition should be determined at the time the voter signs the petition and not when a binder check is later made. Petitioner pointed out that a voter who had moved into the sixth ward from a different ward, who had not notified the Board of a change of address and who signed a nominating petition in September 1982 would erroneously be considered unqualified because a binder check in January 1983 would show that the voter was not registered in the sixth ward on the day he had signed the petition. The Board countered that if a voter’s name could not be found in the binder, the master files would then indicate whether or not the voter was registered at the address shown on the nominating petition. The Board thereupon admitted the binder check report into evidence. A master file examination was then granted, pursuant to petitioner’s request.

Following the master file examination, petitioner continued his argument before the Board. He first called Robert Sawicki, the assistant executive director for the Board. Sawicki testified that most of the Board’s work was done under his supervision and control. His duties included issuing the Board’s reports on hearings such as the present one. Sawicki explained that when a voter’s registration was challenged, the binder and master file would be checked. He also stated that at certain times, a record is kept of cards that are removed from the binder. The Board then terminated counsel’s examination of Mr. Sawicki on the grounds that there was no evidence in the record to show that any voter cards in question in this hearing had been removed. Petitioner continued to argue before the Board, stressing that the respondent has the burden of proof that the signatures on his nominating petition were invalid. Respondent replied that since petitioner was challenging the Board’s procedure, those signatures questioned should be sent back to be examined by the Board’s handwriting expert as conclusive evidence as to whether they were forgeries. In an attempt to finally settle this dispute, the chairman of the Board ordered the entire matter sent back for a special search to be as exhaustive as at all possible, commenting, “We will stay here all night if we have to.” When asked by the Board as to how much time he would need to prepare, Sawicki stated that it would take about nine minutes for his staff to get organized. The record reveals that immediately thereafter, petitioner and his counsel left the building. Respondent so informed the Board chairman, who directed that since petitioner “did not see fit to cooperate *** but instead has decided to go out for lunch, the work will proceed and begin immediately.” Petitioner and his counsel apparently returned soon afterwards, for the record further reveals that they observed the record search procedure.

The record search resulted in petitioner gaining no additional valid signatures. Upon examination by the Board chairman, Carmen Pánico, manager of records processing for the Board, testified that he participated in the record analysis of the names given to him by petitioner and that his staff checked the master files, the “new kick-ins” (the daily processing that comes to the board which must be filed into the master file units) and the file maintenance “runs” (new registrations and change of address records from the computer). Pánico explained that the file maintenance reports would reflect a voter’s change of address within the same ward as well as a change of address from one ward to another ward. These records were made available to the Board’s staff to examine. At petitioner’s request, file maintenance reports were provided for September through November, 1982. Entries in the maintenance reports during the last two days of August were included in the September 1982 report. File maintenance reports for each day beginning September 1 were made available to petitioner. The last date of the file maintenance report provided was January 21 or 22. Pánico further testified that petitioner was provided with (1) the file maintenance report that the Board separately keeps for the public libraries; (2) the file maintenance report for an October 1982 precinct registration and (3) suspense lists (lists which are prepared as a result of the Board’s door-to-door canvas taken prior to each election) for February and October, 1982.

On cross-examination, Pánico stated that except for the unprocessed work of his staff, the computer records were current up to January 23, 1983. (The hearings on petitioner’s nominating petitions commenced January 13 and ended January 24, 1983.) He stated that approximately two to 3,000 address changes or new registration cards are completed by his staff every day. Under further questioning, Pánico said that if a voter moved from a different ward into the sixth ward and had filed a change of address, that person’s name would not show up in the master file as a registered voter in the sixth ward until the change of address card was processed. The names of registered voters whose registrations had been challenged for failure to vote would be placed in an “inactive unit.” Those files were made available to petitioner, Pánico stated.

The Board chairman next examined Pánico. He testified that all new registrations and change of addresses should either be in the master file or at the assembly point of such cards for insertion in the master file. If they were in neither place, Pánico stated that he would be aware of it. Pánico stated that when searching for the names petitioner provided him, his staff was directed to look through the cards that had been assembled for insertion into the master file.

Next to testify was Andrew Draus, who was questioned on direct and cross-examination about the worksheets on which results of the binder check are entered. When questioned by respondent as to which column an entry was made when a binder card could not be located, Draus’ testimony conflicted. First he said that an entry would be made in one column, but, after further questioning, he stated that it would be made in another. Draus also stated that in some instances either he or another Board employee had printed petitioner’s name at the bottom of a worksheet as having personally observed the binder check because “he [petitioner] refused [to sign his own name] because the binder was in court.” The Board chairman then stated that he noticed that one worksheet had not been signed by anyone.

Next to testify was Angelo Stenzo, who had worked with Andrew Draus on checking petitioner’s nominating petitions. Stenzo said that his job was to enter the line by line results of the binder check on the Board’s worksheet according to Draus’ directions. On cross-examination, Stenzo merely repeated his duties.

Petitioner then argued that there were “gaps in the system” which prevented many voters from being eligible to sign a nominating petition. Respondent stated that she had sustained her burden of making out a prima facie case and rested on the report of the binder checks. Petitioner then made a motion for a directed verdict, which was denied.

In holding that petitioner’s name would not be placed on the ballot, the Board stated that: (1) the inactive files (which included the names of persons ineligible to vote because of a lapse of four years since the time they voted) had been made available to petitioner, (2) that contrary to petitioner’s argument, the Board records do reflect prior addresses of voters, and that (3) the Board was bound by its prior decisions which have been that people who sign a nominating petition must be registered to vote at the address they give on the petition. The hearing then terminated. The Board’s decision was affirmed by the trial court, and this appeal followed.

Opinion

We first address petitioner’s contention that the Board was without jurisdiction to entertain the objections because service of process was never successfully made.

We note at the outset that the Board of Election Commissioners is statutorily empowered to receive and hear objections to primary nominating petitions. (Ill. Rev. Stat. 1981, ch. 46, pars. 10 — 9, 10 — 10.) The Election Code cited above further provides that a candidate shall receive a call (notice of objections) by registered or certified mail and by the sheriff. (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 10.) In the case at bar, the sheriff attempted to serve petitioner four times. Service was attempted by certified mail as well. Petitioner finally received notice of the hearings by subpoena. He later testified that he had heard from friends that his nominating papers were being contested. When petitioner did appear before the Board, he stated that he was making a special and limited appearance because the Board had failed to properly serve him.

The record reveals and the Board so stated that there was no evidence that petitioner attempted to evade service. His special and limited appearance was duly noted by the Board chairman. The Board stated, however, that since petitioner was present, it would proceed with the hearing and that petitioner could either default or he could choose to participate. Petitioner, in effect, chose to participate. Although he repeatedly stated that he was making a special and limited appearance, he thereafter testified under oath as an adverse witness, cross-examined other witnesses and exhaustively argued the merits of his case before the Board. We conclude that petitioner’s participation effectively waived his special and limited appearance. His proper recourse, had he wanted to preserve his special appearance, would have been to default and then appeal from the Board’s decision. Although a special appearance enables a party to present his challenge to jurisdiction without thereby creating it and waiving the point (Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 404 N.E.2d 537), the rule in Illinois for many years has been that a special appearance is waived when a party raises a defense (Powers v. Powers (1964), 46 Ill. App. 2d 57, 196 N.E.2d 731), makes a motion, files a pleading or takes any other step which the court would have no power to dispose of without jurisdiction of his person. (Welter v. Bowman Dairy Co. (1943), 318 Ill. App. 305, 47 N.E.2d 739.) Any action taken by a party which invokes the court’s power to adjudicate an issue is deemed to be a submission to jurisdiction of the court. (Miller v. Douglas (1963), 44 Ill. App. 2d 429, 195 N.E.2d 224 (abstract).) We therefore hold that petitioner’s full participation on the merits of the hearing before the Board converted his special appearance to a general appearance. Petitioner therefore waived any defects in the Board’s service of process.

We next turn to petitioner’s argument that section 10 — 4 of the Election Code should be construed to mean that to be a qualified voter for purposes of signing a nominating petition, one need only (1) be registered to vote (albeit anywhere in the State of Illinois) and, (2) pursuant to section 6 — 27, the voter must have resided in the ward for 30 days prior to the next election at the time he signs the petition. (Ill. Rev. Stat. 1981, ch. 46, par. 6 — 27.) Section 10 — 4 (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 4) requires that as to nominating petitions under the Article:

“*** Such petition shall be signed by the qualified voters in their own proper persons only, and opposite the signature of each signer his residence address shall be written or printed. *** No signature shall be valid or be counted in considering the validity or sufficiency of such petition unless the requirements of this Section are complied with. ***”

Petitioner contends that although the signatory must, of course, be registered to vote, he need not be registered to vote at the address he gives on the nominating petition. We disagree and think that the holdings in Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 430 N.E.2d 99, and Stout v. Black (1972), 8 Ill. App. 3d 167, 289 N.E.2d 456, are persuasive on this issue.

In Schumann, the court considered the issue of whether the signatories’ addresses on a nominating petition were correctly set forth pursuant to the requirements of section 10 — 4. The court affirmatively stated that although the section uses both the terms “qualified voter” and “registered voter,” the terms are not interchangeable relative to the circulator’s affidavit. The court stated that it is not enough that a voter be “qualified.” The terms as used in section 10 — 4 mean that those eligible to sign nominating petitions must be registered voters. Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 459.

The petitioner’s argument in Stout is similar to the one made by petitioner Greene in the case at bar. The petitioner in Stout contended that a voter is “qualified” by residence, citizenship and age, and that while registration may be a prerequisite to voting in a specific election, it is not a part of the term “qualified voter.” The court disagreed and held that a “qualified voter” refers to a person who has met all the statutory qualifications to vote, including registration when registration is required in the election for the particular office for which nomination is made. Stout v. Black (1972), 8 Ill. App. 3d 167, 170.

Stout and Schumann clearly state that to be a qualified voter under section 10 — 4, one must be registered to vote. We further hold, however, that a person who signs a nominating petition must be registered to vote at the residence address set forth on the nominating petition. We have read the provisions of the Election Code in pari materia and conclude that this requirement is in accordance with the legislature’s intent. To hold otherwise would unnecessarily obfuscate the clear purpose of section 10 — 4, which seeks to preserve the integrity of the election process by insuring that signers of nominating petitions be duly registered voters in the political division in which they reside. To hold otherwise would also create an unending series of loopholes through which unscrupulous, would-be candidates could escape. While it is patently clear that petitioner had every good intention of obtaining valid signatures from duly registered voters for his nominating petition, were we to construe section 10 — 4 to mean that a voter could be registered in any ward or city in the State of Illinois, it would be exceedingly difficult for the Board to verify that the voter was registered at all. If a person was not registered at the address shown on the nominating petition, the Board would be required to in effect search the voter registration records for the entire State (if the voter had never resided in Chicago but had recently moved there). Of course, such a burdensome responsibility would be untenable. Nonetheless, such a predicament occurred in the case at bar. At least one of petitioner’s signatories had moved from a city outside Chicago into the sixth ward. Naturally, the Board could not verify that that person was registered in the sixth ward, and it consequently sustained the objection to that signature as being invalid.

We believe that our holding today comports with the clear intent of section 10 — 4. In support of this view is the fact that the statute requires that the circulator must be a registered voter and that he must give his residence address. The information required in section 10 — 4 to be included in the circulator’s affidavit is as follows:

“*** At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political division for which the candidate or candidates shall be nominated, stating his residence address (and if a resident of a city having a population of over 10,000 by the then last preceding federal census, also stating the street and number of such residence), certifying that the signatures on that sheet of the petition were signed in his presence and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petition duly registered voters under Articles 4, 5 or 6 of the Code *** and that their respective residences are correctly stated therein.” Ill. Rev. Stat. 1981, ch. 46, par. 10 — 4.

Under the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 3 — 2), for voting purposes residence means permanent abode, a person’s principal dwelling place. (Delk v. Board of Election Commissioners (1983), 112 Ill. App. 3d 735, 738; Stein v. County Board of School Trustees (1967), 85 Ill. App. 2d 251, 229 N.E.2d 165, aff’d (1968), 40 Ill. 2d 477, 240 N.E.2d 668.) We further agree with the court in Stein that:

“The residency requirement with regard to elections serves as a protection in that it aids in the identification of voters. More importantly, it helps assure that those who are expressing their will have been in the area sufficiently long to become informed on the issues; that they intend to remain there; and that they will have an honest interest in the matter upon which a vote is being taken. These elements are of greater significance when the issue, as here, is essentially a local one.” 85 Ill. App. 2d 251, 258.

In addition, we do not believe that a person may have a permanent residence in two places at the same time. Delk v. Board of Election Commissioners; Stein v. County Board of School Trustees; Anderson v. Pifer (1924), 315 Ill. 164, 146 N.E. 171.

For our final consideration is the propriety of the circuit court’s affirmance of the Board’s decision. We believe the circuit court’s ruling was correct. Findings of an administrative agency will not be reversed or set aside unless they are against the manifest weight of the evidence. (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 432 N.E.2d 1333; Williams v. Butler (1976), 35 Ill. App. 3d 532, 341 N.E.2d 394.) Moreover, the findings of an administrative agency are deemed to be prima facie true and there need only be some competent evidence in the record sufficient to support the agency’s findings. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 538; Sangamo Construction Co. v. Pollution Control Board (1975), 27 Ill. App. 3d 949, 328 N.E.2d 571.) We have reviewed the record and find that there is indeed competent evidence to support the Board’s decision. Contrary to petitioner’s argument, the record shows that the Board’s voter registration records were checked beginning with September 1982, the month petitioner began circulating his nominating petitions, and not just for the days of the Board hearings, January 13 through 24. In fact, a Board employee testified that the file maintenance report beginning September 1, 1982, would reflect entries made during the last one or two days of August 1982. We are further convinced that all of the Board’s voter registration data were made available to petitioner. This data included a binder check, master files, suspense files and computer printouts (file maintenance reports). This report would show a change of address both within the same ward as well as a change that was not within the ward. There was also testimony that even the trays of records that had been alphabetized and were about to be processed were checked at petitioner’s request. In addition, the Board’s handwriting expert was available to compare signatures that were questioned. As a result of this exhaustive review of the Board’s records, petitioner still lacked the minimum number of valid signatures he needed to be placed on the ballot. Although petitioner unrelentingly argued that the Board’s method of ascertaining a voter’s eligibility to sign a nominating petition was defective, he failed to show that the objections that were sustained by the Board were improper. We therefore agree with the trial court that the decision of the Board was not against the manifest weight of the evidence.

For the reasons stated herein, the trial court’s judgment affirming the Board’s decision is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
      In re ESTATE OF JEANETTE DENARO, a/k/a Jeanette Gerace.—(William Leakas, Appellant, v. Angela Cafazzo et al., Appellees.)
    First District (4th Division)
    Nos. 81—2142, 81—2682 cons.
    Opinion filed February 17, 1983.

      Phillip S. Makin, of Chicago (Harry G. Fins, of counsel), for appellant.
    Alvin R. Becker, of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Jeanette Denaro (decedent) died testate in 1976. Her will, which was admitted to probate on December 10, 1976, named decedent’s niece and nephew as legatees; appellant William Leakas was named executor. The assets of the estate totalled approximately $26,000.

In 1980 decedent’s niece wrote to the probate court judge to express her dissatisfaction with the administration of the estate. The court appointed Alvin R. Becker special administrator. Hearings on the unverified final account filed by Leakas were scheduled and continued repeatedly; finally the court removed Leakas as executor, appointed Becker administrator de bonis non with the will annexed, and ordered Leakas to deliver the assets of the estate to Becker.

Leakas appeals both his removal as executor and the order to deliver assets to Becker. In these two consolidated appeals Leakas argues that (1) the trial judge violated the supreme court’s standards of judicial conduct by corresponding with decedent’s niece without Leakas’ knowledge; (2) the trial judge improperly denied him a continuance while he was on active duty in the United States Army; (3) the trial judge improperly denied his petition for a change of venue; (4) the citation to show cause why he should not be removed as executor was insufficient in that it failed to inform him of the reason for his removal; and (5) the trial court lacked jurisdiction to enter the order to deliver assets to the newly appointed administrator because Leakas had filed a notice of appeal of his removal as executor.

We affirm the decision of the trial court.

Facts

Jeanette Gerace Denaro died on July 17, 1976, leaving a will naming William Leakas executor. Two legatees were named: decedent’s niece, Angela Peppie Cafazzo, and nephew, Charles Cirrincione, both residents of Cincinnati, Ohio. The principal asset of the estate was an eight-unit apartment building in Chicago that had an estimated value of $29,000 when the will was admitted to probate on December 10, 1976. With the court’s permission, Leakas subsequently sold the building for $22,000. The only other valuable items in the estate were $30 in cash, and jewelry and coins worth $758.25.

On June 2, 1980, Leakas notified the legatees that on July 15, 1980, he would present his final account to the probate court for approval. This was not done, but on June 9, 1980, one of the legatees, Angela Cafazzo, wrote the trial judge that Leakas’ attorney had sent both legatees a voucher requesting that they acknowledge receipt of $936.08 as their shares in the distribution of the estate. Cafazzo refused to sign because she had not received the money. Cafazzo’s letter to the judge criticized the actions and expenditures of Leakas and his attorney in administering the estate.

On October 28, 1980, Cafazzo again wrote to the probate court, judge asking for a reply to her letter of June 9, and the judge responded on October 30 with a request that she furnish copies of documents relevant to the questions she had raised. Cafazzo sent the requested documents on November 1, 1980, and sent additional documents on November 12, stating at that time that in spite of the notice of account from Leakas, neither she nor. her brother, the other legatee, had received a final accounting. On November 4, 1980, the trial judge notified Leakas’ attorney that Leakas was to appear in court on November 20,1980, to file his final account.

The judge began the November 20 proceedings by informing Leakas’ counsel that Cafazzo had written to him, and he read the letters into the record. Leakas filed a final account unaccompanied by supporting vouchers, on November 21, 1980, and subsequently withdrew it. An amended final account was filed on December 5, 1980, also without vouchers. The account indicated total receipts of $24,906.10, disbursements of $22,180.21, distribution in kind of $758.25, and cash distribution to each legatee of $983.82. On November 21, 1980, the court appointed Alvin Becker special administrator and continued the matter until December 17, 1980. On December 12, 1980, the hearing on the final account was continued to January 29, 1981.

On December 30, 1980, the court entered an order granting leave to all parties in interest to file objections to the final account. Hearing on the matter was continued to March 16, 1981. Becker filed objections to the legatees’ receiving a total of only $1,967.64 from an estate of $25,906.10, and to the fees and expenses of $10,005.47 requested by Leakas and his attorney.

Leakas subsequently requested and received three more continuances. When the last of these continuances was granted on Leakas’ motion representing that he was on military duty and therefore unavailable, the court provided that the continuance was being granted with the understanding that Leakas and his commanding officer would present affidavits explaining Leakas’ unavailability. This was not done, although in seeking yet another continuance Leakas did submit to the court a letter from his commanding officer stating that he was on active duty in Glenview, Illinois.

When Leakas failed to appear for a hearing on June 25, 1981, the court entered an order directing Becker, the special administrator, to prepare a citation to Leakas to show cause why he should not be removed as executor. Leakas was directed to appear on July 8, 1981. On that date Leakas filed a petition for change of venue, alleging that the trial judge was prejudiced against him and that he could not receive a fair hearing with respect to his administration of the estate. The trial judge denied the petition. Leakas filed a notice of appeal and, claiming that the trial court had accordingly lost jurisdiction, declined to participate further in the proceedings. On July 31, 1981, this court dismissed the appeal for want of an appealable order. The trial court continued the citation to remove Leakas as executor to August 7, 1981, and directed Leakas and his counsel to appear; they failed to do so, and requested another continuance.

On August 10, 1981, nunc pro tunc August 7, 1981, the trial court denied the requested continuance, removed William Leakas as executor, and appointed Alvin Becker administrator de bonis non with the will annexed. The court stated an account on behalf of Leakas (see Ill. Rev. Stat. 1981, ch. lKE/a, par. 24 — 15) and ordered him to deliver to Becker on September 4, 1981, all the assets of the estate except those for which satisfactory vouchers were filed. On August 23, 1981, Leakas filed a notice of appeal from the citation for his removal, the denial of a change of venue, and his removal as executor. Leakas failed to appear on September 4 and failed to deliver the assets of the estate to Becker. Accordingly, on September 8, 1981, the trial court entered judgment in favor of Becker and against Leakas in the amount for which the court stated an account, $25,906.10. Leakas’ motion to vacate this order was denied. Following Leakas’ filing of a $26,000 appeal bond, all trial court proceedings were stayed. On October 30, 1981, Leakas filed another notice of appeal seeking review of the September 8 order and the trial court’s subsequent refusal to vacate it. Leakas’ two appeals have been consolidated.

Opinion

Leakas’ first argument on appeal is that the trial judge violated the supreme court’s standards of judicial conduct (87 Ill. 2d R. 61(c)(16)) by corresponding with Angela Cafazzo without Leakas’ knowledge. We find this contention totally unpersuasive. At the time the correspondence took place, almost four years had elapsed since the will had been admitted to probate. At the first court proceeding following the exchange of letters, 20 days after the judge responded to Cafazzo’s letter, the judge informed Leakas’ counsel of the communication and read the letters into the record. The supreme court rule that Leakas claims was violated provides:

“Ex parte communications. Except as permitted by law, a judge should not permit private or ex parte interviews, arguments or communications designed to influence his judicial action in any case, either civil or criminal.
A judge should not accept in any case briefs, documents or written communications intended or calculated to influence his action unless the contents are promptly made known to all parties.” (87 Ill. 2d R. 61(c)(16).)

In our judgment, the trial judge’s conduct clearly was not improper under either paragraph of this rule. The letters from Cafazzo appear to be an effort to enlist the court’s aid in achieving a proper settlement of the estate rather than an attempt to influence the court’s judgment. Further, in view of the number of years that had elapsed since the will was admitted to probate in an obviously simple estate administration proceeding, we consider the disclosure of the communication by the judge to have been sufficiently prompt to satisfy the requirement of the second paragraph even if the communication was “intended or calculated to influence his action.”

Our conclusion is further supported by the long-established rule that a probate court, in administering an estate, may provide relief of an equitable nature where justice requires it to do so. (Berber v. Hass (1965), 57 Ill. App. 2d 109, 207 N.E.2d 96, citing In re Estate of Baughman (1960), 20 Ill. 2d 593, 170 N.E.2d 557.) The experienced and concerned trial judge in the case at bar was acting within the scope of his authority in responding to Cafazzo’s communication in order to determine whether a wrong had occurred, and then informing Leakas’ attorney of the communication at the next court proceeding in the matter. Accordingly, we find no merit in Leakas’ argument that the trial judge’s conduct was improper.

Leakas’ second claim of error is unpersuasive because it is a misstatement of the facts. Far from denying him a continuance because he was on active duty in the army, the trial judge granted him six continuances before ordering him to provide affidavits explaining his unavailability, which Leakas did not do.

When, at the court’s direction, Leakas finally did appear in response to a citation to show cause why he should not be removed as executor, he filed a petition for change of venue alleging that the judge was prejudiced against him. (Ill. Rev. Stat. 1979, ch. 110, par. 501(2).) Leakas now claims that the trial judge’s denial of that petition was error. We disagree.

It is true, as Leakas points out, that “[i]f a petition for a change of venue is timely, in proper form, and in compliance with the statute, the right to a change of venue in both civil and criminal cases is absolute.” (Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 250, 311 N.E.2d 673, 675, citing Hoffmann v. Hoffmann (1968), 40 Ill. 2d 344, 239 N.E.2d 792.) However, the court in Hoffmann went on to explain that “where it appears that the petitioner has by motions for continuances or other conduct attempted to delay or avoid trial prior to his motion for change of venue, the trial court can inquire into the good faith of the petitioner’s motion. [Citation.] If it becomes apparent that the request is made only to delay or avoid trial, the denial of the petition for change of venue does not constitute error. [Citations.]” 40 Ill. 2d 344, 348, 239 N.E.2d 792, 794.

As noted above, the record indicates that Leakas made numerous requests for continuances, failed to present affidavits explaining his unavailability although the sixth continuance was granted on that condition, and finally appeared only when a citation for his removal had been prepared. We believe these circumstances demonstrate that the Hoffmann criterion has been met and that the trial judge’s denial of Leakas’ petition for change of venue was proper.

Leakas’ fourth claim of error is that the citation to show cause why he should not be removed as executor was insufficient in that it failed to inform him of the reason for his removal. Again, we find this argument unpersuasive. The Illinois Probate Act of 1975 provides that a representative may be removed for a number of reasons, including failure to file an inventory or accounting after being ordered by the court to do so (Ill. Rev. Stat. 1979, ch. IIOV2, par. 23 — 2(a)(7)), or if there is other good cause (Ill. Rev. Stat. 1979, ch. IIOV2, par. 23 — 2(a)(10)). The Act also provides that before removing an executor “the court shall order a citation to issue directing the respondent to show cause why he should not be removed for the cause stated in the citation.” Ill. Rev. Stat. 1979, ch. IIOV2, par. 23 — 3(a).

Leakas cites In re Estate of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 298, for the proposition that an executor cannot be removed unless the reason therefor was stated in the citation for removal. While this is generally true, we do not agree that stating a specific reason is in all cases a prerequisite to the removal of an executor. In In re Estate of Abbott (1976), 38 Ill. App. 3d 141, 347 N.E.2d 215, an executor complained that he was removed improperly because no citation was issued as required by the applicable statute (Ill. Rev. Stat. 1973, ch. 3, par. 278). The court found that the record established statutory cause for his removal: he had failed to pay any attention to the business of the estate and failed to account for $33,500. The court concluded that this conduct showed nonfeasance, but not misfeasance, in his office as executor. Under these circumstances his removal by the trial court was affirmed because it was not contrary to the manifest weight of the evidence. A further reason for the affirmance was that “while procedural requirements for removal of the executor were not strictly followed *** [the court’s action was] substantially sufficient to insure compliance with the intent and purpose of the Probate Act” because the executor was afforded a fair hearing and “was not prejudiced by formal deficiencies in procedure.” 38 Ill. App. 3d 141, 144-45, 347 N.E.2d 215, 218.

In our view, the Abbott court’s analysis is dispositive of the case at bar. The record of Leakas’ repeated failure to appear for a hearing on his unverified accounting or to respond to the objections filed by the special administrator presents sufficient statutory cause for his removal as executor. Leakas had notice of all proceedings in the case and was afforded numerous opportunities for a hearing. Under the circumstances we find that Leakas was not prejudiced by any formal deficiencies in procedure and that the court’s action substantially complied with the intent and purpose of the Probate Act.

Leakas’ final argument in this appeal is that the trial court lacked jurisdiction to enter the order to deliver assets to the newly appointed administrator because Leakas had filed a notice of appeal of his removal as executor. Again, we disagree. The general rule is that the filing of an appeal divests the trial court of jurisdiction; however, the trial court retains jurisdiction to determine matters collateral or incidental to the judgment. (Horzely v. Horzely (1979), 71 Ill. App. 3d 542, 390 N.E.2d 28.) Collateral or supplemental matters include those lying outside the issues in the appeal or arising subsequent to delivery of the judgment appealed from. Arndt v. Arndt (1947), 331 Ill. App. 85, 72 N.E.2d 718, rev’d on other grounds (1948), 399 Ill. 490, 78 N.E.2d 272.

In Graff v. Graff (1979), 71 Ill. App. 3d 496, 389 N.E.2d 1206, this court held that a husband’s appeal from an order awarding his interest in the marital home to his wife did not divest the trial court of jurisdiction to order the associate judge in the land title division to execute a deed for that interest. The order was held to be proper because “the court was merely endeavoring to enforce its judgment.” (71 Ill. App. 3d 496, 503, 389 N.E.2d 1206, 1212.) Here, the probate court merely was enforcing the removal of Leakas as executor by ordering as a necessary incident to that judgment that the assets of the estate be turned over to the newly appointed administrator. Furthermore, counsel for Leakas conceded during oral argument that the order to deliver assets dealt with a collateral matter and that the trial court had jurisdiction to enter it. Accordingly, we find no error in the entry of this order.

For all of the reasons discussed above the judgment of the trial court is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    CRISPIN MAUNDER, Plaintiff-Appellant, v. DeHAVILLAND AIRCRAFT OF CANADA, LTD., Defendant-Appellee.—(Samuel J. Betar, Public Adm’r of Cook County, Adm’r of the Estate of Raghubir Dutt Law, Deceased, Plaintiff-Appellant, v. DeHavilland Aircraft of Canada, Ltd., DefendantAppellee.)
    First District (3rd Division)
    Nos. 81—1527, 81—1528 cons.
    Opinion filed February 16, 1983.

      Lord, Bissell & Brook, of Chicago (Thomas J. Strueber and Hugh C. Griffin, of counsel), for appellants.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

These consolidated actions for personal injury and wrongful death arose from the crash of an airplane manufactured by defendant De-Havilland Aircraft of Canada, Ltd., a Canadian corporation. The trial court granted defendant’s motion to quash service of summons and dismissed both causes for lack of jurisdiction. Plaintiffs appeal.

An airplane manufactured by defendant crashed on May 3, 1976, in Zambia, Central Africa. As a result of the crash, plaintiff Crispin Maunder, a passenger and English subject, was injured. Another passenger, Raghubir Dutt Law, a citizen of India, was killed. Maunder and Samuel J. Betar, an Illinois citizen and administrator of Law’s estate, filed separate suits in the circuit court of Cook County against defendant for personal injuries and wrongful death. Plaintiffs also named as a defendant DeHavilland Canada, Inc. (DeHavilland, Inc.), a Delaware corporation with its principal place of business in Rosemont, Illinois. DeHavilland, Inc., is a wholly owned subsidiary of defendant and sells and distributes parts for airplanes manufactured by defendant. Service of the complaint and summons for both actions was effected upon defendant and DeHavilland, Inc., by leaving service on an employee of DeHavilland, Inc., at its Illinois office.

Pursuant to petitions filed by defendant, the cases were removed to the United States District Court for the Northern District of Illinois. While the matters were pending in that court, DeHavilland, Inc., was dismissed as a party defendant. The district court granted Maunder’s motion to remand his action to the circuit court of Cook County on the ground that the Federal Court was without jurisdiction, the suit being between aliens. A similar motion filed by Betar was denied on the ground that diversity did exist between Betar, as administrator, and defendant. The court subsequently found that defendant was not doing business in Illinois and granted defendant’s motion to dismiss.

On appeal, the Seventh Circuit Court of Appeals reversed the district court’s denial of Betar’s motion to remand, holding that Betar was merely a nominal plaintiff and that therefore, like Maunder, the suit was between aliens. (Betar v. DeHavilland Aircraft of Canada, Ltd. (7th Cir. 1979), 603 F.2d 30, cert. denied (1980), 444 U.S. 1098, 62 L. Ed. 2d 785, 100 S. Ct. 1064.) The district court was instructed to remand the case to the circuit court of Cook County. The issue of personal jurisdiction was not addressed.

Upon remand to the circuit court, defendant renewed its motions to quash service of summons and to dismiss both actions for lack of personal jurisdiction. Specifically, defendant alleged that it was not subject to service of process under the long-arm statute (Ill. Rev. Stat. 1979, ch. 110, par. 17), and that DeHavilland, Inc., was not its agent for service of process in Illinois. After the cases were consolidated and discovery was pursued with respect to the jurisdictional issue, the trial court granted defendant’s motion to dismiss.

On appeal, plaintiffs do not base their jurisdictional argument on the long-arm statute. They do not maintain that the airplane involved in the crash was ever in Illinois or that any of its parts had been handled, sold or was otherwise connected with defendant’s Illinois subsidiary. Rather, plaintiffs urge that defendant’s activities within Illinois are sufficient to constitute “doing business” here thus subjecting it to the personal jurisdiction of the Illinois courts. Alternatively, plaintiffs argue that DeHavilland, Inc., is merely an alter ego of defendant and that defendant has therefore submitted to personal jurisdiction in Illinois through DeHavilland, Inc.’s, systematic and continuous activities within this State. We initially address the claim that defendant’s activities in Illinois are sufficient to constitute “doing business.”

In Illinois, jurisdiction may be acquired over a nonresident for a cause of action unrelated to the corporation’s activities in this State so long as the corporation is doing business in Illinois. (Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L. Ed. 2d 296, 99 S. Ct. 2857.) There is no all-inclusive test for determining whether a foreign corporation is doing business in this State. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847.) Such finding, however, generally requires that the corporation conducts business in Illinois of such a character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of Illinois. (Cook Associates, Inc. v. Lexington United Corp.) More than mere solicitation generally is required. (St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill. 2d 38, 369 N.E.2d 52.) Nevertheless, jurisdiction has been found based on a variety of other activities. In Gitchoff a foreign railroad with no Illinois tracking was held to be amenable to Illinois jurisdiction because it maintained an office in Illinois staffed with employees who solicited business and one employee who spent 60% to 80% of his working time in Illinois coordinating the movements of defendant’s railcars. In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, appeal dismissed (1980), 444 U.S. 1060, 62 L. Ed. 2d 738, 100 S. Ct. 992, a product liability action, a foreign corporation was found to be doing business in Illinois because its products regularly entered Illinois in substantial amounts. In Braband v. Beech Aircraft Corp., which is factually similar to the present case, defendant manufacturer was held to be present and doing business in Illinois because it maintained a contractual relationship with an Illinois distributor who, subject to defendant’s inspection, was authorized to sell and required to service defendant’s products. Defendant also cosponsored an Illinois sales program and advertised its products in Illinois.

Unlike Beech Aircraft, there is no contractual relationship between defendant here and DeHavilland, Inc., nor is DeHavilland, Inc., required to service defendant’s products. In other respects, however, the justification for jurisdiction in the present case appears to be as strong or even stronger than that in Beech Aircraft.

Similar to the distributor in Beech Aircraft, DeHavilland, Inc.’s, sole business is to sell and distribute parts for defendant’s airplanes. DeHavilland, Inc., is in fact defendant’s only distributor in the United States. Defendant prints and distributes an “Illustrated Parts Catalog” which provides that all orders for parts in the United States should be directed to DeHavilland, Inc. All orders for parts received by defendant from its customers in the United States are likewise referred to DeHavilland, Inc. For the first six years of its existence De-Havilland, Inc., merely ordered parts from defendant as it received orders from defendant’s customers. It then paid defendant from proceeds of the sale. In 1974 DeHavilland, Inc., expanded its inventory and began to pay defendant within 30 days of shipment. Some standard parts are purchased by DeHavilland, Inc., directly from suppliers in the United States. DeHavilland, Inc., also has some discretion as to pricing.

The control exercised by defendant over DeHavilland, Inc., appears to be greater than that exercised by the defendant in Beech Aircraft over its Illinois distributor. Defendant owns 100% of De-Havilland, Inc.’s, stock. James B. Cox, manager and sole director of DeHavilland, Inc., was previously a service representative for defendant. He is directly responsible to Russell Bannock, president of De-Havilland, Inc., and of defendant. All the officers, with one exception, serve both corporations. They are likewise responsible to Bannock, not Cox. Stanley Kerr, DeHavilland’s secretary-treasurer, made occasional trips to Chicago to discuss financing for potential customers with local banks. Expenses for these trips were paid by defendant. Defendant and DeHavilland, Inc., used a combined financial statement.

Defendant in the present case, as in Beech Aircraft, entered the Illinois market by way of its distributor, which was also its wholly owned subsidiary. Defendant regularly and systematically reaped substantial profits through the sale of its parts by its Illinois subsidiary. The fact that these sales were conducted indirectly through a third party does not excuse defendant from the jurisdiction of Illinois courts. (Connelly v. Uniroyal, Inc.) In light of the control exercised by defendant over DeHavilland, Inc., coupled with its own activities directed at promoting the sale of its product in Illinois, we hold that defendant is actively and systematically doing business in Illinois and is therefore subject to the jurisdiction of Illinois courts.

Defendant relies on Cannon Manufacturing Co. v. Cudahy Packing Co. (1925), 267 U.S. 333, 63 L. Ed. 634, 45 S. Ct. 250, primarily to dispute plaintiffs’ alter ego theory. Nevertheless, to the extent that defendant relies on Cannon for its argument that defendant is not doing business in Illinois we believe that such reliance is misplaced. As noted in Beech Aircraft, Cannon was decided more than 20 years prior to International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, the decision in which the focus of the court on jurisdictional questions shifted from a defendant’s “presence” in the forum State to his “minimum contacts” therewith. Consequently, Cannon merely purports to hold that conducting business through a wholly owned subsidiary does not necessarily render the parent corporation amenable to process in the State where the subsidiary does business. Braband v. Beech Aircraft Corp.

Having determined that defendant is doing business in Illinois, we next turn to the question of whether subjecting it to Illinois jurisdiction violated due process. Under the due process clause of the fourteenth amendment there are limits to which a State is confined in asserting in personam jurisdiction over a nonresident corporate defendant. First, it must appear that defendant had such “minimum contacts” with the State as to render it consistent with “traditional notions of fair play and substantial justice” that it be compelled to defend itself there. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154.) Second, assuming the requisite minimum contacts, a method of service must be employed which is reasonably designed to give defendant actual notice of the action pending against it. Milliken v. Meyer (1940), 311 U.S. 457, 85 L. Ed. 278, 61 S. Ct. 339.

In determining whether it is reasonable to require defendant to defend this suit in Illinois, we must focus on the quality and nature of defendant’s activities here. (International Shoe Co. v. Washington.) In view of defendant’s activities directed at promoting the sale of its products in Illinois and the profits which defendant regularly reaped as a result of such activities, we find that it does not offend traditional notions of fair play and substantial justice to require defendant to defend this action in Illinois.

Having found that jurisdiction over defendant in Illinois is both in accord with Illinois law and -within the confines of due process, we next address the question of whether defendant was properly served. Since defendant was not personally served in Canada and since the cause of action is unrelated to defendant’s activities in Illinois, proper service could have been effected by serving an officer or agent of defendant found within the State. Ill. Rev. Stat. 1977, ch. 110, par. 13.3.

Plaintiffs attempted to serve defendant by leaving copies of the complaints and summons with an employee of DeHavilland, Inc., at its Illinois office. In its motion to dismiss, defendant contended that this method of service was improper because DeHavilland, Inc., was not an agent of defendant for purposes of service of process pursuant to section 13.3. We do not agree. In Beech Aircraft, as in the present case, service on the foreign defendant was accomplished through service on its Illinois distributor. Having found that Beech was doing business in Illinois through its Illinois distributor, the court also found the distributor to be the agent of Beech and thus a proper recipient of service of process upon Beech. (Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 367 N.E.2d 118.) Likewise in the present case we find that DeHavilland, Inc., was an agent of defendant for purposes of service of process.

Defendants also argue, relying on Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 366 N.E.2d 1015, that even if DeHavilland, Inc., was an agent of defendant, the requirements of section 13.3 were not satisfied because a mere employee of the agent was served. We note that this issue was not raised by defendant in its motions to dismiss. We also find that Mason is distinguishable. In that case neither defendant nor his agent were actually given notice of the complaint prior to the ex parte judgment that was entered. In the present case there is no question that defendant received actual notice. It is obvious, therefore, that plaintiffs’ method of service at least met the requirements of due process.

In view of our holding, we need not address plaintiffs’ contention that DeHavilland, Inc., is merely an alter ego of defendant and that defendant has therefore submitted to jurisdiction in Illinois.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiffs’ causes of action are reversed and the causes are remanded for further proceedings.

Reversed and remanded.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE STAMOS

text:
    THE VILLAGE OF PALATINE, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. LASALLE NATIONAL BANK, Trustee, et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants.—(J. B. Duke, Jr., Defendant-Appellee.)
    First District (2nd Division)
    No. 81—2328
    Opinion filed February 15, 1983.
    Rehearing denied March 16, 1983.

      Littlejohn, Glass & Yowell, Ltd., of Chicago (Bradley M. Glass, of counsel), for appellant.
    Richard R Glovka, of Chicago (Marks, Katz, Randall, Weinberg & Blatt, of counsel), for appellees.
   JUSTICE STAMOS

delivered the opinion of the court:

The village of Palatine, Illinois (Palatine) appeals from an order of the trial court declaring its Flood Plain ordinance and its height ordinance invalid and enjoining it from applying those ordinances to prevent the completion of a residential real estate development known as Baybrook. The Flood Plain ordinance, prior to its recent amendment, would have prevented all construction on the proposed site of Bay-brook, while the height ordinance prohibits the completion of the development in accordance with a development plan which was previously approved by Palatine. The owners of the subject property cross-appeal, contending that the application of the Flood Plain ordinance to Baybrook in the past constituted a taking under the fifth amendment to the United States Constitution and under article I, section 15 of the Illinois Constitution, that the trial court erred in failing to make a finding on the issue of whether a taking occurred, and praying that this court find a taking and determine and award just compensation. The trial court’s order expressly states that it does not dispose of all of the issues in the case. That order does not contain a finding that there is no just cause to delay enforcement or appeal of the order. On September 27, 1982, Palatine amended its Flood Plain ordinance, and the ordinance as amended would no longer prohibit the completion of Baybrook if it were applied to the subject property. The threshold questions in this case, therefore, are what portions of the trial court’s order are appealable under Supreme Court Rules 304(a) and 307(a)(1) (87 Ill. 2d Rules 304(a), 307(a)(1)), and whether the appealable issues raised by the Flood Plain ordinance are now moot as a result of Palatine’s subsequent amendment of the ordinance.

This case is part of a long course of litigation between Palatine and the successive owners of the property which is the site of Bay-brook, a residential real estate development which now stands more than one-third completed. The subject property is a 35-acre tract located in southeastern Palatine. In 1966, the tract, which was then vacant and unsubdivided, was purchased by Western Terrace Building Corporation. That corporation applied to Palatine for rezoning of the tract from a single-family residential classification (R-2) to a multiple-family classification (R-3) in order to construct an apartment development on the site. The application was denied, and Western Terrace brought an action in the circuit court seeking a declaration of the invalidity of the Palatine zoning ordinance as it was applied to the property. The trial court held that the zoning classification of the property was arbitrary and had no relation to the public health, safety, and welfare, and that the highest and best use of the property was for multiple-family dwellings. The court ordered that building permits were to issue to Western Terrace or its successors in interest for the construction of 600 multiple-family dwelling units on the subject property. That order was affirmed on appeal. See Western Terrace Building Corp. v. Village of Palatine (1968), 102 Ill. App. 2d 116, 243 N.E.2d 566.

In 1969, I. Pekin Palace, Inc., purchased the tract from Western Terrace for $1,200,000. In 1971, Pekin obtained approval from Palatine for a site plan titled “Baybrook-A Planned Unit Development.” The site plan called for the eventual construction of six six-story buildings plus a swimming pool, a cabana, and other improvements. Each building was to contain 89 condominium units, with the development containing a total of 534 units. Construction was to proceed in three phases. Phase I was to encompass the construction of two apartment buildings plus most, if not all, of the improvements which were necessary to serve the entire development. After all the units in Phase I were sold, the two buildings comprising Phase II were to be constructed. After the units in Phase II were sold, construction was to begin on the remaining two buildings comprising Phase III. In 1972, building permits for Phase I were issued, and a joint venture comprised of Pekin and defendant Mutual Trust Life Insurance Company began construction. The property was held in a land trust with defendant LaSalle National Bank as trustee. It appears that Pekin, which is not a party to this action, no longer holds a beneficial interest in the trust. Defendants will be referred to as “the landowners” hereinafter.

Construction on Phase I was essentially completed in 1974, and the last units were sold in 1978. On January 7, 1974, Palatine adopted a Flood Plain ordinance which prohibits virtually all construction in areas designated as Flood Plains. The ordinance defines Flood Plains by reference to the Illinois Department of Transportation, Division of Water Resources (IDOT) Flood Plain Maps and Regulatory Profile Drawings for the Palatine area. Under the IDOT maps, a Flood Plain is the area which would be most affected by the “100 year flood,” a hypothetical flood resulting from a 24-hour rainstorm which has a statistical probability of occurring once every 100 years. The development of the Flood Plain is strictly regulated because the elevation of the area and the amount of improvement already in the area makes the Flood Plain certain to be inundated by the 100-year flood. Palatine’s Flood Plain ordinance refers only to the Flood Plain, while IDOT’s regulations subclassify the Flood Plain into areas called the Floodway and the Flood Fringe. Palatine prohibits construction anywhere within the Flood Plain, while IDOT’s regulations prohibit construction in the Floodway but allow development of the Flood Fringe. All but a negligible portion of Baybrook is located in the Flood Fringe.

On August 4, 1978, J. B. Duke, who had contracted to purchase Baybrook, applied for building permits for Phase II and Phase III. Duke’s contract to purchase the tract was conditioned on the issuance of the permits, and although Duke is a party to this appeal, the contract has expired. Palatine refused to issue the permits for the asserted reason that the operation of the Flood Plain ordinance prohibited the completion of Baybrook. Duke and a representative of Mutual Trust testified that Palatine’s refusal to issue the permits was the first notice to them of the existence of the Flood Plain ordinance.

Promptly áfter the application for the permits was refused, Palatine brought this action in the circuit court for a declaration that the Flood Plain ordinance is valid as applied to Baybrook, that the injunction in favor of Western Terrace did not bar the denial of the application for permits or application of the Flood Plain ordinance to Bay-brook, and that the landowners had no right to erect improvements in Baybrook and were enjoined from so doing. The landowners counterclaimed, seeking money damages in the amount of whatever just compensation the court should fix for the inverse condemnation that they contend the application of the ordinance worked as to Baybrook.

In 1979, Palatine adopted its Planned Unit Development (PUD) ordinance which provides for detailed application procedures before Planned Unit Development status is granted to a residential development. In 1978, the landowners had filed an application for official PUD status, but no ordinance declaring Baybrook to be a PUD was ever adopted. Baybrook’s site plan which was approved by Palatine in 1971 was entitled “Baybrook-A Planned Unit Development,” and Palatine officials testified at trial that Baybrook had always been treated as a planned unit development “in fact” by Palatine.

In 1979, Palatine adopted a height ordinance which restricted the height of buildings built within Baybrook’s zoning classification (R-3) to a height of the lesser of 70 feet or four stories. The Planned Unit Development ordinance specifies that the height restriction does not apply to buildings that are part of a PUD.

On August 7, 1981, the trial court issued an order declaring that the Flood Plain ordinance and the height ordinance were invalid as applied to Baybrook, that the Flood Plain ordinance was invalid on its face, and that Palatine was enjoined from enforcing the ordinances as to Baybrook. The order also stated that the landowners had a vested right to the issuance of building permits for Phase II and Phase III, and it directed Palatine to issue such permits on proper application. The court retained jurisdiction for the purpose of enforcing the order and assessing costs. The order stated that the court did not “consider or decide by implication the other issues raised in this case *** to wit: inverse condemnation; procedural defects in the enactment of the Flood Plain ordinance; the res judicata effect of this court’s 1967 judgment to bar the application of the Flood Plain ordinance to Bay-brook Park; and other points raised by the pleadings and the evidence.” Although these issues were left undecided, the trial court did not make a finding that there was no just cause to delay enforcement or appeal of the order.

Palatine appeals, contending that the Flood Plain ordinance is valid and fully applicable to Baybrook and that the height ordinance is likewise valid and fully applicable. The landowners cross-appeal, praying that this court consider the issues left undecided by the trial court, particularly whether the application of the ordinances constitutes a taking under the fifth amendment to the Constitution of the United States and under article I, section 15 of the Illinois Constitution. The landowners also pray that if this court does find a taking, it will determine an amount in just compensation or remand the case to the trial court for such a determination.

On September 27, 1982, Palatine adopted Ordinance 0 — 95—82, amending its Flood Plain ordinance to adopt the 1982 IDOT Flood Plain maps. Under those maps, Baybrook is no longer in the Flood Plain, and the Flood Plain ordinance, as currently applied, would not bar the issuance of permits for the construction of Phases II and III.

The threshold question presented by this appeal is what, if any, issues are properly before us. The trial court’s judgment order expressly made no ruling as to several issues in the case, notable among them the issue of inverse condemnation. That order also reserved jurisdiction for purposes of enforcing the order. Such a reservation of jurisdiction does not render the order unappealable. (See Moss v. Waytz (1955), 4 Ill. App. 2d 296, 301, 124 N.E.2d 91.) However, an order that does not dispose of all the issues in a case is not final and appealable in the absence of an express written finding that “there is no just reason for delaying enforcement or appeal” of the order. (See 87 Ill. 2d R. 304; Wilson-Jump Co. v. McCarthy-Hundrieser & Associates (1980), 85 Ill. App. 3d 179, 183, 405 N.E.2d 1322; McNulty v. Ryan (1969), 116 Ill. App. 2d 202, 203-04, 253 N.E.2d 661.) The order in this case contains no such finding. The order, however, enjoined Palatine from enforcing its Flood Plain ordinance and from interfering with the landowners’ vested right to the issuance of building permits for Phases II and III, thereby enjoining the application of the height ordinance to Baybrook as well. An appeal may be taken from an interlocutory order of the court granting injunctive relief. (87 Ill. 2d R. 307(a)(1).) The notice of appeal in this case is not designated as a “Notice of Interlocutory Appeal” as required by Supreme Court Rule 307(a), and the parties have proceeded on appeal as though all of the issues raised before the trial court were properly before this court. We shall, however, regard this appeal as an interlocutory appeal of the trial court’s grant of injunctive relief as to the application of the Flood Plain ordinance and the height ordinance to Baybrook. We regard the other issues raised on this appeal as improper subjects for an interlocutory appeal and do not consider them for that reason.

The question of the validity of the Flood Plain ordinance is now moot. On September 27, 1982, the village of Palatine adopted the 1982 IDOT Flood Plain maps. Under those maps, Baybrook is no longer in the Flood Plain, and the current Flood Plain ordinance presents no bar to the completion of Baybrook. The courts will not determine the question of the validity of an ordinance which is no longer in force and which cannot be applied to the complaining parties. (See Wendell v. City of Peoria (1916), 274 Ill. 613, 615-16, 113 N.E. 918.) Although Palatine urges the court to apply the public interest exception to the mootness doctrine to rule on this question, we shall not do so.

Three criteria are considered in determining whether the public interest exception should be invoked. The first is whether the question is public in nature; the second, whether it is desirable to make an authoritative determination of the question for the guidance of public officials; and third, whether the question is likely to recur. (Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 76, 410 N.E.2d 98, rev’d on other grounds (1981), 86 Ill. 2d 390, 427 N.E.2d 162.) In the instant case, any recurrence of the question of the validity of the ordinance would involve its application to property other than Baybrook, with different physical characteristics and different proposed uses. A decision of this court could not therefore be authoritative as to the application of the ordinance to different tracts of land. Even if a determination of the facial validity of the ordinance is desirable such a determination would have only a limited utility in guiding the actions of pubic officials. If we were to affirm the trial court’s holding that the prohibition of development of the Flood Fringe lacks a rational basis because the prohibition arbitrarily deviates from the IDOT regulations, such a holding would only guide the acts of public officials as to properties located wholly within the Flood Fringe. If, on the other hand, we were to hold that the Flood Plain ordinance was facially valid, such a holding would necessarily be based on a determination that Palatine’s slight deviation from the IDOT regulations has a rational basis. This is so because the question presented in this litigation was only whether Palatine acted rationally in requiring stricter flood control standards than the State agency which promulgates the statewide standards. A reversal of the trial court would leave landowners affected by the ordinance free to challenge the rationality of the State regulations upon which the ordinance is based, because the rationality of the IDOT standards is not before this court. Because no determination by this court could conclusively decide the facial validity of the ordinance in a way that would guide future litigation or administrative action, we do not consider the question.

The only issue remaining for our consideration is the question of the validity of the height ordinance as applied to Baybrook. The determination of this issue includes the question of whether the height ordinance is applicable to Baybrook under the Palatine Code of Ordinances. Section 11.08 of the Palatine planned unit development ordinance provides that “height of a particular structure shall not in itself be the basis for denial or approval of a planned development.” Therefore, if Baybrook is a planned unit development, the height restriction of the lesser of 70 feet or four stories which is generally applicable to property in R-3 zoning could not be applied to prevent the construction of the four six-story buildings which remain to be built in Phases II and III.

The original site plan for Baybrook which was approved by Palatine in 1971 was entitled “Baybrook-A Planned Unit Development.” In correspondence, Palatine officials referred to the development as “Baybrook PUD” as late as 1978. Palatine’s village president testified at trial that Palatine had always treated Baybrook as a PUD. Palatine contends that Baybrook is not and could never have been a PUD because the landowners never made an application to have it treated as such. Palatine states that the PUD ordinance sets forth detailed application procedures for PUD status that were never complied with by the landowners. That ordinance, adopted in 1979, requires that the developer of a PUD submit several sets of site plans to Palatine for approval. Those plans must include detailed information concerning the proposed development, and the plans must be approved by the village president, the planning commissioner, and the village board of trustees. The developer must also post surety bonds for the construction of buildings and utilities.

Palatine’s village president and Palatine’s director of community development each testified that Palatine has always regarded Bay-brook as a PUD “in fact.” The director of community development, Robert T. Rudd, also stated that in most circumstances the village encourages developers to apply for PUD status rather than to develop under the original zoning. That policy reflects Palatine’s desire to exercise greater control over large developments than is available under traditional zoning ordinances.

In May 1978, Baybrook’s developers made a formal application to Palatine in order to obtain official designation as a PUD. No ordinance designating Baybrook as a PUD was ever enacted. In 1979, after this litigation had commenced, the height ordinance was enacted. That ordinance would effectively preclude development of Baybrook according to the original site plan unless Baybrook is regarded as a PUD.

Although the parties’ discussion of the “vested rights” exception to the general rule that a landowner has no right to a continuation of favorable zoning has been confined to the applicability of that exception to the Flood Plain ordinance, we regard that exception as equally applicable to the issue of whether the landowners had a vested right to the issuance of building permits for Phases II and III despite the recently adopted height ordinance and Baybrook’s lack of official PUD status.

A vested right in the issuance of building permits by a municipality arises where the landowner makes “any substantial change of position, expenditures or incurrence of obligations occurring under a building permit or in reliance upon the probability of its issuance.” People ex rel. National Bank v. County of Cook (1965), 56 Ill. App. 2d 436, 442, 206 N.E.2d 441.

Palatine issued building permits for Phase I in 1972, pursuant to its 1971 approval of the original three-phased site plan. By 1974, almost all of the Phase I construction was completed, including on-site improvements benefitting the entire development and costing over $500,000. By late 1978, all the Phase I units were sold, and application was made for permits to build the rest of the development. Palatine contends that the landowners acquired no vested rights to the issuance of building permits that would allow them to execute the original site plan. It can hardly be argued that the landowners did not make substantial expenditures in reliance on the issuance of those permits. Palatine contends, however, that the lapse of four years between the time that Phase I was completed and the time that Phase II and III permits were applied for indicates that the landowners abandoned their plans to develop the property and thereby lost any vested rights that they may have acquired. This contention ignores the fact that the original plan of development calls for construction of Phase II only when the units in Phase I are sold. Although it took longer than the landowners had originally contemplated to sell the Phase I units, the landowners were following, rather than abandoning, the development plan when they waited until the units were sold before applying for the permits.

We regard Palatine’s approval of the original site plan, the issuance of building permits for Phase I, and the continuing treatment of Baybrook as a PUD “in fact” as the type of affirmative acts of public officials upon which a landowner is entitled to rely. A finding that a landowner has acquired a vested right to the issuance of building permits is particularly appropriate where, as here, public officials actively encourage a landowner to change position or incur expense in reliance on such acts. (See Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 522-24, 377 N.E.2d 21.) We also note that in 1978, Palatine received the landowners’ application for official PUD status. In 1979, after this litigation had commenced, Palatine’s height ordinance was adopted. Palatine now contends that that ordinance is applicable to Baybrook because Baybrook is not now, and never was, a PUD, and because the landowners have no vested right to complete the original site plan. In Cos Corp. v. City of Evanston (1963), 27 Ill. 2d 570, 190 N.E.2d 364, our supreme court stated that:

“Where an individual or corporation expends substantial sums relying on the then existing zoning and zoning ordinances and proceeds to seek a permit in compliance with them, it would be a grave injustice to allow municipal officials to hold up action on issuance of a building permit until an amendatory ordinance could be passed changing the standards to be met so that a permit formerly lawful would now not be issued due to an abrupt change in the law.” 27 Ill. 2d 570, 577.

In the instant case, the landowners had no reason to expect that they would not be granted official PUD status when they applied for it in 1978, and they had no reason to believe that the height ordinance would be adopted in 1979 and applied to Baybrook in order to deny the building permits for the completion of a development plan that had been approved by Palatine several years before. Palatine cannot be allowed to use its refusal to treat Baybrook as a PUD under its 1979 PUD ordinance to deny building permits for the completion of the development. We hold that the landowners have a vested right to complete Baybrook in accordance with the original site plan, and that Palatine’s height ordinance cannot be applied to the development to divest that right.

We therefore affirm the circuit court’s order requiring Palatine to issue building permits for Phases II and III, and remand this case to the circuit court for consideration of the issues that were left unresolved by its judgment order, particularly the issue of whether a taking has occurred which requires an award of just compensation.

For the reasons expressed herein, the circuit court of Cook County’s interlocutory order granting injunctive relief as to the application of the Palatine height ordinance and the issuance of building permits for Bay-brook is affirmed and the cause remanded for consideration of the issues left undecided by the trial court.

Affirmed and remanded with directions.

DOWNING and HARTMAN, JJ., concur.


author: JUSTICE LORENZ

text:
    HARRIS TRUST AND SAVINGS BANK, Ex’r of the Estate of Jose Aisenberg, Deceased, Plaintiff-Appellant, v. IRVING HIRSCH et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2712
    Opinion filed February 10, 1983.

      Daniel Galatzer and Robert R. Kunkel, both of Chicago, for appellant.
    Howard Reich, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Harris Trust & Savings Bank, as executor of the estate of Jose Aisenberg, deceased, sought recovery against defendants Irving Hirsch (Hirsch) and Wendell & Co., Inc. (Wendell), for $100,000 of life insurance proceeds received by Wendell and allegedly due plaintiff pursuant to a stock redemption agreement entered into between the parties. Following a bench trial, the trial court found that the agreement was ambiguous and entered judgment in favor of defendants. Plaintiff appeals.

The issues on appeal are (1) whether the trial court correctly found that an ambiguity existed in the stock redemption agreement as a matter of law, and (2) whether the court properly construed the contract to give effect to the intentions of the parties.

The following pertinent evidence was adduced from the pleadings. On December 8, 1975, Aisenberg and Hirsch, who were equal and sole shareholders of stock in Wendell & Co., Inc., a jewelry manufacturer, entered into a stock redemption agreement requiring the corporation to redeem shares owned by either shareholder upon his death.

Under section 2, the corporation was required to purchase and maintain a $75,000 life insurance policy on the life of each shareholder and to hold any proceeds received thereunder in trust for the purposes of the agreement. Section 2 further empowered the corporation to take out additional life insurance on the lives of the two shareholders whenever required to carry out its obligations under the agreement.

Section 3 provided for redemption of the corporate stock and reevaluation of the purchase price. It recited: “Upon the death of any Shareholder, the corporation shall purchase with its surplus, all of decedent’s stock in the corporation now owned or hereafter acquired by him for $75,000 but in no event less than the amount of insurance carried on the life of each Shareholder pursuant to Section 2 ***.” The amount of this purchase price provided in this section 3 shall be re-examined by the parties hereto from time to time, but no less than once during every two-year period from the date hereof should the parties, upon such re-examination, determine that the purchase price should be revalued, then this section shall be so amended, by a written instrument signed by all the parties, and made a party hereof. In no event, however, shall the purchase price provided in this section be less than the amount of the life insurance policy on the life of each shareholder.

In addition, the agreement contained other provisions which are immaterial to the questions presented in the case at bar.

Shortly after this first agreement was signed, the amount of the life insurance policies purchased by the corporation was increased to $100,000 each. On February 20, 1976, the two shareholders executed a second stock redemption agreement amending the redemption price and the amount of life insurance the corporation was required to maintain to $100,000 each.

On April 25, 1977, Wendell obtained a guaranty from the Small Business Association (S.B.A.) of a $175,000 loan to be made to it by Exchange National Bank of Chicago (Exchange). One of the loan conditions required by the bank and the S.B.A. was that the shareholders assign their beneficial interest in the life insurance “in favor of [the] Bank and SBA in an amount not less than $87,500.00 each.” Wendell accordingly purchased additional life insurance policies of $100,000 each, and on September 29, 1977, Hirsch & Aisenberg assigned their beneficial interest to the bank.

Aisenberg became terminally ill in 1978, and by early 1979 he retained Wendell’s corporate attorney, Stephen Schostok, to represent him in miscellaneous personal matters including the preparation of his estate. On March 2, 1979, Schostok prepared and sent a document entitled “First Amendment to Stock Redemption Agreement” to the defendants which would have increased the redemption price to $200,000. This amendment was not executed by the parties. Two weeks later, on March 19, 1979, Schostok prepared a document which stated that: (1) an ambiguity existed with regard to each shareholder’s stockhold interest; (2) the parties agreed to affirm the original $100,000 value; and (3) the parties agreed that the second $100,000 was intended as collateral under the S.B.A. loan. This second document was initialled by both parties, however, neither party executed the document in full.

Aisenberg died on April 3, 1979. Plaintiff was named as executor pursuant to the provisions of the agreement and Wendell paid his estate $100,000 in insurance proceeds within 30 days thereof. Plaintiff filed a complaint for declaratory judgment and injunctive relief against defendants and Exchange National Bank seeking, inter alia, the $100,000 in proceeds from the second policy assigned to Exchange, and the trial court entered judgment in favor of Exchange.

Subsequently, plaintiff brought suit against defendants in the circuit court of Cook County and by amended complaint sought judgment for $100,000 under a breach of contract theory. On April 13, 1981, defendants moved for summary judgment and plaintiff moved for judgment on the pleadings on May 21, 1981. A hearing was held on both motions on September 2,1981.

Stephen Schostok testified for plaintiff that, while acting as corporate attorney for Wendell he drafted the stock redemption agreement in such a manner as “to include the purchase of life insurance as the necessary pool of funds to satisfy the fixed value of the corporate stock,” and to also provide a mechanism where an additional purchase of insurance would automatically serve to revalue the agreement.

On cross-examination, he stated that his law firm represented plaintiff until substitution of attorney was ordered by the court, however, he still represented the estate of Jose Aisenberg at the time of trial. Schostok further stated that Aisenberg had hired him to prepare his estate in advance when he learned of his terminal illness, and at that time Schostok “observed that the [$100,000] amount in the agreement *** was not in accord with the reality of the amount of insurance which had, in fact, been purchased *** [a]nd it was [due to his] effort to bring the two together, that that amendment [changing the amount to $200,000] was prepared and sent to Mr. Hirsch.”

Irving Hirsch testified on his own behalf that the original $75,000 redemption price was amended to $100,000 after he had “reported to the lawyers that [he] had taken out additional life insurance.” He stated that the purpose of the $175,000 SJ3.A. loan from Exchange National Bank was to enable Wendell to go into the business of selling jewelry, and the proceeds from the second $100,000 life insurance policy required to collateralize the loan and assigned to Exchange National Bank had been paid to the bank upon Aisenberg’s death. The net value of Wendell & Co., Inc., at the time of Aisenberg’s death was $27,000.

Following this hearing, the trial court found that: (1) the stock redemption agreement was ambiguous; and (2) the second $100,000 was not part of the agreement, and entered judgment in favor of defendants.

Opinion

We first consider whether the trial court correctly found that an ambiguity existed in the stock redemption agreement as a matter of law.

Initially we note that a court will not resort to rules of construction where an agreement itself is clear and unambiguous. However, where the terms of the agreement itself are not clear, or are ambiguous, the court will construe the contract to determine and give effect to the intention of the parties (Ricke v. Rickie (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351), at the time they entered into the contract. Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 335, 75 N.E.2d 874, 880.

In the present case, a review of the stock redemption agreement in its entirety indicates that the pertinent provisions are fairly susceptible to more than one interpretation concerning the amount of insurance.

Section 2, inter alia, provides for a redemption price of $100,000 to be funded by the proceeds of the life insurance policies on the lives of the two shareholders, and empowers the corporation to take out additional life insurance.

Section 3, however initially provides for a reevaluation of the redemption price by a written instrument signed by all the parties, and then concludes by stating that the purchase price shall not be less than the amount of the life insurance policy on the life of each shareholder. We find these two clauses to be irreconcilable. Accordingly, the trial court correctly determined that an ambiguity existed in the agreement as a matter of law.

We next consider whether the court properly construed the contract to give effect to the intentions of the parties.

It is well settled that the intentions of the parties will be ascertained by an examination of all the facts and circumstances manifested by the evidence, including the relationship of the parties, the subject matter of the contract, and the purpose or object of making the contract. Aronson v. K. Arakelian, Inc. (7th Cir. 1946), 154 F.2d 231.

Initially we note that the parties, who were equal shareholders in Wendell, entered into the agreement with the apparent purpose of providing for stock redemption upon the death of either party, and included the life insurance policies merely to provide a necessary pool of funds for the redemption of corporate stock.

Next, plaintiff persistently urges us that the automatic reevaluation clause of section 3 unambiguously controls. However, it is basic principle of contract construction that where two clauses conflict, it is the duty of the court to determine which of the two clauses most clearly expresses the chief object and purpose of the contract (Lehman v. United States (N.D. Ill. 1956), 139 F. Supp. 10, aff’d (7th Cir. 1956), 239 F.2d 139), and for this purpose the trial court followed proper procedure in hearing extraneous evidence. Greene v. Gust (1960), 26 Ill. App. 2d 2, 167 N.E.2d 438.

It is clear that a clause which requires something to be done to effect the purpose of the contract is entitled to greater consideration than one which does not (Lehman v. United States (N.D. Ill. 1956), 139 F. Supp. 10, aff’d (7th Cir. 1956), 239 F.2d 139), and while conduct is not conclusive, the court will look to the parties’ action under a contract as strongest evidence of their meaning since the parties to an agreement know best what they meant. Restatement (Second) of Contracts sec. 202, Explanatory Notes, comment g, at 90 (1981).

With these principles in mind, we find that the record discloses that the parties did in fact execute a written amendment to the agreement when the redemption price was initially increased from $75,000 to $100,000 pursuant to the former clause of article 3.

In contrast, when the second $100,000 policy was taken out at the request of the bank to collateralize the S.B.A. loan, Aisenberg assigned his beneficial interest to the bank to fulfill the loan conditions imposed by the bank and the S.B.A. His attempts to amend the agreement to include the second policy came in the month prior to his death as part of his premortem estate planning, and nowhere does the record indicate that any amendment was ever signed by both parties. Consequently, the second policy was never part of the stock redemption agreement. Accordingly, we find that the trial court properly construed the contract to give effect to the intentions of the parties.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

WILSON, P.J., and MEJDA, J., concur.