author: JUSTICE MILLS

text:
    MacMURRAY COLLEGE, Plaintiff-Appellant, v. GAIL MARY SCHIESSER et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0601
    Opinion filed April 1, 1985.
    Alan W. Applebee, of Jacksonville, for appellant.
    Forrest G. Keaton, of Rammelkamp, Bradney, Hall, Dahman & Kuster, of Jacksonville, for appellee John J. Schiesser.
    Thomas, Wallace, Feehan, Baron & Kaplan, Ltd., of Joliet (Pamela E. Davis, of counsel), for appellee Gail Mary Schiesser.
   JUSTICE MILLS

delivered the opinion of the court:

A student loan.

Amount: $4,675.

Summary judgment for the student.

MacMurray College appeals.

We reverse and remand.

While enrolled as a student at MacMurray College, Gail Schiesser executed a promissory note agreeing to repay MacMurray for monies advanced through the National Direct Student Loan Program. Her father, John J. Schiesser, cosigned the note. During Gail’s tenure at MacMurray, she was advanced $4,675 under the note.

Gail graduated from MacMurray in May 1978. From January 1979 to June 1979, she attended Illinois State University. Payments on the note were not due to begin until April 1980. Thereafter, quarterly payments were due in the amount of approximately $150, decreasing upon each payment.

Gail made no payments to MacMurray until December 5, 1980, when she paid $60.55. MacMurray granted Gail a hardship deferment, which was retroactive to April 1980 and extended through October 1980. By letter dated January 20, 1981, MacMurray advised Gail that a payment was due on January 1, 1981, in the amount of $151.94. MacMurray acknowledged that Gail would likely be unable to make this payment in full and requested that she make payments of $20 per month. Gail made one payment to MacMurray on April 8, 1981, in the amount of $15.

In the fall of 1981, the parties agreed that Gail would pay $25 per month beginning in October 1981, and that she would contact Mac-Murray in April 1982 to discuss her financial situation and revise their agreement accordingly. From November 1981 until April 1982, Gail made payments of $25 per month to MacMurray. Thereafter, Gail made no further payments.

MacMurray wrote Gail several times concerning her past-due note but received no response. On January 17, 1983, MacMurray wrote Gail advising her that her note had been accelerated. This letter was returned to MacMurray marked “unclaimed.”

MacMurray brought this action to recover on the note. The amended complaint alleged that the defendants had failed to make the required payments under the note and that pursuant to the terms of the note, MacMurray had exercised its option to accelerate. Gail moved for summary judgment, arguing that MacMurray’s failure to exercise its option to accelerate the debt prior to the time she became eligible for a deferment bars its recovery here. In support of her motion for summary judgment, Gail presented her affidavit stating that she was enrolled as a full-time law student at Chicago-Kent College of Law in August 1982, and that she had continued to be a full-time student to the present. The trial court granted Gail’s motion. John then filed a motion for summary judgment, arguing that his liability, as cosigner of the note, was derivative of that of Gail’s. The trial court also granted John’s motion.

On appeal, MacMurray argues that the trial court erred in granting the defendants’ motions for summary judgment because genuine issues of material fact exist.

We agree.

The principles governing summary judgment are well established. A motion for summary judgment, pursuant to section 2— 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005) should only be granted where the record reveals that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. (Nelson v. Gundlock (1983), 120 Ill. App. 3d 117, 457 N.E.2d 1052.) Supporting affidavits are to be construed most strictly against a moving party and most liberally in favor of the opponent. (McCarthy v. Johnson (1983), 122 Ill. App. 3d 104, 460 N.E.2d 762.) The moving party’s right to summary judgment must be clear and free from doubt. Mortell v. Insurance Co. of North America (1983), 120 Ill. App. 3d 1016, 458 N.E.2d 922.

In entering summary judgment in favor of the defendants, the trial court had to find that no genuine issue of material fact existed concerning Gail’s eligibility for deferral. The relevant portion of the promissory note between the parties provides:

“Interest shall not accrue, and installments need not be paid during any period (A) during which the maker is carrying, at an institution of higher education *** at least one-half the normal full-time academic workload.”

In support of her motion for summary judgment, Gail submitted her affidavit which stated that she is enrolled as a full-time law student at Chicago-Kent College of Law. Gail failed to return the deferment forms which MacMurray sent to her to be completed by Chicago-Kent. By counteraffidavit filed in opposition to Gail’s motion, Jackie Gray, the assistant comptroller and director of personnel of MacMurray, stated that MacMurray “at no time has received any request for deferment of payments for [Gail] to attend Chicago-Kent College.”

The terms of the note provide for a waiver of payment upon the borrower’s enrollment as at least a half-time student. We find that implicit in the terms of the note is the requirement that the borrower furnish sufficient, independent evidence of his or her enrollment. To afford protection to the lending institution, deferral status must be founded on more than the bare, self-serving statements of the borrower.

A preferred method of establishing the borrower’s eligibility for deferral is the borrower’s filing of deferment forms — completed by the educational institution, verifying the borrower’s enrollment. However, other evidence, such as certified copies of transcripts, letters from the educational institution to the lending institution, etc., might well be considered to be sufficient. The borrower’s eligibility for deferral is a question of fact. In the present case, that issue remains unresolved.

Additionally, we find that an issue of material fact was presented with respect to whether payments were due under the note from November 1980 through July 1981. In her affidavit, Gail contends that no payments were due during that period, whereas MacMurray denies the application of a grace period. As our review of the pleadings and affidavits reveals that not all of the material facts were resolved, we conclude that the trial court erred in entering summary judgments in favor of the defendants.

The orders entering summary judgment are vacated and the cause is remanded for trial.

Reversed and remanded.

McCULLOUGH and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    JOYCE A. BROWN, Plaintiff-Appellant, v. JOHN C. MASON, JR., et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0464
    Opinion filed April 1, 1985.

      Kenneth W. Blan, Jr., of Blan Law Offices, of Danville, for appellant.
    Heyl, Royster, Voelker & Allen, of Urbana (Edward M. Wagner and Bruce L. Bonds, of counsel), for appellee John C. Mason, Jr.
    David G. Bernthal, of Danville, for appellee Lakeview Medical Center.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The plaintiff, Joyce Brown, filed suit against the defendants, John Mason, Jr., and Lakeview Medical Center, for medical malpractice. The trial court dismissed the complaint, holding that the plaintiff’s cause of action was barred under section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212). The plaintiff appeals, contending the statutory period under either section 13 — 205 or section 13 — 215 should be applied to her cause of action. (Ill. Rev. Stat. 1983, ch. 110, pars. 13 — 205, 13 — 215.) She also maintains section 13 — 212 violates the equal protection clauses of the Illinois and Federal constitutions.

On January 20, 1980, Mason performed a surgical procedure on the plaintiff at the Lakeview Medical Center for sterilization purposes. The plaintiff, however, became pregnant on or about October 20, 1982, and delivered a child on July 26, 1983. She filed her complaint on April 11, 1984. Under both a negligence count and a breach of contract count, she sought damages for pain of pregnancy and childbirth, loss of income, medical expenses, and child-rearing expenses.

On June 13, 1984, the trial court held a hearing on the defendants’ motions to dismiss. No verbatim transcript of the proceedings was made, but pursuant to Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)), the plaintiff filed a proposed report of the proceedings, which the trial court later certified. The report discloses the defendants’ motions were based upon section 13 — 212. Responding to the motions, the plaintiff orally sought leave to plead over so that either section 13 — 205 or section 13 — 215 would apply. She argued there had been both a written and an implied contract. She also alleged specific assurances had been made to her which were false. The trial court orally denied the plaintiff’s request to amend her complaint. The trial court dismissed the plaintiff’s complaint with prejudice.

Section 13 — 212 of the Code provides, in pertinent part:

“No action for damages for injury or death against any physiclan, dentist, registered nurse or hospital duly licensed by the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13— 215 of this Act.” (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212.)

The trial court held the plaintiff’s complaint was barred by this section because it had been filed more than four years after the surgery.

The plaintiff contends section 13 — 205 of the Code should apply to her contract claims. That statute imposes a five-year limitation period for actions on unwritten contracts, expressed or implied. The plaintiff maintains the statute should be applied because it does not expressly exclude medical malpractice actions. Under the same rationale, it could be argued that section 13 — 202 (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 202) and the “discovery rule” should be applied to personal injury actions against doctors and hospitals. The four-year outer limit of section 13 — 212 would be rendered meaningless. In cases of conflict, specific statutory provisions prevail over general ones. (Board of Education v. Carter (1983), 119 Ill. App. 3d 857, 458 N.E.2d 50.) Section 13 — 212, not section 13 — 205, applies to causes of action for breach of contract against doctors and hospitals. Roberson v. Taylor (1983), 115 Ill. App. 3d 587, 451 N.E.2d 16.

The plaintiff alleges the deféndants fraudulently concealed knowledge of a cause of action from her. Under section 13 — 215, if the person liable fraudulently conceals knowledge of a cause of action from one entitled to bring it, the person entitled to bring the cause of action may bring suit within five years after he discovers he has a cause of action. The plaintiff concludes the trial court erred in not permitting her to amend her complaint to allege fraudulent concealment.

In Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, the plaintiffs maintained section 22 of the Limitation Act (now section 13— 215) tolled the running of the four-year limitation period for medical malpractice actions. The supreme court did not decide whether the statute applied to medical malpractice actions but instead, invited the legislature to decide the issue. The court did state section 22 did not toll the running of the limitation period if a reasonable time remained within the applicable statute of limitations after the plaintiff discovers the “fraudulent concealment.” The court noted the four-year limitation period had not run for a minimum of seven months or a maximum of 16 months from the date the plaintiffs discovered the basis for their cause of action. The court concluded:

“We cannot say that the trial court erred in holding that plaintiffs’ cause of action was barred. It appears that had they exercised diligence after discovery of the alleged fraud their action would not have been barred by the statute.” 79 Ill. 2d 295, 322, 402 N.E.2d 560, 573.

After Anderson, the legislature amended section 13 — 212 to state the four-year limitation applied to medical malpractice cases except as provided in section 13 — 215. The amendment, however, had no effect on the general applicability of section 13 — 215. That statute still does not apply when the plaintiff discovers the fraudulent concealment and a reasonable time remains before the applicable statute of limitations runs. In the present case, the plaintiff must have discovered the defendant’s alleged representations were false sometime between the date she became pregnant and the date she delivered. Thus, the date of discovery was between 5xk months and almost 15 months prior to the date the statute of limitations would run. With the exercise of diligence, her cause of action would not have been barred. The trial court, therefore, did not err in refusing to let her amend her complaint.

Finally, the plaintiff asserts section 13 — 212 violates the equal protection clause. She cites Shessel v. Stroup (1984), 253 Ga. 56, 316 S.E.2d 155, in which the Georgia Supreme Court found its two-year statute of limitations on medical malpractice claims unconstitutional as a denial of equal protection as applied to claims for injuries which occur more than two years after the negligent act or omission occurred. We note the same situation is not present here because the plaintiff discovered her injury within the statutory period.

Mason argues the plaintiff waived her constitutional argument by failing to raise it in the trial court. The report of proceedings prepared by the plaintiff does not refer to any constitutional argument being raised. Questions regarding the constitutionality of a statute cannot be raised for the first time on appeal. In order for a trial court to pass upon a constitutional question, the record must disclose that the objection was called to the attention of the trial court and ruled upon by it. (People ex rel. Toman v. Belmont Radio Corp. (1944), 388 Ill. 11, 20, 57 N.E.2d 479, 483.) The plaintiff asserts the lack of a verbatim transcript makes it impossible to determine whether the argument was raised. The burden, however, is on the party raising an issue on appeal to present an adequate record. If the reviewing court cannot ascertain whether the appellant raised an issue in the trial court, the question may not be argued on appeal. Illinois Marine Towing Corp. v. Black (1979), 74 Ill. App. 3d 909, 911, 393 N.E.2d 707, 709-10.

Even if the constitutionality of section 13 — 212 were open to review, we would be bound by the supreme court’s decision in Anderson. The court found the predecessor to section 13 — 212 was a reasonable attempt to remedy what the legislature perceived to be a medical malpractice insurance crisis. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 316, 402 N.E.2d 560, 570.) The plaintiff notes that although the court in Anderson found neither a due process violation nor a special legislation violation of section 13 of article IV of the Illinois Constitution, the court did not succinctly state whether the statute violated the equal protection clause. The grounds on which the court in Shessel found an equal protection violation, however, were rejected in Anderson, although the court described those grounds as an unarticulated, due process argument. (79 Ill. 2d 295, 311-12, 402 N.E.2d 560, 567-68.) As this court noted in its decision in Anderson, purported violations of due process and equal protection under the statute would be judged by substantially identical standards. (Anderson v. Wagner (1978), 61 Ill. App. 3d 822, 827, 378 N.E.2d 805, 809.) Moreover, the same test is applied in both special legislation and equal protection attacks. The court must decide whether the classification is unreasonable. (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 138, 414 N.E.2d 458, 463.) In Anderson, the court held that distinguishing between medical malpractice defendants and other professional malpractice defendants was reasonable. It necessarily follows that distinguishing between medical malpractice plaintiffs and other plaintiffs is not unreasonable. In effect, the supreme court in Anderson rejected the claims that the medical malpractice statute of limitations violated any provision of either the Illinois or United States constitution. Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 877, 428 N.E.2d 941, 942.

For these reasons, the order of the trial court is affirmed.

Affirmed.

WEBBER and TRAPP, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
      In re M.A., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.A., Respondent-Appellant).
    First District (5th Division)
    No. 83—226
    Opinion filed March 22, 1985.
    Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Robert W. Bertucci, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

A petition was filed on June 11, 1981, against respondent M.A., then a minor 15 years of age, to adjudicate him a delinquent ward of the court. The minor was held in custody for 15 days, from June 10, 1981, until June 25, 1981. He filed a written demand for a speedy hearing on December 2, 1981. The adjudicatory hearing was held on November 17, 1982, at which respondent was adjudicated a delinquent ward of the court. Thereafter, on January 12, 1983, he was placed on probation for three years. He appeals.

Respondent contends that: (1) the 17-month delay in prosecuting the case actually and substantially prejudiced his case in violation of his due process rights; (2) section 4 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, pars. 701 — 1 et seq., 704 — 2) provides for a hearing within 30 days, so the court’s refusal to dismiss the petition was error; (3) he was denied equal protection when the court failed to dismiss the petition in accordance with the speedy trial rule for adults (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5); and (4) the court erred in refusing to dismiss the petition in accordance with his common law right to a speedy hearing.

The pertinent facts are as follows. The public defender was appointed to represent the respondent upon filing of the petition on June 11, 1981. On June 25, the public defender was allowed to withdraw and private counsel was appointed for respondent. On motion of the State, a continuance was granted until August 27, and then, on that date, until December 2, 1981. On December 2, respondent filed a motion to dismiss because of the delay and the hearing was continued by the court until January 18, 1982. Then, the motion was heard and denied and the case was continued by the court until February 8, 1982. At that time, the State requested a continuance because the victim was in Mississippi attending a funeral. On the next date, June 18, 1982, the victim was again absent and the State’s motion to s.o.l. (motion to strike with leave to reinstate) was granted. Two weeks later, July 2, 1982, the State moved to reinstate the case on the representation that the victim was late on June 18 and had been in the washroom and the waiting room while the case was before the court. The court granted the motion to reinstate and continued the case until August 25, 1982.

On August 25, respondent presented a motion to dismiss on the basis of the delay. The State advised the court that the victim was unable to be present because she was ill and had been taken to the doctor, and requested that a trial date be set as soon as possible. The court indicated that it needed time to review respondent’s motion; respondent’s counsel replied, “I have no objection your Honor, for the Court taking as much time as it wants to. I have raised some serious questions of law.” The court then continued the case on its own motion, until September 3.

On that day, the case was continued on order of court until September 23. Then, the case was continued by agreement until November 17. On that date, respondent’s counsel withdrew his motion to dismiss on speedy trial grounds and stated that respondent was ready for trial that day. An adjudicatory hearing was then held and respondent was adjudicated a delinquent ward of the court on November 17, 1982.

Opinion

Respondent’s first argument on appeal is that he was actually and substantially prejudiced by the 17-month delay in prosecuting the case and that the delay, 14 months of which were attributable to the State, violated his due process rights. He relies on this court’s opinion in In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089, which held that a juvenile court has the authority to dismiss a petition where the minor’s due process rights have been violated due to a delay in holding an adjudicatory hearing. The State responds to this argument by noting that respondent has not shown that he was caused actual and substantial prejudice because of the delay. People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

It is well-settled law that a mere continuance, without more, cannot be said to substantially prejudice a defendant or respondent. (In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089; People v. Gerena (1978), 63 Ill. App. 3d 960, 380 N.E.2d 985.) Respondent requests that this court expand C.T. to allow dismissal of petitions based upon a per se violation of the right to a speedy trial. In other words, we are asked to hold that at some point a delay becomes so impermissible that the only remedy is dismissal.

The kind of per se test requested by the respondent is not consistent with the holdings of either this court (In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089), or the Illinois Supreme Court (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244). Illinois courts have consistently held that a showing of actual and substantial prejudice is essential before a petition can be dismissed by the trial court. A mere continuance does not justify dismissal.

Respondent’s next contention is that the trial court erred in refusing to dismiss the petition, since section 4 — 2 of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 704 — 2) provides for an adjudicatory hearing within 30 days. The State, relying on In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496, points out that the legislature’s use of the word “shall” in providing for the setting of an adjudicatory hearing within 30 days is directory, not mandatory.

A review of the appellate court opinion in In re Armour (1973), 15 Ill. App. 3d 529, 305 N.E.2d 47, affd (1974), 59 Ill. 2d 102, 319 N.E.2d 496, shows that the petitions against the respondent were filed on July 3, 1971. An adjudicatory hearing was set for August 4, 1971, 32 days from the date the petitions were filed. A total of 16 continuances were granted, and the adjudicatory hearing was not actually held until February 29, 1972, being 241 days after the petitions were filed. It was respondent’s contention in Armour that the juvenile court lost its jurisdiction by failure to comply with section 704 — 2 of the Juvenile Court Act. (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 1 et seq.) In analyzing the statutory language, the appellate court emphasized that the express purpose of the Act included securing for each minor subject to the Act such care and guidance, preferably at home, as will serve his or her moral, emotional, mental, and physical welfare, as well as the best interests of the community. See Ill. Rev. Stat. 1983, ch. 37, par. 701-2.

The appellate court in Armour went on to state:

“[I]t is our opinion that construing the word ‘shall’ as merely directory is more in accord with the salient purpose of the Juvenile Court Act. The entire concept of rehabilitation and guidance would be thwarted if the juvenile division of the circuit court lost jurisdiction over a wayward youth by setting the adjudicatory hearing 32 days instead of 30 days as called for by the statute. It is the appellant’s contention that section 704 — 2 is the speedy trial provision of the Act. This court agrees that a prompt determination of a minor’s status is one of the purposes of the Act but we cannot agree that mere speed should outweight [sic] the predominate purpose of the Act — the welfare of the minor.
* * *
The threat of the loss of liberty should not indefinitely hang over a minor’s head, but the objectives of the Juvenile Court Act are understanding, guidance and protection and these objectives should not be lost to mere speed. It is the opinion of this court that the language of the first sentence of section 704 — 2 of the Juvenile Court Act was intended as a direction and a guide to the juvenile division of the Circuit Court in order to secure and promote the purposes of the Act. The Act was intended to aid and protect the juvenile and society and to do so in as expeditious a manner as possible.” (In re Armour (1973), 15 Ill. App. 3d 529, 536, 305 N.E.2d 47, 51.)

Accordingly, the court held that the language in section 704 — 2 was not mandatory.

The Illinois Supreme Court affirmed the appellate court decision. (In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496.) Like the appellate court, the supreme court emphasized the purposes of the statute:

“Society is interested for its own sake as well as for the minor’s individual welfare in guiding and rehabilitating. These interests cannot always be served by a mechanical adherence to rote or formula. ***. We do not consider that the legislature intended that should an adjudicatory hearing not be held precisely within 30 days that the minor should be discharged or be abandoned, as it were, and that society’s effort to correct, to rehabilitate and to guide should come to a halt.” (In re Armour (1974), 59 Ill. 2d 102, 104-05, 319 N.E.2d 496, 498.)

In light of the plain language in Armour, respondent’s contention must fail. Accordingly, the failure to hold an adjudicatory hearing in the instant case within 30 days did not require dismissal of the petition.

The third contention raised by respondent on appeal is that he was denied equal protection by the trial court’s refusal to dismiss the petition in accordance with the speedy trial act for adults (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5). The State responds by arguing that the delay in this case was reasonable and a significant portion of the delay was attributable to the respondent.

We need not resolve which aspects of the delay were attributable to each party since the Speedy Trial Act is not applicable to juvenile court proceedings. (People v. Woodruff (1981), 88 Ill. 2d 10, 430 N.E.2d 1120.) As stated in Woodruff, “[Cjlearly, a proceeding under the Juvenile Court Act is distinct and different from a criminal prosecution, and the provisions of the [Juvenile Court] Act apply exclusively to juvenile offenders until such time as the court authorizes criminal prosecution.” (88 Ill. 2d 10, 18, 430 N.E.2d 1120, 1124.) Although section 4 — 2 (referred to above as section 704 — 2 in Armour) has been amended by Public Act 83 — 1517 to provide for dismissal of a petition where an adjudicatory hearing is not held within 120 days of a written demand for such hearing, the amendment is specifically not effective until July 1, 1985. (9 Ill. Leg. Serv. (1984), Pub. Act 83— 1517, at 57-76.) Accordingly, the amendment is not applicable in the instant case. Since criminal and juvenile proceedings are separate and distinct under the present Illinois case law and statutes, respondent’s equal protection argument is without merit.

Finally, the minor contends that the trial court erred in refusing to dismiss the petition because of his common law right to a speedy trial. We disagree. The rights a minor has to a speedy trial derive from the Juvenile Court Act and cases interpreting it. Respondent has not established under existing authorities that the trial court erred in denying his petition to dismiss.

For the foregoing reasons, the circuit court’s findings of delinquency and disposition are affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE SCHNAKE

text:
    JACK TUELL et al., Plaintiffs-Appellees and Cross-Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant and Cross-Appellee (Roger W. Seele, Special Adm’r of the Estate of Stuart J. Seele, Deceased, Defendant-Appellee).
    Second District
    No. 84—179
    Opinion filed April 9, 1985.

      Bruce C. Erickson, of Mateer & Erickson, of Rockford, for appellant and cross-appellee State Farm Fire & Casualty Company.
    Larry E. Ohlson and David A. North, both of Rockford, for appellees and cross-appellants Jack Tuell and Jacqueline Tuell.
    John M. Boreen, of Rockford, for appellee Roger W. Seele.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Defendant, State Farm Fire and Casualty Company (hereinafter State Farm) appeals from a summary judgment entered against it in favor of plaintiffs, Jack and Jacqueline Tuell. The judgment held State Farm liable to plaintiffs on a homeowner’s policy of insurance and required payment of a judgment of $40,000 levied against the Tuells and the expense of fees and costs incurred by them in á prior wrongful death action. That latter suit had been brought by the special administrator of the estate of Stuart J. Seele, deceased, who allegedly came to his death in an occurrence involving the operation of a motorcycle by Kevin Tuell, plaintiffs’ son. Kevin was the owner of the motorcycle. Tuells cross-appeal from the disallowance of attorney fees in prosecuting the declaratory judgment action.

The following is the pertinent sequence of events:

State Farm issued to plaintiffs a policy of insurance covering the period June 27, 1979, to June 27, 1980.

On August 8, 1979, a collision occurred between motorcycles operated by Stuart Seele, a minor, deceased, and Kevin Tuell, age 17, on a dirt path. (This allegation is found in the Seele complaint.)

On July 1, 1982, an action for wrongful death of Stuart Seele was filed, naming Kevin, Jack and Jacqueline Tuell as defendants. Thereupon, defense of this action was tendered to State Farm and refused by State Farm on the ground that there was no coverage under said policy.

On July 11, 1983, a jury verdict was entered in favor of Seele and against Jack and Jacqueline Tuell on counts IV and V of the second amended complaint, judgment thereon for $40,000 being entered on July 25, 1983.

Tuells’ suit for declaratory judgment was started on October 6, 1983, and there followed denial of State Farm’s motion for judgment on the pleadings, and allowance of Tuells’ motion for summary judgment. It is from the latter that State Farm appeals.

Appellant raises three issues on appeal:

1. That the court below erred in finding that the policy in question afforded coverage for the wrongful death claim raised in the underlying action;
2. That the trial judge improperly employed his recollection of testimony in the tort action, this being dehors the record in the declaratory judgment action; and
3. That the trial court erred in finding that State Farm was estopped to deny policy coverage by reason of its refusal to defend in the wrongful death suit.

Because we affirm the judgment below on the ground of estoppel, we consider appellant’s first two points only as they relate to the question of estoppel.

The second amended complaint included counts of negligence and wilful and wanton conduct against Kevin Tuell. Count IV alleged a claim against the senior Tuells for negligent supervision of Kevin’s operation of a motorcycle, and count V, against the same defendants, raised a claim for negligent entrustment of the motorcycle.

The relevant coverage section of the policy in dispute reads:

“COVERAGE L — PERSONAL LIABILITY if a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:
a. pay up to our limit of liability for the damages for which the insured is legally liable; and
b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate.
Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the occurrence equals our limit of liability.”

Another clause provided:

“2. Severability of Insurance. This insurance applies separately to each insured. This condition shall not increase our limit of liability for any one occurrence.”

This provision is relevant because Kevin Tuell and his parents were all within the definition of “insured” under the policy.

State Farm’s denial of coverage referred to these provisions of the policy:

“Coverage L — Personal Liability (R — -C22)
Payments to others do not apply to:
e. Bodily injury or Property Damage arising out of the ownership, maintenance, use, loading or unloading of:
(2) a motor vehicle owned or loaned to any insured.”
“5. ‘motor vehicle’ means
a. a motorized land vehicle designed for travel on public roads and subject to motor vehicle registration;
c. a motorized golf cart, snowmobile, or other motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location.”

An insurance company’s obligation to represent its insured depends on the allegations of the complaint and the provisions of the insurance policy. (Sherman v. Home Insurance Co. (1975), 25 Ill. App. 3d 519, 522; Hartford Accident & Indemnity Co. v. Case Foundation Co. (1973), 10 Ill. App. 3d 115, 121.) It is the duty of an insurer to defend an action brought against the insured if the complaint alleges facts within, or potentially within, policy coverage. (Thornton v. Paul (1978), 74 Ill. 2d 132, 144; McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 170; Mol v. Holt (1980), 86 Ill. App. 3d 838, 840; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777.) Moreover, the duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured even if only one or some of them are within the policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 194; United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 190, 194.) Unless the complaint, on its face, clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 784; Sherman v. Home Insurance Co. (1975), 25 Ill. App. 3d 519, 522; Aetna Casualty & Surety Co. v. Coronet Insurance Co. (1976), 44 Ill. App. 3d 744, 748; Fragman Construction Co. v. Preston Construction Co. (1971), 1 Ill. App. 3d 1002, 1005; Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 72.) The duty to defend is “not annulled by the knowledge of the insurer that the allegations are untrue.” (Thornton v. Paul (1978), 74 Ill. 2d 132, 144; Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 192.) The foregoing rules are based upon the principle that the insurer’s duty to defend is broader than its duty to pay. Fragman Construction Co. v. Preston Construction Co. (1971), 1 Ill. App. 3d 1002, 1005; McFadyen v. North River Insurance Co. (1965), 62 Ill. App. 2d 164, 170.

We thus examine the record to determine whether in the underlying wrongful death complaint there are alleged facts that bring the claim within, or potentially within, policy coverage. “Potential” may be defined as “possible but not yet realized; capable of being but not yet in existence; latent.” The American Heritage Dictionary 1025 (1969).

State Farm argues that the allegation in the Seele complaint as to the location of the motorcycle collision did not bring the occurrence within coverage of the Tuell policy. The complaint stated in count IV:

“3. That on August 8, 1979, at about 7:45 p.m. the Plaintiff, decedent, STUART J. SEELE, age 14, was riding a motorcycle in an easterly direction on a narrow dirt trodden path immediately south of and adjacent to Illinois Route No. 72, approximately 1.4 miles East of Kishwaukee Road in Maryland Township, Ogle County, Illinois.
4. The above-described path was located on private property and extended along and parallel to Illinois Route No. 72 for a considerable distance and is located directly across from the home of the Defendants in Stillman Valley, Illinois.”

The “insured location” as defined by the policy reads, in part:

“4. ‘insured location’ means:
a. the residence premises;
b. the part of any other premises, other structures, and grounds, used by you as a residence or which is acquired by you during the period this policy is in effect for your use as a residence;
c. any premises used by you in connection with the premises included in 4a or 4b;”

The “Declarations” page of the policy was blank as to “location of residence premises” and listed insured mailing address as “Rte, 1, Box 274, Stillman Valley, IL. 61084.”

Remembering that the Seele complaint described the site of the motorcycle collision as “directly across from the home of the defendants in Stillman Valley, Illinois,” the trial court correctly held that this constituted allegation of facts potentially within policy coverage.

The motor vehicle exclusion relied upon by State Farm does not by itself and automatically stand as a bar to policy coverage. While the occurrence may have been vehicle-related, allegations of negligent entrustment and supervision are separately recognized causes of action. Applying the rule of law enunciated in Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, and United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 190, that the duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured, one of which is within the coverage of a policy while the others may not be, we find that here there were allegations of fact bringing the Seele claim potentially within policy coverage.

On the substantive question of the applicability of the motor vehicle exclusion, had this issue been properly and timely presented for judicial determination, Illinois cases are in conflict. State Farm Fire & Casualty Co. v. McGlawn (1980), 84 Ill. App. 3d 107, holds that the exclusion may be interpreted as controlling. A more recent decision, United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 190, reaches a contrary conclusion. For the purposes of the instant matter, it must be importantly noted that in both of these cases, the issue was presented and determined in a declaratory judgment action before trial of the underlying personal injury litigation. That avenue of judicial decision was declined by State Farm here, nor did it opt to proceed under a reservation of rights.

We hold, therefore, that the court below, under the Illinois authorities cited above, properly found State Farm estopped to deny policy coverage. Thornton v. Paul (1978), 74 Ill. 2d 132; Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777; Mol v. Holt (1980), 86 Ill. App. 3d 838.

Tuells have filed a cross-appeal from denial of their claim for attorney fees incurred in prosecuting the instant declaratory judgment action. While there may be some logical merit to their argument, the decided cases hold to the contrary.

The Illinois law is well settled that an insured may not recover attorney fees and costs for bringing a declaratory judgment against the insurer. (Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 789; Brown Bag Co. v. Bituminous Casualty Cory. (1969), 117 Ill. App. 2d 287, 295; Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 81.) The decision of our supreme court in Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, does not support a contrary rule.

The judgment of the trial court is affirmed.

Affirmed.

HOPF and STROUSE, JJ., concur.


author: JUSTICE BUCKLEY

text:
    LOUIS FRANKS, Plaintiff-Appellant, v. JOYCE TUCKER, Director of the Illinois Department of Human Rights, et al., Defendants-Appellees.— ARTHUR MEAD, Plaintiff-Appellant, v. JOYCE TUCKER, Director of the Illinois Department of Human Rights, et al., Defendants-Appellees. — ANNIE MAE RUFFIN, Plaintiff-Appellant, v. JOYCE TUCKER, Director of the Illinois Department of Human Rights, et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 84—137 through 84—139 cons.
    Opinion filed March 29, 1985.
    —Rehearing denied May 2,1985.

      Gary H. Palm, Jean P. Kamp, and Jerome Meites, all of Edwin F. Mandel Legal Aid Clinic, of Chicago, and Jeffrey Alperin, law student, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Jeffrey W. Finke, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

These appeals arise out of three separate actions for writs of mandamus to compel defendants, the Illinois Department of Human Rights and its Director, Joyce Tucker, to file complaints of employment discrimination -with the Illinois Human Rights Commission. The trial court dismissed all three mandamus actions, and the separate appeals were consolidated for review. On appeal, plaintiffs contend they are entitled to writs of mandamus as a matter of law because the Department of Human Rights failed to take any action on their claims within the time frame mandated by statute. Defendants request that these appeals be dismissed because the trial court’s orders are not final, because the plaintiffs failed to exhaust their administrative remedies, because the cases are moot, and because the cases are barred by the doctrine of sovereign immunity. We find we have jurisdiction to hear two of these cases and affirm the judgments of the trial court. The remaining appeal we dismiss for lack of jurisdiction.

Since these cases all involve defendants’ obligations under the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.), some analysis of that statute is required in order to fully understand the proceedings below. The Act is Illinois’ general antidiscrimination statute and prohibits discrimination on the basis of such factors as race, sex, and religion. (Ill. Rev. Stat. 1981, ch. 68, par. 1— 102(A).) Claims filed under the Act are initially processed by the Illinois Department of Human Rights (Department), whose primary function is to screen out frivolous cases. The statute requires that the complainant file his charge with the Department -within 180 days from the date of the discriminatory conduct (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 102(A)) and that within 10 days of filing, the Department serve a copy of the charge on the respondent (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 102(B)). Thereafter, the Department is required to conduct a “full investigation of the allegations set forth in the charge,” which may include a fact-finding conference. Ill. Rev. Stat. 1981, ch. 68, par. 7 — 102(C).

After completing this investigation, a Department investigator prepares a report for the Director, who must determine if there is “substantial evidence” supporting the charge. (Ill. Rev. Stat. 1981, ch. 68, par. 7 — 102(D).) If the Director resolves this question against the claimant, the charge is dismissed. However, if the Director determines there is substantial evidence and the parties cannot settle the claim through conciliation, then the Department prepares a written complaint stating the nature of the alleged civil rights violation and files it with the Illinois Human Rights Commission (Commission). The Commission acts as an adjudicatory body determining the merits of the complainant’s charge and awarding the appropriate relief. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 106.) Of particular relevance to the cases at bar are the provisions of section 7-102(G) of the Act which impose a maximum time limit within which the Department must either issue a complaint to the Commission or dismiss the complainant’s charge. This section provides in relevant part:

“When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof *** shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 68, par. 7 — 102(G).

Here, all three plaintiffs had initially filed charges of employment discrimination against their employers. In each case, the Department failed to make a finding whether there was substantial evidence to support the charge within the 300-day statutory period. Plaintiffs then brought separate actions for writs of mandamus, claiming that section 7 — 102(G) requires the Department to automatically issue complaints to the Commission unless the Department finds there is no substantial evidence to support the charge within the 300-day deadline. The trial court found that it had no authority to order the Department to issue a backdated complaint which would bring the Department’s action within the 300-day deadline. The court also found that the 300-day requirement set forth in section 7 — 102(G) was only directory, not mandatory, and therefore it refused to grant the writs of mandamus. In the cases of plaintiffs Franks and Ruffin, the trial court also found the causes moot because the Department had found lack of substantial evidence for issuance of complaints after plaintiffs had filed their mandamus actions. The trial court dismissed the cases, stating in both instances:

“[TJhis cause is dismissed with prejudice but without prejudice to plaintiff to pursue any available administrative review remedies under the Human Rights Act, and without costs to either side. There is no just reason for delaying appeal of this cause.”

In the case of plaintiff Mead, the Department had still failed to take any action on her employment discrimination charge. The trial court dismissed Mead’s action, stating:

“[TJhis cause is dismissed without prejudice and with leave to refile if defendant fails to act within 45 days of entry of this order.”

We will first address defendants’ jurisdictional argument that the orders appealed from are not final. A final order is one which either terminates the litigation between the parties on the merits or disposes of the rights of the parties in regard to the entire controversy or some definite part thereof. (People v. Illinois Commerce Com. (1983), 114 Ill. App. 3d 384, 448 N.E.2d 986.) The mere inclusion of a finding that there is no just reason for delaying enforcement or appeal will not render an otherwise nonfinal order appealable. (Levy v. Metropolitan Sanitary District (1981), 100 Ill. App. 3d 714, 715, 427 N.E.2d 377, affd (1982), 92 Ill. 2d 80, 440 N.E.2d 881.) A dismissal with prejudice or without further leave to amend is final and appealable. Martin v. Marks (1980), 80 Ill. App. 3d 915, 918, 400 N.E.2d 711.

Defendants contend that the orders entered in plaintiffs Franks’ and Ruffin’s cases are not final because the causes were dismissed without prejudice to plaintiffs’ rights to pursue their administrative remedies for their underlying discrimination claims. However, defendants ignore those portions of the orders dismissing plaintiffs’ mandamus complaints with prejudice. From the inclusion of this language, we must conclude that the trial court’s order was intended to fix absolutely and finally plaintiffs’ rights to the requested mandamus relief. Accordingly, we find that final judgments were entered on the issues presented by the pleadings in these two cases, and we, therefore have jurisdiction to hear these appeals. Flores v. Dugan (1982), 91 Ill. 2d 108,112, 435 N.E.2d 480; 73 Ill. 2d R. 301.

However, the order entered in plaintiff Mead’s case clearly lacks sufficient indicia of finality for us to have appellate jurisdiction. The order states that the dismissal is “without prejudice and with leave to refile” within 45 days. There is also no finding of no just reason for delay of enforcement or appeal. A dismissal order which states it is without prejudice and with leave to refile is on its face nonfinal and therefore nonappealable. (Flores v. Dugan (1982), 91 Ill. 2d 108, 114, 435 N.E.2d 480.) Accordingly, we must dismiss plaintiff Mead’s appeal for lack of appellate jurisdiction.

Defendants also contend that the two remaining cases presently before us are moot because in each instance the Department has already issued complaints of unfair employment practices with the Commission. Plaintiffs contend that the cases are not moot because the complaints issued were not backdated to bring them within the 300-day limit and therefore the validity of the complaints is doubtful.

Plaintiffs’ backdating argument arises from our supreme court’s holding in Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, 378 N.E.2d 1307. There, the court held that the deadline for processing claims and making findings of substantial evidence is mandatory and that the Department’s failure to act within the proscribed time limit extinguished a complainant’s discrimination claim. The result was later overturned by the United States Supreme Court in Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148. In overruling prior Illinois Supreme Court precedent, the United States Supreme Court held that access to the Commission’s adjudicatory procedures was a protected property interest under the due process clause of the fourteenth amendment which could not be defeated by the Department’s failure to timely process a complaint. (455 U.S. 422, 428-33, 71 L. Ed. 2d 265, 273-76, 102 S. Ct. 1148, 1153-56.) Subsequent Hlinois decisions have acknowledged that a complainant’s claim may not be dismissed solely because the Department failed to meet the statutory deadline for processing. (Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 899, 446 N.E.2d 896; McClandon v. Bell & Howell Schools (1983), 112 Ill. App. 3d 367, 370, 445 N.E.2d 362; Lott v. Governors State University (1982), 106 Ill. App. 3d 851, 854, 436 N.E.2d 569.) Accordingly, there is no need for plaintiffs’ complaints to be backdated since they are valid as they stand. These cases are therefore moot, since both plaintiffs have already received all the relief that they sought, namely, valid complaints filed with the Commission. However, we believe the present cases fall within the public interest exception to the mootness doctrine.

The criteria used in deciding whether to apply this exception are: (1) the public nature of the question; (2) the desirability of an authoritative determination for guiding public officers; and (3) the likelihood that the question will recur. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 76, 410 N.E.2d 98.) The underlying question raised by these appeals is clearly public in nature. At issue is whether a public agency must act within a deadline imposed by the General Assembly. It is also apparent that defendants require an authoritative determination of their duty to abide by the 300-day deadline after the United States Supreme Court’s decision in Logan. Also, the cases at bar do not represent isolated instances of inadvertent, technical violations. Rather, there are approximately 600 cases older than 300 days currently pending in the Department. A class action has been filed on behalf of these individuals in the circuit court of Cook County, where defendants have requested the proceedings be stayed “pending a ruling by the Illinois Appellate Court on the merits of the relief” in the present cases. Thus, the issues raised here are virtually certain to recur. Accordingly, we find that the remaining two cases, though technically moot, are still justiciable under the public interest exception to the mootness doctrine.

Defendants also claim that these appeals should be dismissed because plaintiffs have failed to exhaust their administrative remedies. This claim is without merit. Here, plaintiffs seek access to the administrative remedies which the Department had heretofore foreclosed to them by failing to take any action on their complaints. We recognize that the Department has introduced mootness by processing these two claims during the pendency of these actions and that now these two plaintiffs have access to administrative remedies for their underlying discrimination claims. However, we are addressing these appeals under the public interest exception to the mootness doctrine and are treating these cases as if the plaintiffs were still in the same position with respect to the processing of claims as they were prior to bringing suit. Then, the Department had failed to take any action on their claims within the statutory time frame previously held to be mandatory and no administrative remedy was available to plaintiffs to compel agency action. Accordingly, plaintiffs had exhausted their administrative remedies prior to bringing these suits and the Department’s subsequent action on plaintiffs’ claims will not deprive this court of jurisdiction.

Defendants also challenge our jurisdiction on the grounds that plaintiffs’ actions are barred by the doctrine of sovereign immunity as actions against the State. We find little merit in this challenge. As we held in Board of Trustees v. Bakalis (1978), 64 Ill. App. 3d 967, 382 N.E.2d 26:

“Where, however, a suit brought against State officials seeks to compel them to perform their duty, it is not held to be a suit against the State even though the duty to be performed arises under a certain statute.” (64 Ill. App. 3d 967, 970.)

It also has been held that when a State officer is acting in violation of the law, his conduct is not regarded as the conduct of the State, nor is the action against him considered an action against the State. (Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 37, 101 N.E.2d 71.) In the present cases, plaintiffs claim defendants have refused to process complaints in violation of section 7 — 102(G) and they seek to compel defendants to fulfill duties they believe are mandated by the Act. Accordingly, under the previously cited authorities, the present lawsuits are not actions against the State which are barred by sovereign immunity.

Since we have jurisdiction to hear the two remaining cases, we will address the merits of plaintiffs’ appeals. Initially, we note that the mandamus relief requested is extraordinary in nature and appropriate only where a plaintiff demonstrates (1) there is a clear right to the requested relief, (2) the defendant has a clear duty on his part to act, and (3) the defendant has clear authority to comply with the terms of the writ. (In re Claudia K. (1982), 91 Ill. 2d 469, 476, 440 N.E.2d 78; People ex rel. Hoagland v. Streeper (1957), 12 Ill. 2d 204, 218, 145 N.E.2d 625.) The grant or denial of a writ of mandamus is discretionary with the trial court, whose decision will not be overturned on review absent a clear abuse of discretion. Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 410, 250 N.E.2d 537.

Here, plaintiffs contend they have a clear right to have the Department automatically issue a discrimination complaint to the Commission unless the Department finds that no substantial evidence exists to support the charge within the 300-day time limit imposed by section 7 — 102(G) of the Act. We find plaintiffs have no clear right to such relief. Indeed, an opposite conclusion would contradict those provisions of the Act requiring that the Department investigate, prepare a report, conduct conciliation efforts and issue complaints only where substantial evidence exists to support the charge. Elimination of the Department’s screening requirement by forcing complaints to automatically issue after 300 days would completely destroy the carefully crafted administrative procedures established to fairly balance the rights of claimants and respondents and would run counter to the Act itself. Further, such relief would only serve to compound the delay in processing by shifting a large backlog from the Department to the Commission for a full hearing. Accordingly, we find the trial court did not abuse its discretion in denying this portion of the mandamus relief.

• 13 Finally, plaintiffs contend that the trial court erred in refusing to compel the Department to backdate the complaints filed on their behalf so as to bring them within the 300-day deadline imposed by section 7 — 102(G). As previously discussed, plaintiffs’ argument is premised on the theory that the 300-day deadline is mandatory and therefore failure to backdate the complaints would result in the extinguishment of their claims. (See Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, 373 N.E.2d 1307.) However, we find Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, has effectively overruled the line of Illinois cases holding that the Department processing deadline is mandatory. (455 U.S. 422, 428-33, 71 L. Ed. 2d 265, 273-76, 102 S. Ct. 1148, 1153-56.) After Logan, the 300-day processing deadline cannot be construed as one which, if not met by the Department, voids the agency’s power to act further in the case or renders its filing of the complaint at a later date ineffective. Such a construction would terminate an innocent complainant’s claim in precisely the same manner condemned by the Logan court. Consequently, we find that the 300-day deadline imposed by section 7 — 102(G) of the Act is directory, not mandatory. (See also Carrigan v. Illinois Liquor Control Com. (1960), 19 Ill. 2d 230, 233, 166 N.E.2d 574 (construing statutory time deadline for agency action as directory).) Accordingly, we also find no abuse of discretion with respect to the trial court’s denial of plaintiffs’ backdating request.

In view of the foregoing, the appeal of plaintiff Mead is dismissed for lack of jurisdiction. We affirm the trial court judgments entered in the cases of plaintiffs Franks and Ruffin.

No. 84 — 137—Affirmed.

No. 84 — 138—Appeal dismissed.

No. 84 — 139—Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

       The Department subsequently reversed its decision and issued complaints with the Commission on behalf of both plaintiffs.


author: JUSTICE SULLIVAN

text:
    MIDWEST BANK & TRUST COMPANY, Plaintiff-Appellant, v. RONALD RODERICK et al., Defendants-Appellees.
    First District (5th Division)
    No. 84—1724
    Opinion filed March 29, 1985.

      Mardyth E. Pollard, Douglas Drenk, and David Drenk, all of Guerard, Konewko & Drenk, Ltd., of Chicago, for appellant.
    Raymond A. Fylstra and Stephen H. Pugh, Jr., both of Chapman & Cutler, of Chicago, for appellee Ronald Roderick.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals the dismissal of its action for judgment on the unpaid balance of a promissory note. It contends that section 9 — 504 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 9— 504(3)) did not require it to give defendant Roderick notice of the sale of collateral where Roderick’s co-debtor, rather than plaintiff, sold the collateral. In the alternative, plaintiff contends that lack of notice is not a complete bar to a deficiency judgment, but instead gives rise to the rebuttable presumption that the value of the collateral was equal to the amount of the debt.

In March 1981, plaintiff loaned $80,000 to Connie’s Pizza Systems, Inc. (Connie’s), secured by all of Connie’s equipment at its Lombard location. The promissory note was executed on behalf of Connie’s by defendants Roderick and Stolfe — its secretary and president, respectively — who are also personally liable on the note. The debtors eventually stopped making payments, and Connie’s recovered approximately $23,000 by selling some of its equipment. Plaintiff, after applying the proceeds of that sale to the loan, brought an action against Roderick and Stolfe seeking judgment for the amount of the loan outstanding plus interest. Stolfe was never served, and Roderick moved to dismiss — alleging that the bank repossessed and sold the collateral ■without notifying him of the sale. The trial court granted Roderick’s motion, and this appeal followed. After oral argument in this court, plaintiff moved to rearrange Stolfe as plaintiff-appellant, pursuant to Supreme Court Rule 366 (87 Ill. 2d R. 366), because it had assigned its interest in the note and in the remaining collateral to Stolfe.

Opinion

We first address the motion to rearrange the parties. Supreme Court Rule 366 grants a reviewing court the discretionary-power to substitute or rearrange parties by reason of assignment, and we note that we are to do so on such terms as we deem just. 87 Ill. 2d R. 366(a)(2); see also Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1008(a).

Roderick correctly observes that this court has not been properly informed of the details surrounding the assignment to Stolfe, and we have previously stated that attorneys owe this court a duty to present a record “in such form that it may be understandingly read without wading through a maze of doubt as to what was done and what was intended in a given matter.” (Norek v. Herold (1975), 31 Ill. App. 3d 514, 520-21, 334 N.E.2d 220, 225, quoting Vick v. Illinois Banker’s Life Association (1934), 276 Ill. App. 432, 436.) This well-established principle is equally applicable to the present situation, where the bank is asking us to exercise our discretion on a motion filed after oral argument without providing us with information necessary for us to determine whether there should be such a rearrangement. Taking into consideration the scarcity of facts before us concerning the assignment, the nature of the original notice issue, and the fact that nothing further needs to be done in this appeal by the parties, we believe it is more appropriate to proceed with the parties as presently aligned, and we therefore deny plaintiff’s motion to rearrange defendant Stolfe as plaintiff-appellant.

In addition to opposing plaintiff’s motion to rearrange, Roderick also asks this court to dismiss the appeal as moot. He argues in his response to the motion to rearrange that Stolfe may properly bring an action for contribution, but — as co-maker — cannot maintain an action on the note. Interestingly, this argument demonstrates the necessity of proceeding with this appeal as briefed, because an action for contribution does not exist unless the party who brings the action paid more than his share of the joint indebtedness or would be liable to the original plaintiff for the debt. (Cunningham v. Lawrence (1959), 16 Ill. 2d 201, 157 N.E.2d 50; see also Roberts v. Heilgeist (1984), 124 Ill. App. 3d 1082, 465 N.E.2d 658.) Thus, even if we were to find that this appeal is moot, a finding which we do not make, we could not dismiss this appeal and leave in effect an erroneous order which might adversely affect the rights of the parties. See Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139.

Although we will not go into an extensive discussion of the other defenses raised by Roderick at this time, we do note that — as co-maker — he expressly consented to any renewal, extension, or modification of the note and, on the basis of such language in the note, the defense of discharge (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 601) upon which Roderick also relies in asking for dismissal may not be available to him. (See American National Bank v. Warner (1984), 127 Ill. App. 3d 203, 468 N.E.2d 184.) We therefore cannot find, on the record before us, that this appeal must be dismissed, and we will not speculate regarding other defenses available to Roderick. Upon remand, it is within the discretion of the trial court to allow Stolfe to be substituted as plaintiff pursuant to section 2 — 1008 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1008), and any defenses available to Roderick would more appropriately be addressed at the trial court level after the facts surrounding the assignment are known.

We proceed, then, to plaintiff’s contention that it was not required by the statute to give notice of the sale of the collateral where it was not the seller. Roderick argues that plaintiff cannot collect a deficiency judgment because the statute which establishes the secured party’s right to dispose of collateral after default also provides that “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor” (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504(3)), and the parties here agree that no notice was sent by plaintiff to Roderick, a debtor. We note also that in his affidavit, Roderick stated he was vice president and secretary of Connie’s at the time the collateral was sold and his mailing address was Evergreen, Colorado; that he received correspondence regarding the note from plaintiff at his Colorado address; but that he received no notice of the sale of the equipment.

The record indicates that Roderick’s argument and the subsequent trial court decision emphasized the duty of a selling-secured-party to notify each of the debtors. Plaintiff does not disagree with such an interpretation, and the issue on appeal here is whether the notice requirement of section 9 — 504(3) applies to a secured party who does not actually dispose of the collateral. We believe it is clear that section 9 — 504 applies only to a disposition effected by the secured party. The captions of the Uniform Commercial Code, as enacted by the Illinois legislature, are parts of the Act (Ill. Rev. Stat. 1983, ch. 26, par. 1— 109), and the caption of section 9 — 504 states: “Secured party’s right to dispose of collateral after default — Effect of disposition.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504.) Nowhere in the body of the section is reference made to disposition by any other party, and since “[a] construction of a statute, variant from the strict and literal meaning, is justified only upon the ground that it effectuates the intention of the legislature manifestly disclosed by a consideration of the whole context” (emphasis added) (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 241, 458 N.E.2d 177, 180), we do not believe section 9 — 504 may be interpreted to include dispositions otherwise not within the statute which are neither specifically referred to in the body of the statute nor encompassed by the caption.

Although our research has found little case law which specifically addresses the application of the notice requirement where the collateral was not disposed of by the secured party, courts presented with the issue have generally rejected such an interpretation with little comment. (See Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 414 N.E.2d 1079; see also Krueger v. Bank of America National Trust & Savings Association (1983), 145 Cal. App. 3d 204, 193 Cal. Rptr. 322.) Apparently, the parties’ search was even less fruitful, because no authority whatsoever has been cited by either party. At oral argument, Roderick referred us to cases cited in his brief which concerned impairment of collateral, but we note that the defense of impairment of collateral (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 606) is not available to Roderick as a co-maker of the note (Main Bank v. Baker (1981), 86 Ill. 2d 188, 427 N.E.2d 94), and thus the analogy offered by Roderick lends little support to his argument.

Roderick himself agrees with the basic interpretation of section 9 — 504, because he initially brought his motion to dismiss based on an allegation that the secured creditor repossessed the collateral and began to sell it. When he discovered that the bank had merely consented to the debtor’s request to be allowed to sell the equipment, however, Roderick attempted to bring the sale within the statute with two alternative arguments.

His first argument is that the section 9 — 504(3) notice requirements cover “other intended dispositions” and therefore cover a situation where a party other than the secured creditor makes the disposition, including, as here, the debtor’s selling the equipment in an attempt to pay the loan. However, we may not adopt an interpretation of the statute which would have the effect of making the legislature say what it has not said (Davis v. Bughdadi (1983), 120 Ill. App. 3d 236, 458 N.E.2d 177), and the language of section 9 — 504 neither expressly indicates nor implicitly implies that the legislature intended the interpretation advanced by Roderick.

“A statute which directs responsibility to an identifiable person speaks with greater force and vigor. To say that ‘[w]henever a structure is in disrepair it shall be destroyed’ requires an unnecessary amount of conjecture and interpretation. Who shall determine when it is in disrepair? Who shall destroy it? The draftsman should have determined these questions and should specify with particularity the person upon whom the responsibility is to be placed.
The first responsibility of a draftsman is to determine what particular individuals must comply with the statutory directive. This requires first, precision of thought and second, exactness of expression.” (1A A. Sutherland, Statutory Construction sec. 21.07 (4th ed. 1972).)

Here, the statute provides: “A secured party after default may sell, lease, or otherwise dispose of any or all of the collateral ***.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504(1).) The language of the statute clearly indicates that the section applies only to other dispositions which are made by the secured party, and nothing in the statutory definition of “secured party” expands such application. (See Ill. Rev. Stat. 1983, ch. 26, par. 9 — 105(l)(m), and official comment thereto.) Although Roderick refers to the drafters’ use of the words “other disposition,” “other intended disposition,” or “otherwise disposed of” in section 9 — 504 without repetition of “secured party” as the subject of the sentence, it is well established that a word or phrase is presumed to have the same meaning throughout a statute. (Borg v. Village of Schiller Park Police Pension Board (1982), 111 Ill. App. 3d 653, 444 N.E.2d 631, affd (1984), 99 Ill. 2d 376, 459 N.E.2d 951.) As previously discussed, the statute caption also specifically referred to action taken by the secured creditor, and we believe the only reasonable interpretation of the statute is that “other disposition” is intended to encompass all types of financial arrangements rather than to extend the responsibility of the secured party. See generally, 1A U.C.C. Serv. (MB) sec. 8.04[2][a][iv] (1984).

Roderick’s second argument is that by consenting to the sale and accepting the proceeds thereof, plaintiff’s participation was such that it should be considered the seller of the collateral for purposes of the notice requirement. We note, however, that although the notice requirement calls for very specific notification, including details such as time and place of sale (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 504(3); see, e.g., Staley Employee Credit Union v. Christie (1982), 111 Ill. App. 3d 165, 443 N.E.2d 731; Spillers v. First National Bank (1980), 81 Ill. App. 3d 199, 400 N.E.2d 1057; but see Ford Motor Credit Co. v. Jackson (1984), 126 Ill. App. 3d 124, 466 N.E.2d 1330), Roderick wishes us to require a secured creditor to notify a debtor of a sale made by his co-debtor despite the absence of a corresponding duty in the default provisions which would require the selling debtor to give secured-creditor detailed information about its activities. We believe such an interpretation would be unreasonable and “[i]t has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result.” (2A A. Sutherland, Statutory Construction sec. 45.12 (4th ed. 1984).) In our view, the interpretation advanced by Roderick would also require the secured party to insure that every aspect of the sale be commercially reasonable despite the inability of the bank to control the actions of the debtor. Even in State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 438 N.E.2d 1345, in which the court granted a high degree of protection for the debtor by following the old absolute-bar rule, the court stated:

“The burdens placed on the creditor under the Code are minimal, while the results of his noncompliance may be very onerous to the debtor. *** We are unable to see any unfairness in protecting the debtor’s rights to the exclusion of those of the creditor when the creditor has been placed in such a high degree of control over the relationship and carries such a small burden inorder [sic] to gain the advantages of the Statute.” (108 Ill. App. 3d 376, 381, 438 N.E.2d 1345, 1349, quoting Wilmington Trust Co. v. Conner (Del. 1980), 415 A.2d 773, 780.)

Here, the burden placed on the creditor would not be minimal but could very well be impossible to meet. In light of the above, we reject the interpretation advanced by Roderick as being unfair and unreasonable. Imposition of such a burden on the secured party would actually impede a debtor’s ability to work out its own financial difficulties. See 1A U.C.C. Serv. (MB) sec. 8.01A[2][b] (1984).

We also observe that while the purpose of the default provisions seems to be the prevention of overreaching on the part of the secured party after default (see generally Ill. Ann. Stat., ch. 26, par. 9 — 501, U.C.C. Comment 1, at 321 (Smith-Hurd 1974)), Roderick asks us to expand the protection afforded him in section 9 — 504 to include protection from Roderick’s own business arrangements and associates. We note, however, that even if plaintiff had complied with the statutory notice requirement, Roderick would be in no better position. He correctly states in his brief that the parties may determine the standards by which the fulfillment of their rights and duties under part 5 of article 9 is to be determined if such standards are not manifestly unreasonable (see Ill. Rev. Stat. 1983, ch. 26, par. 9 — 501(3)), and he points out that the parties here agreed that all debtors would receive notice by mail at least five days before the sale or disposition. He neglects to point out, however, that the note also provides that reasonable notice would be met if the notice was mailed to the address of the debtors as shown on the note, or to any other address of the debtors appearing on the records of plaintiff. The only address listed on the note is the business address of Connie’s Pizza, at 920 Ridge Avenue in Lombard, and thus, even if plaintiff had sent statutory notice — which we believe it was not required to do — Roderick would not have been protected from the actions of his own corporation.

Additionally, in its recent decision which rejected the absolute-bar rule in favor of the rebuttable-presumption rule where the selling party has sold the collateral without notice to all debtors, the Illinois Supreme Court indicated that the absolute-bar rule provided a windfall for the debtor and arbitrarily penalized the creditor (First Galesburg National Bank & Trust Co. v. Joannides (1984), 103 Ill. 2d 294, 469 N.E.2d 180), and we believe such a result is equally undesirable with respect to the notice requirement. This is particularly so in the present case, where the windfall for Roderick would seem to result either from his own lack of attention to his business or from his own business arrangements and partners rather than from any overreaching on the part of the secured creditor. There is no basis in the statute for the expanded application proposed by defendant, and we therefore cannot apply the statutory notice requirement to a secured creditor who did not actually make the sale but merely consented to a debtor’s sale of the collateral and then applied the proceeds of that sale to the outstanding loan.

Finally, we observe that it is possible to approach this case from an entirely different perspective. The default provisions of article 9 allow a secured creditor to pursue any other remedies he may have (Ill. Rev. Stat. 1983, ch. 26, par. 9 — 501(1); see also Ill. Ann. Stat., ch. 26, par. 9 — 501, U.C.C. Comment b, at 322 (Smith-Hurd 1974)), and the secured creditor is therefore not required to proceed under part 5 of article 9. Here, plaintiff had the contractual right to demand payment on the note from Roderick, a co-maker (Ill. Rev. Stat. 1983, ch. 26, par. 3 — 413), and where it neither repossessed nor sold the collateral, it appears that plaintiff did not elect to proceed under article 9, but, rather, proceeded under article 3. We have previously stated that it is the exercise of the article 9 right to dispose of collateral which obligates a secured creditor to comply with the notice provision (State National Bank v. Northwest Dodge, Inc. (1982), 108 Ill. App. 3d 376, 438 N.E.2d 1345), and under either analysis, then, the bank was under no obligation to notify Roderick of Connie’s sale of its equipment.

For the foregoing reasons, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MEJDA, P.J., and LORENZ, J., concur.

       In support of his argument, Roderick refers us to Gillham v. Troeckler (1940), 304 Ill. App. 596, 26 N.E.2d 413, where the co-maker initiated suit on the note after the assignment. The critical time period, however, is the commencement of the suit (see Locks v. North Toume National Bank (1983), 115 Ill. App. 3d 729, 451 N.E.2d 19), and we are not referred to any authority which states that a subsequent transfer by assignment renders the issue on appeal moot. The general rule is that transfer of an instrument vests in the transferee such rights as the transferor had. (Ill. Rev. Stat. 1983, ch. 17, par. 602; Ill. Rev. Stat. 1983, ch. 26, par. 3 — 201.) The effect of the subsequent assignment is more appropriately decided in the trial court after briefing and argument by the parties.

       Roderick argued in the trial court that failure to give notice constituted an absolute bar to a deficiency judgment. After the trial court ruling in the present case, however, the Illinois Supreme Court rejected the absolute-bar concept in favor of the rebuttable-presumption rule, which allows the creditor who sold the collateral without notice to rebut the presumption that the value of the collateral sold was equal to the indebtedness. (First Galesburg National Bank & Trust Co. v. Joannides (1984), 103 Ill. 2d 294, 469 N.E.2d 180.) Although the bank here argues that it should have been allowed to file an amended complaint in keeping with the rebuttable-presumption rule, we do not reach that issue as a result of our finding on the notice requirement.

       It is not significant for purposes of the issue on appeal that the bank did not join Connie’s as a defendant in the action or that it did not serve Stolfe, because the bank had the right to proceed against only one of the co-makers. Ill. Rev. Stat. 1983, ch. 17, par. 606; Ill. Rev. Stat. 1983, ch. 110, par. 2 — 403.


author: JUSTICE TRAPP GREEN, P.J., JUSTICE WEBBER,

text:
    HOWARD N. APPLEGATE, Plaintiff-Appellant, v. GILBERT L. SEABORN et al., Defendants (General Motors Corp., Defendant-Appellee).
    Fourth District
    No. 4—84—0717
    Opinion filed April 10, 1985.
    Rehearing denied May 10,1985.
    WEBBER, J., dissenting in part.
    Law Offices of Kanoski & Butler, P.C., of Rushville (Scott J. Butler, of counsel), for appellant.
    Law Offices of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (R. Michael Henderson, Karen J. Steele, Patricia S. Harris, and Judith A. Zakens, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This action arises from a two-vehicle collision in which an automobile driven by the plaintiff, Howard Applegate, was met head-on by a truck traveling in the opposite direction. Plaintiff filed negligence counts against the driver of the truck, Gilbert Seaborn, and the owner of the truck, Patrick Seaborn. He also filed a products liability count and a negligence count alleging negligent design and manufacture against the maker of the truck, General Motors Corp. Plaintiff’s theory in the counts pleaded against General Motors was that defects in the front differential housing of the truck caused the vehicle to go out of control and collide with plaintiff’s automobile.

Prior to trial, the trial court entered an order barring the testimony of an expert listed as a plaintiff’s witness, as a discovery sanction. Having made this ruling, the court determined that plaintiff would have no other substantive evidence and entered judgment for General Motors. The other defendants were voluntarily dismissed. Plaintiff appeals the judgment entered in favor of General Motors on grounds that the discovery sanction was not warranted under the circumstances.

Plaintiff’s initial discovery response in this cause included a metallurgical analysis relating to the front differential assembly of the truck involved in the collision. This report, prepared by Marvin D. VanEtten, concluded that a defectively manufactured differential housing casting had been installed in the truck. General Motors requested production of the vehicle components which had been the subject of the report. Plaintiff replied that, to his knowledge, the parts had been disposed of by Mr. VanEtten. General Motors filed a motion for sanctions. In granting the motion, the trial court found that, although neither plaintiff nor his attorneys were to blame for the loss of the evidence, the loss impeded the ability of General Motors to present a defense. As a discovery sanction the court barred VanEtten from testifying in the matter; upon finding that no substantive evidence remained in the case, the court entered judgment for General Motors.

The imposition of discovery sanctions pursuant to Supreme Court Rule 219 (87 Ill. 2d R. 219) rests largely in the discretion of the trial court and will not be disturbed on review unless that discretion had been abused. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050.) Sanctions should not be imposed, however, unless a party’s noncompliance with discovery rules or orders is unreasonable. (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24.) On the basis of the record presented in this court, we can find no adequate basis for imposing the challenged discovery sanction against the plaintiff.

It is undisputed that VanEtten, rather than plaintiff or plaintiff’s attorneys, disposed of the vehicle components in issue. On appeal, the defendants repeatedly characterize VanEtten as plaintiff’s expert; however, VanEtten’s role in the proceedings is somewhat more complex. The complaint alleged that the collision was caused by a defective front differential assembly in Patrick Seaborn’s truck. Seaborn’s insurer, Economy Fire and Casualty, caused the truck to be examined by the engineer, VanEtten. After examining the truck components, VanEtten disposed of the parts. The record discloses a probable explanation in that VanEtten’s work order included the legend “[e]vidence will be disposed of 60 days from billing, unless notified to hold.”

VanEtten’s report was dated June 23, 1980. On May 26, 1982, plaintiff first listed VanEtten as a potential witness. It is apparent that the vehicle parts were disposed of long before this latter date.

There is no basis in the record for concluding that plaintiff ever had control over the vehicle parts or that he ever had the ability to comply with the motion to produce. To the contrary, the parts, which were components of the Seaborn truck, apparently remained in the possession of the defendants until their disposal by VanEtten. We do not perceive how plaintiff’s subsequent listing of VanEtten as a possible witness would alter these basic facts. Moreover, although it is true that General Motors shares none of the responsibility for the loss of the component parts, and may experience difficulty in preparing a defense in the absence of those parts, these observations do not justify an otherwise improper order of sanctions.

Since it is undisputed that plaintiff was not responsible for the loss of the evidence, and because there is no indication that plaintiff ever had the ability to comply with the discovery request, we conclude that the trial court abused its discretion when it prohibited plaintiff from presenting the testimony of VanEtten as a discovery sanction. Accordingly, we reverse and remand the cause for further proceedings on the pleadings.

Reversed and remanded.

GREEN, P.J.,

concurs.

JUSTICE WEBBER,

dissenting in part:

I respectfully disagree with the conclusion reached by the majority.

We are faced with a typical situation in which one of two innocent parties must suffer. In my opinion the plaintiff should be the one. It is elementary that one who intends to file a lawsuit has the burden of preserving the evidence upon which that suit will rest. The majority disparages the defendant’s characterization of VanEtten as plaintiff’s expert. Indeed, he was plaintiff’s expert and was retained at a time when plaintiff knew, or should have known, that the vehicle’s components had been destroyed. To allow testimony under those circumstances is to open wide the gate for the possibility of abuse. While products liability cases are generally tried as a duel of the experts, there is no requirement that expert testimony be presented. The plaintiff’s case may be presented by circumstantial evidence in the absence of the corpus delicti. This court so held. Compare 141 South Main, Inc. v. Magic Fingers, Inc. (1977), 49 Ill. App. 3d 724, 364 N.E.2d 605.

I would affirm the trial court in debarring VanEtten from testifying but would reverse its wholesale dismissal of the action and remand for trial with what other evidence plaintiff may be able to produce.