author: JUSTICE REINHARD

text:
      In re ESTATE OF DANIEL F. RICE et al., Deceased (Charles D. Donaldson et al., Ex’rs of the Estate of and Trustees under the Will of Daniel F. Rice, Appellants, v. Continental Illinois National Bank and Trust Company of Chicago, Co-Ex’r of Ada L. Rice Estate and Successor Trustee of Trusts under the Will of Daniel F. Rice, et al., Appellees.)
    Second District
    Nos. 83—819, 83—825 cons.
    Opinion filed February 1, 1985.

      Jack Osswald, Daniel V. Kinsella, and Robert C. Stephens, all of Howington, Elworth, Osswald & Hough, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield, Louis G. Davidson, John B. Davidson and Robert L. Reifenberg, all of Louis G. Davidson & Associates, Ltd., Charles J. O’Laughlin, Barry Sullivan, and Cynthia G. Shoenberger, all of Jenner & Block, Don H. Reuben and Theodore J. Low, both of Reuben & Proctor, all of Chicago, and Hartman E. Stime, of Peregrine, Stime, Newman & Ritzman, of Wheaton (Paul M. Goldman, Christine H. Rosso, and Floyd D. Perkins, Assistant Attorneys General, and Matthias Lydon, Special Assistant Attorney General, all of Chicago, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Charles D. Donaldson, Victor A. Grossi, Walter L. Palka, and Philip A. Rashman, executors of the estate and trustees under the will of Daniel E Rice, deceased, and hereinafter referred to as the executors, appeal from three orders of the trial court whereby, in an attempt to enforce a settlement agreement, the trial court ordered the executors to turn over the trust and remaining estate assets to the successor trustee, Continental Bank, reformed releases executed by Daniel F. Rice, Jr., and his wife, Mary L. Rice (hereinafter Rices, Jr.) to comport with the parties’ apparent intent, dismissed the executors’ petition seeking damages and fees from Continental Bank for alleged negligence in preparing release forms and in exchanging funds and documents with the Rices, Jr., and denied the executors’ motion for reconsideration.

The executors’ principal contentions on appeal are that (1) the trial court lacked jurisdiction to enter the orders of August 4, September 8, and September 15, 1983; (2) the judicial reformation of the releases executed by the Rices, Jr., did not give the executors the benefit of their bargain; (3) the Rices, Jr., should have been compelled to execute and deliver appropriate releases and receipts; (4) the trial court erred by ordering the executors to turn over trust and estate assets before conditions precedent were met; (5) it was error to dismiss the executors’ petition against Continental Bank for relief and damages, including corporate indemnification; and (6) the executors were denied due process of law by the trial court’s actions and orders of August 4, September 8, and September 15.

Following the deaths of Daniel F. Rice in 1975 and Ada L. Rice in 1977, the various beneficiaries under their wills and executors of their estates commenced actions in Federal court and the courts of this State and sister States. As this is the fourth opinion issued by this court resulting from the protracted litigation ensuing from the probate of these estates, we refrain from reiterating the extensive history of this case, since it can be garnered from our prior decisions. See In re Estate of Rice (1982), 108 Ill. App. 3d 751, 439 N.E.2d 1264; In re Estate of Rice (1981), 96 Ill. App. 3d 1137, 421 N.E.2d 1034; and In re Estates of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 298.

After the trial court’s entry of settlement orders, reflecting the oral agreement of the parties, was affirmed by this court in In re Estate of Rice (1982), 108 Ill. App. 3d 751, 439 N.E.2d 1264, the parties entered into another agreement, referred to as the February 28, 1983, agreement, which incorporated the earlier settlement orders and provided, inter alia, that the parties would dismiss appeals pending in the Illinois Supreme Court; that the Rice Foundation, Continental Bank, and Arthur Nolan, Jr., would file releases required under the earlier settlement orders; that the trust beneficiaries and the successor trustee would execute and deliver receipts to the executors; that the parties would execute and deliver general releases to the executors; and that certain trust beneficiaries, including the Rices, Jr., would execute and deliver an indemnification agreement to the executors.

Under the order subsequently entered by the trial court pursuant to the February 28 agreement, the executors were discharged from all duties, obligations, liabilities and responsibilities arising directly or indirectly from any act taken or omission to act by them or any of them during and concerning the administration, funding, and distribution of the trusts; the court accepted the resignation of the executors and appointed Continental Bank as successor trustee; the successor trustee was directed to indemnify and hold harmless, to the extent of the trust assets, the executors; title to trust assets was vested in the successor trustee; and the executors were ordered to immediately execute and deliver all instruments and do all acts necessary to perfect title of all assets of the trust in the successor trustee.

On April 7, 1983, the Illinois Supreme Court continued the motions to dismiss the consolidated appeals. It remanded the cause to the circuit court for consideration of the proposed settlement in its entirety, directing that court to file a report to the supreme court on or before May 16, 1983, of the final disposition of the proposed settlement, and retained jurisdiction of the pending appeals.

After further negotiations and hearings, a “global settlement” was reached by the parties on May 11, 1983. At a hearing held on that date, the executors asked what date was to be on the releases. Counsel for the Rices, Jr., Mr. John Davidson, answered, “Today’s date, the 11th of May.” The following colloquy was held;

“MR. OSSWALD [counsel for the executors]: We would assume, therefore, that those releases are being current dated through this date and we also assume, our executors have assumed that the releases referred to in these orders are being as of—through this date.
THE COURT: May 11th.
MR. JOHN DAVIDSON: That appears both on Page 1 in about the seventh line, and on Page 3 in the third line.
MR. HULL [counsel for the estate of Ada L. Rice]: It’s the 11th day of May you want inserted?
MR. JOHN DAVIDSON: That’s right.”

The trial court entered the written agreed order on May 11, 1983, approved by all parties, which provided, inter alia, that the parties would move for the dismissal, with prejudice, of all pending appeals; that all parties to those appeals would execute and file a counterpart of the February 28 agreement provided that the undertakings and indemnities would not affect any trust in which the Rices, Jr., had an interest and would not require payment or repayment of any sums received or to be received by the Rices, Jr., under the wills of Daniel F. and Ada L. Rice; that the Rices, Jr., would forthwith deliver to Continental Bank an executed counterpart of the February 28 agreement, agreed orders to dismiss certain matters, mutual and general releases in the form attached, and an original counterpart of the attached agreement by which Continental Bank would terminate the trust established by the codicil of the will of Ada L. Rice and distribute $360,000 of the principal to the joint order of the Rices, Jr. and their counsel simultaneously with the Rices, Jr.’s delivery of the aforementioned documents; that all parties listed would execute and file mutual and general releases; and that to the extent there was any inconsistency between the February 28 agreement and that May 11, 1983, order, the May 11, 1983, order would govern and control. The trial court specifically retained jurisdiction over the parties and subject matter for the purpose of enforcing the order.

Continental Bank, the Rice Foundation, and the Rices, Jr., exchanged the documents and funds on May 16, 1983. On the following day, the trial court issued a letter, along with copies of orders entered, to the chief justice of the Illinois Supreme Court, stating that the documents and funds were transferred and that all matters were resolved to everyone’s satisfaction. However, it was later discovered that in the release documents the executors had been released from possible liability only through May 5, 1983, rather than through May 11, 1983. Also, the Rices, Jr.’s releases bore an incorrect attestation clause and the receipt executed by the Rices, Jr., carried a disclaimer of an agreement as to the accuracy of any accounts rendered after May 11, 1983. Corrected releases were obtained from all parties except the Rices, Jr., who persisted in refusing to sign a corrected release through May 11, 1983.

In July 1983, the Illinois Attorney General petitioned the Illinois Supreme Court for a rule to show cause why the Rices, Jr., and their counsel should not be held in contempt for the failure to execute proper releases. The Rice Foundation filed, in the circuit court, apparently in late July, a petition for rule to show cause why the executors should not be held in contempt for failure to turn over the trust assets.

At a status hearing on July 27, 1983, the executors complained that the Rices, Jr., had not complied with the May 11, 1983, order in that they executed releases dated May 5, 1983, instead of May 11, 1983. The Rice Foundation noted that the executors were still serving as trustees, contrary to the terms of the May 11, 1983, order. The Rices, Jr., wanted written assurances that changing the dates would not affect their rights. The trial court refused to issue orders prior to appropriate motions being made.

On August 1, 1983, the executors filed a petition seeking relief and enforcement of the May 11, 1983, order, alleging, inter alia, that the releases executed by the Rices, Jr., and delivered to Continental Bank were improper because they included the language “that the said person [referring to the Rices, Jr.] signed and delivered the said instrument as the free and voluntary act of Continental Illinois National Bank & Trust Co. of Chicago, Ill.” and contained the date of May 5, 1983, and that Continental Bank owed a duty to the executors, was negligent, and breached its duty by providing release forms with an effective date of May 5, 1983, rather than the global settlement date of May 11, 1983. The executors sought an order excusing them from their obligations under the May 11, 1983, order until the Rices, Jr., executed proper releases, requiring Continental Bank to indemnify them, and awarding compensatory and punitive damages.

On August 4, 1983, the Attorney General filed a motion in the circuit court, asking the court to implement and enforce the May 11, 1983, order by compelling the executors to transfer the trust assets and the Rices, Jr., to execute and tender releases dated May 11, 1983.

At a hearing held on that same date, August 4, after hearing arguments of counsel, the trial court stated, inter alia, that there was no question that jurisdiction was properly before it, that jurisdiction is taken away by appeal, not by merely filing a motion in some other court and that the parties had five days to file a response to the Attorney General’s motion for a rule to show cause and Continental Bank had 14 days to file a verified response to the executors’ petition. The trial court ordered the executors to turn over the trust assets within 24 hours. The section of the transcript of that hearing which contained the trial court’s verbal order was filed on August 11, 1983.

On August 15, 1983, the executors filed an additional petition for confirmation and compliance of releases, seeking an order declaring that the releases to be provided under the May 11, 1983, order were to cover acts and omissions through May 11, 1983, and that releases that had already been executed be corrected to cover acts and omissions through May 11, 1983. On August 25, 1983, the Illinois Supreme Court denied the Attorney General’s petition for rule to show cause why the Rices, Jr., should not be held in contempt for failing to execute and deliver proper releases.

At a hearing on September 8, 1983, following arguments of counsel, the trial judge stated, inter alia, that evidentiary hearings in this instance would serve no useful purpose; [that as the trial judge stated on May 11 and based on the wording, demeanor and actions of counsel, the settlement agreement included mutual general releases for all conduct through May 11, 1983;] that the releases of Daniel Rice, Jr., and Mary Rice shall, as a matter of law, cover all actions or omissions as stated in the document through May 11, 1983; that the releases filed by Daniel Rice, Jr., and Mary Rice were their releases and not the act of Continental Bank; that the May 11 order specifically provided that the court shall enter such orders as are necessary to enforce the release provisions of the settlement agreement; that the Rices, Jr., were not required to execute the indemnification agreement; that having ruled on the sufficiency of the releases and receipts of the Rices, Jr., all of the conditions precedent to the closing of the estate were satisfied and entry of the final account in the Dan Rice estate would be on October 7, 1983; that although typically the assets of the estate are not all distributed until the entry of the final account, under the unique circumstances of this case there was merit to Continental Bank’s motion to fund Trust B3 with the remaining estate assets; that the executors were to transfer all remaining estate assets to Continental Bank, as trustee of Trust B3, by September 12, 1983; that refunding agreements were to be drafted to protect the executors from any potential liability for transferring the assets or closing the estate; and that while there may have been some mishandling by Continental Bank involved in the transfer of documents, there was no useful purpose in pursuing the executors’ petition, and made no finding in that regard. The trial court granted Continental Bank’s motion to dismiss the petition and denied the executors’ motion to compel discovery, stating that its rulings negated any need for discovery.

On September 12, 1983, the executors filed a motion for relief pursuant to section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1203), asking the trial court to vacate its order of September 8, 1983, by ordering specific performance of the May 11, 1983, settlement as to the execution of proper releases by the Rices, Jr. On the same date, the executors filed a notice of appeal to this court (No. 83—819) seeking review of the August 4 order, “filed of record on August 11,1983.”

At a hearing on September 15, 1983, on the section 2—1203 motion, following arguments of counsel including the argument by the executors that the court was without jurisdiction to consider their motion because of the filing of the notice of appeal, the trial court found that the executors’ motion raised no new issues or argument why the ruling of September 8 should be modified, but merely asked for reconsideration; that it reviewed the matters again and must deny the motion; that it retained jurisdiction to enforce the settlement agreement and the September 8 order did that; and that the September 8 ruling granted the relief requested by the executors. The trial court specifically commented on its ongoing practice of having the transcript stand as its order and noted that the transcript order was filed with the clerk by the executors’ counsel on August 11, thereby in counsel’s scenario extending the time for appeal, that the executors complied with the August 4 order on August 5, that the transcript was given to the executors on August 4 and that this was the first time in four years that a transcript was filed with the clerk. The executors appealed from the orders of September 8 and 15, 1983, on September 19, 1983 (No. 83-825).

Before addressing the appellate arguments of the executors, we note that the Rices, Jr., challenge the jurisdiction of this court to hear the appeal in No. 83—819. They maintain that the order appealed from was issued by the trial judge, without requiring a written order, during the hearing on August 4, 1983, and therefore the notice of appeal, filed on September 12, 1983, was not filed within 30 days. The executors argue that the 30-day period began to run on August 11, 1983, when the transcript of the August 4 proceeding was filed, so that the notice of appeal was timely.

Under Supreme Court Rule 303, notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final order. (87 Ill. 2d R. 303(a)(1).) Supreme Court Rule 272 provides that “[i]f no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” (87 Ill. 2d R. 272.) While we find nothing in the record before us that indicates when the order, orally issued on August 4, was noted in a minute book or on a docket sheet or other record-keeping document, we conclude that under the unique circumstances here, where the trial court specifically stated that the transcript stood as its order, the notice of appeal in No. 83—819 was timely filed within 30 days of the filing of the transcript.

We next consider the executors’ contention that the trial court was without jurisdiction to enter the orders of August 4 and September 8 and 15 because after 30 days from the date the agreed order of settlement was entered on May 11, 1983, the trial court retained jurisdiction only to enforce the settlement and lacked authority to modify it, yet the court’s orders on those three dates effectively modified the terms of the settlement.

We disagree with the executors’ characterization of the actions of the trial court following entry of the agreed order of settlement on May 11, 1983. No appeal by any of the parties from the agreed order of settlement of May 11, 1983, was taken, and we regard all proceedings subsequent to May 11, 1983, as related to enforcement of the May 11, 1983, order. The trial court, by refusing to order the Rices, Jr., to execute an indemnification agreement and new releases and by ordering the executors to turn over the estate assets independent of the final account process, did not vary the agreed order of settlement, but merely sought to implement it. (See Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App. 3d 381, 405 N.E.2d 379.) This is consistent with the policy of Illinois courts, which is to encourage compromises and settlement of litigation and to construe and enforce them in the courts in which they are entered. W.R. Grace & Co. v. Beker Industries, Inc. (1984), 128 Ill. App. 3d 215, 219, 470 N.E.2d 577.

In their additional petition for confirmation and compliance with the global settlement, the executors asked the trial court to declare that the releases to be provided under the global settlement were to cover acts and omissions through May 11, 1983, and that the releases that had been executed be corrected to cover acts and omissions through May 11, 1983. They did not request in that petition that the court order the Rices, Jr., to correct releases they had previously executed or to execute new releases to be in compliance with the global settlement. The trial court, within its sound discretion, granted the executors the relief they sought in enforcement of the global settlement when it judicially reformed the releases.

In ruling that the Rices, Jr., were not required to execute an indemnification agreement, the trial court properly construed all the provisions of the global settlement. While the Rices, Jr., were required to execute the indemnification agreement under the February 28, 1983, agreement and while that agreement is incorporated into the May 11, 1983, global settlement, the May 11, 1983, order specifically alters the indemnification obligations of the Rices, Jr., and the indemnification agreement is conspicuously absent from the list of documents the Rices, Jr., were required to execute. Furthermore, at the hearing on May 11, 1983, counsel for the Rices, Jr., stated that the May 11, 1983, settlement modified the February 28 agreement with respect to the obligations of Rices, Jr., to sign documents such that they were no longer required to sign indemnities. The executors did not, at that time, challenge the accuracy of counsel’s representation, and thus implicitly agreed with that interpretation of the May 11,1983, order.

As for ordering the transfer of estate assets independent of the final account process, the global settlement does not establish a chronology of events. Thus, the trial court’s order to turn over the estate assets was not a modification of the settlement terms in the agreed order of May 11, 1983.

The executors also claim that the trial court lacked jurisdiction because it acted while proceedings were pending before the Illinois Supreme Court. While the Attorney General had filed a petition for rule to show cause in the Illinois Supreme Court on July 25, 1983, we are not aware of any authority that the mere filing of a petition of this type in a reviewing court divests the trial court of its continuing jurisdiction to enforce its orders. At the time the petition was filed, the Illinois Supreme Court had already dismissed all appeals in this matter which were before it. Accordingly, this contention is meritless.

The executors additionally claim that once notice of appeal was filed on September 12, 1983, the trial court lost its jurisdiction so that the orders of September 15,1983, are void.

The general rule is that the filing of a notice of appeal divests the trial court of jurisdiction; however, the trial court retains jurisdiction to determine matters collateral or incidental to the judgment. (In re Estate of Denaro (1983), 112 Ill. App. 3d 872, 878, 445 N.E.2d 1308; In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 210, 443 N.E.2d 1089.) The hearing on September 15 was for the reconsideration of the orders of September 8. The September 8 orders involved turnover of the estate assets, reformation of the releases, denial of the petition for damages against Continental Bank, and other matters, all of which were only collateral to the August 4 order relating to the turnover of trust assets. Since the issues resolved during the hearings of September 8 and 15 were independent of those decided at the August 4 hearing, while admittedly all related to enforcement of the global settlement, notice of appeal from the August 4 orders did not divest the trial court of jurisdiction to rule on those independent matters.

The executors next contend that by reforming the releases, rather than ordering the Rices, Jr., to execute releases through May 11, 1983, the trial court denied them the benefit of their bargain which they claim is enforcement of the May 11, 1983, order and the peace of mind that they will not be exposed to liability for the period between May 5, 1983, and May 11, 1983. During that period, the executors filed fiduciary income tax returns for the trusts. Because of stays at various stages of litigation, distributions were not made and unanticipated tax consequences resulted. The executors fear that the reformation may not be held valid in potential future litigation and that they will be responsible for deficiencies in trust distributions caused by the greater tax liability.

We see no basis for a future holding by any court that the reformation of the releases is invalid. We have already concluded that the trial court had jurisdiction at the time of the reformation. Here, the transcript of the hearing held on May 11, 1983, amply supports the trial court’s finding that the parties intended the releases to cover acts and omissions through May 11, 1983. Although the Rices, Jr., have refused to execute releases absolving the executors of liability through May 11, 1983, they have not cross-appealed from the September 8, 1983, order granting judicial reformation of their releases, nor have the Rices, Jr., appealed from the May 11, 1983, settlement order. These unappealed-from orders are binding against Rices, Jr., in any other future court proceedings and effectively preclude the Rices, Jr., from contesting in the future the validity of the settlement order and the reformed releases. While the trial judge could have ordered the Rices, Jr., to execute new releases, his election to achieve the same result through judicial reformation was a proper exercise of his discretion.

Furthermore, the executors are concerned that the reformation is ineffective, yet they asked the trial court, in the prayer for relief in their additional petition for confirmation and compliance, for an order

“declaring that the releases required to be provided under the terms and conditions of the global settlement are required to cover acts and omissions of releasees through May 11, 1983, the date of the global settlement, and, further, that any and all releases which have been executed and filed or exchanged between and among the parties under the global agreement be and hereby are corrected to the effect that such releases cover the acts and omissions of releasees through May 11, 1983, rather than cover only those acts and omissions of releasees that occurred prior to May 5,1983.”

They did not, in that petition, specifically demand that the Rices, Jr., be ordered to correct the releases they had previously executed. The trial court essentially granted them the relief they sought when it judicially reformed the releases. A party cannot complain of error which does not prejudicially affect him, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386, 457 N.E.2d 9.) Thus, we believe that the judicial reformation of the releases was proper and binding on the Rices, Jr., in this and in any future litigation, the reformed releases are valid, and the executors have received the benefit of their settlement.

We note, in addition, that the executors have other sources of protection from liability. All beneficiaries except for the Rices, Jr., executed complying releases. Moreover, the February 28, 1983, agreement, included in the May 11, 1983, order, provides that the successor trustee, Continental Bank, shall indemnify the executors against any suit arising out of the administration of the estate or trusts to the extent of the trust assets.

The executors next argue that the execution of proper releases by the Rices, Jr., was a condition precedent to their resignation and to the turnover of the assets, and the trial court erred in ordering the executors to turn over the assets before proper releases were executed. A condition precedent is one which must be performed before a contract becomes effective or which is to be performed by one party to an existing contract before the other party is obligated. (Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 729, 434 N.E.2d 786.) The executors maintain that because the exchange between Continental Bank and the Rices, Jr., was to take place, according to the May 11, 1983, order, “forthwith,” by definition, other obligations arose thereafter.

We are not convinced, as we noted earlier, that a definite chronology of events was established by the terms of the settlement. Even if we agreed, arguendo, with the executors’ interpretation on this point and further agreed that the trial court altered the chronology, we would hold that the error did not cause any harm. The executors have not shown they were prejudiced by the delay in obtaining complying releases, and since we have upheld the validity of the reformation by the trial court, the executors have received all they have bargained for.

The executors next claim the trial court erred in dismissing their petition alleging negligence and seeking compensatory and punitive damages against Continental Bank. For Continental Bank to be liable for the tort of negligence, it must have had a duty towards the executors, it must have breached the duty, the breach must have been the proximate cause of the executors’ injury, and there must be a resulting compensable injury. (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 259, 433 N.E.2d 1350.) We believe that Continental Bank owed no duty to the executors during the exchange of documents with the Rices, Jr. The executors argue that a duty arises because the bank is a professional fiduciary and had a duty arising out of the May 11, 1983, order which provided that the Rices, Jr., would deliver the releases to the Continental Bank. The executors assert that the Continental Bank became an agent for all the parties, including them. The executors contend that the Continental Bank, as a professional fiduciary acting as their agent, had a duty to make sure the releases it accepted were proper. Although whether an agency exists is generally a question of fact, this is not the rule where, as here, the parties’ relationship is so clear as to be undisputed. (Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 821, 458 N.E.2d 1120.) Generally, the test of agency is the existence of the right to control the method or manner of accomplishing a task by the alleged agent as well as the agent’s ability to subject the principal to personal liability. Kozasa v. Guardian Electric Manufacturing Co. (1981), 99 Ill. App. 3d 669, 676, 425 N.E.2d 1137.

The May 11, 1983, order directed the Rices, Jr., to deliver to Continental Bank certain documents and their releases and, upon delivery, for the Continental Bank to deliver to Rices, Jr., certain documents and $360,000. That the Continental Bank was designated in the May 11, 1983, agreed order to accept the releases and perform other tasks upon delivery of certain documents was a part of the total settlement of the litigation. We reject the executors’ contention that the May 11, 1983, order created an agency relationship between the Continental Bank and the other parties whereby the Continental Bank owed a fiduciary duty to the other parties to make certain the releases were properly executed. The May 11, 1983, order effectuated a settlement of the litigation requiring, in part, certain parties to do specified acts. The order did not create an agency relationship, and the executors’ petition seeking damages for negligence was properly dismissed.

Furthermore, the executors have not demonstrated a compensable injury. Further litigation is mere speculation, especially in light of our approval of the reformation of the releases. Delay in enforcement of the May 11, 1983, order because of the failure to provide complying releases extended the litigation, but that was an inconvenience to all, including the bank. Therefore, we conclude that the executors failed to state a cause of action for negligence against the bank.

The trial court did not dismiss the petition on this basis, but rather found no useful purpose in pursuing the petition and specifically refused to make a finding on whether Continental Bank mishandled the transfer of documents. However, a reviewing court is not bound to accept the reasons given by the trial court for its judgment, and the judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9; Roche v. County of Lake (1984), 126 Ill. App. 3d 976, 982, 467 N.E.2d 1146.) Despite reasons given by the trial court, we believe that its dismissal of the executors’ petition against Continental Bank was proper because the executors’ allegations failed to support a cause of action under a negligence theory.

Lastly, the executors raise several due process arguments which, in essence, restate contentions already addressed in this opinion and need not be reviewed again. Executors additionally complain that the May 17, 1983, letter from the trial judge to the chief justice of the Illinois Supreme Court advising him that he had been advised by the parties that the matter was “resolved to everyone’s satisfaction” indicates “ex parte communication” resulting in a denial of due process. Considering the number of parties and lawyers involved, and the ongoing efforts of the trial judge to effectuate a settlement of this litigation agreeable to all parties involved, we find the letter, in the context of the entire record, certainly does not disclose improper communication amounting to a due process violation. We find this argument without any foundation or merit.

Finally, the Rices, Jr., request, without corresponding argument, that they be awarded costs and attorney fees in responding to this “frivolous” appeal. When a judgment is affirmed on appeal, the appellee is entitled to costs (Ill. Rev. Stat. 1983, ch. 110, par. 5—120; 87 Ill. 2d R. 374), but the request for fees is denied.

For the foregoing reasons, the judgment orders of the circuit court in Nos. 83—819 and 83—825 are affirmed.

Affirmed.

NASH, P.J., and SCHNAKE, J., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    WILLIAM J. CARTER, Ex’r of the Estate of Beverly I. Carter, Deceased, Plaintiff-Appellant, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellee (William J. Carter, Adm’r of the Estate of Tiffany Leah Carter, Deceased, Plaintiff).
    Fourth District
    No. 4—84—0441
    Opinion filed February 5, 1985.

      Knuppel, Grosboll, Becker & Tice, of Petersburg (R. John Alvarez, of counsel), for appellant.
    Graham & Graham, of Springfield (Charles E. Holt, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, in his capacity as executor of his deceased wife’s estate, brought a wrongful death action in the circuit court of Menard County against the defendant. The cause was tried to a jury which found in favor of the plaintiff and against the defendant, but on comparative negligence principles found the decedent to be 90% at fault. The trial court reduced the verdict accordingly and entered judgment thereon; it also denied plaintiff’s post-trial motion. Plaintiff has appealed, claiming that the trial court committed certain errors in ruling on evidence and instructions and that the jury’s award was insufficient and against the manifest weight of the evidence. Finding no error, we affirm.

Decedent died instantly when the van which she was driving was struck by one of defendant’s trains at a public crossing in Menard County. Decedent was traveling east and the train north at the time of the accident. Plaintiff alleged in his complaint that the defendant was negligent in failing to sound the whistle, in traveling at an unreasonable speed, in failing to maintain a proper lookout, and in failing to maintain the crossing in the proper fashion.

Testimony at trial revealed that the train crew consisted of five persons and the train consisted of three locomotives, four cars, and a caboose. The engineer was seated on the right side of the lead locomotive and the fireman on the left side; the head brakeman was on the right side of the second locomotive, and the rear brakeman and conductor were in the caboose. The fireman had died prior to trial, and since the van approached the train from its left side, there were no eyewitnesses.

Various witnesses testified as to the sounding of the whistle. The four surviving crew members stated that it was sounded but they were unable to give any precise estimate of distance from the crossing when the sound was made. A witness who lived 535 feet south of the crossing stated that he heard the whistle as the train passed his residence. Another witness who was riding a bicycle about a mile from the crossing did not recall hearing the whistle. A deputy sheriff testified that the engineer told him soon after the accident when he was investigating it that he sounded the whistle at the culvert south of the crossing. He stated that there were two culverts in that area, one 228 yards south of the crossing and another 170 to 200 yards further south.

Testimony regarding speed came from both sides. The crew members testified that the speed was between 30 and 40 miles per hour immediately prior to the collision; the defendant’s superintendent testified that 40 miles per hour was the limit imposed by management prerogative. Plaintiff introduced certain speed tapes purported to have been made by a recording device on the train. Plaintiff’s expert stated that the tapes showed a speed of 41 or 42 miles per hour immediately before the collision; defendant’s expert stated that the tapes showed a speed of “a little over 40 miles an hour.” These tapes, and their use at trial, form one of the principal complaints on appeal.

The condition of the crossing was established largely through photographic exhibits. Friends and relatives of the decedent testified as to her familiarity with the crossing and her personal habits and characteristics, which were said to be exemplary. An economist, testifying as an expert, fixed the pecuniary loss attributable to her death at $259,000.

The jury returned a verdict for the plaintiff in the sum of $120,000 together with a finding of 90% negligence on the part of the decedent. Plaintiff’s recovery then became $12,000. His post-trial motion was denied, and this appeal ensued.

Plaintiff’s first contention centers upon the speed tapes. He claims that although he introduced them into evidence as his exhibits, he should have been permitted to attack their authenticity; he also maintains that he should have been permitted to show that the defendant initially failed to disclose their existence.

The accident occurred on October 9, 1981; plaintiff filed suit on February 10, 1982, and submitted a set of interrogatories and motion to produce to the defendant. On April 23, 1982, defendant answered and stated that no speed recording device was on the train. Later on, early in 1983, defendant disclosed that a speed tape did exist and provided plaintiff with a copy of it on March 16, 1983. Trial began on January 9,1984.

Prior to trial, plaintiff indicated that he wished to call the jury’s attention to this delay in disclosure and that he planned to attack the authenticity of the speed tapes. The defendant then stated that it did not intend to introduce the speed tapes into evidence. The trial court ruled that the plaintiff would not be allowed to call the jury’s attention to the disclosure violation since he had not been prejudiced by the delay. The court also ruled tjiat if the plaintiff chose to introduce the speed tapes into evidence, he could not later attack their authenticity. Plaintiff now contends that these rulings were erroneous.

A party, when faced with a discovery violation, generally a nondisclosure or a late disclosure, may approach the problem from either of two directions, depending on the nature of the evidence. If the evidence is favorable to him, he may wish it to be introduced, but he may also wish to place before the trier of fact the misbehavior of the other party. On the other hand, if the evidence is not favorable to him, he may wish to debar it altogether. These different approaches are governed by different principles of law.

Debarring of the evidence itself is a sanction for nondisclosure or late disclosure and is governed by Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)). Admission of the fact of nondisclosure or late disclosure is governed by ordinary common law principles of evidence, that is, relevancy, competency and materiality. Professor Wigmore classifies it as a consciousness of guilt. 2 Wigmore, Evidence sec. 267 (3d ed. 1940).

Either approach rests fundamentally on the discretion of the trial court. Two prior authorities demonstrate the principles involved.

Carlson v. General Motors Corp. (1972), 9 Ill. App. 3d 606, 289 N.E.2d 439, was a clear case of sanctions. The appellate court reversed a jury verdict for the defendant General Motors because of the admission at trial of certain expert testimony not revealed in discovery. LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65, appears to be the other species of case, the court first discussing Professor Wigmore’s common law approach, but then departing from that theory to cite and follow Carlson, which, as we have said, was a sanction case. In any event, we believe that the LeMaster court’s statement, “Herein, judicial sanctions were not sought” (35 Ill. App. 3d 1001, 1012, 343 N.E.2d 65, 75) places it squarely in the common law category.

In the case at bar we believe that the theory of placing before the jury, i.e., admitting evidence, defendant’s actions with regard to the speed tapes was that of common law evidence and not sanctions. Since all of the events, the first denial of the existence of the tapes and then their production, occurred more than nine months before trial, that evidence was too remote to be probative and relevant. The trial court did not abuse its discretion in denying admission, and hence no error was committed in this ruling.

We are of the same opinion concerning the trial court’s refusal to allow plaintiff to attack the authenticity of the tapes which he had introduced. In oral argument, plaintiff’s counsel suggested that the purpose of introducing the tapes was the same as his effort to introduce evidence of the discovery violation, viz., consciousness of guilt on the part of the defendant. However, this is not borne out by the record. In an offer of proof outside the presence of the jury concerning the tapes, it was stated that the basis for the offer was to demonstrate the “fabrication” of the tapes. Nowhere in the offer is any statement made about the general credibility of the defendant or its consciousness of guilt.

In order to introduce the tapes, plaintiff was first required to establish the necessary foundation evidence. (Compare Thompson v. Chicago & Eastern Illinois R.R. Co. (1961), 32 Ill. App. 2d 397, 178 N.E.2d 151.) Having done so, it does not lie in his mouth then to attack the authenticity of those exhibits. As the trial court noted, such conduct is illogical and serves only to distract the jury from the relevant issues. No error occurred.

Plaintiff next assigns as error the manner in which the trial court handled the question of his remarriage as it related to his loss of consortium.

The trial court, in a ruling during the trial, stated that evidence of the plaintiff’s remarriage would not be allowed if the plaintiff chose not to seek damages for loss of consortium. The court noted that the plaintiff had already tendered a jury instruction which included loss of consortium as an element of damages recoverable by the defendant. The court gave the plaintiff the option of either deleting the language regarding loss of consortium or leaving the language in the instruction and adding language that would indicate that the loss-of-consortium damages would be calculated only up to the date of the plaintiff’s remarriage. The court stated that if loss-of-consortium damages were sought, it would also give a limiting instruction that the plaintiff’s remarriage would not affect any other element of damages or liability.

The plaintiff elected not to include loss of consortium as an element of damage and thus insured that the fact of his remarriage would not be brought to the attention of the jury.

In Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163, our supreme court held that loss of consortium should be included as an element of damage in wrongful death cases. Prior thereto such loss was not included, and prior to 1967, various limitations existed from time to time on the amount of damages recoverable. It had therefore been held that the remarriage of the surviving spouse was irrelevant to the determination of damages but was pertinent to the selection of a fair and impartial jury. Watson v. Fischbach (1973), 54 Ill. 2d 498, 301 N.E.2d 303.

Plaintiff argues that Elliott did not purport to limit Watson and therefore Watson should be followed. Defendant argues that plaintiff has waived the question by failing to adhere to his objection and withdrawing his request for damages for loss of consortium. We do not agree with either position.

As to waiver, plaintiff objected at the time of the ruling and raised the point in his post-trial motion. The trial court noted that plaintiff’s decision was not entirely voluntary. There was no waiver.

Plaintiff’s argument must also fail. When the supreme court announces a new principle of law, it must be understood that all prior authority in conflict therewith becomes enervated, whether specifically or sub silentio. To undertake to seek out and overrule every prior case would be a fruitless and endless task and customarily is not done by that court; e.g., when the doctrine of comparative negligence was announced, there was no specific overruling of all cases dealing with contributory negligence; it simply followed that the former cases were no longer good law.

So in the instant case, if loss of consortium is sought, it must be actual loss; that is, loss up to the time of remarriage. It may be true, as plaintiff argues, that consortium with the deceased spouse may have been of a different quality from that with the present spouse, but such speculations could lead only to Aristophanes’ Nepheloccocygia.

The trial court’s ruling was sensible and logical. There was no error.

We turn next to plaintiff’s complaints concerning the verdict: (1) that it was against the manifest weight of the evidence, and (2) that it was inadequate.

Plaintiff’s principal contention under the manifest weight argument is that the evidence did not bear out a 90% apportionment of negligence to the decedent. He points to the statutory duty to sound the whistle at a distance of at least 80 rods (1,320 feet) from the crossing. (Ill. Rev. Stat. 1983, ch. 114, par. 59.) We have already reviewed the evidence concerning the whistle. There is no clear indication one way or another as to the distance. The jury could have concluded that the whistle was sounded in substantial compliance with the statute.

Plaintiff also points to the evidence of speed, which we have also reviewed. All of that evidence points to a speed of 40 miles per hour or slightly more. In the absence of evidence that the speed of the train contributed to the accident, the jury could have concluded that the speed was reasonable and consistent with ordinary care, as they were instructed.

As to keeping a lookout, plaintiff’s third contention under this general complaint, he presented no evidence to indicate that the train crew failed in this respect.

Plaintiff also contends that the crossing was ill-kept. However, the record is to the contrary. A photographic exhibit taken from a point 100 feet west of the crossing and looking eastward, as the decedent’s van would have been traveling, shows a train plainly visible 606 feet south of the crossing.

In short, it is the function of the jury to weigh these matters and to determine the credibility of the witnesses. (McCommons v. Moorman Manufacturing (1980), 81 Ill. App. 3d 708, 401 N.E.2d 1354.) If that jury is properly instructed (and except for the matter of loss of consortium no such contention is made here) and has a reasonable basis for its award, a reviewing court will not, and should not, disturb its verdict. (Ford v. Baker (1978), 61 Ill. App. 3d 45, 377 N.E.2d 853.) We find no reason here not to follow these familiar rules of law.

The same holds true concerning the contention of inadequacy of the verdict. Although the expert placed the present value of pecuniary loss attributable to the decedent’s death at $258,966.30, the jury was not bound by that figure. The question of a damage award is peculiarly within the province of the jury under our system of law, and as with the manifest weight question, reviewing courts should keep their hands off unless the amount is palpably inadequate. Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237; Fisher v. Patel (1981), 93 Ill. App. 3d 694, 417 N.E.2d 691.

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

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT SAMPSON, Defendant-Appellant.
    Fourth District
    Nos. 4—84—0300, 4—84—0573 cons.
    Opinion filed January 17, 1985.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Gwendolyn Klingler, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After bench trial on stipulated facts, defendant was convicted of the offenses of driving while under the influence (DUI) and of driving too fast for conditions (Ill. Rev. Stat. 1983, ch. 951/2, pars. 11— 501(a), 11—601(a)) in Moultrie County case Nos. 84—T—8 and 84— T—9. He was sentenced in 84—T—8 to six months’ probation and ordered to attend an alcohol treatment program at his expense and pay court costs. He was sentenced in 84—T—9 to pay a $50 fine, inclusive of court costs. Defendant appealed the judgment of the circuit court of Moultrie County in 84—T—8 (4—84—0300), and thereafter sought leave to file a late notice of appeal in 84—T—9, which was granted (4—84—0573). These cases have been consolidated for the purpose of this appeal.

Defendant raises three issues: (1) whether his stipulated bench trial was tantamount to a guilty plea on the DUI charge, and, if so, whether he was sufficiently admonished under Supreme Court Rule 402 (87 Ill. 2d R. 402); (2) whether he was proved guilty of driving too fast for conditions; and (3) whether section 2—7(2) of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1983, ch. 37, par. 702—7(2)) violates Federal and State constitutional provisions on due process and equal protection.

Defendant was charged with the instant offenses on January 3, 1984, when he was 16 years old. At hearing on January 16, 1984, the State stipulated that in the event of a finding of guilt, incarceration would not be sought as part of the sentence. In consideration of defendant’s age, the public defender was appointed to represent him. On February 7, 1984, defendant filed a motion to dismiss the criminal prosecution in 84—T—8, the DUI charge, as being in violation of his right to equal protection of the laws, and asked that section 2— 7(2) of the Act be declared unconstitutional. This motion was argued and denied on April 9,1984.

At hearing on April 11, 1984, the record shows the following transpired:

“[DEFENSE COUNSEL]: *** We have agreed that this will be presented as a stipulated bench trial. [The prosecutor] will give a factual basis. The defendant will stipulate that the factual basis is, that the witnesses called would testify in conformity with what [the prosecutor] says they would say.
THE COURT: Is there a civil suit pending or anticipated?
[DEFENSE COUNSEL]: No. There was a motion to dismiss based on an equal protection argument and we are preserving that issue. I think if the defendant comes in and pleads guilty, it would waive—
THE COURT: It’s not a negotiated plea then?
[PROSECUTOR]: Not technically.
[DEFENSE COUNSEL]: Assuming the court does find the defendant guilty on the basis of the stipulated facts, then we have an agreed recommendation to make to the court as far as sentencing goes.
THE COURT: All right, then don’t show it as a negotiated plea. Show it as a bench trial on stipulated facts.”

The court then ascertained that defendant voluntarily waived his right to jury trial, and proceeded with a stipulated bench trial on both charges. The factual basis was stated as follows:

“[PROSECUTOR]: This occurred on January 3, 1984 at 11:05 [p.m.]. Officer Thompson observed a red car off the road resting against a telephone pole in the 500 block of North Main, Sullivan, Moultrie County. He approached the driver, [defendant]. The driver stated he had lost control of the vehicle. While speaking with the defendant, Officer Thompson observed a strong odor of alcoholic beverage emanating from his breath as well as difficulty in speech and coordination. He performed a field test and was placed under arrest for DUI. Back at the jail he took a breath test and the result was .11. And he was also cited for driving too fast for conditions.
THE COURT: Do I understand the officer saw him strike the pole or just saw him parked there up against the pole?
[PROSECUTOR]: He came after the occurrence.
THE COURT: Anything you want to add to that?
[DEFENSE COUNSEL]: No.”

The court found the factual basis constituted sufficient evidence to find defendant guilty. Defense counsel stated the agreed disposition:

“[DEFENSE COUNSEL]: He would be sentenced to six months’ probation and attend the alcohol treatment program and pay his own tuition and he would pay court costs. On the too fast for conditions, he would pay over the counter fine of $50.00 which includes court costs.
[PROSECUTOR]: That’s the agreement.
THE COURT: Is this a negotiated plea or not?
[PROSECUTOR]: Technically, I believe it’s not.
[DEFENSE COUNSEL]: No, because he has not entered a plea.”

The court inquired into defendant’s record and what transpired the night of the offenses. He then sentenced defendant and advised him of his right to appeal.

Defendant first argues that, as to the DUI charge, the stipulated bench trial was tantamount to a guilty plea and, therefore, he should have been admonished pursuant to Rule 402. The State contends the record shows that neither the State nor defense counsel considered the stipulated bench trial to be a guilty plea, and that the comments of defense counsel reflect an expectation that the court would find defendant guilty or not guilty based on the stipulated facts presented.

Both parties discuss People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, People v. Russ (1975), 31 Ill. App. 3d 385, 334 N.E.2d 108, and this court’s decisions in People v. Fair (1975), 29 Ill. App. 3d 939, 332 N.E.2d 51, and People v. Ford (1976), 44 Ill. App. 3d 94, 357 N.E.2d 865, all of which involved entries of pleas of not guilty at stipulated bench trials and subsequent contentions on appeal that the procedure followed in the trial court was tantamount to pleas of guilty so that the Rule 402 admonitions should have been given.

In Ford, this court reviewed these cases, as well as the decisions in People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872, and People v. Young (1974), 25 Ill. App. 3d 629, 323 N.E.2d 788. In both Stepheny and Smith, not only the evidence, but the outcome was stipulated and no defense, factual or legal, was presented or preserved. We note this passage in Smith: “Where the circumstances indicate that calculated efforts have been made which amount to the entry of a guilty plea, we hold that an accused must be afforded the protections set forth by Rule 402.” (People v. Smith (1974), 59 Ill. 2d 236, 242-43, 319 N.E.2d 760, 764.) In Young, the defense of self-defense was raised. In Russ, the defendant to an arson charge raised the defense of accident or lack of specific intent. In Fair, this court concluded that the stipulation was not tantamount to a plea of guilty since the defendant retained a genuine defense (refusal to suppress purported confession) for purposes of appeal. In Ford, the stipulation was only as to what the' evidence would be, and this court found that the defendant retained a legal defense, the denial of his motions to suppress statements and for leave to file a sexually dangerous petition.

Thus, Young, Russ, Fair, and Ford stand for the proposition that a stipulated bench trial is not tantamount to a guilty plea where a defense, factual or legal, is presented. The underlying rationale for this position is that a guilty plea waives all nonjurisdictional defenses or defects. (People v. Jackson (1970), 47 Ill. 2d 344, 348, 265 N.E.2d 622, 624.) Here it appears that defense counsel utilized the stipulated bench trial procedure to preserve the issue of the court’s denial of defendant’s motion to dismiss based on his equal protection challenge to section 2—7(2) of the Act.

Defendant seeks to distinguish Ford on two bases. First, he maintains that (1) no court has jurisdiction over a juvenile unless there is compliance with the Act; (2) if section 2—7(2) is unconstitutional, other provisions of the Act must be complied with in order to assert criminal jurisdiction over a minor; and therefore, (3) his claim of error is in the nature of a “jurisdictional defense” or defect. We find this argument erroneous in several respects. The issue defense counsel evidently sought to preserve through the mechanism of the stipulated bench trial was constitutional, not jurisdictional. Further, we believe that defendant’s argument misapprehends the nature of the jurisdiction of the circuit courts, which is not dependent on compliance with the Act. In In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289, this court pointed out that the jurisdiction of the circuit court is no longer dependent upon statutes and derives from the constitution itself. Under the Constitution of 1970 the circuit court has original jurisdiction “of all justiciable matters.” (Ill. Const. 1970, art. VI, sec. 9. See also In re Estate of Spaits (1984), 104 Ill. 2d 431 (endorsing Mears as to jurisdiction in probate context); In re L.E.J. (1983), 115 Ill. App. 3d 993, 996-97, 451 N.E.2d 289, 292; In re Marriage of Bussey (1984), 128 Ill. App. 3d 730 (lack of compliance with certain statutory procedures did not deprive trial court of subject matter jurisdiction of proceeding under Illinois Marriage and Dissolution of Marriage Act (see Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.)); Dilley v. Americana Healthcare Corp. (1984), 129 Ill. App. 3d 537 (construing limitation posed by section 8—111(D) of the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 8—111(D)) as imposing a substantive condition precedent to the exercise of circuit court jurisdiction)). As stated in People v. J.S. (1984), 103 Ill. 2d 395, 402, 469 N.E.2d 1090, 1094, “Nowhere in the Federal or in this State’s constitution is there found the right to be treated as a juvenile for jurisdictional purposes.”

Second, defendant contends that in cases cited by the State the factual or legal defense preserved involved the evidence supporting or refuting the charge against the defendant, in contrast to his constitutional challenge. We find Ford controlling and hold that defendant’s stipulated bench trial was not tantamount to a guilty plea within the meaning of Smith. The distinction raised by defendant does not mandate a contrary result.

In view of our resolution of this issue, we need not address the sufficiency of admonitions given defendant under Rule 402, which this court recently discussed in People v. Sutherland (1984), 128 Ill. App. 3d 415.

Defendant next argues that he was not proved guilty of driving too fast for conditions, citing People v. Holtz (1974), 19 Ill. App. 3d 781, 313 N.E.2d 234, and this court’s decision in People v. Brant (1980), 82 Ill. App. 3d 847, 403 N.E.2d 282. The State claims that, although the fact of the collision standing alone might not be sufficient evidence for a conviction, the exercise of due care may be inferred from all the facts and circumstances shown to exist prior to the collision (Ruspantini v. Steffek (1953), 414 Ill. 70, 110 N.E.2d 198), and that the law presumes where a vehicle runs into a parked vehicle or object at the side of the road, the accident would not have occurred had due care been used (Pearlman v. W. O. King Lumber Co. (1939), 302 Ill. App. 190, 23 N.E.2d 826). Defendant contends that the State’s reliance on Ruspantini and Pearlman is misplaced, since those cases involved civil actions for damages wherein negligence in operating a motor vehicle was an element of liability and, therefore, the question of due care was at issue.

At the outset, we note this court’s decision in Brant rejected an argument similar to that raised by the State. In Brant, the defendant contended he was not proved guilty beyond a reasonable doubt of failure to reduce speed to avoid an accident in violation of section 11—601(a) of the Code. This court reversed the conviction. The analysis in the Brant decision applies to the facts in the instant case. The evidence showed Brant to be intoxicated, but the State failed to produce any other evidence to sustain the charge that defendant drove carelessly and failed to reduce speed to avoid colliding with a person. The court found that the evidence of intoxication without more cannot support an inference of carelessness sufficient to satisfy the requirements of proof of the charge. In doing so, this court rejected the application of the doctrine of res ipsa loquitur and its logic, observing that on such logic anyone involved in an accident could properly be convicted for failure to reduce speed to avoid an accident.

In Holtz, the defendant was found guilty of driving too fast for conditions in violation of section 11—601(a) of the Illinois Vehicle Code (Code) where the evidence indicated he was not driving at a rate of speed in excess of the posted limit. In addition, the State failed to introduce any evidence regarding the volume of traffic, weather conditions or road conditions at the time of the collision. The reviewing court therefore found that the State did not prove the essential elements of the offense, citing People v. Mindock (1970), 128 Ill. App. 2d 196, 261 N.E.2d 549.

In Mindock, the defendant was charged and found guilty of operating a motor vehicle at a speed too fast for conditions. The reviewing court reversed, finding that although the statute purported to regulate speed, neither from the State’s argument nor the evidence could it be concluded that illegal speed was the basis of the judgment of conviction. The officer’s testimony revealed no conditions requiring decreased speed or indicating that excess speed was the cause of the vehicle’s leaving the road. Mindock stated that, assuming under the circumstances the precise speed of the vehicle need not be shown, nevertheless the conditions requiring such lesser speed are indispensable elements of the offense.

Stipulated facts in this case prove the defendant was intoxicated and that he lost control of the car. The evidence presented by the stipulated facts is insufficient to find the defendant Sampson guilty of driving too fast for conditions. We find Holtz, Mindock, and Brant controlling and, in view of the dearth of evidence in the record as to the posted rate of speed, the rate of speed at which defendant was traveling, or the conditions or circumstances at the time of the charged offense—apart from his intoxication—hold that the State did not prove the essential elements of the offense. The defendant’s conviction on that charge must be reversed.

We next consider defendant’s final argument on appeal, that section 2—7(2) of the Act is unconstitutional. The section provides:

“(2) Subject to paragraph (5) of Section 3—6, any minor alleged to have committed a traffic, boating or fish and game law violation whether or not the violation is punishable by imprisonment or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.” (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(2).)

Section 3—6(5) states:

“(5) No minor under 16 years of age may be confined in a jail or place ordinarily used for the confinement of prisoners in a police station. Minors under 17 years of age must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with adults confined pursuant to the criminal law.” (Ill. Rev. Stat. 1983, ch. 37, par. 703-6(5).)

Section 2—7(2) was amended by Public Act 82—973, effective September 8, 1982, to include the phrase “whether or not the violation is punishable by imprisonment.” Defendant claims that once the State has granted all juveniles the right to the protections of the Act, removal from those protections without a hearing violates Federal and State constitutional provisions of due process. The rule is familiar that a nonjurisdictional question which has not been presented in the trial court and preserved for review will not be considered on appeal. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) In the trial court defendant neither requested such a hearing nor argued that he was entitled to one on due process grounds, and we therefore decline to address it.

Defendant also claims that the automatic prosecution of juvenile traffic offenders under the applicable statute or ordinance -without the protections of the Act creates an impermissible, arbitrary statutory classification that has no rational basis and violates equal protection.

As this court noted in People v. Burton (1981), 100 Ill. App. 3d 1021, 1023-24, 427 N.E.2d 625, 628-29, an equal protection discussion involves a two-step analysis. The threshold question is whether similarly situated persons are being treated dissimilarly. (See People v. Bradley (1980), 79 Ill. 2d 410, 416, 403 N.E.2d 1029, 1031.) The second inquiry is whether the dissimilar treatment “rationally furthers some legitimate, articulated state purpose.” (McGinnis v. Royster (1973), 410 U.S. 263, 270, 35 L. Ed. 2d 282, 289, 93 S. Ct. 1055, 1059.) The standard of review applicable to this statutory classification under the equal protection clause is the basic standard, permissive review, under which classifications rationally related to legitimate governmental objectives are permitted, and the burden is on the party challenging the validity of the classification to prove that it is arbitrary. (People v. Ellis (1974), 57 Ill. 2d 127, 131, 311 N.E.2d 98, 100.) We begin with the presumption that the classification is valid and, if any state of facts may reasonably be conceived which would justify the classification, it must be upheld, as the right of judicial questioning of a classification under the equal protection clause is limited. (People v. McCabe (1971), 49 Ill. 2d 338, 340-41, 275 N.E.2d 407, 409.) It is further noted that the constitutionality of section 2—7(6)(a) of the Act, requiring certain minors to be prosecuted as criminals, has been upheld (see People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090; People v. Reed (1984), 125 Ill. App. 3d 319, 465 N.E.2d 1040).

Defendant maintains that equal protection is violated because juvenile traffic offenders are similarly situated as to other juvenile misdemeanants and, although the offenses are different, they are of the same quality. He states that a juvenile who drinks and drives poses the same danger to society as one who wields a gun, and that a minor who drives too fast for conditions poses the same menace and harm to society as one who commits vandalism. He claims that no rational basis exists to support different treatment for juvenile traffic offenders and urges that withholding from these juveniles a proceeding generally made available to other juveniles is analogous to the issue considered in Baxstrom v. Herold (1966), 383 U.S. 107, 15 L. Ed. 2d 620, 86 S. Ct. 760.

We do not believe that defendant has met his burden with regard to the first step in equal protection analysis, as he has not shown that similarly situated individuals are being treated differently. We find that juvenile traffic offenders are a group qualitatively distinct from other juveniles to whom the procedures of the Act may apply. The legislature was therefore free to provide different treatment for the two groups.

Further, the State has argued various bases for the distinction. The State maintains that since the purposes of the Act are primarily remedial and preventive in nature, the legislature could rationally conclude that these purposes are not necessary or appropriate in traffic violation cases, and that protections otherwise afforded minors under the Act (i.e., notice to parents, clearing the courtroom before proceedings, and appointment of a guardian ad litem where necessary) ought not be applied. In contrast to defendant’s bare assertion that the prosecution of juvenile traffic offenders in criminal court is arbitrary and has punishment as its only conceivable purpose, the State points out that driving is generally considered to be an adult activity (although the privilege of driving has been extended to those as young as age 16), and that most traffic cases are routine in nature and not difficult of proof. The State argues that given the relatively large volume of traffic offenses committed by minors, the legislature could reasonably conclude that the protections and procedures of the Act are neither appropriate nor necessary in such cases.

Baxstrom is distinguishable. That case involved an equal protection challenge to established statutory procedures under which all persons civilly committed, other than those committed at the expiration of a penal term, were expressly granted the right to de novo review by jury trial of the question of their sanity. The court found the statutory classification capricious, noting that (1) classification of mentally ill persons as either insane or dangerously insane had no relevance in the context of the opportunity to show whether a person is mentally ill at all, and (2) under the classification, a person with a past criminal record was entitled to a hearing on the question of whether he was dangerously mentally ill if not in prison when civil commitment proceedings were instituted. Given this distinction, the court found that all semblance of rationality of the classification, purportedly based upon criminal propensities, disappeared. Such is not the case here.

We hold that the offenses omitted from section 2—7(2) coverage are not “intrinsically similar” to those listed (Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113), and that there is clearly a rational basis for a distinction (Skinner v. Oklahoma (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110; People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029; People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407). We hold that section 2—7(2) of the Act does not deprive such minors of their right to equal protection of the law.

We affirm the judgment in No. 4—84—0300 (DUI), and reverse the judgment in No. 4—84—0573 (driving too fast for conditions).

Affirmed in part; reversed in part.

MILLS and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    ELLIS BROADWAY, Plaintiff-Appellee, v. THE SECRETARY OF STATE OF THE STATE OF ILLINOIS, Defendant-Appellant.
    Fourth District
    No. 4—84—0448
    Opinion filed January 10, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (Vincenzo Chimera, Assistant Attorney General, of Chicago, of counsel), for appellant.

      Frederic M. Grosser, of Grosser & Hays, of Champaign, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

The Illinois Secretary of State asks us to overturn an order of the circuit court which vacated the suspension of Ellis Broadway’s driver’s license and assessed various costs against the State.

We agree with the Secretary and reverse.

Broadway was the uninsured driver of the car of an uninsured owner. He was involved in an automobile accident in Champaign County, Illinois. Since the plaintiff was admittedly uninsured, a hearing was scheduled pursuant to section 7—205 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 7—205).

The evidence adduced at the hearing consisted of the testimony of plaintiff and the owner of the car, the introduction into evidence of a traffic accident report form which detailed the accident, and a form prepared by the Illinois Department of Transportation which stated the amount of property damage to be $1,000.

Plaintiff testified that he was driving southbound on Second Street approaching its intersection with University Avenue in Champaign. At the intersection, there was a stop sign for the traffic on Second Street where the plaintiff was situated but no traffic control device for the cross street. When he reached the intersection, he came to a complete stop. He looked in both directions. He noticed the automobile with which he was later involved stopped at a red light in the eastbound lane one block to the west. He waited until traffic approaching on University Avenue had passed. He then entered the intersection. He testified that when he was partway into the eastbound lanes of the intersection, the automobile which he was driving stalled. As he was trying to restart the automobile, it was struck on the right front fender by an automobile traveling east on University. The owner of the car driven by plaintiff testified that he was driving her car but was involved in his own affairs and was not driving at her behest.

Upon consideration of all the evidence, the hearing officer concluded that there was a reasonable possibility of a money judgment against plaintiff in excess of $250. Upon this finding, the hearing officer ordered plaintiff’s driver’s license suspended. The hearing officer also found that there was no agency between plaintiff and the car owner. Based on this finding, the action against the owner was dismissed.

Plaintiff then filed a complaint for administrative review in the circuit court of Champaign County. The Secretary answered the complaint by filing a certified copy of the transcript of the suspension proceedings with the clerk of the circuit court of Champaign County. This procedure is mandated by section 3—101 of the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3—101). Despite filing the entire record with the clerk, the Secretary served plaintiff with only the cover page of the report and a notice of service. Plaintiff asked the Secretary for the entire report in a letter. The Secretary, through the Attorney General’s office, responded that the entire record would not be sent to plaintiff unless he paid the sum of $5 to cover copying costs. Plaintiff then obtained a copy of the proceedings from the circuit clerk’s office.

On October 24, 1983, plaintiff filed a motion for expenses which sought reimbursement of the $5. The motion relied upon Supreme Court Rule 104 (87 Ill. 2d R. 104), which plaintiff argued called for the delivery of the entire record of proceedings by the Secretary and the reimbursement of the sum of copying the entire record upon the failure of the Secretary to deliver it.

The hearing on the motion and the complaint for administrative review was held January 26, 1984. No transcript of the hearing was included in this record on appeal. The record entry reflecting the hearing shows that the court found “that the record of the administrative agency defendant shows that there is no proper evidence or reasonable inference therefrom to support a finding that there is a reasonable possibility of a judgment in excess of the statutory minimum; that such a finding would necessarily have been based upon hearsay evidence alone.” Upon this finding, the court reversed the decision of the Secretary which suspended plaintiff’s driver’s license. The court also ordered:

“Costs are adjudged in favor of the Plaintiff and against the Defendant, including costs of the copy of the transcript of record below.
Upon the finding of this being a pauper’s case, the filing fee and all other costs are adjudged in favor of the Plaintiff and against the Defendant. Written Order to be entered.”

On May 16, 1984, plaintiff filed a motion for entry of written order. The motion was accompanied by a letter dated February 28, 1984. The letter was addressed to the assistant Attorney General handling plaintiff’s case and referred to a proposed order which was also enclosed, which letter requested that the order be signed or objected to. The motion set forth the fact that the assistant Attorney General had not responded to the letter and requested the court to enter the order. The motion was set for hearing on May 23, 1984. On May 22, 1984, the Attorney General responded to the motion, arguing that the portion of the motion taxing costs was improper on three grounds. The Attorney General first argued that it had no responsibility to do anything more than file the administrative record with the clerk of the court, relying upon the case of Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501. The Attorney General also argued that under the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.1 et seq.) and the doctrine of sovereign immunity (Ill. Rev. Stat. 1983, ch. 127, par. 801), the circuit court lacked jurisdiction to assess costs against the State of Illinois. The final argument raised by the Attorney General was that the power to tax costs is not found in section 3—101 et seq. of the Code of Civil Procedure, which precluded such an assessment by the court.

The hearing on all the issues was apparently held May 23, 1984, although no transcript or record entry was included in the record before this court. The record does contain an order, dated May 23, 1984, and filed May 24, 1984, which parallels plaintiffs original proposed order. The order reverses the decision of the hearing officer and sets the costs to be taxed against the State at $12.50. The sum purports to include plaintiffs cost of copying the defendant’s answer as well as the statutory fees for filing and service of summons. Defendant filed notice of appeal June 22,1984.

In this appeal, the Secretary contests both the reversal of the finding of the hearing officer and the taxing of costs against the State. The Secretary first argues that the circuit court erred by reweighing the evidence at trial and finding that there existed no reasonable possibility of a civil judgment against plaintiff in accordance with the statute. The Secretary next argues that the trial court erred in assessing costs against the State. We agree with both contentions and reverse.

We note at the outset that the written order appealed from is much broader than the record entry it supposedly reflects. The record entry shows that the circuit court felt that the Secretary’s case was deficient in that proof of the extent of property damage was based upon hearsay evidence, to wit, a certificate to the Secretary of State which was composed and transmitted by the Illinois Department of Transportation and indicates that plaintiff had been involved in an accident which resulted in property damage evaluated at $1,000. The final written order appealed from is painted in much broader strokes, finding only that there was no proper evidence or inference therefrom from which the Secretary could find a reasonable possibility of a judgment against plaintiff “in accordance with the statute.” Since the written order is so broad, the Secretary now argues that the circuit court erred in finding there was no reasonable possibility plaintiff could be found liable for property damage and that the circuit court erred in finding that the certificate was not proper evidence.

While we are not convinced that the trial court ever considered the issue of plaintiff’s liability, we hold that if it did and thereafter reversed the finding of the Secretary, the reversal was erroneous.

A hearing officer, after listening to plaintiff’s testimony, found that there existed a reasonable possibility of a civil judgment in excess of $250. It is well established that “[i]n an administrative review proceeding the trial court and the appellate court are limited to a consideration of the record to determine *** whether the findings and orders of the commissioner are against the manifest weight of the evidence.” (Emphasis added.) (Spiros Lounge, Inc. v. Illinois Liquor Control Com. (1981), 98 Ill. App. 3d 280, 283-84, 423 N.E.2d 1366, 1369.) It is generally held that it is not the function of either the trial court or the appellate court to reweigh the evidence or assess the credibility of the witnesses. Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102.

The evidence heard by the administrative hearing officer below disclosed that plaintiff’s southbound car was struck on the right front fender after leaving an intersection where only north-south traffic had a stop sign. Plaintiff admitted that his front fender had crossed two lanes of westbound traffic before being struck by an. eastbound car. He claimed that his car had been stalled for two or three minutes in the middle of the intersection before being struck by a car traveling 50 or 60 miles per hour which had been at rest only a block away when plaintiff originally stopped at the intersection. Upon these facts, the hearing officer concluded that there was a reasonable possibility of plaintiff’s liability being established. If the circuit court found otherwise, that finding was an abuse of the very limited discretion given reviewing courts in matters of administrative review.

Turning to what was more likely the underpinning of the circuit court’s reversal, we find that the Department of Transportation certificate of evaluated property damage was properly considered by the hearing officer. The certificate comes within the business record exception to the hearsay rule as provided by Supreme Court Rule 236 (87 Ill. 2d R. 236). Rule 236 provides that records made as a memorandum of an occurrence are admissible as exceptions to the hearsay rule. In People ex rel. Person v. Miller (1977), 56 Ill. App. 3d 450, 371 N.E.2d 1012, the court held that records which are required by statute to be kept by persons in public office constitute evidence of the matters recorded therein. Section 7—201 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par.7—201) requires:

“[The Department of Transportation] shall certify to the Secretary of State the name of each owner and the name of each operator of any vehicle involved in any accident and his determination that security is required under this Act, and the amount and shall also supply a copy of any accident report requested by the Secretary.”

Based on the foregoing statutory requirement, the Department certificate was admissible and properly considered by the hearing officer of the Secretary of State. Hence, the reversal of the decision based on hearsay problems was equally erroneous. We therefore reverse the circuit court’s reversal of the hearing officer’s finding that the plaintiff had been in an automobile accident where there was a reasonable possibility of a civil judgment in excess of $250 being levied against him.

The final issue raised by the parties is whether the circuit court erred in imposing costs against the State upon the conclusion of the cause below. It did.

A party seeking review of a determination of an administrative agency does so by filing a complaint in much the same way as does an ordinary civil litigant. However, the required answer is much different. Section 3—108 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3—108) provides that the agency being sued shall file as its answer the original or a certified copy of the entire report of proceedings under review, including such evidence as may have been heard by it, and the findings and decisions made by it.

Pursuant to this legislative scheme, the Secretary of State filed the report of proceedings and evidence with the clerk of the circuit court of Champaign County but sent only the cover sheet and a notice of mailing to plaintiff. Plaintiff asked for the entire report in a letter written to the assistant Attorney General who was handling the case. The assistant refused to send the record but offered to have it copied at plaintiff’s expense. Plaintiff then obtained a copy from the circuit clerk but moved for reimbursement of his expenses, ostensibly under Supreme Court Rule 104 (87 Ill. 2d R. 104).

Supreme Court Rule 104(b) provides that all pleadings subsequent to the complaint shall be filed with the clerk of the relevant circuit court along with proof that copies have been served on all parties. (87 Ill. 2d R. 104(b).) Rule 104(d) allows a party who has not been served according to subsection (b) to recover the cost of obtaining the appropriate copies from the clerk. 87 Ill. 2d R. 104(d).

Based on these arguments, the circuit court ordered the Secretary of State to reimburse plaintiff in the amount of $12.50, which sum was to cover the cost of copying the complete answer as well as the cost of filing the complaint and service of summons. This decision was reflected in the proposed order which was sent to the Attorney General for approval or objection.

The Attorney General eventually objected to the portion of the order assessing costs on several grounds. The Attorney General first argued that the circuit court was without authority to enter an order assessing costs against the State, since that authority is not found within section 3—101 et seq. of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3—101 et seq.). The Attorney General secondly argued that a State agency need not provide a plaintiff with a copy of the entire record, but that it satisfies its pleading requirements by filing the record with the clerk of the circuit court. This argument relies upon Reich v. Board of Fire & Police Commissioners (1973), 13 Ill. App. 3d 1031, 301 N.E.2d 501. The third argument raised by the Attorney General was that under the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.1 et seq.) and the doctrine of sovereign immunity (Ill. Rev. Stat. 1983, ch. 127, par. 801), the circuit court lacked jurisdiction to assess costs against the State.

In this appeal, the Secretary has chosen to rely upon the lack of jurisdiction argument. Plaintiff responds variously that the Secretary has waived the jurisdictional issue by not raising it at. the hearing on the motion for expenses, where the plaintiff maintains the Secretary argued that he was simply not required to furnish the plaintiff with a copy of the entire answer; that the cost of copying the answer is not a court cost or an ordinary cost of litigation and therefore it is without the purview of the doctrine of sovereign immunity and the Court of Claims Act; that the assessment is properly viewed as a sanction for the wilful refusal of the Attorney General to provide plaintiff with a copy of the entire proceedings; and, finally, that the Secretary is attempting to impose upon plaintiff the cost of preparing the record, which was forbidden in Champaign County Board of Review v. Property Tax Appeal Board (1975), 30 Ill. App. 3d 29, 331 N.E.2d 333.

In our view, the assessment of the statutory filing cost and the cost of service of summons was precluded by the analytical framework established and employed by our supreme court in Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 367 N.E.2d 1302. In that case, much as in the case before us, the court was called upon to determine whether a State agency, as an appellee, could be charged with the cost of the preparation of the record on appeal when the appellant successfully convinced an appellate court to overturn a finding favoring the agency.

At issue was section 22 of “An Act to revise the law in relation to costs” (Ill. Rev. Stat. 1975, ch. 33, par. 22) and Supreme Court Rule 342(h) (58 Ill. 2d R. 342(h)). The Department had sought back taxes it thought were due and owing from Burlington Northern, Inc. The Department’s final order assessed taxes in the amount of $495,530. Burlington sought review in the circuit court and lost. On appeal to the appellate court, the decision of the circuit court was reversed. Burlington then sought to be reimbursed for the money it spent producing the excerpts of record. It relied on section 22, which provided that upon the reversal of an order of a court on review, an appellant could recover its costs, and Supreme Court Rule 342(h), which provided that either party to a lawsuit could be taxed costs for causing unnecessary matter to be included in the excerpts of record. The appellate court ordered the Department of Revenue to compensate Burlington for costs incurred in preparing the excerpts of record.

The supreme court held that the appellate court had improperly assessed costs against the State. The court, quoting from People v. Pierce (1844), 6 Ill. (1 Gilm.) 553, 555, noted that “ ‘[a] State is never bound to give a bond for costs in any case; neither does it ever pay costs, except in some particular way pointed out by statute.’ ” (Emphasis added.) The court held that since the State was not specifically mentioned in section 22, it was without the purview of its cost-assessment provisions. This, despite the fact that the statute did refer to appellees, a designation amply describing the State’s position on appeal. The supreme court similarly rejected Burlington’s reliance on Supreme Court Rule 342(h). The court found that the absence of a specific reference to the State precluded its application to the State. The relief that had been sought in the supreme court was a writ of mandamus expunging the order of the appellate court, and this was granted since the court found that the order was entered by a court which lacked jurisdiction. (This, incidentally, disposes of plaintiff’s waiver argument, since subject-matter jurisdiction may be raised at any time. See Arrington v. Industrial Com. (1983), 96 Ill. 2d 505, 451 N.E.2d 866.) Accordingly, the portion of the circuit court’s order assessing the costs of filing and service of summons are vacated as void.

Concerning the cost of duplicating the answer, we are not convinced that this sum of money is a “cost” as that term is normally used. If that sum is not a “cost,” the rationale of the Department of Revenue case arguably does not apply. This essentially stakes out plaintiff’s position before us, which is that while “costs” may not be assessed against a sovereign, this sum may be assessed because it is an expense which was virtually self-imposed by virtue of the fact that the Attorney General admittedly refused to provide a copy of its answer to plaintiff, which copy plaintiff argues is called for by Supreme Court Rule 104.

In our view, plaintiffs arguments, though novel, are unavailing, as we are of the opinion that Supreme Court Rule 104 simply does not apply to cases of administrative review. Since Rule 104 does not apply, there is no basis whatsoever upon which the trial court could properly rely in attempting to reimburse the plaintiff for his costs of duplicating the record of the administrative proceedings.

While Rule 104 is entitled “Service of Pleadings and Other Papers; Filing” (87 Ill. 2d R. 104), it makes no mention of its applicability to proceedings under the Administrative Review Law. Rather, Supreme Court Rule 291 (87 Ill. 2d R. 291) is entitled “Proceedings under the Administrative Review Law,” and subsection (d) lists four rules which “shall apply to proceedings under the Administrative Review Law.” (87 Ill. 2d R. 291.) Rule 104 is nowhere among the rules listed.

The absence of Rule 104 from the list of rules which are to be applied to proceedings under the Administrative Review Law makes eminent good sense. A party who has filed a civil action is in a totally different posture than a person seeking administrative review, even though both actions are admittedly commenced by the filing of a complaint. The civil complainant needs to know the nature of any defenses which may confront him at trial. A party seeking administrative review already knows the nature of his opponent’s case. Further, the civil complainant cannot predict what his opponent’s answer might be, whereas by statute, a party seeking administrative review knows, or should know, that the agency is simply required to file a copy of the report of proceedings in lieu of the normal answer filed by a defendant in a typical civil case. Finally, the burdens borne by the two answering parties are totally disparate. While the answer to a typical complaint may run to several pages (perhaps several hundred in the most nightmarish of cases), the record of an administrative hearing could likely run to thousands or even tens of thousands of pages. Based on these manifest distinctions, it seems apparent to us that despite the “general” nature of Supreme Court Rule 104, the specific nature of Supreme Court Rule 291 precludes its application to administrative review hearings.

Such a determination is in accordance with the committee comments to Rule 291, which note that while the Administrative Review Law attempts to establish proceedings which closely parallel proceedings under the Civil Practice Act, the symmetry is not entirely perfect and that procedures applicable to some proceedings under the Civil Practice Act are unsuited to proceedings under the Administrative Review Act. The filing of the administrative record as an answer is a procedure which makes its transmission to the party opponent unsuitable in matters of administrative review. As such, the Secretary of State should not have been charged the plaintiff’s duplicating cost.

Reversed and remanded.

McCULLOUGH and TRAPP, JJ., concur.