author: PRESIDING JUSTICE DOWNING

text:
    LAWRENCE LAWLESS, Plaintiff-Appellant, v. ROBERT PIERCE et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1911
    Opinion filed September 6, 1983.
    Modified on denial of rehearing November 1, 1983.

      Lawrence Lawless, of Chicago, for appellant, pro se.

    Kenneth G. Kombrink, of Dunn, Goebel, Ulbrich, Morel & Hundman, of Bloomington, for appellee Jon Mendelson.
    Jay S. Judge, Kristine A. Karlin, and Gregory G. Lawton, all of Judge & Knight, Ltd., of Park Ridge, for other appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Lawrence Lawless, brought this action against defendants Pierce, Notaras, Meredith and Henize — individually and as agents of defendants villages of Park Forest and Park Forest South — defendants Kaganove, Marzuki and Schwartz — individually and as agents for the not-for-profit corporation defendant Thorn Creek Preservation Association — and defendants Mendelson and Warren — individually and as agents for Governors State University and Illinois Department of Conservation. The facts, as well as a history of the previous litigation in this case, will be briefly summarized.

The property which is the subject of this lawsuit is a four-acre tract of land situated in an unincorporated area between the villages of Park Forest and Park Forest South in Will County. In 1962, plaintiff became owner of the land which was improved with a residence, garages and out buildings, and contained a one-acre pond. In 1969, the Thorn Creek Preservation Association (the Association) was chartered to seek acquisition of Thorn Creek Woods, a 800-acre tract of wooded land to which plaintiff’s land abutted. A “Joint Management Committee for Thorn Creek Woods” was established and the Association, Governors State University and the individuals named in this lawsuit were appointed to it.

In 1972, the Illinois Department of Conservation notified plaintiff that it intended to purchase his property as part of an overall plan to develop Thorn Creek Woods Nature Preserve. Between January 1976 and March 1978, unsuccessful negotiations took place between plaintiff and the Department and, on January 31, 1978, the Department notified plaintiff of its intent to take his property by eminent domain. Those proceedings were not initiated at that time, however.

Plaintiff’s amended complaint alleges .that on June 4, 1978, defendants, jointly and severally, sponsored, advertised and invited approximately 1,000 members of the public to a public dedication ceremony of the area, including plaintiff’s private property, as a nature preserve. Plaintiff alleges that his property was portrayed as public, his residence as an interpretive center, his private land as public picnic grounds and parking areas, and that public nature walks were displayed throughout his property.

On June 27, 1978, plaintiff sought a writ of mandamus against the Department to compel condemnation of his property. A default judgment was granted against the Department on August 9, 1978. An eminent domain proceeding was initiated when the Department filed a petition to condemn on July 28, 1978. Plaintiff was awarded the sum of $180,000 by a jury in the condemnation action as compensation for the taking of his property from the date of the “taking” (which was the date of dedication), June 4, 1978. Thereupon, the Department appealed from the mandamus judgment, and plaintiff appealed from the trial court’s denial of his plea for certain fees and costs. The third district of this court, in Department of Conservation v. Lawless (1981), 100 Ill. App. 3d 74, 426 N.E.2d 545, appeal denied (1982), 88 Ill. 2d 550, affirmed the judgment in the mandamus action and vacated the eminent domain judgment as to the amount of judgment. The cause was remanded to reconsider the question of reasonable attorney fees and other costs.

In the present action, plaintiff filed a four-count amended complaint which alleged that: from June 4, 1978, the date of the public dedication, until January 28, 1981, the date the State paid the compensation award, defendants portrayed and represented his property to be public, and induced and invited members of the public to commit acts of trespass; defendants’ actions were wilful thereby warranting punitive damages; defendants violated the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 3(2)); and defendants committed common law conspiracy.

Defendants filed motions to dismiss plaintiff’s complaint. (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.) The trial court granted this motion, ruling that plaintiff’s causes of action were barred by the doctrine of election of remedies, and that plaintiff’s cause of action for conspiracy in violation of the antitrust statute could not be sustained because no restraint of trade was shown. Plaintiff now appeals from the order entered by the court dismissing his complaint.

I

Plaintiff strongly urges that the trial court’s dismissal of his complaint be reversed in order that he receive compensation for the taking of his property as guaranteed by the United States and Illinois constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 15.) Plaintiff acknowledges that although he has already taken proper action against the Department of Conservation, which is not a defendant here, the only recourse available to him against the instant defendants is an action in trespass for damages.

The third district of this court held that the date of “taking” of plaintiff’s property was June 4, 1978, the date of the public dedication. In addition, it was judicially established that plaintiff retained actual possession of the property between June 4, 1978, and the date of the condemnation verdict of June 26, 1980. (Department of Conservation v. Lawless (1981), 100 Ill. App. 3d 74, 79.) The court also affirmed the Will County trial court’s denial of plaintiff’s claim for statutory interest from June 4, 1978, the date of “taking,” together with mortgage interest plaintiff owed on the subject property from June 4, 1978, to June 26, 1980. In the present action, plaintiff theorizes that because he retained exclusive possession of the property from June 4, 1978, until the date the condemnation award was paid, he should be compensated for the wrongful acts of entry upon his land during this period.

Plaintiff argues that, contrary to the trial court’s ruling in the instant case, his action is not barred under the doctrine of election of remedies. In accordance with that principle, when a party pursues one remedy which is inconsistent with other possible remedies to the extent that to follow one is to renounce the other, the satisfaction of the chosen remedy acts as a bar to the others. Casati v. Aero Marine Management Co. (1980), 90 Ill. App. 3d 530, 536-37, 413 N.E.2d 122.

Plaintiff contends that the doctrine of election of remedies does not bar an action for trespass which antedates condemnation. The case upon which plaintiff heavily relies for support is Wehrum v. Village of Lincolnwood (1968), 91 Ill. App. 2d 418, 235 N.E.2d 343, appeal denied (1968), 38 Ill. 2d 630. In that case, the local municipality had converted plaintiffs’ private property into a playground in 1960, but the condemnation proceedings were not instituted until 1965. As a result of those proceedings, plaintiffs received an award which determined the value of their property as of 1965. Wehrum sought damages for the condemnor’s tortious acts of trespass upon the land for the period between 1960 and 1965. The appellate court concluded that as the only issue litigated in the condemnation action was the value of the land as of the date the petition to condemn was filed (1965), plaintiffs’ action for damages, which were incurred prior to this date, was not barred by the doctrine of res judicata. See Wehrum v. Village of Lincolnwood (1968), 91 Ill. App. 2d 418, 420-21, 235 N.E.2d 343.

A review of eminent domain law in Illinois reveals that traditionally, and as provided for statutorily, the date of valuation in a condemnation suit is the date of the filing of the petition to condemn. (Ill. Rev. Stat. 1979, ch. 47, par. 9.7; Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408, 411, 274 N.E.2d 56.) It has been recognized, however, that this valuation date may work an injustice in a case where the property owner initiated inverse condemnation proceedings after a governmental entity had already taken, the party’s property. Department of Transportation v. Shaw (1976), 36 Ill. App. 3d 972, 982-83, 345 N.E.2d 153, rev’d in part (1977), 68 Ill. 2d 342, 351, 369 N.E.2d 884, where the supreme court held that where there was no actual taking of land, and where the damage suffered resulted solely from the elimination of direct access to the public road, the proper valuation date is the date of the physical closing of the road.

In Wehrum, the valuation date was the 1965 date of filing of the petition to condemn. There, the alleged tortious conduct commenced in 1960, prior to the valuation date. Here, the first instance of trespass alleged by plaintiff was on June 4, 1978, which is the same date used by the court in the condemnation action as the “taking” date. Therefore, the damages which plaintiff allegedly sustained for the acts of trespass were included in the compensation award, unlike the situation in Wehrum.

It must also be noted that plaintiff acknowledges in his reply brief that once payment of a compensation award is made by the State, its title relates back to the date of taking. Thus, plaintiff concludes that on January 28, 1981, the date the State paid the award, title related back to June 4, 1978. However, since the State’s title vested as of June 4, 1978, plaintiff’s attempt to recover for the alleged tortious acts of defendants from that date must fail; they are the very acts which constituted the “taking” for which plaintiff has already received compensation.

A case which is distinguished in Wehrum, and upon which the trial court and defendants relied, is Grunewald v. City of Chicago (1939), 371 Ill. 528, 21 N.E.2d 739. In that case, the supreme court held that it did not have jurisdiction to hear the case since it was in the nature of a common law action for damages, and not under the purview of the eminent domain statute. The language applicable to the case at hand is:

“Appellees had a right to sue at law for damage to their property or to proceed in mandamus to compel the proper officers to bring proceedings under the Eminent Domain act. [Citation.] They had a right to elect the remedy they thought best suited to the end sought, and satisfaction of the claim in one of the modes of recovery constitutes a bar to the other. [Citation.]” Grunewald v. City of Chicago (1939), 371 Ill. 528, 532, 21 N.E.2d 739.

We note that in a recent supreme court case involving the issue of whether a property owner could compel a municipality, by way of a writ of mandamus, to institute eminent domain proceedings, the court commented on the Grünewald case. The court stated that since Grünewald involved a common law action for damages, any reference to a mandamus remedy against a municipality was purely dicta and, as applied to municipalities, was wrong. (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 272, 449 N.E.2d 852.) This comment does not, however, affect our reliance upon Grünewald for its authority regarding the election of remedies doctrine.

In this case, plaintiff had two options available to him when he was faced with the situation of the alleged unlawful trespass to his land. He could have sued at common law for damages, or proceeded in mandamus to compel eminent domain proceedings. (Grunewald v. City of Chicago (1939), 371 Ill. 528, 532.) He chose the latter remedy resulting in a condemnation award which included a valuation of his property as of the date of “taking,” i.e., the same date which he claims the trespasses began. The trial court was thus correct in ruling that plaintiff was barred from bringing this cause of action upon the doctrine of election of remedies.

Plaintiff, having received “just compensation” as required by the fifth amendment to the United States Constitution and article I, section 15 of the Illinois Constitution of 1970 for the taking of his property on June 4, 1978, is not entitled to recover additional compensation by joining different defendants, and by bringing the action under the theory of trespass to property for which, by operation of law, he did not hold title. We do not mean to infer, of course, that a cause of action for trespass cannot be based solely upon possession without legal title, since our courts have recognized that the gist of the action is injury to possession. Krejci v. Capriotti (1973), 16 Ill. App. 3d 245, 247, 305 N.E.2d 667, appeal denied (1974), 55 Ill. 2d 605; see also Advance Elevator & Warehouse Co. v. Eddy (1887), 23 Ill. App. 352, 355; 34 Ill. L. & Prac. Trespass sec. 5 (1958).

In his petition for rehearing filed before this court, plaintiff argues that our present decision denying him the relief of damages for trespass and the third district’s decision of September 3, 1981, are now in conflict. He notes that the third district did not grant him prejudgment interest because it found that he continued to have actual, physical possession of the property between the date of the dedication and the date of the condemnation verdict. (Department of Conservation v. Lawless (1981), 100 Ill. App. 3d 74, 79.) Plaintiff goes on to argue that our decision denying him damages for trespass during this period is inconsistent because we held that the damages to his possessory interest was included in the compensation award. Plaintiff claims that we arrived at this decision because we inadvertently assumed that the taking of title by the State which related back to the date of the dedication included the taking of possession. This conclusion would be contrary to the third district’s holding that he retained possession, if indeed that had been our reasoning. Plaintiff, however, misreads our decision. We concluded that plaintiff, by pursing the mandamus action, was now barred from bringing this action for damages because of the doctrine of election of remedies. In his petition for rehearing, plaintiff urges that in addition to the eminent domain award, he is entitled to either prejudgment interest, which was denied by the third district, or damages for an alleged trespass. We find no authority to support plaintiff’s intriguing theory that he is entitled to compensation twice under the reasoning he advances.

II

Plaintiff’s actions for the alleged antitrust violations (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 1 et seq.) and conspiracy to commit trespass to land must fall for the reasons set forth above.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS and PERLDST, JJ., concur.

      This court, in July 1982, decided that Cook County was the proper forum in the instant action. 108 Ill. App. 3d 191, 438 N.E.2d 1299.

      Plaintiff, in his briefs in the third district, did not disagree with the action of the trial court in the mandamus action of establishing June 4, 1978, as the date of “taking.”


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    BEYNON BUILDING CORPORATION, Plaintiff-Appellant, v. NATIONAL GUARDIAN LIFE INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 82—852
    Opinion filed October 5, 1983.
    Rehearing denied November 10, 1983.

      Gerald LaFayette, of Victor, LaFayette, Russell & Fuenty, of Rockford, for appellant.
    Steven L. Nordquist, of Nordquist Law Offices, Ltd., of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Beynon Building Corporation, appeals a judgment denying its complaint for a release from a mortgage held consecutively by the defendants, Rockford Mortgage Company (hereinafter Rockford) and National Guardian Life Insurance Company (hereinafter National), and reforming the mortgage and note secured by the mortgage. Although Rockford was named as a defendant, it was no longer in business and did not participate in the lawsuit. The following issues are presented for review:

(1) Whether the trial court erred in denying the plaintiff’s motion to strike National’s affirmative defenses.
(2) Whether the affirmative defense of mistake and the prayer for reformation were barred by the statute of limitations or by laches.
(3) Whether the affirmative defense of mistake and the prayer for reformation were barred by the statute of frauds.
(4) Whether National met its burden of proving that a mistake was in fact made on the mortgage and note.

On October 23, 1964, the plaintiff executed a mortgage and note with Rockford. The mortgage document provided that the plaintiff would pay:

“the principal sum of Eighty-Five Thousand and no/100 Dollars ($85,000.00) as evidenced by a principal promissory note of even date herewith, payable in 180 equal monthly installments of Six Hundred Forty-Nine and 60/100 Dollars ($649.60) beginning December 15, 1964 and with a final payment November 15,1979.”

• The installment note provided that the plaintiff would pay Rockford $85,000 as follows:

“Six Hundred Forty-Nine and 60/100 Dollars on the Fifteenth day of December A.D. 1964; Six Hundred Forty-nine and 60/ 100 Dollars on the Fifteenth day of each and every month be-. ginning on the Fifteenth day of January A.D. 1965 for 178 months succeeding, and a final payment of Six Hundred Forty-nine and 60/100 Dollars on the Fifteenth day of November A.D., 1979, with interest at the rate of 5^2 per cent, per annum, payable Monthly ***.”

Rockford assigned the mortgage and note to National by a document also dated October 23,1964.

The plaintiff made 178 monthly payments of $649.60. In September 1979, the plaintiff sent National a check for $1,299.20, with an accompanying letter explaining that it was to cover the final two payments and requesting a release of the mortgage. National refused to accept the check as the final payment and sent a reply letter explaining that an error had been made in drafting the original promissory note in that the correct monthly payments should have been $694.60 rather than $649.60.

When further attempts to obtain a release from the mortgage based on the 180th payment failed, the plaintiff filed a complaint for release from the mortgage on January 9, 1980. National filed an answer denying that the payments tendered by the plaintiff were in full payment of the mortgage. National also asserted as an affirmative defense that there was an inadvertent mistake in the amount of monthly payments shown on the note, that the mistake was discovered and in 1965 a new amortization schedule was sent to the plaintiff showing that amortization would take 200 rather than 180 months, and that the plaintiff’s former president acknowledged the longer loan term in a letter written to National in 1973. The loan amortization schedule was dated November 18, 1965, and showed that payments of $649.60 at 5V2% interest would take 200 months, with the final payment due on August 15, 1981. The letter written by the plaintiff’s former president in 1973 was a request for additional financing from National and stated, “The present mortgage balance is $51,695.06 and calls for payments of $649.60 through August of 1981 at 5x/2% interest.”

A hearing was held before the court. The general counsel for National testified that, according to an amortization booklet, the monthly payments necessary to amortize an $85,000 loan at 5x/2% interest over 15 years (or 180 months) was $694.60. He concluded that a mistake had been made in the monthly payment figures but stated that National’s records did not indicate that the discrepancy was discovered until 1979 when the “final payment” was tendered. No one from Rockford who was involved in the loan transaction was available to testify.

A local banker testified that he calculated the interest rate based on the amortization of an $85,000 loan over 180 payments at $649.60 to be about 41/2%. He also testified that the prevailing prime rate in October 1964 was 41/2%, according to the records of a local bank in existence at that time. The president of the plaintiff at the time the loan and mortgage were obtained acknowledged receiving the amortization schedule in 1965 and referring to its terms in his 1973 letter to National.

The court entered its judgment denying the plaintiff’s complaint for release of mortgage and granting National’s request for reformation of the mortgage and note so that the monthly payment would be $694.60 rather than $649.60, based on the parties’ intentions that the loan be for $85,000 at 5x/2% interest for 15 years. The court found, based on testimony presented by National, that the balance due was $13,106.07, plus interest of $1,814 as of the date of trial, and the per diem interest was $2 per day.

It is undisputed that, given an $85,000 loan to be paid in 180 monthly payments, a 5x/2% interest rate and $649.60 payments do not compute. It is also clear that the interest rate was specified only in the note, as 5x/2%, and that the mortgage did not specify an interest rate. The other three terms — $85,000 for 180 months at $649.60 per month — were listed on both documents.

The first issue is whether the trial court erred in denying the plaintiff’s motion to strike National’s affirmative defense. In its motion to strike, the plaintiff stated that the mortgage spoke for itself and that the note referred to in the affirmative defense did not relate to the issue at hand, i.e., whether the terms of the mortgage had been fulfilled. The plaintiff argues that the mortgage and note are two separate, independent documents and that only the terms contained in the mortgage document itself control whether its obligation has been fulfilled.

The plaintiff cites Conerty v. Richtsteig (1942), 379 Ill. 360, 365, for the principle that a note and mortgage are separate undertakings and the note wholly independent of the mortgage. The defendant in turn cites Schultz v. Plankinton Bank (1892), 141 Ill. 116, 121, for the rule that a mortgage and note must be considered together and treated as one instrument. However, Conerty dealt with the rights and obligations of successive owners of mortgaged property, where the later owners assumed the mortgage and obtained extensions on the note, and Schultz dealt with whether a parol agreement entered into when a mortgage was executed was admissible to vary the contract as to payment of the notes. Neither case discussed the relationship of a mortgage and note where, as here, a mutual mistake of fact that would justify reformation was claimed.

Such a mistake results in the drawing of the contract itself. It is not a fundamental mistake relating to an essential element of the contract, which would prevent a meeting of the minds of the parties; rather, it occurs when an actual good-faith agreement is reached but, due to error, is not expressed in the written reduction of the agreement. (Friedman v. Development Management Group, Inc. (1980), 82 Ill. App. 3d 949, 954.) Thus, the mistake must have existed at the time of the execution of the instrument, must have been mutual and common to all parties, and must have been such that the parties intended to say one thing but by the written instrument expressed another. (Sedlacek v. Sedlacek (1969), 107 Ill. App. 2d 334, 337.) A mutual mistake exists when the contract has been written in terms that violate the understanding of both parties. (Biren v. Kluver (1976), 35 Ill. App. 3d 692, 696.) It is well settled that the parol evidence rule is no bar to the admission of evidence on the question of mutual mistake, and this is so even when the instrument to be reformed is clear and unambiguous on its face. (Ballard v. Granby (1980), 90 Ill. App. 3d 13, 16.) Thus parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence is for the purpose of making the contract conform to the original intent of the parties. (Stoerger v. Ivesdale Co-op Grain Co. (1973), 15 Ill. App. 3d 313, 317.) Since National alleged that a mutual mistake was made on the mortgage document as to the correct amount of the monthly payments, the note was admissible as extrinsic evidence to establish the real intention of the parties.

In addition, section 2 of “An Act relating to mortgages of property of public utilities” (Ill. Rev. Stat. 1981, ch. 95, par. 52) provides that a mortgagee shall release a mortgage, if so requested, upon receipt “of all such sum or sums of money as are really due to him from the mortgagor.” (Emphasis added.) National’s assertion that there was indeed more money owing and that a mistake had been made on the document was sufficiently pleaded under section 2— 613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(d)) to raise that affirmative matter. Thus the trial court properly denied the plaintiff’s motion to strike.

The next issue is whether the affirmative defense of mistake and the prayer for reformation were barred by the statute of limitations or by laches. The plaintiff’s statute-of-limitations argument is premised on the contention that National discovered the alleged mistake in 1965 and that the cause of action therefore accrued then. The plaintiff notes that National’s affirmative defense stated “that said error was subsequently discovered, and in 1965, this Defendant sent a new loan amortization schedule to Plaintiff ***,” which is inconsistent with the testimony that National did not discover the error until the plaintiff’s request for relief. The plaintiff relies on the 10-year period in section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 206). The plaintiff’s theory, then, is that the cause of action accrued at the time of discovery, which was 1965, and the 10 years ran before National sought reformation.

National responds that it had no actual knowledge of the mistake until 1979 when the plaintiff attempted to make a final payment and that, therefore, the request for reformation was timely. In addition, National suggests that the plaintiff’s former president should have brought the mistake to National’s attention in 1965 when he received the amortization schedule and that his failure to do so gave him unclean hands in a court of equity.

We found no Illinois case that addressed the application of the statute of limitations to an action for reformation based on mutual mistake. Although other States vary as to which statute of limitations applies (66 Am. Jur. 2d Reformation of Instruments sec. 90 (1969)), in Illinois the applicable statute is found in section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 206), which provides:

“Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code,’ actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the period of 10 years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.”

Other States are also divided as to when the appropriate statute of limitations begins to run against the right to sue for reformation.

In some States, the period commences when the facts that constitute the mistake are discovered or through due diligence should have been discovered; in others, it commences at the accrual of the cause of action, being the date of execution or delivery of the instrument. 66 Am. Jur. 2d Reformation of Instruments sec. 91 (1969).

Illinois’ statute generally follows the latter rule. Although National posits that the limitations period did not commence until 1979 — the date it claims to have first actually discovered the mistake — the Illinois courts have rejected the “know or ought to know” rule as the time a limitations period begins to run. (Sabath v. Morris Handler Co. (1968), 102 Ill. App. 2d 218, 228-29.) Rather, the statute of limitations commences to run when the party to be barred has a right to invoke the aid of the court to enforce his remedy. (Maxwell v. Nieft (1942), 313 Ill. App. 354, 356.) Under the statute of limitations, a cause of action accrues when facts exist that authorize one party to maintain an action against another; thus the moment a creditor may legally demand payment the statute of limitations begins to run, because at that moment a cause of action has actually accrued. (Mazur v. Stein (1942), 314 Ill. App. 529, 534.) Even when an obligation is payable by installments and the statute of limitations runs against each installment when due, an action to determine the existence of the right under the contract is distinct as regards the commencement of the period of limitations, and the statute of limitations begins to run when the party first has the power to make the demand. (Brehm v. Sargent & Lundy (1978), 66 Ill. App. 3d 472, 474.) This effectuates the policy behind statutes of limitations, which are statutes of repose designed to prevent recovery on stale demands. The purpose of such statutes is not to shield a wrongdoer but to provide a sufficient opportunity to investigate factors upon which liability is based while such evidence is still ascertainable; thus, the statutes require diligence in initiating actions before the relevant facts are obscured by the lapse of time or the death, removal, or defective memory of witnesses. Brehm v. Sargent & Lundy (1978), 66 Ill. App. 3d 472, 475.

In the present case, the facts upon which the action for reformation was grounded existed in 1964 when the mortgage and note documents were drawn and executed. The cause of action therefore accrued at that time, rather than at the time when the discrepancy was actually discovered, and the limitations period began to run then.

National also argues that the statute of limitations does not apply because the plaintiff had reason to know of the mistake, in that it received the amortization schedule in 1965 and referred to it when making payments, and should have brought the error to National’s attention before filing this suit. This argument is effectively one of estoppel.

In Sabath v. Morris Handler Co. (1969), 102 Ill. App. 2d 218, the court discussed the circumstances in which one may be estopped from raising the defense of the statute of limitations. Estoppel exists independent of those things set forth in the statute itself as causing suspension. If a party’s conduct has reasonably induced another to follow a course of action that otherwise would not have been followed and that would be to the latter’s detriment if he did not later repudiate such course of action, an estoppel arises to prevent injustice or fraud. (102 Ill. App. 2d 218, 223.) The test is not whether the representation or conduct was fraudulent in the strict legal sense or done with an intent to mislead or deceive, but rather whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct. Although there is ordinarily no duty to apprise an adversary of his rights, one cannot justly or equitably lull his adversary into a false sense of security, causing him to subject his claim to the bar of the statute, and then plead the very delay caused by his course of conduct. (102 Ill. App. 2d 218, 225.) In Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267, the court said that the general principles of equitable estoppel require the party asserting the estoppel to have relied on the act or representation and because of that reliance refrained from commencing an action within the limitations period; the conduct must have been of such character as to prevent inquiry, elude investigation, or mislead the party with the cause of action. (47 Ill. App. 2d 267, 273.) In addition, the “lulling” period must not have expired before the limitations period. 47 Ill. App. 2d 267, 274-75.

In the present case, the totality of the circumstances justifies invoking the doctrine of estoppel. Although the plaintiff’s silence upon receipt of the amortization schedule in 1965 would not alone be grounds for estoppel, the letter of 1973 acknowledged the terms of that schedule, even though they quite clearly differed from the note and mortgage by showing amortization over 200 rather than 180 months. This is analogous to the provision in the statute of limitations that, where a new promise to pay has been made in writing within or after the 10-year period, an action may be commenced within 10 years after that promise was made. Since the plaintiff had the amortization schedule, which clearly indicated that the loan would not be amortized according to the terms shown on the note and mortgage, and expressly acknowledged those terms as the terms of payment, it is not equitable to permit the plaintiff to assert the statute of limitations as a bar.

Similarly, we reject the plaintiff’s contention that the action for reformation is barred by laches. In fixing the period in which rights and claims will be barred by laches, equity follows the law, and generally courts of equity will adopt the period of limitations fixed by statute. Thus, where a party’s rights are not barred by the statute of limitations, unless his conduct or special circumstances make it inequitable to grant him relief, he is not barred by laches. (Wall v. Chicago Park District (1941), 378 Ill. 81, 96.) Here, there is evidence that National acted promptly to assert its claim, after discovering the discrepancy and the plaintiff’s intention not to pay according to the amortization schedule, and it would be inequitable to permit the plaintiff’s assertion of laches.

The next issue is whether the affirmative defense of mistake and the prayer for reformation were barred by the statute of frauds. This argument is predicated upon the plaintiff’s understanding that National was relying on the letter and amortization schedule as a modification of the note and mortgage. The plaintiff posits that the amortization schedule lacked consideration, notice, and a signature and was therefore unenforceable under section 1 of “An Act to revise the law in relation to frauds and perjuries” (Ill. Rev. Stat. 1981, ch. 59, par. 1). However, National denies offering the amortization schedule and letter to establish a modification and explains that they were intended as evidence of the mutual mistake. Thus, the statute of frauds does not apply.

The last issue is whether National met its burden of proving that a mistake was in fact made on the mortgage and note. The plaintiff contends that evidence presented by National was insufficient to justify reformation. As the plaintiff notes, National’s general counsel was not involved in the making of the note and mortgage, he acknowledged that the interest rate could have been listed incorrectly, and he did not know the parties’ intentions or whether they ever arrived at any agreement regarding the monthly payment amount. In response, National argues that the evidence was uncontroverted that both parties intended to execute a mortgage for $85,000 over a 15-year period at 5^2% interest. National believes that the installment payment figures were changed through an error and that it was a mutual mistake.

As the plaintiff points out, the burden of proving a reformation suit, which is on the party seeking reformation, is higher than that in an ordinary civil lawsuit. A written agreement is presumed to express

the intention of the parties and will not be reformed unless the evidence of mutual mistake or other ground for reformation is strong, clear, and convincing. (319 South La Salle Corp. v. Lopin (1974), 19 Ill. App. 3d 285, 290.) The mistake must be one of fact rather than law, the proof clear and convincing that a mistake was made, and the mistake mutual and common to both parties to the instrument. Roots v. Uppole (1980), 81 Ill. App. 3d 68, 72.

In the present case, there is no question that the terms on the written documents were inconsistent. Moreover, there is sufficient evidence to justify a conclusion that at some point the monthly payment figure was transposed to read $649.60 when it should have been $694.60, since the $694.60 figure was exactly consistent with the other terms. The suggestion that the interest rate was the mistaken term is less convincing since amortizing $85,000 over 15 years at $649.60 produces an interest rate of approximately 41/2%.

The remaining question is whether the mistake was mutual. There is no testimony that the plaintiff was aware of the $694.60 figure and agreed to it before the mistake in drafting the documents was made. However, the 5^2% interest rate was clear on the face of the note, was never challenged by the plaintiff during the 15 years it made payments, and was affirmed in the 1973 letter. There was thus sufficient evidence for the trial court to conclude that the true intent of the parties was to secure an $85,000 loan at 5^2% interest for 15 years, justifying reformation of the instruments to reflect the correct monthly payment as $694.60.

The judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE WEBBER

text:
    JESSIE M. ST. GEMME, Plaintiff-Appellant, v. ROGER L. TOMLIN, Defendant-Appellee.
    Fourth District
    No. 4—83—0218
    Opinion filed October 27, 1983.
    Rehearing denied November 14, 1983.

      Robert D. Owen and Leslie L. Veon, both of Owen, Roberts, Susler & Murphy, EC., of Decatur, for appellant.
    Richard F. Record, Jr., and Paul R. Lynch, both of Craig & Craig, of Mattoon, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff brought suit against the defendant in the circuit court of Coles County alleging dental malpractice. A jury returned a verdict in favor of the defendant, plaintiff’s post-trial motion was denied, and this appeal followed.

Four issues are raised: (1) manifest weight of the evidence; (2) error by the trial court in refusing admission of deposition testimony of plaintiff’s expert; (3) error in the instructions; and (4) error in defendant’s closing argument.

The basic facts are not controverted. Defendant practices general dentistry in Mattoon and was consulted by plaintiff for a general examination after her former dentist had died. She had not seen a dentist for several years prior to this first consultation. Defendant advised plaintiff that the third mandibular molar should be extracted. The tooth was tissue-impacted and extensively decayed. A preoperative X ray indicated that the apex of the root tip was close to, and possibly protruding into, the mandibular canal which contains the mandibular nerve. It also indicated that the tooth was probably ankylosed, that is, fused to the jaw bone, in certain areas. Left untreated in its condition, the tooth would have become infected and would pose a life-threatening situation. The only remedy was extraction, a difficult and complicated procedure.

One consequence of the operation is paresthesia, a change or loss of sensation in the lip. It occurs to some degree in 1% to 5% of the cases of extraction of all third molars and as high as 10 or 15% of the cases involving a tooth in the condition found here.

Defendant did not warn plaintiff of the potential paresthesia. It did ensue after the extraction, which occurred on April 25, 1978. Defendant left a portion of the root tip in place believing that it would be likely to cause less damage than that which might be caused by attempting to remove it. In September 1978 plaintiff consulted oral surgeons at the Christie Clinic in Champaign concerning her paresthesia. They reopened the surgical site and removed a calcified body which was probably the remnant of the root left by the defendant. The second procedure did not relieve the paresthesia, which is probably permanent.

Plaintiff filed a two-count complaint; count I alleged conventional malpractice under a theory of res ipsa loquitur; count II alleged failure to obtain an informed consent. At the conclusion of all the evidence plaintiff confessed a motion for directed verdict on count I and the case was submitted to the jury on count II.

The weight of the evidence issue resolves itself, as it nearly always does in these cases, into a duel of the experts with the jury electing to award the trophy to one of them. Plaintiffs expert was Dr. Richard Bianco, one of the treating oral surgeons from Christie Clinic. On the failure to warn question, he testified that the standard of care for a dentist about to perform the type of surgery here involved would require disclosure of the risk of post-operative paresthesia. Defendant’s expert was Dr. Zellers, a practicing dentist in Mattoon. It was established that he was a friend of the defendant and associated with him in a business venture. He stated that the prevailing practice in Mattoon in 1978 was not to warn of the possibility of paresthesia, although since then the practice had been changed, largely because of the instant suit and others like it. He was cross-examined from treatises which stated that where a molar is in close proximity to the mandibular nerve, the patient should be warned of paresthesia. He responded that other treatises have taken the opposite view. Thus was framed a question which a jury is mandated to answer: which one is to be credited with the weightier opinion. The answer here was in favor of the defendant. “ '*** A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. ***’ ” (Cochran v. Parker (1968), 91 Ill. App. 2d 56, 60, 233 N.E.2d 443, 445.) We cannot say here that the opposite conclusion is clearly evident.

The question of proximate cause may be more easily answered. In all but the most gross malpractice cases there must be expert evidence not only as to the negligence of the defendant but also as to a proximate causal connection between the negligence and the injury suffered by the plaintiff. (Eckley v. St. Therese Hospital (1978), 62 Ill. App. 3d 299, 379 N.E.2d 306.) This principle is applicable to failure-to-warn cases. (Green v. Hussey (1970), 127 Ill. App. 2d 174, 262 N.E.2d 156.) In the instant case the only evidence on this matter favorable to the plaintiff came from the plaintiff herself who testified that if she had known of the risk, she would not have submitted to the procedure. All of the expert evidence, both plaintiff’s expert and defendant’s experts, was to the contrary.

All of the experts testified that there was no reasonable alternative. Dr. Cooper, called as a defendant’s witness and who, with Dr. Bianco had treated plaintiff at Christie Clinic, testified that no reasonable person would refuse the treatment given. All agreed that within a short time the tooth would become abscessed and hence life-threatening.

We agree with the statement made by the Supreme Court of California:

“The patient-plaintiff may testify on this subject but the issue extends beyond his credibility. Since at the time of trial the uncommunicated hazard has materialized, it would be surprising if the patient-plaintiff did not claim that had he been informed of the dangers he would have declined treatment. Subjectively he may believe so, with the 20/20 vision of hindsight, but we doubt that justice will be served by placing the physician in jeopardy of the patient’s bitterness and disillusionment. Thus an objective test if preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils.” Cobbs v. Grant (1972), 8 Cal. 3d 229, 245, 502 P.2d 1, 11-12, 104 Cal. Rptr. 505, 515.

The plaintiff failed to meet her burden of proof on the question of proximate cause.

Plaintiff’s next issue concerns the exclusion of certain testimony given by deposition by Dr. Bianco. Plaintiff’s counsel was developing the standard of care in the context of failure to warn and an objection was lodged by defense counsel based, inter alia, on the locality rule. Plaintiff’s counsel then reframed his question, indicating that the locality should be assumed to be the States of Illinois and Indiana. The trial court excluded this portion of the deposition on the ground that the locality here was the Mattoon area. Plaintiff argues in this court that the locality rule, as followed by the trial court and as it exists in this State now, has become parochial in view of the development of medicine and surgery into international disciplines. There is authority for that proposition. (Compare Chamness v. Odum (1979), 80 Ill. App. 3d 98, 399 N.E.2d 238.) However much or little we may agree philosophically, we need not pursue the doctrine in this case.

Dr. Bianco’s further testimony, which was heard by the jury, was forceful and pointed. He stated that there should be a warning concerning possible post-operative paresthesia and this testimony was directed at the specific surgery here involved. The excluded testimony dealt with the extraction of third molars in general, and at best was cumulative. Error in the admission or exclusion of evidence is harmless if the facts involved are strongly established by other competent evidence. People v. Duckworth (1981), 98 Ill. App. 3d 1034, 424 N.E.2d 1337.

Plaintiff next complains about the use of Illinois Pattern Jury Instructions (IPI), Civil, Nos. 105.01, 105.05 (2d ed. 1971). Both were given by the trial court over objection by the plaintiff.

As to IPI Civil 105.01, plaintiff’s objection is to the use of the opening phrase, “In operating upon a patient ***.” She maintains that since the only issue which ultimately went to the jury was that of informed consent, this phrase should not have been used since it applies only to general negligence or res ipsa loquitur. We disagree.

The phrase may be read broadly enough to include both preoperative and post-operative procedures and should be so used. The balance of the instruction refers to “skill and care” on the part of the doctor which would necessarily include preoperative and post-operative procedures. Plaintiff’s attempt to place such a narrow focus on the language is ill-advised and carried to its logical extreme would require a plethora of instructions to the jury covering each and every step and phase of treatment individually.

In addition, as has been indicated, the trial proceeded on both res ipsa loquitur and informed consent. It was not until all the evidence had been heard that the res ipsa was taken out. The jury had heard a great deal of evidence concerning the operation and the skill and care of the dentist. Plaintiffs counsel also questioned that skill in closing argument. In view of that record, the jury could have been left to wonder what had happened. Even though the instruction was less than helpful, we fail to see how plaintiff has been prejudiced by it.

Plaintiff next complains about IPI Civil No. 105.05, which the trial court gave in a slightly modified form as follows: “A surgeon must obtain the consent of a patient before operating on her.” Plaintiff submitted, and was refused, the following: “A dentist must obtain the informed consent of a patient before operating on him.” In our opinion each of these is subject to the same quantum of vagueness and abstraction.

Plaintiff argues that there are four elements in an informed consent action which should be proved. Without passing on the validity of these elements, we observe that if plaintiff were so convinced at the time of trial, she should have submitted an instruction delineating that theory. If she did not, she cannot now be heard to complain that such an instruction was not given. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.

In our opinion the jury would not have been any more enlightened with plaintiff’s tendered instruction than with defendant’s given instruction.

Plaintiff’s final complaints relate to the defendant’s closing argument. Defense counsel argued to the jury that if the tooth had not been removed, it would have become infected and would then pose a life-threatening situation. Plaintiff’s counsel objected and was overruled and now argues that there was no evidence of infection; hence, it is claimed, the argument is not based on the evidence. While it is true that there was no evidence of infection at the time of surgery, all three experts were in agreement that it would shortly have ensued if the surgery had not been performed. Defense counsel’s argument was a fair inference from the evidence. Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770.

Plaintiff also complains that in a portion of defense counsel’s argument he misstated the law by suggesting that the defendant would have been negligent if, because of his warning, plaintiff would have elected not to have the surgery. We disagree.

A definitive statement as to how much a doctor should disclose to his patient is found in Miceikis v. Field (1976), 37 Ill. App. 3d 763, 768, 347 N.E.2d 320:

“A doctor has a special relationship with his patient. [Citation.] This relationship not only vests the doctor with the responsibility of disclosure, but also requires the doctor to exercise discretion in prudently disclosing information in accordance with his patient’s best interests. To disclose more than that which is material would run counter to the responsibility assumed through the doctor-patient relationship.”

Defense counsel’s argument found its predicate in this principle. We also note in passing that the argument was not objected to at the time. See Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196.

The judgment of the circuit court of Coles County is therefore affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE LINN

text:
    THE ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    First District (4th Division)
    No. 82—666
    Opinion filed September 29, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (H. Alfred Ryan, Assistant Attorney General, of counsel), for petitioner.
    Richard J. Kissel, Jeffrey C. Fort, and Roy M. Harsch, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for respondent Alburn, Inc.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Illinois Environmental Protection Agency (Agency), filed a direct appeal in the appellate court (Ill. Rev. Stat. 1979, ch. IlIVs, par. 1041) challenging the decision of the Illinois Pollution Control Board (Board) to remove several conditions from the construction and operating permits the Agency had issued in September 1980 to Alburn, Inc., operator of a liquid waste incinerator in Chicago, Illinois. The Agency contends that the Board’s decision to remove the permit conditions was against the manifest weight of the evidence; the Board argues in response that the Agency’s action in imposing the conditions was unreasonable and unnecessary to prevent air pollution.

We reverse the decision of the Board and reinstate the two conditions that the Agency here argues were properly imposed on the September 1980 permits issued to Alburn, Inc. Because the Agency does not present specific arguments for the reinstatement of several of the remaining conditions, we do not include those conditions in our deliberations.

Facts

The liquid waste incinerator that is the subject of this controversy was constructed in 1974 and has been operating under an Agency permit scheduled to expire on December 3, 1979. During the permit period, operation of the facility was taken over by Alburn, Inc., although there is no record that the permit was transferred to the subsequent operator. When Alburn applied for a renewal of this operating permit, the Agency decided that because of the change in operators as well as the various modifications made to the facility, the detailed information usually requested on new permit applications would be required.

After meeting with representatives of Alburn early in 1980, the Agency twice requested and received additional information. Although Alburn forwarded to the Agency various diagrams, flow charts, descriptions of its waste tanks, and an “operating procedures manual” prepared by an earlier owner, the Agency found these to be of little value for permit issuance purposes. Alburn’s own consulting engineer admitted that the submitted plans were inadequate for a complete and accurate review of Alburn’s ability to comply with the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1979, ch. IIIV2, par. 1001 et seq.) and the regulations developed by the Board to implement the environmental control standards established by the Act. Ill. Rev. Stat. 1979, ch. IIIV2, par. 1005(b).

Consequently, in February 1980, the Agency denied Album’s request for an operating permit. Instead, it issued a construction permit allowing Alburn limited operation subject to several conditions designed to ensure compliance with the Act while maintenance and operating procedures were developed, testing was conducted, and modifications were made to the facility to enable Alburn to meet emission standards determined by the Agency to be applicable to Al-burn’s incinerator. The permit itself was issued only after Alburn guaranteed that even though it could not produce sufficient detailed information to meet the Agency’s requirements, “the emission source and control equipment would comply with all applicable standards.” Nevertheless, a stack test conducted June 2, 1980, resulted in emissions exceeding the limits established in Rule 203(e)(3) of the Board’s rules and regulations. Illinois Pollution Control Board Rules and Regulations, ch. 2: Air Pollution (1970).

On September 9, 1980, in an effort to accommodate Alburn’s business needs, the Agency issued short term construction and operating permits containing the contested conditions, which were designed to ensure Alburn’s compliance with the Act and applicable regulations while further information about the facility was gathered. Alburn promptly filed an appeal with the Board, and on May 1, 1981, obtained a stay of conditions. Hearings were held before the Board in July and August, 1981; on February 17, 1982, the Board ordered the removal of several of the contested conditions on the grounds that the Agency (1) inappropriately applied the emission standard of Rule 203(e)(3) to the Alburn incinerator, and (2) failed to recognize Alburn’s capacity to blend wastes. The Agency appeals from the Board’s order.

Opinion

I

We first address two procedural issues raised by the Board: (1) whether the Board’s order removing the permit conditions was final and appealable, and (2) whether the Agency’s failure to appeal a 1976 Board decision declaring Rule 203(e) inapplicable to liquid waste incinerators may be used collaterally to estop the Agency from relitigating that same issue in any subsequent case. The Board first claims that because its order removing the challenged conditions also remanded the permits for Agency revision and did not terminate the Agency’s duty to impose conditions effecting the purposes of the Act (Ill. Rev. Stat. 1979, ch. HV-k, par. 1039(a)), it was not an “order *** which terminates the proceedings before the administrative agency” (Ill. Rev. Stat. 1979, ch. 110, par. 264) and therefore did not quality as a final judgment appealable under the authority of Supreme Court Rules 335 and 301. 73 Ill. 2d Rules 335, 301.

Section 41 of the Act (Ill. Rev. Stat. 1979, ch. HV-1%, par. 1041) grants to “[a]ny party to a Board hearing” the right to judicial review of any order, determination, or other final action of the Board. Section 40 of the Act (Ill. Rev. Stat. 1979, ch. lll1^, par. 1040) requires the Agency to appear as respondent in an action before the Board to contest the Agency’s denial of an operating permit; for purposes of review, the imposition of conditions is regarded as a permit denial. (Rule 103(k), Illinois Pollution Control Board Rules and Regulations, ch. 2: Air Pollution (1970).) The Agency, having been made a party to the action before the Board, may seek review of a Board decision that arguably impinges on the Agency’s authority to determine whether or not a specific applicant is entitled to a permit. (Ill. Rev. Stat. 1979, ch. lllVa, pars. 1004, 1039; Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258.) We find that to be the case here, and therefore we conclude that the present case is properly before us on appeal.

II

The second procedural issue raised by the Board is based on its claim that because the Agency failed to appeal an earlier Board decision refusing to apply certain emission standards to liquid waste incinerators, the Agency will be estopped from appealing the same issue in any subsequent case. We find the precedent cited by the Board as authority for its position to be inapplicable to the instant case.

In Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 398 N.E.2d 9, the supreme court held that in the interest of preventing multiplicity of litigation, collateral estoppel can be used to dismiss an appeal when the current appellant had litigated unsuccessfully the identical issue in an earlier case and in that instance had decided against further appeal. The crucial factor distinguishing Illinois State from the instant case is that here, the Agency is appealing to the appellate court from a decision of an administrative agency, while in Illinois State, the issue concerned the estoppel effect of an earlier Board decision not to appeal to the Illinois Supreme Court from an adverse decision of the Third District Appellate Court. As a consequence of that decision, the supreme court declared, “Once the Board’s right to appeal the appellate court’s Ashland Chemical decision expired, that court’s resolution of the issues became final, and the Board could no longer maintain this appeal.” (78 Ill. 2d 1, 7-8, 398 N.E.2d 9, 12.) However, the Board’s loss of its right to appeal to the supreme court from a decision of the appellate court has no bearing on the Agency’s right to appeal to the appellate court from a Board decision.

Aside from the limited types of cases guaranteed an appeal to the supreme court as a matter of right (73 Ill. 2d R. 317), petitions for leave to appeal to the supreme court are granted as “a matter of sound judicial discretion.” (73 Ill. 2d R. 315.) In contrast, the Agency has an unqualified statutory right to judicial review of an adverse Board decision. (Ill. Rev. Stat. 1979, ch. IIIV2, par. 1041.) If we were to hold Illinois State applicable to administrative orders and determinations, one failure to appeal would result in a given issue being shielded forever from judicial review. Obviously, such a result would be untenable, having no support in any case law or statutory authority. We therefore find that the Board may not collaterally estop the Agency from pursuing its right to appeal from a Board decision.

III

Turning now to the substantive issues of the case, we initially note that although the Agency broadly categorizes its appeal as one from all the conditions removed by the Board, its arguments and conclusions focus on two crucial conditions included in the operating permit, both of which were designed to ensure Alburn’s compliance with the particulate emission standards of Rule 203(e)(3). In addition, one condition the Agency "wishes to reinstate requires each individual waste stream accepted by Alburn to meet the same Rule 203(e)(3) standards, thus preventing Alburn from blending various waste streams.before burning. The threshold issue we must address, therefore, is whether the particulate emission standards of Rule 203(e)(3) apply to Alburn’s incinerator. If they do, then the Agency’s imposition of those conditions was a valid exercise of its permit-issuing authority under section 39 of the Act. (Ill. Rev. Stat. 1979, ch. IHV2, par. 1039.) If they do not, then the Board was correct in holding those conditions to be unreasonable and in removing them.

The appropriate standard for review of Board decisions depends on whether the Board was acting in a quasi-legislative or quasi-judicial capacity. (Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684.) When the Board reviews a denial of a permit, usually it is acting in a quasi-judicial capacity, for which the appropriate standard for appellate court review is the manifest weight of the evidence. (Getty Synthetic Fuels, Inc. v. Pollution Control Board (1982), 104 Ill. App. 3d 285, 432 N.E.2d 942.) However, “[although the present case involved an appeal from the denial of a permit, it presented the Board with a question of defining the scope of the emission standards. ***[T]his function of defining the scope of the emission standards is a quasi-legislative act.” Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 400, 427 N.E.2d 162, 167.

The Board argues that because the Agency applied the allegedly inappropriate particulate emission standards of Rule 203(e)(3) to Al-burn’s incinerator, the Board’s decision to remove the conditions defined the scope of the standards and thus became a quasi-legislative act, to be upheld by this court unless “clearly arbitrary, unreasonable or capricious.” (86 Ill. 2d 390, 402, 427 N.E.2d 162, 167.) However, we find the Board’s order removing the conditions to be impermissible under either standard.

First, the Board maintains that the Agency acted unreasonably in applying the Rule 203(e)(3) standards to Alburn’s incinerator because the Board had settled the issue with finality in its 1976 case, Hyon Waste Management Services, Inc. v. Environmental Protection Agency (1976), 24 Ill. P.C.B. Op. 427. In that case, the Board held that liquid waste incinerators did not have to comply with the particulate emission standards of Rule 203(e), which reads in pertinent part,

“(é) Particulate Emission Standards and Limitations for Incinerator.
(2) No person shall cause or allow the emission of particulate matter into the atmosphere from any incinerator burning more than 2000 pounds of refuse per hour to exceed 0.08 grains per standard cubic foot of effluent gases corrected to 12 percent carbon dioxide.
(3) No person shall cause or allow the emission or particulate matter into the atmosphere from all other existing incinerators to exceed 0.2 grains per standard cubic foot of effluent gases corrected to 12 percent carbon dioxide.” Illinois Pollution Control Board Rules and Regulations, ch. 2: Air Pollution, Rule 203(e)(2), (3).

The Board’s reasoning in Hyon was based in part on the definitions of “incinerator,” “waste,” and “refuse” found in the Board’s rules and regulations. All three words were interpreted according to their definitions when the Environmental Protection Act was enacted, i.e., referring to solid waste only. The Board rejected intervening legislative redefinitions of “waste” and “refuse” to include liquid waste, reasoning that because the definition of “incinerator” had not been changed, the definitions of the other two words were restricted to their meanings at the time “incinerator” was defended by the Board. The other reason given by the Board for its decision in Hyon was that Hyon had argued persuasively that the 12% correction factor was inappropriate for the type of liquid waste Hyon proposed to burn. The Agency, however, now argues that Hyon is no longer dispositive of the issue of the applicability of Rule 203(e) to liquid waste incinerators. We agree with the Agency.

Of the several reasons presented by the Agency to support its application of the Rule 203(e) standards to Alburn’s incinerator, we find one to be persuasive: in a 1979 regulation amending Rule 203(e)(4), the Board itself held the rule applicable to a liquid waste incinerator, thereby reversing sub silentio its earlier holding in Hyon. (In re Particulate Emission Standards for Combustion of Low Carbon Wastes, R77—5 (1979), 32 Ill. P.C.B. Op. 403.) Before the decision in R77—5, Rule 203(e)(4) read as follows:

“No person shall cause or allow the emission of particulate matter into the atmosphere from all other new incinerators to exceed 0.1 grains per standard cubic foot of effluent gases corrected to 12 percent carbon dioxide.”

In its petition to amend Rule 203(e)(4), Addressograph-Multigraph Corporation argued that when the 12% correction factor was applied to the emissions from its liquid waste facility, the number of particulates in the effluent gases was exaggerated; a correction factor of 50% excess air would produce measurements accurately reflecting the incinerator’s emissions. The Board agreed and added the following qualification to Rule 203(e)(4), the wording of which is significant to this appeal:

“A. Rule 203(e)(4) shall not apply to aqueous waste incinerators which, when corrected to 50 percent excess air for combined fuel and charge incineration, produce stack gas containing carbon dioxide dry basis volume concentrations of less than 1.2 percent from the charge alone ***.”

Clearly, if Rule 203(e)(4) regulating new incinerators shall not be applied to those aqueous waste incinerators that use the 50% excess air correction factor and thereby comply with the standard, it shall be applied to all other new aqueous waste incinerators. By analogy, then, Rule 203(e)(3) also applies to liquid incinerators, because the only differences between (3) and (4) are the age of the incinerator regulated, the quantity of waste burned per hour, and the allowable particulate emissions. In its opinion accompanying the amendment, the Board stated, “Under the present Rule 203(e)(4) Petitioner [the liquid waste incinerator] must meet a particulate emission standard of 0.1 grains per standard cubic foot of effluent gases corrected to 12% carbon dioxide.” No clearer statement of the Board’s intent that Rule 203(e) apply to liquid waste incinerators could be made.

Nevertheless, when the Agency attempted to apply the standards of Rule 203(e) to Alburn’s permit application, which was filed only a few months after the decision in R77 — 5, the Board did an abrupt about-face and declared “[A]s in Hyon, the Board finds that Alburn is not bound by the Rule 203(e) particulate emission standards.” The Board then attempted to distinguish R77 — 5 by stating that even though it thereby "adopted a rule of statewide applicability amending the C02 correction factor” and that “the 50% correction factor would be appropriate for all incinerators,” Addressograph was the only known incinerator of its type at the time R77 — 5 was written; consequently, the entire amendment should be applied to only the one facility.

The Board continued,

“*** Alburn has not argued the inapplicability of the 12% correction factor to its incinerator, as did Hyon regarding 203(e)(2) and Addressograph regarding 203(e)(4). However, in view of the sweeping language in Hyon regarding the particulate standards, the Board believes that the drawing of such narrow, legalistic distinctions is not within the best interests of the Agency, the regulated community, or the public.”

While it is true that the Board’s interpretation of its own rule normally would be accorded great weight (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d. 498, 351 N.E.2d 875, “the Board’s apparently inconsistent construction of Rule [203(e)] *** prevents us from treating the Board’s interpretation of its own rule with the usual deference.” (Olin Cory. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 483, 370 N.E.2d 3, 6.) In view of the disagreement between the Board’s various interpretations of its Rule as well as its complete inability to present any persuasive reasons for refusing to follow its own language in the amended rule and in the opinion explaining the amendment, we find the Board’s action declaring Rule 203(e) inapplicable to Alburn’s incinerator to be unreasonable, arbitrary, and capricious. We therefore restore to Alburn’s operating permit the conditions designed to ensure compliance with Rule 203(e)(3).

IV

The last issue raised by the Agency is whether the Board erred in removing the condition that prevented Alburn from blending wastes before burning them. The Agency argues that the information supplied by Alburn was insufficient to demonstrate to the Agency that Alburn had developed a blending protocol that would result in incineration emissions conforming to applicable standards. Therefore, the Agency required Alburn to burn wastes as received, each delivery to be accompanied by documentation of results of a test burn. The Board declared this condition unreasonable. We disagree.

The sole question before the Board in a review of the Agency’s denial of a permit is whether the petitioner can prove that its permit application as submitted to the Agency establishes that the facility will not cause a violation of the Act. (Ill. Rev. Stat. 1979, ch. IllV2, par. 1040.) If the Agency has granted the permit with conditions to which the petitioner objects, the petitioner must prove that the conditions are not necessary to accomplish the purposes of the Act and therefore were imposed unreasonably. The Board may not be persuaded by new material not before the Agency that the permit should be granted. (Soil Enrichment Materials Corp. v. Environmental Protection Agency (1972), 5 Ill. P.C.B. Op. 715.) When reviewing the Agency’s denial of a permit or imposition of any conditions, “the decision of the Board shall be based exclusively on the record before the Agency including the record of the hearing, if any ***.” Ill Rev. Stat. 1981, ch. IllV2, par. 1040; Peabody Coal Co. v. Environmental Protection Agency (1979), 35 Ill. P.C.B. Op. 379, 380.

As noted earlier, Alburn’s own engineer admitted that the submitted information concerning blending was inadequate to inform the Agency of Alburn’s blending capability; the only information supplied was a chart of the facility containing a box labelled “Blending Tanks”; no description of the blending process was supplied because no protocol had been developed. The February 17, 1982, order of the Board removing the conditions from Alburn’s permit stated that (1) Alburn’s waste-blending capabilities had been developed since the filing of the application, (2) the Board expected the Agency to revise the remanded permits in light of factual information developed after the filing of the 1980 permit application, and (3) “the Agency’s most proper action in 1980 would have been to deny the operating permit and to issue a construction permit of longer duration.” Finding the issuance of a four-month operating permit to be an “unsound exercise of the Agency’s permitting discretion,” “[t]he permit to operate should not have been issued until information gaps had been closed to the Agency’s satisfaction.”

Given these clear indications that the Board removed the permit conditions in reliance on subsequently acquired information not available to the Agency and therefore not properly in the record, we find that Alburn had not met its burden of proof in its permit application, and the Board therefore erred in removing the conditions imposed by the Agency to ensure Alburn’s compliance with the Act during the time needed to improve and test the incinerator and prepare a thorough description of the facility’s operation.

For all of the reasons discussed above, we find that the Agency’s decision to impose conditions on Album’s operating permit was not against the manifest weight of the evidence, and the Board’s refusal to apply the particulate emission standards of Rule 203(e)(3) to Al-burn’s liquid waste incinerator was unreasonable, arbitrary and capricious. Accordingly, we reverse the decision of the Board and reinstate the permit conditions imposed by the Agency.

Reversed.

ROMITI, P.J., and JIGANTI, J., concur.


author: PRESIDING JUSTICE ROMITI

text:
    CASE PRESTRESSING CORP. et al., Plaintiffs, v. CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE et al., Defendants-(George A. Fuller Company, Defendant and Third-Party Plaintiff-Appellant, v. Chicago College of Osteopathic Medicine et al., Third-Party Defendants-Appellees).
    First District (4th Division)
    No. 82—2887
    Opinion filed September 29, 1983.
    Rehearing denied November 10, 1983.

      Wildman, Harrold, Allen & Dixon, of Chicago (Robert E. Kehoe, Jr., of counsel), for appellant.
    Thomas A. Foran, Stephen A. Gorman, Jeff D. Harris, and Jeffrey C. Blumenthal, all of Chicago (Foran, Wiss & Schultz, of counsel), for appellee Chicago College of Osteopathic Medicine.
    Frank M. Covey, Jr., John R. Doyle, and Barbara J. Leff, all of Chicago (McDermott, Will & Emery, of counsel), for appellee Schmidt, Garden & Erikson.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Third-party plaintiff-appellant George A. Fuller Company (Fuller) was the contractor on a project for Chicago College of Osteopathic Medicine (the college). Schmidt, Garden & Erikson was the architect (the architect.) After completion of the project, the college sued Fuller in Federal court for breach of contract; Fuller counterclaimed against the college for breach of contract and filed a claim against the college for breach of contract and filed a claim against the architect for causing it to suffer delay damages. Claims relating to damages suffered by subcontractors were withdrawn from the case by stipulation and demand of the college and the architect. The jury returned verdicts for all defendants on all the claims. Thereafter, one of the subcontractors filed a claim in State court against Fuller for damages resulting from being delayed in performing its subcontract work. Fuller then filed this third-party action against the college and the architect. The trial court dismissed on grounds of collateral estoppel and apparently res judicata and also indicated that it believed the third-party complaint did not state a cause of action. It denied a motion for leave to amend the complaint because of its belief that the State action was barred by the prior Federal action. We reverse, holding that the State action is not barred since the parties withdrew the claims in question and in light of the general verdict there is no specific finding upon which a holding of collateral estoppel could be based. Since it appears from the record that the trial court would otherwise have allowed the motion to amend the complaint, we remand the case to the trial court for further proceedings including the desired amendment of the complaint. However we believe that the present complaint does state a valid cause of action against the owner.

The college filed its suit in Federal court in 1975 seeking damages for Fuller’s alleged breach of construction contract. Fuller, as already noted, filed a counterclaim against the college and a third-party claim against the architect. It claimed that due to alleged breaches of the construction contract by the college and the negligent acts, errors, omissions and breaches of contract by the architect, it was delayed and hindered in its contract; and was damaged in the amount of $1,992,944. Initially, one of its claims was that due to defendants’ conduct it might be liable to subcontractors. Fuller also filed to foreclose its mechanics’ lien. Accordingly, as required by law, all other lien claimants were joined as additional counterdefendants and they, in turn, filed their lien claims. It was provided by stipulation that the claims of Fuller, the college and the architect among themselves would be tried before a jury and that thereafter the issue raised by the subcontractor claims would be tried by the court. Thereupon counsel for the college and the architect demanded that:

“I also think that some of the claims that are contained in there are some of the subcontractors’ claims which we are going to hear in the next portion of the trial, Mr. Hoffman, Mr. Reliable, and therefore those should not be included in any damage claim by Fuller. Those are going to be adjudicated in the subsequent hearing.”

Therefore it would appear that the issue of Fuller’s potential liability as it related to subcontractors was not submitted to the jury. The jury returned general verdicts for all the defendants on all the claims.

Reliable Welding, the subcontractor involved in the action, withdrew its claim and refiled it in the State court. One subcontractor, Hoffman, did proceed to a bench trial in the Federal court. The trial court found all three parties, Fuller, the college and the architect to be responsible for the delays as to Hoffman. Fuller’s conduct which caused the delay apparently consisted of instructing the subcontractor to remove the backfill which ordinarily would have been there. While the Federal court denied Fuller’s claim over against the college and the architect it did so only on the ground that following Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 240 N.E.2d 5, and Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, 321 N.E.2d 154, indemnity could not be had for contract damages. It did hold that the prior jury verdicts did not bar the contractor’s claim for indemnification.

After Reliable filed its claim for delay damages, Fuller filed its present action against the college and the architect. While the complaint against the college is quite lengthy and detailed it is accurately summarized by defense counsel: “If we [Fuller] are liable to Reliable, it’s because the college breached its contract with us,” that is, any delays were the direct and proximate result of the college’s acts in breach of its contract with Fuller and not due to any active conduct by Fuller. Fuller’s claim against the architect seems to be based both on the college’s contract with Fuller, to which it does not appear the architect was a party, and in tort based solely on a general duty to exercise due care to avoid harming the interests of Fuller and its subcontractors.

I

The doctrine of collateral estoppel bars the litigating of the same issue twice. But it is only applicable when the issue was actually and necessarily litigated and determined in the first actions. (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App. 3d 516, 437 N.E.2d 1253; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831; Pipitone v. Mandola (1962), 33 Ill. App. 2d 461, 180 N.E.2d 33.) In order for a former judgment to operate as an estoppel, there must have been a finding of a specific, material and controlling fact in the former case and it must conclusively appear that the issue of fact was so in issue that it was necessarily determined by the court rendering the judgment; if there is any uncertainty because more than one distinct issue of fact was presented, estoppel will not be applied. (Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 44 Ill. 2d 73, 254 N.E.2d 467; Haack v. Lindsay Light & Chemical Co. (1946), 393 Ill. 367, 66 N.E.2d 391; Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831; Siebach v. Pienta (1978), 60 Ill. App. 3d 645, 377 N.E.2d 393.) Thus where, as here, issues of both liability and damages are sent to the jury and the jury simply returns a general verdict, estoppel will not be applied since it is not certain whether the jury found against plaintiff on liability or on damages or both. Fountas v. Breed (1983), 118 Ill. App. 3d 669; Stephan v. Yellow Cab Co. (1975), 30 Ill. App. 3d 996, 333 N.E.2d 223.

II

Normally where the parties and causes of action are the same in the two lawsuits, the claimant is barred by the doctrine of res judicata from raising those matters relating to the same cause of action which were raised or which might have been raised and determined in the first suit. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 387 N.E.2d 831.) Defendants contend that the same cause of action was involved in both cases in that they arose out of a single group of operative facts (Baird & Warner); namely, whether they breached the contract causing delay and thereby injuring Fuller. Fuller, on the other hand, correctly points out that more than one action may arise from contract (Baird & Warner; Turzynski v. Liebert (1976), 39 Ill. App. 3d 87, 350 N.E.2d 76), and of course the issue in the present case is not whether, as in the Federal trial, the contract was breached in such a fashion that Fuller was injured but whether it was breached in such a way as to render Fuller liable to Reliable. We need not, however, decide if this distinction is sufficient to give rise to a separate cause of action. It seems clear that where the parties agree to withdraw a particular claim from determination, the doctrine of res judicata will not be applied to bar its later litigation. (Baron v. Coronet Insurance Co. (1977), 47 Ill. App. 3d 95, 361 N.E.2d 799; Schmisseur v. Rebhan (1938), 294 Ill. App. 172, 13 N.E.2d 627.) That is precisely what occurred in the Federal court. Not only did the parties stipulate that issues raised by the subcontractors’ claims would not be tried by the jury, but counsel for the college and the architect demanded that Fuller’s claims based on its potential liability not be included in any damage claim of Fuller going to the jury as those would be adjudicated in the subsequent hearing. Fuller may not be entitled to two days in court but it is entitled to one and to date it has not, as to particular claims, had an opportunity to litigate its rights.

Ill

The modern tendency in Illinois is to try to lace the ultimate liability for a loss in whole or in part where logic suggests such liability really belongs — usually against the more negligent party or parties. (See, for example, discussion in Kissel, Developments in Third Party Practice—Contribution and Indemnity, 71 Ill. B.J. 654 (1983).) Defendants claim that Fuller’s complaint cannot state a cause of action because:

(a) Fuller’s own conduct precludes indemnification as a matter of law;
(b) as a matter of law, absent an express indemnification agreement, a stranger to a contract cannot be required to indemnify one of the parties to that contract for damages arising out of a breach of that contract;
(c) Fuller cannot assert a breach of contract claim against the architect because the architect owed no contractual obligations to Fuller.

(a)

Fuller’s complaint alleged that any losses were not the result of any active conduct of Fuller but were due to the college’s and architect’s acts and omissions. The defendants do not contend that these allegations are insufficient to set forth a claim for recovery by a passive wrongdoer over against an active wrongdoer. Rather they contend that the claim is barred by the Federal court’s finding that Fuller as well as the college and the architect were guilty of delays against Hoffman. This contention is without merit for two reasons. First, the only cited conduct of Fuller causing delay toward Hoffman was peculiar to Hoffman — the giving of instructions to remove the backfill. It is not related to the question whether Fuller was guilty of actively delaying Reliable, a totally different party doing different work. Second, the Federal court did not measure the magnitude of the conduct of the parties and determine that one was active, one passive or both were active. Rather it denied indemnification for a totally different reason.

(b)

Defendants rely on Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 240 N.E.2d 5, and Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, 321 N.E.2d 154, for their contention they cannot be held liable for the damages sustained for breach of the Fuller-Reliable contract. In Duffy a school board sued the architect for breach of contract in connection with the design of a high school building and the supervision of the construction. The architect sued the allegedly negligent contractor for breach of contract, the negligence claim being barred by the statute of limitations. However since there was no contractual relationship between the architect and the contractor, the suit was dismissed. Likewise in Talandis, a general contractor sued the building authority for breach of contract resulting in additional costs. The authority claimed over against the board of trustees of the University of Illinois, claiming it caused the delays. This suit could only, under law, be brought in contract but there was no allegation the university had breached any contractual duty it owed to the building authority. The complaint was dismissed.

Unlike Duffy and Talandis, here there was a contractual relationship between Fuller and the college and Fuller is claiming damages because the college allegedly breached that contract. A person breaching a contract can be held liable for such damages as may fairly and reasonably be considered as naturally arising from the breach thereof in light of the facts known or which should have been known or such as may reasonably be supposed to have been within the contemplation of the parties as a probable result of a breach thereof. (Sheppard v. Fagan (1981), 94 Ill. App. 3d 290, 418 N.E.2d 876; Carlson v. Collander (1970), 126 Ill. App. 2d 236, 261 N.E.2d 817; 15 Ill. L. & Prac. Damages sec. 33 (1968).) Here it was certainly foreseeable that if the owner was guilty of delays prohibited by the owner-Fuller contract, the owner’s conduct would cause a chain reaction delaying subcontractors and rendering Fuller liable on its own contracts with the subcontractor. When a contract is breached the injured party is, insofar as it is possible to do so by a monetary award, entitled to be placed in the position he would have been in had the contract been performed. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081; Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 386 N.E.2d 890.) If Fuller is not indemnified for any liability it suffers solely because of delays forced on it by the college, then it has not been put in the position it would have been in had the contract been fully and properly performed.

(c)

The architect’s contention that it owed no contractual obligation to Fuller is at least to some degree irrelevant since the claim was in both contract and tort and under Gateway Erectors v. Lutheran Hospital (1981), 102 Ill. App. 3d 300, 430 N.E.2d 20, it would appear the architect had a duty to the general contractor to avoid negligently causing extra expenses for the contractor in the completion of a construction contract. We agree with the architect that absent proof that the architect affirmatively bound itself not only to the college but to Fuller there would be no liability in contract. (Gateway.) While the complaint is insufficient to allege such a claim as it stands, we believe that since Fuller had previously sought to amend the complaint and the trial court apparently denied the motion only because it found the claim barred by res judicata, the better course is to remand to allow such amendment. We would note that to the extent the complaint relies on a written contract to establish a duty or a claim, whether the claim is in contract or tort, it must set forth all of the relied upon and referred to provisions of the contract or contracts in its complaint or attach them to the complaint as an exhibit. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 606.

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

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE GOLDBERG

text:
      In re MARRIAGE OF JANICE M. CABAJ, Petitioner-Appellee, and JAMES N. CABAJ, Respondent-Appellant.
    First District (1st Division)
    No. 82—2549
    Opinion filed October 17, 1983.

      Marvin A. Brusman and Stephen L. Baum, both of Chicago, for appellant.
    Boyle and Heiss, Ltd., of Chicago (Frederick P. Heiss, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

In this marital case, James N. Cabaj (respondent) appeals from a judgment for dissolution entered in favor of Janice M. Cabaj (petitioner). The parties were married on June 16, 1962. They have three children: James M., born March 29, 1970; Debra L., July 10, 1973; and Kimberly A., October 15, 1974. The only points raised pertain to the division of marital property and the allowance of attorney fees to petitioner’s counsel. The division of household assets was by agreement of the parties.

The parties lived in a jointly owned, six-room residence. An appraisal fixed the value of the premises at $81,000 subject to a mortgage of $15,011.20 with equity of $65,988.80. The mortgage is payable at $273.88 per month. The parties own a vacant lot in Florida jointly with petitioner’s parents. The value of the lot is $3,000.

The husband is employed with a gross annual salary of about $25,000. He has a net take-home pay of $16,883 per year. He thought his biweekly net pay was approximately $655. The wife was employed prior to the birth of the first child. But, she has not worked regularly for some years. She is employed as a part-time domestic, from which she realizes about $200 per month. She has written a book which has been accepted for publication. She anticipates an advance which may possibly be slightly over $1,500.

The children are apparently in good health, except the older girl has disabilities because of her bad vision and hearing, and she also has a speech problem.

The respondent has pension rights in connection with a former employment. He made contributions to the pension. A qualified actuary testified that the present cash value of the pension is $10,505.84. These pension payments are not available until respondent becomes 65 years old. He testified his checking account balance was $400 and that he has no other assets. He expressed the opinion that the health problems of the oldest daughter are improving. He presently owes his parents $2,000.

However, the respondent also has a serious problem with his vision. He has a disease of the eyes known as retinitis pigmentosis. He can no longer drive an automobile at night. In a motion filed by respondent’s counsel after the entry of judgment herein (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203), counsel for respondent represented that he had inadvertently overlooked a letter from an eye surgeon. This letter, appended to respondent’s motion, states respondent’s vision is quite limited and “he is legally blind.” The letter adds the prognosis is guarded and cannot be predicted.

The judgment for dissolution of marriage described the property, of the parties and ordered:

(1) Respondent is to pay petitioner $234 every two weeks as unallocated maintenance and child support until the death of respondent.

(2) Respondent is to receive his entire pension fund from his former employment ($10,505.84).

(3) Respondent is to receive all of petitioner’s one-half interest in the vacant land in Florida ($1,500).

(4) Respondent is to pay all extraordinary dental and health care for the minor children.

(5) Respondent is to pay a $2,000 debt due his parents.

(6) Respondent is also required to pay petitioner’s attorney fees in the amount of $2,355 and court costs at the rate of $35 per month.

Petitioner is awarded:

(1) The marital home as her own property.

(2) In addition, petitioner is to be responsible for the debt of $1,600 due her parents.

Upon hearing the post-trial motion filed by respondent, the trial court modified the judgment order by providing that the unallocated maintenance and child support which is to be paid to petitioner by respondent is to be reviewed by a judge of the domestic relations division upon the emancipation of the youngest child. An appropriate order regarding maintenance and child support, depending upon the then respective financial circumstances of the parties, is to be entered at that time.

I

Respondent first contends the disposition of marital property by the trial court was unjust as a matter of law and indicated a lack of discretion by the trial court. The gist of this argument is the fact that the trial judge awarded the family residence entirely to the petitioner.

Division of marital property is covered by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(b)). The objective of this statute “is to achieve a division of property which is in ‘just proportions/ ” In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 38, 411 N.E.2d 238.

Division of the marital property in just proportions does not necessarily limit the trial court to an equal division of the property. (In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 312, 401 N.E.2d 328.) It is generally held that the division of marital property is a matter of discretion with the trial court. (In re Marriage of Sales (1982), 106 Ill. App. 3d 378, 380, 436 N.E.2d 23.) In this connection it has been stated that this court should reverse the division of marital property by the trial court “only where ‘no reasonable man would take the view adopted by the trial court.’ ” In re Marriage of Pancner (1982), 111 Ill. App. 3d 546, 550, 444 N.E.2d 653, quoting In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126. See also In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 618, 434 N.E.2d 811.

Upon the application of these authorities, we have concluded that the distribution of property contained in the modified judgment appealed from should be affirmed with one additional modification. The disposition of property rights should also be modified with reference to the marital home. It may well be that this asset will be of great assistance to both parties in rearing the children. It does not appear wise to review the matters of maintenance and child support without also giving careful consideration to the ownership of the marital home and to its function in assisting the future life of the parties and their children.

This court has had occasion in the past to approve the allowance of a lien to one of the parties to make certain that upon disposition or sale of the property each of the parents should receive an equitable distribution. (See In re Marriage of Panozzo (1981), 93 Ill. App. 3d 1085, 1091-92, 418 N.E.2d 16.) In our opinion, the same theory should be applied to the case at bah

It is accordingly ordered and directed that the judgment appealed from be further modified by a provision that upon any sale of the marital home prior to the emancipation of the youngest child, the respondent shall have a lien upon the proceeds of such sale and shall receive therefrom 40% of the net proceeds. If said real estate remains unsold, the trial court shall reconsider a proper division thereof after emancipation of the youngest child at the same time that the court reviews the matter of maintenance and child support.

II

The next issue is the amount of attorney fees allowed to petitioner. Respondent first cites In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 276, 411 N.E.2d 947, to the effect that neither spouse may recover attorney fees from the other without proof that one is unable to pay the fees and the other does in fact have ability to make such payment. In the instant case, the record shows that respondent, by virtue of his superior income, is presently more financially able to pay the fees than is petitioner.

Counsel for petitioner filed a petition for fees with the trial court. The lawyer testified that his noncourt time was 24 hours for which he made a charge of $70 per hour; and nine hours of court time charged at $100 per hour. The total of the fees was computed at $2,580 plus $175 for court costs. Of this total of $2,755, $400 was paid to petitioner’s counsel by petitioner herself, leaving a balance of $2,355. After consideration of the entire record, the trial court allowed this balance to be paid by respondent at the rate of $35 per month. Under the rather unusual circumstances here, this court cannot say that these charges are reasonable and proper.

This court has specifically held that allowance of attorney fees is a matter of discretion and will not be lightly changed on appeal. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 599, 400 N.E.2d 56. See also In re Marriage of Keller (1982), 108 Ill. App. 3d 556, 561, 439 N.E.2d 44.

However, in the case before us the financial position of these parents is indeed precarious. Under the circumstances here shown, the cost of upkeep and education of the children of these parties will create a difficult burden upon both of them. Thus, although we are cognizant of the excellent services performed by counsel in this case, we believe that this court has no fair and reasonable alternative other than to make a reduction in the amount of attorney fees to be paid to petitioner’s counsel. This rests not upon the value of the services rendered by able counsel, but upon the unfortunate necessity of making certain that there will be sufficient funds available for support of the children.

In view of all of the unusual circumstances here, the judgment appealed from is further modified by reducing the total attorney fees and costs to be paid by respondent to petitioner’s attorney to $1,500 to be paid by respondent at the rate of $35 per month.

As modified in accordance with this opinion, the judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.