text:
      In re MARRIAGE OF ANN LEVI LEGGE, Petitioner-Appellee and Appellant, and JOHN W. LEGGE, Respondent-Appellant and Appellee.
    Fourth District
    Nos. 4—82—0198, 4—82—0370 cons.
    Opinion filed December 15, 1982.

      Robert Broverman and Kenneth Podeschi, both of Robert Broverman, P.C., of Taylorville, for John W. Legge.
    John R. Keith and John L. Swartz, both of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, and Diane L. Brunton, of Carlinville, for Ann Levi Legge.
   JUSTICE LEWIS

delivered the opinion of the court:

This is a consolidated appeal from two orders entered by the circuit court of Macoupin County in a dissolution of marriage proceeding. Respondent appeals from the property division order, contending that a portion of the value of the marital home should have been assigned to him as his nonmarital property and that in any event, the award of the parties’ entire interest in the marital home to petitioner was an abuse of the court’s discretion. Petitioner appeals from an order dismissing her request for directions as to the payment of taxes and insurance premiums on the marital home during the pendency of this appeal and dismissing her motion for an award of attorney fees for defense of this appeal.

The evidence discloses that the parties were married on August 18, 1973. Two children were born of the marriage, who were ages seven and three at the time that the instant dissolution of marriage proceeding was initiated.

Respondent is employed as a professor of mathematics at Blackburn College. His annual salary is approximately $21,994 and his take-home pay is about $1,228 per month. Over the past 11 years, respondent has also served as a part-time instructor at Lincoln Land Community College, where he earned $800 to $1,000 per semester. It is unlikely, however, that respondent will be able to obtain such part-time employment in the future.

During the course of the marriage, petitioner worked as a part-time bookkeeper, earning approximately $1,200 to $1,500 per year. She also worked as a part-time waitress while respondent was in Scotland on a sabbatical during the first half of 1978. At present, the petitioner is employed full time by the Central Illinois Steel Co. at a net weekly salary of $141. She also continues to do bookkeeping work on a part-time basis. Her 1980 gross earnings from the bookkeeping work were approximately $1,445.

When the parties were first married, they lived in an apartment in Carlinville until they purchased their first home in 1974. This home, which was owned in joint tenancy, was later sold for $32,800 and the proceeds applied to a new home which the parties constructed themselves on a lot which was owned by them as joint tenants with the right of survivorship and was first occupied by them in 1980. At the time the dissolution proceedings were initiated, the new home had an appraised value of $76,000, with an outstanding mortgage of $26,400. The monthly mortgage payments are $267.35.

The parties planned the new home together and performed a substantial amount of the construction work themselves. The petitioner helped prepare the floor plans and helped prepare and set the forms for the basement. She also assisted with the painting and roofing, helped finish the concrete work, and did most of the sanding and taping of the drywall and staining of the outside doors and interior baseboards. Furthermore, she prepared meals for all of the construction workers, which included members of both parties’ families and their friends. Petitioner also contributed a $2,200 inheritance to the purchase of furnishings and construction materials for the home. Respondent prepared the blueprints for the home, engineered the electrical and plumbing systems, and personally supervised the construction on a daily basis by preparing work schedules for the construction crew. In addition, he devoted much physical labor to most aspects of the construction.

During the course of the marriage, the following amounts, which respondent contends constituted loans, were given him by his father

and expended for the purposes indicated:

Date Amount Amount Repaid Use

February, 1974 $5,000 $1,000 Downpayment on first home

June, 1979 6,800 0 Purchase of lot for new home

August, 1979 5,000 5,000* Construction materials for new home

September, 1979 3,000 3,000* Construction materials for new home

September, 1980 1,000 0 Landscaping for new home

*Repaid from proceeds of mortgage loan on second home. Respondent’s father also gave $5,000 to respondent’s sister in February 1979. From respondent’s father’s viewpoint, this amount was given to his daughter for any particular purpose or use. While petitioner did not recall the transfer of $5,000 to respondent at that time as being a loan, respondent’s sister and father testified that this transaction was a loan. There was, however, no written loan agreement; no interest was charged; and there was no agreement as to a repayment date. According to respondent and his father, the $6,800 which respondent received in June 1979 for the purchase of a lot for the new home was also a loan. Respondent’s sister again received a like amount at the same time. The funds were purportedly given her for use as a downpayment on a home, but she did not purchase a residence until the summer of 1981 when she bought a mobile home for $10,000. She has not repaid any portion of the sums which she received in February 1974 or June 1979, although she eventually intends to repay these amounts to her father or have him come to live with her. Respondent, however, stated that the parties’ second home was specifically designed so that his father could live there when he was no longer able to care for himself. According to petitioner, she offered to repay the $1,000 received from respondent’s father in September 1980, but he refused to accept a repayment.

The parties agreed to a division of most of their personal property. The record contains little evidence as to the value of the property, but it appears that petitioner received a slightly larger share thereof than did respondent. (Respondent contended that petitioner received 70% of the household items.) Most of the items which petitioner received were of a type which would be useful to her in providing a home for the parties’ children. The parties also agreed that petitioner would receive a 1974 Hornet automobile valued at $900, and respondent a 1978 Volkswagen Rabbit worth $3,100. The only personal property in dispute was a Rockwell collection, a Masonic ring, and a dresser and bed in one of the children’s bedrooms. The court found that the entire Rockwell collection, with the exception of four pieces, was petitioner’s nonmarital property, which she had received as gifts from persons other than respondent during the marriage, and accordingy awarded that portion of the collection to her. The remaining four pieces were awarded to respondent. The Masonic ring was also awarded to petitioner, subject to respondent’s right to use it until completion of his term as an officer of the Masonic lodge. The dresser and bed were awarded to respondent. The right to control two savings accounts, one of which was in the name of each of the parties’ children, was also disputed, and the court awarded each party the right to control one of the accounts. The petitioner was awarded the marital residence, subject to the outstanding mortgage, and was ordered to hold respondent harmless for the amount thereof. Petitioner was also awarded custody of the parties’ children subject to visitation rights on the part of respondent. Finally, respondent was ordered to provide petitioner with child support in the amount of $320 per month. Neither party was awarded maintenance or attorney fees.

I

We first consider respondent’s contention that a portion of the value of the marital home should have been allocated to him as his nonmarital property. As a basis for this contention, respondent relies principally on the considerable amount of physical labor which he devoted to the construction and planning of the home and his use of the money which his father gave him for the acquisition of the land on which the home was located and the construction and landscaping of the home. Section 503 of the Illinois Marriage and Dissolution of Marriage Act (MDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 503) provides in pertinent part:

“(a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘nonmarital property’:
(1) property acquired by gift, bequest, devise or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) the increase in value of property acquired before the marriage; and
(7) property acquired before the marriage.
(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.”

Recently, in In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635, our supreme court rendered a definitive interpretation of the scope of subsection 503(a)(2) of the MDMA in the context of the use of nonmarital property for the acquisition of property held in joint tenancy by the parties to a dissolution of marriage proceeding. The court held that a marital home owned in joint tenancy is presumed “in fact” to be marital property, even if one spouse provided all the consideration for it from nonmarital funds. (85 Ill. 2d 217, 223, 422 N.E.2d 635, 638.) In our view, respondent has not overcome the presumption that he did not intend to retain any portion of the amount which he contributed toward acquisition and construction of the parties’ marital home as his nonmarital property.

Respondent first alleges that evidence that the second home was specifically designed so that it could accommodate his father when he was no longer able to care for himself (in that it had extra wide halls and exterior ramps designed to accommodate a wheelchair) supports the proposition that the money received from respondent’s father which has applied to the construction of the home and acquisition of the land on which it is situated was provided respondent with the expectation that respondent’s father would be repaid for the money in the form of care at the parties’ home during his old age. Therefore, respondent contends that the presumption of marital property has been negated with respect to the unpaid amount of the purported loans. The short answer to this contention is that even if respondent was under a binding obligation to provide his father with care in his old age as a result of receiving this money, this would only be probative of what was expected of respondent in exchange for this money; it would not be indicative of a desire on the part of respondent that the amounts received from his father and expended for purposes of the acquisition and construction of the marital home be segregated as respondent’s nonmarital property.

Respondent also points to the following testimony as support for his position that a portion of the value of the marital home is his nonmarital property:

“Q. John, do you remember having any conversation with Ann about your father and the loans that he had made and asking Ann a question and what does my dad get out of this?
A. [Respondent] Yes.
I specifically asked Ann, she trying for a divorce, I was trying for a reconciliation. I said Ann what’s my dad going to get out of all of this and she said he gets his money back if he wants it.
Q. When did you have that conversation?
A. I was standing at the front door of the house and she was on the first step.
Q. Was this the day she left?
A. No, it was about a week and a half later.”

It is rather apparent that the statement of petitioner to which respondent referred in the above testimony was made in the course of a heated discussion, and for that reason alone it is of very limited probative value. A more important reason, however, for the failure of the statement to overcome the presumption that the entire value of the parties’ marital home is marital property is that it is the intention of the parties at the time that marital property is converted into property held by them as joint tenants which is controlling vis-a-vis the status of the property. What the parties’ feelings are toward the property after its conversion into joint tenancy property is of no significance whatsoever. Even if the above statement of petitioner could be interpreted as a manifestation of an intention that a portion of the value of the marital residence be reconverted to respondent’s non-marital property, the record contains no indication that she took any affirmative steps to effect such a reconversion.

Finally, we deem respondent’s contention that a portion of the value of the marital residence equal to the amount of labor which he expended in the construction and planning thereof should have been set aside as his nonmarital property to border on the frivolous. The record contains no indication whatsoever that he did not intend the physical labor which he expended on construction of the marital residence to accrue to the benefit of the marital estate. Since the record contains no other evidence which would negate the conclusion that respondent did not intend all of the money and work which he contributed to the construction and acquisition of the marital residence to become marital property, we hold that respondent has not overcome the presumption that the entire value of the parties’ marital home is marital property.

We next consider respondent’s contention that all of the amounts given him by his father which were expended for purposes of acquiring the parties’ second home were loans and that he is under an obligation to repay all such amounts for which he has not already reimbursed his father. The only relevancy of whether the payments of February 1974, June 1979, and September 1980 were, in fact, loans, to the issues with which we are here confronted is that if these amounts were in fact bona fide loans, they would constitute marital debts (which respondent was in effect ordered to assume) which would have to be taken into account in ascertaining the propriety of the property settlement ordered by the trial court.

There is conflicting evidence as to the status of these payments. On the one hand, there is the testimony of petitioner that she did not recall these transactions as being loans, and the evidence that no loan documents were signed, no interest was charged, and that on two occasions like sums were given to respondent’s sister without her having made any repayments. Also, respondent’s father refused to accept repayment of the amount given the parties in September 1980. Furthermore, the very fact that the amounts given respondent in August 1979 and September 1979 were repaid in full, while no portion of the amount given him in June 1979 had been repaid at the time of the initiation of the dissolution proceedings supports the view that the June 1979 transaction was not considered a loan by the parties. On the other hand, there is the testimony of respondent that these transactions were loans and the evidence that a partial repayment has been made of the amount received by respondent in February 1974. This conflicting evidence created a question of fact for the trial judge, who heard and observed the witnesses and was thus in the best position to assess their credibility. There is ample credible evidence to support his determination that the amounts in question were not bona fide loans, and this conclusion was thus not contrary to the manifest weight of the evidence. Therefore, none of the above amounts are entitled to recognition as marital debts in determining whether the property division ordered by the trial court was an abuse of its discretion.

We now turn to the question of whether the trial court erred in awarding petitioner the entire interest in the parties’ marital home. Section 503(c) of the MDMA (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)) provides as follows:

“(c) In a proceeding for dissolution of marriage *** the court shall assign each spouse’s nonmarital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and nonmarital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

The requirement that property be divided in just proportions does not necessarily mean that an equal amount of the marital property must be awarded to each spouse in a dissolution of marriage proceeding. Disproportionate property allocations are appropriate where the economic circumstances and earning capacities of the parties are disparate. Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465; In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.

Trial courts generally have a great amount of discretion in fashioning property dispositions in dissolution of marriage cases. A trial court’s property allocation will not be set aside absent a clear abuse of its discretion. It has been stated:

“In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted. This is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. It would seem that if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” In re Marriage of Lee (1979), 78 Ill. App. 3d 1123,1127, 398 N.E.2d 126, 129.

The most cogent argument which respondent advances as to the purported impropriety of the property disposition order entered by the trial court is that instead of giving the marital home to petitioner outright, the court should have given petitioner only the right to live in the house until the youngest child attained a certain age, and directed that the house be sold at that time, with respondent receiving a share of the proceeds. This argument has some superficial appeal, but a close analysis reveals that the financial consequences of such an action would probably be of no greater benefit to respondent than the consequences of the property disposition which the trial court ordered, and that the possible collateral consequences of such an order would be contrary to one of the fundamental purposes of the MDMA.

While it cannot be said that the marriage of the parties (which lasted eight years) was of a long duration, it nevertheless was not an inordinately short union. Throughout the course of the marriage, petitioner made substantial contributions as a homemaker, especially in caring for the two small children. Furthermore, there is some evidence that petitioner assisted respondent in his employment by grading papers, etc. It is also apparent that petitioner has a somewhat lower earning capacity than respondent. Those two factors are entitled to recognition in the property division, since a sufficiently large property allocation, as opposed to maintenance, is the preferred method of reimbursing a homemaker for her nonmonetary contributions to the marriage and for compensating for her generally inferior earning capacity. (See 111. Rev. Stat. 1981, ch. 40, par. 504(a).) Under the property disposition which respondent suggests, petitioner would either be entitled to reimbursement for the mortgage payments made by her during her occupancy of the home or respondent would be required to make such payments in addition to child support and/or maintenance payments. Under the first alternative, petitioner would be entitled to a sizeable chunk of the proceeds of the sale of the home as reimbursement for the mortgage payments which she had made and this, coupled with a possible entitlement on her part to the cost of major repairs performed upon the premises and insurance and tax payments made by her thereon, as well as a right .to reimbursement for the physical labor which she expended upon the construction and planning of the home, would come close to consuming the entire proceeds from the sale of the home. Under this alternative, there would also be a possibility that the present financial burden on respondent would be greater in that he would have to make both child support and maintenance payments. Under the second alternative, the respondent would undoubtedly receive a larger share of the proceeds of the value of the home, but would face a heavier current financial burden in that he would be obligated to make both mortgage payments and possible child-support and/or maintenance payments.

Moreover, an arrangement whereby the home would continue in joint tenancy until, for instance, the attainment of majority by the youngest child, would be a potential source of constant friction between the parties. In that respect, such a disposition would be contrary to one of the fundamental purposes of the MDMA, which is to bring an end to the dissolution of marriage proceedings as quickly as possible, so that each party may have a fresh, independent start in life. See generally Lee.

It is apparent that in fashioning the property disposition under review, the trial judge considered all relevant factors contained in section 503 of the MDMA and that he placed particular emphasis upon petitioner’s contribution to the marriage as a homemaker; the desirability of awarding the marital home to petitioner, who has custody of the parties’ children; petitioner’s inferior earning capacity; and the fact that petitioner was not awarded maintenance. Respondent’s sole continuing obligation is to provide child support in the amount of $320 per month. This leaves him with over $900 per month for his own use. He makes no contention that the amount of his income remaining after the payment of child support will afford him an inadequate standard of living. In fashioning its property disposition order, the trial court carefully considered the needs of all of the parties to this action, in view of petitioner’s custody of the children, as well as all relevant statutory factors. The order will afford each party an adequate standard of living, while giving each an opportunity for an independent start in life, free from interference by or entanglement with the other party. We cannot, therefore, say that the court abused its discretion in awarding the marital home to petitioner.

II

Following the filing of the court’s property allocation order on March 5, 1982, respondent, on March 17, 1982, filed a motion for a stay of enforcement of the portion of the property disposition order pertaining to the marital home. This motion was granted on March 24, 1982, and respondent’s notice of appeal was also filed on that date.

On May 14, 1982, petitioner filed a request for directions, alleging that certain real estate tax payments and insurance premiums on the marital home would probably become due before this court issued its decision in the instant case. The petitioner requested that the trial court order respondent to pay taxes and insurance premiums on the marital residence pending the conclusion of this appeal. On the same date, petitioner also moved for an award of attorney fees for defense of this appeal, contending that she was without means to afford the services of an attorney. Following a hearing, the circuit court dismissed the request for direction and the motion for an award for attorney fees, holding that it lacked jurisdiction to consider such matters during the pendency of this appeal. The petitioner appeals the trial court’s dismissal of both of these motions.

Generally, the filing of a notice of appeal precludes the trial court from taking any action which would alter the portion of the judgment from which an appeal has been taken. (American Federation of State, County & Municipal Employees v. Walker (1975), 27 Ill. App. 3d 883, 327 N.E.2d 568; Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 325 N.E.2d 76.) A trial court may, however, determine matters unrelated to the portion of a judgment which is pending on appeal. (Cygnar.) In the present case, the payment by respondent of property taxes and insurance on the marital home would have involved a transfer of property by respondent for the benefit of petitioner. Contrary to petitioner’s contention, we fail to see how the allocation of responsibility for such payments is collateral or unrelated to the issue on appeal in this case, which is the propriety of the trial court’s property allocation. Assignment of interim responsibility for such payments would definitely have altered the property allocation scheme under review by us.

We note that in the present case, the trial court’s stay order is applicable only to the execution of the deed conveying the marital home from the parties as joint tenants to petitioner as the sole owner. It is inapplicable to petitioner’s right to possession of the home. The proper course of action would thus have been for petitioner, who was entitled to possession of the home throughout the pendency of this appeal, to make the tax and insurance payments. If we had decided to reverse the trial court’s property disposition, the payments which petitioner had already made could, of course, have been given appropriate consideration in fashioning a new property disposition in conformity with our decision. We therefore hold that the trial court did not err in dismissing petitioner’s request for directions.

We finally consider the petitioner’s contention that the trial court erred in dismissing her motion for a prospective award of attorney fees for defense of this appeal. Section 508(a) of the MDMA provides in part:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
* * *
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(3).)

There is a split of authority as to whether a trial court may properly make a prospective award of attorney fees for defense of an appeal pursuant to the above statutory provision. Both first and third districts have held that a trial court may properly make such an award. (In re Marriage of Theeke (1981), 105 Ill. App. 3d 119, 433 N.E.2d 1311; In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598; In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867.) The second district, however, has held that a trial court may not make a prospective award of attorney fees for defense of an appeal in a proceeding under the MDMA. (In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361.) Formerly, both the first and third districts also espoused this view on the prospective award of attorney fees issue. See In re Marriage of Wright (1981), 92 Ill. App. 3d 708, 415 N.E.2d 1196; In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279.

We feel that the better position is that a trial court does not have jurisdiction to make a prospective award of attorney fees for defense of an appeal in a dissolution of marriage proceeding while the appeal is pending. An analysis of this issue must, of course, begin with the premise that absent an explicit statutory exception, a trial court may not enter an order which would alter a decision under review after the jurisdiction of the appellate court has attached. (See Walker; Cygnar.) Prospective attorney fees awards can have just that effect, for they involve the transfer of property by one spouse for the benefit of another and can thus significantly alter the property aspects of a dissolution of marriage order. The Divorce Act specifically permitted the award of prospective attorney fees for defense of an appeal (Ill. Rev. Stat. 1975, ch. 40, par. 16), but the MDMA contains no such provision.

Moreover, we agree with the Pease court that the propriety of attorney fees awards for legal services to be performed in the future is difficult to review on appeal. When such a fee award is made and contentions are raised on appeal as to the correctness of the amount thereof, there can obviously be no evidence in the record relative to such matters as the amount of time actually expended in defending the appeal or the propriety of the fee in relation to the result obtained. Thus, a well-founded determination by the appellate court of the propriety of such a fee award would necessarily require the appellate court to receive evidence which had not previously been presented to a trial court. Such a practice is unknown in any other type of proceeding, and statutory language of the most specific variety would be required to support this practice with respect to a prospective award of attorney fees for defense of an appeal in a dissolution of marriage case. Such language is simply not present in the MDMA. Therefore, we hold that when a party desires an award of attorney fees for defense of an appeal pursuant to section 508(a)(3) of the MDMA (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(3)), a motion for such a fee award must be made in the trial court after the conclusion of the appeal.

For the foregoing reasons, we affirm the orders of the circuit court of Macoupin County awarding the parties’ marital home to petitioner and dismissing petitioner’s request for directions and motion for a prospective award of attorney fees for defense of this appeal.

Affirmed.

TRAPP and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ABRAHAM L. AUSTIN, Defendant-Appellant.
    Second District
    No. 81—909
    Opinion filed December 21, 1982.
    Rehearing denied January 25, 1983.
    Abraham L. Austin, of Oak Park, for appellant.

      Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Abraham L. Austin, appeals from his conviction in a jury trial in the circuit court of Lee County. The jury found him guilty of driving his car in excess of 55 miles per hour on a public highway in violation of section 11 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 601(b)). Defendant admits that he had been driving over 55 miles per hour at the time he was stopped, but argues that the 55 mile per hour maximum speed limit is invalid and unconstitutional, and that the jury should have been entitled to determine the validity of that law.

Defendant’s brief fails to comply with the requirements for an appellant’s brief as set forth in Supreme Court Rule 341(e) (87 Ill. 2d R. 341(e)). In particular, defendant’s brief lacks an introductory paragraph, a statement of the issues, a points and authorities section, and a statement of facts. While failure to comply with Rule 341(e) warrants an appellate court to dispose of an appeal by summarily dismissing it, a court may nevertheless consider the merits of the appeal. (People v. Leverenz (1977), 55 Ill. App. 3d 146, 148.) Considering the fact that defendant prepared his own brief, and that Rule 341 is not a limitation upon the jurisdiction of a court of review, but rather an admonishment to the parties (Brown v. Brown (1978), 62 Ill. App. 3d 328, 332), this court will examine the merits of defendant’s arguments.

The defendant argues that the 55 mile per hour speed limit is invalid because the Federal government “bribed” the general assembly to impose such a limit by threatening to withhold Federal funds if the State did not pass such an act. Section 11 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 601(b)) prohibits driving on a highway in excess of the statutory maximum speed limit; paragraphs (d) and (f) set the maximum speed limit at 55 miles per hour pursuant to section 114 of the “Federal-Aid Highway Amendments of 1974.” (23 U.S.C.A. sec. 154(a) (West Supp. 1982).) Section 114 prohibits the Secretary of Transportation from approving a highway project in any State which has a maximum speed limit on any public highway within its jurisdiction in excess of 55 miles per hour.

The law is well settled that the regulation of the speed of motor vehicles to safeguard pedestrians and others using the streets and the highways is a salutary exercise of police power. (People v. Leverenz (1977), 55 Ill. App. 3d 146, 148.) Defendant’s argument, however, appears to attack not the State’s police power, but Congress’ power to require States to limit speed limits to 55 miles per hour. Congress established a national speed limit to prevent the wasting of fuel and the jeopardizing of lives. (United States v. City of Philadelphia (E.D. Penn. 1979), 482 F. Supp. 1248, 1269; City of Princeton v. Francisco (S.D. Iowa 1978), 454 F. Supp. 33, 34; see also [1974] U.S. Code Cong. & Ad. News 8011, 8019-20.) The amendment only places terms upon the allotment of Federal funds for highway construction within the States; it is the individual States which set their own limits. (City of Princeton v. Francisco (S.D. Iowa 1978), 454 F. Supp. 33, 34.) Furthermore, congressional placement of terms and conditions on States receiving Federal funds, despite defendant’s characterization of such action as “bribery,” is not unconstitutional. (See Buckley v. Valeo (1976), 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612; Oklahoma v. United States Civil Service Com. (1947), 330 U.S. 127, 91 L. Ed. 794, 67 S. Ct. 544.) As such, the 55 mile per hour speed limit is not unconstitutional.

Defendant further urges this court to abandon the rule that the jury is the factfinder and the judge the declarer of the law. It should be noted that the trial court allowed the defendant to argue to the jury, over the State’s objection, that the 55 mile per hour speed limit should be declared invalid. However, the court instructed the jury that it was their function to determine the facts and apply those findings to the law as set forth in the instructions. Defendant argues that this was error. It is well recognized and established that it is within the province of the jury to determine only issues of fact, and the judge is to determine questions of law. (People v. Cunitz (1977), 45 Ill. App. 3d 165, 171.) The defendant offers no cogent reason to abandon that legal principal, and this court finds no such reason.

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

Judgment affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HOPF

text:
      In re Estate of JUDSON B. NUYEN, Deceased.—(Elinor Nuyen, Petitioner-Appellant, v. Old Second National Bank of Aurora, Respondent-Appellee.)
    Second District
    No. 82—183
    Opinion filed December 16, 1982.
    Rehearing denied January 25, 1983.

      John W. Long and A. Denison Weaver, Ltd., both of Chicago, for appellant.
    Thomas K. Prindable, of Youssi, Prindable & Bina, of Batavia, and William C. Murphy and Patrick M. Kinnally, both of Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Petitioner Elinor Nuyen appeals from the denial of her amended petition to remove the Old Second National Bank of Aurora (OSNB) from its position as executor of her deceased husband’s estate, pursuant to section 23 — 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIO/2, par. 23 — 2). The petition was brought in her capacity as representative of the beneficiaries of the estate and contended that OSNB had a conflict of interest, had wasted assets and had mismanaged the estate. After a hearing the circuit court of Kane County ruled in favor of OSNB.

Judson B. Nuyen died testate on April 30, 1973. His will, which was admitted to probate, nominated the appellee OSNB as executor. The will had been executed 10 years earlier in 1963 and left one-third of the estate to petitioner and two-thirds to decedent’s father, Fred Nuyen. Charles Myler, who was retained as attorney for OSNB following decedent’s death, had also been the family attorney for the Nuyens for many years. He advised petitioner to renounce the will and accept her statutory share. Myler assisted petitioner in seeking to have the will renounced, though the renunciation was filed late. He did not receive fees from petitioner for the advice that he gave her through the years. In March of 1981 petitioner did retain counsel and the renunciation was deemed effective by the court at that time. Upon renunciation the estate was divided so that the petitioner received one-third, each child received two-ninths and the remaining two-ninths was placed in trust for the benefit of the children. One of the children, Carey Nuyen, has reached the age of majority and has filed a supplemental brief. His brief urges that the previous orders of this court are not res judicata as to him, because he was a minor at the time those orders were entered.

Decedent’s estate consisted mainly of an orthodontics practice and two parcels of realty, Wellwood and Molitor Road. Despite this there was no cash in the estate, and the record indicates that the estate property did not produce sufficient income to meet the expenses that arose soon after decedent’s death.

Petitioner contends that OSNB should be removed as executor for the following reasons: (1) It dealt with trust assets for its individual benefit; (2) it failed to prove that petitioner’s consent to the various real estate transactions was validly obtained; (3) OSNB committed acts of waste and mismanagement in that it disposed of the dental practice without consideration, failed to secure an extension for payment of Federal estate tax, renegotiated a real estate contract improperly and mortgaged the assets of the estate for $320,000; and (4) petitioner also contends the court erred in denying her request for OSNB’s counsel to produce all its records regarding the administration of this estate. Petitioner also contends that the doctrines of res judicata, collateral estoppel and laches do not operate to insulate the executor from accountability for its waste and mismanagement.

THE ESTATE: A. ORTHODONTICS PRACTICE

The orthodontics practice earned gross income of $92,500 in the year preceding decedent’s death. At trial Dr. George Osterberger testified, as an expert witness, that he had taught orthodontics at the University of Illinois for 10 years and one of his students had been the decedent. He indicated that petitioner had called him soon after Dr. Nuyen’s death and she had asked him to help work with the patients that continued to come into decedent’s office. Dr. Osterberger arranged for four local doctors to come in on various days and try to keep decedent’s orthodontics practice going. He tried to find someone to take over decedent’s practice and made an effort to evaluate what the practice was worth. He and the other doctors made this evaluation on the basis of the work that was left to do on the patients that were coming in and the amount of money remaining to be collected to do the work. They evaluated 90% of the patients. Dr. Osterberger worked with his accountant to evaluate the value of the practice. Dr. Osterberger testified that he was not working for OSNB but that he was helping the petitioner.

Dr. Osterberger’s opinion was that quite a bit of the money had been prepaid and quite a bit of the work had yet to be done on decedent’s patients. He indicated that one could get an orthodontist to come in and take over the practice by deceiving him — but that once he got into the practice and found out how much work there was to do, he would probably leave the practice. He foresaw a problem if patients who had already paid came in and were told they would have to pay additional money for further treatment. At a meeting with decedent’s father, Fred Nuyen, and petitioner, Dr. Osterberger advised them he had found an orthodontist who had only been out of school for two years who would be willing to take over the practice. He suggested that the equipment and the office itself were furnished frugally and that the practice could not be sold but could be transferred to the new orthodontist in exchange for his assumption of decedent’s obligation to perform the prepaid services. Although petitioner and Fred Nuyen objected to this, they consented to the transfer of the practice to Dr. Douglas Prince, the orthodontist recommended by Dr. Osterberger. They also consented to having the estate assume the $3,896.20 debt due on dental equipment.

Richard Kropp, trustee for OSNB, testified that Dr. Osterberger was a kingpin in keeping the office open. He testified that at a meeting he attended on May 23, 1973, Charles Myler was present. Myler, attorney for OSNB, indicated that if the parties did not act quickly some patients would sue the estate. Kropp testified that after the May 23 meeting it was basically understood that the only way to avoid the problem with the patients who had paid but had not been treated was to transfer the practice to the new doctor. Thus, Dr. Prince took over the practice almost immediately without payment.

B. WELLWOOD

Wellwood was a 152-acre farm in Sugar Grove that decedent had purchased on contract. In 1971 decedent had obtained a mortgage for $147,370 and applied this to his contract to purchase Wellwood. Three months before his death he agreed to sell Wellwood on contract for $639,000. They put $190,000 down with the remainder due in three years. The purchaser of Wellwood borrowed $200,000 from Aurora National Bank for a down payment. However, decedent did not actually receive the $190,000 because he secured the purchasers’ loan by taking $145,970 of the $190,000 down payment and investing it in 2,350 shares of AT&T stock and pledging the stock as collateral. The purchasers defaulted on the loan in 1974. This necessitated some action by the executor; OSNB petitioned the court for approval of a renegotiation of the contract. Under the terms of the new agreement Aurora National Bank would sell the security on the original note, $44,030, and a new note between purchasers and the estate would be executed. Purchasers thereby agreed to pay the full original purchase price less the amount that had been held as security. A guardian ad litem was appointed to represent the minor children, and all parties agreed to the new contract. The court approved the petition on April 8,1974. Until now no appeal was made.

One important event that occurred at the time of the renegotiation of the Wellwood contract occurred at a meeting between attorney Myler, petitioner and Fred Nuyen. At that time Fred Nuyen objected to personally signing the mortgage. Myler advised Fred Nuyen that he should get his own attorney if he and petitioner had any questions. Myler testified that he told Nuyen that he represented the executor— OSNB.

C. THE FEDERAL ESTATE TAX

The original due date for payment of the Federal estate tax was January of 1974. OSNB filed a one-year extension, as permitted under the Code. The following year the estate still lacked sufficient cash to pay the taxes and OSNB again requested an extension. In reply to their request the Internal Revenue Service advised OSNB it would be required to fill out a number of forms and provide them with certain information. OSNB did not follow up on obtaining this extension. In lieu of obtaining an extension OSNB obtained court approval on October 23, 1975, to advance the estate $94,862.70. In December of 1975 it again petitioned the court, this time so that it could mortgage the estate’s real estate in order to secure a loan to the estate of $320,000. The executor urges that this was used to repay the advances and was applied towards the existing mortgage on Wellwood and the contract on the Molitor Road property. It contends that neither the Federal Land Bank nor local lenders would make such a loan. The rate on the $320,000 was 91/2% annual interest. Petitioner made no objection to the October or December petitions. After a hearing the court approved it. OSNB used $60,000 to pay off the tax obligation, $33,000 to pay off various claims and $220,000 to pay off the first mortgage and the balance on the Molitor Road properly. OSNB received, inter alia, $8,000 in interest and paid itself a $3,200 commission for making the mortgage.

ARGUMENTS ON APPEAL

The first issue addressed in this opinion was raised by the respondent OSNB. OSNB contends that the orders appealed from are res judicata and cannot be collaterally attacked in this subsequent proceeding. OSNB contends that the orders of October 23, 1975, and December 30, 1975, determined OSNB’s right to advance and loan money secured by a first mortgage to the estate. The orders authorizing the loan were final and appealable orders that were not appealed within 30 days. As such, OSNB contends to allow this appeal would be to ignore res judicata, and invite “never ending estate proceedings.”

OSNB goes on to argue that the former adjudication bars this litigation because the same parties, subject matter and causes of action exist in both proceedings. In the recent case of Varley v. Pickens (1981), 98 Ill. App. 3d 884, 886, 424 N.E.2d 981, 983, the court discussed the application of estoppel by judgment, also known as res judicata, and specifically mentioned these three requirements for application of the doctrine. The related doctrine of estoppel by verdict, which would not require identity of cause of action (Healea v. Verne (1931), 343 Ill. 325, 175 N.E. 562), would only conclude matters in issue or points controverted upon the determination of which the finding or verdict was rendered. People v. Bone (1980), 82 Ill. 2d 282, 412 N.E.2d 444; Cromwell v. County of Sac (1877), 94 U.S. 351, 353, 24 L. Ed. 195, 197.

In applying the rules set out in Varley v. Pickens (1981), 98 Ill. App. 3d 884, 424 N.E.2d 981, it is clear that the previous orders and the current litigation both involve the same parties. They are identical. Similarly, both actions involve the same subject matter, i.e., management of Dr. Nuyen's estate. The question that remains is whether or not the cause of action is the same. While the previous orders entered concern specific questions of how to manage decedent’s estate, there was no allegation of mismanagement, waste or conflict of interest at that time. Petitioner urges that the allegation of a conflict of interest is new subject matter and a new cause of action. She urges that the testimony of Patrick Dixon, who had been appointed guardian ad litem for the minors and who testified in the hearing below, is supportive of her contention. Dixon testified that the question of the executor having a conflict of interest did not cross his mind. Petitioner urges that the conflict question was not raised, determined, nor considered and, therefore, it can be reviewed here.

Countering this, OSNB contends that the issues and the claims are the same, i.e., the rectitude of the executor’s actions is in issue in both cases. The order dated October 23, 1975, stated that the executor should be allowed to continue to make advances to the estate so as to preserve the estate assets. Interest for these advances was allowed at 8V2%. The sum of $94,862.70 was approved as costs for estate administration. The executor’s authority to make advances and use the estate assets as security was to run until December 15, 1975. As previously indicated, OSNB filed a subsequent petition requesting court approval for a $320,000 loan from the bank to the estate at 9^2% interest for a term of five years. The loan was secured by a first mortgage on Wellwood and a first mortgage on an undivided three-quarter interest in 25 acres of Molitor Road property. Petitioner, Fred Nuyen and guardian ad litem, Patrick Dixon, attached their consents to the petition. On December 30, 1975, the court found that it would be in the best interests of the estate and all beneficiaries for the estate to obtain the loan and execute the mortgages.

Because the petitioner’s contentions of a conflict of interest were not previously in issue, we believe the prior proceedings were not conclusive, and the doctrine of res judicata or estoppel by judgment does not bar review of this issue on appeal. In the case of In re Estate of Garrett (1969), 109 Ill. App. 2d 243, 247, 248 N.E.2d 539, 541, the court stated that when there is a different claim or demand from that raised in the prior proceedings, then res judicata is not applicable.

Because res judicata does not preclude review of the conflict of interest contention, that issue is now addressed. Petitioner contends that OSNB should be removed as executor because a conflict of interest is shown from the following facts. Charles Myler, one of the attorneys for the executor, OSNB, was a close personal friend of decedent and his family. He had represented the Nuyen family as their attorney on a real estate closing prior to decedent’s death. During decedent’s last illness Myler visited petitioner at the hospital and told her that he would help her. Subsequently petitioner consulted with Myler, and he advised her to renounce decedent’s will. Myler prepared certain documents for her to renounce the will. Petitioner contends that she was not advised to seek independent counsel with regard to any transactions nor was she ever advised that a potential conflict existed.

After careful scrutiny we believe the record does not support petitioner’s assertion in this regard. In fact, Myler testified that he advised petitioner and petitioner’s father-in-law, Fred Nuyen, of a potential conflict of interest at the time when the executor bank was making the first mortgage loan. Fred Nuyen objected to the bank’s requirement that he personally sign and become liable on the mortgage. Myler testified that Fred Nuyen said he did not want to sign because he was in his 70’s and he requested that Myler intercede so that he would not have to sign the documents. At the hearing Myler testified that he told Fred Nuyen: “I said, ‘Look, I represent the Executor. If you have any questions on this, you can get your own attorney.’ I told him and Elinor.” At another meeting Myler repeated this assertion and Fred Nuyen conceded to Myler that he had consulted an attorney but that it wouldn’t do him any good. Petitioner was present at the second meeting as well.

Thus, it is clear that attorney Myler advised petitioner and petitioner’s father-in-law that he was representing OSNB as executor. The contention that an attorney-client relationship between petitioner and attorney Myler arose merely because the executor advised petitioner of her right to renounce the will is not convincing. It was the executor’s fiduciary duty to advise petitioner of her rights as a beneficiary. (Eichhorst v. Eichhorst (1930), 338 Ill. 185, 192, 170 N.E. 269.) Further, petitioner never paid fees to Myler for his advice and, as OSNB points out, she received regular correspondence from Myler’s office which clearly indicated Myler’s law firm represented the executor rather than her as a beneficiary of the estate. Further, the fact that Myler may have failed to advise petitioner of the time limits within which to file a renunciation, as alleged in the affidavit prepared by Myler’s office for petitioner, does not, as petitioner argues, show the existence of an attorney-client relationship, or, for that matter, a conflict of interest. Corti v. Fleisher (1981), 93 Ill. App. 3d 517, 417 N.E.2d 764.

Petitioner argues that she consented to certain transactions presented to her by the executor without knowing that he was the attorney for OSNB. The argument, or at least the implication, is that petitioner thought Myler was her attorney and that Kropp, the trustee at the bank, was the attorney for the bank. Petitioner urges in her brief that she is a housewife and inexperienced in legal matters. However, the trial court which heard the petition for removal made a number of findings to which we must defer. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) Here, the trial court found that the petitioner was an able, intelligent woman who had managed apartments, kept books, prepared income tax data and conducted real estate negotiations. The court found she was aware of the lack of cash in the estate, that she met frequently with the trust officer and attorney for the estate, that she appeared in court and acknowledged she was aware of the advances by OSNB to the estate. In sum, the court noted that the facts showed a knowing and active participation on the widow’s part and that this was to her credit, but was also defeating in the sense that it belies the contention that she now makes.

In light of Myler’s disclosure to petitioner and petitioner’s father-in-law, as well as the trial court’s findings that petitioner was an active participant in managing the estate, we do not believe the consents were invalid or that a conflict of interest tainted the manner in which the estate was managed.

The next contention addressed here is raised by Carey Nuyen, the minor who reached majority and filed a separate brief in this appeal. Carey argues that res judicata and/or collateral estoppel does not apply to him because at the time the orders appealed from were entered he was represented by a guardian ad litem. He contends that minors cannot agree in court or be bound by any agreement made on their behalf by a guardian ad litem. (Leonard v. Chicago Title & Trust Co. (1936), 287 Ill. App. 397, 5 N.E.2d 282, 283.) Leonard, however, is inapposite. The guardian in that case was not present at trial and his appearance had not been filed. The guardian appointed to represent the interests of the minors in the Leonard case did not even become involved in the appeal. The court noted that it is the duty of the court to see that the rights and interests of the minors are protected. It stated that a decree can only be entered on adequate proof. In the case at bar the guardian ad litem, Patrick Dixon, was present at all relevant proceedings and indicated that he reviewed the petitions prior to the trial court’s approving them. It is apparent from the record that both the court and the guardian ad litem fulfilled their legal duty in the proceedings below. There was a hearing at which time the court heard evidence, took statements of counsel and rendered its decision. Leonard requires no more than this. Carey Nuyen is bound by his guardian’s actions absent some wrongdoing.

Another case relied upon by Carey Nuyen involved a guardian ad litem who did not fulfill his duties. The ease of Laxy v. Laxy (1954), 3 Ill. App. 2d 156, 120 N.E.2d 881, is inapposite. In Laxy, unlike the case at bar, the guardian did not show sufficient interest in the case. No allegation of a lack of due diligence is made in the case at bar. Even assuming the statute of limitations for a minor to assert his claim extends two years beyond that minor’s reaching majority (Eiseman v. Lerner (1978), 64 Ill. App. 3d 185, 380 N.E.2d 1033), we see no breach of duty in the case at bar. Nor, as is described below, do we find any acts of misconduct or mismanagement by the executor that warrant removal.

Petitioner’s remaining contentions on appeal concern allegations of mismanagement and self-dealing by OSNB. These allegations of misconduct are based on acts of the executor that were specifically approved by the trial court in the court orders of October 25, 1975, and December 30, 1975. As such, the doctrines of res judicata and collateral estoppel are applicable to the remaining issues. Johnson v. Nationwide Business Forms, Inc. (1981), 103 Ill. App. 3d 631, 633, 431 N.E.2d 1096.

We believe the petitioner is estopped from relitigating these contentions for the following reasons.

Petitioner contends that OSNB must “disgorge” all profits because of its self-dealing. They rely on the case of Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841, which asked what the effect was of a land trustee’s purchase, after a foreclosure sale of the property but during the redemption period, of the certificate of sale of trust property sold under foreclosure. Our supreme court held that a trustee cannot purchase property free of the trust at a foreclosure sale. However, Zarkin involved the trustee of a trust rather than an executor of an estate. While both executors and trustees have fiduciary obligations to the beneficiaries (Stoke v. Wheeler (1945), 391 Ill. 429, 63 N.E.2d 492), the executor must serve the creditors of the estate as well (In re Estate of Lucas (1977) , 48 Ill. App. 3d 1009, 363 N.E.2d 621, rev’d on other grounds (1978) , 71 Ill. 2d 277, 375 N.E.2d 112), and, additionally, directly account to the court. Here, where the executor obtained court approval for the same transactions which are now complained of, the Zarkin case becomes inapposite. While the fiduciary responsibilities of an executor may be similar to that of the trustee, the executor’s duties involve obtaining court approval for certain acts. Because Zarkin was concerned with the trustee of a land trust rather than an executor of an estate it is not applicable to the situation in the case at bar. Further, the facts in Zarkin are totally distinguishable from the case at bar.

Petitioner also contends that the executor committed certain acts which would require its removal independently of any conflict of interest. Section 23 — 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIOV2, par. 23—2) sets forth the statutory standards for removal of the representative of an estate. Petitioner contends first, that the disposition of the dental practice two weeks after decedent’s death was conduct which failed to meet the standards required of an administrator; i.e., utmost good faith and the skill an ordinarily prudent man bestows on his own affairs. (In re Estate of Lindberg (1981), 98 Ill. App. 3d 212, 215, 424 N.E.2d 1161, 1163.) However, considering the testimony of Dr. Osterberger and the fact that the dental practice required immediate attention in order for it to continue and not be a serious liability, we believe the disposition of the practice, including the agreement to pay the decedent’s debt for dental equipment, was reasonable under the circumstances. Although OSNB did not make an audit to determine the value of the dental practice, it apparently deferred to Dr. Osterberger, who was clearly a highly specialized expert in the field of orthodontics. This, together with the fact that Dr. Osterberger worked with his accountant and had become involved in evaluating the practice at the request of petitioner, leads us to the conclusion that there was no breach of fiduciary duty in turning the practice over to Dr. Prince. As indicated, while the practice may have had 600 active patients, it is apparent that substantial work had been paid for that had yet to be completed. Therefore, it would be clearly possible for the practice to be a liability rather than an asset.

Petitioner’s next allegation of a breach of fiduciary duty concerns the renegotiation of the contract for the sale of Wellwood. As the trial court indicated the Wellwood dealings resulted in a complex situation, made even more complicated by the death of the testator. It is clear that the purchasers under the Wellwood contract were unable to make their payments and OSNB had to take some action. It chose to loan the estate $320,000. Petitioner contends that OSNB either “forgave or forgot” and failed to account for the interest due from the purchasers on the original contract which should have amounted to $28,771. She contends that OSNB listed no income for the year 1973 when the. original contract was still in force. Further, she points out that the first account, filed in 1979, does not show any interest income obtained from the estate from the original contract. Even the trial court noted that the disposition of interest on the original contrct was unclear to the court. However, the trial court went on to say the interest went to the Aurora National Bank to apply on the decedent’s indebtedness. As indicated previously the purchasers of Wellwood obtained a loan from Aurora National Bank. Decedent’s AT&T stock was pledged as security on the loan. When the Wellwood purchasers defaulted, the Aurora National Bank was in a secured position. There is no evidence in the record to suggest anything to the contrary. Most importantly, it should be noted that the renegotiated contract was finally successfully consummated.

Petitioner’s next contention is that the executor committed gross mismanagement in handling the Federal estate tax obligation. She contends that OSNB’s failure to obtain an extension for the payment of the tax was wasteful of estate assets. Petitioner’s expert, Edward Sieracki, gave the opinion that the extension would have been granted by the Internal Revenue Service. On the other hand, OSNB’s representatives testified that it was unclear the extension would be granted. However, the executor did consult with an IRS field auditor and made an effort to get an opinion as to whether or not the second extension would be granted. The executor contends that what it did was to opt for the safer route, obtain court approval for a loan and use the funds to pay the Federal estate taxes and other liabilities. The trial court noted that the failure to obtain this extension may indicate at least poor judgment on the part of the executor. However, the court did go on to list a number of mitigating factors, most importantly the fact that there was no certainty that the extension would be granted. Further, the court noted that there were a number of other claims for substantial sums of money outstanding. Petitioner contends that the failure to secure this extension had a double impact. First, she contends it resulted in a tax penalty of $6,180.34. However, although this is not raised by the parties, it is possible that this tax penalty would have been greater had the extension been applied for and turned down. Petitioner also contends that the failure to get the extension resulted in another act of mismanagement, the $320,000 loan.

OSNB contends that the $320,000 loan was vital to the estate in order to avoid having the Aurora National Bank, which had taken assignment of the beneficial interest in the land trust to Wellwood, from foreclosing on Wellwood. The trial court approved the Wellwood renegotiation on December 30, 1975, and approved the renegotiation again on February 22, 1982. We believe the trial court properly found that there was no waste caused by the renegotiation of the contract. Further, it should be noted that the renegotiated contract was finally successfully consummated.

Petitioner next contends that the court erred in denying her request for the complete office files of attorney Charles Myler which relate to his services as attorney for the estate of Nuyen. The trial court ruled that the records need not be disclosed. Petitioner contends that there was an attorney-client relationship between Myler and her and that, therefore, the case of In re Estate of Wahl (1920), 218 Ill. App. 295, 302, applies. Wahl held that evidence is privileged when it arises from the attorney-client relationship. However, as previously discussed in this opinion there was no attorney-client relationship between petitioner and Myler. Therefore, petitioner’s reliance on the Wahl case is misplaced.

We think it should be noted that it has been nearly a decade since decedent’s death. Because of the allegations of fraud and conflict of interest this court has given careful scrutiny to allegations that petitioner would otherwise have been estopped from raising. Under the circumstances of this case relaxation of the rigid estoppel rules is, we believe, warranted. Nonetheless, our review of the record does not reveal that a conflict of interest existed. Further, while OSNB may have made some errors in the management of the Nuyen estate, none were so great as to warrant removal under the statutes. Ill. Rev. Stat.

1979, eh. 1101/2, par. 23—2.

For these reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

NASH and UNVERZAGT, JJ., concur.


text:
    WILLIAM G. MISTLER et al., Plaintiffs-Appellees, v. VINCENT P. MANCINI et al., Defendants.—(George G. Zanders, Appellant.)
    Second District
    No. 82—324
    Opinion filed December 22, 1982.
    Rehearing denied January 25, 1983.

      Douglas R. Carlson, Thomas E. Patterson, and William A. Holmquist, all of Wildman, Harrold, Allen & Dixon, of Chicago, and William G. Rosing, of Rosing, Carlson & Magee, of Waukegan, for appellant.
    John M. Mullen, of Conzelman, Schultz, Snarski & Mullen, of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

George G. Zanders appeals the denial of a motion to quash a subpoena for his deposition. The appellees, William G. Mistier and Bennett & Bauer, Inc., a California corporation, are plaintiffs in an action pending in California who sought to take Zanders’ deposition. The issue is whether the plaintiffs should be permitted to take Zanders’ deposition.

The action in California was brought by the plaintiffs against Vincent R Mancini, Donald White, Douglas Shannon, Mancini & Groesbeck, Inc., California, a corporation, Mancini & Groesbeck, Inc., a corporation, Standard Brands, Inc., a corporation, and CHB Foods, a corporation. The complaint alleged that plaintiffs Bennett & Bauer, Inc. (d/b/a Marketing Associates, Inc., prior to May 1, 1978), was a corporation that represented the manufacturers and distributors of brand name food and other products sold to consumers at supermarkets and other retail outlets. Bennett & Bauer promoted the products, solicited and placed orders from supermarket chains, and received a commission on those products sold by the stores. In April 1978, the plaintiffs entered into an agreement to form a joint venture with defendants Mancini, Mancini & Groesbeck, Inc., California, and Mancini & Groesbeck, Inc. The agreement was allegedly breached by the-defendants, who discontinued the joint venture. The plaintiffs sought damages for breach of contract, requested an accounting, and set out a count of fraud. The complaint also contained a count of unfair competition, based on interference with contracts and prospective business advantage, against those three defendants as well as Donald White and Douglas Shannon. The final count, for conspiracy to breach contract and destroy the plaintiffs’ business, was directed at defendants Mancini, White, Shannon, Standard Brands, Inc., and CHB Foods. The California suit was filed on February 3, 1981.

On May 19, 1981, the plaintiffs filed a petition in the circuit court of Lake County seeking authorization of a subpoena duces tecum for the deposition of Zanders. The court directed its clerk to issue a subpoena duces tecum for the deposition to be taken on May 26, 1981. The record contains no copy of the subpoena, but its service is not disputed. Zanders moved to quash the subpoena. He contended that his testimony was not relevant or material to the California action and stated that he would be unduly burdened and unnecessarily harassed if the deposition were taken. His supporting memorandum stated that he was a consultant to food manufacturers and food brokers and when called upon would recommend a local broker to a manufacturer. By agreement between Mancini and himself, he received a 10% finder’s fee commission on orders booked by the joint venture of the parties through California Home Brands (now CHB Foods). After the joint venture terminated, CHB continued its relationship with Mancini and was represented by his new brokerage entity. In a pleading opposing the motion to quash the subpoena, plaintiff Mistier states that Zanders was entitled to receive a commission from the joint venture of 10% of all gross brokerage accounts that he brought to the joint venture, one of which was CHB, which is now a client of defendants Mancini and Mancini & Groesbeck. The trial court denied Zanders’ motion to quash but stayed its order pending appeal.

The plaintiffs contend that Zanders is barred by laches from filing or prevailing on the motion to quash the subpoena duces tecum for his deposition in that he did not file it until nearly a year after the subpoena was served and thus caused the plaintiffs substantial and unnecessary expense in their continuing effort to secure the deposition. However, Supreme Court Rule 201(k) (87 Ill. 2d R. 201(k)) provides that reasonable costs may be assessed against a party or his attorney who unreasonably fails to facilitate discovery. Thus there is an appropriate remedy for the losses the plaintiffs claim. Mere delay in asserting a right does not constitute laches; it must also appear that the party so claiming has been injured or prejudiced by the delay. (Brandt v. Phipps (1947), 398 Ill. 296, 313.) Since the plaintiffs have not asserted any other prejudice or injury, laches does not bar Zanders’ motion.

However, it appears that Zanders’ motion should not have been considered by the trial court in that it did not comply with Supreme Court Rule 201(k). That rule states:

“Every motion with respect to discovery shall incorporate a statement that after personal consultation and reasonable attempts to resolve differences the parties have been unable to reach an accord.” (87 Ill. 2d R. 201(k).)

In Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, our supreme court held that, in the absence of a statement complying with Supreme Court Rule 201(k) or any indication that consultations similar to those required took place or were attempted, a motion concerning discovery should be dismissed. (83 Ill. 2d 559, 566.) This facilitates the intention of Supreme Court Rule 201(k) that discovery generally proceed without judicial intervention. (83 Ill. 2d 559, 563.) In the instant cause, the requisite statement of Supreme Court Rule 201(k) is not included, nor is there any other indication that the parties conferred in an effort to resolve their disagreement prior to seeking a court determination. The series of continuances of the deposition that preceded the motion to quash simply evidence a difficulty in scheduling and do not necessarily infer an inability to agree on the propriety of deposing Zanders. Presumably, the “parties” referred to in Supreme Court Rule 201(k) are those to the discovery motion and not necessarily the parties to the underlying litigation. Thus, it appears that Zanders’ motion to quash was not properly presented and should have been dismissed for failure to comply with Supreme Court Rule 201(k). See Gallo v. Henke (1982), 107 Ill. App. 3d 21, 27.

Even if the motion had been tendered in proper form to the trial court, however, the trial court’s ruling was correct. Discovery in Illinois in aid of an action pending in another State must be conducted pursuant to Illinois rules. (Eskandani v. Phillips (1975), 61 Ill. 2d 183, 194 — and such a discovery order is a final and appealable order.) In addition to providing for discovery from other parties by motion or written request, the rules also provide a party the means to discover relevant matter from third persons through the use of subpoenas. (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 674.) The cases overwhelmingly favor liberal discovery procedures.

The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable. The objectives of pretrial discovery are to enhance the truth-seeking process, making good faith compliance with such procedures both desirable and necessary (Drehle v. Fleming (1970), 129 Ill. App. 2d 166, 171, aff’d (1971), 49 Ill. 2d 293); to enable attorneys to better prepare and evaluate their cases (Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 442); to eliminate surprises as far as possible (McCabe v. Department of Registration & Education (1980), 90 Ill. App. 3d 1123, 1131, appeal denied (1981), 83 Ill. 2d 570, cert. denied (1981), 454 U.S. 838, 70 L. Ed. 2d 119, 102 S. Ct. 143) so that judgments will rest upon the merits and not upon the skillful maneuvering of counsel (Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, 356); and to promote an expeditious and final determination of controveries in accordance with the substantive rights of the parties (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 357). Discovery is not a tactical game to be used to obstruct or harass the opposing litigant. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282.) The rules make it clear that discovery procedures were designed to be flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial court. Furthermore, the increasing complexity and volume of litigation involves frequent recourse to discovery procedures. To unduly limit their scope would inhibit pretrial settlements, increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice. (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 357.) Discovery before trial presupposes a range of relevance and materiality which includes not only what is admissible at trial but also that which leads to what is admissible at trial. (Banter v. Reding (1979), 68 Ill. App. 3d 171, 175.) Thus, great latitude is allowed in the scope of discovery. Elliot v. Board of Education (1975), 31 Ill. App. 3d 355, 357.

However, the discovery rules also fix guidelines for a fair and orderly procedure by which discovery may be accomplished and protect against abuses and unfairness. (Bruske v. Arnold (1968), 100 Ill. App. 2d 428, 433, aff'd (1969), 44 Ill. 2d 132, cert. denied (1970), 398 U.S. 905, 26 L. Ed. 2d 65, 90 S. Ct. 1697.) Supreme Court Rule 201(c) (87 Ill. 2d R. 201(c)) provides that a court may make a protective order regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression. The right to discovery is also limited to disclosure regarding matters relevant to the subject matter involved in the pending action. (Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App. 3d 542, 557; 87 Ill. 2d R. 201(b)(1).) Discovery should be denied where there is insufficient evidence that the requested discovery is relevant. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 1126, appeal denied (1981), 85 Ill. 2d 578.) The trial court has broad discretion in ruling on discovery matters, and its orders concerning discovery will not be interfered with on appeal absent a manifest abuse of such discretion. (Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 74.) An affirmative showing of abuse must be clearly shown by an appellant. Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 644.

Here, the plaintiffs demonstrated and Zanders conceded that Zanders had dealt with the joint venture of the parties and continued to deal with the defendants following the breakup of the joint venture. In light of the liberality of the Illinois rules in favor of permitting discovery, this is an adequate connection to the subject of the litigation to support a request for discovery. If Zanders indeed knows nothing, that may be appropriately ascertained through his deposition. Such an assertion should not operate to preclude his being deposed, however, given his business relationship with the parties. The cases Zanders relies on deal primarily with whether particular information must be disclosed and not whether a deposition may be taken at all. A request to take a deposition is not of itself an inquiry about specific information; rather, it is a means of obtaining an opportunity to make such inquiries. Zanders further argues that the taking of his deposition would be unduly burdensome to him in that it would reveal confidential and proprietary information, disclosure of which would damage his business interests and be advantageous to the plaintiffs. However, any objectionable questions that may be asked by the plaintiffs may be dealt with as they arise. Furthermore, Zanders has the benefit of a protective order prohibiting the divulgence of questions or answers propounded to the deponent, without further order of court. Thus, the trial court did not abuse its discretion in granting discovery.

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

Judgment affirmed.

LINDBERG and NASH, JJ., concur.