author: JUSTICE UNVERZAGT

text:
    COMMUNITY UNIT SCHOOL DISTRICT NO. 60, WAUKEGAN PUBLIC SCHOOLS, LAKE COUNTY, Plaintiff-Appellee, v. ELAINE F. MACLIN et al., Defendants-Appellants.
    Second District
    No. 81-489
    Opinion filed May 10,1982.
    Peter M. Katsaros and Wayne Schwartzman, both of Hirsch and Schwartz-man, of Chicago, for appellants.
    Donald M. Lonchar, Jr., and John G. Radosevich, both of Lonchar, Nordigian & Radosevich, of Waukegan, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Elaine F. Maclin, a tenured teacher, brings this appeal from the judgment of the circuit court of Lake County which upheld her dismissal by the school board of Community Unit School District No. 60 (hereinafter School Board).

Elaine F. Maclin was a teacher in various elementary schools over a period of more than 25 years. She had a B.A. degree from Spellman College in Atlanta and did graduate work at Minnesota and Southern California Universities. She had received an M.A. degree from Columbia University. She had taught kindergarten and fifth and sixth grades. During the 1977-78 school year, Maclin taught fifth grade at Andrew Cooke School. In the 1978-79 school year, pursuant to a faculty desegregation plan, she was assigned to Oakdale School, to teach fifth grade.

Gene Hawkins, principal of Oakdale School, testified that in the spring of 1979, particularly March through May of that year, there were disciplinary problems with Mrs. Maclin s class and that parents had complained of lack of progress of their children. He testified that because of these problems, he consulted with Maclin and did some demonstration teaching for her. In March and May of 1979, he made formal observation of her classes and in his testimony indicated that while these were formal visits, he had been concerned about and had visited her classes on many other occasions. He testified that Maclin had complained that the children were inattentive and were not doing their work. He observed the class frequently and made some suggestions. On March 6, 1979, in a formal observation visit, he noticed lack of attention and that the class was very noisy. At that time he suggested that Maclin devise a folder system, with a folder for each child, with numbers assigned to each assignment made to them so that it would be easier to keep track of assignments which were not completed. In April of 1979, Hawkins wrote another letter to Maclin again suggesting the use of individual folders with numbered assignments, and called attention to the complaints of parents and Maclin s own lack of punctuality.

On April 24, 1979, a meeting was held at the office of George Latham, assistant school superintendent, with Maclin and Hawkins being present, to consider deficiencies in Maclin’s performance as a teacher. Following this, a letter was sent to Maclin by Latham outlining her deficiencies in teaching and her absenteeism and reminding her that she had previously been a source of concern in 1977 for her deficiencies as a teacher and warning her that if her deficiencies continued she might face a recommendation for dismissal.

On May 17,1979, Hawkins again, in a written memorandum, called Maclin’s attention to the lack of discipline in her classes and the fact that some students were not completing their assignments. On June 8, 1979, Maclin wrote to Hawkins telling him she thought his “close monitoring” of her class showéd that a dual set of standards existed, one for her and one for other members of the faculty, and that she felt his allegations “are slanderous, lack substance and are biased.” With this letter she included a note stating that copies of her letter were being sent to Operation PUSH, NAACP and the Urban League, and that she would be “selecting a lawyer from the Chicago area” to represent her. Upon receipt of this letter, Hawkins wrote to Latham requesting either that Maclin be dismissed or that she be reassigned to another school.

On June 26, 1979, after the 1978-79 school year was ended, a notice was sent to Maclin by the School Board designated “Second Remedial Notice” calling her attention to the previous remediable notice of January 1977 (of which we have no record), indicating deficiencies in her teaching performance and stating that she was directed to remedy and remove her deficiencies as listed in the attached memorandum entitled “Deficiencies in Teaching Performance.” These consisted of the following:

Failure to (1) maintain proper discipline; (2) organize her classroom for effective instruction; (3) present clear explanations and instructions; (4) satisfy parents of her pupils; (5) keep up-to-date test records, making it difficult to monitor progress in her class; (6) number assignments, maintain pupil folders and communicate with parents as to assignments not done; (7) respond in a positive manner to supervisors’ suggestion; (8) arrive at school on time, and (9) establish a satisfactory work attendance record. In the School Board’s letter of June 26, Maclin was informed that she had until November 2,1979, to remedy the deficiencies noted above.

School began on August 28 for the 1979-80 school year. In September — immediately after Labor Day — Hawkins notified Maclin that as part of her remediation program her classes would be observed on certain occasions by selected faculty supervisors, specifically Mrs. Morrissey for reading and language, Mrs. Reinhardt for social studies and Mr. Witt for science and mathematics, as well as himself, and that she would be notified in advance when the observations were to be made.

Pursuant to this program, Mrs. Morrissey observed Mrs. Maclin’s class in reading on September 14. The day before, she had notified Maclin she would be observing her class and they had a “pre-observation” conference in which Maclin advised Morrissey what the class would be reading. Accordingly, Morrissey visited Maclin’s reading class. In a letter to Maclin dated September 21, following the observation, with copies to Hawkins and Latham, Morrissey commented in summary as follows on the class she observed: (1) Maclin failed to maintain proper discipline— students were talking instead of listening; (2) there was a lack of intelligent instruction in reading; (3) there was a failure to present clear explanations and instructions — time was wasted in giving assignments.

Mrs. Reinhardt observed Maclin’s class in social studies on September 19 and 24, following which she wrote a memo to Maclin, copies to Hawkins and Latham, in which Reinhardt noted that Maclin’s teaching showed a lack of preparation, that she introduced the concept of latitude and longitude, which was actually prescribed for the following day and had gotten latitude and longitude reversed. The use of the globes in the geography lesson was poor due to lack of instruction and there was a great deal of boredom and inattention. Maclin handed out maps but there was no adequate explanation as to the use of the maps, and it was Reinhardt’s impression that the children were confused. On September 24, Reinhardt returned for observation of the same area of study. At that time, she testified, another mistake was made in the maps when Mrs. Maclin handed out ditto sheets with a sketch of the globe on them, which placed the equator at the latitude of 10 degrees instead of 0 degrees. The result was that the two halves of the globe denoting the two hemispheres could not be put side-by-side because the equator line was askew. Although Maclin verbally corrected this error, the children were unable to use the ditto sheets properly. Reinhardt came again on October 18 to observe the class. Her comments on that observation did not indicate any specific errors, but did indicate that Maclin continued to have trouble getting the children’s attention and she complained that they were misbehaving. Reinhardt gave it as her opinion, based on 20 years of teaching and observing, that Maclin was not qualified to teach in the school district. Morrissey again observed Maclin’s reading class on October 3. Maclin was notified in advance of this visit. In her report about this session, Morrissey noted that the instruction was poor and the class discipline deteriorated as the class went on. She ascribed the poor quality of instruction to the lack of preparation and noted that Maclin should have been prepared since she had advance notice of Morrissey’s intended observation. At the end of her testimony, in response to the direct question, she gave her opinion that Maclin was not qualified to teach in the school district. In reply to the question: “On what do you base this opinion?” she replied: “I base my opinion on my observations and my conversations with Mrs. Maclin. Mrs. Maclin cannot thoroughly prepare lessons. She cannot maintain discipline. She cannot organize her class for effective instruction. She makes mistakes. She has a negative attitude toward students’ ability to learn and a negative attitude toward receiving help to improve her teaching.”

Mr. Witt, mathematics and science supervisor for the School District, observed Maclin’s class on September 28, pursuant to a “pre-visit conference” on September 25. As a result of his observation he wrote a report commenting that Maclin caused “confusion and misunderstanding of the questions you asked and your procedure of cutting off answers before the child could communicate what he or she meant.” He also noted haphazard use of the teaching materials and misunderstanding as to the assignment, which was not corrected. Much time, he noted, was spent correcting “small behavior problems.” A lab problem could not be done because Maclin had not brought along the necessary materials even though she had gone over the intended lesson in a preconference with Witt. Witt believed the children were confused about the concept of the earth’s various layers, and this was not corrected by Maclin. On November 1, he observed her class again. He noted a mistake in Maclin’s reference to “area” when she actually meant “volume.” He noted that a worksheet was distributed but before it was completed another worksheet was distributed having to do with the previous day’s lesson. Toward the end of the hour, the class began to be restless and the noise level increased. Maclin then explained the problem on the second worksheet but her explanation was wrong. It involved measuring a line segment, first to the nearest inch, then to the nearest half-inch, and finally to the nearest quarter-inch. The children apparently did not understand the concept of “to the nearest.” She told them to disregard the second and third parts of the problem because she had not taught them “estimations,” and she would take that up another day. As a result, the students who had done the problem correctly thought they had done it wrong and started over. Witt noted that the noise level was loud and some students wandered about the room. At the end of the testimony, he gave as his opinion, based on his education and experience and his observations of Maclin, that she was not qualified to teach in the school district.

Mr. Hawkins, the school principal, observed Maclin’s class on October 11 and 25. She had advance notice of these visitations. He noted that Maclin did not get the children’s attention before beginning to explain the lesson, children used ballpoint pens on the maps instead of the pens with washable ink, so that they could be erased, and that only six out of 24 students did the assignment correctly — six did not do it at all and the other 12 did it partly right. Hawkins visited Maclin’s class again on October 25. This was a library session. He noted the children were noisy and inattentive and that upon returning from the library, instead of proceeding with the assignment that had just previously been given on language and spelling, Maclin went into another social studies’ lesson and had the children listen to a tape. Nothing was done with the actual assignment that had just previously been made. He noted that a mistake was made in locating a city by longitude and latitude. This was thought by the children to be Cairo and Mrs. Maclin agreed with this answer. However, upon playing the tape back the class learned that the correct answer was Alexandria. He noted that if Mrs. Maclin had properly prepared for this lesson she would not have made this mistake. Again, he noted discipline .problems. In his testimony, Hawkins referred to visits he had made to Maclin’s classroom the previous school year, March through May of 1979, as the result of her poor teaching and inability to keep order. He gave it as his opinion that she was not qualified to teach in the school district because of lack of organization and poor preparation and too many disciplinary problems.

On November 13, 1979, Maclin was given notice that she was dismissed as a teacher in the school district based on the following charges:

“1. You have failed to remedy deficiences which were brought to your attention in the Notice to Remedy mailed to you by certified mail on June 26,1979.
2. You are negligent.
3. You have been insubordinate and have failed to follow the instructions of your supervisors and cooperate with them.
4. In the opinion of the Board of Education, you are not qualified to teach.
5. In the opinion of the Board of Education, your dismissal is in the best interests of the school.”

On the same date, Maclin was provided with a bill of particulars as to charge (1) — failure to remedy deficiencies — she was furnished a copy of the various classroom observations of Morrissey, Reinhardt and Witt, made during the period of remediation, indicating Maclin s failings during that period. As to charge (2) — that she was negligent — this was based on Maclin’s failure to properly supervise students and maintain order. Charge (3) — that she was insubordinate — was particularized by the allegations that she had failed to follow directions from Mr. Hawkins and that she had verbally resisted his suggestions and directions. Charges (4) and (5) were supported by a statement that she was lacking in judgment, did not maintain order and her understanding of her academic subject matter was so deficient that there was no possibility within the foreseeable future that she could provide competent instruction, all as evidenced by the reports of her supervisors following classroom observation.

An administrative hearing was held on February 5, 1980, involving numerous exhibits and over 1,400 pages of testimony and argument. At the end of the hearing, the hearing officer held that the charges were not proved and that Maclin should be reinstated as a teacher.

The School Board immediately appealed the hearing officer’s decision to the circuit court. After reviewing the testimony and the exhibits, the circuit court reversed the hearing officer’s decision as being against the manifest weight of the evidence and affirmed Maclin’s dismissal by the School Board. This appeal followed.

At the outset, we must dispose of the motion filed by the School Board to strike the appellant’s brief on the ground that it is “blatantly argumentative and replete with misstatements of the record” and, therefore, violative of Supreme Court Rule 341(e)(6) (73 Ill. 2d R. 341(e)(6)). There are certainly some instances of argumentative material, such as referring to Hawkins’ “team” of evaluators and the comments in Maclin’s brief regarding Hawkins’ hostility and lack of fairness. During cross-examination of Hawkins, defense counsel for Maclin asked, in a leading manner, if Hawkins had not told Maclin the day before the evaluation of October 25 that he would be making negative remarks about her teaching. Hawkins replied that no such conversation ever took place. Nevertheless, defense counsel dwells on Maclin’s testimony that “he did make the comment that ‘well when he came to the room he would make negative remarks.’ ” It is difficult to believe that a principal would tell the teacher beforehand that he was coming to her room to make negative remarks about her teaching. This statement is not credible, and since Hawkins denied that any such remark was ever made, it should not have been argued in the brief as a basis to show prejudice as if it was an established fact.

The racial issue was also raised in an improper manner in the Maclin’s brief. There is no mention of this issue in the administrative hearing and the first mention of it is Maclin’s letter to Hawkins of June 8, where she not only accused him of bias but made it plain that she meant racial bias by appending a note to her letter stating that she was sending a copy of that letter to Operation PUSH, NAACP and the Urban League, and would soon be hiring a lawyer to represent her. This part of the appellant’s brief is certainly objectionable since it is raised as an issue for the first time in the appeal brief and is not supported by any evidence whatsoever and is purely argumentative. While we do not grant the motion to strike the appellant’s brief — a drastic remedy — we find it objectionable in the respects noted above.

We now come to the appeal itself. Maclin contends that the circuit court erred in finding the decision of the hearing officer to be contrary to the manifest weight of the evidence in that the court substituted its judgment for that of the hearing officer as to the credibility of the witnesses on the question of Maclin’s progress toward remedying her deficiencies and also as to the reliability of the evaluation process.

The best way to evaluate these contentions is by analyzing the exhibits and the testimony. The hearing officer found that the charge of vandalism in exhibit A in the “Notice to Remedy” was not relevant to the remediation period of June 26 to November 2. That, we think, is itself an irrelevant finding because the charge of vandalism was not a ground for dismissal but was simply a basis to the notice to remedy deficiencies. This is also true of alleged deficiencies which occurred while Maclin was teaching fifth grade in the spring of 1979. These deficiencies merely explained the notice to remedy and were not charges justifying her dismissal.

The hearing officer found that: “The evidence presented by the board did not substantiate the charge that she was ‘creating confusion and doubt on the part of her pupils.’ ” This again is not an exact charge in the notice of dismissal nor is it a noted deficiency. The deficiency noted was: “You have failed to present clear explanations and instructions to your pupils in the classroom, thus creating confusion and doubt.” The evidence that Maclin’s explanations and instructions were confusing, erroneous and incomplete was substantial and it is reasonable to suppose that confusion and doubt would follow on the pupils’ part from the confusing, unclear and incomplete explanations and instructions. We think, based on the observations made by the three supervisors, which were referred to and made a part of the bill of particulars, and also by the principal, Hawkins, that the circuit court was correct in holding that the hearing officer’s finding that this deficiency was not established by the evidence is erroneous and is itself against the manifest weight of the evidence.

The hearing officer’s opinion is somewhat hard to follow since he confusingly switched back and forth in his decision between “deficiencies in teaching performance”, listed as exhibit A, and the charges set forth as the actual basis for dismissal. Nevertheless, we find substantial support in the bill of particulars and in the notice of teaching deficiencies to support several of the charges which were the basis of the dismissal. The hearing officer indicated (without clearly so ruling) that the lack of progress of Maclin’s students in the fifth grade during the spring of 1979 and their failure to keep up with the other class in reading certain magazines could not be considered in this case, since those deficiencies preceded the remediation period. However, according to Mrs. Morrissey (the reading supervisor) deficiencies were noted in Maclin’s teaching of reading in the months of September and October, 1979, during the remediation period. The fact that certain other specific reading deficiencies were noted in April and May of 1979 and were part of the prior deficiencies noted in Maclin’s teaching performance, merely establishes that there was a basis for the June 26 remediable notice letter. The lack of reading skills noted in April and May of 1979 was a deficiency to be remedied during the period from June 26 to November 2, 1979, and was pertinent as establishing a basis for the remediable notice letter. Failure to remedy the deficiencies noted in the document entitled “Exhibit A — Deficiencies in the Teaching Performance of Mrs. Elaine F. Maclin” specifically referred to her fifth grade teaching in the spring of 1979, and was the basis only of charge 1 of the charges which were the basis of her dismissal. We think on the evidence of the observation reports above referred to it could fairly be said that this charge was justified.

Charge 2 — negligence—was also proved by the classroom observations, which indicated several instances of lack of preparation and failure to keep order.

Charge 3 — the charge of insubordination and failure to follow instructions — is more dubious. The bill of particulars refers to the failure to establish a folder system; however, Maclin did attempt to establish a folder system after the 1979 fall semester began. It was not a very satisfactory system, judging from the exhibits before us. The folders show the lack of thoroughness and follow through which the supervisors complained of in other respects. However, the attempt to establish something along the lines suggested by Mr. Hawkins does show some effort to comply with instructions. The folders, in our opinion, tend to show rather poor organization, rather than insubordination.

Charges 4 and 5 — “you are not qualified to teach” and “your dismissal is in the best interests of the school” — are conclusions, not proper charges. However, if proved by the evidence, they would be proper reasons for dismissal. The evidence adduced at the hearing seems to justify these conclusions. The bill of particulars cites poor judgment in preparing for and conducting classes and in keeping order in the classroom and refers to Maclin’s deficient understanding of the subjects she was teaching. As indicated in the bill of particulars, these deficiencies in judgment, inattention to detail and failure to maintain discipline, are serious. Deficiency in judgment and lack of system after so many years of teaching may suggest an irremediable condition. On the basis of the record before us we can only agree with the conclusion of the school board that Maclin’s understanding of the academic subjects which she had been assigned to teach was “so defective that there is no possibility within the foreseeable future that you can provide competent instruction in the classroom.”

Maclin invokes the case of Board of Education v. Illinois State Board of Education (1980), 82 Ill. App. 3d 820, a decision of this court. That case involved a teacher by the name of Murray who was given notice to remedy his deficiencies on February 22 and was dismissed for failure to do so on April 4. The hearing officer reinstated him and the circuit court reversed. On appeal, this court reversed the circuit court, finding that Murray had not been given sufficient time to remedy his shortcomings and that the hearing officer’s decision was not against the manifest weight of the evidence.

However, there are significant differences between the case before us and that of Murray. In that case, the evaluation reports indicated that Murray was making some improvement. In fact, one evaluator’s comment was somewhat complimentary. This was not so with Maclin. While the hearing officer gave his opinion that she had made “some” progress in maintaining discipline in her classroom, the observation reports of the faculty members who observed her classes provide no ground for this conclusion and the evaluators were obviously not of that opinion. This conclusion by the hearing officer does not appear to be in accord with the testimony of Maclin’s superiors who observed her. Moreover, in the case of Murray we found that the deficiencies were remediable but that Murray had not been given enough time — only 41 days — between the notice of his deficiencies and his discharge. In the case before us, Maclin was notified of her deficiencies on June 26, and her remediable period extended to November 2. While school was not in session during the period from June 26 to August 28, she did have time during this period to consider the deficiencies noted by the school authorities and to plan to remedy them. In any event, however, the actual time between the beginning of the 1979-80 school term and the end of the remediable period — August 28 to November 2 — was 64 days, considerably more than the 41 days in Murray’s case. Another difference between Murray’s case and the present case is that in Murray’s case only 15 days elapsed between the notice to remedy and his final observation. In Maclin’s case, the first observation was by Mrs. Morrissey on September 14 and the last observation was by Mr. Hawkins on October 25, a period of 41 days during which her classes were observed by Morrissey, Reinhardt, Witt and Hawkins. Thus, we think Maclin was given fair treatment. While general principles are helpful in these cases in establishing the ground rules, the actual resolution of teacher dismissal cases depends on the facts and circumstances of the particular case. We believe this case differs sufficiently from Murray’s case in its facts to justify a different result. If Murray’s case may be regarded as a close case with the balance tilting slightly in favor of the teacher, we think in the present case the balance tilts definitely in favor of the School Board.

In this case, Maclin’s deficiencies were fundamental and of long standing having to do with her own mental discipline and her lack of grasp of her subjects. These deficiencies did not appear suddenly — they existed and were called to her attention as far back as 1977. Moreover, her defensive attitude — founded on her belief that some of the criticism against her was racially motivated — created an atmosphere which definitely worked against remediation since she was thereby led to assign the criticism to outside influences she could not control. A careful reading of the testimony and the exhibits supports the opinion of the circuit court that the hearing officer’s decision was not in accord with the manifest weight of the evidence adduced at the hearing. We are in accord with the circuit court’s conclusion that Maclin’s dismissal was justified. The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

NASH and REINHARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
      In re ESTATE OF MYRON J. NAKAERTS, Deceased.—(PATRICIA NAKAERTS, Petitioner-Appellant and Cross-Appellee, v. ARMAND NAKAERTS, Ex’r of the Last Will and Testament of Myron J. Nakaerts, Respondent-Appellee and Cross-Appellant.)
    Third District
    No. 81-201
    Opinion filed April 29,1982.
    Charles E. Ruch, Jr., of Nutting, Thacker, Sacks & Paulauskis, Ltd., of Kankakee, for appellant.
    Ronald E. Boyer, of Fleming, Boyer & Strough, of Watseka, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Patricia Nakaerts, widow of decedent Myron Nakaerts, filed petitions in the circuit court of Iroquois County requesting an award as surviving spouse, seeking to renounce decedent’s will and to take the widow’s intestate share, requesting a surviving child’s award on behalf of her minor son, Lindy Matthew Nakaerts, and asking for unpaid alimony and child support pursuant to a temporary order entered in a marriage dissolution proceeding prior to decedent’s death. After an extensive hearing, the trial court awarded $2,752 as unpaid alimony and support and $2,340 for the child’s award, and denied all other relief. The widow has appealed, and the executor of decedent’s estate has cross-appealed from the order of the trial court which allowed the claim for alimony and child support while refusing to allow credit for social security benefits received by the child while decedent was totally disabled before death.

Patricia and Myron Nakaerts were married in 1960, with each party having children by a prior marriage, and each having a residence of their own. At first the parties lived together with all their children, and a daughter was born of the marriage, but in 1961 the husband and wife separated, with Patricia moving to her home in the city of Clifton, Illinois, where she had a beauty shop business, while Myron continued to live on the farm which he leased. According to Patricia, Myron spent about four nights of seven with her during the time they lived separately.

In 1966 Myron lost his lease and was being forced to move. His mother was willing to deed Myron a 40-acre parcel with a house, provided Patricia would have no rights to it, so Myron retained an attorney who drafted a document entitled “Post-Nuptial Agreement and Property Settlement.” The contract provided that each party would own their separate property free from any interest of the other, that neither party would renounce any will executed by the other, and that each would waive a surviving spouse’s award. The contract recited that the husband and wife were then living separate and apart and that both were desirous of “making a just and equitable settlement of the property rights that each may have in the property now owned, or hereafter acquired, of the other.” Under the terms of the agreement, the husband agreed to pay to the wife $1,500, and Patricia testified that he did pay her that sum and that she spent it. Patricia signed the contract in the lawyer’s office on March 14,1966. It was never recorded. Myron’s mother conveyed 40 acres to him, subject to her own life estate, and later Myron was able to purchase another 40 acres of family property. Both parties continued to hold all real estate and personal property, including all bank deposits, separate.

While the parties were ostensibly residing apart, Patricia became pregnant in the summer of 1967, and in September she and her children moved back in with Myron. She gave birth to Lindy in February of 1968, and remained with Myron until March of 1977 when she again left. While living with Myron, Patricia sold her home. She kept the proceeds from the sale and her income from her beauty shop business separate from Myron’s money. The two then shared household expenses, with Patricia paying a proportionate share for her children by a prior marriage.

After Patricia left Myron in 1977, she filed suit for divorce, and the court entered orders for temporary alimony and child support. Myron became disabled after those orders were entered, and from January 1978 until his death, Patricia received social security disability benefits in the amount of $231 for each minor child each month. At that time both minor children of the parties were living with Patricia. The amount of social security benefits received by Patricia exceeded the amount of her claim for unpaid temporary child support.

The trial court entered an order denying the executor’s request for a setoff of the social security disability benefits and allowing Patricia’s claim for unpaid alimony and support in the amount of $2,752. The court also allowed her petition for a surviving child’s award, in the amount of $2,340, and held that her petition for a widow’s award and for renunciation of the will were barred by the agreement executed in 1966. This appeal followed.

The first issue before this court is whether, under the law of Illinois, Patricia can be held to have waived irrevocably her statutory widow’s award by an agreement entered into while she and Myron were separated when thereafter the parties resumed their marital relationship and had another child. In Pavlicek v. Roessler (1906), 222 Ill. 83, 78 N.E. 11, the Illinois Supreme Court said:

“The widow’s award is a statutory allowance made for the benefit of the widow and other members of the family of the decedent, and especially his children of tender years, that they may not be left wholly without support in the days of desolation following the death of the husband and father, and before time or opportunity has been afforded for readjustment to changed conditions. Hence it has been held that the widow cannot release the award by an ante-nuptial contract where there are children entitled to share in the benefit of its protection. [Citations.]” 222 Ill. 83, 86, 78 N.E. 11, 12.

The decision in Pavlicek v. Roessler applied the rule of public policy discussed in earlier Illinois cases: that a widow’s award is for the joint benefit of the widow and minor children of the decedent, and that the widow has no power to deprive the children of such benefit by contract. (See Kroell v. Kroell (1905), 219 Ill. 105, 76 N.E. 62, and cases cited therein.) We are aware of no later decisions rescinding the rule, and we believe the public policy of Illinois remains as stated by the courts in these early cases. During oral argument before this court, the appellee conceded that the law of Illinois required the allowance here of a widow’s award with an additional amount for the child, regardless of the agreement to the contrary, but he said that Patricia waived any such error on the part of the trial court because she did not argue that the agreement violated public policy. Appellee also contends that any error was invited when she petitioned for a separate surviving child’s award for the minor child residing with her.

We believe the trial court did not apply the correct rule of law. An error of law can and must be corrected upon review, particularly where the interest of a minor is at stake. “The court has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented on its behalf.” (Muscarello v. Peterson (1960), 20 Ill. 2d 548, 170 N.E.2d 564.) We believe the contract entered into while the parties were separated is not a bar to Patricia’s claim for a surviving spouse’s award.

We also believe that this same public policy must be applied here to abrogate the entire agreement and to permit Patricia to renounce the will and obtain the widow’s intestate share of Myron’s estate. Also, Patricia should not be allowed to contract away the rights of unborn children to inherit from her a portion of their father’s estate. The agreement at issue here was executed while the parties were separated, and was expressly in contemplation of their separation. In a similar factual situation, in Boyd v. Boyd (1914), 188 Ill. App. 136,140, the court stated:

“[S]uch contracts made in contemplation of the parties living separate and apart from each other, or where the element of separation enters into them, or where the separation is an accomplished fact when the contract is made, and without it in all probability the contract would not have been made, are not looked upon with indulgence by the law, and while in some cases they will be enforced while the parties live in separation, yet in our opinion when the parties effect a reconciliation and resume their marital relations fully and completely, such contract is abrogated by the action of the parties themselves and ceases to have any force or effect, at least in so far as it attempts to relieve the husband from the maintenance and support of his wife and children.”

The appellee insists that the instant case is distinguishable from those cases which involved executory contracts (separation agreements) because this agreement was a property settlement, not involving support and not contingent upon the parties’ continued separation. We conclude that to draw such a distinction here would do violence to the long-established principles of law which we have set forth. Furthermore, we believe that plain common sense would indicate that an agreement of this type should not be considered enforceable after the parties are reconciled and have produced another child. This is not a post-nuptial property settlement where two persons marry long after the child-bearing years are past and attempt to keep their estates separate for their families by previous marriages. Here the parties married while still relatively young, had one child, separated, then resumed their family life together and had another child. It is in the interest of that child that the mother be allowed to claim a surviving spouse’s award so that she can provide a home for the boy and also that she be able to claim her intestate share of the property for his potential benefit. Accordingly, we hold that the order of the trial court must be reversed and remanded for further proceedings.

On cross-appeal, the executor of Myron’s estate contends that the trial court erred in allowing Patricia’s claim for unpaid temporary alimony and child support without setting off the amounts received by her as social security disability benefits paid on behalf of the parties’ minor son when Myron became disabled. Neither party has been able to provide us with any Illinois precedent, and other jurisdictions are divided. See Annot., 77 A.L.R.3d 1315 (1977).

In Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, the Illinois Supreme Court ruled that a father could not make a unilateral reduction in child support payments when one child reached his majority. In its decision, the court said it is the function of the court to determine whether equitable considerations require a pro rata reduction or whether other factors require a different result. “The responsible parent should petition the court for a judicial determination of the amount the support payments should be reduced due to changed circumstances.” (81 Ill. 2d 317, 329,410 N.E.2d 12, 18.) Consistent with this approach is that of the State of Washington, where the courts have held that a father was not entitled to credit against his child support payments for social security disability benefits paid to his child, in the absence of a modification of the original support order, and that the father’s disability and the resulting entitlement to benefits are changes in the condition of the parties to be considered by the court but that a modification requires affirmative action by the court. Chase v. Chase (1968), 74 Wash. 2d 253, 444 P.2d 145; Hepton v. Hepton (1980), 25 Wash. App. 229, 605 P.2d 1288.

We, therefore, conclude that the trial court did not err in refusing to allow a setoff. To have done so would have amounted to a retroactive modification of vested support rights. We affirm the award of $2,752 for unpaid alimony and child support.

Affirmed in part, reversed in part and remanded.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY W. JOHNSON, Defendant-Appellant.
    Third District
    No. 81-456
    Opinion filed April 30,1982.
    Modified opinion filed September 24, 1982.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

An indictment filed in the circuit court of Peoria County charged the defendant, Anthony W. Johnson, with robbery and burglary. It alleged that on November 12, 1980, the defendant broke into the residence of Kathy Otten of Peoria, bound her hands and feet, and forcibly took items worth more than $5,000. Following a jury trial, the defendant was found guilty of both charges. In addition to sentencing the defendant to concurrent five-year terms of imprisonment, the court also ordered him to pay restitution to Otten in the amount of $265, which was to be deducted from his $2,500 bond. The only issue raised on review is whether the court sufficiently determined the defendant’s financial capacity prior to ordering restitution. We find that the court failed to do so. We therefore vacate the restitution order and remand for further proceedings.

Section 5 — 5—6(a) of the Unified Code of Corrections provides that where restitution is contemplated:

“A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court’s discretion.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6(a).)

The defendant, relying upon People v. Krug (1981), 97 Ill. App. 3d 938, 424 N.E.2d 98, argues that the court erred in the instant case because it failed to conduct a separate, formal “pre-sentencing hearing” to assess his financial capacity, which he claims Krug made mandatory. On the other hand, the State points to People v. Abraham (1980), 89 Ill. App. 3d 786, 412 N.E.2d 45, where this court specifically ruled that the question of whether to hold such a hearing lies within the discretion of the circuit court. Both parties are correct in part.

We agree withAforaham that the decision to hold a section 5 — 5—6(a) “pre-sentencing hearing,” which is separate and distinct from the primary sentencing hearing, is discretionary, not mandatory. To impose the duty of holding a separate sentencing hearing only to determine a defendant’s financial condition would not only add a duplicative proceeding, prodigal of scarce judicial resources, but also would give the defendant very little additional protection. Moreover, the defendant’s reliance on Krug in support of his argument that a presentencing hearing must be separately held is misplaced. In Krug we remanded the restitution order because the court failed to make any findings on the defendant’s future ability to make restitution. In fact the record in Krug suggested that the court imposed restitution sua sponte after adjournment of the sentencing hearing.

Nevertheless, as we held in Krug, section 5 — 5—6(a) makes mandatory the determination of the defendant’s financial status before imposing restitution. If the court declines to hold a separate hearing for this purpose, then it must make the finding during the formal sentencing hearing. The record must disclose some evidence of substantial compliance with the statutory requirement that the defendant’s financial status has been considered by the court in imposing restitution as part of the sentence.

Here, as in Krug, the court failed to find a satisfactory basis for ordering restitution. At the sentencing hearing the parties exclusively argued whether the defendant should receive a term of imprisonment, and if so, how long was the term to lash Neither the defendant’s appointed counsel nor the assistant State’s Attorney discussed the defendant’s financial status with respect to his ability to pay restitution. Upon ordering restitution, the court referred to no facts or circumstances suggesting the defendant’s ability to pay. Similar to Krug, the court here apparently ordered restitution sua sponte. The absence of any basis in the record upon which the court could have ordered restitution resulted in prejudicial error.

The State argues that in fact the court had before it the evidence necessary to assess his financial capacity to pay restitution because of the information contained in the presentence report. The report, which the court considered before imposing sentence, showed that the defendant, who was 19 years old, lived with his mother, paid no rent to her, and earned about $30 to $40 monthly from odd jobs. The State concludes that this data provided a sufficient factual basis for the court to have properly concluded that the defendant did indeed have the financial ability to make restitution. We cannot agree. We believe section 5 — 5—6(a) requires a court to state for the record that it has considered the factual basis upon which it has concluded that the defendant has the financial capacity to make restitution. Examples of sources from which the court may draw its facts include the presentence report, evidence presented at the sentencing hearing, and the defendant’s statement of assets and liabilities.

Finally, the State argues that even assuming the court erred in not providing a factual basis for its order of restitution, the error was harmless because the $265 restitution award was deducted from the $2,500 cash bond, an asset placed before the court by the defendant. Had the court inquired into whether the bond money was actually the defendant’s, we might agree. However, the court simply assumed that the money was his. As the supreme court noted in People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56, the ability to post bail does not necessarily indicate a defendant’s financial ability to pay restitution or reimbursement. Often bail is posted with borrowed money or by relatives or friends. To presume that the defendant has the financial capacity to make restitution on the basis of his posting bail, without any additional evidence, is contrary to section 5 — 5—6(a).

Our decision to remand the restitution order today should not be considered as an ultimate rejection of restitution in the case at bar. The facts clearly indicate that the victim suffered a great monetary loss, in addition to undergoing a terrifying ordeal. Before imposing restitution, however, the court must determine whether the defendant has the ability to pay it. Here the court apparently made no such finding.

For the foregoing reasons, we affirm the judgments of conviction and the concurrent five-year terms of imprisonment entered in the circuit court of Peoria County, and we vacate and remand the order of restitution for the court’s reconsideration consistent with the views expressed herein.

Judgment affirmed, sentence affirmed in part, and remanded in part.

SCOTT, P. J., and STOUDER, J., concur.


author: JUSTICE MILLS

text:
    THE VILLAGE OF SHERMAN, Plaintiff-Appellant, v. THE VILLAGE OF WILLIAMSVILLE et al., Defendants-Appellees.
    Fourth District
    No. 17406
    Opinion filed May 12,1982.
    Rehearing denied June 7, 1982.

      Paul E. Presney and James D. Kelly, both of Presney, Huffman, Kelly & Appleton, of Springfield, for appellant.
    Barber, Hall, Segatto & Hoffee, of Springfield (Carl O. Hoffee, of counsel), for appellee Village of Williamsville.
    Fred Prillaman, of Mohan, Alewelt & Prillaman, of Springfield, for appellee Williamsville-Sherman Water Commission.
   JUSTICE MILLS

delivered the opinion of the court:

A water contract for the benefit of two neighboring municipalities— Williamsville and Sherman.

Now Sherman seeks to renege.

The trial court held it can’t.

We agree.

It is necessary to recount the background of this case in somewhat tiresome detail. Williamsville has always been the exclusive seller and distributor of water to Sherman. Even before Sherman was incorporated in 1958, Williamsville was providing water to customers in that area. Originally the water source for the Williamsville distribution system was a well in Williamsville. But as the villages grew their demand for water increased and a new source of water was needed. The villages created the Williamsville-Sherman Water Commission (the Commission) pursuant to section 11 — 135—1 et seq. of the Illinois Municipal Code. (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 135—1 etseq.) The purpose of the Commission was to obtain water from Springfield and to finance the construction of facilities to transport and store the Springfield water.

In connection with acquiring the new water supply, an agreement dated August 17, 1971, was entered into by the Commission and the villages of Williamsville and Sherman (hereinafter referred to as the 1971 Contract). Pursuant to this agreement, Williamsville was to buy all of the water the Commission purchased from Springfield. The Commission was to be the exclusive supplier of water to Williamsville during the time any of the Commission’s bonds remained unpaid, and Williamsville was to be the exclusive supplier of water in Sherman. This agreement expires on November 1, 2011, and provides for annual extensions thereafter.

The agreement was modified on June 6,1972, in part to relieve Sherman of the immediate obligation to construct a water tower upon the payment of $25,000 to the Commission, but obligating Sherman to construct a tower at its own expense if one should ever be required in the Sherman area. The $25,000 payment was to be applied by the Commission to reduce outstanding bond indebtedness. In addition, the original agreement was amended to provide that Williamsville would be the exclusive distributor of water within Sherman for the entire term of the base agreement instead of being the exclusive supplier only during the period in which the Commission had outstanding revenue bonds.

On August 31,1971, the Commission, Williamsville, Sherman, and the City of Springfield entered into a written agreement pursuant to which Springfield agreed to sell water to the Commission. This agreement also expires on November 1, 2011. During the 40-year period of this agreement, Springfield is to be the exclusive supplier of water to the Commission. Under the agreement, Williamsville agrees to provide minimum storage facilities equal to at least one day’s water usage.

Thereafter, a 10-inch water transmission line from the north edge of Springfield to Sherman was constructed along with other facilities. The transmission line connecting the Williamsville system to Springfield provides a capacity of one million gallons per day, substantially in excess of the minimum needs in 1971 of the customers of the Williamsville distribution system. The excess capacity was to provide for future development in the Williamsville and Sherman areas. In order to recover a portion of the cost of. this excess capacity, the Commission, Williamsville, and Sherman entered into an agreement providing for a water development fee. Under this agreement, developers are required to pay a fee of $200 per apartment in a multi-family development, $200 per residential lot, and $400 per single commercial development up to a 3/4-inch tap.

From August of 1971 to the present time, Sherman has experienced rapid growth. Several new developments have been proposed and constructed in Sherman since 1971. One proposed project, which never reached the construction stage, was a racetrack development known as Lincoln Land Downs. The only contact Williamsville had with this project was a letter sent from Lee Miller, Williamsville’s president, to the secretary-treasurer of the project in response to an inquiry as to whether Williamsville would sue the project if it acquired its own water supply.

Sherwood Zimmerman, the president of Sherman, testified that developers in the Sherman area have had difficulties regarding water extension application denials. He cited two specific examples: projects known as Villa Vianny and The Rail. Sherman had determined that Villa Vianny was a commercial project, not a multi-family project and therefore a single commercial tap and water development fee should have been applicable. Williamsville considered the development a multifamily project and suggested a revised application with a larger tap fee and development fee. With respect to The Rail development, Mr. Zimmerman’s testimony indicated that the developer’s plans were yet to be ascertained. At one time the developer was going to develop a series of single-family condominiums and sought a single tap; however, this plan was changed.

Williamsville declared a moratorium on water main extensions throughout the water distribution system from December 1977 to March 1978. This was due in part to the fact that the system’s storage facilities were inadequate under the Springfield contract which required Williams-ville to provide minimum storage facilities and the fact that Springfield had threatened to institute legal proceedings to assure compliance with the minimum storage requirements.

To finance proposed improvements in its water and sewer systems, Williamsville passed Ordinance 80-11 which provided for an increase in water rates. This rate increase was found to be excessive and was later reduced. No refund was made to customers with respect to the excessive rates and the revenues generated by the rate increase were not deposited in segregated accounts.

Sherman filed its complaint on February 1, 1980. Count I sought recision of the agreements in question because of Williamsville’s alleged breach of its duty to supply water to all Sherman customers; count II sought an accounting for all revenue generated by the water distribution system; count III requested an injunction against the issuance of bonds pursuant to Ordinance 80-11; count IV was a request for a declaratory judgment invalidating the water main extension contract used by Williamsville; and count V prayed for a declaratory judgment stating that the increased water rates were in violation of the 1971 Contract and that any water storage facility built pursuant to the contract was to be owned and operated by the Commission. The complaint was later amended to add counts VI through VIII. Count VI requested that a declaratory judgment be entered stating that the 1971 Contract was void or voidable for failure to conform with the provisions and requirements of section 11 — 135—1 et seq. of the Municipal Code; count VII alleged the agreement was void or voidable because it constituted an impermissible delegation and abrogation of sovereignty and the police powers of Sherman; and count VIII alleged invalidity because there was insufficient consideration for the amendment of June 6, 1971.

At the close of Sherman’s evidence, Williamsville made a motion to dismiss all counts of Sherman’s complaint. The trial court granted Williamsville’s motion with respect to counts I, IV, V, VI, VII, and VIII, and with respect to part of count III. The court ruled that Sherman had made a prima facie showing of its right to an accounting under count II of the complaint. Williamsville does not contest this ruling.

I

Williamsville, Sherman, and the Commission entered into a contract for the distribution and sale of water. Sherman now disputes the powers of these three municipalities to enter into, and act pursuant to, this contract.

Article VII, section 10, of the 1970 Illinois Constitution has conferred broad power on municipalities regarding intergovernmental agreements. It provides:

“Units of local government * * * may contract or otherwise associate among themselves * * * to obtain or share services and to exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance.”

Under paragraph (c) of section 10, the State is directed to encourage intergovernmental cooperation. Ill. Const. 1970, art. VII, sec. 10(c).

When discerning the purpose of constitutional provisions, the Illinois Supreme Court has attached great weight to the Record of Proceedings of the Constitutional Convention. (See Board of Education v. Bakalis (1973), 54 Ill. 2d 448, 299 N.E.2d 737.) Excerpts from the proceedings of the Constitutional Convention reveal the intended purpose and effect of article VII, section 10:

“It permits smaller units of local government, by combining to perform specific services or functions, to develop economies of scale with resultant cast [sic] reductions.
We think, in the long run, that vigorous intergovernmental cooperation will reduce the need for special districts and will permit the provision of services which no single unit can provide.” 4 Record of Proceedings, Sixth Illinois Constitutional Convention 3421 (hereinafter cited as Proceedings).
“You will notice that the language of the intergovernmental cooperation article is based upon an affirmative grant of self-executing power * * * which, in essence, means that it’s there unless it’s prohibited by the General Assembly — by general law. So it’s a provision that says, ‘You can do it unless the General Assembly says you can’t.’ ” 4 Proceedings 3426.

Article VII, section 10, eliminated the effect of “Dillon’s Rule” in construing intergovernmental agreements. This rule limited the powers of a municipal corporation to those expressly granted or incident to powers expressly granted by the General Assembly. The rule resolved any doubt of the existence of a power against the municipality. (Elsenau v. City of Chicago (1929), 334 Ill. 78, 165 N.E. 129.) The various divisions of our court have determined that article VII was intended to encourage cooperation among units of government and to remove the necessity of obtaining statutory authorization for cooperative ventures. (Village of Elmwood Park v. Forest Preserve (1974), 21 Ill. App. 3d 597,316 N.E.2d 140.) Furthermore, this court has stated that article VII, section 10, has abrogated Dillon’s Rule of strictly construing legislative grants of authority to local governmental units. Connelly v. County of Clark (1973), 16 Ill. App. 3d 947, 307 N.E.2d 128.

The 1971 Contract seems to be just the type of agreement contemplated by article VII. Williamsville and Sherman needed water. The Commission was created to buy water from Springfield and construct facilities to transport the water to the Williamsville distribution system. The 1971 Contract defines the terms under which Williamsville was to obtain water from the Commission. It appears highly unlikely that Sherman would have ever been able to provide water to its residents without the cooperation of Williamsville and the Commission. This is clearly a case of “units of local government * * * contracting] e # * to obtain or share services.” No statutory authority was necessary to authorize this contract and Sherman has cited no statutes that prohibit such a contract.

Sherman does not dispute that article VII empowered the parties to enter into this agreement. Rather, Sherman argues that the parties never intended to rely on article VII. It maintains that the parties intended the entire water distribution system to be operated within the framework of section 11 — 135—1 et seq. of the Illinois Municipal Code. (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 135—1 et seq.) Sherman then asserts that section 11 — 135—1 et seq. do not authorize the 1971 Contract.

Sherman has not established that the parties intended to restrict their powers to those expressed in the Municipal Code. The 1971 Contract makes no reference to the Code. Furthermore, even if the contract was beyond the scope of agreements contemplated by the Municipal Code, the contract would have been a manifestation of the parties’ intent to exercise their constitutional — rather than statutory — powers. The Municipal Code would have limited the powers of the parties only if it had contained an express prohibition of some aspect of the 1971 Contract.

(Section 3.1 of the Intergovernmental Cooperation Act (Ill. Rev. Stat., 1980 Supp., ch. 127, par. 743.1), which provides for the establishment of a Municipal Joint Action Water Agency, has no bearing on the issues in this case. Section 3.1 became effective September 19, 1980, and contains no expressed or implied provisions requiring retroactive application.)

II

Sherman argues that a municipality has police power to provide water to its citizens, that Sherman delegated that police power to Williamsville in the 1971 Contract, and that such a delegation of police power is impermissible. The preposterous import of this argument is that a town which is unable or unwilling to acquire its own water system could never enter into a binding contract with another municipality for exclusive water service. We have already concluded that article VII of the Illinois Constitution empowered both parties to make the 1971 Contract. Moreover, this type of contract is specifically authorized by statute:

“The corporate authorities of each municipality may contract with any person, corporation, municipal corporation, political subdivision, public water district or any other agency for a supply of water.” Ill. Rev. Stat. 1979, ch. 24, par. 11 — 124—1.

In its brief, Sherman quotes an American Law Report reference to City of Quincy v. Bull (1883), 106 Ill. 337, with the apparent belief that this case supports its position. We can only presume that Sherman’s counsel never read this case. A reading of the opinion would have revealed that City of Quincy is diametrically opposed to the stand Sherman takes in this case.

In 1873, Quincy was lacking an adequate water system and was unable to finance one. It contracted with Edward Prince for a privately constructed and operated system. Under Quincy ordinances, Prince was granted the exclusive right to construct and operate a waterworks system in Quincy for 30 years. Prince was also granted a right-of-way over all city streets for laying water mains. Eight years later, Quincy repealed this ordinance and refused to permit the complainants to expand the system by laying new water lines. The complainants sought to enjoin the city from interfering with the laying of water pipes in city streets. The trial court issued an injunction and this order was affirmed by both the appellate court and supreme court.

The city argued that the ordinance granting the right-of-way for the purpose of laying pipes was entirely void for want of power in the city council to make such a binding contract. Quincy maintained that the city’s legislative power of control over the use of its streets was incapable of being abridged and must be left free to be exercised unrestrictedly from time to time as the city council saw fit. The supreme court responded to this argument by stating that “[w]e do not perceive how the doctrine as to the legislative powers of a municipality can be brought in and have any bearing upon the facts of this case.” (106 Ill. 337, 351.) The court found that the city’s power to grant the right-of-way was “quite clear” and that the case involved no more than “the simple law of contract^].” The court concluded that “[t]he city must be bound by the contract and grant it has made, and had authority to make, the same as would an individual.” (106 Ill. 337, 352.) This case stands for the proposition that a municipality cannot rescind an exclusive water distribution contract as an impermissible abrogation of its legislative power.

Time has not diminished the force of City of Quincy. We note that in a recent decision our supreme court did not hesitate to follow 19th century precedent. In People v. Kincaid (1981), 87 Ill. 2d 107,429 N.E.2d 508, the court quoted from Truitt v. People (1878), 88 Ill. 518, and stated, “What was said in 1878 is valid today.” (87 Ill. 2d 107,124,429 N.E.2d 508, 515.) Likewise, we find that what was said in 1883 is equally valid now.

Ill

Sherman also contends that Williamsville breached the 1971 Contract in three respects:

(a) by declaring a moratorium on water main extensions;
(b) by an alleged failure to guarantee a water supply to Lincoln Land Downs; and
(c) by failing to supply water to The Rail and Villa Vianny projects.

A complaint for breach of contract must allege and the plaintiff must establish the existence of a contract, breach of the contract by the defendant, and damages to the plaintiff as a consequence. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289,408 N.E.2d 1014.) Sherman has not established a breach of contract by Williamsville. Sherman’s complaint cites to no language, expressed or implied, in the 1971 Contract that was breached by Williamsville in declaring a moratorium or in its dealings with the three developments.

IV

Sherman argues that the form contract used by Williamsville in connection with water main extensions installed by developers is inconsistent with the 1971 Contract. In the written order dismissing most of Sherman’s complaint, the trial court specifically found that the water main extension contract is subject to Sherman’s rights under the 1971 Contract.

V

Sherman has raised several other frivolous issues in its brief which do not merit discussion.

The order of the trial court is affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J, concur.


author: JUSTICE KASSERMAN

text:
    KELLY THRASH, Plaintiff-Appellant, v. THE BOARD OF EDUCATION, SCHOOL DISTRICT NO. 189, Defendant-Appellee.
    Fifth District
    No. 81-217
    Opinion filed May 10,1982.

      Gerald L. Montroy, of Cohn, Carr, Korein, Kunin, Schlichter and Brennan, of East St. Louis, for appellant.
    Stephen R. Rice, of Rice, Durso & Rice, of Belleville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Kelly Thrash, is a tenured teacher for School District No. 189, St. Clair County, teaching at Rock Junior High School. In 1975 he was appointed to the position of “administrative aide” to the principal, an appointment he held through June 1979. In 1979 plaintiff applied for and was granted a sabbatical leave for the 1979-1980 school year. When he returned in September of 1980, he was involuntarily assigned to teach seventh grade geography full time. In January 1981, he filed a petition in the circuit court of St. Clair County for an injunction to require defendant Board of Education to return him to the position of administrative aide. After an evidentiary hearing, the circuit court denied the petition without findings of fact. This appeal followed.

The issue raised by plaintiff’s appeal is whether plaintiff proved his entitlement to be returned to the position of administrative aide upon his return from sabbatical leave. The parties agree that plaintiff’s work record is good. No disciplinary motive for the change of duties is suggested.

Plaintiff urges that his claim of entitlement is supported by both the contract between the teachers’ union and the school board and by the provisions of section 24 — 6.1 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 6.1). Resolution of the instant appeal, therefore, requires consideration of the application of the employment contract to the dispute as well as the legislative purpose to be accomplished by the enactment of section 24 — 6.1.

As a general matter, it is established that injunctions are to be granted with great caution and only when plaintiff’s right to such relief is clearly established and that the grant or denial of an injunction by the trial court is a discretionary matter which should not be reversed absent a showing of an abuse of discretion. Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 388 N.E.2d 438.

First we consider whether plaintiff has demonstrated that he is entitled to be reinstated as an administrative aide under the provisions of section 24 — 6.1 of the School Code. This section states, inter alia, that upon expiration of a satisfactorily completed sabbatical leave “the teacher, principal or superintendent shall be returned to a position equivalent to that formerly occupied.” In the general conduct of its affairs, the school board has authority to reassign certified personnel to lesser positions, including lower paying positions, for bona fide reasons other than subterfuge designed to subvert the provisions of the teacher tenure law. (See. Van Dyke v. Board of Education (1969), 115 Ill. App. 2d 10, 254 N.E.2d 76; Lane v. Board of Education (1976), 38 Ill. App. 3d 742, 348 N.E.2d 470.) However, section 24 — 6.1 operates to divest the school board of this authority where an employee has been granted and has successfully completed a sabbatical leave. The statute appears to require, at a minimum, that teachers be returned as teachers, principals as principals, and superintendents as superintendents. Noteworthy is the fact that the statute does not refer to administrative aides, nor to any other specific personnel classifications. Thus our inquiry is whether the legislature intended to require that personnel in classifications other than those specifically enumerated in section 24 — 6.1 be returned to the classifications they vacated when they left on sabbatical leave and, if so, whether “administrative aide” is such a classification. The parties have provided no controlling authority on this question, and our research has disclosed none.

The position of administrative aide appears to be a creation of the administrators of School District No. 189. The defendant school board does not itself hire administrative aides as such; they are, however, certified teachers. The parties agree that there is no pay differential between the two jobs.

The duties of the two positions differ markedly. As administrative aide, plaintiffs duties were entirely administrative, and he functioned as principal or assistant principal in some situations. As a teacher, plaintiff’s duties were limited to teaching. Apparently, plaintiff viewed his own move from teacher to administrative aide as a promotion. This characterization appears to be fair. First, because a transfer from nonadministrative to administrative duties would be considered a promotion in most fields; and, second, because administrative aides are a more exclusive group than teachers, i.e., all administrative aides are teachers, but not all teachers are invited to become administrative aides.

Plaintiff testified that there were 13 to 15 administrative aides in District No. 189. To his knowledge it was custom and practice to return administrative aides to their positions after a sabbatical leave, and this was corroborated by the testimony of the teachers’ union president. Plaintiff stated that he had never heard of an administrative aide being returned to teaching before. He became an administrative aide at the request of and on the recommendation of the assistant principal, who recommended him to the principal. He was then recommended by the principal to the central office superintendent, who made the appointment. Plaintiff and the president of the teachers’ union agreed that administrative aides were considered teachers in training to be administrators.

Rock Junior High School principal Leroy Howell testified that plaintiff’s appointment as administrative aide took no board action and that the decision was almost entirely the principal’s. Howell stated that he knew of “a few” instances of aides being returned to teaching but that he did not view that procedure as normal. Howell explained that while plaintiff was on sabbatical leave, Dr. Campbell became administrative aide, specifically to help in “curriculum development,” the field in which Campbell had received his doctorate. Howell did not know whether or not plaintiff was educationally prepared to assist in curriculum development.

Dr. Lillian Parks, deputy superintendent of District No. 189, testified that only teachers and not administrators were eligible for sabbatical leaves. Asked whether aides had to be returned as aides, she replied that they did not and that they were teachers. She testified that the board had never appointed an administrative aide.

Among the exhibits in evidence at trial was a job description for the position of administrative aide, listing as qualifications a teacher’s certificate, a master’s degree or degree in progress, and three years’ teaching experience. The duties of the position were described as entirely non-teaching.

Section 24 — 6.1 of the School Code requires that upon the expiration of a sabbatical leave and upon presentation of evidence satisfactory to the board showing compliance with the conditions of the leave, the teacher, principal or superintendent shall be returned to a position “equivalent” to that formerly occupied. Plaintiff contends that his assignment to a teaching position was not a return to an “equivalent” position. In this regard, “equivalent” has been defined as “to have equal power,” “equal in force or amount,” “like in signification or import,” “equal in value,” “corresponding or virtually identical, esp. in effect or function,” or “equal in might or authority.” Webster’s Third New International Dictionary 769 (1971).

In our view, the legislature’s use of the term “equivalent” is intended to afford the school board some measure of leeway in reassigning personnel after a sabbatical leave. Otherwise, they could have expressly required that a person be returned to exactly the same title and job. This the legislature apparently chose not to do. We find this choice of particular significance in construing section 24 — 6.1. The teacher tenure provisions have been held to be in derogation of the common law and, therefore, are required to be strictly construed in favor of the school district. School Directors of District U-46 v. Kossoff (1981), 95 Ill. App. 3d 26, 419 N.E.2d 658; Johnson v. Board of Education (1981), 85 Ill. 2d 338, 423 N.E.2d 903.

We note as well that an obvious purpose of section 24 — 6.1 is to encourage eligible personnel to take sabbatical leaves and thereby “to benefit the school system by improving the quality and level of experience of the teaching force.” (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 6.1.) Section 24 — 6.1 effectuates that purpose, inter alia, by guaranteeing that if eligible personnel accept and successfully complete sabbatical leaves, they will not be fired or demoted in consequence of their extended absence. Notably, plaintiff testified in the trial court that he would not have applied for a sabbatical had he realized that as a consequence he would no longer be an administrative aide; therefore, a strong argument suggests itself in plaintiff’s behalf that the evil the legislature sought to remedy through section 24 — 6.1 has occurred in the instant case.

Nevertheless, we conclude that the doubt must be resolved in favor of the school board. Section 24 — 6.1 recognizes teachers, principals, and superintendents as such, but does not recognize any other classifications or any subdivisions of the groups named. Under section 24 — 6.1, plaintiff was a teacher and he still is. We are of the opinion that the trial court could therefore have properly determined that plaintiff’s new assignment was a return to an “equivalent” position and that the legislature did not express an intent to forbid such reassignment. Consequently, we conclude that plaintiff has failed to demonstrate his entitlement to reinstatement as an administrative aide under section 24 — 6.1 of the School Code.

We next consider whether petitioner proved his entitlement to his former position under the 1978-1979 contract between the board of education and the teachers’ union. Only part of that contract is included in this record. It states in pertinent part: “Teachers returning from a prearranged sabbatical leave shall be placed in the same room of the same school in which they were previously teaching 6 * e.” We note that on its face this provision refers only to teachers who are actually teaching. It does not provide similar arrangements for other classes of personnel or for nonteaching teachers. This omission is particularly significant in light of the fact that plaintiff became an administrative aide in 1975. The parties to the contract therefore were aware of the existence of the position of administrative aide for a substantial period of time prior to the agreement embodied in the 1978-1979 contract. We believe these facts, in light of the references in the contract to “teachers” and “teaching,” indicate that the parties did not intend to reach an agreement as to personnel who either were not teachers or who were teachers not actually engaged in teaching duties. Accordingly, we conclude that plaintiff has failed to show an abuse of discretion on the part of the trial judge in refusing to award an injunction based upon the contract.

While the parties suggest that plaintiff could have proved his entitlement to his former position based on “custom and practice” in District No. 189, we think it is sufficient answer to note that Principal Howell’s testimony tended to show that there were exceptions made in the past to any such custom and practice. The trial court could properly have determined from that testimony that “custom and practice” to return aides as aides was not sufficiently established to support plaintiff’s claims.

In summary, we have concluded that petitioner has failed to show an abuse of discretion by the trial court in denying the petition for injunction. Therefore, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

KARNS, P. J., and HARRISON, J., concur.


author: PRESIDING JUSTICE KARNS

text:
    JERRY DINGES et al., Plaintiffs-Appellees, v. LAWYERS TITLE INSURANCE CORPORATION, Defendant-Appellant.
    Fifth District
    No. 81-329
    Opinion filed May 13,1982.
    Weihl & Millard, Ltd., of Belleville (Donald E. Weihl, of counsel), for appellant.

      Robert J. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellees.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Plaintiffs, Jerry Dinges and Barbara Dinges, brought an action in the circuit court of St. Clair County against defendant, Lawyers Title Insurance Corporation, for damages and specific performance of a contract to issue title insurance on certain real property located in Belleville, Illinois. After a bench trial, the court entered judgment in favor of plaintiffs that granted specific performance and awarded damages in the amount of $34,140. On appeal, defendant raises the following issues: (1) whether an exclusion in the commitment for title insurance of the “rights of others” in a street includes the rights of another under a recorded easement; and (2) whether the damage suffered by plaintiffs was caused by defendant.

Defendant issued a commitment for title insurance to plaintiffs dated December 28,1978, that concerned a plot of land located on South Illinois Street in the City of Belleville, Illinois. An easement over the property in favor of Severin and Hazel Gundlach that was recorded in the recorder of deeds office in St. Clair County was not listed in the commitment as an exception. It was undisputed that an employee of defendant had discovered the easement but failed to transcribe it onto the commitment.

In late 1978, plaintiffs purchased the property from Illinois Central Gulf Railroad; the transaction was closed on February 2, 1979. Jerry Dinges, who operated a car dealership next to the property, testified that he purchased the property in order to relocate his business. It was undisputed that a paved street ran through the property. Plaintiff testified that Illinois Central Gulf Railroad informed him that they leased the street to the city of Belleville under a cancellable lease. After purchasing the property, plaintiff cancelled the lease and placed barricades provided by the city in front of the street.

Plaintiff received a letter from the Gundlachs’ attorney requesting that plaintiff remove the barricades because they interfered with the Gundlachs’ right to use the street according to their easement. Plaintiff testified that although Rich Sommers, an employee of the Gundlachs, told him prior to the purchase of the property that the Gundlachs had a right to use the street, plaintiff thought Sommers was referring to their right as members of the public pursuant to the city’s lease. Plaintiff was unaware of the recorded easement in favor of the Gundlachs prior to purchasing the property. Plaintiff further testified that he would be unable to use the property as intended for his business without closing the street. Upon learning of the recorded easement, plaintiffs made a demand on defendant to issue the title insurance policy and defendant refused.

At issue is an exclusion listed in schedule B, section 2 of the title insurance commitment. The commitment states, in pertinent part, the following:

“Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the company.
7. Rights of others in and to that portion of the property within the bounds of any roads, streets or highways.

Defendant first contends that the exception clause in the commitment for title insurance clearly and unambiguously excludes from coverage the loss sustained by reason of the encumbrance on the title to plaintiffs’ property. More specifically, defendant argues that the exclusion of the rights of others to that portion of the property within the bounds of any street applies to rights of record as well as rights not of record. Therefore, defendant contends that the recorded easement in favor of the Gundlachs which grants the right to use the street traversing plaintiffs’ property falls squarely within the exception.

Where the words of an insurance policy are clear and unambiguous the court should give effect to the plain and obvious import of those words. Where an ambiguity exists, however, the policy is to be construed liberally to effectuate coverage. (Olipra v. Zambelli (1971), 1 Ill. App. 3d 607, 274 N.E.2d 877.) In order to determine whether the language of the exception at issue is ambiguous or uncertain, it is necessary to examine the commitment in its entirety. (Lang v. Monarch Life Insurance Co. (1979), 75 Ill. App. 3d 938, 394 N.E.2d 751.) The title commitment provides that, subject to the stated exclusions and exceptions, defendant agrees to insure against loss or damage sustained by reason of, among other things, any defect in or lien or encumbrance on such title. Paragraph 1 of the general exceptions to be contained in the policy to be issued states, in pertinent part, that the policy will except from coverage the following: “Defects, liens, encumbrances, adverse claims, or other matters * * * first appearing in the public records or attaching subsequent * * to the date of the commitment. Paragraph 3 of the general exclusions from coverage in defendant’s standard policy states in pertinent part, that the policy will exclude from coverage the following: “Defects, liens, encumbrances, adverse claims, or other matters * * * not known to the company and not shown by the public.records but known to the insured claimant * * The exceptions to coverage contained in schedule B of the commitment and policy to be issued consist of both general exceptions and exceptions tailored to the particular property. These provisions in both the commitment and standard policy disclose an attempt by defendant to limit its liability by excluding from coverage defects or claims not shown of record. Viewing the policy in its entirety, with emphasis on the principal focus of the stated exclusions and exceptions, we conclude that the exception at issue is ambiguous as to whether it applies to claims of right to use the street regardless of the source of the claims.

In construing an insurance policy where the terms of the policy are ambiguous, we are required to consider the purpose sought to be accomplished, the subject matter of the contract and the circumstances surrounding the issuance of the policy. (Olipra v. Zambelli (1971), 1 Ill. App. 3d 607, 274 N.E.2d 877.) Where the insurer attempts to limit its liability by ambiguous provisions, those provisions are to be construed against the insurer. McLaughlin v. Attorneys’ Title Guaranty Fund, Inc. (1978), 61 Ill. App. 3d 911, 378 N.E.2d 355.

The purpose of title insurance is to protect a purchaser of r;eal property against the possibility of loss through defects in or encumbrances on the title. An insured expects to obtain a professional title search, opinion and guaranty. Thus, the insurer has a duty to search the records thoroughly before issuing its commitment or policy. (McLaughlin v. Attorneys’ Title Guaranty Fund, Inc.) Defendants, through an employee, conducted a search of the records of St. Clair County and discovered the easement but failed to transcribe it onto the commitment. The commitment, consistent with the purpose of title insurance, suggests that defendant would be liable for damages resulting from recorded instruments that were not specifically excepted from coverage. Harry Schneider, an employee of defendant, testified that the purpose of the exception was to protect the defendant from liability where a portion of the property was within a public road and where an easement through the property was established by prescriptive rights. Viewing the policy as a whole, we reasonably construe the purpose of the clause at issue to except from coverage the rights of others to that portion of the property within the bounds of any street whose right or title was not of record. Therefore, the exception clause did not protect defendant against liability for damage sustained by reason of the encumbrance on the title to plaintiffs’ property.

We are unpersuaded by defendant’s second contention that the damage suffered by plaintiffs was not paused by the defendant. In this regard, defendant initially argues that plaintiffs relied upon their own investigation and not upon the title commitment in that they purchased the property with the knowledge of the Gundlachs’ claim to use the street. This knowledge would have been more significant if the Gundlachs’ claim of right was through a prescriptive easement rather than a recorded easement, if defendant was unaware of the easement and if public access to the street was not terminable by cancelling the city’s lease; however, plaintiffs’ investigation disclosed that the lease was cancellable and they never knew of the Gundlachs’ recorded easement. Moreover, we note that defendant does not argue that plaintiffs’ knowledge of the claim is a defense to liability under the terms of the commitment. Under these circumstances, we conclude that defendant’s argument is without merit.

Defendant next argues that plaintiffs cannot recover because they were contributorily negligent in failing to disclose to defendant their intended use of the property and that they intended to close the street. The instant cause of action was premised on breach of contract. Defendant agreed to provide a title insurance policy guaranteeing plaintiffs a title free of defects or encumbrances, except as pointed out in the policy, and the encumbrance complained of was not included as an exception. Defendant had a duty to inform plaintiffs of the recorded easement and breached this duty by negligently failing to transcribe the easement onto the commitment. We are of the opinion that the plaintiffs were not negligent. They had no duty to inform defendant of their intended use of the property and, apparently, defendant never inquired of plaintiffs. More importantly, however, the doctrine of contributory negligence is not applicable to the instant case.

Affirmed.

JONES and WELCH, JJ., concur.