author: JUSTICE TRAPP

text:
    THE CITY OF TUSCOLA, Plaintiff, v. D & B REFUSE SERVICE, INC., et al., Defendants (United Waste Systems, Inc., Cross-plaintiff-Appellant, v. D & B Refuse Service, Inc., Cross-defendant-Appellee). — THE CITY OF TUSCOLA, Plaintiff-Appellee, v. D & B REFUSE SERVICE, INC., Defendant-Appellant (United Waste Systems, Inc., Defendant).
    Fourth District
    Nos. 4—84—0396, 4—84—0416 cons.
    Opinion filed February 26, 1985.
    Modified on denial of rehearing March 28, 1985.
    James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for United Waste Systems, Inc.
    Paul R. Lynch and Rochelle A. Funderburg, both of Craig & Craig, of Mattoon, for D & B Refuse Service, Inc.
    No appearance for appellee City of Tuscola.
   JUSTICE TRAPP

delivered the opinion of the court:

D & B Refuse Service, Inc. (D & B), appeals from an injunction issued in favor of the city of Tuscola (Tuscola) prohibiting D & B from collecting garbage in Tuscola and from a declaratory judgment that a contract between Tuscola and United Waste Systems, Inc. (United), gives United an exclusive right to collect garbage in Tuscola, in the absence of further action by Tuscola. United appeals from the refusal of the trial court to enter in its favor an injunction similar to that granted Tuscola.

This case arises out of a contractual arrangement between United and its predecessor entities, on the one side, and the city of Tuscola, on the other side, which has been in effect in one form or another since March 1974 and provides for the collection of garbage in Tuscola. Included among the provisions of the pre-1981 contracts was “an exclusive right” on the part of United’s predecessors to furnish trash pickup and disposal service in Tuscola for the term of the agreement.

The most recent contract, dated January 8, 1981, provides, inter alia, that the contractor is to collect and dispose of all solid waste generated in Tuscola, is to charge all customers except the city of Tuscola for waste disposal services according to a schedule of fees set • out in the agreement, and that “[a]ll persons or entities creating solid wastes subject to this Agreement shall be required by appropriate City ordinance to pay fees and charges provided for herein unless an exemption is granted by the City for certified alternative disposition not in conflict with this Agreement.” The 1981 agreement also provides that all city ordinances, resolutions or parts thereof in conflict with the agreement are to that extent declared inapplicable. However, the 1981 agreement, unlike the prior agreements, does not explicitly confer upon the contractor an exclusive right to collect garbage in Tuscola.

The impetus for Tuscola’s and United’s commencing legal action against D & B was D & B’s beginning garbage collection service in Tuscola, in competition with United, in July 1983. Following a bench trial, the circuit court entered the aforementioned injunction and declaratory judgment in favor of Tuscola, but declined to issue an injunction in favor of United.

The only parties who entered appearances on appeal are United and D & B; the city of Tuscola did not file a brief. United contends that the language of the contract between the city of Tuscola and United’s predecessor company, as well as the evidence introduced at trial, taken as a whole, supports its position that the 1981 agreement confers upon it a monopoly as to the collection of garbage in Tuscola.

In support of its assertion that there was no basis for the circuit court’s issuance of an injunction and declaratory judgment in favor of Tuscola, and that there would have been no basis for an injunction in United’s favor, D & B maintains: (1) Tuscola took no action of a legislative nature which conferred upon United a monopoly for the collection of solid waste; (2) if Tuscola did take proper legislative action to create a waste disposal monopoly (a) United and Tuscola failed to prove irreparable injury absent an injunction or the inadequacy of their legal remedies and (b) such a monopoly is violative of both the Sherman and Clayton Anti-Trust Acts (15 U.S.C. secs. 1 through 7; 12 through 27 (1982)); and (3) parol evidence was improperly admitted to explain the meaning of the 1981 agreement. Because of our decision, we need address only D & B’s first contention.

It is elemental that an act of a unit of local government which purports to prescribe a rule or rules of conduct applicable to the general public must be embodied in an ordinance. It is also well established that a resolution is inadequate to accomplish that which must be done by means of an ordinance. (City of Mound City v. Mason (1914), 262 Ill. 392, 104 N.E. 685; People v. City of Oregon (1971), 132 Ill. App. 2d 62, 265 N.E.2d 693.) These doctrines are rooted in logic and human experience, for an individual seeking to determine the propriety of a contemplated course of conduct will usually look only to statutes, governmental agency administrative regulations and municipal ordinances for guidance. It would be patently absurd to expect a citizen to rummage through sheaves of resolutions or other statements of a municipal governing body in order to determine whether particular conduct is or is not condoned by that governing body.

In the case at bar, the 1981 contract between United’s predecessor firm and Tuscola was ratified by means of a resolution, and the record contains no indication that Tuscola at any time enacted an ordinance prohibiting firms other than United from engaging in the waste disposal business within its territory. In the absence of such an ordinance, it simply cannot be said that on the basis of the record before us D & B violated any legislative enactment of the city of Tuscola in commencing garbage collection service there. It follows that there was a basis for neither the injunction issued in favor of Tuscola prohibiting D & B from collecting garbage there nor for the declaratory judgment that United has a monopoly as to the collection of garbage in Tuscola. Furthermore, the record before us does not demonstrate that D & B has violated any legally cognizable right of United, since the city of Tuscola has not validly conferred a waste collection monopoly upon United. Ergo, the circuit court properly denied United’s request for an injunction.

We have examined the cases cited by United in support of its position that the resolution approving the 1981 contract was sufficient to confer upon it a waste collection monopoly. None require a different result. Neither Illinois Municipal Retirement Fund v. City of Barry (1977), 52 Ill. App. 3d 644, 367 N.E.2d 1048, nor Houston v. Village of Maywood (1956), 11 Ill. App. 2d 433, 138 N.E.2d 37, involved resolutions purporting to prescribe a rule or rules of conduct for an indefinite period of time. In Village of Sherman v. Village of Williamsville (1982), 106 Ill. App. 3d 174, 435 N.E.2d 548, we did indeed hold that a municipality has authority to contract for exclusive distribution of water within its boundaries, but the case did not involve a question as to the proper method of exercising that authority.

In summary, the trial court erred in awarding the city of Tuscola declaratory relief and in enjoining D & B from engaging in the collection of garbage in Tuscola, but correctly denied United’s request for an identical injunction. We therefore reverse the portions of the circuit court’s order providing for declaratory relief and an injunction in Tuscola’s favor and affirm the portion of the order denying United an injunction.

Affirmed in part, reversed in part.

MILLS and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    STEPHEN J. DUNN, Plaintiff-Appellant, v. DIRECTOR, DEPARTMENT OF LABOR, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—1377
    Opinion filed February 5, 1985.

      William R. Dunn, of Oak Lawn, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, Stephen J. Dunn, brought this action seeking administrative review of a decision of the Illinois Department of Labor Board of Review (Board). The Board found pursuant to section 601(A) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 431(A)) that plaintiff was ineligible for unemployment insurance benefits because he had voluntarily left his job without good cause attributable to the employer. The circuit court affirmed the Board’s determination, and plaintiff appeals contending that the decision was contrary to the manifest weight of the evidence.

Plaintiff was employed for three years as a retail clerk by the Deobien Corporation (employer) at a wage of $5.25 per hour. On Friday, July 8,1983, he left the following note for his employer:

“Dear Mr. Tobin:
All things considered, starting Monday July 11, I must have $7.60 an hour, or please send my pink-slip with Larry.
(Signed) Stephen Dunn.”

Plaintiff failed to report to work on Monday, July 11, 1983, and did not notify his employer of the reason for his absence. On that same day, the employer sent plaintiff a letter, stating in part: “By your demand for a 46% increase in pay and your threat to quit signed by you, you are considered to have self-terminated yourself from employment ***.” Later that evening, plaintiff called the employer and asked whether his claim for unemployment insurance benefits would be contested. The company manager, Glen Tobin, informed him that the claim would be contested. On Tuesday, July 12, 1983, plaintiff reported for work, but was escorted from the premises by a security guard pursuant to the employer’s orders.

Plaintiff’s claim for benefits was denied by a claims adjuster on the ground that he had left work voluntarily without good cause attributable to the employer. A hearing before a referee was conducted, and plaintiff admitted writing the above-quoted note to his employer. He testified, however, that he did not intend to quit his job and that he failed to report to work on Monday, July 11, 1983, because he was ill. He did not inform the employer of his illness because he had just moved into a new apartment and had no telephone service. The referee affirmed the denial of benefits, and plaintiff appealed to the Board. Finding sufficient evidence to support the referee’s decision, the Board affirmed the denial of benefits, and plaintiff filed a complaint for administrative review.

At a hearing in the trial court, plaintiff interpreted his note as meaning that the employer could either give him a 46% raise or discharge him and let him collect unemployment benefits while he looked for another job. The Board took the position that plaintiff’s note manifested an intent not to continue in an employer-employee relationship and thus constituted a voluntary leaving. At the conclusion of the hearing, the trial court found sufficient evidence to support the Board’s determination that plaintiff had voluntarily left his employment.

On appeal, plaintiff contends that the trial court erred in finding that the Board’s action in denying him benefits was supported by the manifest weight of the evidence.

The purpose of the Illinois Unemployment Insurance Act is to provide benefits to workers coming within its provisions, for unemployment not occasioned with their consent or brought about by their fault. (Grobe v. Board of Review (1951), 409 Ill. 576, 101 N.E.2d 95.) In furtherance of this purpose, section 601(A) of the Act provides that a person is ineligible for benefits if he voluntarily leaves his job without good cause attributable to the employer. (Ill. Rev. Stat. 1983, ch. 48, par. 431(A).) It has been recently held that dissatisfaction with wages does not constitute “good cause” for purposes of entitlement to unemployment compensation. (Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 460 N.E.2d 766.) It is the function of an administrative agency to decide questions of fact, resolve conflicts in testimony and determine the credibility of the witnesses (Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 296 N.E.2d 721), and its findings on such matters are considered to be prima facie correct (Dunaway v. Department of Labor (1982), 109 Ill. App. 3d 63, 440 N.E.2d 231). Unless the Board’s decision is not substantially supported by the evidence or is clearly wrong, a reviewing court may not substitute its judgment for that of the Board even though it would have drawn other inferences from the evidence. Zions v. Police Board (1978), 67 Ill. App. 3d 680, 385 N.E.2d 51.

In the case at bar, the Board was called upon to determine whether plaintiff’s note, which stated: “I must have $7.60 an hour or please send my pink-slip with Larry” showed an intent to voluntarily discontinue the employer-employee relationship. In addition to the note, the Board was aware that plaintiff did not report to work on the following workday and did not notify the employer of the reason for his absence. It was only after plaintiff called the employer and learned that his claim for benefits would be contested that he attempted to report for work. Plaintiff interpreted his note as meaning that the employer should either give him a raise or discharge and allow him to collect unemployment benefits until he found a new job.

As previously discussed, the purpose of the Act is to aid workers who are unemployed through no fault of their own. The Board and the trial court both interpreted plaintiff’s words and actions as manifesting a desire to voluntarily discontinue his employment. We are not persuaded by plaintiff’s argument that the term “pink-slip,” which ordinarily means discharge by the employer, is dispositive of the issue of his intent. Rather, such intent is to be garnered from the totality of the evidence presented. In our judgment, the Board’s determination that plaintiff voluntarily left his employment without good cause attributable to the employer is not against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.


author: JUSTICE PE REIN

text:
    NANNIE MAHONIE, Plaintiff-Appellant, v. JAMES EDGAR, Secretary of State, Defendant-Appellee.
    First District (2nd Division)
    No. 84—0120
    Opinion filed January 8, 1985.
    Legal Assistance Foundation, of Chicago (John M. Bouman and James 0. Latturner, of counsel), for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE PE REIN

delivered the opinion of the court:

Plaintiff, Nannie Mahonie, brought this action pursuant to the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) to review a decision of the defendant, Illinois Secretary of State, under the Illinois Safety Responsibility statute (Ill. Rev. Stat. 1983, ch. 95V2, par. 7 — 100 et seq.). Defendant found that there existed a reasonable possibility of a civil judgment’s being entered against plaintiff in a court of competent jurisdiction under section 7 — 205 of the statute, and thus defendant suspended her driving and registration privileges. The circuit court affirmed defendant’s decision. Plaintiff appeals, contending: (1) defendant’s decision was against manifest weight of the evidence; and (2) the decision violates due process of law.

The action arises from an automobile accident between plaintiff’s vehicle with that of another motorist, Josephine Cook, on February 10, 1983. Plaintiff was notified by defendant’s office of a hearing on August 25, 1983, to determine whether an order of suspension should be entered against her for her failure to comply with the requirements of the aforementioned statute. Plaintiff appeared at the hearing and admitted that she was not insured and had not paid damages to Josephine Cook. However, plaintiff maintained that the accident was not her fault since she was parked waiting to make a left turn when the Cook vehicle hit her. Plaintiff claimed that, when the police came to the accident scene, they said it was Cook’s fault; plaintiff also claimed that Cook was drinking at the time of the accident.

According to the police report, no citation was issued. The police report indicated plaintiff’s vehicle was moving at the time of the collision, but did not indicate whether the Cook vehicle was stopped or moving.

In her report to defendant, Ms. Cook indicated that she was proceeding east on 87th Street in Chicago, near the intersection of Vincennes, when plaintiff exited a parking lot, and while crossing the traffic to make an L-turn to go west, struck the right front fender of Cook’s car.

Plaintiff in her report to defendant claimed she was stopped in traffic at the time of the collision and that the Cook vehicle had a long mark down its side.

At the hearing, plaintiff explained that, as she exited a store parking lot facing on 87th Street, she crossed the two eastbound lanes on 87th and came to a stop in the “turning” lane, where she waited for an opportunity to head westbound on 87th Street. The Cook vehicle then “jumped over” to go around plaintiff’s car, which was in the turning lane, and hit plaintiff’s car.

Defendant marked three exhibits, the police report, Ms. Cook’s report to the Secretary of State, and a certificate of the Secretary of State of damages to the Cook vehicle in the amount of $650. The hearing officer reduced the amount to $400 because of Ms. Cook’s possible negligence and entered an order suspending plaintiff’s driver’s license plates and registration.

Plaintiff first contends that defendant’s decision is against the manifest weight of the evidence. A motorist must be given a presuspension opportunity to be heard on the issue of the reasonable possibility of liability before his motoring privileges may be suspended. (Pollion v. Lewis (N.D. Ill. 1971), 332 F. Supp. Ill, 778, following Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586; Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 253-54, 375 N.E.2d 437.) Plaintiff particularly relies on Spaulding for the proposition that she was deprived of due process because hearsay is not competent evidence in a presuspension hearing and without the hearsay evidence, there is insufficient evidence to show a reasonable possibility of liability on plaintiff’s part. In Spaulding v. Howlett, plaintiff did not testify at the hearing, and the only evidence presented at the hearing was the accident report filled out by the other motorist. Spaulding specifically held that the legislature did not intend to allow hearsay evidence to be the sole basis for defendant’s determination that there was a reasonable possibility of a judgment being entered. Based on Spaulding, plaintiff argues the police report, the report Cook made to defendant and the estimate were incompetent evidence and deprived plaintiff of her constitutional right to cross-examine the adverse witnesses.

Defendant argues that in Spaulding the court said that if plaintiff’s report had been introduced at the hearing, it might have provided some corroboration for the version of the other motorist concerning how the accident occurred. (59 Ill. App. 3d 249, 253.) Defendant further argues that plaintiff here testified that she was crossing the predominant lane of traffic, and it is claimed that, when a motorist cuts across three lanes of “very heavy” traffic, there is considerable risk and a reasonable driver would not cross without exercising due care. Plaintiff responds that, if the hearsay evidence is not considered, her testimony concerning how the accident happened stands uncontradicted that evidence showed that she left the parking lot moving slowly through heavy traffic, and she had traversed the two eastbound lanes of 87th Street and was in a parked position in a crossing lane when the other motorist proceeded to maneuver around plaintiff’s vehicle and in doing so scratched the side of her vehicle on plaintiff’s fender.

Whether the judgment of the agency that there was a reasonable possibility of plaintiff’s being found liable to the other motorist was against the manifest weight of the competent evidence at the hearing therefore depends on whether the documents were properly admitted at the hearing. The crucial difference between this case and Spaulding is that in Spaulding there was a specific objection to the hearsay evidence (Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 250); there was no objection here. The general rule is that hearsay evidence received without objection may be given its natural probative weight. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 87, 392 N.E.2d 628.) Therefore, we conclude the hearsay evidence was properly admitted and that when it is considered, the liability for the accident is dependent on whether one accepts plaintiff’s version or Ms. Cook’s version about how the accident happened. Since the trier of fact at a trial could choose to believe either Ms. Cook or plaintiff, a reasonable possibility exists that plaintiff could be found liable. Defendant’s decision in this case is therefore not against the manifest weight of the evidence.

Plaintiff also claims the hearing officer could not reject her testimony because it was uncontradicted. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126.) However, other evidence did contradict plaintiff’s version of the accident as noted above.

Plaintiff also argues that no orderly review of the case can be made because the hearing officer did not make sufficiently detailed findings, citing Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 329 N.E.2d 218. However, where, as here, the testimony before the administrative agency is preserved for review in the record, specific findings of fact by the agency are not necessary for judicial review. See O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 657, 456 N.E.2d 998.

Plaintiff also maintains that the conduct of the administrative hearing, itself, denied her due process of law. In part, this argument is based on her previous contentions, i.e., that improper consideration of hearsay evidence violated her due process right to cross-examine adverse witnesses, and the lack of sufficient administrative findings denied her due process, and it is therefore without merit. But plaintiff further alleges that defendant’s representative was allowed to take over the hearing and engage in leading, argumentative, suggestive and badgering questions, to express opinions about the case “based on his own alleged experience” to warn plaintiff to cut off her answers and characterize her testimony and to mark and enter his own hearsay exhibits. Plaintiff claims the hearing officer “joined” the “attack” on her and she was never allowed to tell her whole story to explain her answers or to cross-examine adverse witnesses with the result that the hearing unmistakably became a prosecution aimed at establishing guilt and not an impartial investigation.

We agree with the plaintiff, following Gigger v. Board of Fire & Police Commissioners (1960), 23 Ill. App. 3d 433, 438-39, 163 N.E.2d 541, that a hearing before an administrative agency should not be partisan but should be an investigation instituted for the purpose of ascertaining and making findings of fact, that the opportunity to be heard should not be arbitrarily limited, that a fair consideration of the individual’s objections should be included, and that the opportunity to be heard, the right to cross-examine adverse witnesses and to impartiality in rulings upon evidence are fundamental concepts of a fair hearing. However, we cannot say that these rights were not granted to plaintiff in this case. Plaintiff’s attempts to relate how this accident took place were very confusing, and both defendant’s representative and the hearing officer questioned her to find how the accident happened. There is no indication in the record that plaintiff was the victim of unfair rulings concerning the admissibility of evidence, that she was denied the right to cross-examine adverse witnesses, or that she was prevented from presenting any evidence to the hearing officer. Much of the difficulty at the hearing was because she was not represented by counsel. (Cf. Minfield v. Bernardi (1984), 122 Ill. App. 3d 97, 100-101, 460 N.E.2d 766.) We cannot agree with plaintiff’s characterization of the hearing and we conclude she was accorded due process.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

STAMOS, P.J., and HARTMAN, J., concur.


author: JUSTICE O’CONNOR

text:
    LINDA CHAPMAN, Plaintiff-Appellant, v. ELSIE J. HOSEK et al., Defendants-Appellees.
    First District (1st Division)
    No. 84—1049
    Opinion filed February 11, 1985.
    Kozlowski & Smith, of Willow Springs (Joseph J. Kozlowski and John A. Smith, of counsel), for appellant.

      Joseph A. Malek and Kenneth E. Garstka, both of Berwyn, for appellees Elsie J. Hosek and Richard J. Hosek.
    George W. Brooks and Shawn K. Hankins, both of Orland Park, for appellees Hugh Connolly and Century 21 Oakshire, Ltd.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The issue raised on this appeal is whether the record demonstrates that there existed material questions of fact which precluded the entry of summary judgment in favor of defendants.

Plaintiff, Linda Chapman, entered into an agreement to purchase a parcel of residential real estate from the sellers, defendants Elsie and Richard Hosek. Defendants Century 21 Oakshire, Ltd., and its agent, Hugh Connolly, were the listing brokers, and defendants Roloff and Associates and its agent, Fred Aten, were the selling brokers. About seven weeks after plaintiff first saw the property and signed the real estate contract, she attempted to rescind on the grounds that defendants had made a material misrepresentation of fact that flood insurance was not required for the property and had concealed from her that during heavy rains the house flooded, as did the area immediately surrounding the house, which rendered it inaccessible. Plaintiff thereafter filed a lawsuit to recover her $7,000 earnest money deposit and incidental expenses. The trial court granted summary judgment in favor of defendants, and plaintiff has appealed. Each of the parties except Roloff and Aten has filed an appellate brief. The record is extensive, and only that portion which is relevant to this appeal will be summarized.

Plaintiff’s verified complaint alleged that on March 30, 1982, she entered into an agreement to purchase the parcel of real estate commonly known as 8708 South 83rd Avenue in Hickory Hills from the Hoseks. On April 28, 1982, she received a letter from the proposed mortgagee informing her that the subject parcel was located in a flood-hazard area and that she would have to buy flood insurance as a prerequisite to obtaining the mortgage. The mortgagee’s letter included a map dated July 9, 1976, published by the Department of Housing and Urban Development-Federal Insurance Administration depicting the subject parcel as being in a flood-hazard zone; the map and letter were appended to the complaint.

The complaint further alleged that defendants knew the property was in a flood zone, that flood insurance would be required and that defendants had a duty to disclose these material facts, which they nonetheless concealed in order to induce her to sign the real estate agreement. In addition plaintiff contended that defendants made a material misstatement of fact in the property description listed by Century 21 and Connolly in the multiple service listing of the Southwest Suburban Board of Realtors, which listing affirmatively stated that flood insurance was not required. Plaintiff asserted that the property listing thus concealed from her the fact that the property was in a flood-hazard zone and that during heavy rains it flooded, which caused damage to the property and rendered it inaccessible. Finally, plaintiff alleged that had she known the above information she would not have agreed to buy the property and that on May 18, 1982, she sent written notice of rescission of the agreement and a demand for the return of her earnest money deposit.

In response to interrogatories propounded by plaintiff, the Hoseks denied they ever had water in their crawl space or garage; admitted that their back yard flooded, that 83rd Street immediately in front of their house flooded, and that the property belonging to their neighbors to the north and south and across the street experienced flooding; and denied that the intersection of 83rd Avenue and 87th Street ever flooded to the extent that it became impassable. The Hoseks also stated that they first became aware of flooding conditions in the vicinity of their home when they moved to the house in 1972 and that in 1976 or 1977 they learned that a retention basin to control flood water was proposed to be built north of 87th Street within one-half mile of their home. They further asserted that they did not know their home was in a designated flood plain until May 1982 and that sometime in 1982 they attended meetings in Hickory Hills concerning the flooding problems in the area of their house.

Also during discovery, the trial court issued an order directing plaintiff to disclose the identity of all persons she intended to call as witnesses to prove her allegations of flooding and to specify whether they would testify concerning the subject residence or the area within a three-block radius thereof. In response, plaintiff named three witnesses who were to testify concerning flood conditions in the area of the residence and 10 additional witnesses to flooding both in the area and on the subject property. Plaintiff also stated she planned to introduce into evidence seven sets of photographs showing both the subject property and the immediate area in a flooded state.

Hoseks’ Motion For Summary Judgment

The Hoseks subsequently filed a motion for summary judgment in which they asserted that: (I) they had no knowledge of any flooding or damage to the residence during the time they lived there; (2) they were not required to maintain flood insurance and were not aware that a prospective buyer would need it; (3) according to her deposition, plaintiff had no personal knowledge of flooding or damage to the residence; and (4) the fact that the property was located in a flood-zone plain was a matter of public record so that (a) plaintiff could have discovered that information if she had been diligent prior to signing the contract, and (b) they had no legal duty to disclose to plaintiff the fact that the immediate area in which the residence was located was subject to flooding. The motion was supported by the Hoseks’ affidavits and a photocopy of what purported to be segments of plaintiff’s deposition. We note that in that deposition plaintiff stated that when the house was initially shown to her she did not notice any damage, but she also said that it had been newly wallpapered and carpeted.

Plaintiff’s response raised two primary deficiencies in the Hoseks’ motion for summary judgment. First the motion did not address or dispose of the allegations in the complaint that defendants failed to disclose to her that flooding caused damage to the surrounding area and rendered the house inaccessible. Second, the motion did not foreclose liability on the part of the Hoseks based upon fraudulent representations or omissions by the other defendants who were the Hoseks’ agents in the transaction. The trial court granted the Hoseks’ motion for summary judgment.

Century 21 And Connolly’s Motion For Summary Judgment

Century 21 and Connolly thereafter filed a motion for summary judgment. Their motion was substantially similar to that filed by the Hoseks, with the additional assertions that neither Century 21 nor Connolly knew of any flood damage to the residence or was aware that a prospective buyer would need flood insurance. They also claimed that the representation in their property listing that no flood insurance was required was based upon information given to them by the Hoseks which they had no reason to believe was incorrect. Finally, Century 21 and Connolly claimed that in any event they had no duty to disclose to plaintiff the fact that the property was in an area subject to flooding. The motion was supported by Connolly’s affidavit to the effect that all of the representations-they made concerning the property were based upon those made to them by the Hoseks.

Plaintiff filed a consolidated response and motion to reconsider the summary judgment granted in favor of the Hoseks. She asserted that the flooding of the property and the surrounding streets was material information which defendants should have disclosed to her; that when Century 21 and Connolly, as agents for the Hoseks, affirmatively asserted that flood insurance was not required, she relied upon that statement and did not make any further inquiries; and that the Hoseks, Century 21 and Connolly are liable -to her for failing to disclose the flood information and for making material misrepresentations which affected the desirability of the property. The trial court granted Century 21 and Connolly’s motion for summary judgment and denied plaintiff’s motion to vacate the judgment previously granted in favor of the Hoseks.

Roloff And Aten’s Motion For Summary Judgment

Thereafter, defendants Roloff and Aten filed a motion for summary judgment which was also similar to that filed by the Hoseks. In addition, their motion alleged that the property was listed by Century 21 on March 27, 1982, and that they relied on the listing and had no duty to independently substantiate the accuracy of the listing facts. The motion was supported by several documents, including the affidavit of Nelda Roloff, the president of defendant Roloff, in which she asserted, inter alia, that Roloff had no knowledge of any flood damage to the subject property either before or after the contract date and had no knowledge that a prospective purchaser would be required to buy flood insurance.

Plaintiff filed a response to the motion in which she reasserted the veracity of her allegations concerning flooding on and around the subject property. She also claimed that Roloff had knowledge of the flooding conditions, as shown by Nelda Roloff’s participation in 1970 in a lawsuit concerning flooding problems in the area. In support of her response plaintiff introduced the following documents:

1. Group exhibit A consists of photocopies of seven photographs showing severe flooding of the subject property and flooding in and around the intersection of 83rd Avenue and 87th Street in Hickory Hills.

2. An affidavit executed by Thomas Trolinger asserts that he took the photographs comprising group exhibit A on December 3, 1982, and that they accurately depict the flooding conditions which existed in the area of the subject premises.

3. The affidavit of Steve Flowers, the mayor of Hickory Hills from May 1975 through April 1979 and a resident of 8825 South 82nd Court in that suburb from 1966 to 1980, states that the photographs in group exhibit A showed the conditions which have existed in the vicinity of the subject premises after every heavy rainfall since 1968, that such rainfalls occurred on the average of four times per year, and that as a result of such rainfall the subject property and two to three lots to the south thereof were rendered inaccessible for several days at a time.

Flowers also stated he was familiar with the report by R. W. Robinson and Associates, the consulting engineers for the city of Hickory Hills, which lists the subject premises as one of 25 houses which incur approximately $500 in flood damage per year and are rendered inaccessible during heavy rains on the average of four times a year.

4. Group exhibit B is a copy of the report by R. W. Robinson and Associates referred to in Flowers’ affidavit, entitled “Comprehensive Study for Proposed Retention Basin Planned for Storm Water Relief in Hickory Hills, Illinois.” The study includes maps depicting the subject premises as being both one of the homes affected by, and a home with no access during, heavy rainfalls.

5. There is also a photocopy of a class action lawsuit, number 70 CH 4026, filed in the chancery division of the circuit court of Cook County by the city of Hickory Hills and numerous residents of Hickory Hills, including Nelda Roloff and Charles Roloff of 8748 South 82nd Court, against the village of Justice, concerning various actions by that defendant which obstructed water drainage from plaintiffs’ property.

6. Finally, there is an affidavit executed by plaintiff stating she first saw the subject premises on March 27, 1982, two days before she signed the purchase contract; that she relied on defendants’ representations that no flood insurance was required and as a result made no further inquiries; that on April 28, 1982, when she first became aware of the flooding conditions involving the property, she questioned Nelda Roloff about the flooding and was told not to worry because it was an insignificant problem and that money had been allocated to remedy it; that on the same date she inquired of Fred Aten about the flooded condition and was told that little water accumulated around the subject property during rainy periods; that thereafter she made further inquiries and discovered that the flooding problem was not insignificant; that the flooding and inaccessibility of the property were material facts; and that if that information had been disclosed to her, she would not have signed the real estate agreements.

The trial court granted summary judgment in favor of Roloff and Aten. This appeal contests the propriety of all three orders granting summary judgment in favor of defendants.

Opinion

A trial court may grant summary judgment in favor of a party “if the pleadings, depositions, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c).) A triable issue precluding summary judgment exists where there is a dispute as to material facts or where, the material facts being undisputed, reasonable persons might draw different inferences from the facts. In determining whether a genuine issue as to any material fact exists, the trial court must construe the pleadings, depositions and affidavits most strictly against the movant and most liberally in favor of the opponent. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 194, 380 N.E.2d 1040.

Where there has been some fraud in the making of a contract, rescission may be an appropriate remedy. (Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1000, 388 N.E.2d 943.) Such fraud may consist of either an untrue statement or the concealment of a material fact. The concealment may not be a mere passive omission of facts during the business transaction but must have been done with the intent to deceive under circumstances creating an opportunity and a duty to speak. (Allensworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044, 389 N.E.2d 684.) The elements of an equitable claim for rescission on the basis of fraud in misrepresentation are: A representation in the form of a statement of material fact, made for the purpose of inducing the other party to act; the statement is false and known by the party making it to be false, or not actually believed by him to be true; and the party to whom it is made must be ignorant of its falsity, must reasonably believe it to be true, must act thereon to his damage, and in so acting must rely upon the truth of the statements. (Douglass v. Wones (1983), 120 Ill. App. 3d 36, 47-48, 458 N.E.2d 514.) Concealment of an existing material fact is actionable where employed as a device to mislead. In order to be material, the concealed fact must be such that had the other party been aware of it, he would have acted differently. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 195, 380 N.E.2d 1040.

In the instant case, plaintiff sought rescission of a real estate agreement on the bifold basis that defendants had made a material misrepresentation of fact by stating that flood insurance was not required, by concealing material facts and omitting to inform her that the property was subject to flooding and damage during heavy rainfalls and by concealing the fact the area immediately surrounding the house flooded, rendering the house inaccessible during such heavy rains. Defendants’ motions for summary judgment were directed only to the issues whether they knew flood insurance was required and whether the house flooded. In their motion for summary judgment the Hoseks denied that the house flooded. We note, however, that in their answers to ■ interrogatories the Hoseks admitted that their back yard flooded, as did the property belonging to their neighbors. Also, whereas the Hoseks simply denied they had ever suffered any water damage to their house and that plaintiff did not personally see any such damage when she first toured the house, it is uncontroverted that the house had been newly carpeted and decorated before plaintiff saw it. Moreover, juxtaposed against defendants’ denial of severe flooding or flood damage are the Hickory Hills consulting engineers’ report, the affidavits by area residents and the seven photographs, all of which substantiate plaintiff’s allegations and raise material questions of fact concerning flooding, damage and inaccessibility to the property. Accordingly, based upon our review of the record, we conclude that summary judgments should not have been granted in favor of defendants.

In reliance on City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610, defendants argue that they are not liable to plaintiff for any misrepresentations as to flooding because that information was a matter of public record. They cite Green for the proposition that the material misrepresentations must be of fact since one is not entitled to rely on representations of law. Green, however, concerned misrepresentation as to the zoning laws applicable to a certain parcel of real estate. To the contrary, the instant case was primarily concerned with questions of fact regarding flooding to the house and the surrounding area damage and inaccessibility due to heavy rain1 falls. Although some information was available to the public on these problems in the form of commissioned reports and maps, it was not tantamount to a public law, nor do we believe that it was the type of information an average prospective buyer would research if given no indication whatsoever that flooding was a problem.

Defendants also contend they have no liability to plaintiff because she had no right to rely on their property listing and could have discovered the flooding information had she been diligent prior to signing the contract. This contention, which was also the basis of their motion for summary judgment, was not dispositive of the issue, since one who is guilty of a fraudulent misrepresentation may not interpose as a defense that the person defrauded was negligent in failing to discover the truth. Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94, 169 N.E.2d 229.

For the reasons set forth above, the orders entered by the circuit court granting summary judgment in favor of defendants are reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McGLOON, P.J., and CAMPBELL, J., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE ex rel. RICHARD M. DALEY, STATE’S ATTORNEY OF COOK COUNTY, Plaintiff-Appellee, v. NINE THOUSAND FOUR HUNDRED AND THREE DOLLARS, $9,403 IN U.S.C., Defendant-Appellant.
    First District (2nd Division)
    No. 84—0697
    Opinion filed February 11, 1985.

      James W. Reilley and Christine P. Curran, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Daniel Cannon, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

The State brought an action against Bessie Morrison (hereinafter claimant) for the forfeiture of money pursuant to section 505 of the Controlled Substances Act. (Ill. Rev. Stat. 1983, ch. 56½, par. 1505(a)(5).) Following a bench trial, the court ruled in favor of the State. On appeal, claimant contends that the trial court erred in finding the State’s evidence sufficient to raise the rebuttable presumption under section 505 thereby justifying the forfeiture. In addition, she contends that if the State successfully raised the statutory presumption, she rebutted the presumption, and the State failed to introduce any additional evidence to meet its burden of proof.

At trial, the parties stipulated that claimant previously pleaded guilty of possession of a controlled substance. They further stipulated that $8,542 in cash was seized at her home.

Agent Andrew Douvris testified that on August 10, 1982, he searched claimant and her single-family home in Chicago pursuant to a warrant. There he saw a vial of tinfoil packets containing brownish powder on the kitchen table; three packets contained heroin.

Agent Douvris further testified that he recovered $8,542 in cash from her bedroom directly adjacent to the kitchen. He found $7,000, mostly in small denominations, in a dresser drawer which also contained numerous hypodermic syringes. On top of the dresser stood a tri-beam scale, a quantity of plastic bags, small squares of tinfoil and an ounce of powder commonly used to dilute heroin. In addition, he found approximately $1,450 and a bag containing several handguns in her bedroom closet. Agent Douvris finally testified that claimant stated that the money was hers.

At the forfeiture hearing claimant denied having any heroin in her house, a scale on her dresser or guns in her bedroom. She further testified that the money was found in a file cabinet at the foot of her bed, and the money was derived from selling food and drinks at her brother’s “after-hours place” which he periodically held in the basement of the house. In addition, she maintained that approximately $2,000 was hers and that she had been earning money this way for “a little awhile.” Finally, she testified that she had diabetes and used the hypodermic syringes to inject insulin.

The trial court ruled in favor of the State, noting that the facts led to the inference that claimant’s house was involved in drug traffic and that the presumption of section 505(a)(5) was raised. However, the court did not specifically indicate whether claimant rebutted the presumption, but noted that her credibility was in question and stated that he found her testimony that the source of the money was from gambling and the sale of food and whiskey to be “no type of evidence in any way, shape or form.” Finally, the court noted that under the cases People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938, and People v. Snyder (1977), 52 Ill. App. 3d 612, 367 N.E.2d 752, the party claiming the money had the burden of showing that the money was from sources other than narcotics, and that in this case she had failed to do so.

Claimant first argues that the statutory presumption only arises if the State proves that she was unlawfully engaged in the manufacture or distribution of controlled substances and, hence, the presumption could not arise here because the State merely proved that she was convicted of possession. Initially, we note that the trial court specifically found that the premises were involved in “drug traffic.” In addition, the statutory language creating the presumption contains no express language limiting its application to manufacturers or distributors of controlled substances. Moreover, the statutory language creating the presumption is immediately preceded by a definition of the term forfeitable as, “everything of value furnished, or intended to be furnished, in exchange for a substance in violation of this Act.” Hence, the statutory language seems to unambiguously contemplate the application of the presumption to purchasers and possessors of controlled substances. Where the language of a statute is plain, it must be given effect by the courts; we cannot read into a statute words which are not within the plain intention of the legislature as determined from the statute itself, nor can we restrict or enlarge the plain meaning of an unambiguous statute. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313.) We decline to read into the statute a limitation that the presumption applies only to manufacturers or distributors of a controlled substance.

Claimant, however, further argues that when the money sought to be forfeited is found in a separate room from the forfeit-able substance, the presumption is not raised because close proximity is not established. We cannot agree. In this case, the funds seized were found in a room directly adjacent to that where the heroin was found. Moreover, the funds were in the same room as the scale and other drug paraphernalia. We will not restrict or enlarge the plain meaning of an unambiguous statute to require that controlled substances and forfeitable items related thereto be found in the same drawer, box or cabinet as the money. Here, the nexus between the money and evidence of drug involvement was sufficient.

In addition, claimant contends that mere testimony of the seizure of forfeitable drug-related paraphernalia is insufficient to raise the statutory presumption if physical evidence could have been easily produced in court. Testimonial evidence is sufficient to establish the presence of drug-related paraphernalia even though the physical evidence itself is not presented at trial. See People v. Brengettsy (1962), 25 Ill. 2d 228, 184 N.E.2d 849.

Finally, she argues that, if the State successfully raised the rebuttable statutory presumption, she rebutted the presumption, and the State failed to introduce any additional evidence to meet its burden of proof. A presumption of law merely compels the trier of fact to reach a conclusion in the absence of evidence to the contrary; if the opponent offers evidence to the contrary, the presumption disappears as a rule of law, and the case is in the trier of fact’s hands free from any rule. (Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128.) The party producing evidence to rebut the presumption must come forward with evidence that is sufficient to support a finding of the nonexistence of the presumed fact; if a strong presumption arises, the weight of the evidence brought in to rebut it must be great. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) The trial court here specifically found that claimant’s testimony was “no type of evidence in any way, shape or form.” Credibility of witnesses is for the trier of fact. (Schulenburg v. Signatrol (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) Where a factual question is raised, a reviewing court must defer to the judgment of the trial court unless its ruling is against the manifest weight of the evidence. (People v. Snyder (1977), 52 Ill. App. 3d 612, 367 N.E.2d 752.) We therefore find that claimant failed to rebut the statutory presumption because the trial court did not believe her testimony, and the court’s ruling was not against the manifest weight of the evidence.

Accordingly, we affirm the judgment of the circuit court.

Judgment affirmed.

BILANDIC and HARTMAN, JJ., concur.

      Section 505 provides in pertinent part:
      “(a) The following are subject to forfeiture:
      * ** *
      (5) everything of value furnished, or intended to be furnished, in ex-
      change for a substance in violation of this Act ***. All moneys, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of substances, are rebuttably presumed to be forfeitable under this Act. The burden of proof is upon claimants of the property to rebut this presumption.” Ill. Rev. Stat. 1983, ch. 56½, par. 1505(a)(5).


author: JUSTICE HARTMAN

text:
    CHAUNCEY YOUNG, Plaintiff-Appellant, v. ST. ELIZABETH HOSPITAL et al., Defendants (Dr. Theodore Zmigrodski, Defendant-Appellee).
    First District (2nd Division)
    No. 84—1041
    Opinion filed February 11, 1985.
    Susan E. Loggans & Associates, of Chicago, for appellant.
    Rooks, Pitts & Poust, of Chicago (Jerome N. Groark, David H. Kistenbroker, and Philip L. Cornelia, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, an employee of Stewart-Warner Corporation (Stewart-Warner), brought suit against defendants, alleging negligent treatment of his injuries sustained on the job and while in the course of his employment at Stewart-Warner ’ s plant. Plaintiff appeals from the dismissal of his third amended complaint against Dr. Zmigrodski, a company doctor (doctor), with prejudice, on the grounds that his cause of action was barred by the exclusive-remedy provision, section 5(a) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(a)). The dismissal order contained appropriate Supreme Court Rule 304 language. 87 Ill. 2d R. 304.

On July 25, 1977, when plaintiff sustained injuries to his left leg, he received treatment by the doctor at the medical facility on the plant’s premises. Approximately one month later he was admitted to St. Elizabeth Hospital by the doctor for further care. Plaintiff filed a worker’s compensation claim in connection with his injury and obtained a lump sum settlement. The doctor sent no bill to plaintiff for medical services rendered either at the plant or at the hospital.

This litigation arose when plaintiff filed a common law medical malpractice suit against the doctor and others. The doctor’s section 2 — 619 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619) motion, alleging that the exclusive-remedy provision of the Act precluded plaintiff’s common law cause of action, was supported by an affidavit of a vice president of Stewart-Warner purporting to establish that the doctor was an employee of Stewart-Warner at all relevant times. The circuit court’s order granting the doctor’s motion was based upon the finding that plaintiff and the doctor were co-employees and that the treatment rendered to plaintiff was within the scope of the doctor’s employment.

Plaintiff challenges the dismissal, alleging that he and the doctor were not co-employees or, alternatively, that an exception to the exclusive-remedy provision, the “dual-capacity doctrine,” is applicable here. Both of plaintiff’s alternatives must be rejected.

I

The exclusive-remedy provision of the Act abolishes common law actions by an employee against his employer or co-employer or co-employee for injuries arising out of employment. (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326, 447 N.E.2d 786; McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 356, 423 N.E.2d 876; Toth v. Westinghouse Elevator Co. (1983), 114 Ill. App. 3d 905, 907, 449 N.E.2d 1005.) Here, however, plaintiff contends that there was a genuine issue of material fact as to whether he and defendant were co-employees. He cites Crepps v. Industrial Com. (1949), 402 Ill. 606, 614, 85 N,E.2d 5, for the principle that while there is no rule to determine whether a person’s status is that of an employee, there are factors which have evidentiary weight on this issue, the most important factor being the extent to which the person for whom work is being done has retained control over the worker. In the instant case, plaintiff asserts that Stewart-Warner did not retain control over the doctor at either the plant medical facilities or at St. Elizabeth Hospital because no lay person could supervise a doctor. Thus, plaintiff concludes, a genuine issue of material fact was raised which the circuit court should have allowed a jury to resolve. We disagree.

The affidavit of Stewart-Warner’s vice president set forth the following facts: The doctor was employed by Stewart-Warner from 1973 to 1978 as manager of medical services. His duties included the examination and treatment only of Stewart-Warner employees who were injured at work, which services were made available to such employees without charge. He received an annual salary from Stewart-Warner which was not contingent upon the number of employees he treated. He worked a fixed number of hours per week at Stewart-Warner. The company made social security contributions on his behalf, and his eligibility for pension and medical insurance benefits was identical to that of other company employees. The doctor’s medical support personnel and facilities were provided by Stewart-Warner. Finally, the company retained the power and authority to discharge the doctor from his employment.

Employee status of a company doctor was demonstrated on similar affidavits in Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842. In that case, the appellate court found that because plaintiff did not effectively controvert such affidavits, he failed to raise a genuine issue of material fact regarding the doctor’s employee status. (Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 972-73, 372 N.E.2d 842.) The court, therefore, affirmed the circuit court’s dismissal of plaintiff’s negligence action against the company doctor on the ground that the exclusive-remedy provision of the Act barred the common law action. Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 971, 372 N.E.2d 842.

In the instant case, the affidavit of Stewart-Warner’s vice president contains clear indicia of the doctor’s employee status and provided the circuit court a sufficient basis upon which to determine that plaintiff’s action is precluded by the exclusive-remedy provision of the Act. (Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842; Hayes v. Marshall Field & Co. (1953), 351 Ill. App. 329, 115 N.E.2d 99.) In a deposition, plaintiff referred to Dr. Zmigrodski as the “company doctor,” although in a later affidavit he explained that he so described him because he could not pronounce his name and could not say whether he was or was not the company doctor. Plaintiff’s affidavit further stating that he did not consider the doctor to be a fellow employee did not probatively contradict the vice president’s affidavit, nor did it raise a genuine issue of material fact as to that pivotal issue. Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 372 N.E.2d 842; Kinney v. Continental Assurance Co. (1976), 42 Ill. App. 3d 263, 266, 356 N.E.2d 131. See also Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.

II

Plaintiff’s alternative contention is that even if the doctor was his co-employee, his cause of action should survive the exclusive-remedy provision of the Act by virtue of the dual-capacity doctrine. Under this doctrine, an employer who normally is shielded from tort liability by the exclusive-remedy principle may be liable if he acts in a second capacity that imposes obligations on him beyond those of an employer. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 357; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 318, 396 N.E.2d 524; Oakes v. Gaines (1982), 107 Ill. App. 3d 212, 214-15, 437 N.E.2d 738; Marcus v. Green (1973), 13 Ill. App. 3d 699, 300 N.E.2d 512.) In the instant case, plaintiff maintains that the doctor acted in one capacity as Stewart-Warner’s physician and in a second capacity as attending physician at St. Elizabeth Hospital, concluding that because some alleged negligence occurred while the doctor acted in his second capacity, the dual-capacity doctrine is applicable here and his common law cause of action should not be barred by the Act. Again, we disagree.

This court recently noted that our supreme court in Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326-28, declared that a prerequisite to the applicability of the dual-capacity doctrine is that a defendant be possessed of two separate legal persona. (Toth v. Westinghouse Elevator Co. (1983), 114 Ill. App. 3d 905, 907-08.) A company doctor, however, has only one legal persona, that of company doctor. (2A A. Larson, Workmen’s Compensation sec. 72.61(b), at 14 — 203 through 14 — 204 (1983).) Thus, Illinois courts have rejected the applicability of the dual-capacity doctrine to company doctors (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 353-54, 434 N.E.2d 377; McCormick v. Caterpillar Tractor Co. (1980), 82 Ill. App. 3d 77, 402 N.E.2d 412, aff’d in part, rev’d in part (1981), 85 Ill. 2d 352), and consistently apply the exclusive-remedy provision of the Act to bar common law actions against company doctors (Unger v. Conti nental Assurance Co. (1984), 122 Ill. App. 3d 376, 461 N.E.2d 531; Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967; Hayes v. Marshall Field & Co. (1953), 35 Ill. App. 329.

Plaintiff seeks assistance from the circumstances of his having been admitted to St. Elizabeth Hospital by the doctor for further treatment, asserting that the doctor’s duties at the hospital would have to be different than those required at the company clinic. Although such treatment was rendered at the hospital on August 26, 1977, almost seven years before the order of dismissal was entered in this case on April 2, 1984, no evidence or affidavits were submitted which factually support plaintiff’s surmise. In the absence of evidentiary support demonstrating the asserted difference in the doctor’s role at the hospital, the Stewart-Warner affidavit as to the doctor’s employment makes it clear that such services were rendered in compliance with section 8(a) of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(a)), which expressly includes the provision of hospital care by the employer to its injured employees (McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 353-54).

Plaintiff’s reliance upon a case in which a California court applied the dual-capacity doctrine to a situation where the employer was himself a physician and treated one of his employees (Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8) is equally unavailing. The instant appeal does not involve such a situation and the doctrine therefore has no applicability here.

For the foregoing reasons, we hold that plaintiff’s common law action against his co-employee, the company doctor, is barred by the exclusive-remedy provision of the Act. The judgment of the circuit court of Cook County accordingly is affirmed.

Affirmed.

PERLIN and BILANDIC, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    SUE MORIEARTY, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0452
    Opinion filed January 31, 1985.
    Modified on denial of rehearing March 26, 1985.

      William A. Radkey, of Stratton, Nardulli & Lestikow, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff, formerly a supervising psychologist at Jacksonville Mental Health and Developmental Center (JMHDC), filed an action in the circuit court of Sangamon County for administrative review of defendant, Civil Service Commission’s (CSC), denial of her appeal of her layoff. The Department of Personnel (DOP) had approved the layoff plan. The CSC accepted its staff findings and denied plaintiff’s appeal without holding formal or informal hearings. The circuit court affirmed the CSC’s decision.

Plaintiff argues that the CSC’s decision was against the manifest weight of the evidence, that DOP Rule 2 — 525 was in conflict with section 8b. 13 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63bl08b.l3; Department of Personnel Rule 2 — 525), and that therefore, plaintiff’s layoff was improper. Plaintiff also argues the statistical methodologies used in assessing disproportionate impact were rules as defined by The Illinois Administrative Procedure Act (IAPA) (Ill. Rev. Stat. 1981, ch. 127, par. 1001 et seq.). Therefore, they were ineffective, absent promulgation according to the IAPA.

We affirm.

Plaintiff is a white, nonhandicapped female who is not a member of any national origin minority group. She was certified pursuant to the Personnel Code and had worked for the Department of Mental Health and Developmental Disabilities (DMHDD) since 1972. On September 28, 1981, the director of the DMHDD sent plaintiff a preliminary layoff letter notifying her that due to lack of funds and a reorganization plan, she would be laid off. The letter informed plaintiff of her appeal and transfer options under DOP Rules.

The director of the DMHDD requested DOP approval of the layoff plan. The DOP approved the plan.

Plaintiff appealed her layoff to the CSC, alleging that the entire layoff plan had a disproportionate impact on race and/or sex groups. Since the layoff plan violated DOP Rule 2 — 525, plaintiff argued her layoff was ineffective. (DOP Rule 2 — 525, amended June 6, 1976.) Plaintiff’s statistical format considered all females, handicapped, minority surnamed, and nonwhite males who were sent a preliminary layoff letter.

The CSC staff investigated whether plaintiff’s layoff violated the Personnel Code or Rules pursuant to section 10(13) of the Personnel Code. (Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).) The section enables the CSC to hear or conduct investigations as it deems necessary of appeals of layoff which are filed in a timely fashion by employees. The CSC determines whether the provisions of the Personnel Code or Rules relating to layoff have been complied with in the individual layoff. Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).

The CSC assessed the impact of the layoff plan on plaintiff’s race and sex group. Three statistical methodologies were used. The Department of Human Rights (DHR) method used equal employment opportunity job categories. The DOP method used occupational series. Plaintiff was in the psychologist series. Both methodologies started with employees at JMHDC as the measuring group. However, there were insufficient employees in plaintiff’s groups for valid statistical results, so department-wide data was used. The comparison was made on the basis of white females affected by the layoff as opposed to white males. No disproportionate impact was found.

The third method, the CSC method, considered two DHR job categories but stayed within JMHDC. Males affected by the layoff plan were compared to females affected by the layoff plan. “Affected” persons included all those sent a preliminary layoff notice, regardless of eventual retentions, position reductions, or position shifting. Within the facility, five out of 39 males were scheduled for layoff. There were nine out of 62.5 females scheduled for layoff. Roughly two-thirds of the employees at the facility were women. No disproportionate impact was found.

On August 20, 1982, the CSC adopted its staff’s findings and denied plaintiff’s appeal. On administrative review, the circuit court affirmed the CSC's decision.

Initially, we address defendant's contention, raised for the first time on appeal, that the circuit court affirmed the CSC’s decision using an erroneous standard of review. Defendant argued that it may at its discretion conduct investigations or hearings into appeals of layoff. (Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13).) Since denial of plaintiff’s layoff came after an investigation, not a hearing, the court-should limit its review to whether the agency’s decision was arbitrary, capricious or an abuse of discretion.

The term “investigation” applies to a “nonjudicial function of an administrative agency for a general one-sided presentation of issues without issues drawn, and ‘hearing’ is appropriate to quasijudicial proceedings which include parties, issues of law and fact, and at which parties are entitled to be present, participate, and obtain records of the proceedings.” (Roosevelt-Wabash Currency Exchange, Inc. v. Fornelli (1977), 49 Ill. App. 3d 896, 899, 364 N.E.2d 449, 452.) Defendant cites two cases decided under the Fair Employment Practices Act (Ill. Rev. Stat. 1971, ch. 48, par. 851 et seq. — since repealed) in support of its position. We find them inapposite.

In Klein v. Fair Employment Practices Com. (1975), 31 Ill. App. 3d 473, 334 N.E.2d 370, the Commission, acting on its investigator’s recommendation, dismissed plaintiff’s allegation of discrimination. The trial court affirmed the Commission’s decision. The court on appeal remanded because an inadequate record had been presented on review. The court noted that dismissal of a charge on an investigator’s recommendation was subject to the arbitrary and capricious standard of review. In Unger v. Sirena Division of Consolidated Foods Corp. (1978), 60 Ill. App. 3d 840, 377 N.E.2d 266, the court noted the Klein language, but decided the issue before it on the manifest weight standard.

We find the manifest weight of the evidence test is the appropriate standard of review.

In Powell v. Jones (1973), 56 Ill. 2d 70, 305 N.E.2d 166, the court held that a certified employee subject to layoff was not entitled to a plenary hearing before layoff. The court discussed the employee’s prelayoff rights.

“A certified employee has the right to petition the Director, within 15 days of receipt of layoff notice, for a reconsideration (Rule 2 — 596), and a right to request a hearing before the Civil Service Commission, which may consist of a staff investigation, or informal hearing, or formal hearing, on the validity of the layoff.” (56 Ill. 2d 70, 79, 305 N.E.2d 166,170.)

The court in Powell equated the staff investigation with a stage in the hearing process.

Additionally, the record shows the CSC accepted the findings of its staff investigators. It acted on those findings in denying plaintiff’s appeal. It is that action which plaintiff appeals here. The findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 274.) Illinois courts have construed this statute to mean that courts may not interfere with the discretionary authority vested in administrative agencies unless that authority is utilized in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 550, 426 N.E.2d 885, 887.

Á reviewing court may not rew.eigh the evidence or make independent determinations of fact. The function of the reviewing court is to determine whether the agency’s findings are against the manifest weight of the evidence. Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Schioniger v. County .of Cook (1983), 116 Ill. App. 3d 895, 899, 452 N.E.2d 783, 786-87.

Plaintiff’s argument that the CSC’s decision was contrary to the manifest weight of the evidence is premised on three assertions of factual flaws in the methodology used to assess impact. First, plaintiff argues the CSC improperly considered only plaintiff’s minority group in assessing disproportionate impact. Under DOP Rule 2 — 525 as it existed when plaintiff appealed her layoff, the director had authority to disapprove a layoff plan which resulted in a disproportionate impact on affected employees on the basis of race or sex. (Rule 2 — 525, amended June 6, 1976.) The CSC had authority to review whether an employee’s layoff was violative of the Personnel Code or Rules (Ill. Rev. Stat. 1981, ch. 127, par. 63b110(13)). Two of the methods therefore considered plaintiff’s nonminority race status and plaintiff’s sex in assessing impact. The third methodology employed a straight sex base comparison.

Plaintiff argues all minority status individuals should be considered together and compared with nonminority males to assess disproportionate impact. Minority groups are not amalgamized for the purposes of determining discrimination or disproportionate impact. (Beane v. Millers Mutual Insurance Association (1980), 90 Ill. App. 3d 258, 412 N.E.2d 1124.) Plaintiff or plaintiff’s minority group, women, would not be injured or affected by a plan having a disproportionate impact on other minority groups.

Secondly, plaintiff asserts the CSC’s data was flawed because the CSC arbitrarily used department-wide employment statistics when it found an insufficient number of employees within plaintiff’s employment category and professional series at JMHDC. Only nine persons were within plaintiff’s professional series and five persons were in her employment category at JMHDC. The size of the measuring group is of critical importance in assessing impact. (Mayor of the City of Phila delphia v. Educational Equality League (1974), 415 U.S. 605, 39 L. Ed. 2d 630, 94 S. Ct. 1323.) In City of Philadelphia the court noted that statistical data and discriminatory impact shown by use of a measuring group of 13 was highly suspect and created an inherent flaw in straight percentage comparison data. Under the circumstances presented here, we cannot state the CSC’s decision to use departmental data was arbitrary.

Finally, the plaintiff argues that the methodology which considered only those affected by the layoff plan at JMHDC was flawed because not all those sent a preliminary layoff letter were in fact “affected” by the layoff. She contends that an employee assigned to a temporary position and an employee who was retained because of another’s retirement were not affected by the layoff. We find little merit in this argument. First, the employee assigned to the temporary position was still subject to layoff. Secondly, all of those subject to layoff were affected in their employment choices and options. Plaintiff also had these options.

Defendants’ decision was supported by the evidence. Therefore, the circuit court’s decision affirming the administrative agency was not contrary to the manifest weight of the evidence.

Plaintiff maintains that DOP Rule 2 — 525 was in conflict with section 8b. 13 of the Personnel Code when her layoff plan was approved; therefore, her layoff was invalid. She points to the 1982 amendment of Rule 2 — 525 as illustrating the conflict. Section 8b. 13 states the department shall have rules:

“For layoffs by reason of lack of funds or work, abolition of a position or material change in duties or organization, and for reemployment of employees so laid off, giving consideration in both layoffs and reemployment to performance record, seniority in service, and impact on achieving equal employment opportunity goals.” (Ill. Rev. Stat. 1981, ch. 127, par. 63bl08b.l3.)

Before the 1982 amendment Rule 2 — 525 stated:

“DISAPPROVAL: The Director may disapprove by returning to the originating agency any layoff plan which results in a disproportionate impact on affected employees on the basis of race or sex.” (DOP Rule 2 — 525, amended June 6,1976.)

In 1982 the Rule was amended to state the director could disapprove any plan which had a disproportionate impact in achieving equal employment opportunity goals. DOP Rule 2 — 525, amended August 12, 1982.

First, the Code’s provisions are broader than those in the former rule. However, they were not in conflict. Secondly, plaintiffs minority group, sex, was given consideration under the former rule. She was not harmed by application of the narrower rule. Plaintiff’s layoff was not invalidated because the impact of the plan was calculated only as to racial and sexual minority groups.

Finally, plaintiff argues that the statistical methodologies used were rules under the IAPA. (Ill. Rev. Stat. 1981, ch. 127, par. 1003.09.) Since the methodologies were not adopted in accord with the IAPA, the layoff was invalid as based upon nonpromulgated rules.

Section 3.09 of the IAPA states in part:

‘Rule’ means each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency.” Ill. Rev. Stat. 1981, ch. 127, par. 1003.09.

In Holliday v. Civil Service Com. (1984), 121 Ill. App. 3d 763, 460 N.E.2d 358, the plaintiff argued his dismissal was without cause because he had violated a departmental guideline, not policy. He argued that he could only be discharged for violating a departmental policy which had been adopted pursuant to the IAPA. The court noted that the IAPA contemplates situations where an agency is promulgating rules which the public must follow or which affect the public, not internal employment matters. 121 Ill. App. 3d 763, 774, 460 N.E.2d 358, 365-66.

As stated in Holliday, the supreme court has determined that the Civil Service Commission is not required to specify by rule every act or omission which would be considered cause for discharge. (Joyce v. City of Chicago (1905), 216 Ill. 466, 75 N.E. 184; Kammann v. City of Chicago (1906), 222 Ill. 63, 78 N.E. 16.) Holliday dealt with discharge. The instant case concerns layoff. Our supreme court has stated that the same protections through due process required for about-to-be discharged employees is not required for about-to-be laid off employees. Powell v. Jones (1973), 56 Ill. 2d 70, 305 N.E.2d 166.

The methods used were not agency statements with general applicability. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 177-78, 470 N.E.2d 1029, 1033-34.) The various statistical data and methods used by the Department were used to determine the impact on achieving equal opportunity goals for women at the Department and at the facility. The use of statistical data and the methods in this case cannot be considered as generally applicable in all cases. The methodology used to determine impact was simply reasoning by which the agency reached its decision. By definition, they were not rules.

For the above reasons, we affirm the circuit court.

Affirmed.

GREEN, RJ., and MILLS, J., concur.


author: JUSTICE LORENZ

text:
    SOUTH STICKNEY PARK DISTRICT, Plaintiff-Appellee, v. THE VILLAGE OF BEDFORD PARK, Defendant-Appellant.
    First District (5th Division)
    No. 83—2876
    Opinion filed February 15, 1985.
    Law Office of Patrick S. Moore, of Chicago, and Law Office of Mark Patrick Morgan, of Midlothian (Patrick S. Moore, of counsel), for appellant.

      Vincent Cainkar, of Louis F. Cainkar, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, village of Bedford Park, appeals from an order of the trial court granting summary judgment in favor of plaintiff, South Stickney Park District, on count I of its two-count complaint for declaratory relief. On appeal, defendant contends, inter alia, that the trial court erred in granting plaintiff’s motion for summary judgment because (1) a genuine issue of material fact existed, and (2) assuming arguendo that there was no issue of material fact present, the trial court erred as a matter of law in its application of section 8 — 1 of the Park District Code (Ill. Rev. Stat. 1981, ch. 105, par. 8 — 1).

For the reasons given below, we vacate the trial court’s order and remand with directions to dismiss count I of plaintiff’s complaint. Pertinent to our disposition are the following.

Plaintiff, South Stickney Park District, is a governmental entity organized pursuant to the provisions of the Park District Code. (Ill. Rev. Stat. 1981, ch. 105, par. 1 et seq.) Its boundaries are included within the city of Burbank, village of Bridgeview, village of Bedford Park and portions of unincorporated Cook County. Plaintiff operates a park site on land lying east of Narragansett Avenue and south of 75th Street in the city of Burbank. In March of 1981, plaintiff sought to expand the existing park and acquired a nine-acre parcel of land directly west of the existing park, but separated therefrom by Narragansett Avenue. The newly acquired acreage was wholly within the boundaries of the Bedford Park District, and within the corporate limits of defendant village of Bedford Park.

As a condition of the grant money which it received from the Illinois Department of Conservation to purchase the land, plaintiff was obliged to use the acquired property only for park and recreational purposes. Upon approval of its planned use for the property by the Office of the Governor and the Northeastern Illinois Planning Commission, plaintiff received additional development grants from the Illinois Department of Conservation. Plaintiff’s attempts to improve the newly acquired parcel were halted by the defendant which contended that plaintiff lacked authority to develop and operate a park on property wholly outside of plaintiff’s boundaries.

In June of 1983, plaintiff filed its complaint for a declaratory judgment and other relief. Count I alleged that the defendant refused to allow plaintiff to develop its property as a park site; that section 8 — 1 of the Park District Code (Ill. Rev. Stat. 1981, ch. 105, par. 8 — 1) gave plaintiff complete power and control over the property in question even though the property was located outside of plaintiff’s legal boundaries; that an actual controversy existed between plaintiff and defendant concerning the use of the described property as a park site; and that plaintiff was entitled to a declaration of rights-. Plaintiff asked the trial court to enter a declaratory judgment to the effect that the defendant village had no jurisdiction over the site and that plaintiff could use its property for park purposes. Count II of the complaint prayed that the court find that defendant’s zoning ordinance, which prohibited the use of plaintiff’s property for park purposes, was unconstitutional.

In its motion for summary judgment, plaintiff contended that section 8 — 1 of the Park District Code (Ill. Rev. Stat. 1981, ch. 105, par. 8 — 1) provides it with complete power to manage and control all property of its district whether located within or without its boundaries. Defendant conceded that plaintiff had total control of all property within its own boundaries, but argued that outside its boundaries, plaintiff was a mere landowner no different than any other landowner, and therefore subject to defendant’s reasonable zoning regulations.

On October 27, 1983, the trial court found, inter alia, that there were no material issues of fact in controversy; plaintiff owned a parcel of land located outside of its legal boundaries and within defendant’s boundaries; and section 8 — 1 of the Park District Code provides that a park district shall have the same power over lands that it owns concerning the construction, laying out and operation of its parks, whether that land was within or without such park district. The trial court granted summary judgment in favor of plaintiff and against defendant, and permanently enjoined defendant from interfering with or enforcing any of its ordinances against the operation or construction of a park site on plaintiff’s land. Count II was not decided by the trial court and is still pending. The trial court further found that there was no just reason for delay in the enforcement of its order.

Defendant appeals from the trial court’s order.

Opinion

The primary question that we are presented with on appeal is whether a park district has the right to establish a park outside of its own boundaries, free from regulation by the municipality in which it is located.

Section 8 — 1 of the Park District Code (Ill. Rev. Stat. 1981, ch. 105, par. 8 — 1) provides in part that:

“Every park district shall *** have and exercise the fol-
lowing powers:
* * *
(b)(1) To acquire by gift, devise, grant or purchase, or by condemnation under the Eminent Domain Act, any and all real estate, or rights therein necessary for building, laying out, extending, adorning and maintaining any such parks, * * * or for effecting any of the powers or purposes granted under this code ***, whether such lands be located within or without such district, provided however, that no park district, except as provided in paragraph (2) of this subsection, shall have any power of condemnation *** as to any real estate *** or other property situated outside of such district, but shall only have power to acquire the same by gift, devise, grant or purchase, and such district shall have the same control of and power over lands so acquired without the district as over parks, *** within such district.” (Emphasis added.)

Defendant contends that the foregoing statute must be interpreted to limit plaintiff’s authority outside of its boundaries. Defendant concedes that section 8 — 1 does give plaintiff absolute power within its boundaries, but argues that the statute does not confer the same authority outside of those boundaries. Conversely, plaintiff contends that section 8 — 1 gives park districts total control over its parks regardless of whether those parks are located within or without its boundaries.

Preliminary to our resolution of this question, we must first consider plaintiff’s motion to take judicial notice of two ordinances which were enacted on February 8, 1984. One of the ordinances, enacted by the Bedford Park District, provided for the disconnection of the subject property from its district. The other ordinance was enacted by the plaintiff park district and provided for the annexation of the subject property into the South Stickney Park District.

Defendant argues that plaintiff’s motion is inappropriate in this case, and posits that this court cannot take judicial notice of the ordinances because the trial court did not do so at the time of plaintiff’s motion for summary judgment. We disagree with defendant’s position, as it is obvious that because the ordinances in question were enacted four months after the trial court’s order, it was impossible for the trial court to recognize these ordinances. Further, defendant’s reliance on Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 393 N.E.2d 646, is misplaced. Freehling involved an attempted amendment of the trial court record with evidence which had occurred after trial. In the present case, plaintiff park district does not attempt to amend the trial court record, but seeks the judicial notice of this court as to the involved ordinances.

Sections 8 — 1001 and 8 — 1002 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 8 — 1001 and 8 — 1002) allow this court to take judicial notice of any and all statutes and ordinances which pertain to the case (see Lopez v. Fitzgerald (1977), 53 Ill. App. 3d 164, 169, 368 N.E.2d 356, affd (1979), 76 Ill. 2d 107, 390 N.E.2d 835), and we may, of course, take judicial notice of facts showing that a controversy no longer exists. (First National Bank v. Kusper (1983), 98 Ill. 2d 226, 233, 456 N.E.2d 7.) It is clear that the two ordinances in question are proper subjects for judicial notice by this court, and we conclude that the parcel of land in question is now within the corporate boundaries of plaintiff park district.

Having taken judicial notice of the above ordinances, the dis-positive issue in this case becomes whether this controversy is moot.

A matter is considered to be moot when it “presents or involves no actual controversy, interests or rights of the parties, or where the issues have ceased to exist.” (People v. Redlich (1949), 402 Ill. 270, 278-79, 83 N.E.2d 736.) It is the duty of this court to decide actual controversies which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it (see Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527, 430 N.E.2d 139), as decisions of this nature could have an advisory effect only. People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 276-77, 449 N.E.2d 856.

In the present case, defendant bases its appeal in part on the appropriateness of the trial court’s holding that section 8 — 1 of the Park District Code (Ill. Rev. Stat. 1981, ch. 105, par. 8 — 1) provides that a park district shall have the same power over lands that it owns, regardless of whether those lands are inside or outside the boundaries of: such park district. However, defendant has admitted in the trial court and in its appellate brief that the plaintiff park district does have absolute power to establish a park site within its own boundaries. The ordinances that we have judicially noticed now locate the parcel in question inside the plaintiff’s legal boundaries. Therefore, it is clear to this court that no controversy among the parties exists. Both parties agree that now that this property is within plaintiff’s legal boundaries, plaintiff has absolute power to establish a park, and defendant’s plans for the property are irrelevant.

We find that there is no continuing or recurring controversy which exists between the adverse parties for which a judicial decision would be of any consequence. When it becomes apparent that an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, the court should not resolve the question merely for the sake of setting a precedent to govern further cases. (Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309.) We will therefore refrain from consideration of defendant’s contention that the trial court erred in granting summary judgment in favor of plaintiff, as we find this controversy moot.

The controversy having become moot between the parties, we hereby vacate the judgment order as to count I of plaintiff park district’s complaint, and remand the cause, with directions to dismiss the complaint as to count I and any further actions consistent with this opinion.

Vacated and remanded with directions.

SULLIIAN and PINCHAM, JJ., concur.