author: JUSTICE WILSON

text:
    AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO et al., Plaintiffs-Appellees, v. JOHN P. CARROLL, Indiv. and d/b/a Carroll Builders, Defendant-Appellant (Ziebell Water Service Products, Inc. et al., Defendants).
    First District (5th Division)
    No. 83—1088
    Opinion filed March 16, 1984.

      Reuben & Proctor, of Chicago (Edward G. Proctor, Thomas F. Ging, and James R. Daley, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (Cornelius J. Harrington, Jr., Frank L. Winter, and James N. Nowacki, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Defendant, John P. Carroll, a land developer and builder, appeals from preliminary and permanent injunctions entered by the trial court enjoining him from tunnelling under plaintiff Fairfield’s land in order to connect into water and sewer lines located therein. The issues presented for review are: (1) whether the trial court erred in its interpretation of an ordinance which, when complied with, entitles the village of Olympia Fields to receive certain property easements, and (2) the propriety of the issuance of preliminary and permanent injunctions. For the reasons hereinafter stated, we affirm.

The property involved in this litigation concerns a 112-acre residential development project, “Trails of Olympia Fields,” which was constructed by plaintiff Fairfield Service Corporation (Fairfield) located in the village of Olympia Fields, Illinois. Bordered by Vollmer Road along the north, 203d Street on the south, Governors Highway on the west and Kedzie Avenue on the east, the development is subdivided into three sections. Phase 1 in the southern portion of the development project comprises 77 residential lots. Phase 2, located approximately in the middle third, consists of 81 lots of single-family dwellings. Phase 3 in the northern third is undeveloped commercial property.

In 1978, Fairfield applied and was granted permission by the Metropolitan Sanitary District (MSD) to construct sewers in Phase 1. On the application, Fairfield represented that the village was the owner of the sewer system. Sewer construction in Phase 1 was completed in 1979 and in 1981 construction was completed for Phase 2.

Defendant, doing business as Carroll Builders, owned land adjacent (east) and parallel to Fairfield’s project. After constructing his own water and sewer lines, defendant prepared to tap into Fairfield’s lines to the west by excavating a tunnel under Kedzie Avenue, which divides the parties’ properties. Defendant was about to make the connection in February 1983, but before he entered beneath Fairfield’s land, Fairfield filed a motion for a temporary injunction, alleging that it had constructed the water and sewer lines at its expense and that easements had not yet been dedicated to the village to permit entry onto the land or use of the lines.

In rebuttal, defendant argued that it had received permission from the MSD as well as the village to tap into these lines. Both Fair-field and defendant agreed, however, that the principal issue before the court was which party had the right to control the lines in question.

Granting the temporary injunction, the trial court reasoned that it should maintain the status quo in order to permit both sides to prepare for full argument on the merits of this cause, which was scheduled to be heard in April 1983.

In the interim, on March 9, 1983, the village president requested that the village engineer, Edward J. Resner, conduct a “second inspection” of the sewer line in Phase 2 in accordance with village ordinance 17W, section 3(H), which provides that a second inspection of water and sewer lines in a development project be completed prior to the village’s acceptance of the lines and concomitant conveyance from the developer to the village of easements for access for maintenance and repair.

Resner complied with this request on the morning of March 14, 1983, and informed the village president that afternoon that he had inspected portions of Fairfield’s sewer system. Resner recommended that certain segments of the sewer lines be accepted by the village board, which it did at its board meeting that evening.

The following week, on March 21, 1983, the village attorney wrote a letter to Fairfield’s counsel, Cornelius J. Harrington, requesting that in accordance with ordinance 17W, Fairfield immediately convey to the village the necessary easements for the sewer line in Phase 2. This request was denied. On March 28, 1983, the village board passed a resolution accepting the water lines and the Phase 1 development project.

Injunctive proceedings before the trial court commenced April 14, 1983. First, defendant presented a motion to dismiss, asserting that the court did not have equity jurisdiction over this matter because Fairfield had not shown irreparable harm and had an adequate remedy at law (damages). Fairfield’s primary motive, defendant alleged, was to destroy defendant’s development project by making it impossible for defendant to sell homes in the spring season because he (defendant) would not have access to any water or sewer lines. Also, defendant urged, the water and sewer systems now belong to the village and, further, Fairfield’s land development in Phase 2 was already burdened with a utility easement used by Northern Illinois Gas Company.

Following Fairfield’s argument in rebuttal that the village board proceedings were a “hurry up operation between [defendant] and the Village Engineer,” the court recessed and subsequently issued a ruling denying defendant’s motion.

Fairfield then called defendant to testify as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102). Defendant stated that Fairfield’s counsel, Cornelius J. Harrington, had briefly informed him in August 1982 that there was “a problem between [defendant] and Fairfield” which had to be resolved. Defendant then read into evidence a letter from Resner, the village engineer who had performed a second inspection of Fairfield’s sewer lines in March and who also worked for Wight Engineering Company. Fairfield had hired Wight to work on its project. The letter was addressed to the village commissioner and requested a building permit for defendant, but “subject to [defendant’s] satisfactory submission of a sanitary sewer easement on the west side of Kedzie Avenue for the sewer he is connecting into.” It went on to state that “the easement should be recorded prior to occupancy of any units.”

Defendant further testified that as of October 1982, he had not obtained an easement from anyone. In February 1983, defendant telephoned Resner but did not recall whether Resner had advised defendant to obtain an easement to tap into plaintiff’s water and sewer lines. Part of the conversation with Resner did concern Fairfield’s “No Trespassing” signs, however. Defendant stated that he had telephoned Resner because defendant believed that he (defendant) had a written permit to tap in. This permit, Fairfield’s exhibit 2, was entitled “Metropolitan Sanitary District, Sewage System Permit 82— 241.”

Testifying further, defendant acknowledged that he never asked Fairfield for an easement and that in spite of the October 1982 letter he dug a pit in February 1983 to connect to plaintiff’s water and sewer lines.

Fairfield next examined William V. Briody, who stated that as project director at Fairfield Service Corporation he was responsible for the management of the “Trails of Olympia Fields” development project. His duties included working with engineers, obtaining permits and approvals from the village, the MSD, Cook County and the Illinois Environmental Protection Agency as well as soliciting and awarding bids. Briody explained that for marketing and economic purposes this project was divided into three phases and had been paid for by Fairfield. The engineering firm of Wight and Company had designed the sewer and water lines in Phase 1 which were constructed in 1980. Sewer, water and storm sewer lines in Phase 2 were completed in 1981. There had not as yet been any residential development in Phase 3.

Testifying further, Briody said that it was after the water and sewer lines were constructed that he learned that they had been built in such a manner as to be able to serve areas other than the property owned by Fairfield. Briody also identified Fairfield’s exhibit 13, which was its request for final inspection and approval of Phase 2. After identifying several additional exhibits, Briody was examined concerning his letter to Anton Medovich, chief field engineer at Wight and Company, dated August 17, 1982. The letter requested an inspection of Phase 2 but only to “ascertain substantial completion on the part of the Contractor so final payment can be made to him.” Briody stated that pursuant to this request he participated in the inspection of the site improvements, including the water and sewer lines.

Briody stated that on February 14, 1983 he noticed that defendant had begun to dig a pit which would enable it to tunnel under Kedzie Avenue in order to tap into Fairfield’s water and sewer lines. Briody immediately called Fairfield’s attorneys, installed three “No Trespassing” signs and photographed the area. That same day, Briody talked to one of the men on defendant’s construction site and informed him that Fairfield had not granted defendant an easement to enter onto the property and that Fairfield would take legal action to prevent defendant from doing so.

Briody testified further that defendant had never asked for permission to tap into Fairfield’s lines nor did he receive notice from the village or from Wight and Company that they intended to inspect any portion of the Phase 2 project. Briody was also not informed that there would be a village board meeting regarding Fairfield’s water and sewer lines.

Briody then stated that Fairfield had entered into an agreement with another company whereby the company agreed to extend Fair-field’s sewer line in order to tie into it. The company completely paid for this construction work. Fairfield in turn granted the company an easement to connect into the lines. Defendant had never approached Fairfield to discuss whether such an agreement could be arranged, Briody said.

On cross-examination Briody identified a document entitled Request For Final Inspection, Phase 2, dated February 23, 1981. Although Briody had signed the document which stated that he certified that the project had been completed to his satisfaction, he said that his primary contention now was that he had not been notified prior to the second inspection which occurred on March 14,1983.

Fairfield next examined Edward J. Resner, village engineer and chief engineer at Wight and Company. Resner stated that Wight had designed the water and sewer system for Fairfield’s development projects in Phases 1, 2 and 3.

Resner stated that he received a call from defendant in January or February 1983 advising him that defendant “was not having any success in dealing with plaintiff in obtaining the ability to tap into a sewer and water line.” Resner responded that it was a legal question and that defendant should contact the village attorney. On February 14 defendant again called and said that he (defendant) was attempting to augur a sewer line to Fairfield’s property but had ceased to do so because of Fairfield’s “No Trespassing” signs. Resner advised Fair-field to resolve the dispute of obtaining an easement to connect into the sewer and water facilities although he did not tell defendant to call anyone in particular.

Resner received a letter from the village attorney on March 9 requesting that he inspect the sewer lines on Fairfield’s property. In compliance, on March 14, Resner examined the engineering drawings of the project and inspected one of the four manholes on the sewer line to which defendant sought to connect. Although the area where the water mains were installed were “observed,” no tests were conducted. That same day Resner recommended in a hand-delivered letter to the village trustees that the village accept only that portion of the sewer and water lines in Fairfield’s project to which defendant sought to connect. That evening, at the village board meeting, Resner made a presentation about the inspection of Fairfield’s lines, which inspection had been conducted by him, along with Fred Keech, the director of public works and Anton Medovich, the chief field inspector.

Resner denied that he had said at the meeting that an additional “walk through” inspection was necessary and stated that he had personally made the decision not to inspect the sewer and water lines in the other portion of the Phase 2 development project. In his opinion, however, another final inspection was necessary for the interior sanitary sewer lines before Fairfield could operate any of the sewer lines which would service any of the lots in Phase 2. No further inspection was required for defendant to be able to utilize the portion of the water and sewer line to which defendant seeks to connect, however.

As far as Fairfield’s water line was concerned, Resner testified that he stated in a letter to the village president that pressure testing and chlorination records should be established before the village accepted the line as a public improvement.

Testifying further, Resner stated that his inspection took approximately 30 to 45 minutes, that he did not make any notes and did not inform or give notice to Fairfield or its attorneys that an inspection would occur or that a village meeting would take place that day. Resner then explained that an observation of a construction project is a cursory review of the intentions of the design documents with respect to the actual installation of an improvement. An inspection, on the other hand, requires a higher degree of investigation which is performed often on a full-time basis when the contractor is actually installing the improvement. Attention is given to the original specifications.

Under cross-examination, Resner stated that he had inspected defendant’s adjacent property only once, on or about October 1982. He also said that he had only recommended a portion of Fairfield’s sewer and water lines in Phase 2 for acceptance but that he had recommended partial acceptance of water and sewer systems in the past. Further inspections of Fairfield’s as well as defendant’s interior lines would be required before they could be put to use. Thus, although Resner approved the plans for the tap-in, defendant would not be able to put the tap-in to use until after a further inspection of the interior lines. Resner then identified a permit issued to defendant for the construction of his sanitary system by the MSD which he signed as municipal engineer and as the inspection engineer. At the close of Resner’s testimony on re-cross-examination, defendant submitted a motion for a directed verdict, which was denied.

Defendant then presented his case in rebuttal and first submitted a number of exhibits into evidence, including Fairfield’s sewerage system permits for Phase 1 and Phase 2, issued by the MSD. Under a category entitled “Schedule A — Basic Information,” both permits identified the village of Olympia Fields as the owner “of all sewer systems from [the] project to [the] MSDGC [Metropolitan Sanitary District of Greater Chicago] interceptor.” Defendant’s sewerage permit from the MSD for its construction project also identified the village as the owner. Also admitted was defendant’s application for a highway permit which was signed and approved by the Cook County superintendent of highways which granted to defendant the authority “to install, operate and maintain a 10 inch water main and valve vault running under and across Kedzie Avenue.”

Next, defendant called his first witness, James Creswell, village attorney of the village of Olympia Fields. Creswell testified that on March 21, 1983, he sent a letter to Fairfield’s attorney on behalf of the village requesting that Fairfield deliver to the village the easements for its sewer line. A second letter followed on April 6. On April 11 a motion was made and passed by the village board to clear up any questions as to the March 14 board meeting regarding the sewer and water lines in Phase 1.

Testifying further, Creswell stated that the village had a tap-in ordinance in the general building codes and that any fees generated from a tap-in would go to the village.

Next to testify was Anton Medovich, chief field engineer inspector for Wight and Company. Medovich stated that he performed periodic inspections in Phase 2 of the construction of the roads, public utilities and sewer and water lines. In 1980 Medovich approved and signed Fairfield’s request for final inspection of the sewer lines in Phase 2.

Medovich stated that on March 14, 1983, he, Resner and Fred Keith, director of public works for the village performed an inspection of the sewer lines along Kedzie Avenue in Phase 2 and did not find any deficiencies. He stated under cross-examination that all of the inspections he performed on Phase 2 were for Fairfield with the exception of the March 14 inspection which was conducted at the request of his supervisor, Resner. He also testified that he was acting in his capacity of providing services for Fairfield when he signed Fairfield’s request for final inspection and approval of Phase 2. His periodic inspections were basically conducted to insure that the project was proceeding according to construction plans and specifications.

Defendant next called William Briody, who testified that he had been misled by his engineers who installed oversized sewer and water pipes along Kedzie Avenue that would accommodate more capacity than what was required. It was because of the overcapacity that Fair-field was able to negotiate an agreement with another company in its Phase 3 project, Briody stated. When Briody learned of defendant’s intentions to connect to Fairfield’s sewer he spoke to defendant approximately three times between June 1982 and February 13, 1983.

Defendant Carroll testified next. Currently the beneficial owner of his development project, defendant once owned the entire tract of land which includes Fairfield’s property as well. Fairfield purchased its land from defendant in 1977.

Defendant said that in January 1982 he submitted engineering drawings for his construction work to the village for their review and approval as well as to the MSD, the Illinois EPA and the State highway department who each gave their approval. Defendant testified that he “tried to alert people to the fact that he was attempting to tap into Fairfield’s sewer line but it wasn’t until Fairfield placed “No Trespassing” signs on its property that defendant said he first became aware of Fairfield’s opposition to defendant’s plans.

Testifying further, defendant stated that there could possibly be a sewer connection somewhere else but that the tap in on Fairfield’s property would be the most logical, direct and useful. The procedure that defendant intended to use, if permitted, was to augur under Kedzie Avenue with “little disturbance on the other side.”

Defendant testified under cross-examination that Phase 1 of his development project began in May or June of 1982 and included construction of water lines. Defendant stated that when he first became aware in 1981 that Fairfield had constructed sewer and water lines along Kedzie Avenue he talked to the director of public works of the village who informed defendant that as far as he knew defendant could tie into Fairfield’s lines.

Continuing his testimony under cross-examination, defendant admitted that in October 1982 his attorney informed him that Robert Field, a village trustee, had said that there was a “question” about using the sewer on Kedzie Avenue if it had not been dedicated to the public. Defendant had also received notice from the village that he had to settle his dispute with Fairfield concerning the cost of constructing a public sidewalk.

Redirect examination disclosed that defendant believed that since he had building permits and approvals from the village, EPA, MSD and the county highway department and since Fairfield’s line had previously been tapped into, he thought that he could do the same. After stressing the financial hardship and imposition that this cause of action had created, defendant rested his case.

In rebuttal, Fairfield called Cornelius J. Harrington, one of its attorneys who had previously testified. Harrington stated that following the adjournment of the village meeting on August 9, 1982, he told defendant, who was present, that he (Harrington) understood that defendant had plans to tie into Fairfield’s sewer and water lines, that Fairfield had never recorded the plat of subdivision of Phase 2 and that Fairfield would object if defendant attempted to tie into those lines. Following this testimony, Fairfield rested its case. Defendant rested his case in surrebuttal following brief testimony by his son.

After closing arguments by both sides, the court entered its judgment in favor of Fairfield, holding that the inspection by the village engineer (Resner), and approval of only part of Fairfield’s lines failed to satisfy village ordinance 17W, section 3(H), which requires a second inspection of all lines as a mandatory precondition to acceptance by the village board. Defendant now appeals.

Opinion

Initially, defendant contends that for several reasons the trial court misinterpreted the provisions of ordinance 17W section 3(H), which provides as follows:

“Developer shall install all sanitary sewer, storm and water lines as necessary to serve the improvements under construction. All stages of construction shall be subject to inspection and approval by the Village Engineer. The Developer shall maintain all lines for one (1) year after said approval. After the end of the one year period, a second inspection shall be made of all lines by the Village Engineer, and if said lines are approved, they shall be submitted for final acceptance by the Village Board. Upon acceptance of any lines by the Village Board, Developer shall convey to the Village easements necessary for access for maintenance and repairs of said lines. The Village, after final acceptance of any lines, shall operate, maintain and repair said lines as part of the Village system, but shall not be responsible for restoration of any landscaping or amenities placed over lines or be in any manner responsible for any damage direct or consequential because of malfunction of any of such systems, except for damage caused by the negligence of the Village.”

First, defendant contends that the ordinance does not require that all public improvements in a subdivision be accepted by the village board at the same time. The key language in section 3(H) in this regard, defendant posits, is that “upon acceptance of any lines by the Village Board, ***” the developer shall convey to the village the necessary easements and that “*** the Village, after final acceptance of any lines, shall operate, maintain, and repair said lines as part of the Village system.” Defendant further contends that Resner testified that municipalities occasionally accept only portions of water and sewer lines. Also, the subject of partial acceptance was discussed at the village board meeting on March 14 where it was voted to accept a portion of the sewer lines along Kedzie Avenue.

It is our view that defendant misinterprets the trial court’s ruling. In reaching its decision that the village had not complied with the requirements of the ordinance, the court focused in part on Resner’s inspection, which it found was defective. The fact that section 3(H) provides that the village may accept any lines was not found to be an impediment to the village’s decision to accept Fairfield’s water and sewer lines. Rather, the record discloses that the court specifically stated that the village had, in fact, “*** formally accepted that part of the sewer line running parallel to Kedzie Avenue and part of Phase 1 of plaintiff’s development.” The court then went on to state that the village had not exercised any control over that part of the sewer line contained in Phase 2 and therefore had not accepted it. The one year maintenance period referred to in section 3(H) is triggered by the village engineer’s approval of all the sewer lines in the improvement, the court observed, followed by a second inspection of all lines.

Thus, although section 3(H) states that the village may accept any lines in a development, the village engineer initially must inspect and approve all lines prior to submitting them for final acceptance. The facts disclose, however, that Resner stated on direct examination that in his opinion, another final inspection was necessary for Fair-field’s interior sanitary sewer lines before they could be used. Additionally, although Resner stated that he had personally made the decision not to inspect the sewer and water lines in another portion of the Phase 2 development project, this decision contravened the specific language of section 3(H), which requires a second inspection of all lines. Because this was not done, as the trial court properly ruled, the board’s acceptance of Fairfield’s lines on March 14 was ineffective.

Next, defendant argues that the inspectional requirements of section 3(H) were fully met because there were two inspections of Fair-field’s water and sewer lines in Phase 2, the first of which occurred in 1980 when Robert Richter, the village engineer at the time, and Gerald Louis Maullin, the inspection engineer, both certified their approval of the lines in Phase 2 by signing Fairfield’s request for final inspection, which indicated that the lines were periodically inspected. The second inspection occurred on March 14, 1983, defendant contends, when Resner conducted an inspection at the direction of the village president. Phase 2 water lines were accepted by the board on April 11, 1983.

Fairfield, on the other hand, counters that section 3(H) specifically requires that all lines be inspected. Contrary to defendant’s postulation, Fairfield asserts, Resner perfunctorily performed what can best be described as an “observation” of the sewer line and did not inspect the water line at all.

Without addressing the propriety of the alleged first inspection of Phase 2, the trial court ruled, as we have previously stated, that all lines in Phase 2 had not been inspected and approved on March 14, 1983, which deficiency rendered the village board’s subsequent vote to accept the lines ineffective. Again, we concur with this conclusion. In our judgment, Resner’s testimony set forth above strongly suggests that the purported final inspection of the lines in Phase 2 was incomplete and possibly premature since the lines were not yet operative. Moreover, Resner said that he had informed the village that pressure testing and chlorination records should be established before Fair-field’s water line was accepted as a public improvement. We are aware that section 3(H) does not delineate guidelines for conducting a “first” inspection and merely states that the second inspection should be made after the developer has maintained all lines for one year following an initial approval by the village engineer. We are convinced, however, that the plain and ordinary meaning of this language supports Fairfield’s view that the final inspection in this case was inadequate. (Fess v. Parke, Davis & Co. (1983), 113 Ill. App. 3d 133, 135, 446 N.E.2d 1255. See also Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 245, 446 N.E.2d 1271, where we determined that in construing a statutory provision which has not yet been judicially interpreted, a court is guided by both the plain meaning of the language of the statute as well as legislative intent.) Indeed, section 3(H) suggests that a second inspection occur after all lines are operative. We therefore disagree with defendant’s contention on this issue.

Further challenging the proceedings before the trial court, defendant asserts that Fairfield’s cause of action should have been dismissed at the outset because it was an impermissible collateral attack on village ordinance 17W. In this regard defendant posits that Fairfield’s complaint was a quo warranto proceeding which, as a direct action, may not be raised collaterally. We cannot agree with this contention.

Our review of Fairfield’s complaint reveals that Fairfield characterized defendant’s anticipated entry onto its property as an impending trespass, stating that a controversy existed as to whether defendant had the right to connect into Fairfield’s water and sewer lines (Count 1). Count 2 urged the court to issue a declaratory judgment and injunctive relief. Fairfield’s motion for a preliminary injunction was filed the following day.

Additionally, we note that defendant’s cases cited on this issue are inapposite to the facts before us. In Village of Bridgeview v. City of Hickory Hills (1971), 1 Ill. App. 3d 931, 274 N.E.2d 925, the question presented for review concerned the propriety of quo warranto proceedings instituted by the State’s Attorney of Cook County, who challenged the village of Bridgeview’s decision to annex contiguous land. A similar issue (the disconnection of property which had previously been annexed) was raised in North Main Fire Protection District v. Village of Niles (1977), 53 Ill. App. 3d 389, 368 N.E.2d 516. The questions presented in these decisions, however, are not before us in the pending matter.

Defendant’s final argument on appeal is that the trial court erroneously granted injunctive relief in the absence of any evidence that Fairfield did not have an adequate remedy at law and was irreparably harmed. Defendant contends further that the trial court also improperly refused to balance the equities between Fairfield and defendant. Again, we cannot agree.

A preliminary injunction is an extraordinary provisional remedy granted before the hearing of a case on its merits in order to preserve the status quo for the purpose of preventing a threatened wrong or any further perpetration of an injury (21A Ill. L. & Prac. Injunctions sec. 4 (1977).) Such an injunction does not decide controverted facts or the merits of the cause; rather, it only shows that sufficient cause has been made to authorize or require the court to preserve the rights in issue until a final hearing on the merits. (Duval v. Severson (1973), 15 Ill. App. 3d 634, 641, 304 N.E.2d 747.) An applicant is not entitled to a temporary injunction as a matter of right; he must show (1) that it is clear that he has a lawful right for which he seeks protection; (2) that he will be irreparably harmed and (3) that his remedies at law are inadequate. Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 141, 423 N.E.2d 1253.

In the case at bar, Fairfield’s two-count complaint alleged that it had been “*** informed and believe[s] that [defendant] desires to connect its water and sewer lines *** into the water and sewer lines already constructed and owned by Fairfield and located immediately west of Kedzie Avenue.” The complaint further enumerated the ways in which Fairfield attempted to place defendant on notice that such entry would constitute a “forcible unlawful and wrongful trespass” and it stated further than an actual controversy existed as to whether defendant had the right to enter upon or under Fairfield’s property.

In response, defendant’s answer acknowledged that the property belonged to Fairfield but alleged that defendant’s intentions were to lawfully tap into the sewer and water facilities “through an easement [granted] to the Village of Olympia Fields for access to the Village’s water and sewer lines ***.” Defendant admitted that a controversy existed but denied that Fairfield owned the lines in question.

Based on these facts, the trial court did not abuse its discretion in issuing injunctive relief. Rather, our review convinces us that the court exercised the proper caution in granting the injunction; it identified the controlling issue presented, heard argument by counsel for both sides and received supporting evidence as to the ownership of the property in question. It was Fairfield, however, who was ultimately successful in demonstrating that there was a clear or immediate necessity to maintain the status quo because of a threatened actual and substantial injury. We believe that the trial court’s findings are well supported by the evidence and therefore conclude that the preliminary injunction was properly granted. Summit Electric Co. v. Mayrent (1974), 17 Ill. App. 3d 545, 550, 308 N.E.2d 313.

We turn now to the propriety of the issuance of the permanent injunction. A permanent injunction is designed to extend or maintain the status quo indefinitely after a hearing on the merits where it has been shown that the plaintiff is suffering irreparable harm and there is no adequate remedy at law. ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 833, 413 N.E.2d 1299.

In the pending matter, the trial court made several findings, one of which was that the village board’s acceptance of the sewer and water lines was ineffective because the requirements of section 3(H) had not been met. The threatened injury Fairfield complained of, which was an unlawful trespass onto its land in order to tap into its lines, could not be measured and corrected by an award of money damages alone as defendant’s act would result in a continuing trespass and would cause irremediable injury. It has been previously held that in such situations, injunctive relief is warranted. Pliske v. Yuskis (1980), 83 Ill. App. 3d 89, 95, 403 N.E.2d 710.

Accordingly, for all of the foregoing reasons, the trial court’s judgment will be affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

      We are unsure of the correct spelling of this name since it appears as a signature of Fairfield’s request for final inspection.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN KRAUS, a/k/a Gary Russell, Defendant-Appellant.
    Second District
    No. 82—481
    Opinion filed March 27, 1984.
    Rehearing denied April 27, 1984.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko, Gene Armentrout, and Martin P. Moltz, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Martin Kraus, appeals from the denial of his motion to withdraw his guilty plea, which was entered on the charge of murder (111. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)) in the circuit court of Lee County. On appeal, he claims (1) that his guilty plea was the product of a misapprehension of the applicability of the death penalty in this case and that such misapprehension requires the vacatur of his guilty plea; and (2) that defendant’s expressed desire to receive the death penalty raised a bona fide doubt of his fitness entitling him to a hearing on the question.

The issues raised on appeal are based upon the following events which occurred during defendant’s arraignment on April 19, 1982. At the beginning of the hearing, defendant was advised that the charge of murder carried possible penalties of death, natural life, 20 to 40 years’ imprisonment or the possibility of an 80-year maximum extended term, and the possibility of a mandatory supervised released term of three years. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5— 3(c)(1), 1005 — 8—1(a)(1), 1005-8-l(d), 1005-8-2(a)(l).) Defense counsel thereupon advised the court that defendant would plead not guilty, but defendant immediately responded, to the surprise of his attorney, that he would plead guilty to the charge. The following colloquy occurred:

“MR. FRITTS [defense counsel]: It’s fine with me, Your Honor. I talked to him this morning. He gave me no indication of his plea for guilty. I do not have discovery from the State so I cannot give him a recommendation, but if he wishes to plead guilty—
THE COURT: That’s your privilege. You have the right to do what you want to do. I would assume what your attorney’s advising you is that you should wait until you have discovery, but on the other hand it’s your decision to make. If you want to plead guilty, you can plead guilty. If you want to plead not guilty, you can plead not guilty. It’s whatever you want to do.
THE DEFENDANT: Yes.
THE COURT: And you want to plead guilty?
THE DEFENDANT: Yes, I do, sir.”

The court thereupon admonished defendant pursuant to Supreme Court Rule 402 (87 Ill. 2d R. 402). Defendant indicated he understood each of his rights. Defendant further indicated that his plea was voluntary.

The factual basis for the plea established that on March 25, 1982, Karen Plata was sitting in her car in the parking lot of Sauk Valley College waiting for her husband, Ysidro, to return from classes. At 7:30 p.m., defendant came out of one of the buildings, approached her car, opened the door and, displaying a knife, told her to move over. Defendant gave Mrs. Plata a slight push at which time she slid across the seat and attempted to exit the car. Ysidro Plata came out from the college to the car and, upon seeing defendant, pulled him from the car. A brief struggle ensued. The defendant lunged at Plata with a knife and Plata fell to the ground. The defendant ran away. Mr. Plata was declared dead at 7:30 the next morning; the cause of death was determined to be a wound to the left chest caused by a sharp instrument. Karen Plata also identified the defendant as the assailant in both a photographic and a physical lineup.

While noting that there were a few discrepancies in the facts, defendant nevertheless substantially agreed with the factual basis, stating, “I’m still staying with malice and aforethought. I premeditated to kill her husband.” The court then asked defendant whether he had any further questions and the following discussion occurred:

“THE DEFENDANT: I have one, yes, if I may address the Court. If the State can prove premeditation in this case, what’s the likelihood of the death sentence being passed?
THE COURT: Well, there’s a number of factors that the State would have to prove before there could be a death sentence.
THE DEFENDANT: Would my testimony be enough?
THE COURT: It would have to be a heinous crime and that type of thing before there could be the death sentence. Do both you agree to that?
MR. FRITTS: I agree, Your Honor.
MR. STOCKTON [State’s Attorney]: Or that the defendant previously had committed a murder.
THE COURT: Have you previously committed a murder?
THE DEFENDANT: No sir, but I have an extensive and long record of incarceration.
THE COURT: Well, of course, I don’t know anything about that, but that wouldn’t have anything to do as far as the death sentence is concerned I don’t think.
THE DEFENDANT: Well, I want the death sentence. That's what I’m asking for. That’s what I’m filing for.
THE COURT: What did you say?
THE DEFENDANT: I’m going to request that and through my testimony I think it can be proven that the crime was heinous and that it was committed with malice and it was premeditated.
THE COURT: Well, you understand when you plead guilty the Court now will set what we call a presentence investigation and hearing and a hearing then is set for aggravation and mitigation. At that time the State can present anything that it may have in aggravation and at the same time you have a perfect right to make a statement. You’ll have a perfect right to testify if you want to, but there’s nothing here particularly that the State has to prove. It’s a question now you have pled guilty to this charge and the purpose of this hearing will be to give you an opportunity to make a statement, give you an opportunity to testify and the State can present whatever they want in aggravation and then the Court has to make a determination as to what the sentence should be. Do you understand that?
THE DEFENDANT: Yes sir.
* * *
THE COURT: But it’s not a trial of your charge, you understand, when you plead guilty?
THE DEFENDANT: I freely admit my guilt.”

On April 27, 1982, defendant filed a motion to withdraw his guilty plea, alleging: (1) that he was not guilty of the charge of murder; (2) that at the time of entering his plea he did not understand the difference between murder and manslaughter; (3) that he did not understand that a possible defense of intoxication existed to the charge; (4) that he was unable to fully understand his decision to plead guilty due to a communication problem with his attorney; (5) that he was unfit at the time of entering his plea; and, (6) that he was temporarily insane at the time of entering his plea. On April 28 defendant wrote to the court requesting a substitution of counsel because he and his defense counsel were “seemingly unable to communicate adequately.” A hearing was conducted in which the court inquired whether defendant still wished the relief requested in the letter. Defendant responded that he was withdrawing his request for substitute counsel and was fully satisfied with his representation. Regarding defendant’s allegations of unfitness and temporary insanity at the time of entering his plea, the court stated that it saw no necessity for an insanity hearing since its review of the record and its own observations of the defendant indicated that defendant was “a very intelligent, competent, knowledgeable young man.” The defendant then stated that at the time of his plea he had not been eating or sleeping and had been removed from drugs, and was “very depressed” as a result of these circumstances. The court denied a psychiatric examination but indicated that it would reconsider the question if the evidence at the hearing on the motion to withdraw the plea warranted it.

At the hearing on the motion to withdraw, defendant testified that he was intoxicated at the time of the offense and did not intentionally stab Plata but was responding to an attack upon him. He further reiterated the allegations in the motion and the fact that he was very depressed at the time of entering his plea. The court determined that defendant thoroughly understood the nature of the charge and had had the opportunity to consult with his attorney and indeed had been cooperating with his attorney. The court therefore found that defendant was fit at the time he entered his plea and that there was no basis for granting the motion to withdraw the guilty plea.

The cause proceeded to the hearing on aggravation and mitigation. During the hearing defendant gave a lengthy statement to the court in which he discussed the underlying facts of the offense, his involvement with drugs, and various alleged inaccuracies in the presentence report. Following defendant’s statement, the State’s Attorney advised the court that under these facts it was unclear whether defendant intended to commit any other felony at the time of the offense and, thus, the death penalty was inapplicable. He concluded that the maximum sentence for the charge would therefore be 40 years. The court reasserted its belief that defendant was competent and sentenced defendant to the maximum of 40 years’ imprisonment. Defendant was advised of his right to appeal pursuant to Supreme Court Rule 605(b) (87 Ill. 2d R. 605(b)).

Defendant first claims that his guilty plea was involuntary because it was the product of a misapprehension of the applicability of the death penalty. He claims that the trial court’s erroneous admonishment that the maximum penalty in the case would be death constituted a violation of Supreme Court Rule 402 (87 Ill. 2d R. 402), as well as a denial of due process. Finally, defendant suggests that his trial counsel was incompetent when he agreed with the trial court that the death penalty could apply if it were “a heinous crime or that type of thing,” and that the absence of communication between defendant and his attorney demonstrated that the plea was entered without the advice of counsel. We disagree with all these contentions.

Initially, we note that this issue is raised for the first time on appeal. Defendant’s motion to withdraw his guilty plea argues six bases for vacating the plea. The motion did not mention that his plea was involuntary, nor that it was entered upon the belief that the death penalty was applicable when in fact it was not. Nevertheless, because of the unusual factual circumstances of this case and the gravity of the offense charged, we will review defendant’s contentions pursuant to the authority vested in us by Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)).

We first consider defendant’s contention that Supreme Court Rule 402 (87 Ill. 2d R. 402) was violated by the court’s alleged erroneous admonishment that the maximum penalty would be death. This issue was resolved against the defendant in the recent case of People v. Nichols (1981), 96 Ill. App. 3d 354, 356, 420 N.E.2d 1166. In that case, we held that it was not error for the trial court to admonish a defendant in a murder case that the death penalty was a possible sentence, even though it was later determined that that penalty was not a viable sentencing alternative. We stated:

“The Illinois Supreme Court has noted that ‘there is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder.’ (People v. Brownell (1980), 79 Ill. 2d 508, 524.) The death penalty is the maximum penalty for the crime of murder. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b).) The court is required by Rule 402 to inform the defendant of the ‘minimum and maximum sentence prescribed by law.’ (Ill. Rev. Stat. 1979, ch. 110A, par. 402(a)(2).) Thus, the court must inform of the death penalty even if the prosecutor has not requested a death penalty hearing, or the State is precluded from seeking the death penalty if the defendant later withdraws his guilty plea.” (96 Ill. App. 3d 354, 356, 420 N.E.2d 1166.)

The defendant in Nichols claimed to have entered his guilty plea in order to avoid the death penalty, which was later determined to be inapplicable because of the absence of aggravating circumstances under section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)). While the defendant in the present case is claiming an opposite motivation, i.e., that he entered his guilty plea in order to receive the death penalty, we nevertheless find the legal principles enunciated in Nichols to be equally applicable here. We therefore conclude that there was no error in the trial court’s admonishment to defendant that a possible sentence would be death.

We next consider whether this admonishment had a coercive effect upon the defendant so as to render his guilty plea involuntary. (See People v. Nichols (1981), 96 Ill. App. 3d 354, 356, 420 N.E.2d 1166.) It is well established that a guilty plea is not voluntary and intelligent if it is entered on the basis of a misapprehension of law or fact or a misrepresentation by defense counsel, the State’s Attorney, or someone else in authority. (People v. Turner (1982), 111 Ill. App. 3d 358, 371, 443 N.E.2d 1167.) Where any of these circumstances are found to exist, the plea may be withdrawn; however, the defendant bears the burden of demonstrating any alleged misunderstanding or misrepresentation. (People v. Nichols (1981), 96 Ill. App. 3d 354, 355, 420 N.E.2d 1166; People v. Turner (1982), 111 Ill. App. 3d 358, 371, 443 N.E.2d 1167.) A misapprehension as to sentencing alternatives may render the guilty plea involuntary if the defendant was actually unaware of the possible punishment. (111 Ill. App. 3d 358, 371, 443 N.E.2d 1167; People v. Weakley (1970), 45 Ill. 2d 549, 553, 259 N.E.2d 802; People v. Ballheimer (1967), 37 Ill. 2d 24, 27, 224 N.E.2d 811.) However, where a defendant has been admonished thoroughly, a guilty plea is not revocable merely because the defendant subjectively believed that he or she would receive a certain sentence but did not. (People v. Turner (1982), 111 Ill. App. 3d 358, 372, 443 N.E.2d 1167; People v. Cohn (1980), 91 Ill. App. 3d 209, 214-15, 414 N.E.2d 543.) This is especially true where there is no reasonable justification for the defendant’s mistaken subjective impression. (People v. Turner (1982), 111 Ill. App. 3d 358, 372, 443 N.E.2d 1167.) In all instances, however, the decision whether to allow a defendant to withdraw his plea of guilty rests within the discretion of the trial court, and will not be disturbed on appeal unless there is an abuse of discretion. (People v. Ryan (1979), 74 Ill. App. 3d 886, 890, 392 N.E.2d 1380.) We find no abuse of discretion here.

In People v. Nichols (1981), 96 Ill. App. 3d 354, 357, 420 N.E.2d 1166, we reiterated the general rule that an allegation of fear of a possible death penalty is not sufficient to invalidate an otherwise knowing and intelligent guilty plea if the plea has been discussed with competent legal counsel. (See People v. Scott (1971), 49 Ill. 2d 231, 233, 274 N.E.2d 39, and the cases cited therein; North Carolina v. Alford (1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160.) We believe that an allegation of fear of a lengthy incarceration, which fear was admitted by this defendant at the sentencing hearing, offers even less reason to invalidate a knowing and intelligent plea than does a fear of death. Further, it is clear that any belief by defendant that he would avoid such incarceration by pleading guilty was merely subjective and was not based upon any misrepresentations of the authorities or defense counsel. (See People v. Turner (1982), 111 Ill. App. 3d 358, 372, 443 N.E.2d 1167; People v. Ryan (1979), 74 Ill. App. 3d 886, 890, 392 N.E.2d 1380.) The record establishes that defendant was thoroughly admonished of his rights and the consequences of pleading guilty prior to entering his plea. He was aware of all the possible sentences for the charge of murder, including the one which he received, and he was advised that a sentence would not be determined until a later date. Further, defendant expressly stated that his plea was not induced by threats or promises. (Cf. People v. Reher (1978), 60 Ill. App. 3d 32, 376 N.E.2d 402; People v. Gardner (1974), 22 Ill. App. 3d 203, 317 N.E.2d 316; People v. Riebe (1968), 40 Ill. 2d 565, 241 N.E.2d 313.) Under all these circumstances, we think it is clear that defendant’s guilty plea was not the product of any misrepresentation that would warrant the withdrawal of his plea.

The question remains as to whether defendant’s guilty plea was entered with the advice of competent legal counsel. Defendant contends that he received ineffective assistance of counsel because counsel did not know the criteria for determining whether the death penalty was applicable and because there was an absence of communication between defendant and his counsel prior to and at the time of entering his plea. He contends this lack of communication was demonstrated by his counsel’s surprise at defendant’s decision to plead guilty, his counsel’s subsequent statement that he had no recommendation, and defendant’s letter advising the court of the alleged communication problem.

Without determining whether defense counsel’s agreement with the trial court as to the circumstances under which the death penalty would apply constituted actual incompetence, we believe that defendant has failed to demonstrate that this agreement resulted in substantial prejudice without which the outcome of the proceeding would probably have been different. (People v. Conley (1983), 118 Ill. App. 3d 122, 127, 454 N.E.2d 1107.) The record indicates that defendant had the opportunity to discuss the case with his counsel prior to the plea and in fact did so, that he was aware that his attorney could not make a recommendation on the guilty plea at that time because he had not yet received discovery from the State, and that defendant was advised that he should wait until discovery was received before entering his plea. Under these circumstances, it is clear that defendant chose to plead guilty against the advice of his attorney and the admonition of the court. Further, even if counsel had known the criteria for determining whether the death penalty was applicable, insufficient facts were available to him at the arraignment to make such a determination. Given the possibility that the murder here occurred while defendant was embarking upon the commission of another felony, i.e., kidnaping, rape, et cetera, it cannot be said that defense counsel was incompetent in not realizing at the arraignment that the death sentence was inapplicable. (See Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(b)(6).) We also note that defendant’s complaints regarding a lack of communication between defendant and defense counsel were withdrawn by defendant at a hearing on that matter. During the hearing, defendant stated that he was satisfied with the representation that he was receiving. Under all these circumstances, we conclude that defendant has failed to sustain his burden of demonstrating that his guilty plea was entered without the advice of competent legal counsel.

Defendant next contends that his specific request for the death penalty per se raises a bona fide doubt of fitness entitling him to a hearing on the question.

A defendant will be considered competent to stand trial or plead guilty if he understands the nature of the charges against him and can assist in his defense. (People v. Ryan (1979), 74 Ill. App. 3d 886, 891, 392 N.E.2d 1380; People v. Heral (1976), 62 Ill. 2d 329, 336, 342 N.E.2d 34.) The decision whether a bona fide doubt of fitness is raised rests within the discretion of the trial court and should not be disturbed on appeal absent an abuse of that discretion. (People v. Jones (1982), 109 Ill. App. 3d 120, 128, 440 N.E.2d 261.) The reviewing court should give great weight to the trial court’s determination, since that court has the opportunity to observe the defendant and evaluate his actions. People v. Jones (1982), 109 Ill. App. 3d 120, 128, 440 N.E.2d 261; People v. Dominique (1980), 86 Ill. App. 3d 794, 803, 408 N.E.2d 280.

The question presented here is apparently one of first impression in this State. However, case law has established that a mere history of psychological disturbances does not necessarily show incompetence. (People v. Dominique (1980), 86 Ill. App. 3d 794, 804, 408 N.E.2d 280; People v. Heral (1976), 62 Ill. 2d 329, 336, 342 N.E.2d 34.) The court here was aware that defendant was depressed and had not been sleeping or eating at the time of arraignment. Further, the court had before it three different psychological reports on defendant and a summary of yet another report. These reports dated from 1972 through 1977. While these reports indicated that defendant had emotional and personality disorders, as well as a drug dependency, one report also described defendant as having a “high level of measured intelligence, a great deal of potential.” The trial court was extremely impressed, as was this court, with defendant’s command of the English language, and legal terms in particular, and his ability to communicate his thoughts to the court. Defendant was at all times responsive to the court’s questions. (People v. Jones (1982), 109 Ill. App. 3d 120, 129, 440 N.E.2d 261.) There are no facts in the record which indicate that defendant did not have the ability to understand the charge against him or the proceedings, or to assist in his defense. There was no testimony or affidavit by defense counsel indicating that defendant was not able to cooperate with defense counsel. Further, defendant cites no incident in the record to show periods of incoherence or irrationality. Under these circumstances, we believe defendant’s desire for the death penalty was merely a manifestation of his depressive state of mind at the time of arraignment, and did not per se raise a bona fide doubt of his fitness. People v. Dominique (1980), 86 Ill. App. 3d 794, 804, 408 N.E.2d 280; People v. Heral (1976), 62 Ill. 2d 329, 336, 342 N.E.2d 34.

Accordingly, the order of the circuit court of Lee County denying defendant’s motion to withdraw his guilty plea is affirmed.

Affirmed.

VAN DEUSEN and REINHARD, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
    CHARLES LEROY WERNOWSKY et al., Plaintiffs-Appellants, v. ECONOMY FIRE & CASUALTY COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—83—0435
    Opinion filed March 15, 1984.
    Rehearing denied April 19, 1984.

      Michael G. Cheronis, of Oak Park, for appellants.
    Jonathan H. Barnard and Mark A. Drummond, both of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Fire loss.

Quaere: Is evidence of prior fire losses admissible?

Yes — but only if a foundation suggesting wrongful conduct is first produced.

We reverse and remand.

The Wernowskys filed suit seeking proceeds under a policy of insurance issued by Economy Fire & Casualty Company for a fire loss to their residence and also for attorney fees and statutory penalties for Economy’s vexatious refusal to settle pursuant to section 155 of the Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767). Economy denied liability on the grounds that plaintiffs had falsely alleged in their proof of loss claim — required under the policy — that the fire did not originate by “any act, design or procurement on the part of” the Wernowskys, and that the Wernowskys attempted to deceive Economy as to the extent of the loss.

For purposes of trial, the parties stipulated to a bifurcated hearing, proceeding to trial first on the question of liability. Following a bench trial the court entered a judgment in favor of defendant on the issue of liability. The court ruled that Economy had shown by a preponderance of the evidence that the fire was intentionally set by or on behalf of Charles Wernowsky and that Barbara Wernowsky participated in a fraud against Economy.

On appeal, plaintiffs maintain (1) the trial court erred in admitting evidence of previous fire loss claims by the plaintiffs to show motive; (2) the trial court erred in taking the issue of the admissibility of the previous fire loss claims under advisement rather than ruling before trial; (3) the trial court’s ruling which denied recovery by Barbara Wernowsky was against the manifest weight of the evidence; and (4) the trial judge should have recused himself from this case due to conflict.

Charles Wernowsky testified that, in the early morning hours of January 1, 1982, he was called at the home of a friend and was told his house was on fire. He further testified that his wife and children were out of town, and he had spent the previous evening drinking with friends. He stated that he and his friend, Johnny Knowles, had left the last tavern between 5 and 5:30 a.m., and Wernowsky decided to stay at Knowles’ house rather than go home. Knowles corroborated Wernowsky’s version of the events and stated that he never lost sight of Wernowsky from 5 a.m. until Wernowsky received the call that his house was on fire.

As part of the procedure in applying for insurance proceeds, Barbara Wernowsky, who was divorced from Charles at the time of the trial, gave a statement concerning the loss. In that statement, she said that several months prior to the fire, she had left her purse in the front seat of their unlocked pickup truck, and someone ransacked her purse and took only her keys. She did not report the theft to the police or change any of the locks on the house, and the truck was not stolen. She repeated this version at trial.

The trial court denied recovery as to Barbara Wernowsky on the ground that she participated in an attempt to defraud Economy after the fire. The court found her testimony was not reliable and was an attempt to insulate Charles Wernowsky from liability. The trial court noted that her testimony was to imply that a third person had access to the home and could have set the fire. However, no evidence was offered that anything was taken or disturbed in the house, and the fire was found to be set in such a fashion as to make the fire appear to be natural in origin.

Fire and arson investigators testified that, in their expert opinions, the fire was incendiary in origin and was intentionally started, by use of an accelerant, by a person or persons unknown. In addition, both testified that,- based on the intensity of the fire and examination of the burn patterns, the fire had multiple points of origin.

Prior to trial, plaintiffs filed a motion in limine that testimony regarding the Wernowskys’ three previous fire losses within four years of the loss herein be precluded as evidence in this case. The court took the issue under advisement and ruled after trial that such evidence was admissible on the issue of motive.

In each of the Wernowskys’ previous losses, the building or house was insured for an amount in excess of the purchase price and burned within a matter of months after purchase. The house in question was purchased in May 1978 for $31,500 and was insured for $45,000 at the time of the fire. Wernowsky testified the house had been for sale for several months prior to the fire, and he had received no actual offers on it.

The thrust of plaintiffs’ appeal is that evidence of prior fire loss claims should not have been admitted, because defendant did not show the losses were based on wrongful or fraudulent acts. We agree.

In Hammann v. Hartford Accident & Indemnity Co. (6th Cir. 1980), 620 F.2d 588, the trial court excluded evidence of previous fires on plaintiff’s property which did not result in any recovery. Also excluded was any evidence of the circumstances surrounding the four fires yielding insurance recoveries. On appeal, the court held that evidence of prior fires was admissible, because (1) defendant attacked plaintiff’s credibility by establishing that he had wilfully concealed several occurrences of fires from defendant, and (2) the court instructed the jury that the fires were to be considered as bearing only on plaintiff’s motive.

Defendant must lay a proper foundation to show that there was some nexus between the previous fire losses and the instant loss. Defendant is required to produce some evidence which would indicate the prior fires were also of a suspicious nature in order to allow those losses as bearing on plaintiffs’ motive or intent. Thus, we must reverse and remand to allow defendant the opportunity to establish this relevancy.

As a result of our decision to remand, we need not address plaintiffs’ other evidentiary questions. However, because we are remanding, we conclude that, in this case, the trial judge should recuse himself.

Plaintiffs contend the judge was by law required to recuse himself because of his relationship to a member of the firm which represented defendant. The judge’s wife’s sister is married to an attorney in that firm. Supreme Court Rule 67 states that a judge shall disqualify himself in any case where a “brother, sister *** or spouse thereof” is involved (87 Ill. 2d R. 67). We find no violation of that rule in this case. His status as “brother-in-law” is purely a courtesy title, and he is not technically related in the true sense of the word. There was no conflict for that reason.

Nevertheless, we find that the judge’s previous representation of Mr. Wemowsky, as a private attorney, was sufficient for him to sua sponte recuse himself in this case. Although he offered to recuse himself immediately if either party so desired, we feel that is a decision the litigants should not be forced to make. Although there was no error in this case, we conclude the better practice to have required that the judge step aside.

For the reasons stated, the judgment of the trial court is reversed and remanded to the circuit court for a new trial before another judge.

Reversed and remanded with directions.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    HEATHER HEINZ, a Minor, by Bonnie Heinz, her Mother and Next Friend, Plaintiff-Appellant, v. THE COUNTY OF McHENRY et al., Defendants-Appellees.
    Second District
    Nos. 83—200, 83—485 cons.
    Opinion filed March 19, 1984.

      Louis F. Aiello and Janice Metros Johnston, of Woodstock, for plaintiff-appellant and appellee Heather Heinz.
    Jay S. Judge, Thomas G. Leavy, and Kristine A. Karlin, all of Judge & Knight, of Park Ridge, for defendant-appellee and appellant County of McHenry et al.

   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The procedural history of these cases in the trial court may be briefly summarized as follows. On October 19, 1982, Heather Heinz, by her mother, filed a six-count complaint for personal injuries sustained in a two-car collision that occurred February 20, 1982, against the county of McHenry (count I) and James R. Rakow, McHenry County Superintendent of Highways (count II) (hereinafter defendants), and others. On February 1, 1983, the trial court granted defendants’ section 2 — 615 motion (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) to dismiss counts I and II of plaintiff’s complaint and further ordered that plaintiff had 14 days in which to file an amended complaint. On February 8, 1983, the trial court heard plaintiff’s motion for a voluntary nonsuit, found that proper notice had been given to all parties of record and that all costs had been paid to all defendants, and ordered that plaintiff’s cause of action be dismissed pursuant to' the terms and provisions of section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009). On February 17, 1983, plaintiff filed a new but substantially identical suit against defendants and others in McHenry County. On February 22, 1983, defendants moved to partially vacate the dismissal order of February 8, 1983, and asked for an award of attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611). On March 2, 1983, the trial court vacated the voluntary dismissal order of February 8, 1983, as to defendants, amended nunc pro tunc its order of February 1, 1983, by making the dismissal of counts I and II of the complaint to be with prejudice, and continued defendants’ motion for attorney fees. On April 21, 1983, after an evidentiary hearing the trial court denied the motion for attorney fees.

In appeal No. 83 — 200 plaintiff has sought review of the trial court’s order of March 2, 1983, vacating the voluntary dismissal order of February 8, 1983, and modifying nunc pro tunc its order of February 1, 1983. In appeal No. 83 — 485 defendants have sought review of the trial court’s order of April 21, 1983, denying their motion for attorney fees.

Appeal No. 83 — 200

We reverse. Upon giving of notice and payment of proper costs, as here, a plaintiff’s right to a voluntary dismissal without prejudice prior to trial or a hearing is absolute, and the court has no discretion to deny plaintiff’s motion for dismissal in such cases. (E.g., Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App. 3d 460, 461.) This right is restricted after the trial has begun or where a counterclaim has been filed so that cases cited by defendants concerning motions made in these situations (Clyde Savings & Loan Association v. May Department Stores (1981), 100 Ill. App. 3d 189; In re Marriage of Weiss (1980), 87 Ill. App. 3d 643; Juen v. Juen (1973), 12 Ill. App. 3d 284) are clearly inapposite. Illinois courts have held that hearings pursuant to a section 2 — 615 motion (formerly section 45), as held here, did not mark the commencement of trial or hearing under section 2 — 1009 (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 409), nor does the granting of such a motion with leave to amend, as here, affect plaintiff’s absolute right to voluntarily dismiss her complaint (Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 501). Moreover, the filing of another action shortly after the voluntary dismissal order does not affect plaintiff’s absolute right to such a dismissal without prejudice where, as here, the trial had not begun, and notice was given and costs were tendered. See In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 971-72. Compare Juen v. Juen (1973), 12 Ill. App. 3d 284 (plaintiff’s voluntary dismissal motion properly denied where counterclaim was pending and plaintiff failed to comply with notice and costs requirements). But see Smith v. Monumental Life Insurance Co. (1939), 301 Ill. App. 217, 218-19.

However, as a trial court may upon its own motion set aside any judgment or order during the pendency of the term or its equivalent (Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 364-65), an order setting aside a former order of dismissal will not be disturbed unless the vacation constitutes an abuse of discretion (Smith v. Monumental Life Insurance Co. (1939), 301 Ill. App. 217, 218). See Miller v. Bloomberg (1978), 60 Ill. App. 3d 362, 364-65.

Defendants’ motion for vacation of the February 8 voluntary dismissal had two stated bases: (1) plaintiff’s failure to comply with the court’s “Order *** to file an Amended Complaint” and (2) plaintiff’s attempt to avoid compliance with the change of venue statute by dismissing her lawsuit with the intention of refiling it so as to be heard before a different judge. As to the first stated basis, it should be observed that the plaintiff was granted leave to file an amended pleading, not ordered to do so. Moreover, as we have previously noted, the granting of defendants’ section 2 — 615 motion with leave to amend does not affect plaintiff’s absolute right to a voluntary dismissal under section 2 — 1009. Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 501.

As tc the second stated basis of defendants’ motion, plaintiff may very well have avoided the effect of the change of venue statute (III. Rev. Stat. 1981, ch. 110, par. 2 — 1001), which would bar her absolute right to a change after the judge had, as here, ruled on a substantial issue. However, she would have been able to do so, not owing to any misconduct on her part, but, as the trial judge observed, due to the system then used by the county in assigning cases. The cases cited by defendants in support of their argument all relate to recognized change of venue principles and are inapposite in that no motion for change of venue was filed in this cause.

The two stated bases for vacation of the dismissal here do not support the action. While this court may affirm on any basis appearing in the record regardless of whether the trial judge’s stated rationale was correct (Hintz v. Lazarus (1978), 58 Ill. App. 3d 64, 67), there appears to be no other basis in the record upon which to do so. Under the total circumstances shown by the record in this case, plaintiff was entitled to a voluntary dismissal as a matter of absolute right, and that portion of the trial court’s order of March 2, 1983, vacating the February 8, 1983, order of voluntary dismissal was in error and must be vacated.

As defendants now concede, the trial court also erred on March 2, 1983, in amending nunc pro tunc the order of February 1, 1983, to be a dismissal with prejudice of counts I and II of the complaint. A nunc pro tunc order can be made at any time, even after the expiration of the term, to correct a final order or judgment to reflect what had been done, but not to alter the judgment actually rendered; it may not be used to supply omitted judicial action, to correct judicial errors, or to cure a jurisdictional defect (e.g., Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App. 3d 884, 892). Here, the trial judge himself observed that on February 1 he had given plaintiff the opportunity to amend her complaint. This type of change is not one to make the record speak for something previously done (see Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051), and, therefore, that portion of the March 2, 1983, order granting a dismissal with prejudice nunc pro tunc February 1, 1983, is hereby vacated.

Defendants go on to argue that the dismissal of plaintiff’s complaint with prejudice on March 2, 1983, was still proper because it was within 30 days of the February 1 order. (See, e.g., Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.) The court had, according to defendants, simply amended its prior order. Defendants overlook entirely the fact that, although 30 days had not elapsed between entry of the February 1 order and March 2, 1983, when the court sought to modify that order, the plaintiffs had, in the intervening time, properly sought and received a voluntary dismissal of their lawsuit. Therefore, on March 2, 1983, there was no complaint on file upon which the court could grant defendants’ motion to dismiss.

Having made the foregoing determinations, we need not address plaintiff’s final contention, that the trial court’s dismissal of her complaint with prejudice was erroneous because her complaint was sufficient to state a cause of action and because said dismissal precluded an opportunity to amend her complaint, and defendants’ response, that said dismissal was proper inasmuch as the complaint failed to set forth facts to support its conclusory allegations and that it is apparent that plaintiff would be unable to plead a viable cause of action even with leave to amend.

Appeal No. 83 — 485

In Appeal No. 83 — 485, the defendants assert that the trial court abused its discretion in denying a request for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611) for false and untrue pleadings made without reasonable cause. Following an evidentiary hearing, the court found that plaintiff did not misstate facts and that this was not a proper case for assessing fees under section 2 — 611. The allowance of fees pursuant to this section is discretionary with the trial court, and its determination should not be disturbed unless there is a clear abuse of discretion. (Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 650.) From our examination of the record it does not appear that the trial court here abused its discretion, and the order denying defendants’ request for attorney fees is hereby affirmed.

Appeal No. 83 — 200—reversed; Appeal No. 83 — 485—affirmed.

HOPF and NASH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SAM ELLIS, Defendant-Appellee.
    Second District
    No. 82—976
    Opinion filed March 19, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Patrick J. Williams and Terry A. Ekl, both of Connolly & Ekl, P.C., of Hinsdale, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This appeal concerns the sufficiency of the application of Rafael Tovar, a Des Plaines police officer, for authorization to use an eavesdropping device to record his telephone conversations with defendant Sam Ellis, Sally Ellis, and Jeff and Donna Raymond, during a stated period of time on February 26, 1982. (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3.) Based upon that application, a circuit judge of the Eighteenth Judicial Circuit found: (1) that Rafael Tovar had consented to the use of an eavesdropping device and would participate in the conversation or conversations expected to occur; (2) that there was reasonable cause to believe that the other party participating in said conversation or conversations was committing and had committed, and was about to commit, a felony under Illinois law and; (3) there was reasonable cause for believing that particular conversations concerning a felony offense would be obtained through such use. The judge thereupon issued his order authorizing the use of an eavesdropping device during a specified period of time on February 26, 1982.

Subsequently, in granting a motion to suppress the recorded conversation with the defendant Sam Ellis, a different judge of the Eighteenth Judicial Circuit reviewed the original application for authority to eavesdrop and came to a contrary conclusion. The second judge found that the facts set forth in Tovar’s application failed to set forth reasonable cause for believing that the defendant Sam Ellis was about to commit a felony, or that the conversation sought to be intercepted would produce any information to be used in a felony prosecution. These conclusions of the second judge were based upon certain technical problems which he noted within the application, the judge’s determination that the information given in the application was at best minimal regarding Sam Ellis and any delivery of a controlled substance, and that such information appeared to be stale. The question before this court thus becomes which of the two trial judges acted correctly: the trial judge who issued the order authorizing the use of the eavesdropping device or the second trial judge who, in effect, reversed the first order by granting the motion to suppress.

Where, as here, the issuing judge bases his or her decision solely upon the application, that application must set forth sufficient facts from which the necessary reasonable cause determination can be made. (See People v. Monoson (1979), 75 Ill. App. 3d 1; People v. Wassell (1983), 119 Ill. App. 3d 15.) The application must be strictly scrutinized (People v. Monoson (1979), 75 Ill. App. 3d 1, 5-6), in order to determine whether the totality of the facts and circumstances asserted is sufficient to warrant a person of reasonable caution to believe that a felony has been, is being, or is about to be committed, and that particular conversations concerning that felony will be obtained through the eavesdropping. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 197; see Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4; People v. Pitchford (1983), 115 Ill. App. 3d 164, 168.) The application should be viewed in a common sense fashion. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 197.) It need not prove beyond a reasonable doubt that a crime has been committed nor even establish a prima facie case; only a probability of criminal activity need be shown. (See People v. O’Dell (1980), 84 Ill. App. 3d 359.) An application is insufficient if it fails to set forth any particulars which would establish a belief that a certain offense had been, was being, or would be committed and that the conversation to be monitored would relate to that offense. (People v. Monoson (1979), 75 Ill. App. 3d 1, 6; see People v. Wassell (1983), 119 Ill. App. 3d 15.) Where authorization was granted improperly, e.g., due to a lack of an adequate basis, the intercepted conversation and evidence derived therefrom should be suppressed. Ill. Rev. Stat. 1981, ch. 38, par. 108A — 9; see People v. Monoson (1979), 75 Ill. App. 3d 1.

It is the issuing judge, however, who must first make the determination as to whether or not the application, considered as a whole, is sufficient to authorize the eavesdropping. The conclusions of the issuing judge regarding the existence of reasonable cause for believing that defendant was committing, or had committed, an offense and for believing that particular conversations concerning the offense would be obtained through eavesdropping are to be accorded great deference by subsequent judges in reviewing his actions. See United States v. Marcello (C.D. Cal. 1982), 531 F. Supp. 1113, 1117.

With these above principles in mind we have undertaken our own review of the application of Rafael Tovar for authority to use an eavesdropping device. We conclude from our examination that there is reliable information contained in the application to establish that on seven described occasions between November 13, 1981, and December 8, 1981, Tovar purchased drugs from the Raymonds, and that there is sufficient information from which a person of reasonable caution could likely conclude that the defendant Sam Ellis was the Raymonds’ supplier of drugs between the above dates and thus had participated in criminal offenses. There was additional information contained in the application from which a reasonable person could also conclude that Ellis was willing to participate in future exchanges of drugs and cash for stolen property, and that further conversations with Ellis and the Raymonds might reasonably lead to information concerning Ellis’ participation in both past and future offenses. The hiatus between the last contact of Tovar and Ellis on December 10, 1982, and the proposed eavesdropping on February 26, was not of such length of time as to make unreasonable the issuing judge’s belief that relevant information might be forthcoming from the planned eavesdropping on February 26. See People v. O’Dell (1980), 84 Ill. App. 3d 359 (two-year lapse not sufficient to make unreasonable the belief that defendant’s participation in the offense might become the subject of a conversation with one of his co-participants).

Giving due deference, as we must and as the second trial judge should have, to the determination of the issuing judge, we conclude that his findings are supported by the application for authority to eavesdrop and were sufficient to authorize his order permitting the eavesdropping. The second judge’s determination that the application of Tovar was insufficient to permit the issuance of the eavesdropping order was erroneous.

We have also reviewed the alleged procedural defects upon which the second trial judge relied to support his suppression order. The fact that the State’s Attorney’s consent and authorization for the application was executed prior to Tovar’s consent, while arguably improper, does not require suppression. (People v. Pitchford (1983), 115 Ill. App. 3d 164, 166.) Further, there is no statutory requirement that the application specify how the eavesdropping would occur or what devices would be used (see Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3); consequently, this is not a basis for suppression. See People v. Kezerian (1979), 77 Ill. 2d 121; People v. Sylvester (1980), 86 Ill. App. 3d 186; see People v. Moore (1980), 90 Ill. App. 3d 760.

Another procedural deficiency which the trial court relied on was the fact that no notice was sent to defendant after the eavesdropping occurred. The Code of Criminal Procedure of 1963, section 108A — 8, requires that parties to monitored conversations be notified within 90 days after termination of the order permitting eavesdropping of both the entry of such order and its date, the period during which eavesdropping was authorized, whether eavesdropping devices were used, and whether any conversations were recorded. (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 8.) However, while the eavesdropping statute is to be strictly construed (People v. Monoson (1979), 75 Ill. App. 3d 1, 5-6), not all statutory violations require suppression. (See People v. Sylvester (1980), 86 Ill. App. 3d 186.) Suppression is required only where there is a failure to satisfy any of the statutory requirements which directly and substantially implement the legislative intent to limit the use of eavesdropping procedures. (People v. Nieves (1982), 92 Ill. 2d 452, 458; People v. Sylvester (1980), 86 Ill. App. 3d 186, 192.) Where there is a failure to comply with statutory requirements for post-interception procedures, suppression depends upon whether: (1) the particular safeguard is central to the legislative scheme of preventing abuses; (2) the purpose the particular procedure was designed to accomplish has been satisfied despite the error; and (3) the statutory requirement was deliberately ignored and, if so, whether the State gained any tactical advantage thereby. People v. Nieves (1982), 92 Ill. 2d 452, 458-59.

The purpose of the notice provision is to make the defendant aware of the conversations overheard and enable him to make any appropriate motions to suppress the contents. The notice requirement is thus an important procedural safeguard, necessary to prevent abuses of eavesdropping devices. However, the purpose of this requirement was satisfied here since the State was required, pursuant to discovery procedures (87 Ill. 2d R. 412(b)), to disclose any electronic surveillance to defendant by May 24, 1982; a date within the statutory notice period of 90 days after the termination of the eavesdropping order. Nor is there any suggestion or claim by defendant that this statutory requirement was deliberately ignored. (See Ill. Rev. Stat. 1981, ch. 38, par. 108A — 8.) Under these circumstances, the failure to notify defendant would not warrant suppression.

The order of the trial court of November 12, 1982, sustaining defendant’s motion to suppress the eavesdropped conversations is reversed and the matter is remanded to the trial court for further proceedings.

Reversed and remanded.

NASH and UNVERZAGT, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF MARY A. PARKS, Petitioner-Appellee, and EDWARD PARKS, Respondent-Appellant.
    Second District
    No. 83—635
    Opinion filed March 19, 1984.

      Robert E. Burke, of McHenry, for appellant.
    Joseph R. Condon, of Condon & Zopp, Ltd., of Crystal Lake, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Edward Parks, appeals from an order of the circuit court of McHenry County denying his motion to vacate a judgment for dissolution of marriage. On appeal, he asserts that the judgment was void because neither party was domiciled in Illinois for the 90 days next preceding the court’s findings, that the validity of the judgment was subject to attack by motion and that dismissal of the petition for dissolution of marriage was required due to the petitioner’s failure to qualify as a current resident of Illinois.

The parties were married in 1969, and on February 8, 1982, the petitioner filed for dissolution of marriage in the circuit court of McHenry County. The petition gave the address of each party as 3512 First Avenue, McHenry, McHenry County, Illinois, and alleged that each had resided in Illinois more than 90 days prior to the filing of the petition. Attempts to serve respondent in both McHenry and Cook counties were unsuccessful, as the sheriff in each county was unable to locate him. Subsequently, respondent was given notice by publication of the pending proceeding. After he failed to appear, he was defaulted and on June 8, 1982, a judgment for dissolution of marriage was entered. That judgment dissolved the marriage and awarded petitioner custody of the three children.

The court deferred the issues of maintenance and child support “until personal jurisdiction of EDWARD PARKS has been obtained.” No disposition was made of the parties’ marital property and debts.

On May 27, 1983, respondent filed a special and limited appearance and a motion to vacate judgment and dismiss petition. The latter pleadings challenged the prior judgment as void, alleging three grounds in support: that the respondent had never been served, that the judgment failed to make the requisite finding of domicile required by law and that the petitioner was not then a resident of Illinois, therefore failing to meet “the present jurisdictional requirements.” The motion was accompanied by an affidavit in which it was stated that the petitioner had left Illinois on February 20, 1982, with no intention to return, enrolling her children in school in Florida. The affidavit further stated that the petitioner had licensed her car in Florida, acquired a Florida teaching certificate, divested herself of all personal property in Illinois and informed the respondent on numerous occasions that she would not return to Illinois. As of April 1983, the petitioner’s address was in Ruskin, Florida.

After a hearing, the court decided that its prior judgment was not void for want of jurisdiction and that it was not open to attack on a motion. The respondent’s motion to vacate was accordingly denied.

Two issues are presented for review: (1) whether the judgment of dissolution of marriage was subject to attack by motion, and (2) whether the trial court’s failure to make specific findings on the question of the parties’ domicile rendered its judgment void for want of subject-matter jurisdiction.

Initially, we note that this court has jurisdiction. See Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780; Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581.

The respondent maintains that the court’s jurisdiction to enter the judgment dissolving his marriage was a matter properly raised by motion in the trial court, even after almost a year had elapsed following its rendition. He claims that the court had authority to entertain motions in the cause since the judgment was not final and, in any event, since motions are permissible methods of attacking a judgment collaterally for lack of jurisdiction.

As to the question of finality, the supreme court has recently observed that a petition for dissolution of marriage advances only a single claim and that the various issues typically presented in such a case are merely questions ancillary to the cause of action. “Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119.) Respondent claims that the judgment of June 8, 1982, was not final in view of its failure to dispose of all issues presented by the dissolution petition. He contends that it was therefore proper for him to proceed in the cause by way of motion.

In the case at bar, the trial court’s reservation of questions involving the distribution of marital property, maintenance and child support resulted from its lack of personal jurisdiction over respondent and was consistent with section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(3)): “Such judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” (A further portion of this section was found unconstitutional in In re Marriage of Cohn (1982), 93 Ill. 2d 190, but that ruling did not affect the quoted language from section 401(3) which is here at issue.) As the supreme court pointed out in Cohn, it is appropriate for a court to enter a judgment for dissolution while reserving other issues where the court lacks in personam jurisdiction over the respondent. (93 Ill. 2d 190, 199.) The trial court was thus justified in entering judgment of dissolution while reserving other questions until personal jurisdiction over the respondent had been obtained.

It has been held that judgments for dissolution reserving questions for later determination are not final appealable orders. (In re Marriage of Lentz (1980), 79 Ill. 2d 400; In re Marriage of Peterson (1980), 85 Ill. App. 3d 520; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580.) None of those cases, unlike the one at bar, involved a situation where in personam jurisdiction over the respondent was lacking and the court had adjudicated all matters presented by the petition to the extent of its jurisdiction. In the latter situation, where all issues within the court’s in rem jurisdiction have been resolved, where the law authorizes the court to reserve the remaining issues and where it is uncertain the court will ever acquire the requisite in personam jurisdiction to proceed further, we conclude that the judgment was final and appealable when rendered. Notwithstanding the teaching of Leopando, the trial court in such circumstances will have acted insofar as it legally may. The public policy against fragmentation of litigation and the fostering of piecemeal appeals will not be significantly served by denying such judgments finality. We therefore conclude that the judgment of June 8, 1982, was a final order.

Although the judgment of dissolution was final when rendered, respondent was entitled to challenge the court’s jurisdiction by way of motion. A pleading attacking a judgment for lack of personal jurisdiction due to defective service is not restricted to the requirements of the provisions of the Code of Civil Procedure relating to relief from judgments (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329; LaMotte v. Constantine (1980), 92 Ill. App. 3d 216.) It is immaterial whether the moving party deems himself to be proceeding under section 2 — 1401, for a default judgment against a party who has not been properly served and has not entered an appearance is void for want of jurisdiction. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901.) Appellate authorities in Illinois have recognized that void judgments may be set aside upon motion, even if more than 30 days have expired since their rendition. (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581; Alexander v. Burke (1972), 6 Ill. App. 3d 919.) It was therefore appropriate for the respondent to raise the question of the judgment’s asserted invalidity by way of motion.

Having determined that the respondent employed a permissible procedural vehicle to attack the judgment, it must next be ascertained whether his motion to vacate was properly denied. He contends in this regard that the trial court lacked the jurisdiction originally to enter a judgment for dissolution of marriage when neither party was domiciled in Illinois for 90 days next preceding the making of findings. He further claims that since the petitioner is not now a resident of Illinois, the trial court was required upon his motion to dismiss her petition.

The controlling statute at the time this proceeding commenced (Ill. Rev. Stat. 1981, ch. 40, par. 401(1)) required that one of the parties to the dissolution proceeding have been domiciled in Illinois at the time the action was commenced and that the domicile have been maintained “for 90 days next preceding the making of the findings.” (Cf. Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514 (construing Ill. Rev. Stat. 1975, ch. 40, par. 3, whereunder “residence” rather than “domicile” was required); Ill. Rev. Stat., 1982 Supp., ch. 40, par. 401(1), effective July 1, 1982 (reinstating the concept of residence in place of domicile).) Domicile of a party for the time provided is necessary to confer subject-matter jurisdiction upon the court. (In re Mar riage of Gryka (1980), 90 Ill. App. 3d 443.) “Although the 90 day period is intended to be continuous, ‘the party need not remain physically present throughout the 90 day period, so long as he has acquired no new domicil [sic].’ ” Ill. Ann. Stat., ch. 40, par. 401, Historical and Practice Notes, at 103 (Smith-Hurd 1980), quoting 9A Uniform Laws Annotated, Uniform Marriage and Divorce Act sec. 302(a)(1), Commissioner’s Comment, at 122 (1979). Accord, In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023.

The sole issue raised by respondent regarding the court’s jurisdiction is that the judgment for dissolution of marriage recites only that “Petitioner was a resident of the State of Illinois and County of McHenry for ninety (90) days continuously and immediately preceding the filing of her Petition.” Respondent does not specify the deficiencies he perceives in this finding, but it may be that he deems it insufficient on the issue of petitioner’s domicile, or that he believes the judgment should have specified that her domicile existed for 90 days next preceding the entry of findings. (Respondent does not assert that any finding by the court in the dissolution proceeding concerning the petitioner’s domicile was against the manifest weight of the evidence, or that it was error for the court to deny without an evidentiary hearing his motion to vacate and dismiss. We, therefore, do not reach these questions.)

The respondent places principal reliance upon Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, but the issue in that case was whether the lower court’s finding of domicile was against the manifest weight of the evidence. That case does not hold that a judgment dissolving a marriage is void when the court’s order fails to make written findings on the question of residence or domicile in the terms of the statute. In response, the petitioner relies on West v. West (1979), 76 Ill. 2d 226, Schubert v. Schubert (1978), 66 Ill. App. 3d 29, and Smith v. Smith (1977), 47 Ill. App. 3d 583. In each of those cases, the issue was whether the court’s judgment adequately reflected that grounds for divorce existed. In each instance it was held that the requisite finding was implicit in the judgment awarding divorce, and that no special findings were required as to each element of the grounds. Similarly here, although the court’s judgment did not repeat each element of the requirements for domicile provided by statute, it did state that the court had jurisdiction over the parties and the subject matter. Since the court thereby implicitly found that it possessed jurisdiction in the matter, specific findings on each aspect of that jurisdiction were unnecessary.

Finally, the respondent asserts that in view of the petitioner’s present residence in Florida, the trial court erred in failing to dismiss her petition. Petitioner’s concern in this regard is apparently not that the court might proceed to litigate the questions of maintenance and child support which had previously been reserved, but rather that the court should not proceed further on the petition for dissolution once the former judgment is vacated. We have determined, however, that vacatur of the judgment is not required. With respect to the judgment for dissolution itself, we agree with petitioner that her residence at the time respondent presented his motion to vacate is simply not material to the question of whether the court had subject-matter jurisdiction to enter that judgment in the first instance.

For the reasons stated, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.