author: Mr. PRESIDING JUSTICE HARTMAN

text:
    HAROLD BUTLER ENTERPRISES #662, INC., Plaintiff-Appellee, v. UNDERWRITERS AT LLOYDS, LONDON, et al., Defendants-Appellants.
    First District (2nd Division)
    No. 80-2198
    Opinion filed September 29,1981.
    Julius Abler, of Libertyville, for appellants.
    Gerald White, of Highland Park, for appellee.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This is an appeal from an order granting plaintiff, Harold Butler Enterprises #662, Inc. (mortgagee), a partial summary judgment as to liability only. The mortgagee sought to recover proceeds of a multi-peril insurance policy jointly underwritten by defendants, Underwriters at Lloyds, London, and First State Insurance Co. (insurers), as revealed in two certificates of insurance attached as exhibits to the amended three count complaint. The mortgagee sought the proceeds of the policy as a result of fire damage to certain restaurant chattels in which it owned a security interest. Although other defendants were joined, the appeal is taken by the insurers alone from the order granting partial summary judgment, which included a Supreme Court Rule 304(a) finding (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)).

Among the issues raised on appeal are whether: a certain phrase in the fire insurance contract, “applicable to buildings only” in connection with the so-called “standard mortgagee clause” is ambiguous and is amenable to construction; the coverage includes chattels identified under a chattel mortgage as a matter of law; a complaint which seeks reformation but fails to allege the mistakes of fact mutual and common to both parties, or mistake on one side and fraud on the other at the time of the execution of the contract, states a cause of action; and the regulations of the Director of Insurance of Illinois have the force of law. For the reasons which hereinafter appear, we dismiss the appeal.

The facts which follow are stated provisionally and for purposes of this disposition only; we make no assessment of their evidentiary potentialities or weight.

The mortgagee operated a restaurant on South Harlem Avenue in Burbank, Illinois, from 1972 until early 1977. It sold all the fixtures, signs, furniture and equipment located in the restaurant premises to Gus Klerds and George Panos (mortgagors) for $130,000, of which $40,000 was paid in cash and a promissory note for $90,000 was executed by the mortgagors, secured by a chattel mortgage in the form of a security agreement registered under the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 1 — 101 et seq.). The mortgagee leased the restaurant premises from the record owner of the real estate and building, La Salle National Bank, as trustee under trust number 39670 (La Salle) and subleased the premises to the mortgagors for a term ending June 26, 1999. Under the terms of the sublease, the mortgagors were obligated to obtain insurance coverage for the building for the benefit of La Salle and for the restaurant chattels sold to them by the mortgagee, for the latter’s benefit. The mortgagee and La Salle were to be named as additional insureds under the policy, and the mortgagee also was to have been named as a chattel mortgagee. Through brokers, the mortgagors secured insurance coverage from the insurers dated October 3,1977, and effective for the period from October 6, 1977, to October 6, 1978. The full premium was paid to and received by the insurers. The coverage on the contents in which the mortgagee is interested was up to a limit of $200,000.

The mortgagee did not receive a copy of the policy until after a fire consumed most of the restaurant building and damaged beyond repair all its contents on December 24, 1977. The mortgagee thereafter discovered that it was not included as a named insured but was named simply as “mortgagee” under item 8 of each certificate of insurance issued by the insurers. Each insurer included MLB-101, known as the “standard” or “union” mortgage clause (standard mortgage clause), as an endorsement made part of its insurance contract. The insurers asserted that this standard form is on file with the Illinois Department of Insurance and must be used as mandated by the Director of Insurance without change unless such change is sanctioned by the latter. The clause contains the preamble “C. Mortgage Clause: Applicable to buildings only. 6 ” *” The standard mortgage clause purports to exonerate a mortgagee from any act or neglect of the mortgagor when it seeks to secure the benefits of the insurance coverage afforded by the policy. There was no mortgage in existence on the building named in the policy to which that language would have been applicable. In addition, standard fire insurance policy provisions set forth in 165 lines (“165 line standard fire policy”) are required to be made part of all Illinois fire insurance policies under Rule 23.01, article XXIII, of the 1976 Revised Regulations promulgated by the Director of Insurance.

The mortgagors never filed a proof of loss although the policy contains a requirement that an insured must file such proof within the time, form and content prescribed therein. Even though the 165-line standard fire policy contains, among other things, a requirement that the insurer must notify a mortgagee if the insured fails to render a proof of loss within the time prescribed by the insurance contract, the insurers did not so notify the mortgagee of the failure to file in the instant case. The mortgagee timely filed a proof of loss with the insurers’ designated adjuster. That proof was never returned or questioned.

On November 27, 1978, the insurers’ attorney by letter advised the mortgagee’s attorney that the claim was refused because under Alton v. American Insurance Co. (1931), 260 Ill. App. 209, “e ° * the mortgagee or vendor becomes the appointee of the insured to receive the proceeds of the policy to the extent of their interests”; “that failure of the assured to make proof of loss as required by the terms of the policy defeats the mortgagee’s right of recovery”; and that “[t]he insureds, Gus Kleros and George Panos, under whose interest you claim as mortgagee, have failed to make proof of loss as required by the terms of the policy, and the time to do so has expired.”

The mortgagee filed its suit on December 8,1978, and thereafter filed a first amended, unverified complaint consisting of three separate counts. Count I names the insurers and certain national and local insurance agents and brokers as defendants. In essence, it claims that the dealings between the mortgagors, brokers and agents were replete with mistakes of fact involving all parties, entitling the mortgagee to reformation of the insurance policy and certificates issued thereunder, and it seeks to have the insurance contract reformed by adding the name of the mortgagee as an additional insured. In the alternative, count I requests that the words “applicable to buildings only” be deleted from the standard mortgage clause, or the language altered, so that the chattel mortgagee is fully protected against any act or omission of the named insured. Count II is directed at the national and local agents of the insurers for wrongful acts and omissions which resulted in damage to the mortgagee and seeks damages in the amount of $100,000. Count II does not make the insurers parties to that action. Count III is an action in tort naming all defendants and seeking damages resulting to plaintiff on a third-party beneficiary theory. Answers were filed by all defendants to the amended complaint. Counts II and III remain at issue, have not been tried and have no connection with this appeal.

On March 5, 1980, the mortgagee moved for partial summary judgment solely on the question of liability of the insurers. The issue identified in that motion was whether the provisions of the standard mortgage clause were available to the mortgagee notwithstanding the statement that it is “applicable to buildings only.” The mortgagee’s theory was that the language of that clause in substance protects a mortgagee against any breach of conditions, default or omission on the part of the mortgagor-insured. The motion was limited to that part of count I of the amended complaint which sought to have the words “applicable to buildings only” deleted from the standard mortgage clause, or the language thereof altered, so that the chattel mortgagee would be fully protected against any act or omission of a named insured. The mortgagee argued that if the words “applicable to buildings only” were not present, the insured “unquestionably would have paid plaintiff’s claim without litigation.” The mortgagee asserted that the insureds mistakenly neglected to excise the words “applicable to buildings only” or neglected to attach a form specifically relating to chattel mortgagees. The mortgagee further argued that because the policy issued by the insurers of necessity included the 165 line standard fire policy required to be made part of all Illinois fire insurance policies under Department of Insurance Rule 23.01, any mortgagee named in the policy is to receive notice that an insured has failed to render a proof of loss, and is to be given upon such notice an additional 60 days within which to render its own proof of loss; if the company claims no liability as to the mortgagor, it shall be subrogated to all the mortgagee’s right of recovery to the extent of payment of loss to the mortgagee, without impairing the mortgagee’s right to sue.

The insurers responded to the motion claiming, first, that since the rules and regulations of the Department of Insurance had the force and effect of law, citing Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill. App. 3d 661, 281 N.E.2d 728, the reformation sought by the mortgagee would violate the coverage required by the Department of Insurance to be included in all fire policies, specifically because the standard mortgage clause used by the insurers conformed exactly to the requirement of the Department of Insurance standard policy form. The insurers’ second response was that the tendering of a proof of loss by an insured after an occurrence is mandatory under the 165 line standard fire policy provisions. Also argued by the insurers was that under Alton v. American Insurance Co. (1931), 260 Ill. App. 209, the mortgagee simply becomes the appointee of the insured to receive the proceeds of the policy, and the failure of the assured to make proof of loss as required by the terms of the policy defeats their right of recovery. The insurers made no assertion before the trial court, or in their appellate briefs, that genuine, material issues of fact existed between the parties.

In its reply, the mortgagee countered with the argument that in striking the words “applicable to buildings only,” the standard mortgage clause would not undergo any material change in violation of Department of Insurance regulations.

The trial court in its written order found that there was no genuine issue as to any material fact and entered judgment for the mortgagee limited to the issue of liability alone. In doing so, the court announced orally that the standard mortgage clause must be given some meaning and could not have been intended for inclusion in the policy for the purpose of being ignored. Among the facts the trial court orally found were that the mortgagee’s name was inserted on the form, indicating that the insurers were aware of the mortgagee’s presence and that the typed insertion of the mortgagee’s name had greater meaning than and priority to the printed form language, “applicable to buildings only.” Finding that ambiguities in the printed form must be construed most strictly against the insurance company which presented the form, the trial court held that the standard mortgage clause as a matter of law applied to the chattel mortgagee and the partial summary judgment was allowed. No damages were assessed or entered in the order.

The notice of appeal filed by the insurers in this case stated that the appeal was taken from e ° the judgment order of July 14, 1980, entered against defendants and for the plaintiff on the plaintiff’s motion for summary judgment. * ° The docketing statement described the issues on appeal as whether “* ” ° the standard mortgage clause in a fire insurance contract, which clause is applicable to buildings only and required by the Superintendent [sic] of Insurance to be included in all fire insurance contracts, [may] be applied to chattels.” About four weeks later, prior to the filing of the record on appeal, a preliminary motion to dismiss the appeal was filed by the mortgagee, without supporting authority, on the alternative grounds of prematurity and of misidentity of the circuit court docket number involved in this case. That motion was denied. During oral argument, counsel for the mortgagee orally renewed the motion to dismiss upon the ground of prematurity. We find, upon consideration of the full record and briefs filed since the initial denial was entered, that the motion to dismiss should have been granted.

Section 57(1) of the Civil Practice Act (Act) authorizes a plaintiff to seek summary judgment “* * * for all or any part of the relief sought” (Ill. Rev. Stat. 1979, ch. 110, par. 57(1)). Summary judgment may be granted, as in this case, on the issue of liability alone, under section 57(3) of the Act, which also provides that such an order is “* 0 0 interlocutory in character 6 # # [when] there is a genuine issue [remaining as] to the amount of damages.” (See Leopold v. Levin (1970), 45 Ill. 2d 434, 446, 259 N.E.2d 250.) Our examination of the record on appeal reveals that the money damages claimed by the mortgagee are still in dispute and have yet to be ascertained, unlike the circumstances in Archambault v. Reliance Insurance Co. (1981), 95 Ill. App. 3d 632, 420 N.E.2d 552, in which the defendant insurer was granted summary judgment exonerating it from liability for the claim being pursued, and dissimilar to Cahn v. Northwestern Mutual Life Insurance Co. (1915), 192 Ill. App. 172, 178, and Bloom v. Landy (1979), 72 Ill. App. 3d 383, 396-99, 389 N.E.2d 1286, in each of which money damages were assessed in addition and attributable to the partial liability found, which each court concluded was a final judgment as to that part of the claim.

The posture of the instant case is deficient in finality because the determination by the circuit court is not one which “* * * ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 119, 382 N.E.2d 1217), nor is it one in which the rights of the parties that have been decided do not bear upon incidental other matters which are left for future consideration, nor are the matters left for future determination merely incidental to the rights which have been adjudicated. (Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378.) A final judgment for purposes of appealability is one which concludes the litigation on the merits between the parties and leaves only execution to be accomplished if the decision is affirmed on appeal. (Relph v. Board of Education (1981), 84 Ill. 2d 436, 441, 420 N.E.2d 147.) Such circumstances are absent in the case before us.

Generally, jurisdiction of this court to decide an appeal is confined to the review of final judgments under Supreme Court Rules 301 and 303 (Ill. Rev. Stat. 1979, ch. 110A, pars. 301,303), unless the appeal falls within exceptions identified by Supreme Court Rules (see, e.g., Ill. Rev. Stat. 1979, ch. 110A, par. 307 (interlocutory appeal as of right); and par. 308 (interlocutory appeal by permission)). No such exception appears in the record filed in this appeal. The fact that Supreme Court Rule 304(a) language was included by the trial court in the order from which the appeal is pursued is not dispositive of the issue of finality since appeal-ability of the order is dependent upon its substance, not its form (see Kulins v. Malco, Inc. (1979), 79 Ill. App. 3d 982, 985, 398 N.E.2d 1144), and jurisdiction cannot be delegated merely by invoking the “magic words” of Rule 304(a).

For the foregoing reasons, the appeal must be dismissed.

Appeal dismissed.

STAMOS and PERLIN, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE RIZZI

license: Public Domain

text:
    JAMES R. HOLZMILLER, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 79-1775
    Opinion filed September 30, 1981.

      James J. Reidy, Ltd., of Chicago, for appellant.
    Judith E. Fors, of The Law Offices of Thomas J. Keevers, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, James R. Holzmiller, filed a product liability case against defendant, Clark Equipment Company. Plaintiff appeals from an order dismissing the suit because of plaintiff’s failure to comply with discovery, and from subsequent orders refusing to vacate the dismissal order, refusing to allow interrogatories to be signed by plaintiff’s employer’s insurance company, and refusing to allow the filing of an amended complaint substituting plaintiff’s employer’s insurance company as the plaintiff. We reverse and remand.

On July 20, 1978, defendant filed written interrogatories directed to plaintiff and a request for production and a notice of deposition for plaintiff. On June 18, 1979, defendant filed a motion to dismiss for plaintiff’s failure to comply with the discovery rules, and on July 2, 1979, the court dismissed the action. Plaintiff filed a written motion pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) on July 6, 1979, asserting that plaintiff’s counsel was not present at the July 2, 1979, hearing due to an inadvertent clerical error made in the office docket; that plaintiff, an employee of Underwriters Laboratory, Inc., had received workmen’s compensation benefits paid by his employer’s insurer, Employers Insurance of Wausau; that the attorneys for plaintiff “have heretofore been unable to obtain the signature of James R. Holzmiller” on answers to interrogatories; and that answers to interrogatories had been prepared and signed by Employers Insurance of Wausau, subrogee of plaintiff. On July 27,1979, the court denied plaintiff’s motion; the court also denied a motion of plaintiff for leave to file answers to interrogatories signed by Employers Insurance of Wausau.

On August 1, 1979, plaintiff filed a motion to reconsider the court’s ruling on the motion to vacate, which was supported by affidavit. The motion stated that the action had been filed in the name of James R. Holzmiller pursuant to section 5 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(b)) because of the failure of Holzmiller to institute a proceeding against Clark within 3 months before the date upon which the action would have been barred by the applicable statute of limitations; and that plaintiff’s attorneys had made diligent efforts to attempt to have Holzmiller sign interrogatories, but Holzmiller could not be persuaded to change his decision not to proceed with prosecution of the cause of action. In support of this motion, a letter signed by plaintiff, dated September 24, 1978, was attached. The letter is addressed to plaintiff’s counsel, and it states that plaintiff did not desire the suit to proceed with him as plaintiff. Also on August 1, 1979, plaintiff filed a motion to allow plaintiff’s answers to interrogatories to be signed by a claims supervisor for Employers Insurance of Wausau, and a motion for leave to file an amended complaint instanter and to substitute Employers Insurance of Wausau as plaintiff and subrogee of James R. Holzmiller. These motions were denied on August 1, 1979.

On August 14, 1979, plaintiff filed a written motion to vacate the orders of July 2,1979, July 27,1979, and August 1, 1979. This motion was denied on August 14, 1979. On August 24, 1979, plaintiff filed a notice of appeal from the orders entered on July 2, 1979, July 27, 1979, August 1, 1979, and August 14, 1979.

Plaintiff’s first contention is that the dismissal order was an abuse of discretion because there was no showing that the failure to comply with the discovery procedures was unreasonable. The sanction of dismissal under Supreme Court Rule 219(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c)) is to be imposed only when the order is just and noncompliance is unreasonable, i.e., when the noncompliance may be construed as a deliberate and pronounced disregard for the rule or order not complied with. (Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App. 3d 1144, 401 N.E.2d 1156.) Here, the record demonstrates the express refusal of plaintiff to cooperate with the discovery procedures. Plaintiff took the position, as set forth in the plaintiff’s letter dated September 24, 1978, that the suit was unauthorized and he would not cooperate. Under these circumstances, it was impossible for defendant to obtain the full benefit of discovery. There is nothing in the record to suggest that plaintiff would change his mind and cooperate with the discovery procedures. Under the circumstances, the dismissal order was appropriate since defendant was denied any possibility of meaningful discovery in light of the position taken by plaintiff and set forth in his letter to counsel. Dismissal was a proper sanction under these circumstances. Compare Ambassador Insurance Co. v. Wilson (1978), 65 Ill. App. 3d 418, 382 N.E.2d 605.

Plaintiff also contends that the court should have allowed the answers to interrogatories submitted to plaintiff to be signed by an agent of the insurance company. Allowing a claims agent of the insurance company to sign the interrogatories is not an appropriate substitute for defendant’s right to have answers to interrogatories signed and sworn to by the plaintiff. (See Ill. Rev. Stat. 1977, ch. 110A, par. 213; see also McNealy v. Illinois Central R.R. Co. (1963), 43 Ill. App. 2d 460, 471-72, 193 N.E.2d 879, 886.) Therefore, this contention is without merit.

Next, plaintiff argues that the trial court erred in denying leave to file an amended complaint substituting Employers Insurance of Wausau as plaintiff and subrogee of Holzmiller. The applicable statute for bringing such an action by an employer’s insurance company provides that in the event the employee or his personal representative fails to institute a proceeding against a potentially liable third person at any time prior to three months before such action would be barred, the employer in his own name or in the name of the employee or his personal representative may commence a proceeding against such other person for the recovery of damages. (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(b).) Thus, Employers Insurance of Wausau had a statutory right to commence this action for the recovery of damages against Clark.

We do not believe the legislature intended that this statutory right of action would be precluded where a suit is commenced by an employee or in his name and the employee dismisses or causes the action to be dismissed after the time period for filing the action has expired. We conclude that if the action is dismissed after the time period for filing the suit has expired, the employer or his personal representative may move to vacate the dismissal before it becomes final and substitute the employer or his personal representative as plaintiff. As a result, in the present case, we believe that the trial court should have vacated the dismissal and allowed the motion for leave to file an amended complaint substituting Employers Insurance of Wausau as plaintiff.

Accordingly, the dismissal order is reversed, the order denying leave to file an amended complaint substituting Employers Insurance of Wausau is reversed and the case is remanded for proceedings consistent with what is stated herein.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.

       Although the appeal is being taken by the plaintiff, it is apparent that the real party in interest is plaintiff’s employer’s insurance carrier.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK MARSICO, d/b/a Starview Drive-In Theatre, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2406
    Opinion filed September 30,1981.
    L. Robert Artoe, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and Mark X. Van Cura, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

In a jury trial, defendant, Frank Marsico, was found guilty of obscenity. (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(a)(3).) He was sentenced to one year probation and was fined $500. On appeal defendant argues that (1) the trial court gave an erroneous jury instruction which improperly defined obscenity and (2) he was not proved guilty beyond a reasonable doubt. We reverse and remand.

On July 26,1978, a movie entitled “Femmes de Sade” was showing at the Starview Drive-In Theatre in Hanover Township, Cook County, Illinois. On that date, some Cook County police officers paid admission to the theatre and viewed the film. After the conclusion of the movie, the film was seized by the officers pursuant to a search warrant, and defendant, who owned and managed the theatre, was arrested.

The film was booked by Patricia Wheeler, a booking agent for independent theatres. The film was released in approximately 1974, and had been shown at numerous theatres in Illinois prior to its showing at the Starview Drive-In. To Wheeler’s knowledge, the film had not been the subject of any criminal prosecution.

The State’s evidence consisted mainly of the film, which was viewed by the jury. The film depicts explicit acts of sexual intercourse, fellatio, cunnilingus, defecation and urination. The State also introduced the testimony of the Cook County police officers regarding the circumstances surrounding defendant’s arrest. Several witnesses for the defense testified that the film had redeeming social value. Witnesses testified that the moral of the film is “good triumphs over evil” and “everyone gets their just desserts in time.” One witness testified that nothing in the film would appeal to the prurient interest of the average adult. Another witness testified that no material in the film went beyond other X-rated films.

Besides viewing the film, the jury viewed another film which had been the subject of an obscenity prosecution in March of 1977. In the 1977 case, the jury had found that the defendant was not guilty of obscenity.

Defendant first argues that the trial court committed reversible error in giving a jury instruction which misstated the elements of obscenity. During the conference on instructions, the trial court read the following proposed instruction:

“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest. That is a shameful or morbid interest in nudity, sex or excretion, or if it goes substantially beyond customary limits of candor in its description or representation of such matters.” (Emphasis added.)

Defense counsel objected to this instruction, arguing that it should state “and if it goes” rather than “or if it goes.” The trial court responded that the instruction should not be in the conjunctive and therefore gave the instruction in the disjunctive over defense counsel’s objection.

It is clear that the instruction at issue here should have been phrased conjunctively. (See Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(b); People v. Sikora (1965), 32 Rl. 2d 260, 262, 204 N.E.2d 768,769-70.) The wording of the statute defining obscene is virtually identical to the instruction here except that the statute uses the word “and” rather than “or.” (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 20(b).) In fact, on appeal the State admits that the definition of obscene should be stated in the conjunctive rather than the disjunctive. The State argues, however, that all of the instructions construed as a whole properly informed the jury regarding the elements of the offense. Specifically, the State argues that the jury was correctly instructed as to the elements of the offense in the following instruction:

“Under the law three elements must exist. It must be established, A, that the dominant theme of the material, taken as a whole, appeals to the prurient interest in sex. B, the material is patently offensive because it affronts the contemporary community standards relating to the description or representation of sexual matters. C, the material, taken as a whole is utterly without any redeeming social value.”

The State also points to another instruction in which the jury was informed that the term “customary limits of candor” means that the material substantially affronts community standards of the average adult.

We conclude that the other instructions did not cure the error in the instruction at issue. The instruction defining obscene stated the law incorrectly, while the instruction setting forth the necessary elements of the offense correctly stated the elements in the conjunctive. However, the giving of contradictory instructions on essential elements in the case is prejudicial error. (People v. Jenkins (1977), 69 Ill. 2d 61, 66, 370 N.E.2d 532, 534; see People v. Miller (1949), 403 Ill. 561, 565, 87 N.E.2d 649, 651-52.) Moreover, the error here involved a definition which was essential to the jury’s ability to make a legally permissible determination of defendant’s guilt or innocence. (People v. Stromblad (1978), 74 Ill. 2d 35, 41, 383 N.E.2d 969, 972.) Accordingly, we do not believe that the error v/as harmless. Therefore, we conclude that defendant is entitled to a new trial.

Defendant also contends that he was not proved guilty of obscenity beyond a reasonable doubt. As mandated by People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375, we must decide this issue even though the case is being remanded for a new trial. Applying the guidelines set forth in People v. Ridens (1974), 59 Ill. 2d 362, 321 N.E.2d 264, we conclude that a jury could properly decide that the film is obscene. A jury could conclude that the average person, applying contemporary community standards, would find that the film, taken as a whole, appeals to the prurient interest; that the film depicts sexual conduct and excretion in a patently offensive manner, going substantially beyond the customary limits of candor in such depiction; and that the film is utterly without redeeming social value. (See also People v. Ward (1976), 63 Ill. 2d 437, 442, 349 N.E.2d 47, 49, affd (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085; People v. Gould (1975), 60 Ill. 2d 159, 164-65, 324 N.E.2d 412, 415.) The case must therefore be remanded for a new trial.

Accordingly, the judgment of the circuit court is reversed, and the case is remanded for a new trial.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ„ concur.


text:
    ANCRAFT PRODUCTS COMPANY, Plaintiff-Appellee, v. UNIVERSAL OIL PRODUCTS COMPANY, INC., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 79-2434
    Opinion filed September 30, 1981.

      Rooks, Pitts, Fullagar and Poust, of Chicago (Alan S. Ganz and Terrence E. Kiwala, of counsel), for appellants.
    Henehan, Donovan & Isaacson, Ltd., of Chicago (Edward V. Donovan, Jr., and James J. McManus, of counsel), for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

This case involves a dispute over the construction of a contract between plaintiff, Ancraft Products Co., and defendant, Universal Oil Products Company, Inc. (UOP, Inc.). According to the contract, plaintiff was to build three impregnating machines for defendant. In its complaint, plaintiff alleged that it performed the work and design services required for the machines and delivered them on schedule, and that defendant owes $59,348.06 towards the total contract price. Defendant admitted that it had not paid the $59,348.06, but denied that it owed that amount. The gravamen of the dispute is that plaintiff characterizes the contract as a fixed fee contract, whereas defendant contends that it is a cost-plus contract with an upset price. The $59,348.06 represents the difference between the amount paid by defendant on the basis of time and materials, and the amount alleged by plaintiff to be the fixed price of the contract. The trial court entered judgment in favor of plaintiff but denied an award of interest on this sum from the date it became due until the date of the judgment. On appeal, defendant argues that the trial court erred in entering judgment in favor of plaintiff. Plaintiff cross-appeals, contending that the court should have ordered the payment of interest on the unpaid balance of the contract. Since we conclude that plaintiff was not entitled to the $59,348.06, we reverse.

The negotiations for the contract took place between E. W. Nyberg of Ancraft and D. A. Shepard of Hoyer-Schlesinger-Turner, Inc. (HST), an engineering firm acting as defendant’s purchasing agent. Shepard died before the trial.

In April 1973, plaintiff sent HST a letter setting forth a quotation for building the three impregnating machines which defendant sought to acquire. The essential terms were:

“The price for the machine with the plastic valves and counter clockwise rotation would be $110,000.00.”
“The price for the machines with the stainless steel valves parts and clockwise rotation would be $145,000.00 each.”
“Engineering for the stainless steel machines with clockwise rotation would be approximately $25,000.00.”
“Labor charges would be based on $13.00/Hr. Engineering charges would be based on $15.00/Hr. Materials would be billed at cost plus 15%. ”
“Payouts are to be made semimonthly with Ancraft providing copies of all invoices for purchased materials and accounting for labor and engineering hours worked.”
“Should your order be cancelled before December 30, 1973 there would be a cancellation charge of $70,000.00 plus any monies due on purchased items received or to be received, labor and engineering.”

Following further negotiations, HST sent plaintiff a letter dated May 2 which mirrored in most respects the terms contained in plaintiff’s letter. The only major addition was a paragraph inserted after the price and hourly rate provisions which stated:

“However the cost of stainless and plastic Impregnating Machines shall not exceed the above listed prices, nor shall the engineering exceed the $25,000.00 limit unless there is a change in scope and a written change order issued.”

Defendant’s purchase order, signed by Shepard and dated May 7, 1973, reads:

“1 Stainless Steel Impregnation Machine
2 Plastic Impregnation Machines
$110,000
Approximate Engineering Cost for Item 559601
Approximate Total Purchase Order Price, no crating included:
Hourly Rates will be as follows:
Labor $13.00 hour
Engineering $15.00 hour Material at cost plus 15%
Invoices will be semi-monthly * * *.
$145,000 $220,000 $ 25,000
$390,000
Should the order be cancelled on or before December 30, 1973, there will be a cancellation charge of $70,000.00 plus monies due on purchased items received or cancellation charges on items to be received, labor and engineering charges.”

The purchase order concluded with the following statement: “This confirms Letter of Intent dated May 2, 1973, to Mr. Ernest W. Nyberg.”

On September 7, HST sent plaintiff a letter requesting semimonthly status reports. The letter further stated:

“We also wish to confirm our verbal statement that no changes increasing the cost of these machines will be effective until such changes have been approved by myself and a written Change Order issued to your firm. Under no circumstance will the total Purchase Order price be exceeded.”

Five changes were made in defendant’s original order, and Shepard signed the purchase order sheets reflecting the changes and showing an increase of $70,900 in the total cost of the machines.

Plaintiff billed defendant semimonthly on the basis of engineering charges, labor and materials (at cost plus 15%). Defendant paid all invoices except for the final one involving the disputed $59,348.06. The trial court determined that plaintiff was entitled to receive this sum but that plaintiff was not entitled to interest for the interval between July 26, 1974, when the amount became due, and the date of the entry of judgment.

Defendant argues that the trial court erred in determining that the contract was a fixed fee contract rather than a cost plus contract with a maximum price. We agree.

In construing a contract, the primary objective is to determine and give effect to the intentions of the parties (In re Estate of Klinker (1979), 80 Ill. App. 3d 28, 30, 399 N.E.2d 299, 301) at the time they entered into the contract. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 335,75 N.E.2d 874, 880.) If the contract terms are unambiguous, then the parties’ intent must be determined solely from the language of the contract. (Schek v. Chicago Transit Authority (1969), 42 ILl. 2d 362, 364, 247 N.E.2d 886, 888.) If, however, the contract language is ambiguous, extrinsic evidence as to facts surrounding formation of the contract may be considered in determining the parties’ intent. (La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 384, 370 N.E.2d 188,192; Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 796, 405 N.E.2d 1051, 1056.) The issue of whether or not an ambiguity exists is a question of law to be determined by the court. (Heifner v. Board of Education (1975), 32 Ill. App. 3d 83, 88, 335 N.E.2d 600, 604; Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 582, 312 N.E.2d 27, 29.) Since construction of a contract presents an issue of law in the absence of any material questions of fact, the reviewing court may independently construe the contract (Rymer v. Kendall Col lege (1978), 64 Ill. App. 3d 355, 359, 380 N.E.2d 1089,1092), unrestrained by the trial court’s judgment (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 797, 405 N.E.2d 1051, 1056).

We conclude that the terms of the contract involved here are ambiguous. Although a fixed price is given for the cost of each machine, the cost of engineering is shown as an approximate figure, and the total price shown is denoted “Approximate Total Purchase Order Price.” The ambiguity is heightened by the inclusion of hourly rates for engineering and labor, with materials to be billed at cost plus 15%, which suggests that the contract was a cost plus contract and that the price given for each machine was a maximum cost and not a fixed fee.

Plaintiff argues that if the contract is ambiguous, it should be construed most strongly against defendant since defendant, through its agent, drafted the contract. While it is generally true that a contract should be most strongly construed against its author (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 333, 75 N.E.2d 874, 879; Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 840, 368 N.E.2d 1099, 1103), that principle is not controlling here. The contract sets forth the agreement between the parties in almost the same form and language as that contained in plaintiff’s letter submitting its quotation. Although the final contract was prepared by HST on one of defendant’s purchase order forms, it merely reflects the essential terms as they were propounded by plaintiff. Under these circumstances, any ambiguity will not be construed against defendant solely because it prepared the final contract.

The correspondence regarding preliminary negotiations, the contract and its five modifications and the semimonthly invoices sent by plaintiff to defendant were admitted into evidence without objection. Included in these exhibits was HST’s letter of intent. Reference is made to this letter at the end of the contract: “This confirms Letter of Intent dated May 2,1973, to Mr. Ernest W. Nyberg.” In that letter, HST stated that costs for the machines “shall not exceed” the price shown unless there was a change in scope accompanied by a written change order. We agree with defendant that this demonstrates that a maximum price rather than a set price was intended, since a fixed rate could not be exceeded. Furthermore, the parties agreed to various contract modifications while the machines were being built, and in its correspondence HST repeated that increased costs of the machine would not be effective until any changes had been approved in writing and that “[u]nder no circumstances [would] the total Purchase Order price be exceeded.” These letters evince that defendant consistently intended for the price set in the contract to be an upset price.

The fact that the contract is a cost-plus contract with an upset price is further demonstrated by the billing procedure used by the parties. In accordance with the contract, invoices based on hourly rates for engineering and labor, with materials billed at cost plus 15%, were sent to defendant on a semimonthly basis. This procedure is more consistent with a cost plus contract than a fixed price contract. The amount billed on each invoice bore no relationship to the alleged fixed price of the machines but instead was based upon the computation of time and materials.

Plaintiff argues that a fixed price is manifested by the fact that the contract sets forth the cost of each machine at a specific price. It points out that the only approximate price in the contract concerns the initial engineering charges. Furthermore, when the order for one stainless steel machine and two plastic machines was subsequently modified to two stainless steel machines and one plastic machine, the increased cost of $35,000 reflected the exact difference in cost between the two types of machines as set out in the contract. The additional engineering charges contained in the modifications were also for specific amounts. Thus, plaintiff contends, the contract and its modifications show that a fixed rate contract was intended. We reject this conclusion, however, because the specific costs and increases noted by plaintiff are equally consistent with a cost plus contract with an upset price. The specific increases in price set forth in the modifications would serve to raise the maximum cost allowable to accommodate the increase costs necessitated by the modifications.

We also disagree with plaintiff’s argument that the cancellation clause supports its contention that the contract was for a fixed price. At oral argument, plaintiff suggested that the hourly rates and charge for materials were put in the contract so that cancellation charges for items purchased and labor and engineering costs could be ascertained. Plaintiff also argues that the disputed $59,348.06 approximates the cancellation charge of $70,000, thereby showing that plaintiff correctly determined its costs and expenses plus anticipated profit. The hourly rates and material costs, however, were not part of the paragraph concerning cancellation, and they were set forth in an entirely separate provision. Moreover, these figures were used by plaintiff as the basis for its semimonthly invoices, not held in reserve in case of cancellation. As for plaintiff’s argument that the disputed amount approximates the cancellation charge, any correlation between these two figures is conjectural.

We conclude that the ambiguity in the contract regarding the cost of the machines must be resolved in favor of defendant. The language and form of the contract, the preliminary negotiations and the agreed method of billing evidence the intent of the parties to create a cost plus contract with an upset price rather than a fixed rate contract. The only indication that plaintiff had intended the contract to be a fixed rate contract did not become evident until plaintiff sent defendant an invoice for the disputed $59,348.06 three months after the contract was completed, and this is insufficient to establish that the parties intended to create a fixed rate contract.

Accordingly, the judgment of the trial court awarding plaintiff $59,348.06 is reversed, and judgment is entered in favor of defendant. In view of our decision, we need not address plaintiff’s cross-appeal regarding the denial of interest.

Reversed.

McGILLICUDDY and WHITE, JJ„ concur.


text:
      In re SUPPORT OF MARY PAXTON BURKS et al.—(JAMES BURKS, Petitioner-Appellant, v. MARY PAXTON BURKS, Respondent-Appellee.)
    First District (3rd Division)
    Nos. 80-414, 80-1023 cons.
    Opinion filed September 30,1981.

      Howard LeVine and Ross B. Shugan, both of LeVine, Wittenberg, Eisner, Newman & Silverman, of Chicago, for appellant.
    Frank T. Steponate and Thomas G. Merkel, both of Friend, Steponate & Slkutsky, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Petitioner, James Burks, filed a petition to modify his support obligation to respondent, Mary Paxton Burks, and their children. This obligation arose from a settlement agreement between respondent and petitioner which was incorporated in a divorce judgment. The trial court refused to grant the relief sought in the petition. Petitioner appeals, contending that the trial court’s ruling was erroneous and that the trial court erred in awarding attorney’s fees to respondent’s attorney. We affirm in part, reverse in part and remand.

A judgment for divorce was entered on September 2, 1976. The judgment incorporated a settlement agreement entered into between the parties. The agreement provided that petitioner was to pay respondent $272,250 in equal monthly installments of $2,250 each. The payment of this sum was to be in “full and final settlement of all of [petitioner’s] obligations to support and maintain [respondent] as a lump sum property settlement in installments’ in lieu of alimony and also as and for the support of the minor children of the parties.” In the event of the death of respondent or petitioner, any installments thereafter due would abate, and respondent and her heirs would have no further claim against petitioner or his heirs. If petitioner became ill or disabled and therefore unable to work and make the payments, the payments due during that period would be delayed until petitioner’s recovery. Upon petitioner’s recovery and return to work, he would pay respondent with each current payment an additional amount equal to b% of the current payment until all delayed payments were made. The agreement further provided:

“Wife releases and discharges Husband absolutely and forever for the rest of her life from all claims, demands, past, present or future, for alimony or for any other provisions for maintenance and support except as contained in this Agreement. Wife agrees that she will not seek increased or additional amounts for the support, maintenance or pre-college education of the children. If, at any time hereafter, any court of competent jurisdiction orders Husband to pay any additional sum as and for the support, maintenance, and pre-college education of the minor children, Wife agrees to indemnify Husband in the amount of the increase of the additional sum.”

The parties also agreed that the payment of college expenses of the minor children would be determined at the time the children were ready to attend college.

On July 17,1979, petitioner filed a petition alleging a material change in circumstances which necessitated a reduction in child support and maintenance. At the time of the divorce judgment in 1976, petitioner was employed by Presbyterian St. Lukes Hospital as an obstetrician and gynecologist. He was earning approximately $53,000 per year. On June 30, 1977, petitioner left Presbyterian St. Lukes Hospital and joined Health Specialists, Inc. In his first and second years of employment with Health Specialists, petitioner earned $70,000 and $76,500 respectively.

On June 30,1979, petitioner left Health Specialists to open a private practice. According to petitioner, he left Health Specialists because he was having problems getting along with his fellow workers and because he was not earning enough money to cover his expenses. Petitioner formed a medical corporation and was drawing a monthly gross salary of $2,083.33 at the time of the hearing on the petition. Petitioner’s new wife, Marilyn Moore, was also working for the corporation, earning $15,000 per year. At the time of the hearing, the corporation had no retained earnings.

From the time petitioner opened his private practice in July of 1979 until September of 1979, petitioner paid respondent only one-half of the monthly amount required by the settlement agreement. His monthly expenses for October 1979 were $5,302.45, which included a full payment of $2,250 to respondent. That amount also included a $750 monthly payment to Moore’s mother for the purpose of property in Michigan.

At the time of the divorce judgment, the parties’ three children were living with respondent. Shortly thereafter, the oldest child left to attend college. The parties’ middle child enrolled in college in September of 1979. At the time of the hearing, petitioner had paid for the college education of both children. The youngest child attended the University of Chicago Lab School, and respondent paid her tuition.

At the time of the divorce judgment, respondent was working 15 to 20 hours per week and earning $5 per hour. At the time of the hearing on the petition, she was earning approximately $6500 per year.

The trial court refused to grant the relief requested in the petition, ruling that the agreement between the parties is not modifiable. The trial court specifically stated that it did not have the power to modify the terms of the payments. Petitioner contends that the ruling of the trial court was erroneous because his support obligation is modifiable under section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. Section 502(f) provides:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the judgment are automatically modified by modification of the judgment.” (Ill. Rev. Stat. 1979, ch. 40, par. 502(f).)

If the terms are modifiable, they may be modified only upon a showing of a substantial change in circumstances. Ill. Rev. Stat. 1979, ch. 40, par. 510(a); Miller v. Miller (1978), 65 Ill. App. 3d 844, 846, 382 N.E.2d 823, 826.

In the present case, the agreement, which was executed prior to the new act, does not expressly preclude or limit modification of its terms. However, regardless of the presence or absence of any such language, provisions relating to the support of minor children are always modifiable. (In re Support of Bayuk (1979), 79 Ill. App. 3d 877, 880, 398 N.E.2d 1109, 1112; Weber v. Weber (1979), 77 Ill. App. 3d 383, 386, 396 N.E.2d 43,46; Dull v. Dull (1979), 73 Ill. App. 3d 1015, 1017, 392 N.E.2d 421, 423; In re Marriage of Gentile (1979), 69 Ill. App. 3d 297, 301, 387 N.E.2d 979, 983.) The parties cannot agree to make child support nonmodifiable. (Ill. Ann. Stat., ch. 40, pars. 502, 510, Historical and Practice Notes, at 403, 700 (Smith-Hurd 1980).) Therefore, child support is modifiable even when combined with nonmodifiable alimony or maintenance. (See Powers v. Powers (1979), 69 Ill. App. 3d 485, 388 N.E.2d 76; Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Notes, at 700 (Smith-Hurd 1980).) It follows that to the extent the payments in this case comprise child support, they are modifiable.

A question remains as to the modifiability of the balance of the unallocated payment which the parties labeled “a lump sum property settlement in lieu of alimony.” If a judgment dividing property or awarding lump sum alimony is rendered prior to the effective date of the new act, such judgment cannot be modified after the effective date of the act if the judgment would not have been modifiable under prior law. (Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Notes, at 700 (Smith-Hurd 1980).) Under prior law, provisions in a divorce judgment relating to the disposition of the parties’ property are not modifiable, whether labeled a property settlement or an award of alimony in gross payable in installments. (Lamp v. Lamp (1979), 73 Ill. App. 3d 713, 716, 392 N.E.2d 349, 352, aff’d (1980), 81 Ill. 2d 364, 410 N.E.2d 31.) This principle remains unchanged pursuant to section 510(a) of the new act. (Ill. Rev. Stat. 1979, ch. 40, par. 510(a); Lamp, 73 Ill. App. 3d 713, 716, 392 N.E.2d at 352; see Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 897, 416 N.E.2d 366, 369.) In contrast, under prior law, periodic alimony (now called maintenance) is modifiable. (Ihle, 92 Ill. App. 3d 893, 895, 416 N.E.2d 366, 368; In re Marriage of Workman (1980), 89 Ill. App. 3d 886, 888, 412 N.E.2d 614, 616.) Under the new act, the parties may expressly preclude or limit modification of the terms of maintenance if the separation agreement so provides. Otherwise, the terms of a separation agreement are automatically modified by modification of the judgment. Ill. Rev. Stat. 1979, ch. 40, par. 502(f).

In the present case, after looking at the agreement as a whole, we conclude that the parties intended the balance of the payment to relate to the disposition of their property. Although the label used is not determinative, the parties stated that the payments represented a lump sum property settlement in lieu of alimony. Also, the agreement provides for a sum certain payable in installments for a fixed period of time; respondent is to receive 121 equal installments of $2,500 each. These provisions are consistent with the characteristics of a property settlement in lieu of alimony or alimony in gross (see Ihle, 92 Ill. App. 3d 893, 895, 416 N.E.2d 366, 368; Workman, 89 Ill. App. 3d 886, 888, 412 N.E.2d 614, 616; Pacione v. Pacione (1980), 81 Ill. App. 3d 600, 605, 402 N.E.2d 316, 319) rather than periodic alimony which is for an indefinite period of time and usually for an indefinite sum of money (Ihle, 92 Ill. App. 3d 893, 895, 416 N.E.2d 366, 368; Workman, 89 Ill. App. 3d 886, 888, 412 N.E.2d 614, 616). The fact that the payments terminate on the death of respondent does not transform this arrangement into periodic alimony. (See Ihle, 92 Ill. App. 3d 893, 896, 416 N.E.2d 366, 369; Workman, 89 Ill. App. 3d 886, 888, 412 N.E.2d 614, 616.) Furthermore, the agreement provides that the respondent releases and discharges petitioner “absolutely and forever for the rest of her life from all claims, demands, past, present and future, for alimony or for any other provisions for maintenance and support except as contained in this agreement.”

Accordingly, since we conclude that the balance of the payment represents a disposition of property between the parties, that portion of the payment is not modifiable under either the prior law or the new act. However, as discussed above, the portion of the payment attributable to child support is modifiable. Since the trial court concluded that it did not have the power to modify the payments, it could not have properly exercised its discretion in determining whether there was a substantial change in circumstances to warrant modification. Consequently, we remand the case to the trial court for a determination as to whether the judgment should be modified insofar as it relates to child support and, if so, to what extent it should be modified. See Powers v. Powers (1979), 69 Ill. App. 3d 485, 490, 388 N.E.2d 76, 79-80.

Petitioner also contends that the trial court erred when it ordered him to pay a portion of the fee requested by respondent’s attorney for defense of the petition for modification of the judgment. Petitioner does not contest the time spent, the hourly billing charge or the expertise of respondent’s counsel. Rather, petitioner argues that the trial court did not properly consider the financial resources of the parties in making its determination because, according to petitioner, respondent has the ability to pay her own attorney’s fees. See Ill. Rev. Stat. 1979, ch. 40, par. 508.

Under section 508 of the act, the court may order either spouse to pay a reasonable amount for the costs and attorney’s fees necessarily incurred by the other spouse. (Ill. Rev. Stat. 1979, ch. 40, par. 508.) Such an order is justified when the spouse seeking relief demonstrates financial inability to pay coupled with the ability of the other spouse to do so. (In re Marriage of Breener (1981), 95 Ill. App. 3d 100, 104, 419 N.E.2d 400, 403; Scott v. Scott (1979), 72 Ill. App. 3d 117, 126, 389 N.E.2d 1271,1278.) The allowance of attorney’s fees rests in the discretion of the trial court, and we will not disturb the trial court’s determination unless there is an abuse of discretion. (Scott, 72 Ill. App. 3d 117, 126, 389 N.E.2d 1271, 1278.) Based on the relative circumstances of the parties as revealed by the record, we cannot say that the trial court abused its discretion by requiring petitioner to pay a portion of respondent’s attorney’s fees. The trial court could have reasonably concluded that petitioner had the ability to pay and respondent did not have the ability to pay that'portion of the fees.

Finally, we address petitioner’s contention that the trial court improperly ordered him to pay respondent’s attorney temporary fees for defense of the appeal from the denial of the petition for modification of the judgment. He argues that the award was improper because the trial court did not hold an evidentiary hearing.

Respondent filed a petition in which she requested temporary attorney’s fees for defense of the appeal. Petitioner’s attorney stated that he was not ready for a hearing since petitioner was unable to be present because of an emergency. Petitioner’s attorney stated that he thought a hearing would be necessary. The trial court did not conduct a hearing, but rather, it summarily awarded temporary attorney’s fees. This was error because when there is a request for a hearing on attorney’s fees, the court must conduct a hearing on that issue. People ex rel. Foster v. Louder (1981), 97 Ill. App. 3d 1104, 1107, 423 N.E.2d 1272, 1275; see Hogan v. Hogan (1978), 58 Ill. App. 3d 661, 668, 374 N.E.2d 1040, 1045.

Accordingly, the order of the trial court denying the relief sought in the petition to modify petitioner’s support obligation is reversed, and the case is remanded for proceedings consistent with what is stated herein. The order requiring petitioner to pay a portion of respondent’s attorney’s fees for defense of the petition for modification of the judgment is affirmed. The order requiring petitioner to pay temporary attorney’s fees to respondent’s attorney for defense of this appeal is reversed, and the case is remanded for a hearing on that issue.

Affirmed in part, reversed in part and remanded.

McGILLICUDDY and WHITE, JJ„ concur.

       Courts have noted that the distinction between alimony in gross and a property settlement became muddled by parties frequently juxtaposing elements of both into a single agreement. (Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 895-96, 416 N.E.2d 366, 368; Pacione v. Pacione (1980), 81 Ill. App. 3d 600, 605, 402 N.E.2d 316, 319.) Thus, alimony in gross is often indistinguishable from a settlement of property between spouses. Pacione, 81 Ill. App. 3d 600, 605, 402 N.E.2d 316. 320.

       In its ruling, the trial court also stated that modification was precluded because “this was a voluntary shift on the part of Doctor Burks.” However, if good faith is shown, a voluntary change in employment may be considered as a factor in determining whether there is a substantial change in circumstances to warrant abatement or modification of child support payments. See In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 46-47, 400 N.E.2d 995, 997; In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243, 1245; Glass v. Peitchel (1976), 42 Ill. App. 3d 240, 242, 355 N.E.2d 750, 754.

       The judge who ruled on this petition for attorney’s fees was a different judge than the judge who ruled on the other petition for attorney’s fees and the petition for modification of the judgment.


author: Miss JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. L. V. JOHNSON et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-513
    Opinion filed September 30,1981.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellees.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

The defendants, L.V. Johnson and Curtis Forte, were charged with possession of a controlled substance (heroin) (Ill. Rev. Stat. 1977, eh. 56M, par. 1402(a)). At the preliminary hearing the defendants moved to quash their arrest and suppress certain physical evidence. After an evidentiary hearing, the trial court denied this motion and made a finding of probable cause to arrest the defendants. A preliminary hearing was conducted immediately thereafter, and a finding of probable cause was entered as to Johnson and Forte. The case was transferred to a second judge for trial. The second judge sustained defendants’ renewed motion to suppress. It is from this order that the State appeals.

At the first evidentiary hearing on June 6, 1978, Officer Richard Abreu of the Chicago Police Department testified that on January 6,1978, at 9:30 p.m., he received a telephone call from an informer. The informer previously had given Abreu information which led to four narcotic arrests. The informer told Abreu that at some time before 11 p.m. that evening, three male Negroes in a white Continental automobile would be purchasing narcotics at 25th and Drake from a male Mexican.

Officer Abreu went to that location where with the aid of binoculars he observed three male Negroes sitting in a Continental automobile parked at 3523 West 25th Street. Abreu saw a male Mexican walk up to the driver’s side of the automobile and hand a brown paper bag to the driver, whom he identified as the defendant Johnson. After Johnson opened and accepted the bag, the man walked away. Johnson drove off, and Abreu followed him to 25th and Kedzie, where he directed Johnson to stop and ordered the three occupants out of the car. At this point Johnson handed the brown bag to Forte, one of the passengers in the car. After Forte got out of the car, the brown bag was resting on the curb on the passenger side of the automobile.

In renewing their motion to suppress on January 25, 1980, defense counsel requested that the court grant a second hearing on the grounds that newly discovered evidence had come to light. This new evidence was the testimony of the defendant, Johnson, who had not testified at the previous hearing. Over the State’s objection, a second hearing was held.

Johnson testified that on January 6, 1978, he was driving his 1977 Lincoln to a pool hall at 25th and California. Forte was a passenger in the car. Johnson observed an unmarked police vehicle make a U-turn in the center of Kedzie Avenue. The officers followed him to 25th and California, where they stopped his car and ordered the three occupants at gun point to get out of the car. The three men exited via the passenger side of the automobile. One of the officers then recovered something and placed them under arrest. Johnson denied stopping his car until he came to 25th and California and stated that he did not see a male Mexican that evening.

The State introduced the transcript of the testimony given by Abreu at the previous hearing. The trial judge stated that he read the transcript but he did not believe that the incident happened the way Abreu described it. The court found Abreu’s testimony incredible and sustained defendants’ motion to suppress.

On appeal the State argues that the court erred in permitting a second hearing on defendants’ motion to suppress. The defendants have not filed a brief in this court. However, under the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, we shall consider the merits of the appeal.

It is well established that in the absence of additional evidence or exceptional circumstances, the doctrine of collateral estoppel bars the relitigation of an order sustaining or denying a pretrial motion to suppress evidence. (People v. Holland (1974), 56 Ill. 2d 318, 307 N.E.2d 380; People v. Armstrong (1973), 56 Ill. 2d 159, 306 N.E.2d 14; People v. Nelson (1981), 97 Ill. App. 3d 964.) The State argues that this additional evidence must be evidence which has become available since the first hearing and cites several decisions which support this position. People v. Grant (1976), 38 Ill. App. 3d 62, 347 N.E.2d 244; People v. Henderson (1976), 36 Ill. App. 3d 355, 344 N.E.2d 239; People v. Gierbolini (1975), 27 Ill. App. 3d 75, 327 N.E.2d 297.

The State points out that in the instant case the only additional evidence presented at the second hearing was the defendant’s testimony. We agree with the State that this evidence was available at the first hearing and that it did not justify the relitigation of the motion to suppress.

We realize that our decision conflicts with the holding in People v. Colletti (1978), 61 Ill. App. 3d 289, 377 N.E.2d 1276. In Colletti the defendant filed a motion to dismiss a charge on the grounds that it was barred by the statute of limitations. Subsequently, the defendant renewed the motion before a second judge. At this hearing the defendant testified, and the court sustained his motion. On appeal, the court held that the second judge did not err in considering the second motion.

We must respectfully disagree with Colletti’s holding that the defendant’s testimony warranted reconsideration of the motion. We believe that earlier case law established that when a second hearing is predicated on new evidence, that evidence must have become available since the first hearing. Although the court in Colletti was concerned with the constitutional right of a defendant to remain silent, we note that this right is not jeopardized since a defendant’s testimony in support of a motion to suppress evidence cannot be admitted against him at trial on the issue of guilt unless he makes no objection. Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967; People v. Sturgis (1974), 58 Ill. 2d 211,317 N.E.2d 545, cert, denied (1975), 420 U.S. 936,43 L. Ed. 2d 412, 95 S. Ct. 1144.

For the foregoing reasons, the trial court’s suppression order is hereby reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.

         The charges against the third occupant of the automobile were nolle prossed prior to the hearing on the motion to suppress.


text:
      In re MARRIAGE OF DEBORAH GEBIS, Respondent-Appellant, and GARY GEBIS, Petitioner-Appellee.
    First District (3rd Division)
    No. 80-1508
    Opinion filed September 30, 1981.
    Synek, Bishart & Porikos, of Chicago (Henry Thrush Synek, of counsel), for appellant.
    Stanley F. Kaplan, P. C., of Chicago (Claire Adair, of counsel), for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Petitioner, Gary Gebis, filed a petition to obtain custody of his two minor children from respondent, Deborah Gebis. After hearing evidence in support of the petition, the trial court awarded temporary custody to petitioner without prejudice to the rights of respondent. After all of the evidence had been presented by both parties, the trial court transferred permanent custody of the two children to petitioner. We reverse.

The parties were married on September 3, 1972. Two children were born during the marriage. William was born on July 28, 1973, and Gary was born on February 7, 1975. On December 18, 1978, a judgment of dissolution of marriage was entered. Pursuant to a settlement agreement which was incorporated in the judgment, respondent was given custody of the two minor children subject to the visitation rights of petitioner.

On December 27, 1979, petitioner filed a petition in which he requested temporary custody of the children until a full hearing could be held and permanent custody at the conclusion of a full hearing. In the petition, he alleged that the custodial arrangement seriously endangered the children’s physical, mental, moral and emotional health and that it would be in the best interest of the children to reside with petitioner and his new wife.

At the conclusion of the hearing, the trial court entered an order transferring permanent custody of the two children to petitioner. The court found that the testimony of Michelle Cimino, director of a nursery school, as to the clothing and hygienic condition of Gary, respondent’s inaction as it related to William’s speech problem and the other evidence submitted at the hearing showed that the children’s present environment seriously endangered their physical, moral and emotional health. The court further found that there had been a substantial change" of circumstances relative to the welfare of the children, and that it would be in the best interest of the children to have permanent custody transferred to petitioner. The court ordered that respondent was to have the same visitation rights which respondent had been given in the judgment for dissolution of the marriage.

Respondent contends that the order of the trial court transferring custody of the children to petitioner is against the manifest weight of the evidence. She argues that the evidence does not support a finding that the children’s environment seriously endangered their physical, mental, moral or emotional health.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act is relevant here. It provides:

“(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”
Ill. Rev. Stat. 1979, ch. 40, par. 610(b).

Petitioner has the burden of proof (Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 84, 399 N.E.2d 330, 333) and must satisfy one of the three prerequisites under section 610(b) before the court proceeds to consider the best interest of the children under section 602(a) of the Act. (In re Marriage of Gargus (1981), 97 Ill. App. 3d 598, 605-06, 423 N.E.2d 193, 198; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781, 784, 412 N.E.2d 49, 52; In re Custody of Nodot (1980), 81 Ill. App. 3d 883, 891, 401 N.E.2d 1189, 1195.) In this regard, section 610(b) reflects an underlying policy favoring the finality of child custody judgments. By creating a presumption in favor of the custodian appointed pursuant to the prior judgment, the legislature has sought to promote stability and continuity in the child’s custodial and environmental relationship which is not to be lightly overturned. In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21, 396 N.E.2d 499, 502; In re Marriage of Gunter (1981), 93 Ill. App. 3d 1043, 1048, 418 N.E.2d 149, 153.

Here, we agree with respondent that petitioner has failed to satisfy subsection (b)(3), the applicable subsection in the case. The evidence fails to support a finding that the children’s environment seriously endangered their physical, mental, moral or emotional health. The incidents cited by petitioner, taken alone or together, do not warrant a change of custody from respondent, the custodian appointed in the original judgment.

In the order transferring custody, the trial court points to Cimino’s testimony regarding Gary’s clothing and hygiene. We do not believe that the fact that on occasion a four-year-old child wore dirty clothes or soiled his pants seriously endangers his physical, mental, moral or emotional health. Moreover, Cimino testified that it was not unusual for children in Gary’s age group to get dirty or to have accidents. Nor do we believe that the fact that Gary may have had gum on his face for a few days seriously endangered him so as to justify a change of custody.

The older child, William, has a speech problem which is apparently hereditary. The trial court lists respondent’s inaction with regard to William’s speech problem as a finding supporting its ruling. However, we cannot conclude that the manner in which respondent handled the situation seriously endangered William. Respondent had taken William to a speech pathologist in November of 1978. The report of the speech pathologist indicated that speech therapy was not necessary at that time but that he should be reevaluated when he started kindergarten. Apparently, there was some confusion as to the time for reevaluation since William was already in kindergarten when he was first examined by the speech pathologist. Respondent received a letter clarifying the situation on January 2, 1980. The letter stated that the speech pathologist intended to recommend that William be reevaluated in the fall of 1979. Respondent then scheduled an appointment with the speech pathologist on January 4, 1980. While petitioner had temporary custody of the children, William began a program of speech therapy. We do not believe that the delay from the fall of 1979 to the early part of 1980 seriously endangered William, and we assume that, if necessary, he will continue a program of speech therapy.

Petitioner argues that respondent’s failure to take Gary to the dentist for follow-up treatment for a broken tooth demonstrates her lack of concern. However, respondent testified that she had scheduled several appointments which had to be cancelled because of illness or because petitioner had custody of the children. Moreover, there is no evidence that the missed appointments seriously endangered Gary’s physical, mental, moral or emotional health.

Petitioner also points to testimony showing that respondent sometimes left her children with babysitters. One babysitter watched William before and after school. It was necessary for respondent to be at work during those hours, and we cannot say that this arrangement was detrimental to William. Another babysitter took care of the children approximately one night a week, and the children sometimes stayed overnight at her house. The evidence does not demonstrate that the children were seriously endangered while in the babysitter’s care. Petitioner points to one incident in which William injured his leg on the babysitter’s bike. We see this as nothing more than an accident which could not justify a transfer of custody. We also note that petitioner never objected to this particular babysitter while the parties were married.

In addition, we are unable to say that respondent’s past financial problems seriously endangered the children. Furthermore, respondent has remarried, her current husband earns in excess of $30,000 per year, and she and her husband are living in a house.

After a careful examination of the record, we conclude that the evidence was insufficient to establish that the children’s physical, mental, moral or emotional health was seriously endangered by their environment. Lacking this evidence, there was an insufficient basis on which to modify the existing custody arrangement. We conclude that the trial court’s finding was against the manifest weight of the evidence, and the order transferring custody of the children was improper.

Accordingly, the order of the circuit court is reversed.

Reversed.

McNAMARA and McGILLICUDDY, JJ., concur.


author: Mr. JUSTICE JIGANTI

text:
    MELVIN E. LEVY et al., Plaintiffs-Appellants, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellee.— DINO RAFFAELLI et al., Plaintiffs-Appellants, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellee.
    First District (4th Division)
    Nos. 80-2180, 80-2581 cons.
    Opinion filed October 1,1981.
    Michael Berland et al., of Chicago, for appellants Melvin Levy et al.

    Freeman, Atkins & Coleman, of Chicago (Susan B. Daumer, of counsel), for appellants Dino Raffaelli et al.

    Allen S. Lavin, of Chicago (James B- Murray and Jack L. Shankman, of counsel), for appellee.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated cases, Melvin E. Levy et al. v. The Metropolitan Sanitary District of Greater Chicago, and, Dino Raffaelli and Theresa Raffaelli, on their own behalf and on behalf of all other persons similarly situated v. The Metropolitan Sanitary District of Greater Chicago, are appeals from orders of the circuit court of Cook County dismissing the class action aspects of the plaintiffs’ complaints. The defendants’ motions to dismiss the actions of the individual plaintiffs were not granted.

Both the Levy and Raffaelli plaintiffs alleged that they and the members of their classes had obtained a substance known as “Nu-Earth” fertilizer from the defendant and had used the fertilizer on their lawns and gardens between 1975 and 1979. They alleged that Nu-Earth, a byproduct of the defendant’s operations, is contaminated with dangerous levels of cadmium which is absorbed by plants and vegetables and which causes injuries to persons when the vegetables are eaten. The plaintiffs sought: (1) a prohibitory injunction against the preparation and distribution of Nu-Earth; (2) testing of each class member’s soil to ascertain the level of contamination; (3) replacement or neutralization of contaminated soil; (4) compensation for existing injuries to the plaintiffs’ persons and property. Additionally, the Levy plaintiffs sought the creation of a fund from which they could be compensated for injuries which they may sustain in the future from having used Nu-Earth.

The defendant moved to dismiss the class action aspects of each complaint and to dismiss the actions of the individual plaintiffs. The class action aspects of both complaints were dismissed, but the actions of the individual plaintiffs were left standing. In each case the trial court’s order dismissing the class action aspects of the action contains a special finding pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)) that “there is no just reason to delay enforcement or appeal.” Such a finding renders final judgments as to fewer than all of the parties appealable. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) An order which is not final is not appealable under Rule 304(a) notwithstanding the inclusion of the special finding. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 344 N.E.2d 461.) Prior to the end of the litigation one may appeal from an order which is not final only under the interlocutory appeal provisions of the Supreme Court Rules. (Ill. Const. 1970, art. VI, §6; see e.g., Ill. Rev. Stat. 1979, ch. 110A, pars. 307, 308.) Since the appeals here were not taken under the interlocutory appeal provisions of the Supreme Court Rules, we have no jurisdiction to hear the plaintiffs’ appeals unless the trial courts’ orders were final. Thus, the threshold issue of this appeal is whether an order dismissing the class action aspects of a complaint is a final order.

A final order or judgment is one which terminates the litigation on the merits and disposes of the rights of the parties either on the entire controversy or on some definite part (Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 403 N.E.2d 1260), so that if affirmed the trial court has only to proceed with execution of judgment (Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 393 N.E.2d 712). To be final an order must terminate the litigation once and for all and be the law’s last word on the matter. (La Vida, Inc. v. Robbins (1961), 33 Ill. App. 2d 243, 178 N.E.2d 412.) An order which leaves the cause still pending and undecided is not final. People v. Fisher (1929), 335 Ill. 406, 167 N.E. 59; La Vida, Inc. v. Robbins.

Until the recent United States Supreme Court opinion in Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 57 L. Ed. 2d 351, 98 S. Ct. 2454, there was a conflict in the Federal circuits over the issue of whether a trial court’s determination that an action may not be maintained as a class action is a final decision and therefore appealable as a matter of right. Prior to Livesay, several circuits had held that an order denying class certification was appealable as of right if the order was likely to sound the “death knell” of the litigation. (See, e.g., Hooley v. Red Carpet Corporation of America (9th Cir. 1977), 549 F.2d 643; Ott v. Speedwriting Publishing Co. (6th Cir. 1975), 518 F.2d 1143; Gosa v. Securities Investment Co. (5th Cir. 1971), 449 F.2d 1330; Eisen v. Carlisle & Jacquelin (2d Cir. 1966), 370 F.2d 119, cert, denied (1967), 386 U.S. 1035, 18 L. Ed 2d 598, 87 S. Ct. 1487.) Under the death knell doctrine, an appeal could be had as of right where the individual plaintiff’s claim was so small that it would not be practical for him to proceed absent the incentive of possible group recovery. Other circuits have held that orders relative to class status are not final (see, e.g., King v. Kansas City Southern Industries, Inc. (7th Cir. 1973), 479 F.2d 1259; Hackett v. General Host Corp. (3d Cir. 1972), 455 F.2d 618, cert, denied (1972), 407 U.S. 925, 32 L. Ed. 2d 812, 92 S. Ct. 2460), and have heard appeals from such orders only pursuant to the Federal interlocutory appeals act (28 U.S.C. §1292; see, e.g., Susman v. Lincoln American Corp. (7th Cir. 1977), 561 F.2d 86; Lukenas v. Bryce’s Mountain Resort, Inc. (4th Cir. 1976), 538 F.2d 594).

In settling the conflict among the circuits the court in Livesay held that an order which determines whether an action can be brought as a class action is not final for purposes of appeal (28 U.S.C. §1291) because such an order does not terminate the litigation since the individual plaintiff’s action is still pending. Further, under the Federal rules an order involving class status may be “altered or amended before the decision on the merits” (Fed. R. Civ. P. 23(c)(1)) and therefore such an order is “inherently tentative” (Livesay, 437 U.S. 463,469,57 L. Ed. 2d 351,358,98 S. Ct. 2454, 2458). The court rejected the death knell doctrine stating, “the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a ‘final decision’ • 0 (Livesay, 437 U.S. 463, 477, 57 L. Ed. 2d 351, 363, 98 S. Ct. 2454, 2462.) According to the Livesay decision, prior to the termination of the litigation appeals from orders granting or denying class status may be had only under the interlocutory appeals act (28 U.S.C. §1292), which was enacted “to meet the recognized need for prompt review of certain nonfinal orders.” Livesay, 437 U.S. 463, 474, 57 L. Ed. 2d 351, 361, 98 S. Ct. 2454, 2461.

Recognizing that the Illinois rule concerning interlocutory appeal and our class action statute are patterned after the Federal law, the court in Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App. 3d 1071, 398 N.E.2d 1228, held that an order denying class certification is not a final order. The Petruchius court reasoned that since orders concerning whether an action may be maintained as a class action may be conditional and may be amended it could not be said, even as to the unnamed members of the class, that the order terminated the litigation between the parties so that, if affirmed, the trial court would have only to proceed with the execution of judgment.

In Livesay, the order appealed from was one decertifying the class. In Petruchius, the trial court had denied class certification. Here, the trial court dismissed the class action aspects of the complaint. We believe that the reasoning and holdings of the Livesay and Petruchius decisions are applicable to any order which determines whether an action can be brought as a class action. Under section 57.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.3) any such order may be conditional and may be amended and therefore any such order is by definition, tentative. Further, whichever type of order is utilized by the trial court in determining whether the action may be brought as a class action, the individual plaintiffs retain their rights to proceed in their own behalfs. Whether the order appealed from is the decertification of the class, denial of class certification, or dismissal of the class action allegations of the complaint, the order is not final and may be appealed from prior to the termination of the litigation only under the interlocutory appeal provisions of the Supreme Court Rules.

In Hayna v. Arby’s Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174, the court held that an order dismissing the class action aspects of a complaint is final. For the reasons stated we reach a contrary conclusion.

The orders appealed from are not final, and accordingly the appeals are dismissed.

JOHNSON and LINN, JJ., concur.

       The State courts also have differed on whether an order granting or denying class status is final. Such orders have been held to be final in Arizona, California, North Dakota, Ohio and Pennsylvania. Alabama, Colorado, Indiana, and Missouri courts have held that they are interlocutory and thus not appealable as of right. State court decisions on this issue are collected in an annotation, 54 A.L.R.3d 595 (1974), “Appealability of Order Denying Right to Proceed in Form of Class Action — State cases.”

       Supreme Court Rule 308(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 308(a)), provides in part: “When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. * ° °. The Appellate Court may thereupon in its discretion allow an appeal from the order.” Section 1292(b) of the interlocutory appeals act (28 U.S.C. § 1292(b)) provides: “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order.” Section 57.3 of our Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.3) provides in part: “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class. This order may be conditional and may be amended before a decision on the merits.” Federal Rule 23(c) (1) (Fed. R. Civ. P. 23(c) (1)) provides in part that an order involving class status may be “altered or amended before the decision on the merits.”

       That it is sometimes desirable to allow interlocutory review of preliminary orders affecting class status was recognized in Frank v. Teachers Insurance ir Annuity Association of America (1978), 71 Ill. 2d 583, 376 N.E.2d 1377. The supreme court suggested the utilization of Rule 308 where early review is sought.


author: Mr. JUSTICE LINN

text:
    ANITA ELIZONDO, Plaintiff-Appellee, v. ELUTERIO MEDINA, Defendant-Appellant.
    First District (4th Division)
    No. 80-2427
    Opinion filed October 1, 1981.

      Manuel Reyes, of Reyes, Lopez, Villalobos and Velarde, of Chicago, for appellant.
    Gary W. Swenson, of Chicago, for appellee.
   Mr. JUSTICE LINN

delivered the opinion of the court:

Defendant appeals from an order denying his post-trial motion to set aside a judgment for plaintiff in a forcible entry and detainer action involving commercial premises. The court awarded plaintiff possession, $800 rent and costs.

On appeal, defendant contends (1) there was a fatal variance between the pleadings and the proof since plaintiff originally sought $900 in damages for rent; (2) the statutory 5-day notice (111. Rev. Stat. 1979, ch. 80, par. 8) was invalid because it demanded more money ($900) than the landlord was entitled to receive; (3) the trial court erred in denying his motion for a new trial when he offered to prove, by a receipt, that he had paid the May rent; and (4) the trial court erred in denying defendant relief from the forfeiture of the lease.

We affirm.

Background Facts

Anita Elizondo, plaintiff, testified she gave defendant, Eluterio Medina, a document she identified in court as a 5-day notice; it was received in evidence. The notice stated in part:

“You are hereby notified that there is now due the undersigned landlord the sum of $900 being rent for the premises situated in the Chicago, County of Cook, and State of Illinois, described as follows, to wit: Store located at 3633 West 26th Street, together with all buildings, sheds, closets, out-buildings, garages and barns used in connection with said premises.
And you are further notified that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the expiration of 5 days after service of this notice your lease of said premises will be terminated July 10th, 1980.
No-one is hereby authorized to receive said rent so due, for the undersigned.
Dated this 5th day of July, 1980.”

The document, which is signed by plaintiff and her attorney, and notarized, contains an affidavit of service that plaintiff served the notice on defendant on July 5, 1980, by delivering a copy to him. While defendant owed rent for June, defendant did not submit $900 to her by July 10 as required by the notice; but defendant did submit a check for $400 which she refused to accept. On cross-examination, she testified no one else was authorized to receive the rent including her husband.

Defendant testified he has paid the rent for May, June and July. Defendant attempted to offer into evidence a check in the amount of $400, showing payment of May rent, but its admission was refused. Defendant also claimed he paid the June rent, $150 in cash and a check for $250. Another check for $250 was offered in evidence, but refused. On July 1, defendant claimed he gave plaintiff a money order for $400, but she refused it. Defendant also claimed plaintiff consistently refused to give receipts for the rent. Defendant testified that he was a tenant under a written lease, had occupied the premises since May 1,1976, and there was a 3-year option to renew under the same terms and conditions.

The trial court found from the evidence presented that there was inadequate evidence of payment of the money due for June and that there was a tender of a portion of the monies due; but the trial court concluded this did not satisfy the 5-day notice; therefore, the tender was insufficient. Because there was a question of the adequacy of the proof since the $100 still due for May was tied in with a previous court case, the court found judgment for rent should be in the sum of $800, rather than $900 specified in the notice.

Defendant filed a written motion for a new trial stating that contrary to plaintiff’s testimony that she had not received a certain money order, defendant had obtained the money order and would present it in court. At the hearing on this motion, plaintiff stated that the check related to the May rent. At this hearing, defendant’s counsel admitted defendant owed rent money for June and July, but argued that he still had 9 months remaining on a written lease, and the lease should not be forfeited. On August 28, 1980, in denying the motion, the court stayed the judgment during appeal and ordered defendant to deposit with plaintiff’s attorney all monies due and owing and pay all the monthly rent that might become due during pendency of the appeal.

Defendant first contends he was prejudiced because the 5-day notice required a tender of $900 and the trial court found only $800 was due. In our opinion, the trial court correctly found that the tender of $400 when $800 was due was an insufficient tender by defendant. It is well settled that the defendant must pay the entire amount due to escape the effect of the 5-day notice. (Compare Chapman v. Woolsey (1955), 4 Ill. App. 2d 261, 124 N.E.2d 366.) Similarly, defendant’s argument that the 5-day notice was invalid because it demanded more money than plaintiff was entitled to receive is without merit since defendant, having tendered only $400, cannot claim prejudice. Chapman v. Woolsey (1955), 4 Ill. App. 2d 261, 265, 124 N.E.2d 366; Lehndorff USA Limited v. Cousins Club, Inc. (1976), 40 Ill. App. 3d 875, 879-80, 353 N.E.2d 171.

We also conclude defendant was not entitled to a new trial when he presented additional evidence that he had paid the May rent since the trial court did not include any May rent in its judgment. The trial court’s findings made clear that its decision was based on the absence of payment of the June rent and plaintiff’s refusal of the tender of the July rent; it was not based on whether or not the May rent was paid.

We also conclude the judgment is not contrary to the manifest weight of the evidence. The record clearly establishes the defendant’s receipt of the 5-day notice and his failure to comply with its provisions. Therefore, the landlord had the right to terminate the lease when the tenant failed to make the payment within the time provided and he was also entitled to the rent for June and July. Elizondo v. Perez (1976), 42 Ill. App. 3d 313, 314, 356 N.E.2d 112.

Defendant’s final contention is that the trial court should have prevented a forfeiture of the lease. Defendant contends his failure to pay was not willful. Although the right to forfeiture may be waived (Okey, Inc. v. American National Bank (1981), 96 Ill. App. 3d 987, 422 N.E.2d 221), it appears that the landlord’s compliance with the statute under the circumstances is inconsistent with a waiver. In Elizondo v. Perez (1976), 42 Ill. App. 3d 313, 356 N.E.2d 112, where the tenant had a $5,000 security deposit, the court found that it would be inequitable to nullify the plain wording of the lease and place the landlord at the mercy of a tenant who clearly flouted the provisions of his lease without legal excuse. (42 Ill. App. 3d 313, 315.) Although counsel for both parties referred to a 5-year written lease beginning on May 1,1976, neither party offered the lease in evidence. Whether the defendant deliberately failed to pay the June rent presented a question of fact. Under the circumstances here, we have found that plaintiff properly terminated the lease based on defendant’s failure to pay the rent. Therefore, we cannot say that this record contains any circumstances that suggest defendant is entitled to the equitable relief from forfeiture of the lease.

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

Affirmed.

ROMITI, P. J., and JOHNSON, J„ concur.