text:
    RONALD STEPHEN HANSELL, Plaintiff-Appellant, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellee.
    Fourth District
    No. 4—82—0671
    Opinion filed April 6, 1983.
    — Rehearing denied May 4, 1983.
    Ronald Stephen Hansell, of Indianapolis, Indiana, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On July 17, 1980, plaintiff, Ronald Stephen Hansell, applied to defendant, Illinois Department of Registration and Education, pursuant to section 9(1) of the Illinois Professional Engineering Act (111. Rev. Stat. 1979, ch. Ill, par. 5112(1)). He was seeking to be registered as a professional engineer without having to take and pass a written examination. On November 12, 1980, after examining the credentials presented by plaintiff, the defendant, acting through its examining committee provided for by section 5 of the Act (111. Rev. Stat. 1979, ch. Ill, par. 5107), denied plaintiff’s request. The committee then reconsidered plaintiff’s request and again denied it, serving notice of its decision on plaintiff by a letter dated June 23,1981.

On July 16, 1981, plaintiff filed a complaint for review under the Administrative Review Act (111. Rev. Stat. 1979, ch. 110, par. 264 et seq.) in the circuit court of Sangamon County. On September 14, 1982, that court affirmed the decision of the Department. Plaintiff has appealed. Throughout the proceedings he has appeared pro se. We affirm.

After the complaint for administrative review was filed in the circuit court and without remandment from that court to the Department, the latter proceeded to hold a formal hearing. Plaintiff appeared at that hearing and presented testimony. He now claims that the transcript of that hearing is improperly before this court. We need not decide whether there is merit to plaintiff’s contention. The documents before the examining committee of the Department prior to the filing of the case in the circuit court are ample to set forth the essence of the dispute between the parties and to support the Department’s decision.

Plaintiff’s claim of a right to be registered without examination is based on subsections (1) and (2) of section 9 of the Illinois Professional Engineering Act, which state:

“(1) A person holding an unexpired certificate of registration to practice engineering, issued by the proper authority of a state, territory or possession of the United States, the District of Columbia or any foreign country, which is based on qualifications comparable to those of this State may, upon application, be registered without further examination; or
(2) A graduate of an approved engineering curriculum of at least 4 years who submits evidence of an additional 4 years or more of experience in engineering work of a grade and character which indicates that he may be competent to practice engineering, shall be admitted to a nominal 8 hour written examination in the fundamentals of engineering, and a nominal 8 hour written examination in the principles and practice of engineering. Upon passing both examinations, the applicant shall be granted a certificate of registration to practice professional engineering in this State, if he is otherwise qualified ***.” 111. Rev. Stat. 1981, ch. Ill, par. 5112(1), (2).

Plaintiff maintained that he was entitled to be registered without sitting for examination because of his registration in Ohio on February 25, 1976, Indiana on April 29, 1976, and Kentucky on March 30, 1978. The only State in which he sat for an examination was Ohio. His other two registrations were based upon his passage of the Ohio examination and registration in that State. Accordingly, if the Ohio requirements were not “comparable” to those of Illinois, the requirements of Indiana and Kentucky would not be comparable unless there was some requirement in those States which raised the totality of the requirements for those States to the requirements for Illinois as set forth in section 9(2) of the Act. No such requirements have been called to our attention.

The question of whether Ohio’s qualifications for registration are comparable to those in Illinois depends upon interpretation of the first portion of section 9(2) which states:

“A graduate of an approved engineering curriculum of at least 4 years who submits evidence of an additional 4 years or more of experience in engineering work of a grade and character which indicates that he may be competent to practice engineering ***.” (Emphasis added.) (HI. Rev. Stat. 1979, ch. Ill, par. 5112(2).)

The Department contends, and we agree, that the section intends that the four years’ experience required must be obtained after the applicant receives a college degree. The use of the word “additional” gives some indication that the experience must be obtained after the degree has been obtained. Moreover, until the applicant obtains the degree, he would not be likely to be in a position to do “engineering work of a grade and character which indicates that he may be competent to practice engineering.” HI. Rev. Stat. 1979, ch. Ill, par. 5112(2).

Section 9(2) clearly requires that the stated four years of experience be acquired before sitting for the examination.

The evidence showed that plaintiff worked from sometime in February 1970 until sometime in September 1970 as an engineering assistant for the State of Indiana prior to obtaining his baccalaureate degree. After obtaining his degree in 1972 he had, at the most, 43 months of engineering experience required by Illinois when he took the Ohio examination. As he would have had to have 48 months of this experience before taking the Illinois examination, the determination by the Department that the Ohio requirements were not comparable to those in Illinois was not contrary to the manifest weight of the evidence. "

The Department calls our attention to the following: (1) Section 9(1) states that an applicant who has been registered in another State with comparable requirements to those of this State “may” (emphasis added) be “registered without further examination”; (2) section 9(1) is not reciprocal legislation providing for registration for those who have registered in another State if that State grants the same rights to those registering in Illinois, and (3) the requirement that an applicant wishing to register sit for an examination is not an onerous requirement. Accordingly, the Department maintains that registration by persons in plaintiff’s position is a matter of grace and not of right. (See Bloom v. Missouri Board for Architects, Professional Engineers & Land Surveyors (Mo. App. 1971), 474 S.W.2d 861, 865.) As we have decided plaintiff does not qualify under section 9(1), we need not decide whether registration without examination by a qualified applicant is a matter of choice or one of right. We do recognize that our decision is a somewhat technical one. However, because of the lack of reciprocity involved, and because the requirement that plaintiff sit for the Illinois examination is not an undue burden, we see no reason to make a liberal interpretation of section 9(1).

Plaintiff maintains the circuit court failed to comply with section 12(3) of the then Administrative Review Act (111. Rev. Stat. 1979, ch. 110, par. 275(3)), now section 3 — 111(c) of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 3 — 111(c)), which states:

“On motion of either party, the trial court shall make findings of fact or state the propositions of law upon which its judgment is based.”

Plaintiff requested the trial court make such findings of fact and state such propositions of law. The circuit court’s final order from which the appeal was taken stated:

“The Court finds that the decision of Defendant is not contrary to law nor the manifest weight of the evidence. Plaintiff by participating in the hearing of September 10, 1981 may not now object to the transcript being part of this record. The Defendant Board has discretionary powers and did not abuse them. Complaint for Administrative Review denied. Cause stricken.”

The above provision has not often been interpreted by courts of review. No court of review has reversed a circuit court for failure to comply. The circuit court found the administrative decision not to be contrary to the manifest weight of the evidence and stated the propositions of law upon which its judgment was based. No error occurred. See Norris v. Commission on Human Relations (1975), 26 Ill. App. 3d 528, 325 N.E.2d 818.

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

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    LEROY HADLEY et al., Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE FIREMEN’S PENSION FUND OF THE CITY OF BATAVIA et al., Defendants-Appellees.
    Second District
    No. 82—543
    Opinion filed March 29, 1983.

      Edward T. Graham, of Glen Ellyn, for appellants.
    LeRoy W. Gudgeon, of Northfield, and Ralph S. Beck, of Beck & Thompson, of Batavia, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal presents the question whether the members of an administrative agency, who dissent from its decision, have standing to challenge the decision by seeking judicial review under the Administrative Review Act (111. Rev. Stat. 1981, ch. 110, par. 264 et seq.).

Robert Hodge, chief of the Batavia fire department, applied for a duty-disability pension under section 4 — 110.1 of the Pension Code (111. Rev. Stat. 1981, ch. ÍOS1^, par. 4 — 110.1). After proper notice, the board held a hearing, received medical statements from the designated examining physicians and additional reports, and heard testimony. By a four-three vote, the board granted Hodge an occupational disease disability benefit fixed at 65% of his salary at the time he was to be removed from the payroll (March 6, 1982) based on the board’s finding that Hodge was unable to perform his duties “by reason of heart disease resulting (in part) from his service in the department.” Trustees Beckman and Hadley were two of three board members voting against the pension.

Hadley and Beckman, plaintiffs, thereafter filed a complaint in circuit court seeking administrative review of the board’s decision. Hadley and Beckman alleged, as material, that they were firemen, members of the board and contributors to the pension trust fund, that granting Hodge a pension was in violation of a provision of the Illinois Pension Code (111. Rev. Stat. 1981, ch. ÍOS1^, par. 4 — 110.1), and that their interests in the fund were adversely affected by wrongful disbursement of money from the fund. They further requested that the board produce a record of proceedings. Named as defendants were the city of Batavia, the board, the four majority members of the board, and Hodge.

Hodge did not answer but moved to dismiss the complaint, arguing that plaintiffs as trustees lacked standing to sue the board, that the complainants were not proper parties of record to the proceeding, and that they were not adversely affected by the board’s decision. Other named defendants joined in Hodge’s motion to dismiss.

Without having a record of proceedings before it, the trial court granted the motion to dismiss, finding that the board “alone is charged with the duty of protecting and defending the funds”; and that plaintiffs as taxpayers, residents of the city of Batavia, or trustees were not proper parties to institute an action seeking reversal of the board’s decision. Plaintiffs appeal.

Since, before answering, the defendants moved to dismiss the complaint on the basis that plaintiffs lack standing to obtain administrative review, we are in the position of not having the record of the administrative agency before us. As a general rule, where a complainant’s status as a party of record is raised, the court cannot determine that question absent the record. (See Pisano v. Giordano (1982), 106 Ill. App. 3d 138, 140-41.) It appears, however, that the particular question before this court can be decided without the transcript of proceedings since it is apparent from the pleadings that the plaintiffs were present at the hearing before the administrative agency in their official capacity as trustees.

The plaintiffs argue that they were parties of record as members of the board and that the Administrative Review Act does not further condition their right to appeal except to require that they be parties. They also argue that they were adversely affected by the decision of the administrative agency, individually, as members of the pension fund and as taxpayers and, thus, that they had a sufficient interest to permit them to appeal.

The right to review an administrative decision is limited to parties of record before the agency whose rights, duties or privileges have been adversely affected by the decision. (Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 486.) In Speck, the Illinois Supreme Court held that a zoning board of appeals was not a “party” authorized to appeal the reversal of its decision by the circuit court because its duties as the board of appeals under the Chicago zoning ordinance empowered it to conduct hearings and to render decisions, thus giving it an adjudicatory or quasi-judicial capacity. The court also noted that the board was not expressly empowered under the ordinance to act as advocate for the purpose of prosecuting appeals. 89 Ill. 2d 482, 485.

The plaintiffs argue that the Pension Code, unlike the zoning ordinance in Speck, does give them the right to appeal.

It is true, as Speck indicates, that a substantive statute, such as the pension code, could provide that persons who were not parties to the administrative proceeding may be allowed to appeal. (See, e.g., 111. Rev. Stat. 1981, ch. 24, par. 11 — 13—1 et seq., providing that under the Zoning Act property owners entitled to notice but not served may appeal.) We are not persuaded, however, that the Pension Code provides a basis for the plaintiffs to appeal the administrative decision. The provision of the Pension Code which plaintiffs rely upon is that giving the board the power and duty “to control and manage the pension fund.” (111. Rev. Stat. 1981, ch. ÍOS^, par. 4 — 123.) This, they claim, allows dissenting members of the board to prosecute appeals. We cannot agree. First, the. duties under the Pension Code are stated as those of the board, not of the individual members. (111. Rev. Stat. 1981, ch. lOSVa, par. 4 — 122.) This is in keeping with the usual rule that members of an administrative board are powerless to act except as a board. (Hotchkiss v. City of Calumet City (1941), 377 Ill. 615, 620-21.) Further, nowhere in the Pension Code do we find an express authorization of appeals by individual members of the pension board; and we are not persuaded that the language which gives the board certain powers and duties can be stretched to authorize individual members of the board to seek review of the administrative decision of the board as a whole.

We also do not agree with the further argument of plaintiffs that section 8 of the Administrative Review Act additionally gives the board members the right to seek administrative review. The section states, “the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceeding before the administrative agency shall be made defendants.” (Plaintiffs’ emphasis.) (111. Rev. Stat. 1981, ch. 110, par. 271.) The provision that parties of record before the administrative agency may sue as plaintiffs and need not sue themselves as defendants does not assist us in determining whether the individual board members can sue as plaintiffs.

The argument of the plaintiffs, that since the Administrative Review Act gives parties a right to appeal and does not specifically exclude members of the board we should not go beyond the language of the statute, ignores established case law. Absent a provision in the substantive law, the Administrative Review Act requires that the parties also have an adverse interest, that is, that their rights, duties or privileges have been adversely affected by the decision. (See, e.g., Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 486.) Plaintiffs are members of a board which exercises quasi-judicial powers to hear and decide (cf. Eddy v. People ex rel. Welter (1905), 218 Ill. 611, 616; see also 111. Rev. Stat. 1981, ch. ÍOB^, par. 4 — 125); the decision of the board is judicial also in the sense that the board cannot be said to represent one party as against another. Cf. Inter-State Water Co. v. City of Danville (1942), 379 Ill. 41, 51.

The prevailing view under State administrative procedure acts is that dissenting members of an agency which is quasi-judicial in nature have no standing to challenge in court the final decisions of the agency. (See generally, Davis, Standing of a Public Official to Challenge Agency Decisions: A Unique Problem of State Administrative Law, 16 Admin. L. Rev. 163 (1964); see, e.g., Cohen v. Board of Selectmen (Me. 1977), 376 A.2d 853, 855-56; McTaggart v. Public Service Com. (1975), 168 Mont. 155, 158, 541 P.2d 778, 780; State ex rel. Basista v. Melcher (1963), 118 Ohio App. 37, 47, 188 N.E.2d 293, 299; see also Iowa Department of Revenue v. Iowa State Board of Tax Review (Iowa 1978), 267 N.W.2d 675, 678-79.) Thus the plaintiffs, acting as constituent members of the administrative agency, who served as fact finders on the board, were not parties of record appearing before the board, but were themselves part of the decision-making process. Since the only interest the plaintiffs could be said to have in the proceeding is to decide the application fairly and impartially, it cannot be said that the board members are aggrieved by the decision any more than is the board which itself is not a “party.” See Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 486.

Plaintiffs rely on Quinn v. Retirement Board of Firemen’s Annuity and Benefit Fund (1972), 7 Ill. App. 3d 791. In Quinn the retirement board heard an administrative review claim brought by Quinn, who was the fire commissioner of the city, to accept his payment to the fund so that his pension would be based upon his actual salary as commissioner rather than on his civil service grade. The eight-member board of trustees by a four-to-four vote refused to accept the payment. The trial court reversed that decision and directed the board to accept payment from Quinn. The four members of the board who voted against accepting Quinn’s payment then prosecuted an appeal to the appellate court. That court, in permitting the appeal over a question raised as to the standing of the four members of the board, recognized that members of an administrative board are powerless to act except as a board and that to appeal from an adverse decision one must have some special personal interest directly and materially affected by that adverse decision. (7 Ill. App. 3d 791, 796.) The reviewing court concluded that, since a majority vote was necessary to obtain any action by the board, the four votes cast by the appellants to reject plaintiff’s petition for relief became the decision of the board; and that since that decision was reversed by the order of the circuit court it would not be in the interest of justice to foreclose them from obtaining review of the order, citing Nott v. Wolff (1960), 18 Ill. 2d 362. We do not believe that Quinn is controlling as there the final administrative decision was that of the four members who were appealing from the circuit court; and they were seeking to uphold, not overturn, a decision of the board.

The plaintiffs have also argued that, as individuals, they have an adverse interest in their individual capacity as firemen represented on the board and as taxpayers. While we do not have a record before us from which it could appear that they were parties in that capacity, it is obvious that they were only participating in the administrative proceedings as members of the board acting in its quasi-judicial capacity. The fact that they may have had some other interest apart from being members of the board would only suggest that they should not then have been sitting as members of the board who are required to make impartial findings. Accord, Cohen v. Board of Selectmen (Me. 1977), 376 A.2d 853, 855; McTaggart v. Public Service Com. (1975), 168 Mont. 155, 158, 541 P.2d 778, 780.

The plaintiffs further argue that, unless they are allowed to chailenge this decision allowing a claim against the pension fund which they deem improper, they will be deprived of any remedy. As we have noted, plaintiffs have only made the general conclusion that they will be damaged. There has been no showing that the fact the applicant will receive a pension affects the present pension being received by the plaintiff Beckman nor the pension which may be received by Hadley when he retires. In any event, however, if the claim of the applicant could be said to deplete the fund, as to which there is no evidence, the city of Batavia, which was a party, could have adequately safeguarded the plaintiffs’ interests if there were a necessity to appeal. (See Peterson v. Board of Trustees (1971), 5 Ill. App. 3d 180, 183, aff'd (1973), 54 Ill. 2d 260.) Accordingly; the judgment is affirmed.

Judgment affirmed.

REINHARD and HOPE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    SANTA FE LAND IMPROVEMENT COMPANY, Plaintiff-Appellant, v. THE ILLINOIS PROPERTY TAX APPEAL BOARD OF THE DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS et al., Defendants-Appellees.
    Third District
    No. 82—258
    Opinion filed April 8, 1983.

      Ellen Lubarsky, of Chicago, and William T. Kaplan, of Thomas, Wallace, Feehan and Baron, Ltd., of Joliet, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee Will County Board of Review.
    Tyrone C. Fahner, Attorney General, of Chicago (Georgene M. Wilson, Assistant Attorney General, of counsel), for appellee Illinois Property Tax Appeal Board.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Santa Fe Land Improvement Company filed a complaint for administrative review of an adverse decision of defendant Illinois Property Tax Appeal Board of the Department of Local Government Affairs (hereinafter the Board). After a hearing on the merits, the circuit court of Will County affirmed the Board’s decision.

The facts from which this litigation arises are uncontroverted. Approximately 20 years ago, plaintiff acquired a tract of land in Du Page and Will counties from Chancellor Western Oil and Development Company, an affiliate under Santa Fe Industry’s holding company structure. In 1965, utilities were constructed and underwritten by Chancellor Western. The utilities, operated by Citizens Utilities Company, include industrial capacity water and sewer lines. Plaintiff also constructed several roads on the property, and Santa Fe Railway constructed a railroad spur line. The tract has been zoned industrial, and industrial park sites are marketed.

For at least 20 years, the tract has been farmed. Doane Agricultural Service manages the “Santa Fe Farms,” and its agent testified that all tillable land, approximately 1,000 acres, is currently being so utilized. Corn, soybeans, and wheat are grown by three tenants under crop share leases. The leases have annual terms and contain provisions for the purchase of crops and conversion of the leaseholds to industrial use. Farm buildings, including farm residences, are the only buildings on those portions of the tract which have not been sold as industrial sites.

. On February 17, 1978, plaintiff submitted to the Will County supervisor of assessments an application for the property in question to be valued under section 20a — 1 of the Revenue Act of 1939 (hereafter the Act) (111. Rev. Stat. 1975, ch. 120, par. 501a — 1) as real property used for agricultural purposes. The supervisor assessed the land at $500 per acre, but the Du Page Township assessor did not agree. On July 17, 1979, defendant Will County Board of Review supported the assessor’s valuation of $1,000 per acre, and plaintiff thereafter paid its taxes and filed exceptions. On June 6, 1980, the Board reversed the board of review and reinstated the supervisor’s assessment. Three days later, without notice or further hearing, the Board rendered the amended decision which is the subject of this appeal. The amended decision was identical to the original except for the concluding segment of its last sentence: “[T]he recommendations made by the township assessor and confirmed by the board of review are proper adjustments for this land.” At issue is whether the land in question is used for farming. Assessments for years prior to 1978 are based on farm use valuation and are not disputed.

More precisely delineating the issue at bar is complicated by the existence of two assessment methods. As was recently noted in Isenstein v. Rosewell (1982), 108 Ill. App. 3d 1082, 1084, 440 N.E.2d 651, 653:

“The instant controversy essentially stems from the existence of two statutory methods of assessment and taxation of farmlands. The first, effective since 1971, is the dual valuation method which permits the ‘rollback’ or recapture of taxes for prior years in the event of a change in the agricultural use of the property. (111. Rev. Stat. 1981, ch. 120, pars. 501a — 1 through 501a — 3.)1 The second method, approved by the General Assembly on August 16, 1977, establishes a different procedure for fixing the assessed valuation of farmland but does not provide for a rollback of the taxes for prior years in the event of a change in the agricultural use of the property. (111. Rev. Stat. 1981, ch. 120, par. 501e.)2
1. See Hoffman v. Clark (1977), 69 Ill. 2d 402, 372 N.E.2d 74, which held that this statutory scheme was not unconstitutional.
2. See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204, which upheld the constitutionality of this statute and held that the owner of a farm is automatically eligible for assessment under its provisions.”

As previously mentioned, plaintiff applied for the first valuation method. Eligibility requires, inter alia, that property be “devoted primarily to the raising and harvesting of crops.” (111. Rev. Stat. 1975, ch. 120, par. 501 — 1.) Defendants contend that plaintiff’s property must be evaluated under the second method. Eligibility for this method requires, inter alia, that property be “used solely for the growing and harvesting of crops.” (111. Rev. Stat. 1977, ch. 120, par. 482(25).) Plaintiff responds that its lands would be eligible under this more restrictive standard as well. We therefore consider whether the property in question is used solely for the growing and harvesting of crops.

No party at any stage of these proceedings has disputed the fact the property in question was farmed in 1978. No party at any point has disputed the fact that the farm leases governing the property were in force and in effect in 1978. Defendants rather argue that the similarly undisputed facts that the property can be used for industrial development sites, that plaintiff intends to so use the property, and that the leases are prepared to facilitate such use compel the conclusion that the land is not used solely for the growing and harvesting of crops. The Board found these latter facts required assessment of the property “in a transition period.”

Under either method of valuation, it is the use of real property which determines whether it is to be assessed at an agricultural valuation. The statutory sections do not speak of possible alternative uses nor intended future uses. That the scheme of taxation is based on present use is well-illustrated by the recapture provision of section 20a — 3 of the Act (111. Rev. Stat. 1975, ch. 120, par. 501a — 3). When property ceases to be used for agriculture purposes, an additional tax must be paid as if the property has been assessed at its fair market value for the preceding three years. The differential is thus based on the increased value of the land stemming from the nonagricultural use. If the legislature had intended for a “transitional” valuation, such as the one at bar, to be effected, it could have so provided in lieu of the recapture. We therefore conclude that the present use of land determines whether it receives an agricultural or nonagricultural valuation. This being the case, the lands in question which in 1978 were farmed and had not been sold as industrial development sites were used solely for the growing and harvesting of crops. In so holding, we recognize that lands which were not farmed in 1978 and which were improved primarily to serve industrial landowners may appropriately be valued on a nonagricultural basis.

As we have concluded the property in question was used solely for the growing and harvesting of crops, it follows that it also was devoted primarily to the raising and harvesting of crops. It is thus unnecessary for us to determine which statutory method of assessment and taxation is here applicable. If defendants persist in their position that only section 20e of the Act (111. Rev. Stat. 1977, ch. 120, par. 501e) is here applicable, plaintiff’s acquiescence would not be a surprising consequence.

Where facts are not in dispute, their legal effect becomes a matter of law and the rule as to the power of the court to set aside a decision only when against the manifest weight of the evidence has no application, and upon questions of law the court is not bound by the decision of an administrative agency. (Accord, Kensington Steel Corp. v. Industrial Com. (1944), 385 Ill. 504, 53 N.E.2d 395.) Accordingly, the judgment of the circuit court of Will County is reversed and this cause is remanded for further proceedings consistent with the views herein.

Reversed and remanded.

ALLOY and BARRY, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    GEORGE E. DEEM et al., Plaintiffs-Appellants, v. LYLE CHEESEMAN et al., Defendants-Appellees.
    Second District
    No. 82—526
    Opinion filed March 8, 1983.

      Ronald F. Coplan, of Morrison, for appellants.
    Robert L. Morris and Edward J. Mitchell, both of Lanark, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, George E. Deem and Helen E. Deem, brought an action against the defendants, Lyle Cheeseman and Shirley Cheese-man, seeking recognition of an easement by implication and an injunction restraining the defendants from interfering with use of the easement.

The easement sought crossed land owned by the defendants. Following a bench trial, the circuit court of Carroll County denied the plaintiffs relief, and they appealed. The issue presented is whether the trial court erred in failing to recognize an easement across the defendants’ land to be used by the plaintiffs for ingress to and egress from the plaintiffs’ property.

The Deems owned a five-acre tract of land located in Elkhorn Grove Township in Carroll County. The land is partially covered with timber and is the site of a cabin used for recreational purposes. The land to the south and west of the plaintiffs’ property belongs to the Cheesemans. The land bordering the plaintiffs’ property to the north and east is owned by Bowles (formerly owned by Sword), and the land directly west of the Bowles/Sword property belongs to Deets. The Deets property is bounded on the west by a public township road (hereinafter “township road”) running north-south. That road also abuts the defendants’ property south of the Deets property. An unimproved roadway (hereinafter “quarry road”) runs easterly from the township road cross the Deets and Bowles/Sword property to a point north of the plaintiffs’ land and turns south onto the plaintiffs’ land, where it intersects an east-west creek. The creek runs through the far northern portion of the plaintiffs’ land and continues westerly, running south of the quarry road and roughly parallel to it, intersecting the township road at a point about 1,000 feet west of the plaintiffs’ property. The following rough diagram shows the relative positions of the creek, roads, and lands involved.

The plaintiffs’ five-acre tract and the defendants’ land were part of a common parcel acquired from the United States Government by Daniel Stormer by a patent deed dated March 1, 1846. Besides the government, Stormer was the only common owner of the lands. He conveyed 10 acres of his 80-acre parcel, including what is now the plaintiffs’ property, to Fletcher Hutton by deed dated May 19, 1854. The plaintiffs purchased their property from John and Isabella Persona, through an installment contract dated August 9, 1968, took possession of the land, and received the deed in 1976. Persona’s immediate predecessor in title was Hutchinson.

With few exceptions access to the plaintiffs’ property has been by way of the quarry road across the Deets and Bowles/Sword property. Mrs. Sword and Mrs. Deets gave the plaintiffs oral permission to traverse their land, and the plaintiffs have a key to the gate between the Deets and Bowles/Sword property. Mrs. Deets is willing to provide the plaintiffs with a written easement. The plaintiffs have not communicated with Bowles about this access. When the plaintiffs bought their property, a rock quarry serviced by the quarry road was open and the road was regularly used and maintained by quarry employees, but the quarry is no longer operating, having closed 10-12 years ago. The quarry road has a one-foot-thick gravel base but has deteriorated and is now grassed over. The plaintiffs describe it as being located across low-lying ground in a flood plain subject to overflow. The plaintiffs have used the quarry road for access to their property during the full extent of their possession, with one exception. In 1973, they crossed a mowed path on the defendants’ property when the creek washed out, but that path is no longer there. Prior owners Persona and Hutchinson also used the quarry road for access to the five acres. The only exceptions in evidence were Persona’s uses of the defendants’ property, with their permission, in particular circumstances (e.g., when other access blocked by fallen tree, when creek rose too fast, and for passage of heavy trucks to dig a well and build a garage).

At the point where the quarry road meets the creek, the creek is 12 feet wide and about six inches deep, but the depth of the water varies. When flooded, the creek is impassable. About four years ago the plaintiffs had about 100 tons of rock dumped in the creek to fill it in, but that rock has since been washed away. Persona built a wooden ford across the creek when he owned the land, but the ford rotted. There was evidence that a floating plank bridge could be built at a cost of about $3,000. The bridge on the township road across the same creek, of similar terrain at that point, cost approximately $68,000 to construct.

The defendants’ land is used for a general farming operation. The field to the west of the plaintiffs’ tract, across which the plaintiffs claim an easement, is rotated for crops and used to pasture a dairy herd. It has two deep ravines and a 6% to 9% northerly slope. There was testimony that construction of a rock road across it would cost $75 to $100 per foot for about 1,000 to 1,200 feet and would require four to seven drainage tubes (28 to 30 feet wide) at a cost of $22 to $30 per foot.

The plaintiffs’ complaint seeking recognition and enforcement of an implied easement was filed on November 14, 1979. The defendants moved to dismiss the complaint, contending that the complaint was not specific enough and that, since there was no allegation that there was any physical evidence on the property to demonstrate the existence of such an easement, the action was barred by Illinois’ 40-year statute of limitation. The court granted the motion to strike and allowed the plaintiffs to amend their complaint to describe the alleged easement with more specificity. The plaintiffs filed an amended complaint, alleging that the easement lay to the west of the plaintiffs’ property.

Following the hearing, the trial court denied the plaintiffs’ prayer for relief. In its memorandum opinion, it based its decision on findings that the plaintiffs had a reasonable access from their property to the public road and that there was no evidence of any easement that was obvious or meant to be permanent. The plaintiffs appealed.

The plaintiffs contend that they are entitled to an easement by implication across the defendants’ land for the purpose of ingress and egress. The defendants deny the existence of the alleged easement, arguing that there is no proof as to where on the property it was located or that it even existed at the time of separation of title.

The defendants raised the statute of limitation in their motion to dismiss. Section 1 of “An Act relating to claims to real estate” (111. Rev. Stat. 1979, ch. 83, par. 12.1), recodified as section 13 — 118 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 13 — 118) places a 40-year limitation on claims to establish an interest in real estate (except adverse possession), unless a statement describing the interest claimed has been filed with the recorder of deeds within 40 years after the claim arises. Section 3(c) (111. Rev. Stat. 1979, ch. 83, par. 12.3(c)) excepts “any easement or interest in the nature of an easement, or any rights granted, reserved or excepted by any instrument creating such easement or interest, the existence of which such easement or interest is apparent from or can be proved by physical evidence of its use, whether or not such physical evidences of its use are visible from the surface ***.” On appeal, the defendants suggest that the claimed easement, if it arose at all, arose too long ago (125 years before the action was filed) to be allowed. However, the defendants apparently abandoned their statute of limitations defense, as no further mention is made of it. The statute of limitations bar is an affirmative defense and may not be considered on appeal if not presented to the trial court or if waived. See Lawson v. Hill (1979), 77 Ill. App. 3d 835, 848.

The defendants also state that the defendants and their predecessors in title have held their property adversely to any right that the plaintiffs might have and in excess of 20 years, arguing that if an easement ever did exist it was destroyed by adverse possession. Although an easement by implication may be extinguished by adverse possession, the doctrine of adverse possession operates as a statute of limitation and therefore is an affirmative defense. It must be specifically pleaded, alleging the necessary and constituent elements of possession, or it is waived. Luthy v. Keehner (1980), 90 Ill. App. 3d 127, 132-33.

The essential elements for an easement by implication are well established. (1) There must be common ownership of the land followed by a separation of title. (2) Before the separation occurs, the use giving rise to the easement must have been long continued, obvious, or manifest, to a degree that shows permanency. (3) The use of the claimed easement must be necessary to the beneficial enjoyment of the land granted or retained. (Sheehan v. Sagona (1958), 13 Ill. 2d 341, 345.) However, the law does not require a showing of absolute necessity, and it is sufficient that the easement be reasonable, highly convenient, and beneficial. (People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 271.) Thus when one portion of an estate derives a benefit and advantage from another, of a permanent, open, and visible character, when that portion is severed, the grantee takes that portion with all the benefits and burdens that appear to belong to it (Gilbert v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 496, 499), and there arises by implication of law a grant of the right to continue such use even though such grant is not reserved or specified in the deed (People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 270). Whether an easement by implication was created must be determined as of the time of severance of title. Walker v. Witt (1954), 4 Ill. 2d 16, 20.

It is the burden of the party claiming an easement to show the facts necessary to create an easement by implication. (Rexroat v. Thorell (1982), 89 Ill. 2d 221, 229.) Thus the plaintiffs in the instant case must have established the requisite elements of an implied easement. The common ownership of the parcels and the subsequent severance are not disputed, although the defendants suggest that the common ownership was too remote in time to invoke an easement 125 years later. The conditions that the use exist at the time of separation of title and it be sufficiently important to the beneficial enjoyment of the land are at issue.

The plaintiffs candidly concede that, due to an obvious dearth of witnesses to the use of the land from 1846 to 1854,they are unable to prove that the common owner, Daniel Stormer, used what is now the defendants’ property to reach what is now the plaintiffs’ property or even that he ever was on the property or ever used it at all. Rather, they urge the court to infer that such a use existed. They argue that there are no natural barriers between the two tracts and that it is logical to conclude that Stormer approached the northeast portion of his land (now the plaintiffs’) through the rest of his own property (now the defendants’), rather than from the north through land belonging to others, particularly in view of the impediment presented by the creek. However, as the defendants note, the plaintiffs also have failed to offer evidence as to when the township road to the west of the defendants’ property was built, or what road system, if any, existed in 1854.' Without some indication as to why Stormer would have approached his land from the west, it could just as easily be surmised that his access was from the east and that he had to traverse what is now the plaintiffs’ five acres to get to what is now the defendant’s land, which is just the reverse of what is the plaintiffs propose. Thus, without more, the inference of use that the plaintiffs seek cannot be drawn. (See Swieton v. Landoch (1982), 106 Ill. App. 3d 292, 300 (implied easements cannot be raised upon meager facts or in the absence of facts).) However, proof of prior use is not required when the land presently could not be used, absent the easement, or could not be used without disproportionate effort and expense. (Miller v. Schmitz (1980), 80 Ill. App. 3d 911, 914.) This requires a determination of the third condition.

The third condition is that the use be sufficiently necessary to the beneficial enjoyment of the land. Where available alternatives exist that afford reasonable means of ingress and egress, easements by implication should not be sanctioned. (People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 270.) The plaintiffs argue that their alternative access to their five acres from the north is no longer feasible in that the quarry road has deteriorated, it crosses bottom land that is subject to flooding, it is not elevated for drainage to insure passage, and without a permanent bridge the creek is impassable at times. The plaintiffs further state that to improve and maintain the quarry road adequately, they would incur disproportionate expense. They note that the quarry road route traverses the lands of strangers and express concern about possible future problems concerning that access. The defendants argue that the quarry road access is adequate for the plaintiffs’ purposes, that the evidence shows the road to be passable year-round, and that there is no economic justification for recognizing an easement in that a road across the defendants’ property probably would cost more than maintaining the quarry road route. The defendants also note the potential for problems with their farming operation (e.g., livestock getting loose and being blocked from water supply) if an easement is exercised.

Miller v. Schmitz (1980), 80 Ill. App. 3d 911, upon which the plaintiffs heavily rely, is quite similar to the instant case. In Miller, the plaintiff’s land was bisected by a creek that separated it into a western parcel and an eastern parcel and was bordered on the west by a township road and on the east by the defendant’s land. The parties’ land had been owned by a common grantor, who divided the tract in 1874. There was no evidence concerning the common grant- or’s use of the property or his means, if any, of traversing the creek. It was established that the land was all farmland and had been farmed before 1900. The plaintiff’s predecessor in title who bought the plaintiff’s land from the common grantor had built a wooden bridge across the creek in order to reach the eastern parcel of his land, but the bridge was later destroyed. The court stated that, prior to the construction of the bridge and during the time of unity of ownership, it appeared that the portion of the land east of the creek would have been accessible only from the east, so an easement would have been created at the time of severance. The court noted that when an owner of land conveys a parcel thereof that has no reasonable outlet to the highway except over the remaining land of the grantor or over the land of strangers, an easement by implication exists, citing Walker v. Witt (1954), 4 Ill. 2d 16, 23, and also that an easement may lie dormant for an extended period of time while the owner of the dominant estate has permissive access to his land by other means, citing Finn v. Williams (1941), 376 Ill. 95, 99. The Miller court concluded that the element of necessity was present and upheld the easement by implication. In the case at bar, in light of the testimony that the quarry road was accessible year-round, and that the creek was passable except during infrequent flooding, and since there was evidence that improving and maintaining the current access would not be disproportionately expensive, the trial court’s finding that the plaintiffs have a viable alternative should not be disturbed. (See Neely v. Coffey (1979), 76 Ill. App. 3d 37, 41 (a trial court’s decision will not be disturbed unless it is against the manifest weight of the evidence).) This distinguishes the case from Miller, where a bridge was unquestionably necessary to traverse the creek (40 feet wide, six feet deep) and the cost to construct a bridge was quite high, but the easement provided access without necessitating substantial expenditures. As to whether there is a reasonable alternative access, not only have the plaintiffs failed to demonstrate the requisite degree of necessity as to the present use of the land, but they also have not shown the necessity for the use when the alleged easement would have arisen, in 1854.

However, the doctrines enunciated in Finn v. Williams (1941), 376 Ill. 95, which was relied on in the Miller case, are more in line with the present case. In Finn, our supreme court held that, where the plaintiffs’ land was entirely surrounded by property of strangers and the land from which it was originally severed (belonging to the defendant), a right-of-way easement of necessity was necessarily implied in the conveyance severing the two tracts and passed by mesne conveyances to the plaintiffs. The fact that the original grantee and his successors in interest were permitted ingress to and egress from their property over the surrounding land of strangers was deemed immaterial. The court further stated that, if there has at one time been unity of title, the right-of-way by necessity may lie dormant through several transfers of title and yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder thereof. (376 Ill. 95, 99.) However, it appears that the holder may only exercise the easement when necessary.

In Finn, the plaintiffs alleged that the common owner used the access they claimed as an easement, but the court did not address whether they proved such use. However, the finding that an easement existed seems to be based on the locked-in position of the parcel of land and its lack of other access except over the property of strangers. Thus, proof of such an easement could be accomplished by showing the position of the allegedly dominant tract relative to access to a public right-of-way. In the instant case, although it is agreed by both parties that the plaintiffs’ possible routes are over the lands of strangers or over land formerly owned in common, the plaintiffs have not shown that in 1854 these conditions existed. Again, they do not even address- the question of where the nearest public right-of-way was at that time. Furthermore, no evidence was offered showing the chain of title to the land to the north and east of the five-acre tract back to 1854. If, for example, the land had been owned by the purchaser of what is now the plaintiffs’ land and there had been an access through it to a public road, no easement of necessity would have arisen.

Even if the plaintiffs had sufficiently proved the landlocked nature of their property under Finn standards, Finn suggests that a dormant easement of necessity may not be reactivated absent a showing of present necessity as well. The plaintiffs argue that they have only a permissive use of the quarry road and are concerned that, if permission is later denied, they will have no way of approaching their property. If that did happen, it is also possible that the plaintiffs may have incurred substantial expense in supporting that route that may be compounded if they are then allowed to exercise the dormant easement, as was permitted in such circumstances in Finn. No Illinois case dealt squarely with the issue of whether an easement, the existence of which has been proved, may be exercised after a period of dormancy, absent a showing of present necessity. However, in Finn the court stated:

“The fact that the original grantee and his successors in interest have been permitted ingress to and egress from the forty acres over the land owned by surrounding strangers is immaterial. When such permission is denied, as in the present case, the subsequent grantees may avail themselves of the dormant easement implied in the deed severing the dominant and servient estates.” (Emphasis added.) (376 Ill. 95, 99.)

This conditions the exercise of the dormant easement upon a change in circumstances that would revive the necessity of the easement. (This is' distinguishable from cases holding that a change in circumstances cannot create an easement by implication where none existed at the time of separation of title. (See VanPatten v. Loof (1932), 349 Ill. 483, 487.)) The controlling circumstances in Finn, withdrawal of permissive access, has not occurred here. For the foregoing reasons, the plaintiffs have demonstrated no theory upon which an easement across the defendants’ land could be granted.

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

Judgment affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


text:
      In re ESTATE OF GERALD MEYERS, Deceased.—(Joseph Meyers et al., Petitioners-Appellees, v. Bertha Meyers, Adm’r of the Estate of Gerald Meyers, Respondent-Appellant.)
    Second District
    No. 82—463
    Opinion filed March 8, 1983.

      John C. Ambrose, of Ambrose & Cushing, P.C., of Chicago, for appellant.
    Edward S. Lipsky and Dennis M. Sbertoli, both of Zipperman, Levin, Shaps & Lipsky, of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Bertha Meyers, administrator of the estate of Gerald Meyers, deceased, appeals from an order of the circuit court of Lake County which directed her to distribute a total of $6,000 to four of the deceased’s five children. On appeal, she contends that this order, which on its face ordered payment of a child’s award, in fact gave impermissible preferential treatment to an order which had been entered, subsequent to the death of the decedent, in dissolution of marriage proceedings pending in the circuit court of Cook County for the payment of the children’s educational expenses.

The deceased, Gerald D. Meyers, died on December 13, 1980, survived by the administrator (his spouse) and by his five children of a previous marriage, four of whom are adults. On March 23, 1982, the deceased’s children filed petitions to remove the administrator in view of her failure to file an inventory; to spread of record an order for school expenses previously entered in the circuit court of Cook County; and to award each of the children a child’s award of $2,000. The Cook County judgment referred to above was signed by Judge Charles J. Fleck, Jr., and reflected that the court in the dissolution of marriage proceedings had determined that four of the children had “certain immediate and mandatory expenses required for them to commence school,” the total amount of such expenses being $6,000. The Cook County court concluded that by law (111. Rev. Stat. 1981, ch. 40, par. 513), the children had a valid claim and right to the amounts in question. The administrator was therefore ordered to apply forthwith for a withdrawal and distribution from the estate of the amounts in question.

The administrator subsequently filed an inventory listing assets of $16,304.58 plus 100 shares of stock of undetermined value and a cause of action for the wrongful death of the deceased, also of undetermined value. In view of the filing of the inventory, the petition to remove the administrator was denied. On May 4, 1982, the administrator filed a petition for a spouse’s award of $12,000. She also filed an objection to the petition for child’s award, contesting the jurisdiction of the circuit court of Cook County in the dissolution of marriage proceeding to enter orders against the estate and challenging the right of the children to an award.

On May 5, 1982, the circuit court of Lake County, acting on the petitions filed by the children, ordered the administrator to withdraw and distribute various amounts to the children, “said funds heretofore ordered by the Honorable Charles J. Fleck, Jr.” No provision was made for a fifth child, Deedre Meyers, who had not been mentioned in Judge Fleck’s order. The administrator appealed and raises a single issue: Whether funds should be paid from the decedent’s estate in accordance with a post-judgment order for educational expense prior to disbursement of other claims in due course of administration.

On appeal, the administrator characterizes the trial court’s order as an award of educational expenses to the children pursuant to the judgment for dissolution of marriage and contends that such an award should have been paid out of the estate in the normal course of administration. The children respond that the trial court’s order was a child’s award predicated on section 15 — 2(a) of the Probate Act of 1975 (111. Rev. Stat. 1981, ch. IIOV2, par. 15 — 2(a)).

The administrator, without discussing the child’s award question, asserts that the trial court’s order in the present case directs payment of the children’s educational expenses pursuant to the order of the court in the dissolution of marriage proceedings. In her view, the Cook County order merely adjudicated the estate’s liability for these expenses, which judgment should have been treated as a seventh class claim. (111. Rev. Stat. 1981, ch. llO1^, par. 18 — 10.) Since the trial court’s order erroneously accorded that claim preferred status and jeopardized the sufficiency of the estate’s assets to provide the minimum spouse’s award provided by law (111. Rev. Stat. 1981, ch. llO1^, par. 15 — 1), the administrator contends that the order requiring payment to the children from the assets of the estate must be reversed.

In support of her position, the administrator cites cases in which it was decided that accrued rights to alimony previously adjudicated in divorce proceedings rank as seventh class claims against the estate and are not to take precedence over the spouse’s award. (In re Estate of Schwarz (1966), 76 Ill. App. 2d 114; Pilackus v. Pilackus (1946), 328 Ill. App. 126 (abstract of opinion).) In response, the children assert that the sum awarded them by the trial court’s order was a proper child’s award and that, particularly in view of the administrator’s failure to file a report of proceedings, there is an insufficient basis upon which the trial court’s order may be reversed.

The purpose of the statutory spouse’s award is “to help alleviate the widow’s problems by removing as many of her financial worries as possible during this difficult period.” (In re Estate of O’Neill (1982), 104 Ill. App. 3d 488, 489; In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 380.) The statute does not restrict the widow to the bare necessities of life, but rather provides for a sum of money which will allow her to live for a period of nine months after the death of her spouse in the manner to which she has been accustomed. (60 Ill. App. 2d 376.) The minimum amount of the award is not discretionary, and the court is not required to hear evidence prior to making such an award. In re Estate of Buehnemann (1975), 25 Ill. App. 3d 1003.

Contrary to the position advanced by the administrator, the law does not accord the surviving spouse’s award preference over the child’s award. Both are second-class claims against the estate. (111. Rev. Stat. 1981, ch. IIOV2, par. 18 — 10.) Moreover, award of the minimum amount provided as a child’s award has, like the spouse’s award, been held not to be a matter for the trial court’s discretion. (In re Estate of Lewis (1974), 18 Ill. App. 3d 748 (construing Ill. Rev. Stat. 1973, ch. 3, par. 179).) When the estate is insufficient to pay the claims in any one class, the claims in that class are to be paid pro rata. 111. Rev. Stat. 1981, ch. HQNz, par. 18 — 13; see Ramsay v. Ramsay (1902), 196 Ill. 179.

In the present case, the trial court had before it petitions for a spouse’s award and for the children’s awards, as well as the petition for educational expense. The record contains no indication that any action was taken by the court concerning the spouse’s award petition at the time that the court acted on the children’s petition. Nor, despite the statement in the children’s brief that the court had oral testimony before it in rendering its decision, does it appear that any such testimony was taken in the probate proceedings. The record also does not reflect that the court heard testimony concerning the estate’s assets and the amount of any first-class claims, or that it considered the proration of the respective awards in view of the possible inadequacy of the estate to satisfy all of the statutory second-class awards in full. To the contrary, the order appealed from reflects only that the hearing had been continued “for the presentment of certain statements of expenses from the Petitioners’ Educational Institutions” and that the sums eventually awarded were “heretofore ordered by the Honorable Charles J. Fleck, Jr.” Thus, while the court in Cook County may have heard testimony on the amount of the children’s foreseeable educational expenses, and certain portions of that record may have been considered by the trial court in the probate proceedings, we find no indication that testimony was taken concerning the adequacy of the estate to satisfy all of the spouse’s and child’s awards provided for by law. -Nor did the court determine that the estate’s assets were adequate to pay all the second-class claims or prorate its award accordingly. The amount of first-class claims against the estate has not been made a matter of record, nor has this court been provided with a record sufficient to permit review of the question of whether any required proration of the awards has been done correctly. Indeed, it appears that the trial court had not acted upon the administrator’s petition for a spouse’s award or the petition for a child’s award at the time this appeal was filed. Computation of a child’s award based solely upon another court’s computation of that child’s educational expenses does not comport with the statutorily prescribed purpose of the award. On the record before us, it is apparent that the court’s allowance is for educational purposes and not children’s awards.

As an alternative basis for affirming their award, the children claim that the trial court’s order may be sustained on appeal even if it is determined not to represent a valid child’s award. In support of this position, the children rely upon In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304. That case involved, inter alia, a discussion of the impact of section 510 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 510) upon prior law (see In re Estate of Lewis (1974) 18 Ill. App. 3d 748), which held that a parent’s support obligation terminated at death. However, neither section 510 of the Illinois Marriage and Dissolution of Marriage Act nor the Dulyn case which construed it, provides that the support obligation is to be considered a priority claim against the estate. We therefore conclude that the trial court’s order is not justified on the basis of this second rationale advanced by the children.

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

Reversed.

SEIDENFELD, P.J., and REINHARD, J., concur.


text:
    EDITH SAUERS, Plaintiff-Appellant, v. THE CITY OF WOODSTOCK et al., Defendants-Appellees.
    Second District
    No. 82—520
    Opinion filed March 8, 1983.

      Richard W. Eicksteadt, of Pollock, Meyers, Eicksteadt & Arnold, Ltd., of Marengo, for appellant.
    Michael T. Caldwell, of Caldwell, Berner & Caldwell, of Woodstock, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Edith Sauers, appeals from an order of the circuit court of McHenry County which entered summary judgment against her and in favor of the defendants, the city of Woodstock (the city) and John Hayes, the city manager of Woodstock.

Her assignments of error on review are: (1) that the trial court improperly entered summary judgment for the defendants on count I of her amended complaint because the affidavit and exhibits supporting the defendants’ motion for summary judgment did not comply with the requirements of Supreme Court Rule 191(a) (91 Ill. 2d R. 191(a)); and (2) that the granting of the defendants’ motion for summary judgment on counts II and III of her amended complaint was erroneous for the reasons (a) that material issues of fact existed with respect to those counts which precluded the use of summary judgment procedure in this cause and (b) that the defendants’ motion was only directed at count I.

The plaintiff filed a one-count complaint in the circuit court of McHenry County, pursuant to section 8.01a of the Fair Employment Practices Act (FEPA) (111. Rev. Stat. 1979, ch. 48, par. 858.01a), in which she alleged that the defendants engaged in employment discrimination on the basis of sex and a physical disability (hearing impairment) when, on January 24, 1977, they discharged her from her position as an accounting clerk with the city of Woodstock.

The plaintiff filed a motion for leave to amend her complaint, which the trial court granted. Her amended complaint, which was brought against the same two defendants who had been named in the original complaint, consisted of three counts. Count I of the amended complaint alleged essentially the same facts and cause of action as the original complaint, except that it was brought under section 9 — 102(B) of the Illinois Human Rights Act (IHRA) (111. Rev. Stat. 1981, ch. 68, par. 9 — 102(B)). It also added an additional paragraph which stated that the defendants had discriminated against the plaintiff because of her age.

The other two counts of the amended complaint alleged, in essence, that the defendants breached the employment contract which existed between the plaintiff and the city. More specifically, count II stated that the plaintiff had accepted, as part of her employment contract, the policies and procedures set forth in the city’s Review Board Procedure and Personnel Plan and that the city had violated the employment contract by failing to comply with certain terms and conditions of those two documents. Both documents were attached as exhibits to the plaintiff’s complaint. The defendants answered admitting that the plaintiff had accepted, as part of her employment contract, the above-mentioned standards, policies, and procedures; they denied, however, that they had violated the provisions of those documents. Count II further recited that the plaintiff had performed all the terms and conditions of the contract of employment, an allegation which the defendants denied. In addition, she alleged that she was discharged without just or sufficient cause, a statement the defendants also denied. Count II requested an award of monetary damages.

Count III alleged the same facts as count II but requested that the plaintiff be reinstated in her former position as an accounting clerk and that she be awarded backpay and accrued fringe benefits, with interest. The responses contained in the defendants’ answer weré the same as those directed to count II.

In their answer, the defendants raised an affirmative defense. The plaintiff did not reply to that defense. The defendants asserted in their defense that the plaintiff was discharged from her position as a general accounting clerk for four reasons: (1) poor work performance; (2) not directing telephone messages to proper people because of her hearing loss; (3) use of the telephone for personal calls; and (4) the “phasing out” of her position. The defense further recited that the plaintiff had filed a written complaint with the Chicago office of the Illinois Fair Employment Practices Commission (the Commission) on March 2, 1977, charging the defendants with unfair employment practices; that the Commission gave the defendants written notice of the charge on March 11 of that year; that, on October 24, 1978, the city of Woodstock filed a motion with the Commission to dismiss the charge; that the Commission responded on October 27, 1978, that the plaintiff’s complaint was still in the investigatory stage and that the city’s motion was inappropriate at that time. The October 27 letter from the Commission to the city attorney, Michael Caldwell, which was attached to the answer as an exhibit, stated that the plaintiff’s charge had not been processed through investigation and conciliation within 180 days. The affirmative defense also said that, according to the records of the Commission, as of April 30, 1979, there were no charges or investigations pending before the agency relative to the city of Woodstock. The defendants attached as exhibits to their answer the complaint which the plaintiff filed with the Commission and the correspondence between the city and the Commission to which the defendants referred in their affirmative defense.

The gravamen of the defendants’ affirmative defense was that section 9 — 102(B) of the Illinois Human Rights Act (111. Rev. Stat. 1981, ch. 68, par. 9 — 102(B)), upon which, they alleged, the plaintiff relied in bringing her lawsuit in the circuit court, was unconstitutional because it (1) denied the defendants equal protection of the law and due process by reviving a previously barred cause of action and (2) constituted prohibited special legislation. (See Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 33.) Consequently, they asserted that due to the unconstitutionality of section 9 — 102(B), the plaintiff’s suit in the circuit court was barred.

The defendants filed a motion for summary judgment in which they raised the same matters asserted in their affirmative defense. Included as part of the motion for summary judgment were the same exhibits that were incorporated as part of the affirmative defense, as well as an affidavit by the city attorney. The record reveals that the plaintiff did not file a response to the motion for summary judgment, a counteraffidavit, or any other document.

In his affidavit, Michael Caldwell related that he was an attorney for the defendants and was authorized to make the affidavit in support of the motion for summary judgment. The affiant stated that he was the city attorney for the city for Woodstock during all times material to the present cause of action and that he was aware of the unfair employment practice claim which the plaintiff had filed with the Commission. He further stated that the exhibits which were included as part of the motion for summary judgment were true, correct, and accurate copies of all documents which either the city or the affiant had received in connection with the plaintiff’s claim of an unfair employment practice.

The trial court granted the defendants’ motion for summary judgment. In its order, the trial court concluded, in agreement with the defendants’ theory, that section 9 — 102(B) of the Illinois Human Rights Act was unconstitutional in that it constituted special legislation and also denied the defendants equal protection and due process. After finding that no genuine issues of material fact existed, the court below entered judgment, as a matter of law, for the defendants and against the plaintiff.

The plaintiff filed a “motion to vacate summary judgment and for rehearing” on May 5, 1982. In that motion, she alleged that only count I of her complaint was predicated on section 9 — 102(B) of the IHRA; she stressed that counts II and III were based on a claim of a breach of her employment contract. Accordingly, she concluded that the defendants’ motion for summary judgment was directed solely to count I of her complaint. In addition, she argued that material issues of fact existed with respect to counts II and III of her complaint. Lastly, the plaintiff maintained that the affidavit and supporting documents or exhibits which were included as part of the defendants’ motion for summary judgment were legally deficient because they did not comply with the requirements of Supreme Court Rule 191 (91 Ill. 2d R. 191). Attached to the plaintiff’s motion were the affidavit of her attorney, her own affidavit, and numerous exhibits relating to her employment relationship with the city.

The court below denied the plaintiff’s motion to vacate. The plaintiff appealed from both the original summary judgment and the subsequent denial of her motion to vacate that judgment.

Two issues are presented: (1) Did the trial court improperly enter summary judgment for the defendants and against the plaintiff and (2) Were the affidavit and attached exhibits submitted in conjunction with the motion for summary judgment violative of Supreme Court Rule 191(a) (91 Ill. 2d R. 191(a)) such that the trial court should not have considered them in ruling on the motion.

Preliminarily, we note that the plaintiff pleaded a cause of action for employment discrimination or unfair employment practice in count I of her amended complaint and, in our opinion, a separate and distinct cause of action for breach of her employment contract in counts II and III. Although counts II and III of the amended complaint contain a single, fleeting reference to the Illinois Human Rights Act, upon which count I is predicated, it is clear that the gravamen of the latter two counts is an action sounding in breach of contract, not employment discrimination. The passing reference to the IHRA in counts II and III should be treated as surplusage, because that single comment does not, by itself, state a cause of action separate and distinct from the breach of employment contract claim. Counts II and III plead only a cause of action for breach of the employment contract. (See Bates & Rogers Construction Corp. v. North Shore Sanitary District (1980), 92 Ill. App. 3d 90, 94.) Furthermore, counts II and III reasonably informed the defendants of the nature of the breach of employment contract claim. (111. Rev. Stat. 1981, ch. 110, par. 42(2), re-codified as 111. Rev. Stat. 1981, ch. 110, par. 2 — 612(b).) The present case is clearly distinguishable from Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 420-23. Also, the defendants never raised the alleged pleading defect in the trial court. Therefore, we conclude that, under section 33(2) of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 33(2)), recodified as section 2 — 603(b) of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 603(b)), the plaintiff’s complaint contains different causes of action which were pleaded, designated, and numbered in separate counts. Because the plaintiff’s complaint pleaded two distinct theories of recovery in the trial court, we will discuss those alleged causes of action separately for purposes of determining whether the trial court properly entered summary judgment for the defendants.

COUNT I

On appeal, the plaintiff first contends that the trial court improperly entered summary judgment on count I of her amended complaint because the affidavit of city attorney Caldwell and the attached exhibits or documents submitted in support of the motion did not comply with the requirements of Supreme Court Rule 191(a) (91 Ill. 2d R. 191(a)). We believe that the plaintiff’s position is not meritorious.

Count I of the plaintiff’s amended complaint for employment discrimination or unfair employment practice was predicated upon section 9 — 102(B) of the Illinois Human Rights Act (IHRA) (111. Rev. Stat. 1981, ch. 68, par. 9 — 102(B)). In 1979, the legislature passed the IHRA (111. Rev. Stat. 1980 Supp., ch. 68, par. 1 — 101 et seq.), which repealed and superseded the Illinois Fair Employment Practices Act (FEPA) (111. Rev. Stat. 1977, ch. 48, par. 851 et seq.); the IHRA incorporated substantially all of the provisions found in the FEPA.

Under the terms of section 8.01(a) of the FEPA (111. Rev. Stat. 1977, ch. 48, par. 858.01(a)), which was in force at the time (March 2, 1977), the plaintiff filed her charge before the Illinois Fair Employment Practices Commission, the Commission was required to issue, within 180 days of the plaintiff’s charge, either a complaint or an order that no complaint would issue. The Illinois Supreme Court has determined that the 180-day period is mandatory, and that, generally, the Commission must act within 180 days. (See Board of Governors v. Illinois Fair Employment Practices Com. (1979), 78 Ill. 2d 143, appeal dismissed sub nom. Zackai v. Board of Governors (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61.) It appears that the practical effect of those decisions was to deny a complainant access to the circuit court (see Ill. Rev. Stat. 1977, ch. 48, par. 860) in cases where the Commission had not completed action on the complaint, one way or the other, within 180 days.

In 1978, the Illinois legislature added section 8.01a to the FEPA (111. Rev. Stat. 1979, ch. 48, par. 858.01a). That section created a remedy for those individuals whose discrimination charges were not acted upon by the Commission within the 180-day statutory time limit. In relevant part, section 8.01a states:

“In the case of any charge of an unfair employment practice which has been properly filed with the Commission prior to March 30, 1978, which has not been settled or adjusted by conference and conciliation under Section 8, and which within 180 days thereafter has not been the subject of a complaint issued by the Commission or an order that no complaint be issued, the person filing the charge may seek appropriate injunctive or other relief by filing an action in the circuit court of the county where the alleged unfair employment practice occurred ***.” (111. Rev. Stat. 1979, ch. 48, par. 858.01a.)

Section 9 — 102(B) of the IHRA, which is virtually identical to section 8.01a of the FEPA, similarly provides a remedy for persons whose FEPA charges were not addressed or resolved within the requisite statutory period.

Prior to the time the plaintiff filed her amended complaint in this cause, our supreme court determined that section 9 — 102(B) amounted to unconstitutional special legislation and also violated the equal protection and due process clauses of the Constitution of the State of Illinois. (Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 33.) Under the Wilson decision, it is manifest that section 9 — 102(B) is void and that no rights can be based upon it. We note that the defendants’ affirmative defense and motion for summary judgment relied solely upon the authority of Wilson v. All-Steel, Inc.

While at first glance Wilson v. All-Steel, Inc. would appear (1) to sound the death knell of the plaintiff’s cause of action and (2) to support the trial court’s decision to grant summary judgment on count I, two opinions subsequent to Wilson (see Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148; Lott v. Governors State University (1982), 106 Ill. App. 3d 851), cast serious doubt on the validity of the trial court’s reliance on the Wilson decision.

In Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, rev’d sub nom. Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, Logan filed an employment discrimination charge with the Commission, which was required to convene a factfinding conference within 120 days of Logan’s charge (111. Rev. Stat. 1979, ch. 48, par. 858(b)). When the Commission failed, due to administrative delay for which Logan was not responsible, to hold the conference within the requisite period, Logan filed a petition for a writ of prohibition in our supreme court. In responding to that petition, the Illinois Supreme Court held that the 120-day period was mandatory and that, therefore, the Commission lacked jurisdiction to consider Logan’s charge. (82 Ill. 2d 99, 104.) The United States Supreme Court reversed the Illinois Supreme Court, holding that Logan’s access to the FEPA’s adjudicatory procedures was a protected property interest under the due process clause of the fourteenth amendment. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 428.33, 71 L. Ed. 2d 265, 273-76, 102 S. Ct. 1148, 1153-56.) Accordingly, the court determined that Logan was entitled to have the Commission consider the merits of the charge. 455 U.S. 422, 434, 71 L. Ed. 2d 265, 277, 102 S. Ct. 1148, 1157.

In Lott v. Governors State University (1982), 106 Ill. App. 3d 851, the plaintiff timely filed a charge of employment discrimination with the Commission, which did not act upon the complaint within the requisite 180-day statutory period. His claim was thereby defeated due to administrative inaction. He then filed a complaint in the circuit court, which dismissed the suit on jurisdictional grounds. While the appellate court recognized that the plaintiff could not rely on section 9 — 102(B) of the IHRA because the Illinois Supreme Court had declared that section unconstitutional, it nevertheless concluded, relying upon the United State Supreme Court’s decision in Logan v. Zimmerman Brush Co., that the plaintiff had a protected property interest in his employment discrimination claim and could not be deprived of that interest by the inaction of the Commission without offending the constitution. (106 Ill. App. 3d 851, 854.) The Lott court determined that the plaintiff there was entitled to have the Department of Human Rights and the Human Rights Commission (the successors of the FEPC) consider the merits of his discrimination claim in accordance with the procedures enumerated in articles 7 and 8 of the IHRA. See 111. Rev. Stat. 1981, ch. 68, pars. 7 — 102, 8 — 102.

Concluding that the Department of Human Rights (the Department) and the Human Rights Commission were necessary parties in that lawsuit, the court in Lott directed the trial court, upon remand, to allow the plaintiff to amend his complaint to add those entities as defendants (see Bl. Rev. Stat. 1981, ch. 110, par. 26, recodified as Bl. Rev. Stat. 1981, ch. 110, par. 2 — 407). The trial court was also directed to order the Department to accept and process the plaintiff’s charge as provided in the IHRA. Finally, the Lott opinion stressed that there was no limitation problem involved there, because the plaintiff’s original charge was brought in timely fashion before the FEPC.

The facts of the present case mirror very closely those presented in Lott. Here, as in Lott, the plaintiff was prevented from having her employment discrimination claim disposed of before the FEPC due to administrative inaction of the Commission; was denied relief in the trial court; and did not raise on review the theory of relief which would justify the appellate court in reversing and remanding the cause. Similar to Lott, here the plaintiff’s claim was timely filed before the Commission, as it was brought less than 180 days after the unfair employment practice allegedly occurred (see 111. Rev. Stat. 1977, ch. 48, par. 858). We adopt the rationale employed in Lott and adhere to the result reached in that case and, therefore, the trial court erred in entering summary judgment for the defendants on count I of the plaintiff’s complaint.

COUNTS II AND III

The thrust of the plaintiff’s challenge here is that, with respect to counts II and III of her amended complaint, the pleadings presented genuine issues of material fact, thereby precluding the use of the summary judgment procedure in this cause. The plaintiff points out, correctly, that the defendants’ motion for summary judgment re-' lated only to the unconstitutionality of section 9 — 102(B). At no place in that motion did the defendants address the breach of employment contract claims which the plaintiff asserted in counts II and III.

Recently, this court has had occasion to articulate the well-recognized principles which guide an appellate court’s review of a trial court’s disposition of a motion for summary judgment. It is axiomatic that summary judgment is a proper procedure when the pleadings, together with the depositions, affidavits, and other material filed in support and in opposition to the motion, demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 325.) The purpose of a summary judgment proceedings is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried, and a reviewing court will reverse an order granting summary judgment if it is determined that a question of material fact exists. (Schnabel v. County of Du Page (1981), 101 Ill. App. 3d 553, 560.) Although summary judgment provides a means of disposing of cases with dispatch, it is a drastic method which should be employed only in cases in which the moving party’s right to it is free from doubt. (Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268.) Where the facts contained in an affidavit in support of a motion for summary judgment are not contradicted by a counteraffidavit, those facts are admitted and must be taken as true. Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87, 92-93.

From our review of the record, and for the reasons set forth below, we conclude that the pleadings presented to the trial court in the summary judgment proceeding contained disputed material facts regarding the plaintiff’s allegations, in counts II and III of her amended complaint, that the defendants breached her employment contract with the city. In our opinion, the existence of the genuine issues of material fact precluded the entry of summary judgment in this case. In addition, the record in its present state does not establish, as a matter of law, that the plaintiff’s claim of a breach of her employment contract is without merit.

In our opinion, the plaintiff’s amended complaint and the defendants’ answer raised issues of material fact, and the defendants did not supply any evidentiary facts by affidavit or deposition which would show either that there were no remaining genuine issues of material fact or that the defendants were entitled to judgment, as a matter of law, on those counts (see Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326). For example, counts II and III of the amended complaint, among other things, alleged that the plaintiff performed all the terms and conditions of the contract of employment into which she had entered with the city and that the city unlawfully discharged her without just or sufficient cause. In their answer, the defendants denied all those allegations. Based on the conflicting nature of the pleadings with respect to the question whether the city had “good cause,” under its personnel rules, to discharge or dismiss the plaintiff, a material question of fact exists on this subject. In particular, the plaintiff alleged that she had performed all the conditions and terms of her employment contract, an allegation the defendants denied. The defendants’ affirmative defense and the letter that the plaintiff filed with the Commission, which was included as an exhibit to both the defendants’ answer and motion for summary judgment, reveal that one of the reasons the plaintiff was terminated was “poor work performance.” However, the reasonable inference we draw from the plaintiff’s allegations in her complaint — that she dutifully performed the terms and conditions of her employment contract — is that she alleged, in essence, that her work performance was satisfactory.

We point out, in addition, that there is no indication in the record before this court that the defendants introduced, in their pleadings, affidavit or supporting documents, any underlying facts to supports the four alleged reasons for discharging the plaintiff. Thus, the trial court was never presented any evidence upon which it could determine whether the charges were well founded and whether, as a matter of law, they constituted good cause for terminating the plaintiff. Further, neither the defendants’ affirmative defense nor their motion for summary judgment expressly addressed the breach of contract claims which the plaintiff raised in her amended complaint and the trial court’s summary judgment refers only to the unconstitutionality of section 9 — 102(B) of the IHRA and makes no reference, either directly or indirectly, to the contractual claims of counts II and III.

Because these are genuine issues of material fact raised by the complaint and answer, and because there is no evidence in the record that the trial court was presented with sufficient undisputed facts to allow it to determine, as a matter of law, that the plaintiff was discharged for good cause, with respect to counts II and III of the plaintiff’s amended complaint, summary judgment was erroneously granted in behalf of the defendants.

Because of our disposition of this issue, we find it unnecessary to resolve the second issue raised by the plaintiff relating to the sufficiency of the affidavit and attached exhibits in conjunction with the motion for summary judgment.

We now turn to an issue which the defendants argue in their brief.

The defendants’ contention is that the plaintiff’s statement of facts fails to conform to the law in two regards. In the first place, they maintain that the plaintiff’s statement of facts does not contain the necessary citations to the record in violation of Supreme Court Rule 341(e)(6) (91 Ill. 2d R. 341(e)(6)). Secondly, they maintain that this court should disregard certain matters contained in the plaintiff’s proposed report of proceedings because the trial court did not certify the bystander’s report as an accurate representation of the proceedings.

Our examination of the record reveals that the plaintiff has substantially complied with Rule 341(eX6), for her statement of facts does cite to the appropriate references in the record. However, the defendants correctly point out that the plaintiff’s statement of facts (1) contains references to an uncertified report of proceedings and (2) in reliance on that uncertified bystander’s report, relates the purported arguments of the parties before the trial court at the hearings held on the defendants’ motion for summary judgment and on the plaintiff’s motion to vacate the entry of summary judgment. We note, however, that the record does not contain any evidence of what occurred at those hearings other than the matters related in the plaintiff’s uncertified bystander’s report. Therefore, as the defendants properly argue, this court may not consider any statements of fact in the plaintiff’s brief where the sole support in the record for those statements is found in the uncertified and, hence, legally insufficient, proposed report of proceedings.

The decision of the circuit court of McHenry County is reversed and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

SEIDENFELD, RJ., and REINHARD, J., concur.